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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

NRDC v FAA

Case No.

564 F.3d 549

Court

U.S. Court of Appeals - 2nd Circuit

State

Florida

Date

5/1/2009

Project

Panama City Airport

Project Type

Airport

Project Description

This project involves a proposal to close the existing airport at Panama City, Florida, and to construct a new airport in western Bay County (the “West Bay Site”). The project sponsor was the Panama City-Bay County Airport and Industrial District, a public agency that owns and operates the existing airport. The project sponsor proposed to build the new airport on land donated by a private developer for purposes of the new airport. The donation was contingent on the sponsor's agreement to locate the airport within certain boundaries and on FAA's approval of funds for the airport's construction. The donated site included extensive wetlands and endangered species habitat. The FAA estimated that airport-related development over the next 50 years at the site would impact more than 1,500 acres of wetlands. The FAA prepared an EIS for the project

Case Summary

The plaintiffs challenged the FAA's approval of the new airport, alleging violations of NEPA and the Airport and Airway Improvement Act (AAIA). They alleged NEPA violations in three areas: (1) range of alternatives, (2) indirect and cumulative impacts, and (3) supplemental EIS.

Key Holdings

NEPA

Range of Alternatives.  The FAA considered two sets of alternatives: improvements at the existing airport, and improvements at the donated site.  The alternatives involved varying runway configurations and safety area expansions at the two sites.  They excluded alternatives that would be located at other sites, and also excluded alternatives that would involve fill in the adjacent Goose Bayou (because the Florida Department of Environmental Protection deemed such impacts to be unacceptable).  The court upheld FAA's range of alternatives. 

  • "Thus, the FAA reasonably concluded that projects affecting Goose Bayou did not present workable alternatives because they were unlikely to secure permit approval from the Florida DEP."
  • "[W]e reject petitioners' contention that the FAA arbitrarily limited the geographic scope of its alternatives analysis to Bay County. Petitioners did not identify alternative sites outside Bay County in their comments on the agency's draft EIS. Moreover, the FAA did in fact consider an alternative occupying part of Gulf County, but reasonably concluded that it was located too far from the “primary market base” to constitute a reasonable option."

Connected Actions.  The plaintiffs argued that two major highway construction projects, both of which would connect to the airport, should have been considered as connected actions.  The EIS did not identify any new highway construction in the project area, except for turn lanes on an existing road.  Six months later, a local agency issued a transportation plans that included the two new roads connecting to the airport.  The court found that FAA had no obligation to address those road projects in its EIS because (1) there was no evidence that FAA had "actual notice" of the road projects at the time the ROD was issued and (2) the plaintiffs themselves never submitted any comments to FAA during the NEPA process asking that the road projects be considered as connected actions in the EIS. 

Induced Growth.  The plaintiffs argued that the indirect effects analysis was inadequate because it failed to consider he impacts of three million square feet of commercial and residential development that would be induced by the new airport. The court found that the EIS actually did consider the effects of induced growth, by including a calculation of the acreage of airport-related development that was expected to occur and estimating the acreage of wetlands that would be affected by that growth.  The plaintiffs contended that the flaw in FAA's analysis was that if considered indirect effects together with cumulative impacts; even though EPA had also recommended separating indirect and cumulative effects analyses, the court found that it was acceptable to combine these two analyses.  

  • "Even if the FEIS could have been improved by analyzing induced impacts separately from cumulative impacts, see Letter from Heinz J. Muller, EPA, to Virginia Lane, FAA, at 8 (June 29, 2006) (commenting to that effect), NEPA does not require separate analyses. NEPA requires only that the different types of impacts be considered, which the FAA did."

Boundary for Cumulative Impacts Analysis.  The plaintiffs alleged that FAA arbitrarily limited the geographic scope of its cumulative impacts analysis to Bay County, failing to consider cumulative impacts in adjacent counties.  The court found that the FAA adequately explained the reasons for the geographic scope of its cumulative impacts analysis:

  • "Petitioners further allege that the agency improperly omitted from its analysis the cumulative impact of the proposed airport on surrounding Walton, Washington, Jackson, Calhoun, and Gulf counties. We disagree. The FAA developed 'cumulative impact study areas' based on a consideration of drainage basins, the Sector Plan boundaries, census boundaries, noise contours, drive time contours, and consultation with other agencies. This explanation is sufficient for us to conclude that its delineation of the cumulative impact study areas was not arbitrary or capricious."

Mitigation Measures.  The plaintiffs argued that the EIS mischaracterized the mitigation measures as conferring benefits, rather than offsetting the damage that the project would cause.  They also argued that the EIS should have acknowledged that mitigation measures frequently fail.  The court rejected these arguments:

  • "To the extent that petitioners seek to engage us in a battle of experts regarding the likelihood of success of the Sponsor's mitigation program, we decline to entertain their arguments, for our role is not to resolve scientific disputes.  Rather, we examine whether the EIS adequately discussed mitigation efforts as required by NEPA.  Because the FEIS here at issue includes a thorough discussion of mitigation measures, see, e.g., FEIS app. R, we conclude that it complies with NEPA."

Supplemental EIS.  After the ROD was issued, an endangered species - the ivory-billed woodpecker - was identified in the project area.  FAA prepared a Biological Assessment, which concluded that the project may affect, but was not likely to adversely affect, the endangered species.  The USFWS concurred in that finding.  Based on that finding, FAA determined that the discovery of this species did not give rise to the need for a supplemental EIS.  The court concluded that FAA had adequately considered impacts to the species and that a supplemental EIS was not required. 

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