[T]he Vermont Supreme Court upheld a lower court ruling Friday that a state land use and development permit will not be required in basing the F-35 fighter jet with the Vermont Air National Guard.
In an effort to block the jet’s arrival to the Burlington International Airport, anti-F-35 activists argued the city of Burlington, which owns the airport, must obtain a state land use and development permit to account for expected retrofits and noise impacts of the 18 jets’ anticipated arrival in 2020.
The Environmental Court last May upheld a decision by an Act 250 district commission that determined the permit was not required. The commission said the upgrades to the base did not require a state permit because the Guard serves a federal purpose. Other changes to the airport did not trigger a permit review, the commission said.
But F-35 opponents appealed the court’s the decision in August, arguing the permit applies to the Guard base because it is under state control unless it is called upon by the federal government. The opponents also argue that previous developments at the airport have triggered Act 250 review in the past. The Guard plans to retrofit existing infrastructure to accommodate the planes.
The Supreme Court’s opinion, however, found Act 250 review did not apply.
“Our conclusion is similar to that reached by the Environmental Board,” said Associate Justice Harold Eaton, “the proposed improvements related to the fighter jet were being made by the federal government and would be under federal control, and therefore there was no state purpose.”
Critics say the jets will cause undue harm on the communities surrounding the airport. The jets are considered to be louder than the current F-16s, according to the Air Force, affecting more than 2,000 residents. Critics have called on the Guard and the airport to mitigate the noise.
The issue of noise, Eaton said, is preempted by federal regulations and under the control of the Federal Aviation Administration.
“For this reason there is no material change that triggers Act 250 jurisdiction,” Eaton said.
Jim Dumont, a Bristol-based attorney representing the F-35 opponents, said he will file a petition for writ of certiorari with the U.S. Supreme Court within 90 days.
“We respectfully disagree with the Vermont Supreme Court’s decision that the district commission cannot review and impose mitigation measures,” he said.
The U.S. Air Force last year decided to base 18 F-35s with the Vermont Air National Guard to replace the aging fleet of F-16s. The F-35 has the support of Vermont’s congressional delegation, Gov. Peter Shumlin and the city of Burlington.
Retired Justice James Morse, who was specially assigned to the case, agreed with the ruling, but acknowledged that it disregards the “overpowering assault on the senses produced by the F-35A aircraft.”
“The record evidence of the F-35A’s noise impact on the area surrounding the Burlington International Airport is an alarming wake-up call. It reveals that decibel levels of the F-35A on takeoff, approach, and landing will be perceived as two to four times louder by the human ear than the current F-16 aircraft,” Morse said.
He said the court was correct to say federal regulations preempt local noise regulations on aircrafts, but that a number of courts have determined federal law does not preempt actions against municipally owned airports based on excessive noise or emissions that result in a public nuisance.
“While a public-nuisance suit may be less than what the affected residents had hoped for, it may at least provide some redress for an injury they are powerless to prevent,” he said.
