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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Barnes v. FAA

Case No.

865 F.3d 1266

Court

U.S. Court of Appeals - 9th Circuit

State

Oregon

Date

8/3/2017

Project

Hillsboro Airport New Runway

Project Type

Airport

Project Description

Hillsboro Airport is located in Hillsboro, Oregon, and operated by the Port of Portland. In 2005, the Port proposed construction of a new third runway, which would be funded in part by FAA grants. The Port prepared an EA for the project, and FAA issued a FONSI in 2010. The plaintiffs filed a lawsuit challenging the EA and FONSI, and in 2011, the court held that the EA did not consider the environmental impact of increased aviation demand resulting from the new runway. On remand, the Port prepared a Supplemental EA, which predicted that the new runway would result in at most a small increase in air traffic operations and concluded that pollution from any increased traffic would be negligible. Based on the Supplemental EA, FAA issued a FONSI in 2014.

Case Summary

In their challenge to the Supplemental EA and FONSI, the plaintiffs alleged that the Supplemental EA was deficient, that FAA should have prepared an EIS, and that FAA violated the Airport and Airway Improvement Act. In 2014, the court denied the plaintiffs’ motion for a preliminary injunction to stop construction of the new runway while the lawsuit was pending. In this decision, the court ruled in favor of FAA and the Port on all of claims.

Key Holdings

NEPA

Adequacy of EA/FONSI.  The plaintiffs claimed that the Supplemental EA was deficient in several respects and thus did not constitute the “hard look” NEPA requires.  The court rejected each of the plaintiffs’ challenges to the adequacy of the EA.

Air Traffic Forecasts Methodologies.  In 2011, the court had held that the original EA did not consider the environmental impact of increased aviation demand resulting from the new runway. The Supplemental EA included three estimates of future air traffic volumes: an “Unconstrained Forecast,” which modeled air traffic without accounting for any limits due to the airport’s capacity; a “Constrained Forecast,” which modeled air traffic levels assuming the new runway would not be constructed; and a “Remand Forecast,” which took into account – as directed by the court in its remand order – the potential additional demand if the new runway were built.  The court ruled that these three forecasts adequately addressed the deficiency that it had found in the original EA. “Our primary concern in Barnes I was the original EA’s lack of a comparison of project air traffic with and without the new runway. By including, on the one hand, the Constrained Forecast, and comparing it with, on the other hand, both the Unconstrained and Remand Forecasts, the [Supplemental EA] addressed this concern two times over.”

Lead Pollution Baseline. The plaintiffs argued that the Supplemental EA was deficient because it did not assess the existing amount of lead in the soil and water near the airport or consider how lead emissions from increased air traffic would affect the accumulation of lead in soil and water near the airport. The Supplemental EA had estimated that the new runway would result in an increase of less than 4% over estimated baseline emissions levels.  The court noted that these levels were well below the threshold for which EPA regulations require a conformity determination.  Therefore, the court held that the Supplemental EA did not need to conduct additional analyses regarding baseline lead levels in soil or water.  The court explained: “If a project will have virtually no effect on the presence of a pollutant, then it would be pointless to measure or model the presence of that pollutant prior to commencing the project.”

Impacts of Lead Pollution on Children. The plaintiffs argued that the Supplemental EA failed to consider the impact that lead emissions from increased air traffic would have on children. The Supplemental EA estimated lead concentrations in the air around the airport and concluded that maximum lead concentrations would be less than half the NAAQS limit for lead.  The court explained that EPA had set the NAAQS at an acceptable level to protect sensitive populations, including children. The court ruled that it was appropriate for FAA to use the NAAQS as the level of airborne lead that is safe for children, and upheld the Supplemental EA’s conclusion that impacts of lead emissions resulting from the new runway on children would not be significant.  The court also held that the Supplemental EA adequately explained the methodologies used for evaluating impacts of lead pollution.

Water Quality.  The plaintiffs argued that the Supplemental EA did not adequately assess impacts on water quality and wetlands from increased air traffic. The court held that the Supplemental EA discussed impacts on water quality and wetlands in detail. The court explained that the Supplemental EA did not need to specifically address impacts to lead content in water because the NAAQS for lead accounts for exposure to lead through water.

Emissions Forecasting Period. The plaintiffs argued that the Supplemental EA should have published twenty years of emissions projections rather than ten years. The court explained that courts should defer to an agency’s expertise in determining the temporal scope of an EIS.

“[I]t was not arbitrary or capricious for the FAA to determine that, under NEPA, the reasonably foreseeable emission forecasting time frame for this project was five to ten years, even though it had (less precise) demand estimates available in the twenty-year time frame. That was especially true for lead emissions given that the FAA and the EPA are working to create an unleaded aviation fuel for existing piston engine aircraft by 2018.”

Unique Geographical Characteristics. The plaintiffs alleged that the new runway would have significant environmental impacts (and, therefore, that FAA should have prepared an EIS for the project) because it was located near residences. The court ruled that there was nothing unique about an airport near a residential area, and held that the runway’s location near residences did not, in itself, require FAA to prepare an EIS.

Highly Controversial Effects. The plaintiffs argued that FAA should have prepared an EIS because the effects of lead emissions from the airport were highly controversial. In particular, the plaintiffs argued that there was a substantial dispute regarding the accuracy of the Supplemental EA’s assessment of ambient lead levels. The plaintiffs referred to another airport in California that was responsible for lower lead emissions than Hillsboro but had a higher ambient lead level than the Supplemental EA attributed to Hillsboro. The court held that this difference did not support the plaintiffs’ position “because ambient lead levels are the result of emissions from all sources in a region. The non-airport lead sources near [Hillsboro] were not the same as the non-airport lead sources near the other airport.”

Airport and Airway Improvement Act.  The Airport and Airway Improvement Act requires FAA to ensure that a project is consistent with local agencies’ plans for development of the area surrounding the airport. The FONSI considered two zoning ordinances for the City of Hillsboro; a state court later invalidated those zoning ordinances. The City of Hillsboro indicated that it planned to resolve the zoning ordinances’ legal infirmities and reinstate the relevant provisions in substance. Therefore, the court ruled, the zones represented the plans of local public agencies, and it was not arbitrary or capricious for the FONSI to consider them.

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