December 12, 2022
On March 10, 2021, Safe Skies with Kathleen Henry as our attorney filed suit in the Federal District Court of the District of Columbia against the Air Force, claiming their EIS for the F-35 fighter jets to be deployed to Truax Field in Madison was inadequate. We told the court the Air Force needed to stop the project including construction at Truax Field until the Air Force addressed the problems with the EIS.
On September 24, 2021, Safe Skies asked the judge to allow us to expand the record for the EIS which was already 70,000 pages. We wanted to provide newer information on the impacts of noise exposure, the extent of the PFAS contamination by the Air National Guard and their failure to clean it up. It wasn’t until this year on September 30, 2022 that the judge ruled we could not expand the record, and required us to submit our file arguments by December 12th.
Today we submitted our final brief and arguments. This included affidavits from people affected by noise and PFAS, Ed Blume and Tehmina Islam, and myself representing Safe Skies and providing new opinions about environmental impacts. We were able to incorporate some more recent information like the results of the FAA neighborhood environmental survey which shows the 65 dB DNL noise standard used in the EIS (and the recent county airport noise modeling) was inadequate. We also included the USEPA decision last summer to lower the allowable PFAS in water to levels that are 1,000 to 10,000 times lower than the DNR standard.
Our supporting brief or memorandum is attached. Below are conclusions we want the judge to accept.
We are feeling confident because last August another federal district judge ruled against the Navy for the EIS it prepared for the growler jets on Whidbey Island near Seattle. “A U.S. District Court judge ruled Tuesday that the Navy violated federal law in an environmental study of expanded Whidbey Island jet operations that failed to quantify the noise impacts on classroom learning as well as other shortcomings.”
The Air Force is using attorneys at the Department of Justice. They have 45 days to respond to the attached brief, then we have about 15 days to reply, then DOJ has 15 days to reply, and then (about February 25th) the Court has everything on which to decide.
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WHEREFORE, Plaintiff respectfully requests that the Court grant its motion for summary judgment and enter judgment:
1. Declaring that:
A. Defendants, in issuing an EIS and ROD, failed to comply with NEPA by having a predetermined outcome;
B. Defendants failed to take a hard look at detrimental noise impacts in violation of NEPA and its implementing regulations;
C. Defendants violated NEPA by failing to adequately consider the cumulative impacts of increased PFAS on already-polluted drinking, ground surface water and fish in the Starkweather Creek and Yahara chain of lakes watersheds water;
D. Defendants violated NEPA by failing to adequately consider environmental justice impacts in violation of NEPA and its implementing regulations;
E. Defendants violated NEPA by failing to take a hard look at air quality impacts of the F-35As;
F. Defendants violated NEPA by failing to adequately address alternatives;
G. Defendants violated NEPA by failing to adequately consider climate change;
H. Defendants violated NEPA and the APA by failing to provide adequate notice and public participation;
I. Defendants violated NEPA and the APA by failing to produce a Supplemental Environmental Impact Statement;
J. Defendants violated NEPA by failing to take a hard look at impacts on wildlife in violation of NEPA and its implementing regulations;
K. Defendants violated the APA by failing to comply with NEPA; and
L. Defendants’ actions and proposals are arbitrary, capricious, an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the APA.
2. Enjoining the defendants and all others acting in concert with them from carrying on or permitting any activities in furtherance of the construction of the Proposed Action until such time as the defendants prepare an adequate EIS and a supplemental EIS, the sufficiency of the environmental impact statements to be determined by this Court.
3. Awarding plaintiff such other and further relief as the Court may deem just and proper, including costs, attorneys’ fees, expert witness fees and other expenses of litigation; Awarding such other relief as the Court deems just and proper.
