AG sues Navy over Growler expansion

Posted 7/17/19

The state Attorney General and the “Citizens of Ebey’s Reserve” (COER) group both filed lawsuits July 9 against the U.S. Navy over its expansion of the Navy’s EA-18G “Growler” aircraft operations from Naval Air Station Whidbey Island.

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AG sues Navy over Growler expansion


The state Attorney General and the “Citizens of Ebey’s Reserve” (COER) group both filed lawsuits July 9 against the U.S. Navy over its expansion of the Navy’s EA-18G “Growler” aircraft operations from Naval Air Station Whidbey Island.

The Navy authorized the expansion in March, increasing Growler take-offs and landings at Whidbey Island to nearly 100,000 per year over the next 30 years.

COER and the office of Attorney General Bob Ferguson both filed suit under the National Environmental Policy Act (NEPA), with Ferguson’s office asserting the Navy’s environmental review process for the expansion unlawfully failed to measure the impacts to public health and wildlife in communities on and around Whidbey Island.

“The Navy has an important job, and it’s critical that their pilots and crews have the opportunity to train,” Ferguson said. “That does not relieve the federal government of its obligation to follow the law and avoid unnecessary harm to our health and natural resources.”

In the lawsuit that the office of the state Attorney General filed in the U.S. District Court for the Western District of Washington, Ferguson argued that the Navy violated both NEPA and the federal Administrative Procedure Act (APA) by improperly and insufficiently analyzing the impact the Growler expansion would have on human and environmental health, including wildlife in the area.

The state Attorney General’s office accused the Navy of “arbitrarily dismissing” impacts to human health and child learning from increased noise, and cited “many studies” indicating that exposure to noise can lead to adverse health outcomes.

The statement by Ferguson’s office referred to feedback that the Washington Department of Health provided to the Navy on noise levels around the Whidbey Island airfields, which outlined how exposure to noise levels similar to those at the naval air station could cause negative health impacts, including sleep disturbance, cognitive impairment and cardiovascular disease.

In addition to filing the lawsuit, Ferguson sent a letter July 9, giving notice of additional claims he will add to the lawsuit under the Endangered Species Act, unless the federal government makes changes.

The Attorney General’s office noted the aircraft’s “frequent, loud” take-offs and landings near habitats for birds, including bald eagles and threatened seabirds such as marbled murrelets, that would be exposed to millions of Growler flights, affecting their ability to feed and breed.

“Despite this, the Navy did not analyze if the additional flights would cause any harm,” Ferguson’s office stated.

The Endangered Species Act requires a 60-day notice before the Attorney General’s office files a lawsuit.

In its own statement, COER pointed out that Congress “has provided the Navy, and the other branches of the military, with millions of acres reserved for training purposes,” and faulted the Navy for “refusing to conduct actual on-site noise monitoring,” relying instead upon “outdated models” which “consistently understate” actual noise levels and impacts.

COER further criticized the Navy for failing to examine alternative locations to basing the additional Growlers at Naval Air Station Whidbey Island, as well as failing “to ensure the professional and scientific integrity of its analysis,” as mandated by NEPA.

“It violated standard scientific protocols by selectively employing criteria and invalidated theories in support of what appears to be a predetermined decision,” COER stated. “For example, the Navy employed noise-threshold tolerance levels commonly rejected within the world scientific community as outdated, and it ignored and misrepresented major scientific findings on the non-auditory impacts of noise on human health.”

COER is represented in its lawsuit by the Seattle-based Bricklin and Newman, LLP, with the aim of obtaining a preliminary injunction to halt the Growler expansion, and an order requiring the Navy to withdraw its Record of Decision, and to prepare a supplemental draft EIS that “corrects all deficiencies” in compliance with NEPA.

The Sound Defense Alliance commended the state Attorney General’s office for its lawsuit, with Maryon Atwood, chair of the SDA Legislative Committee from Whidbey Island, pointing to it as evidence that “our elected officials are listening.”

And just as the Attorney General’s office asserted the Navy did not consider “reasonable measures” to protect historic properties such as Ebey’s Landing National Historic Reserve from increased noise levels that could “spoil their rural character,” so too did SDA Executive Director Larry Morrell warn that the Navy did not factor in the potential economic consequences.

“This lawsuit is a huge game-changer, because it shows that the state is against the Growlers, not just citizens with signs,” said Morell.

When contacted by The Leader, Thomas Mills, public affairs deputy for Naval Air Station Whidbey Island, stated it would not be appropriate to comment on the specifics of any current litigation, although he did offer a more general statement.

“The Navy believes that the Final Environmental Impact Statement is thorough and comprehensive, and addresses all of the comments received during the six-year project, satisfying the requirements of the National Environmental Policy Act,” Mills said.