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Commonwealth of Puerto Rico v. Rumsfeld

January 2, 2002

THE COMMONWEALTH OF PUERTO RICO, BY THE SECRETARY OF JUSTICE, PLAINTIFF
v.
DONALD H. RUMSFELD, SECRETARY OF DEFENSE, HON. GORDON ENGLAND, SECRETARY OF THE NAVY, AND ADMIRAL VERN CLARK, CHIEF OF NAVAL OPERATIONS, DEFENDANTS



The opinion of the court was delivered by: Gladys Kessler United States District Court

MEMORANDUM OPINION

Plaintiff, the Commonwealth of Puerto Rico ("Commonwealth"), brings this action to enjoin the United States Navy's military training operations on the Island of Vieques, a municipality of the Commonwealth. Defendants are Donald Rumsfeld, Secretary of Defense; Gordon England, Secretary of the Navy; and Admiral Vern Clark, Chief of Naval Operations. Plaintiff alleges that Defendants' naval exercises violate the federal Noise Control Act of 1972 ("the Act"), 42 U.S.C. § 4901 et seq., and Puerto Rico's local environmental noise control law, namely the Noise Prohibition Act of 2001. *fn1 The matter is now before the Court on Plaintiff's Motion for Summary Judgment, and Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment.

Before turning to the particulars of the legal issues raised in this case, the Court notes some general observations about the underlying challenge. Without question, the issue of the Naval training exercises on Vieques has been of long-standing significance to many people. The Navy and the United States government view the exercises as critical to military readiness; the Commonwealth and the states that have submitted an amicus curiae brief believe the exercises interfere with their sovereign duty to protect the health, safety and welfare of their residents. The people of Vieques maintain that the exercises have significantly impaired their quality of life and well-being.

While the political and policy issues raised in this case are complex and involve the clash of many important interests, the legal issue, in contrast, is simple and straightforward. Upon consideration of the motions, oppositions, replies, the amicus curiae brief of the States of New York and Connecticut, and the entire record herein, for the reasons stated below, the Court concludes that the Commonwealth's case must be dismissed for lack of subject matter jurisdiction. The federal Noise Control Act of 1972 does not provide Plaintiff a cause of action to sue in federal district court for the violations alleged. Accordingly, the Court denies Plaintiff's Motion for Summary Judgment and grants Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment.

I. BACKGROUND *fn2

The Commonwealth filed this action to enjoin the United States Navy from firing its naval guns, known as 5-inch/54 caliber Mark 45 guns ("Mark 45 guns"), during naval training exercises at the inhabited island of Vieques. The Commonwealth asserts that these exercises violate both the federal Noise Control Act of 1972 and Puerto Rico's own Noise Prohibition Act of 2001.

A. Naval Exercises on Vieques

Vieques, a municipality of the Commonwealth of Puerto Rico, is a hilly island in the Caribbean located to the south and east of Puerto Rico. Vieques is over 18 miles long and four miles at its widest point. About 9,300 civilians reside in Vieques, most of them in the two towns in the middle of the island, Isabel Segunda on the north coast and Esperanza on the south coast.

The Navy has been conducting military training exercises on and in the waters surrounding Vieques for the past 60 years. Currently, the Navy owns approximately 14,000 of the island's 33,000 acres, which includes most of the eastern end of the island. The Navy's installations on the eastern end of Vieques are part of a larger military complex known as the Atlantic Fleet Weapons Training Facility, headquartered in Puerto Rico. That facility consists of four firing ranges. The one most relevant to Plaintiff's challenge is the "Inner Range." *fn3

Many different kinds of training exercises occur in the Inner Range. *fn4 Plaintiff's allegations challenge the continuation of the exercises known as Naval Surface Fire Support exercises ("NSFS"). These exercises involve ship-to-shore gunnery practice by Navy vessels stationed between 4.6 to 6.8 miles from the southern shore of Vieques. The vessels fire 70-pound projectiles at 2.3 times the speed of sound at targets on an uninhabited area on the eastern end of Vieques known as the "Live Impact Area." Each individual firing generates three sounds, namely one muzzle blast and two intense sonic booms. These sounds are propagated through air and water toward the island of Vieques, and each sound exceeds peak sound pressure values of 190 dB re 1 u-Pa. *fn5

B. Effects of Naval Firing

Every year the Navy fires thousands of rounds from its Mark 45 guns at the Live Impact Area on the eastern part of Vieques as part of its NSFS exercises. *fn6 The firing generates high amplitude, low frequency sounds that the Commonwealth asserts have caused a wide range of medical problems and have substantially impaired the quality of life for residents of Vieques.

