June 22, 2016

Public Hearing on F-35 Lawsuit. South Burlington City Council Special Meeting.

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16-3309-cv

Zbitnoff et al. v. James

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “Summary Order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of September, two thousand and seventeen.

Present:

ROBERT D. SACK,
PETER W. HALL, CHRISTOPHER F. DRONEY,

Circuit Judges.

Igor Zbitnoff, Eileen Andreoli, Jeffrey Frost, Richard Joseph, Juliet Beth Buck, Ray Gonda, Stop the F35 Coalition,

Plaintiffs – Appellants, David Deslauriers, Sr.,

Plaintiff,
Deborah Lee James, Secretary of the Air Force,

Defendant – Appellee.

16-3309-cv

For Appellant: JAMES ALLAN DUMONT, Bristol, VT (Laura Hill-Eubanks, Greenfield Legal Services, LLP, Northfield, VT, on the

brief).
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For Appellee:

BRIAN TOTH, (David W. Gehlert and Jeffrey H. Wood, on the brief), Environmental and Natural Resources Division, United States Department of Justice, Washington, DC. Eugenia A.P. Cowles, Acting U.S. Attorney, and Nikolas P. Kerest, Assistant U.S. Attorney, for the District of Vermont, Burlington, VT, on the brief.

Appeal from the District of Vermont’s (Crawford, J.) final judgment entered August 10, 2016.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

Plaintiffs-Appellants Igor Zbitnoff, Eileen Andreoli, Jeffrey Frost, Richard Joseph, Juliet Beth Buck, Ray Gonda, and Stop the F35 Coalition (“Plaintiffs”) challenge the Secretary of the Air Force’s determination to locate a squadron of F35 Lightning II aircraft at the South Burlington Air National Guard (“ANG”) station and the Secretary’s Environmental Impact Statement’s (“EIS”) compliance with the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370m-12. We assume the parties’ familiarity with the underlying facts, procedural history, arguments presented on appeal, and the district court’s rulings.

We review de novo the district court’s determination on summary judgment, viewing the facts in the light most favorable to the non-moving party. See Fund for Animals v. Kempthorne, 538 F.3d 124, 131 (2d Cir. 2008). The court cannot “interject itself within the area of discretion of the executive as to the choice of the action to be taken,” Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (citation omitted), and, upon review of the environmental consequences, our role is to

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determine whether the agency’s determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, see 5 U.S.C. § 706. Citizens for Balanced Env’t & Transp., Inc. v. Volpe, 650 F.2d 455, 460 (2d Cir. 1981).

NEPA’s requirements direct the process of an agency’s determination when it intends to take an action that has a significant effect on the environment. See 42 U.S.C. § 4332(C). “[It] does not command an agency to favor any particular course of action, but rather requires the agency to withhold its decision to proceed with an action until it has taken a ‘hard look’ at the environmental consequences.” Stewart Park & Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir. 2003) (citation omitted). The EIS “must address any adverse unavoidable environmental effects resulting from the implementation, alternatives to the proposed action, the relationship between short-term uses and the long-term maintenance of the environment, and any irretrievable commitments of resources involved in the proposed action.” Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). A court “may not rule an EIS inadequate if the agency has made an adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent data, and has made disclosures to the public.” Stewart Park, 352 F.3d at 557–58 (citation omitted). The Council on Environmental Quality (“CEQ”) promulgates rules and regulations to guide federal agencies through the NEPA process. See 40 C.F.R. §§ 1500.1, 1518.4.

Plaintiffs challenge whether, in issuing the EIS, the Secretary failed to apprise the public of the information she necessarily considered when reaching her

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determination. Plaintiffs first assert that the Secretary considered, but the EIS failed to address, the anticipated cost-savings resulting from the placement of the F35 jets at Burlington ANG over other alternative locations. Next, plaintiffs maintain that the Secretary failed to consider, and the EIS failed to address, Vermont’s land-use law’s permitting requirements, see Vt. Stat. Ann., tit. 10, §§ 6001–6111 (“Act 250”), and the City of South Burlington’s Comprehensive Plan.

