NEPA Issues

Traffic Forecasts. FAA determined that airspace redesign, which increases throughput but not airport capacity, “does not induce significant enough additional demand to warrant modeling.” The plaintiffs argued that this finding was contradicted by evidence in the record. The court upheld FAA’s decision, finding that the plaintiffs had shown “nothing more than the possibility of another reasonable view.”

Model Accuracy. The plaintiffs argued that the air traffic forecasts were flawed because the model’s estimation of existing (2006) air traffic at Newark airport was 14% higher than actual air traffic at that airport. The court accepted FAA’s determination that the forecast, although not perfect, still “capture[d] the general flow and magnitude of the traffic in a way that can show differences among the proposed alternatives.”

Forecast Years. The plaintiffs argued that the FAA should have forecast the impact of future traffic in additional future years, beyond the time horizon of the forecasts in the EIS. The court noted that FAA’s NEPA guidance only requires consideration of “appropriate” forecast years, and concluded that FAA’s selection of a forecast year was not arbitrary.

Supplemental EIS. The plaintiffs argued that a supplemental EIS was required because, after the DEIS was issued, the FAA changed the proposed action to include additional flights over a state park. The FAA explained that the change essentially involved restoring flight paths that existed under the No Action condition, which itself had been studied in the DEIS. The court agreed with FAA that this change did not require a Supplemental EIS.

Mitigation and Monitoring. The plaintiffs argued that FAA had reneged on a commitment to require monitoring of compliance with noise mitigation commitments. The FAA had stated in response to comments on a noise mitigation report that it would require a monitoring program, but the FEIS did not propose a monitoring program, and the ROD did not require one. The court concluded that FAA had no duty under NEPA to require the monitoring program.

Section 4(f)

Consultation with State and Local Officials. The plaintiffs claimed that FAA had violated Section 4(f) by failing to consult with all State and local park officials during the development of Section 4(f) documentation. The court rejected this argument because the plaintiffs had not raised it in the NEPA process.

Evaluation of 4(f) Properties. The plaintiffs also challenged the adequacy of FAA’s analysis of more than 200 potentially affected properties, arguing that a more individualized analysis was required. The court also rejected these arguments, because plaintiffs had not shown that FAA’s approach was arbitrary.

New Information in ROD. The FAA presented some noise analyses for the first time in the ROD, with regard to several Section 4(f) properties. The plaintiffs claimed that this approach violated Section 4(f) because FAA did not allow an opportunity for public comment on those analyses. The court found that, in light of FAA’s extensive public outreach and thorough analysis, FAA was not required to provide an additional opportunity for comment on those noise analyses.

Clean Air Act

Conformity Determination. The FAA determined that, because the project would reduce emissions, it qualified for a “de minimis exemption” from the air quality conformity requirements that apply to FAA actions under the Clean Air Act. Plaintiffs challenged FAA’s emissions analysis, arguing that the changes in flight paths could actually increase emissions because of changes in aircraft speed and increased emissions from ground equipment. The court found that FAA had adequately explained the basis for its emissions analysis.