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AG Ferguson: Court rules Navy failed to consider the damaging impacts of its Growler jet program

Navy unlawfully expanded its Growler program without considering impacts of frequent, noisy flights

SEATTLE — A federal judge ruled that the U.S. Navy’s environmental review process for the Growler jet program expansion on Whidbey Island illegally failed to analyze the impacts of the noisy, often low-flying jets on classroom learning and local birds — a violation of the National Environmental Policy Act. This is the latest legal setback for the Navy in Attorney General Bob Ferguson’s lawsuit challenging the Whidbey Island Growler expansion.

The Attorney General’s Office is challenging the Navy’s March 2019 decision to authorize a significant expansion of its Growler program, increasing flight operations on Whidbey Island to more than 110,000 per year.

“The Navy has an important job,” Ferguson said. “But that does not relieve the federal government of its obligation to follow the law and take a hard look at the public health and environmental impacts of its programs. Today the judge ruled that the Navy fell short of its obligation.”

The training regimen for Growler jets requires frequent take-offs and landings, and the expansion increases Navy flight operations on Whidbey Island to more than 110,000 per year. The court ruled in favor of the state’s claims that the Navy failed to consider the impacts of the noisy jets on local classrooms, and on various bird species, including tufted puffins, which the state lists as endangered.

The court also ruled in favor of two claims in a related lawsuit filed by Citizens of Ebey’s Reserve: The Navy did not properly consider other locations for the Growler expansion, nor did it properly consider the greenhouse gas impacts of Growler fuel use.

The state and the other parties now have 30 days to either agree on a remedy or a briefing schedule on a remedy.

The ruling adopted the recommendation of a U.S. federal magistrate, who issued a report and recommendation in December 2021 in favor of Ferguson’s lawsuit.

“Here, despite a gargantuan administrative record, covering nearly 200,000 pages of studies, reports, comments, and the like, the Navy selected methods of evaluating the data that supported its goal of increasing Growler operations,” Chief Magistrate Judge J. Richard Creatura wrote in his 38-page recommendation. “The Navy did this at the expense of the public and the environment, turning a blind eye to data that would not support this intended result. Or, to borrow the words of noted sports analyst Vin Scully, the Navy appears to have used certain statistics ‘much like a drunk uses a lamppost: for support, not illumination.’”

This case was filed during the Trump Administration. Many of the office’s Trump-era cases are still ongoing, despite the change in administration. After this ruling, Ferguson has now won 48 of his 99 cases against the Trump Administration.

Case background

In March 2019, the Navy authorized a significant expansion of its Growler program, increasing flight operations on Whidbey Island to more than 110,000 per year. Growlers are aircraft that fly low in order to jam enemy communications.

In July later that year, Ferguson filed a lawsuit in the U.S. District Court for the Western District of Washington arguing that the Navy violated the National Environmental Policy Act and the federal Administrative Procedure Act by improperly analyzing the impact the Growler expansion would have on human and environmental health. This lawsuit was announced and filed concurrently with another, similar lawsuit from Citizens of Ebey’s Reserve, a nonprofit based on Whidbey Island.

In 2017, the Washington Department of Health provided feedback to the Navy on noise levels around the Whidbey Island airfields. The feedback outlined how exposure to noise levels similar to those at the naval air station could cause negative health and learning impacts, including sleep disturbance, cognitive impairment and cardiovascular disease.

The state’s lawsuit argued that the Navy failed to complete a thorough analysis of negative impacts to health and childhood learning. The lawsuit also argued that the Navy arbitrarily dismissed impacts to human health and child learning from increased noise, despite many studies indicating that exposure to noise can lead to adverse health outcomes.

The aircraft’s training regimen involves frequent, loud take-offs and landings near important habitat for birds. Over time, these birds would be exposed to millions of loud Growler flights, potentially affecting their ability to feed and breed. Despite this, the lawsuit argued that the Navy did not analyze how the additional flights may impact different bird species.

Assistant Attorneys General Aurora Janke, Junine So, and Bill Sherman, and paralegals Tricia Kealy and Nerissa Tigner with the Environmental Protection Division are handling this case on behalf of the Attorney General’s Office.

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