F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S A N D I E G O N A

V Y B R O A D W A Y C O M P L E X C O A L I T I O N ,

Plaintiff-Appellant

,

v

.

U N I T E D S T A T E S D E P A R T M E N T O F D E F E N S E ; R O B E R

T M. G A T E S , in his official capacity

as Secretary

of the U.S. Department of Defense; U N I T E D S T A T E S D E P A R T M E N T O F
T H E N A V Y ; R A Y M A B U S , in his official capacity

as Secretary

of the U.S. Department of the Navy ; N A V A L F A C I L I T I E S E N G I

N E E R I N G C O M M A N D ; C H R

I S T O P H E R J

. M O S S E Y , in his official capacity as Commander of the Naval F acilities Eng ineering Command; N A V A L F A C I L I T I E S E N G I

N E E R I N G C O M

M A N D S O U T H W

E S T ; S. K E I T H H A M I L T O N , in his official capacity as Commander of the Naval F acilities Eng ineering Command Southwest,

Defendants-Appellees

. N o. 12-57234

D.C. No. 3:11-cv-00154- J M-W MC

OPI NI ONSDNB CC V

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A ppeal from the United States District Court

for the Southern District of California J effrey T. Miller, Senior District J u dg e, Presiding

Arg ued and Submitted F ebruary 5, 2015—Pasadena, California

F iled March 30, 2016

B efore: Harry Preg erson and J acqueline H. Ng uy en, Circuit J udg es and J ames G. Carr, * Senior District J udg e.

Opinion by

J udg e Preg erson; Dissent by

J udg e Carr

SUMMARY * *

Environm ental Law

The panel affirmed the district c ourt’s summary judg ment in favor of federal defendants, a nd denial of the San Dieg o Navy B roadway Complex Coaliti on’s motion for summary judg ment, in the Coalition’s challeng e to the issuance of a 2009 F inding Of No Sig nifi cant I mpact based on a 2009 E n v ironmental Assessment for redevelopment of a f o u r

- b l o c k

* T h e Ho n orab le J am es G. C arr, Sen io r District J u d g e f o r th e U .S. District Co u

rt f o r th e No rth ern District o f Oh io , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.SDNB CC V

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site owned by the Uni t e d S tates Navy in downtown San Dieg o.

T h e panel held that the f

ederal defendants fulfilled t h ei r oblig ations under the National Environmental Policy A c t. T h e panel held that San Luis Obispo Mothers for P eace v

. Nuclear Regulator

y C ommission
, 449 F .3d 1016 (9th Cir. 2006), re q u i red the federal defendants to address the environmental consequences of a p ossible terrorist attack on the N avy B ro adway Complex

. Specifically

, the p a nel h eld that the Navy considered the relevant factors i n i t s “hard look” a t potential terrorism a t the Navy B roadway Complex

. The panel also held that the federal defendants did not abuse their discretion in determin i n g t hat there was no sig nificant i mpact from the possible environmental effects of pote n t i al terrorism at the N a v y B roadway Complex

, and a Supplemental Environmental I mpact Statement w as n o t required.

District J u dg e Carr dissented from the majority ’s determination that the federal de fendants adequately addressed the e n v i ronmental consequences of a possible terrorist attack on the Navy B roadway

Complex

.

COUNSEL

Corey J

. B rig g s (arg

u ed) and Mekaela Gladden, B rig g s L aw Corporation, Upland, California, for Plaintiff-Appellant.

Allen M. B rabender (arg u e d ) and I g nacia S. Moreno, Assistant A ttorney General, United States Department o f J ustice, Environ m ental & Natural Resources D ivision, W a shing ton, D.C., for Defendants-Appellees.SDNB CC V

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Allen Scott A ndrews, San Diego

, California, for Amicus Curiae Pro Se.

J ohn McNab, San Dieg o, California, for Amicus Curiae Pro Se.

