Zbitnoff v. James

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., 16-3309-cv

Plaintiff,

v.

Deborah Lee James, Secretary of the Air Force,

Defendant - Appellee.

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

1
16-3309-cv
Zbitnoff et al. v. James

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

2
16-3309-cv
Zbitnoff et al. v. James
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

3
16-3309-cv
Zbitnoff et al. v. James
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

4
16-3309-cv
Zbitnoff et al. v. James
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

5
16-3309-cv
Zbitnoff et al. v. James
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.

6
16-3309-cv
Zbitnoff et al. v. James
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

7