A federal judge grilled lawyers for the Navy, the state of Washington and an advocacy group during a hearing Tuesday over litigation that could impact the future of EA-18G Growler aircraft at Naval Air Station Whidbey Island.

Following oral arguments over Zoom Tuesday, Judge J. Richard Creatura will rule on a merged lawsuit filed two years ago by state Attorney General Bob Ferguson and anti-noise group Citizens of Ebey’s Reserve, or COER, in U.S. District Court. The lawsuit claims that the Navy violated the National Environmental Policy Act, as well as other federal requirements, by not properly analyzing the impact an increase in Growlers will have on human health, the environment and cultural heritage.

After completing an Environmental Impact Study, or EIS, the Navy published a record of decision that increases the number of Growlers at NAS Whidbey by 36 and the number of operations at the rural Outlying Field Coupeville from 6,000 to 23,700 a year. The Navy said the field is invaluable for pilots practicing aircraft carrier landing maneuvers.

With a 200,000-page record, any decision by the judge may be many months off. Attorneys on both sides acknowledged that any changes at NAS Whidbey would be far from immediate even if the judge rules in favor of the plaintiffs.

Assistant Attorney General C.L. Junine So said the Navy did not take “a hard look” in its analyses and, therefore, flouted the very purposes of the National Environmental Policy Act, or NEPA, and the National Historic Preservation Act.

“The Navy repeatedly drew conclusions contrary to the evidence cited, applied an unjustified and irrational standard on auditory health impacts and relied on assumptions in their analysis,” she said.

David Bricklin, the attorney for COER, argued that the law requires the Navy to consider reasonable alternatives, which the Navy failed to do. He offered the alternative of moving Growlers to El Centro in California — a desert area where the environmental impacts would be far less. He said the EIS made a fleeting reference to this alternative but dismissed it without real analysis.

On the other side, Gregory Cumming, the attorney representing the Navy, argued that the lawsuit is a disagreement over policy and a battle of experts, both of which are outside the court’s purview. He said moving any Growler operations to El Centro is unrealistic and counterproductive.

Creatura directed arguments toward a handful of issues from the giant record.

The judge asked about the Navy’s use of computer modeling of noise instead of real-world monitoring, which is a point of contention in the lawsuits and within the Whidbey community. He asked the state’s attorney and COER’s attorney whether it’s within the Navy’s discretion to use modeling.

So pointed out that the Navy isn’t an expert agency on these issues, which is why it is supposed to obtain comments from agencies that are. Both the state Department of Health and the Environmental Protection Agency advised the Navy to do actual noise monitoring. In addition, the national Parks Service did monitoring that suggests the Navy’s modeling was inaccurate.

Bricklin said modeling may not be a problem if it was based on accurate information, but it’s not. He likened it to “garbage in, garbage out.”

Cumming said monitoring would serve no purpose, pointing out that the EIS isn’t an ongoing study but represents a point in time.

Creatura questioned Bricklin on whether the lawsuits are really about policy. The judge asked whether the Navy could decide, for example, that national defense considerations outweigh any impact on childhood education.

Bricklin said the Navy could legally come to that conclusion, but it must first understand the real impact — which the EIS doesn’t do.

Turning to the Navy, the judge said he was perplexed by the determination in the EIS that studies are inconclusive on how Growler noise would affect childhood learning and, therefore, the Navy didn’t consider it in making its decision.

Creatura pointed out that the Food and Drug Administration had to prove the COVID-19 vaccine is safe for kids before approving it. He questioned whether the Navy should also follow that standard.

“If it’s inconclusive then, in essence, aren’t you putting the children at risk?” he asked, suggesting the decision should be the other way around, with the Navy not moving forward if the evidence is inconclusive. He also noted that the EIS acknowledges noise causes health impacts and affects childhood learning.

Cumming countered that the Navy did analyze classroom disruptions through modeling and that this analysis complies with NEPA. He said the Navy has documented its steps to mitigate the impacts of the Growlers, such as minimizing flying on weekends or during school events, instructing pilots to use a precision landing mode that reduces noise, setting up a complaint hotline and studying technology to reduce noise.

In addition, the judge questioned why the Navy didn’t consider the impact of Growler noise on individual species but instead concluded that the noise affects all birds generally the same. Cumming cited a passage that Bricklin indicated didn’t answer his question.

If the judge rules in favor of the plaintiffs on any issue, the attorneys agreed that any remedy would not be immediate.