OP INION

PREGERSON, Circuit J udg e :

The San Dieg o Navy B roadway Complex Coalition (“the Coalition”), a San Di e go civic g roup, appeals a summary judg ment ruling in favor of the United States Department of Defense and various other n amed defendant s (collectively

, “F ederal Defendants”), as well as the denial o f the Coalition’s motion for summary judg ment ag ainst the F ederal Defendants. The Coalition challeng es the issuance o f a 2009 F inding Of No Sig nificant I mpa c t based on a 2009 E n vironmental Assessment for redevelopment of a f o u r

- b l o c k site owned by the United States Navy in d o w n t own San Dieg o. The Coalition arg ues that the di s t r i c t court e rred in
g ranting summary judg ment in favor of the F ederal Defendants, insisting that the F ederal Defendants violated the National E n v ironmental Policy Act (“NEPA”) by failing to p r o d u c e a Supplemental Environmental I m p a c t S t a t e m e n t t h a t addressed a p otential terrorist attack at the redeveloped military and civilian f

acilities near the San Dieg o waterfront. W e affirm the district court’s decision.SDNB CC V

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F ACTUAL AND P ROCEDURAL BACK G ROUND

A. The San Diego Navy Broadw ay Com plex

T h e San Dieg o Navy B r oadway Complex (“N a v y B roadway Complex ”) is a fifteen-acre waterfront site located

a djacent to d owntown San Dieg o, California. The sit e currently serves as the home to several non-operational, administrative components of t h e United States Navy

. The
current o n-site Navy facilities were b uilt more t h a n seven decades ag o.

I n 1982, the Na v y beg an considering options for consolidation o f various Navy installations in the San Dieg o

area. B ecause of budg et constraints, the Navy p ursued a “colocation” prog ram in which the f ederal g overnment retained title to p r operty and leased portions of the property f or private
revenue-g enerating uses that would of fs e t the cost of new administrative facilities. Cong ress enact e d leg islation in 1986 that a

uthoriz ed the Secretary of t h e N a vy to pursue a public-private venture to implement the co-location concept
at the Navy B roadway Complex site. See National D e fense Authori z a tion Act for F iscal Year 1987, Pub. L

. 9 9-661, § 2732, 100 Stat. 3816 (1986).

I n J une 1 987
, the N avy and the City of San Dieg o (“City ” ) ex e cuted a Memorandum of Understanding to establish the terms of potenti al future development on the Navy B roadway Complex site. To comply with its environmental oblig ations under NEPA, the Navy completed

an En v i r onmental I mpact Statement (“EI S”) in 1990 a nd issued a Record of Decision in J u ly 1991. The EI S evaluated six action alternatives, in addition to the no-action alternative, and discussed a full r a

n g e o f e nvironmental issues. TheSDNB CC V

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Record of Decision memorializ e d t he Navy ’ s decision to redevelop th e Navy B r oadway Complex site and identified essential uses fo r t h e site. The N avy B roadway Complex would e x pand from 861,000 s q u are f e et of Navy o ffice, warehouse, a

nd industrial space to 3.25 million square feet o f mix ed military and civilian facilities, including hotels, retail, and entertainment spaces.

The Record of D ecision directed that the nex t step was for the N avy and the City to enter into a development ag r eement,

as contemplated under the 1987 Memo r a n d um o f Understanding

. Neg otiations and state litig ation followed, including c onsultation and issuance of a consistency determination fro m t h e California Coastal Commission to

ensure the Navy B roadw a y Complex was consistent, to the

ex tent possible, with the stat e’s coastal z one manag ement.

F ollowing public review, on November 2, 1992, the City enacted an ordinance approving the Development Ag reement for the Navy B road w ay Complex

. The Development Ag reement incorporated a development plan, urban desig n g uidelines, and provided a g uide to the planning and approval
process f or the project. The Development Ag reement also included e nvir o n m ental mitig a tion measures that were consistent with the 1990 EI S. However, adve r s e S an Dieg o real estate conditions in the early 1990s c aused the Navy a nd City to delay

project implementation.

B. The 2006 Environm ental Assessm e nt

As the real estate market in San Dieg o improved in the mid-2000s, the Navy took steps to i m p l ement theSDNB CC V

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D evelopment Ag reement. 1 To facilitate implementation o f the Development Ag reement, a nd in c onsideration of the
amount of time that had passed since the 1990 EI S, the Navy completed an Environmental Assessment under NEPA in 2 0 0 6 that analy

z ed the e nvironmental impacts associated w i t h implementing the 1991 Record of Decision an d the 1992 Development A g reement ( “ 2 006 EA”). A s part o f the 2006 EA process, as well as a m e a ns to re-introduce the development plan to the p ubl i c, five p ublic hearing s took
p l ace b eg inning in April 2006. T h e N avy considered t h e resulting public comments in its NEPA analy sis.

