ELR Citation: ELR 20787
No(s). 98-71268 (9th Cir. Jul 26, 2000)

The court holds that the Federal Aviation Administration (FAA) properly analyzed under the National Environmental Policy Act (NEPA) the impact of the Kahului Airport expansion on the introduction of alien species into Maui. The court first holds that the environmental impact statement (EIS) contains the requisite hard look at the alien species problem and, therefore, satisfies NEPA. The FAA's EIS predicts a modest increase in international arrivals. However, even a modest increase is not assured because airport demand projections are little more than guesses that depend on economic conditions, airline routing decisions, and other variables. Moreover, evidence in the EIS demonstrates that international arrivals could grow even if the runway is not extended. The EIS also contains extensive discussion of the fact that the alien species impact of the project is highly uncertain. Of the relatively small influx of animals, insects, and plants resulting from foreign flights, it is impossible to determine which species will be introduced at Kahului Airport, or whether they will be dangerous. Additionally, the EIS focuses on broad mitigation measures to combat all types of alien species that might arrive at Kahului Airport.

The court next holds that §4(f) of the Transportation Act does not apply because the environmental group challenging the expansion cannot demonstrate that the runway expansion will so increase the rate of alien species introduction as to substantially impair the area's economic or environmental value. The court finally holds that the project does not violate the Airport and Airway Improvement Act. The only reasonable step the environmental group identifies as missing—funding for the mitigation measures—does not have to be finalized for the FAA to approve the project.

Counsel for Petitioners
Deborah A. Sivas
Earthlaw
555 Nathan Abbott Way, Stanford CA 94305
(650) 723-0325

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

Before Nelson, J., with Fletcher, J., dissenting