Case Law Updates on the Environment (CLUE)
Case Law Update Details
City of Dania Beach v. FAA
U.S. Court of Appeals - D.C. Circuit
Ft. Lauderdale Runway Extension
This project involved the proposed extension of a runway at the Fort Lauderdale-Hollywood International Airport in Broward County, Florida. The County, which owned the airport, proposed to extend one runway and close another, in order to expand the capacity of the airport and thereby reduce congestion. The County applied to the FAA for grant funding and for other approvals needed to begin construction. The FAA prepared an EIS, which considered several alternatives, and selected Alternative B1b, which included the County's proposed runway extension. The cities of Dania Beach and Hollywood supported a different alternative, known as Alternative C1, which involved building a new runway north of the existing runways, rather than extending an existing runway. Alternative C1 would, among other things, avoid a neighborhood park known as "Brooks Park." On January 9, 2009, the FAA issued a ROD approving Alternative B1b.
The cities filed a lawsuit challenging the FAA's approval of Alternative B1b. The lawsuit was filed directly in the U.S. Court of Appeals for the D.C. Circuit, which has jurisdiction to hear challenges to FAA's decisions. The lawsuit was based on alleged violations of (1) a provision in the Airport and Airways Improvement Act ("AAIA") that requires a finding of "no possible and prudent alternative" when an airport project is shown to have certain types of environmental impacts; (2) Section 4(f) of the USDOT Act; and (3) Executive Order 11990, which requires a finding of "no practicable alternative" for federal projects that involve impacts to wetlands. The court ruled in favor of FAA on all issues.
Relationship between Section 4(f) and AAIA. The first issue considered by the court was whether the term "no possible and prudent alternative" in the AAIA had the same meaning as the phrase "no prudent and feasible alternative" in Section 4(f), or whether the AAIA standard is somewhat less demanding, as the FAA argued in this case. Specifically, the court focused on the meaning of the word "prudent," which was used in both statutes. The court noted that FAA's Order 5050.4B, which contains the agency's environmental review procedures, "does not equate the two" - nor did the Order explicitly distinguish the two standards. In its brief in this litigation, the FAA offered an interpretation of the AAIA standard that was "distinctly laxer" than the Section 4(f) standard. The FAA argued that a less stringent standard of protection is appropriate under the AAIA because the AAIA protects a much wider range of resources than Section 4(f). The court deferred to the agency's interpretation of its regulations, even though the interpretation had not been explicitly articulated by the agency itself outside of litigation. Based on this interpretation, the court found that FAA had properly determined that Alternative C1 (which the cities preferred) was not prudent because, while it had somewhat lower impacts, it provided far lower transportation benefits.
Section 4(f) Status. The second issue considered by the court was whether FAA had properly determined that Brooks Park was not protected by Section 4(f). The "park" in question was an area adjacent to the airport, which was used primarily for airplane-watching. The land was owned by the City of Dania Beach until 1997, when the City sold it to the County, which changed the land's designation from park to transportation. The cities cited FAA's Order 5050.4B, which stated that a change in designation from park to non-park status should be disregarded if that change is made "in anticipation of a request for FAA approval." But the court found that the area never qualified for Section 4(f) protection in the first place: "The evidence in the record supports the FAA's conclusion that the land was never a Section 4(f) resource. The county as its owner never considered the land to be a park." Therefore, the court upheld the FAA's conclusion that Brooks Park was not a Section 4(f) property.
Executive Order 11990
"Finding of No Practicable Alternative". Executive Order 11990 requires a "finding of no practicable alternative" when a federal agency proposed to approve a project that has impacts to wetlands. The FAA made this finding for Alternative B1b, and the cities challenged the finding as arbitrary. The court noted that, in a previous case, the U.S. Court of Appeals for the 9th Circuit had held that the "no practicable alternative" standard under E.O. 11990 is "less prohibitive and contemplates more balancing of other factors" than the standard under Section 4(f). The court agreed with that interpretation, and upheld the FAA's determination that Alternative C1 was not practicable, mainly because it would have resulted in longer delays and greater safety concerns.
Supplementation of Administrative Record. The cities requested that the court supplement the FAA's administrative record by considering three draft EISs that were prepared during an earlier NEPA process for the proposed expansion of the airport. The cities argued that, in these previous studies, the FAA had considered Brooks Park to be a Section 4(f) resource, and also claimed that these studies would show that FAA had exaggerated the problems with Alternative C1. The court held that the cities had not adequately justified their request for "such a massive inflation of the record" and denied the motion to consider these previous studies as part of the record in this case.