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Thursday, July 18, 2024 | Back issues
Courthouse News Service Courthouse News Service

Navy’s San Diego Build Overcomes Terror Threat

PASADENA, Calif. (CN) - The federal government took an adequate look at the possibility of a terrorist attack on a high-rise naval and business complex proposed for the San Diego waterfront, the Ninth Circuit ruled on Wednesday.

A split three-judge panel found that the U.S. Navy fulfilled its obligations under the National Environmental Policy Act (NEPA) by taking a "hard look" at potential terrorism at the proposed Navy Broadway Complex, so a supplemental environmental impact statement is not required.

The 15-acre complex is located on federally owned land in San Diego and currently consists of non-operational Navy administrative facilities built between 1921 and 1944, as well as asphalt parking lots.

The Navy plans to redevelop the site by expanding from 861,000 square feet of Navy office, warehouse and industrial space to 3.25 million square feet of mixed military and civilian facilities, including hotels, retail and entertainment spaces.

An environmental impact assessment for redevelopment of the site was initially conducted in 1990 and approved in 1991. Plans were put on hold until 2006, at which point the Navy completed an environmental assessment under NEPA.

After the San Diego Navy Broadway Complex Coalition filed a lawsuit claiming the environmental assessment was insufficient, the Navy finalized a 2009 environmental assessment incorporating updated conditions in San Diego and examining the Navy Broadway Complex's potential as a terrorism target.

The Navy found that there was no specific threat targeting the complex and that the risk of terrorism was "too speculative, remote, and removed from the environmental effects of the proposed action to merit further analysis under NEPA."

The coalition disagreed and filed another federal lawsuit in 2011 challenging the redevelopment of the site.

In a 2-1 ruling, the Ninth Circuit panel affirmed U.S. District Judge Jeffrey Miller's October 2012 ruling that the Navy adequately looked at potential terrorist concerns as required under NEPA.

The Navy responded to the numerous public comments it received regarding the threat of terrorism and modified its 2009 environmental assessment to address those concerns, which satisfies the "informed public participation" that NEPA requires, Circuit Judge Harry Pregerson said, writing for the majority.

The modified 2009 environmental assessment explained the Navy's Anti-Terrorism Force Protection requirements and clarified that those requirements would apply to onsite buildings occupied wholly or partially by Department of Defense personnel.

Its assessment also mandates a planning process under the Unified Facilities Criteria that is designed to ensure protection against terrorism and other security concerns by considering various modes of attack.

The Navy further stated in its 2009 environmental assessment that antiterrorism building standards would reduce the potential damage that could be inflicted by terrorist activity, that the complex would be limited to administrative functions and would not remain operational if subject to a terrorist attack, and that the complex would not jeopardize the safety of citizens by virtue of its proximity to non-government buildings.

Pregerson said that the Navy "considered the relevant factors in its 'hard look' at potential terrorism at the Navy Broadway Complex."

"The federal defendants did not abuse their discretion in determining that there was no significant impact from the possible environmental effects of potential terrorism at the Navy Broadway Complex, and a supplemental environment impact statement is thus not required," Pregerson wrote.

In a dissenting opinion, Senior U.S. District Judge James Carr, sitting by designation from the Northern District of Ohio, pointed out that the government has not ruled out the possibility of a terrorist attack at the complex.

"Rather, they have acknowledged the 'significant' risk of terrorism in the continental United States and identified a 'wide variety of attack methods' terrorists are likely to employ. Accordingly, the federal defendants could have, and should have, considered the environmental impact of at least a few attack scenarios at the complex," Carr wrote.

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