Environmental Assessment (EA)

The Ninth Circuit has rejected a claim, under the National Environmental Policy Act, that the Navy did not adequately consider the environmental consequences of a potential terrorist threat to the redevelopment of a military complex near downtown San Diego.  The opinion upheld the Navy’s Environmental Assessment for the complex, which concluded that the project would not create the potential for a significant impact from a terrorist attack. San Diego Navy Broadway Complex Coalition v. United States Department of Defense, No. 12-57234 (9th Cir. March 30, 2016).

Background

The Navy first approved the redevelopment of the complex in 1991.  The project included both military functions and private commercial uses to generate revenue.  However, adverse real estate conditions in San Diego delayed the project until the mid-2000s.  In 2006, the Navy prepared an EA for the project to supplement its prior NEPA analysis from the early 1990s, and it executed a lease with a private development partner.  But a citizens group filed a NEPA lawsuit, and the district court ruled that the Navy had failed to provide adequate public notice for the EA.

In response, the Navy prepared a new EA and reapproved the project in 2009.  The new EA included a discussion of a potential terrorist attack, due to the Ninth Circuit’s ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), which had held that a categorical dismissal of the potential impacts from a terrorist attack at an installation built to store spent nuclear fuel rods was unreasonable under NEPA.  The Navy’s new EA concluded that a terrorist attack at the complex in San Diego was too speculative and remote to require NEPA analysis, since there was no known specific threat targeting the complex or its location.  The EA also explained that anti-terrorism building specifications would be followed to reduce the risks posed by a potential terrorist attack.  The EA thus concluded that the project would not place military or civilian personnel in jeopardy and would not result in a significant impact under NEPA.
Continue Reading Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility

In two recent cases involving challenges to U.S. Forest Service projects under the National Environmental Policy Act, the Ninth Circuit emphasized that courts must accord substantial deference to the environmental analysis conducted by federal agencies.  Earth Island Institute v. U.S. Forest Service (9th Cir. Sept. 20, 2012), and Native Ecosystems Council v. Weldon (9th Cir.