ELR Citation: ELR 21142
No(s). 90-1373 (D.C. Cir. Jun 14, 1991)

The court holds that the district court properly ruled that the Federal Aviation Administration (FAA) complied with the National Environmental Policy Act (NEPA) in approving a city's plan to expand its airport into a cargo hub for an air carrier, even though the environmental impact statement (EIS) for the plan did not assess the feasibility of alternative sites that the carrier had rejected. An air cargo carrier in Fort Wayne, Indiana, decided to move its operations, and investigated 17 sites in four midwestern states. The carrier chose a Toledo airport, and the Toledo port authority applied to the FAA for permission to expand the existing airport to accommodate the carrier's cargo hub needs. The FAA subsequently reviewed the port authority's environmental assessment, prepared an EIS, and approved the planned expansion of the Toledo airport in a record of decision. A citizens' group, concerned about impacts to a Toledo city park from the planned expansion, brought a citizen suit under NEPA for review of the FAA's order approving the plan, alleging the agency violated NEPA, Council on Environmental Quality (CEQ) regulations, the Department of Transportation Act, and the Airport and Airway Improvement Act (AAIA).

The court first holds that the FAA acted reasonably in defining the purpose of its action, in eliminating alternatives that would not achieve it, and in discussing the remaining alternatives. The court notes that the goals of an action delimit the universe of the action's reasonable alternatives. Although the EIS contained other alternatives, such as having the carrier remain in Fort Wayne and expanding the Toledo airport in configurations different from that proposed, the FAA's reasoning supports its decision to evaluate only the proposed Toledo airport expansion and the "no-action" alternative. Based on Congress' expressed intent that the FAA support aspiring cargo hubs, AAIA §502(a)(7), and market-based siting of the nation's airports, in conjunction with the port authority's desire to provide economic relief, the FAA defined the goal of its action as helping to launch a new cargo hub in Toledo and in turn to fuel the Toledo economy. The only proposal that might reasonably accomplish this goal was approving the expansion of the Toledo airport as proposed. The court observes that an agency must evaluate alternative ways of achieving the agency's goals, shaped by the application at issue and by the function that the agency plays in the decisional process. Because the FAA's decision was reasonable and made under fully informed circumstances, the agency complied with NEPA.

The court next holds that, although the FAA generally fulfilled its responsibilities under CEQ regulations, the agency violated the regulations by failing to choose the consultant that prepared the EIS and by not requiring the consultant to execute an appropriate disclosure statement, from which the agency could assess whether a conflict of interest existed. Although the Environmental Protection Agency (EPA) criticized the FAA's original choice of methods for assessing the noise impacts attendant with the proposed plan, the rule of reason in this area of scientific expertise requires deference to the agency, and the FAA's rejection of EPA's criticism was not capricious, nor were the factual conclusions that followed. A lead agency does not have to follow EPA's comments slavishly—it only has to take them seriously. However, once the FAA decided not to prepare the EIS directly, it was obligated to pick the consultant itself and not to delegate the responsibility. Since the evidence reveals that the consultant was selected by the port authority, the FAA violated CEQ regulations. However, this violation is harmless and insufficient to invalidate the EIS because it did not compromise the objectivity and integrity of the NEPA process. The court thus orders the FAA to have the consultant execute an appropriate disclosure statement.

Turning to the alleged violation of the Department of Transportation Act, the court holds that although the FAA never specified the transportation goal of the carrier's proposed cargo hub in Toledo as required under §4(f), the FAA reasonably indicated that this goal was to provide Toledo with a modern, effective cargo hub. Further, under §4(f), the Secretary of Transportation may not approve a project requiring the use of a park unless it is determined that no prudent and feasible alternative exists and that the project includes all possible planning to minimize harm to the park. The court observes that it was enough for the agency to find that the Fort Wayne hub would not fulfill the transportation goals of the project, making that alternative imprudent and the FAA's decision to choose the alternative that would impact the park reasonable. Moreover, the FAA provided reasonable mitigation measures in its order to protect park values, thus complying with §4(f)(2)'s requirement that all possible planning be taken to minimize harm to the park.

The court next holds that the FAA did not violate AAIA §509(b)(5) in approving the Toledo expansion project. The FAA, under §509(b)(5), may not approve a project that harms the environment, unless the agency first determines that no feasible and prudent alternative exists and that all reasonable steps have been taken to minimize the adverse effect. While Fort Wayne may have been a feasible alternative to Toledo, it was an imprudent one because the goal of fueling Toledo's economy and creating a transportation hub in Toledo would have been frustrated. Since the court already determined that the FAA did not violate §4(f)(1) of the Department of Transportation Act, the same conclusion is required under the AAIA. The court observes that when the FAA does not have to implement a particular plan under §4(f)(2) of the Transportation Act, it is also spared from having to implement that plan under AAIA §509(b)(5). Further, the court holds that §509(b)(5) does not order agencies to take all steps to minimize environmental trauma, just all reasonable ones, which the FAA has done.

A dissenting judge would hold that the FAA violated NEPA by refusing to inquire into the feasibility of sites rejected by the carrier and by not preparing a detailed statement of alternatives to the proposed action. By allowing the FAA to abandon its duty to determine for itself what alternatives are reasonably available, the majority establishes a precedent that will permit an applicant (the port authority) and a third-party beneficiary of the federal action (the carrier) to define the limits of the EIS inquiry based on the demands that defined the project, and thus frustrates the mandatory consideration of reasonable alternatives, which is a principal safeguard of the NEPA process.

Counsel for Petitioners
Bruce J. Terris, James M. Hecker
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005-4632
(202) 682-2100

Counsel for Respondents
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BUCKLEY, WILLIAMS, and THOMAS, Circuit Judges.