Home » Case Summaries » 2016 » San Diego Navy Broadway Complex Coalition v. U.S. Department of Defense, 817 F.3d 653 (9th Cir. 2016)

 
 

San Diego Navy Broadway Complex Coalition v. U.S. Department of Defense, 817 F.3d 653 (9th Cir. 2016)

 

 

The San Diego Navy Broadway Complex Coalition (the Coalition), a civic group based out of San Diego, California, sued the United States Department of the Defense and other federal defendants related to the United States Department of the Navy (collectively, the Navy), alleging that the Navy violated the National Environmental Policy Act[1] (NEPA) by producing an incomplete environmental impact statement (EIS) related to redevelopment activities at a Navy-owned site on the San Diego waterfront (the Complex). The Coalition sued the Navy in the United States District Court for the Southern District of California, arguing that the Navy should have produced a supplemental environmental impact statement (SEIS) addressing potential impacts stemming from a hypothetical terrorist attack on the Complex. The district court granted the Navy’s motion for summary judgment and the Coalition appealed.[2] The Ninth Circuit affirmed the grant of summary judgment after finding that the Navy took the requisite “hard look” at the relevant environmental impacts of the redevelopment project.

The dispute centered on efforts by the Navy to redevelop, in partnership with the City of San Diego, the Navy Broadway Complex, a fifteen-acre waterfront installation housing Navy administrative offices on the San Diego waterfront. The redevelopment process began in the early 1980s, with the Navy preparing an initial EIS in 1990 and a Record of Decision (ROD) in 1991. The proposed redevelopment would include mixed civilian and military infrastructure. While the project was formally approved through a formal Development Agreement between the Navy and the city in 1992, unavoidable delays prevented the project from moving forward for over a decade.

In 2006, the Navy finally began to move forward with the project. The Navy first completed an Environmental Analysis (EA) under NEPA to assess the environmental impacts of the 1992 Development Agreement. The EA process ended in late 2006 when the Navy made a finding of no significant impact (FONSI). At that point, the Coalition filed its first suit against the Navy, alleging a failure to comply with NEPA’s public notice requirements. The district court found the Navy’s NEPA compliance insufficient, and then “instructed the Navy to address the insufficiency.”[3]

In response to the district court’s order, the Navy prepared and published a new draft EA in 2008, and published a final EA in 2009. Included in the 2009 EA was a determination by the Navy that no known terrorist threats existed against the Complex, and that the threat of a terrorist incident at the Complex was too “speculative [and] remote” to warrant a full environmental analysis of the impacts of such an attack. The Navy then issued a second FONSI. In 2011, the Coalition sued the Navy again. Among other claims, the Coalition alleged that the Navy’s failure to prepare an SEIS assessing the impacts of a potential terrorist attack on the Complex violated NEPA. Reviewing cross-motions for summary judgment, the district court determined that the Navy took the requisite “hard look” at the potential impacts of a hypothetical terrorist attack to address related concerns raised by the Coalition and others.[4] The district court then granted summary judgment to the Navy,[5] and the Coalition appealed.

Reviewing the district court’s grant of summary judgment to the Navy de novo, and applying an “arbitrary and capricious” standard to assess the Navy’s NEPA compliance,[6] the Ninth Circuit affirmed. The Ninth Circuit first explained that its precedent required the court to assess whether a challenged EA resulting in a FONSI “adequately considered and elaborated the possible consequences of the proposed . . . action when concluding that it will have no significant impact on the environment.”[7] In addition, the court must ensure that the EA is the result of informed decision making and informed public participation.

The Ninth Circuit concluded that NEPA required regulatory agencies to consider, at least to some extent, the environmental impacts of potential terrorist attacks when preparing an EA and/or EIS, at least in the context of military facilities. The court first noted that the Navy itself mentioned a “general threat” of terrorism in the United States in its 2009 EA, and then found that the general threat identified by the Navy coupled with the Complex’s location in downtown San Diego required the Navy to consider the risks of a potential terrorism incident targeting the Complex in its NEPA analysis.

With that requirement in mind, the Ninth Circuit then turned to the 2009 final EA and FONSI. The court concluded that the Navy satisfied its NEPA obligations to assess the risk of a possible terrorist attack on the Complex. The court noted that the Navy held multiple public meetings and received public comments, including many raising terrorism-related concerns. The Navy modified the 2009 EA in response to those comments. The Navy’s modifications included a more explicit incorporation of various federal safety and security protocols designed to prevent terrorist attacks, and to mitigate the adverse impacts of attacks that do occur, through planning, design, and operational standards. In addition, the Navy conducted a threat assessment on the Complex and found that no known threats against the Complex existed. The Ninth Circuit took issue with the Navy’s threat assessment, admonishing the Navy that terrorism-related risks could arise at any time and that the lack of risk at any given time did not absolve the Navy of its responsibility to assess the potential impacts of a possible attack. Despite the Navy’s flawed reasoning, the Ninth Circuit found the Navy’s incorporation of federal terrorism-related standards and protocols sufficient.

The Ninth Circuit assessed the Navy’s modifications to the 2009 EA made in response to public comments and concluded that the Navy satisfied NEPA’s goals of informed agency decision making and informed public participation in the agency decision-making process. While the court took some issue with the Navy’s decision to incorporate terrorism and security-related protocols by reference only, rather than including those measures in the EA itself, the court nonetheless found that the Navy fulfilled its statutory obligations and took the requisite “hard look” at the risks associated with a potential terrorist attack on the Complex through its incorporation of those protocols and standards. The Ninth Circuit thus held that the Navy’s decision to issue a FONSI, rather than an SEIS, was not arbitrary or capricious.

Judge Carr dissented, arguing that the Navy ought to have considered the impacts of a potential terrorist attack on the Complex more thoroughly. Judge Carr noted that the Navy incorrectly found the risk of such an attack too speculative, and pointed out that the Navy itself acknowledged that terrorism was a major threat generally. Judge Carr believed that the Navy was capable of assessing the environmental impacts of various terrorism scenarios and, given the not entirely remote potential of such an attack occurring, was obligated to do so.

 

 

 

Footnotes    (↵ returns to text)

  1. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  2. San Diego Navy Broadway Complex Coal. v. U.S. Dep’t of Def., 904 F. Supp. 2d 1056, 1056 (S.D. Cal. 2012).
  3. San Diego Navy Broadway Complex Coal. v. U.S. Dep’t of Def., 817 F.3d 653, 657 (9th Cir. 2016).
  4. San Diego Navy Broadway Complex Coal., 904 F. Supp. 2d at 1067.
  5. Id.
  6. Administrative Procedure Act, 5 § U.S.C. 706(2)(A) (2012).
  7. San Diego Navy Broadway Complex Coal., 817 F.3d at 659 (quoting San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 635 F.3d 1109, 1119 (9th Cir. 2011)).
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