I n late 2006
, t h e Navy published a notice that the 2006 EA was av a i l able for public viewing and issued a 2006 F inding of No Sig n i f

i cant I mpact f

or the N avy B roadway Complex ’s development. A private development partner, Manches ter Pacific Gateway
, L L C, sig ned a lease in November 2006 after the issuance of the 2006 F inding of No Sig nificant I mpact.

I n J anuary 2007, the Coalition, a c iti z e n s’ g roup purporting to represent San Diego r e s i dents, filed a lawsuit alleg ing

, among other c laims, that the Navy failed to comply with NEPA’s public n otice and participation provisions prior
to issuing the 2006 EA and 2 006 F inding of No S i gn ificant I mpact. The district court ag re e d that the administrative record w as insufficient to d e monstrate that th e Navy g ave proper public notice o f its intent to prepare the 2006 EA a nd F inding of No Sig nificant I mpact. The district court g ranted

1 In 2 0 0 5
, th e f

ed eral B ase Realig n m en t an d C lo su re Co m m issio n issu ed a d irectiv e to th e Nav y

to eith er im

p lem en t th e Dev elo p m en t A g reem en t

o r clo se th e Nav y B ro ad w ay Co m p lex an d relo cate th e co m

m an d s to o th er b ases in San Dieg o , th ereb y ad d in g u rg en cy to th e red ev elo p m en t ef f o rt.SDNB CC V

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partial summary judg ment in fa v o r of the Coalition a nd instructed the Navy

to address the insufficiency

.

C. The 2009 Environm ental Assessm e nt

The Navy produced a new draf t E A on September 17, 2008 a nd widely publiciz ed the draft EA’s public availability

. Three p u b l i c hearing s w ere held in September and October 2008. I n March 2 009, the Navy issued a finaliz ed EA (“2009 EA”). The 2009 EA incorporated updated conditions in San Dieg o and ex amined th e N a vy B roadway Complex ’s potential a s a terrorism targ et. The Navy found that “[ b ] ased on current threat reporting , there is no known specific threat targ e ting ” t h e N avy B roadway Complex

. The 2009 EA concluded that the risk of terrorism w as “t o o s p eculative, remote, a nd removed from the enviro n mental effects of the proposed action to merit further analy sis under NEPA.” The Navy a ltered the final 2009 EA to inc l u d e its response to public comments about terrorism in the draft EA.

After finaliz ing the 2009 EA, the N a v y issued a 2009 F inding of No Sig nificant I mpact, concluding that no chang ed

or unex p lored c ircumstances required a new or Supplemental EI S b efore t h e N a vy proceeded with redevelopment of the Navy B r oadway

Complex

.

On J anuary 25, 2011, the Coalition ag ain filed su i t in federal distric t c o urt challeng ing the redevelopment of the Navy B roadway Complex on several g rounds. One such
g r o u n d was the Navy ’s alleg e d f ailure to prepare a Supplemental EI S that adequately ex amined the p o t ential environmental impact of a terr o r i s t attack at the NavySDNB CC V

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B roadway Complex

. 2 Bo th parties moved for summary judg ment.

The district court g r anted the Navy ’s motion for summary judg ment on all claims. Addressing the claim that the Navy failed to adequately cons i d er the potential environmental impact o f a terrorist a t t a c k

, the d istrict court stated that “the Navy took a hard look at the environmental consequences o f potential terrorist a ttacks and adopt e d s tandards to address potential terrorist concerns.” The court further remarked that since “the same n aval a dministrative services t hat a re currently located on the [ Compl e x ] s i te will remain a fter construction of the project

. . . the p o tential terrorist threat remains e sse n t i a lly the same, e x cept that the administrative services will b e located in m o d e rn, improved, and hig her security facilities.” The district court e ntered f inal judg ment for the Navy on October 17, 2012

. T h e Coalition timely appealed.