Plaintiffs assert that the EIS must discuss non-environmental impacts, and they rely on Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79 (2d Cir. 1975), and Chelsea Neighborhood Associations v. U.S. Postal Service, 516 F.2d 378 (2d Cir. 1975) for this proposition. Plaintiffs ask too much of these cases. In Natural Resources Defense Council, we stated that an “EIS fails to perform its vital task of exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government” when it “fail[s] to present a complete analysis and comparison of the possible . . . sites.” 524 F.2d at 94. Our holding was focused exclusively on environmental considerations. We held that the EIS incorrectly “evaluated only the environmental impact of [a] particular Navy project,” and thus “the EIS failed to furnish information essential to the environmental decision-making process.” Id. at 87 (emphasis added). Again, in Chelsea Neighborhood Associations, we explained that “the adequacy of an EIS can only be considered in light of its purpose . . . ‘to compel federal agencies to give serious weight to environmental factors in making discretionary choices.’” 516 F.2d at 386 (citation omitted) (emphasis added). We concluded that the EIS failed to

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address comprehensively the environmental impact of the housing decision, and specifically that the EIS failed to address traffic, parking, and any resulting contribution to noise and air pollution. Id. at 388. These cases are clear that NEPA requires the EIS to address the environmental impacts of the proposed project and cannot be read in the broader meaning that plaintiffs urge.

Both these cases preceded Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983), which explained NEPA’s limited scope. In deciding whether the EIS should have considered potential psychological health damage, the Court determined that “NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment.” Id. at 772 (emphasis in original). “If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply,” plain and simple. Id. at 778. Plaintiffs fail to offer any convincing argument that Metropolitan Edison did not limit NEPA’s application to the consideration of environmental impacts, or that their asserted omission in the EIS—a cost benefit analysis between proposed sites— is somehow connected to the environment. Consistent with this Circuit’s precedent and Metropolitan Edison, the Secretary’s EIS omitting a discussion of cost-savings of placing the F35s in South Burlington complied fully with NEPA.

Plaintiffs’ argument that the EIS must consider the conflict between the Air Force’s basing decision and the requirements of Vermont’s Act 250 was squarely addressed by the Vermont Supreme Court’s holding in In re: Request for Jurisdictional Opinion re: Changes in Physical Structures and Use at Burlington

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Int’l Airport for F-35A, 117 A.3d 457 (Vt. 2015). There, the Supreme Court of

Vermont held the development associated with housing F35s fell outside Act 250’s permitting requirements because Act 250 was preempted by federal law and Act 250’s “state purpose” requirement prevented its application to the Air Force’s federal project. Under the terms of Act 250, only development for municipal, county, or State purposes requires a permit. Here, the “proposed improvements related to the fighter jet were being made by the federal government and would be under federal control, and therefore there was no state purpose.” Id. In any event, state and local control and regulation of aircraft and aircraft noise falls within “the pervasive control vested in the EPA and in FAA . . . [and] seems to us to leave no room for . . . local controls” on aircraft noise. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638 (1973). Because Act 250’s requirements are preempted by federal law and do not apply to development undertaken for a federal purpose, the EIS was not required to address Act 250’s noise standards.

With respect to Plaintiffs’ argument that the EIS failed to address South Burlington’s Comprehensive Plan, this also fails. Just as Vermont Act 250 is preempted by federal law, so too would be any attempts by municipalities to control aircraft noise. See id. at 640. Moreover, without being required to do so, the EIS did in fact consider the effects of increased noise and effects on the housing developments in South Burlington and Winooski that may have been contemplated by South Burlington’s Comprehensive plan.

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We have considered the parties’ remaining arguments and find them to be without merit. Accordingly, the district court’s judgment is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

Case 16-3309, Document 68-2, 09/21/2017, 2130072, Page1 of 1

ROBERT A. KATZMANN CHIEF JUDGE

Date: September 21, 2017 Docket #: 16-3309cv
Short Title: Zbitnoff v. James

CATHERINE O’HAGAN WOLFE CLERK OF COURT

DC Docket #: 14-cv-132 DC Court: VT (RUTLAND) DC Judge: Crawford

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, NY 10007

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court’s website.

