DOJ: NEPA review covered all impacts

Every environmental impact that the Tinian Women Association and three other environmental groups are alleging in their lawsuit is now subject to National Environmental Policy Act review, according to the U.S. Department of Justice.

Taylor N. Ferrell, trial attorney of the DOJ Environmental and Natural Resources Division, said that all stakeholders who wish to participate in the administrative process of reviewing the environmental impacts of the CNMI Joint Military Training program have a full opportunity to do so now.

Accordingly, Ferrell said, there is no practical or legal reason for the U.S. District Court for the NMI to order the U.S. Department of the Navy to redo the environmental impact statement it completed for the Guam relocation of Marines, which was substantially complete in 2010 and supplemented in 2015.

Ferrell’s arguments is intended to support the Department of the Navy’s and Department of Defense’s motion for summary judgment in connection with these four group’s lawsuit.

The groups—the Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity—are suing the Navy and Defense departments and their top officials for alleged violation of the NEPA and Administrative Procedure Act over their decision to relocate 5,000 U.S. Marines from Okinawa to Guam and to conduct live-fire training on Tinian and Pagan.

Ferrell said the Navy studied the CJMT and the Guam relocation of Marines as separate actions as each serves important independent purposes.

As the court has observed, Ferrell said, the Guam relocation honors political commitments and binding international legal obligations between the U.S. and Japan.

“The record also shows that CJMT holds independent significance: it provides a forum for joint and allied training on U.S.-controlled land, which is currently unavailable in the Pacific theater,” he said.

Nothing in the record supports the groups’ contention that Okinawa-based Marines would not be able to “function as a fighting force” once relocated to Guam, Ferrell said.

He said the court should defer to the Navy secretary’s “well-reasoned decision” regarding what training is necessary to relocate the Marines as outlined in the Guam International Agreement and political commitments made by the U.S. government to Japan.

Ferrell said the groups now claim that the Navy did not study the cumulative impacts on Tinian of the firing ranges planned for the Guam relocation, together with the expanded ranges contemplated as part of CJMT.

“But these projects are mutually exclusive: the Tinian ranges studied in the Guam relocation are the ‘no action alternative’ for CJMT on Tinian and will not be built if CJMT is approved,” he said.

Accordingly, he said, the groups’ concerns are academic.

Ferrell pointed out that the groups’ new claim concerning the Mariana fruit bat is untimely and also fails on its merits.

He said the Navy did study the Marine relocation’s cumulative impacts on the Mariana fruit bat, and the Navy reasonably scoped that analysis.

He said the court should defer to the Navy secretary’s reasonable judgments and expertise on matters of military training and reject the groups’ unfounded accusation that the Navy eliminated training from its NEPA review.

Ferrell said the Navy did analyze the impact of proposed ranges on Tinian.

Ferrell said that, as previously discussed, the CJMT would replace the four Tinian-based ranges that were approved in the 2010 Record of Decision.

Thus, he said, the currently approved Tinian ranges and the CJMT-based training projects will not co-exist. If they do not co-exist, he pointed out, they cannot, by definition, have cumulative impacts.

Ferrell said the groups’ new argument that the Navy failed to consider the cumulative impacts to Mariana fruit bats is not properly argued before the court.

He said the groups, two years into this litigation, allege and argue for the first time that the Navy failed to consider the cumulative impacts of the Guam relocation on the Mariana fruit bats.