Judge to determine if Burlington site selection for F-35 was ‘arbitrary and capricious’

Air Force attorney David Gehlert closed nearly four hours of testimony in Rutland Federal Court on Tuesday by stressing that the government has fully acknowledged the public health and environmental risks associated with the F-35 fighter jet.

Gehlert also acknowledged that the environmental impacts of the aircraft would be far greater for Burlington than they would be for the McEntire Joint National Guard Base in South Carolina or the Naval Air Station in Jacksonville, Florida, also considered as sites for the F-35.

The arguments were part of a motion for summary judgment that will ultimately determine whether the Air Force’s Environmental Impact Statement issued in September 2013 properly took into account the dangers posed by the new fleet of aircraft.

U.S. Federal District Court Judge Geoffrey Crawford, who is reviewing the case, said he’ll focus his attention on the adequacy of the Environmental Impact Statement and the related question of whether the Air Force’s action in selecting Burlington was “arbitrary and capricious.”

The motion stems from a case brought by several landowners and the Stop the F-35 Coalition in June 2014. James Dumont, the attorney for the group, characterized the Air Force’s EIS as a “sham” and said that it did not adequately address some of the most important concerns voiced by area residents including noise pollution, potential fallout from a catastrophic accident, and impacts on property values.

James Dumont

James Dumont. File photo by Erin Mansfield/VTDigger

“The EIS is full of big holes and issues,” said Richard Joseph, a Winooski resident and one of the plaintiffs in the case.

Dumont has also pressed the case in state court. In 2015 the Vermont Supreme Court ruled for the Air Force. The high court upheld an Environmental Court ruling that determined the Vermont National Guard base wasn’t subject to Act 250 land use rules because the base serves no state purpose. Dumont argued that the Guard is an agency of the state.

Pierre Sprey, who filed an affidavit in the case, says that newly designed fighter jets should not be based in urban areas. An engineer who co-designed the F-16 and worked on development of the A-10, Sprey says the high proportion of composites used in the F-35’s stealth coating also pose unknown health risks, which have not been publicly disclosed. In addition, Sprey says the F-35 has been plagued with engineering issues since its inception in 1985.

“It has had an inordinate number of engineering failings. Substantially more than other airplanes at this stage in development,” Sprey said.

A crash could wipe out many urban blocks depending on wind conditions, he said. “In bad wind conditions you could be damaging the lungs of residents a quarter mile or half mile down wind,” Sprey continued.

Based on the F-22’s safety record — a jet comparable in some ways to the F-35 — a class A catastrophe is likely every few years, Dumont said.

According to the Pentagon’s 2015 Director of Operational Test and Evaluation report, the F-35 aircraft faces major hurdles in performance and safety, raising questions about its viability even as the launch date nears. It is scheduled to replace Burlington’s existing fleet of F-16s in 2019 or 2020.

If Judge Crawford rules in favor of the plaintiffs, the Air Force would have to conduct a new environmental impact statement, further delaying an already costly and controversial process.

Adam Federman

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