The bill of costs must:

• *  be filed within 14 days after the entry of judgment;
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* be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 16-3309, Document 68-3, 09/21/2017, 2130072, Page1 of 1

ROBERT A. KATZMANN CHIEF JUDGE

By Elizabeth Murray
August 11, 2016

A federal judge in Burlington has ruled that an environmental impact statement completed by the U.S. Air Force about basing F-35 fighter jets in Vermont complies with standards set by the National Environmental Policy Act, clearing the way for the planes’ arrival in 2019.

The ruling came in a lawsuit filed by the Stop the F-35 Coalition and six Chittenden County residents against Secretary of Air Force Deborah Lee James. Winooski had joined the lawsuit on the side of the plaintiffs, and South Burlington submitted a brief backing the plaintiffs, as well.

[FULL ARTICLE]

By Elizabeth Murray
August 17 2016

Six Chittenden County residents and the Stop the F-35 Coalition plan to file an appeal to a recent federal court decision that cleared the way for basing F-35 fighter jets in Burlington.

Coalition leader Roseanne Greco, a retired U.S. Air Force colonel, said the groups had met or spoken with lawyer Jim Dumont on Sunday and made the decision to bring the case to the 2nd U.S. Circuit Court of Appeals in New York.

“Our briefs will contain detailed arguments about the disagreements we have with the judge’s ruling,” Dumont said Tuesday.

Judge Geoffrey Crawford ruled last week that an environmental impact statement completed by the Air Force about basing F-35 fighter jets in Vermont complies with standards set by the National Environmental Policy Act. The planes are expected to arrive in at the Air National Guard base at Burlington International Airport in 2019.

[FULL ARTICLE]

By Nicole Higgins DeSmet
June 28, 2016

Frantic and frustrated attempts to dominate the narrative by well-meaning parties both for and against the F-35 basing and a related safety and sound lawsuit have upset some South Burlington residents and confused others.

There is an incredible amount of information available for the general public to consume: the Environmental Impact Statement (EIS), legal filings, Federal Aviation Administration reports, and of course the administrative records — countless pages of documents released by the U.S. Air Force last year by order of Judge Geoffrey Crawford, who in July will hear a lawsuit about the impact of basing the F-35 at Burlington International Airport.

By Thomas I. Chittenden
June 22, 2016

The city of South Burlington has no imperative to commit our good name and our resources to a private lawsuit against the U.S. government designed to stop military aircraft at Burlington International Airport. This question was not on the ballot this past March. Residents of South Burlington did not vote for this and we do not have to do this.

By Nicole Higgins DeSmet
June 23, 2016

The City Council voted in support of joining the F-35 litigation, but not as a plaintiff. It was not unanimous. Councilors Thomas Chittenden and Pat Nowak were the dissenters. Nowak was on vacation, but participated via smartphone.

There are barely two weeks left before Judge Geoffrey Crawford hears the case regarding F-35 noise mitigation and safety. The council felt it would be in the best interest of the city to make a statement in the form of an amicus brief. This will offer South Burlington’s perspective on the litigation, but not directly involve the city in the lawsuit.

Before the community had a chance to speak, council members introduced their concerns.

By Renee Wunderlich
June 23, 2016

The South Burlington City Council dedicated it’s entire Wednesday night meeting  to one issue: whether or not to join the lawsuit against F-35 fighter jets set to be based at Burlington international airport starting in 2019.

“We just may come down on different sides of the issue, but that doesn’t mean you haven’t been heard,” City Council Chair Helen Riehle said.

At the community forum, many for the jets say there’s only a small group against them coming to South Burlington.

“The issues that they’re trying to bring up in the lawsuit isn’t anything that can’t be answered outside of litigation,” said Nicole Citro, a community member well-known for her support of the F-35 plan. “Taking them to court isn’t going to get those questions answered. Because what it is with this lawsuit, the EIS was done — the Environmental Impact Study was done — you can’t get more information. It’s just making sure that it was done correctly, and it was done correctly. The basing decision wasn’t just on that, it was on a lot of different factors and I really think this is just a waste of everyone’s time.”

The suit centers around some questioning whether or not the Air Force’s Environmental Impact Study included information about concerns like noise and crash risks — two things some said have them very worried.

BY MORGAN TRUE
JUNE 25, 2016

The City Council voted 3-2 earlier this week to file an amicus, or friend of the court, brief in a lawsuit seeking to block the arrival of F-35 fighter jets at Burlington International Airport until the U.S. Air Force completes environmental reviews that the plaintiffs argue were not done properly.

