Contact: Katherine George (attorney) (425) 802-1052
James E. Lobsenz (attorney) (206) 622-8020
Glen Milner (206) 365-7865
On Friday, May 6, 2016, the environmental lawsuit against the Navy’s second Explosives Handling Wharf at Bangor will be heard in the 9th Circuit Court of Appeals by a three-judge panel in Seattle. The case will be heard on the 7th Floor, Courtroom 2, in the William K. Nakamura Courthouse, at 1010 Fifth Avenue, Seattle, and is scheduled for 9 am.
Plaintiffs assert that construction of the Navy’s second Explosives Handling Wharf began without an adequate study of environmental impacts under the National Environmental Policy Act (NEPA).
The lawsuit was filed in District Court on June 19, 2012 by Ground Zero Center for Nonviolent Action and Washington Physicians for Social Responsibility. The Navy began construction of the four-year project in September 2012. On January 8, 2014, Federal Judge Ronald B. Leighton granted the U.S. Navy’s motion to dismiss the case. Judge Leighton in his ruling stated, “The Navy met the requirements of NEPA and its implementing regulations.”
Relief sought in the 9th Circuit Court of Appeals
The plaintiffs’ case in the 9th Circuit seeks relief from the Court regarding two main issues: The first involves the fact that the Navy misled the public and governmental agencies concerning new explosives hazards at the proposed second Explosives Handling Wharf throughout the Navy’s environmental review and in the Navy’s Environmental Impact Statement. The second main issue involves the Navy’s private consultations with the District Court judge; the Navy’s obtaining the court sealing of previously released records; and the court order preventing the use of sealed records and records available on the Internet and through other open sources by the Plaintiffs.
Briefing for the 9th Circuit Court of Appeals was completed on October 6, 2014. On March 1, 2016, parties in the case were notified of the May 6 hearing.
History of Case
In May 2009, the Navy announced it was conducting an Environmental Impact Statement (EIS) for the second Explosives Handling Wharf. In March 2012, the Navy released its Final EIS and the Record of Decision was filed in May 2012. The $715 million wharf, for loading Trident D-5 missiles at Bangor, is currently in the final year of a four-year construction schedule.
The Navy’s second Explosives Handling Wharf consists of 1,250 pilings and covers 6.3 acres of water in ecologically sensitive Hood Canal. The Navy, while withholding information regarding explosives safety, will double the amount of explosives in Hood Canal and likely double the amount of missile handling by the Navy. The net explosive weight of the two wharves is equal to 7.4 million pounds of TNT in the form of rocket propellant in the missiles. The propellant is classified as an HC/D 1.1 explosive, more volatile than TNT, and is capable of detonating upon impact.
Throughout the EIS process, the Navy insisted that it was not increasing the risk of an accident involving missiles in Hood Canal. In the Final EIS the Navy stated, “No new or increased quantity of explosives would be introduced as a result of the construction and operation of the EHW-2.” The Navy also stated, as well as numerous other similar statements, “The proposed project would not change the amounts or manner in which explosive materials are handled on NBK at Bangor.” However after the case was filed, the Navy released over 115,000 pages in its administrative record which proved the plaintiffs’ assertions and showed a new and substantial risk in Hood Canal.
In September 2012, plaintiffs discovered that while the Navy was informing the public that there were no new risks from explosive material, a debate had been raging within the Department of Defense. The agency in charge of explosives safety, the Department of Defense Explosives Safety Board, had refused to grant permission for the project. The Navy instead sought its own Secretarial Certification, one of only seven such exemptions in the U.S., and agreed to accept all responsibility for any accident and the consequences of any accident for the entire life of the wharf.
The January 8, 2014 District Court ruling did not address all of plaintiffs’ concerns about the misleading EIS process. For example, the ruling was silent on whether the Navy violated a requirement to include comments of the Explosive Safety Board in the EIS, which would have alerted the public to the danger of siting two missile-handling wharves close together.
Other records released after the case was filed showed that the Navy planned to spend up to $32.2 million for “Impacted Facilities” to fortify or move existing facilities which could be damaged from an explosives accident at the new wharf. The expense amounts to about 4.5 percent of the entire project. But the Navy could not move or fortify the existing EHW. Mysteriously, the Navy removed the fragmentation barrier between the wharves which was designed to prevent the propagation of an explosion at the adjacent wharf.
Although the Navy later released records after the lawsuit was filed that proved the plaintiffs’ assertions regarding explosives safety, Judge Leighton stated the Navy was not required to release them. Judge Leighton stated, “The Navy’s analysis of the risk of explosions is protected from disclosure by law and therefore the Navy was not required to disclose it in a public NEPA document.” However, there was no evidence in the administrative record that a risk analysis was ever conducted for the new wharf.
The lawsuit would not have been possible without the support of the Ground Zero Center for Nonviolent Action, Ground Zero members, and other members of the public. More than 300 individuals spoke against the second wharf in public hearings and in written comments for the Navy’s EIS. Ground Zero Center for Nonviolent Action is an all-volunteer organization. Ground Zero members supported and paid fees for the lawsuit—a substantial undertaking for a small organization.
The case is list in the court as 9th Circuit Case No. 14-35086 and District Court Case No. 3:12-cv-05537-RBL.
The court calendar for May 6 is at http://www.ca9.uscourts.gov/calendar/view.php?caseno=14-30164.