For example, the Commonwealth asserts that the noise generated from the naval firing has led to a high incidence of Vibroacoustic disease. This disease refers to injuries and abnormalities in the cardiovascular, respiratory, nervous and immune systems due to prolonged exposure to high-amplitude, low-frequency noise. *fn7 See Pl.'s Compl. at ¶ 20.

Plaintiff also alleges that the noise associated with the naval exercises substantially interferes with the quality of life of the civilian residents of Vieques by causing significant discomfort, annoyance, and psychological distress. *fn8 See Pl.'s Memo. at 8-10 ("noise from the ship-to-shore bombardments...irritate and produce 'fear, anxiety and tension' among the island's residents...the impact of the noise is especially traumatic for schoolchildren in Vieques....[There is a] constant sense of anxiety among [] students").

Plaintiff further alleges that the naval firing produces long-term damage to the homes and livelihood of residents on Vieques. *fn9 See Pl.'s Memo. at 10 ("Houses in Vieques vibrate...to such a degree that noise-induced cracking and leaking are commonplace."); id. at 11 ("The intense noise not only produces stress and anxiety in the fishermen, it also harms the aquatic life on which the fishermen depend for their livelihood.").

C. Federal Noise Control Act

The Commonwealth brings its challenge to the naval exercises under the federal Noise Control Act. The Noise Control Act is a federal statute aimed at addressing the adverse physical and psychological effects of inadequately controlled noise on the overall health of citizens. 42 U.S.C. § 4901(b) ("It is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare."). The Noise Control Act contemplates both federal and state regulation of noise pollution in furtherance of this goal.

Specifically, the Act recognizes that "federal action is essential to deal with major noise sources in commerce," and establishes, inter alia, "federal noise emission standards for certain products distributed in commerce." 42 U.S.C. § 4901(a)(3). In particular, the Act directs the Environmental Protection Agency ("EPA") to promulgate regulations establishing noise emission standards applicable to manufacturers who design products found to be major sources of noise pollution, such as construction and transportation equipment. 42 U.S.C. § 4905.

The Noise Control Act also acknowledges the role that state and local governments play in noise pollution control, and provides that the "primary responsibility for control of noise rests with state and local governments." 42 U.S.C. § 4901(a)(3). It leaves to the states and cities the responsibility for regulating environmental noise stemming from the use of the products found to be major sources of noise pollution. 42 U.S.C. § 4905(e)(2)("nothing in this section precludes or denies the right of any State or political subdivision thereof to establish and enforce controls on environmental noise (or one or more sources thereof) through the licensing, regulation or restriction of the use, operation, or movement of any product or combination or products."); see also S. Rep. No. 92-1160, at 7 (1972), reprinted in 1972 U.S.C.C.A.N. 4655, 4660 ("states and local governments have the primary responsibility...for setting and enforcing limits on environmental noise which in their view are necessary to protect public health and welfare.").

The provision of the Noise Control Act upon which Plaintiff relies is contained in Section 4(b). Also referred to informally as the "federal facility provision," it provides that "[e]ach department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government...shall comply with established federal, state, interstate and local laws respecting control and abatement of environmental noise," *fn10 subject only to presidential exemption. 42 U.S.C. § 4903.

D. Puerto Rico's Noise Prohibition Act of 2001

The Commonwealth also alleges violation of its local law, namely the Noise Prohibition Act, which the Governor of Puerto Rico signed into law on April 23, 2001. The Noise Prohibition Act prohibits the generation of sound above peak sound pressure levels of 190 dB re 1 u-PA from anywhere within the waters of Puerto Rico. Specifically, it provides that:

No person may cause or permit the emission of a sound either in air or in water which, at any time, for any duration, and at any frequency or range of frequencies, propagates into the Waters of Puerto Rico...a peak sound pressure level or equal to or in excess of 190 dB re 1 u-Pa, as measured at any point ...


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