D ISCUSSION

A. National Environm ental P o licy Act

N EPA creates a “national policy [ to] encoura ge productive and enjoy a

ble h a r m ony between man and his environment.” Dep’t of Transp. v. Pub. Citiz e n , 541 U.S. 752, 756 (2004) (quo t i n g 4 2 U.S.C. § 4321). NEPA was

2 B ef or e t h e d i strict co u rt, th e Co alitio n claim ed th at: (1 ) th e Fed eral Def en d an ts f ailed to ad eq u ately co n sid er altern ativ es u n d er NEP A ; (2 ) th e Fed eral D ef

en d an ts f ailed to p rep are a Su

p p lem en tal EIS b ased o n alleg ed sig n if ican t n ew circu m stan ces an d i n f orm atio n relatin g to terro rism

, clim ate ch an g e, seism ic h azard s, traf f ic im p acts, ex cessiv e d ev elo p m en t,

an d cu m u lativ e im

p acts; a n d (3 ) th e Fed eral D ef en d an ts v io lated NEP A b y p rej u d icin g th e o u tco m e o f th e NEP A

p ro cess.SDNB CC V

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desig ned to minimiz e environmental damag e and to promote “the understanding o f the ecolog ical sy stems a n d natural

resources important to” the United States. Id

. The Supreme Court described NEPA’s “twin aims” as “plac[ ing ] u p o n an ag ency the oblig ation to consider e very sig nificant aspect o f the environmental impact of a proposed action[

, and] ensur[ ing ] that the ag ency will inform the public that it has i n d e e d c o n s i d e r e d e n v i r o n m e n t a l c o n c e r n s i n i t s decisionmaking p rocess.” Baltimore G as & Elec. Co. v. Nat. Res. Def. Council, Inc. , 462 U.S. 87, 97 (1983).

NEPA requires that federal ag e ncies prepare an EI S. To fulfill the NEPA policy

aims, ag e n cies shall:

i n c l u de in every recommendation or repo r t

on proposals for leg islation a n d o ther major F ederal actions sig n ificantly affecting the quality of the human environment, a deta i led statement by

the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any a dverse environ mental effects which c a

nnot be a voided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relatio n s hip between local shortterm uses of man’s enviro n m e n t and the maintenance a n d enhancement of long

term productivity , andSDNB CC V

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(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C).

As an alternative to preparing an EI S, an ag en c y m a y prepare a more limited Environmental Assessment (“EA”) which includes a F inding of No Sig nificant I mpac t , b r i efly stating why the action will not sig nificantly impact the envi r o n ment. Dep’t of Transp.
, 541 U.S. at 757–58. B ut if
t h e EA does not lead to the conclusion that a F inding of No Sig nificant I mpact is warranted, the ag ency must still p repare an EI S. Id. at 757.

B. Standard of

Review

W e review a district court’s g rant of summary judg ment in NEPA cases de novo

. Northern Cheyenne Tribe v

. Norton
, 503 F .3d 836, 845 (9th Cir. 2007). An ag ency ’ s action “must be upheld unless it is ‘arbitrary

, capricious, an abuse o f discretion, or otherwise not in acc o r d a n c e with the law.’” Tri-Valley CAREs v. U.S. Dept. Of E n ergy , 671 F .3d 111 3
, 1123 ( 9th Cir. 2012) (quoting 5 U .S.C. § 706(2)(A)). N EPA “does not mandate particular results but simply provides the
necessary process to ensure that federal ag encies take a hard look at the environmental consequences of their actions.” Id

. (quoting Muckleshoot Indian Tribe v. U .S. Forest Serv.
, 177 F .3d 800, 814 (9th Cir. 1 999)) (internal quotation marks omitted). W e ex amine an EA “to determine whether it has

a d e q u a t e l y considered and e la b o r a t e d t h e p o s s i b l e consequences o f the propo s e d a g ency action when concluding that it w ill have no sig nificant impact on the environment.”SDNB CC V

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San Lui s O bispo Mothers for Peace v

. Nuclear R e gulatory Com’n
, 635 F .3d 1109, 1119 ( 9 th Ci r. 2 011) (citing Ctr. for Biological Diversity v. NHTSA
, 538 F .3d 1172, 1215 (9th Cir. 2008)). We must consider “whether the EA fosters b o t h i n f o r m e d d e c i s i o n

- m a k i n g a n d i n f o r m e d p u b l i c participation.” Ctr.

for Biological Diversity
, 538 F .3d at 1194 (citations omitted).

