The Navy’s downtown waterfront $1.3 billion development project cleared its potentially last environmental hurdle Wednesday with a federal appeals court approval.
The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, rejected environmental claims by the San Diego Navy Broadway Complex Coalition that the four-block site needed additional reviews of the potential environmental impacts of a terrorist attack on the Navy-owned site.
The project, first envisioned in 1982, calls for 2.9 million square feet of office space, including a regional Navy headquarters, 1,400 hotel rooms, a 40,000 square-foot museum, 213,000 square feet of retail and restaurant space and 3,100 parking spaces. The development at the Broadway and Harbor Drive area of downtown San Diego would also include a nearly 2-acre park.
While the Navy owns the land, it leased it for 99 years to developer Doug Manchester, former owner of San Diego’s newspaper the Union-Tribune.
After years of battles over the plans and environmental review, in 2006, the Navy published a notice for public review and a finding of “No Significant Impact” from the complex. In 2007, the coalition of citizens sued claiming the Navy failed to comply with the National Environmental Policy Act (NEPA) and need additional review.
In 2011, the federal trial court rejected the claim that the Navy needed to review the impact of a potential terror attack. The group appealed.
While the appeals court found that the Naval Criminal Investigative Service (NCIS), erroneously included a determination that no known specific terror threat existed at the time of the NEPA review, the court found the Navy review met environmental standards.
“The risks associated wit6h terrorism are constantly in flux, and whether or not the intelligence community is aware of a specific threat to a facility at the time a NEPA analysis is conducted should have no bearing on whether to consider the impacts of an attack,” wrote Judge Harry Pregerson. “Nevertheless, we deem the federal defendants’ NEPA analysis sufficient despite this erroneous finding,” Pregerson wrote. He was joined by Judge Jacqueline Nguyen.
In dissent, visiting Judge James Carr of Ohio, he did not believe the Navy adequately addressed the consequences of terrorism.
He found the NCIS reasoning of a low risk of attack “deeply flawed” and pointed out the Navy acknowledged a “significant” risk of terrorism in the U.S. and thus should have considered the environmental impact of “at least a few attack scenarios at the complex.”
The only remaining options for appeal would be to the full 9th Circuit, in an 11-judge en banc review, or to the U.S. Supreme Court.
Case: SDNBCC v. US Dept. of Defense, No. 12-57234