Editor’s Note: This commentary is by James A. Dumont, Esq., and Laura Hill-Eubanks, Esq., the attorneys who represented Winooski, Burlington and South Burlington residents in court challenges to the sufficiency of the Air Force's Environmental Impact Statement, and to the Vermont Air National Guard's decision not to obtain Act 250 approval, for the decision to base F-35 stealth fighter-bombers at the Burlington International Airport.
We are the two lawyers who unsuccessfully challenged the F-35 all the way through the state courts and then the federal courts. We write to respond to the gaping hole in the recent otherwise excellent article about the horrifying noise impacts of the F-35. The article closed with F-35 proponents’ justification for bringing the F-35s to Burlington: that without the F-35s, the Vermont Air Guard would no longer have a mission and would cease to exist.
The official Air Force record disagrees with that claim. In the process of litigating the two cases, we received and read through over 10,000 documents from the Air Force. The result was at once inspiring and disheartening. It was inspiring because we found, in the official record, that career Air Force employees spoke up to challenge placing the F-35 at the Burlington airport because, from both a military planning perspective and an environmental impacts perspective, the Burlington location had significant drawbacks that other locations did not have. None of the alternative locations were in populated areas. Also unlike Burlington, the alternative locations had access to airspace appropriate for training F-35 pilots (the Burlington site requires an investment of tens of millions of dollars to upgrade the ground facilities needed for the airspace training sites, such as those in New York).
And, as these Air Force documents pointed out, the Burlington site would continue to host F-16s into the future if F-35s did not push them out. The Vermont Air Guard's public statements then (and now) that the F-35 was needed to keep the Air Guard flying were disputed by the Air Force itself.
The honesty and courage of Air Force staff were the inspiring part. The disheartening part was that, based on these and other facts, the Air Force decided not to locate the F-35s in Burlington — and then, a Vermont Senator on the Senate Appropriations Committee found out about the decision, contacted the Air Force to complain, and the Air Force overruled its staff and chose Burlington. However, it remains true today that without F-35s, the Vermont Air Guard will continue to exist and will continue to employ Vermonters.
There is another, equally important fact, that Winooski residents should know about. When the Vermont Supreme Court rejected our appeal, Justice Morse wrote a concurring opinion one would have to characterize as heartfelt and unusual. He wrote that while he agreed that Vermont’s land use law, Act 250, did not apply to the deployment, the severe noise impacts of the F-35 should be challenged by citizens by filing suit under the common law concept of "nuisance." He was right — but the Supreme Court of Vermont has ruled that "public nuisance" actions such as these cannot be brought by residents of an affected community unless their damages are distinct from those the entire community suffers. In such cases, only the municipal government can bring such claims. That means that the Winooski City Council clearly has the power to file suit to seek damages or other relief for Winooski residents — and may be the only entity that can do so.
Winooski residents, if you want your City Council to act, let them know.