C. P otential Terrorism Must B e Considered Under NEP A.

I n San Luis Obispo Mothers for Peace v

. Nuclear Regulatory Commission
, t h e N u c l e a r R e g u l a t o r y C ommission (“NRC”) arg ued that the construction of an installation for the on-site storag e of spent nuclear f uel r o d s did not require the NRC “to consider the possibi l i t y of terrorist attacks” for the
purposes of NEPA. 449 F

. 3d 1 016, 1 0 35 (9th Cir. 2 006) (“ Mothers for P eace I

”). This court held that while “security considerations may permit or require m o d i f i cation of some

. . . NEPA p rocedures,” such modifications do not absolve an ag ency f or its leg al duty to f

ulfill NEPA’s requirements, such

as public contribution to the N RC’s decision-making process. Id

. at 1034. W e determined the N RC’s c ateg orical d ismissal of the possibility o f a terrorist attack w as unreasonable a nd remanded for further proceeding s. Id

. at 1030, 1035.

I n the instant case, the F ederal Defendants arg ue that our holding in Mothers for Peace I that terrorism must be considered under NEPA is inapplicable to the redevelopment of the Navy B roadway Complex

. W hile the Fe d e ral Defendants correctl y s t a te that the nuclear fuel storag e facility a t issue in Mothers for Peace I is not the same as the Navy B roadway Complex

, th e C o a lition is correct that theSDNB CC V

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Navy B roadway Complex can hardly be classified a s “every day facilities” as the F ederal Defendants assert.

Th e N avy B roadway Complex currently holds, and a fter redevelopment will continue to hold, major mi l i t a ry commands c oordinating “ b a s e o p e r a t i ng support functions for operating forces throug hout the reg ion,” as well as providing “log istics, business, and support services to

. . . commands o f the Navy [
, ] Coast Guard

. . . and other joint and allied forces.” T h e f

a cility will be located in heavily -populated downtown San Di e go “adjacent to the San D ieg o B ay waterfront” and “ surrounded b y a mix o f u r b a n uses,” integ rating hotels, commercial facili t i e s , a n d p u b lic space into the Navy B roadway Complex site itself. As the Navy stated when providing a terrorism threat a s s e ssment for the 2009 EA, “ a g eneral threat e x ists in the U.S. from al Qa ’ i d a a nd affiliated g roups and individuals.”

G i ven the g overnment’s assessed g eneral risk o f terrorism, the location of the redevelopment project, and the

m ilitary commands to be housed in the Navy B roadw a y Complex

, we reject the F ederal D efendants’ arg uments ag ainst apply ing Mothers for Peace I and find that they must address the risk of a p o s s ible terrorist attack in their N EPA analy sis.

D. The 2009 EA Suf f iciently S a t isf

ies NEP A ’s Requirem ents.

The level of a

naly sis provided by the F ederal Defendants in the 2009 E A was sufficient to satisfy NEPA’s requirements under Mothers for P eace I

. After issuing a draft E A in September of 2008, the Navy held three public meeting s a nd received numerous public c omments related to the threat o fSDNB CC V

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terrorism. The N a v y responded to the comments a nd modifie d the 2009 EA to address the public’s concerns reg arding terrorism. Such constructive ex chang es with t he public demonstrate the “info rmed public participation” that NEPA requires. See Ctr. f o r Bi ological Diversity
, 538 F .3d
at 1194; see also Save the Peaks Coal. v. Forest Serv.
, 669 F .3d 1025, 10 3 7 n .5 (9th Cir. 2012) (“[ C] ourts may consider responses to comments for confirm a tion that an ag ency has taken a ‘hard look’ at an issue.”).