South Burlington considered joining the suit as a plaintiff, but after the measure encountered stiff resistance from two city councilors and a some residents, the council settled on making its voice heard through a brief expressing support for the plaintiffs case.

By Nicole Higgins DeSmet
June 29, 2016

South Burlington filed on Tuesday a motion, asking the court to allow the city to support the safety and sound lawsuit against the U.S. Air Force, just one week before the case is heard. The city also submitted a formal memorandum in support of the lawsuit.

South Burlington City Attorney Jim Barlow confirmed that Judge Geoffrey Crawford will read and consider the brief. Both documents were filed by attorney John H. Klesch on behalf of the City of South Burlington.

An Environmental Impact Statement (EIS) from March 2012 is at the heart of the lawsuit. Litigants said it did not adequately address noise, health and safety issues associated with the F-35A jet beddown. Current litigants are the City of Winooski, the Stop the F-35 group and other six individuals.

By Nicole Higgins DeSmet
June 30, 2016

Judge Geoffrey Crawford has granted the City of South Burlington’s request to participate in support of the safety and sound lawsuit against the U.S. Air Force, only days before the case is heard in court.

South Burlington City Manager Kevin Dorn and attorney John Klesch confirmed the development.

A federal Environmental Impact Statement (EIS) from March 2012 is at the heart of the lawsuit. Litigants said it did not adequately address noise, health and safety issues associated with the F-35A jet beddown. Current litigants are the City of Winooski, the Stop the F-35 group and other six individuals. South Burlington is not a party to the lawsuit, it participates as amicus curiae, with a letter or memorandum supporting the litigants.

By Stewart Ledbetter
July 5, 2016

Veracity of environmental review at heart of legal challenge

A federal judge heard arguments Tuesday over whether the U.S. Air Force did its job drafting an environmental impact study projecting how the F-35 fighter jet might fit in at the Burlington airport.

The USAF used the study in part to approve basing its newest warplane at the Vermont Air National Guard. The first 18 planes, each costing over $100 million, are due to arrive in 2019.

BY MARK DAVIS
JULY 5, 2016

Opponents of the U.S. Air Force’s decision to base a squadron of next-generation F-35 fighter jets at Burlington International Airport finally got their day in federal court on Tuesday.

U.S. District Court Judge Geoffrey Crawford heard arguments in a lawsuit accusing the Air Force of failing to conduct a proper environmental review before deciding to assign 18 of the F-35s to the Vermont Air National Guard. The planes are scheduled to arrive in 2019.

Opponents of the F-35s, which are louder than the F-16s currently based at the airport, are trying to get that decision set aside and to have a new review, known as an environmental impact statement, conducted. Residents of South Burlington and Winooski, along with the Stop the F-35 Coalition and the city of Winooski, filed the suit.

By Adam Federman
July 6, 2016

Air Force attorney David Gehlert closed nearly four hours of testimony in Rutland Federal Court on Tuesday by stressing that the government has fully acknowledged the public health and environmental risks associated with the F-35 fighter jet.

Gehlert also acknowledged that the environmental impacts of the aircraft would be far greater for Burlington than they would be for the McEntire Joint National Guard Base in South Carolina or the Naval Air Station in Jacksonville, Florida, also considered as sites for the F-35.

The arguments were part of a motion for summary judgment that will ultimately determine whether the Air Force’s Environmental Impact Statement issued in September 2013 properly took into account the dangers posed by the new fleet of aircraft.

By Sarah Olsen
June 14, 2016

The City Council postponed a decision on joining a lawsuit seeking to keep F-35 fighter jets from being based at the local airport after councilors Monday traded accusations of manipulating or subverting the public process in order to sway the outcome.

The current plaintiffs in the lawsuit are the Stop the F-35 Coalition, the city of Winooski and six Chittenden County residents. South Burlington councilors began discussing whether to join those parties during their June 6 meeting, but with two councilors unwilling to vote yes at the meeting, they decided to postpone a decision until Monday.

But because Monday’s meeting didn’t wrap up until 11 p.m., the councilors decided to hold another one June 22 specifically to hear the public’s opinion. The city could become a plaintiff in the suit, simply offer input as a “friend of the court,” or neither.