ELR Citation: ELR 20374
No(s). 94-56164 (9th Cir. Dec 29, 1995)

The court holds that the federal government did not violate the National Environmental Policy Act (NEPA) by failing to prepare a site-specific environmental impact statement (EIS) for the Doppler Radar Weather Station project on Sulphur Mountain in Ojai, California. The government prepared a programmatic EIS for its nationwide Next Generation Weather Radar (NEXRAD) project, of which the Sulphur Mountain station is a part. It also prepared a draft supplemental environmental assessment (EA) that reviewed radio frequency radiation (RFR) studies conducted after the programmatic EIS, a finding of no significant impact (FONSI) for the nationwide project, and a site-specific FONSI. The court first holds that the government gave adequate notice of the programmatic EIS, the supplemental EA, and the FONSIs. Council on Environmental Quality (CEQ) regulations provide for different notice requirements for matters of national and local concern. The court finds that the NEXRAD project contains both national and local components. The general methodology of the project is of national concern, and the environmental impact of the project on a chosen site is of local concern. The court holds that the government's notice of the programmatic EIS, the supplemental EA, and the FONSI for the project must be reviewed under the standard for matters of national concern, and the government's notice for the site-specific FONSI must be reviewed under the standard for matters of local concern. The court rejects appellant environmental groups' argument that the government had a duty to provide notice in addition to notice the government provided in the Federal Register. If the CEQ intended to impose additional notice requirements, it would have expressly provided so. The court further holds that in matters of local concern, NEPA's public notice requirement is satisfied by using any one of the methods listed in 40 C.F.R. §1506.6(b)(3), including notice to the state and areawide clearinghouses, actual notice, or media publication. The government in this case gave notice of the site-specific FONSI by filing it with state and local clearinghouses.

The court next holds that the government's decision not to prepare a site-specific EIS was not arbitrary and capricious. The government fully complied with NEPA by conducting an EA of the site. The site-specific EA addressed the possible effects of NEXRAD construction and operation on biological resources and on historic, cultural, and archaeological sites. The government also found in the site-specific EA that the NEXRAD radome was not expected to have a negative effect on the visual quality of the area, and considered the question of additive RFR from the NEXRAD and other possible sources. Finally, the court upholds the government's decision not to prepare a supplemental EIS after new research concerning the negative biological effects of RFR became known. The record demonstrates that the government thoroughly evaluated recent scientific developments regarding the health impact of RFR.

Counsel for Plaintiffs
Dale G. Givner
Givner Law Offices
309 S. A St., Oxnard CA 93030
(805) 486-4454

Counsel for Defendants
Patrick J. Walsh, Ass't U.S. Attorney
U.S. Attorney's Office
312 N. Spring St., Rm. 1269, Los Angeles CA 90012
(213) 894-2400

Before Aldisert^a1, Alarcon, and Rymer, JJ.