Wednesday, July 16, 2008 | The people of San Diego have some hearty souls in Nome, Alaska to thank for their opportunity to have more input on the massive Navy Broadway Complex development proposal designed largely behind closed doors by the Navy and developer Doug Manchester.
Last month, U.S. District Court Judge Jeffrey Miller ruled that the Navy didn’t give local residents a fair chance to comment on environmental harm that could result from construction of the planned billion-dollar-plus waterfront project featuring high-rise hotels and office buildings.
Miller’s ruling in favor of the Navy Broadway Coalition, the group opposing the project, was based largely upon a recent case in which a group of Nome-area residents sued the Army Corps of Engineers over a proposed mining operation that would destroy 351 acres of wetlands in the Bering Strait region of northern Alaska.
Yet it remains to be seen whether the Nome case will ultimately help the San Diego coalition force significant changes to the Navy Broadway Complex project.
Since the early 1980s, the Navy has been trying to redevelop 15 acres of prime waterfront land stretching from West Harbor Drive north to Broadway. In 2006, the Navy and Manchester unveiled plans for a mix of high-rise hotels, office buildings and retail shops on the site.
This outraged local activists who said the Navy and Manchester didn’t allow residents any input on a project that effectively walls off the public from one of San Diego’s most valuable pieces of real estate.
The San Diego coalition sued the Defense Department in January 2007 on multiple grounds, including the contention that the public wasn’t given ample opportunity to comment on the project’s environmental impacts. The impacts include increased traffic congestion, underground storage tanks as well as the site’s vulnerability to earthquakes and even terrorism.
The coalition wants the Navy and Manchester to go back to the drawing board and design a project that both fully addresses the environmental issues and allows the public more access to its waterfront.
Several months before the San Diego suit was filed, the Bering Strait Citizens for Responsible Resource Development sued the Corps of Engineers, alleging that the agency issued permits to the Alaska Gold Company for two open-pit gold mines outside of Nome without involving the public in the environmental review process.
Specifically, the suit argued that residents were not given a chance to comment while the Corps of Engineers developed an environmental assessment of the project, which is required by the National Environmental Policy Act.
NEPA requires that an environmental assessment be done for every major federal project. And if any potential environmental impacts are found in the environmental assessment, the federal agency must do a more involved environmental impact statement. The public must have the opportunity for “meaningful” input during the process.
In January, the Ninth District Court of Appeals ruled against the Nome group, stating essentially that the Corps of Engineers and the mining company provided for meaningful public input through resident forums, newspaper columns and radio interviews. Additionally, the court ruled that federal regulations did not require the Corps of Engineers to circulate a draft environmental assessment among members of the public.
Despite the ruling, the case aided the San Diego coalition — at least in the short term — by helping to establish criteria for notifying the public about large federal projects.
The Navy and Manchester fell well short of those criteria in their planning and design of the Navy Broadway Complex, Miller ruled, thus forcing the Navy to open the project up to public comment. However, because of the appeals court ruling regarding environmental assessments, it is not clear whether the Bering Strait case will help or hurt the San Diego coalition’s cause in the long run.
“If you think of it in terms of a race, the court in the Bering Strait case said wherever you draw the finish line, the feds have crossed it,” said Cory Briggs, the lead attorney for the coalition. “In Navy Broadway they didn’t even make it to the starter’s block. The next question is how far they have to run.”
A lawyer for the Nome residents’ group worries that it won’t be far. While the Alaska case may have set useful standards, the appeals court essentially let the federal government and developers determine the environmental impacts of their projects without public input, he said.
“We were disappointed because [the ruling] allows agencies to establish a process that may not allow the public to meaningfully influence their decisions,” said Brian Litmans, a lawyer for Trustees for Alaska, which litigated the case for the Nome group.
But Briggs and others fighting the San Diego project say the Alaska case should provide them with enough ammunition to force the Navy and Manchester to seriously consider public input that will likely lead to a new environmental assessment, which could in turn force changes in the project’s design.
To residents in the coalition, the Navy/Manchester plan just brings the high-rise character of downtown closer to the water. They want to see a more open, walkable development that provides easy access to the waterfront.
The Navy has said in a statement that it will “provide the public further opportunities to weigh in with their views on environmental considerations.” But it would not say whether it would initiate a new environmental assessment.
Summer Wynn, a lawyer handling the case for Manchester, would not comment.
Litmans, the lawyer for the Nome residents, said the case law established as a result of his suit does not go far enough, by itself, to bring about the change the San Diego coalition is aiming for. In Nome, he said, the only environmental report that was made available to the Nome residents was one authored by consultants for the mining company.
“There was no meaningful opportunity for the public to comment on the project because there was no draft [environmental assessment] for the public to review,” Litmans said.
But Marco Gonzalez, an environmental attorney working with Briggs, said an important difference in the cases provides an opening for the public to force a new environmental assessment for the Navy Broadway Complex.
Because the Navy and Manchester drew up plans for the project behind closed doors, they won’t be able to make the same argument as the Army was able to make in the Nome case, namely that the public was given an opportunity to comment while the project was being designed, Gonzalez said.
If the Navy simply takes public input and sweeps it under the rug, it will essentially be justifying its actions after the fact, a “post-hoc rationalization” in Gonzalez’s words.
“They can’t take public input and ignore it,” he said. “That would stand NEPA on its head and make it meaningless.”
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