F-35 opponents appeal to Vermont Supreme Court

Three F-35A test aircraft, AF-2, AF-3 and AF-4, fly in formation over Edwards Air Force Base, Calif. Lockheed Martin photo

Three F-35A test aircraft, AF-2, AF-3 and AF-4, fly in formation over Edwards Air Force Base, California. Lockheed Martin photo

The latest strike against the F-35 fighter jet will land in the state’s highest court.

F-35 opponents last week filed an appeal to the Vermont Supreme Court, claiming the city of Burlington must obtain a state land use and development permit to account for expected retrofits and noise impacts of the new jets’ anticipated arrival in 2020.

The lawsuit marks the latest skirmish in an ongoing battle waged by a group of residents who are opposed to the basing of the military aircraft at the airport. The U.S. Air Force last year decided to base 18 F-35s with the Vermont Air National Guard. The F-35 has the support of Vermont’s congressional delegation, Gov. Peter Shumlin and the city of Burlington.

An environmental court judge ruled in May that Burlington, which owns the airport, did not need an Act 250 permit to accommodate the new jets because, he said, the Guard is not a state entity subject to the Act 250 review and the proposed changes at the airport do not qualify as development defined by the permit.

The F-35 opponents disagree with the environmental court ruling. In a legal brief filed with the Supreme Court, they argue the Guard is an agency of the state unless called upon by the president for federal service. James Dumont, who is representing the opponents, cites a U.S. Supreme Court case that found that a Maryland Air National Guard pilot who collided with a civilian airplane was a state employee at the time.

The opponents also argue that previous developments at the airport have triggered Act 250 review in the past. The Guard plans to develop existing utility infrastructure, aircraft hangars, maintenance shops, simulator facilities and associated work areas.

Eileen Blackwood, the attorney for the city of Burlington, said the city agrees with the lower court’s ruling that the Act 250 permit does not apply to the airport modifications. She said the city will respond to the appellants’ argument by Sept. 16.

When the court reviews the city’s response it will then decide whether to hear the case before the full court or a three-justice panel. A date for the case has not been scheduled.

The opponents’ chief concern with the new aircraft designed to replace the current F-16s is that they will be louder. The final Air Force Environmental Impact Study states 18 F-35 fighter jets will expose 2,061 more people in Winooski and South Burlington to a 65 day-night average sound level (DNL) or greater.

Opponents want the city to obtain an Act 250 permit that would require the noise to be mitigated.

Burlington and the Natural Resources Board, which oversees Act 250 permits, say noise and safety issues related to a military aircraft cannot be regulated by the state but rather the Federal Aviation Administration. The District 4 Environmental Commission said in a March 2013 jurisdictional opinion that the airport has never needed an Act 250 permit for noise related impacts.

F-35 opponents say the Natural Resources Board can impose conditions that would limit noise without changing the jets’ engine, flight patterns and general operations, which they agree are regulated by the FAA. Instead, homes in the area could be soundproofed to limit noise, they say.

The Air Force said noise impacts should be studied after the jet arrives at the airport. It said it will also limit to the extent possible flying the jets at low altitudes during seasonally sensitive times, such as holidays and American Indian ceremonies.

There are ways to lower the jet noise, but Air Force officials are reluctant to say whether the techniques could be employed. Reducing thrust by lowering the power setting is not operationally feasible or safe at this time, according to the Air Force. Moderating the use of afterburners – a function of the jet that creates more noise – would not work for training and combat. The modification of departure tracks is limited by terrain and development in surrounding communities, the Air Force said.

A Vermont Air National Guard spokesperson was not able to comment for the story before coordinating a response with legal staff.

F-35 opponents also say the Air Force violated federal environmental law by failing to evaluate a range of environmental impacts and alternatives to basing the jet in Burlington.

John Herrick

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  • roger tubby

    Quoting (apparently there’s no clear mechanism on this site to do any formatting to make this clearer):
    The Air Force said noise impacts should be studied after the jet arrives at the airport. It said it will also limit to the extent possible flying the jets at low altitudes during seasonally sensitive times, such as holidays and American Indian ceremonies.

    — Why don’t we just have a nice little squadron of 5 to 10 of these planes do landings/takeoffs for a few hours so the residents of Vermont can decide for themselves how much the noise is worth the supposed security?

    Reducing thrust by lowering the power setting are not operationally feasible or safe at this time, according to the Air Force. To reduce the use of afterburners – a function of the jet considered to create more noise – would not work for training and combat. And to modify departure tracks is limited by terrain and development in surrounding communities, the Air Force said.

    — So basically these planes need to fly all the time in full after-burner mode – at least during take-off which is when most of the environmental disruption will take place.

    I’d like to invite our supportive congress-persons and business-zealots to stand in the area that is already zoned as non-liveable without earplugs while the F-16’s and F-35’s are taking off.

    Of course, none of them have residences within 5 miles of So. Burlington or Winooski.

  • Sean Joyce

    The F35 will be scrapped prior to 2020 and I wouldn’t doubt it becomes a major issue in the 2016 presidential election because it is obviously the biggest waste/corporate welfare of tax payers money any of us have ever seen. $1.1 trillion dollars for an jet that fails to replace either the A10 or the F16 as promised. Now they are saying the jet flies too hot to be able to fly in desert conditions (Good thing we don’t plan on fight in the middle east anymore then). Lockheed Martin’s F35 is old technology in a COOL looking shell and the American people cannot afford a shiny facade of a fighter. Promised to be a blip on the radar the size of a golf ball, that has been replaced with a beach ball. Big difference to the brave men and women that are protecting our skies.

  • ray giroux

    Sounds to me like we don’t have to worry about the F35 even having the ability to fly to Vermont without bursting into flames or ejecting the pilot with no notice. It’s a careening fire bomb with so many problems it’s a wonder any pilot would even consider getting into it.

    Looks like the Federal Government will decide how much noise Vermonters will have to put up with, not the people of Vermont. So much for our State Sovereignty.

  • Douglas Roberts

    And why is Bernie Sanders a passionate defender of the F-35?

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