817 F.3d 653
9th Cir.2016Background
- The Navy owns a 15-acre Navy Broadway Complex in downtown San Diego planned for redevelopment under a 1991 Record of Decision and a 1992 Development Agreement to co-locate Navy administrative functions and private development.
- A 1990 EIS supported redevelopment; market delays postponed implementation. In 2006 the Navy issued an EA and FONSI, which plaintiffs successfully challenged for inadequate public notice.
- The Navy prepared a revised draft EA in 2008, held three public hearings, and issued a finalized 2009 EA and FONSI that included discussion of terrorism risk and referenced DoD Minimum Antiterrorism Standards (UFC 4-010-01).
- The Coalition sued in 2011 alleging NEPA violations, including failure to prepare a Supplemental EIS analyzing environmental effects of potential terrorist attacks and other changed circumstances.
- The district court granted summary judgment to the Federal Defendants; the Ninth Circuit majority affirmed, holding the 2009 EA took the required "hard look" at terrorism risks and thus a supplemental EIS was not required. Judge Carr dissented, arguing the EA failed to analyze likely environmental impacts from plausible attack scenarios.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA requires analysis of potential terrorist attacks at the Complex | Coalition: NEPA requires a Supplemental EIS to analyze environmental impacts of plausible terrorist attack scenarios | Federal Defendants: Terrorism risk is too speculative; existing EA and standards suffice; no specific threat exists | Yes — terrorism must be considered under NEPA, per Ninth Circuit precedent, but here the Navy did consider it adequately |
| Whether the 2009 EA satisfied NEPA's "hard look" and public participation requirements regarding terrorism | Coalition: EA failed to analyze likely modes of attack and environmental consequences; mere reliance on lack of specific threat and force-protection standards is insufficient | Federal Defendants: EA considered public comments, incorporated anti-terrorism standards (UFC), and explained force-protection measures; supplemental EIS not required | Held for Defendants: 2009 EA fostered informed decisionmaking and public participation and reasonably addressed terrorism concerns; no supplemental EIS required |
| Adequacy of reliance on classified or law-enforcement threat assessments in EA | Coalition: Such reliance cannot substitute for scenario-based environmental analysis | Federal Defendants: NCIS assessment and incorporation of DoD standards are reasonable expert bases for analysis | Court: Agency may rely on qualified experts; although noting error in emphasizing "no known specific threat," the EA overall was adequate |
| Scope of what agencies must disclose in EA when national security concerns present | Coalition: Agency should provide more specific environmental-effect information and scenario analysis | Federal Defendants: Must balance security with disclosure; may incorporate standards by reference and respond to comments | Court: Agencies need not impose extra procedures; incorporation by reference and public response can satisfy NEPA when the record shows a hard look |
Key Cases Cited
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (agencies may prepare an EA and FONSI as an alternative to an EIS)
- Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (NEPA's twin aims: consider significant aspects and inform the public)
- San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 449 F.3d 1016 (NEPA requires agencies to consider terrorism scenarios and cannot categorically dismiss such risk)
- Ctr. for Biological Diversity v. Nat. Highway Traffic Safety Admin., 538 F.3d 1172 (EA must foster informed decisionmaking and public participation; courts may consider agency responses to comments)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (courts must defer to reasonable opinions of agency experts)