The N aval Criminal I nvestig ative Service (“NCI S”), a security

, c ounter-intellig ence, counter-terrorism and law enforcement ag ency conducted the t hreat assessment on the proposed Navy B roadway Complex

. L ooking a t national,
reg ional, municipa l, and specific threats to the Navy B roadway Complex

, NCI S determined that “no known specific threat of a terrorist attack” ex isted. W e believe that the Navy erred by including this reasoning in i t s analy sis. The risks associated w ith terrorism are constantly in flux

, a nd whether or not the intellig ence c ommunity is aw a re of a specific threat to a facility a t the t i m e a NEPA analy sis is conducted should have no bearing on whether to consider the impacts o f an attack. Nevertheless, as ex plained below, we deem the F ederal Defendants’ NEPA analy sis suf f icient despite this erroneous finding

.

The modified 2009 EA clearly ex plained the Navy ’ s AntiTerrorism F orce Protection req uirements and clarified that those r equirements “would a pply to a l l onsite building s occupied either wholly or partially by [ Departm e n t o f Defense] personnel,” provi d e d such personnel meet a minimum o ccupancy rate in the b uilding

. The 2009 EA also incorporates by reference the Unified F acilities Cri teria specifications for the Department of Defense ’ s MinimumSDNB CC V

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Antiterrorism Standards for B uilding s, UF C 4

- 0 1 0-01 (“Unified F acilities Criteria”). 3

A review of the Unified F acilities Criteria demons t r ates that the Anti-Terrorism Fo rc e Protection requirements a re based on an ex amination of p lausible terror i s t attack scenarios including attack s b y e x plosives, vehicle bombs, waterborne vesse l b o m

b s , p l a c e d b o mbs, mail bombs, indirect fire, direct fire, as well as chemical, biolog i c al

, a nd radiolog ical weapons. UF C 4-010-01, DoD Min i m u m Antiterrorism S t a n d ards for B uilding s (8 October 2003 a s amended in 2007) C h ap ter 2, 3–4. The Unified F acilities Criteria mandates a planning process for the Navy B roadway Complex desig ned to ensure protection ag ainst terrorism a nd other security concerns by considering various “possible in c i d ents o r modes of attack” referred to by the Coalition’s

ex p ert. Id. at Chapter 1, 2.

F urther, the 2009 EA stated that antiterrorism building standards would “reduce the potential damag e that could be inflicted b y terrorist activity .” A n d t h e complex would be limited to administrative functions and would n o t remain operational if subject to a te r r o r i s t attack. The Navy f urther concluded that the complex “would not jeopardiz e the national security of a military installation or the safety of our citiz ens” by virtue to its prox imity to no n

- government building s.

3 T h e Dep artm en t o f Def en se Min im

u m A n tit e r ro rism Stan d ard s f or B u ild in g s, UFC 4

- 0 1 0

- 0 1
, (8 Octo b er 2 0 0 3 a s a m e n d ed in 2 0 0 7) is

av ailab le at h ttp ://w

b d g .o rg /ccb /DOD/UFC/A RCHIVES/u f c_ 4_ 0 1 0

_ 0 1

_ 2 0 0 3 .p d f

(last ch eck ed Feb ru ary

2 9, 2 0 1 6 ).SDNB CC V

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W e are mindful of the Supreme Court’s admonition
ag ainst imposing additional procedures on an ag e ncy ’s NE PA decision-making process. See V ermont Y a n kee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.
, 435 U

. S. 519, 548

– 4 9 ( 1978). “The scope of an ag ency ’s inquiry must remain manag eable if NEP A ’ s g oal of ensuring a f ully informed and well con s i d e r e d d e c i s ion is to be accomplished.” M

etro. Edison Co. v. P eople Against Nuclear Energy
, 460 U.S. 766, 776 (1983) (citation and i nternal quotation marks omitted). Moreover “an ag ency [ such as the Department of the Navy

] must have the discretion to rely on the reasonable opinions o f its o wn qualifi e d e x p erts even if,

as an orig inal matter, a court mig ht find contrary views more persuasive.” Marsh v. Oregon Nat

. R e s. Council

, 490 U.S. 360, 378 (1989).

