In a published opinion, San Diego Navy Broadway Complex Coalition v. United States Department of Defense, 2016 U.S. App. LEXIS 5813, the Ninth Circuit affirmed the district court and rejected a National Environmental Protection Act (NEPA) challenge to the redevelopment of the San Diego Navy Broadway Complex (Complex), a fifteen-acre waterfront site adjacent to downtown San Diego.

In 1987, the Navy and the City of San Diego (City) executed a Memorandum of Understanding (MOU) concerning redevelopment of the Complex, which would expand it 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 Statement (EIS) was prepared for the MOU in 1990, but adverse real estate conditions in the early 1990s caused the Navy and City to delay project implementation.

In 2006, the Navy began taking steps to implement the project, and conducted an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI). A citizen’s group called San Diego Navy Broadway Complex Coalition (Coalition) sued, claiming that the Navy provided insufficient notice about the EA and FONSI, resulting in a lack of public participation. The District Court agreed and granted partial summary judgement in favor of the Coalition.

In 2009, the Navy issued a new EA and FONSI, finding that there were not significant changes since the 1990 EIS to warrant further environmental review. The Coalition filed another challenge, this time arguing that the potential environmental impact of a terrorist attack warranted a supplemental EIS. The District Court granted summary judgment in favor of the Navy and the Coalition appealed.  

The Ninth Circuit, citing San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission (9th Cir. 2006) 439 F.3d 1016, held that the risk of a possible terrorist attack must be analyzed under NEPA given the general risk of terrorism, the location of the project near downtown San Diego, and the military commands to be housed in the Complex. The fact that there was no specific threat against the Complex was irrelevant given the risks of terrorism are “constantly in flux.”

However, the Ninth Circuit held that the 2009 EA sufficiently analyzed the threat of terrorism, mainly by stating that the Navy’s Anti-Terrorism Force Protection requirements would apply to the Complex and incorporating by reference the Unified Facilities Criteria in the Defense Department’s Minimum Antiterrorism Standards for Buildings. The panel found that this was enough to foster informed decision-making and informed public participation, though it would have preferred a single, clear document that included more specific information about the potential environmental effects of terrorism.

Senior District Judge James Carr, sitting by designation, dissented and would have found the EIR’s analysis of a potential terrorist attack to be inadequate.