I n sum, the Navy ’s 2009 EA identi f i e s and incorporates by reference the Unified F acilities Criteria, which was made available to the public a n d ex plains the minimum

a n t i t e r r o r i s m f

o rce protection stand a r d s f o r p u b l i c consideration. F urther, “ informed publi c p articipation” that included considerations o f those antiterrorism force
pro t e c t i on standards at the Navy B roadway Complex is evident in t h e record, in the p ublic’s participation in meeting s, in the Navy ’s solicited public comments, and in the Navy ’s responses to those comments.

W e are satisfied that the Navy ’s 2009 EA “foster[ ed] both i n f o r m e d d e c i s i o n

- m a k i n g a n d i n f o r m e d p u b l i c participation.” Ctr.

for Biological D iversity
, 538 F .3d at 1194 (internal quotation marks omitted). The N avy could c ertainly have made the public’s participation easier by including more

s p e c i f i c information about the potential environmental effect s of terr o rism and by adding information f rom the UnifiedSDNB CC V

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Facilities Criteria in the 2009 E A itself to create a singl e, clear d o cument. Nonetheless, the F ederal Defendants’ method o f addressing those concerns can “re as o n a bly be discerned.” Mothers fo r P ea c e II
, 635 F .3d at 1 118. The Navy considered the r elevant factors in its “ hard loo k ” at potential t errorism at the Navy B roadway Complex

. The F ederal Defendants d id not abuse th e i r d iscretion in determining that there was no sig nificant impact from the possible environmental e f fects o f pot e n t i a l terrorism at the N a v y B r o a d w a y C o m p l e x , a n d a S u p p l e m e n t a l Environmental I mpact Statement is thus not required.

CONCLUSION

Our precedent requires the F e d e r al Defenders to consider the environmental impact of the Navy B roadway Complex ’s development, and to inform the public tha t t h e y have considered environmental concerns in their decision-making
process. We conclude that they have taken a hard look at the environmental consequences of their actions, and therefore fulfilled their oblig ations under NEPA.

AF F IRMED.

CARR, Senior District J udg e, dissenting :

I ag ree that San Luis O bispo Mothers for Pe a c e v

. Nuclear Regulatory Commission
, 4 4 9 F .3d 1016 (9th Cir. 2006), r equired th e F ederal Defendants to address the environmental consequences of a p ossible terrorist attack on the San Dieg o Nav y Br o adway Complex

. B ut I respectfullySDNB CC V

. U SDOD

18

dissent from the majority ’s determination that the F ederal Defendants adequately addressed those consequences.

The Naval Criminal I nvestig ative Service determined there was “no known specific t h r ea t ” of a terrorist attack at the Complex

. F or that reason, the F ederal D e f e n dants deemed the risk of such attacks “too speculative, r e mote a nd removed f

rom the environmental e ffects of the proposed action to merit further analy sis[

. ] ”

That reasoning i s d eeply flawed, a s the majority rig htly observes. Mothers for P eace makes clear that “[ t] he numeric probability of a s p e c i fic attack is not required in order to

assess likely modes of a ttack, weapons, a nd vulnerabilities o f

a facility

, and the possible impact of e ach of these o n the phy sical environment[

. ] ” 449 F . 3d at 1031.

W h at is more, the F ederal Defendants have not ruled out the possibility of a terrorist a ttack a t t h e Complex

. Cf. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the Navy
, 383 F

. 3d 1082 (9th Cir. 2004) (Nav y n o t r e quired to consider en v ironmental impact of accidental missile

ex p losion, where Navy determined r isk of such ex plosion “ is between one in 100 million and one in 100 trillion”). Rather, they h ave acknowledg ed the “sig nificant” risk of terrorism in the c ontinental United States and identified “a wide variety o f attack methods” terrorists are likely to employ

. A c cording ly

, the F ederal Defendants could have, and s h o u ld have, considered the environmental impact of at least a few attack scenarios at the Complex

.

I am mindful that the F ederal Defendants revised t h e Environmental Assessment after receiving public c omments about a po t e n t i a l terrorist attack at the Complex

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revisions only streng thened the Complex ’s defenses ag ainst

a potential t e rrorist attack; they did not assess the likely environmental impact of such an attack.

F or these reasons, I

respectfully

dissent.