Case Law Updates on the Environment (CLUE)
Case Law Update Details
City of Phoenix v. Huerta
U.S. Court of Appeals - D.C. Circuit
PHX Airport Flight Paths
The case involved new flight routes for planes at Phoenix Sky Harbor International Airport. FAA determined that the new flight paths qualified for a categorical exclusion from environmental review. In making this determination, the FAA consulted with a “low-level” official in the City of Phoenix’s aviation department, but did not conduct a public involvement process. FAA also consulted with the State Historic Preservation Officer (“SHPO”) regarding the effects of the new flight paths on historic neighborhoods; the SHPO concurred in FAA’s determination that noise levels would not have no adverse effect on those neighborhoods. FAA published the new flight routes on September 18, 2014, and made them effective immediately. In response to a number of complaints regarding noise from the new flight routes, FAA reconvened a working group to evaluate alternative routes and held meetings with the City of Phoenix, but FAA ultimately did not reinstate the original flight routes
The City of Phoenix and a historic neighborhood association filed petitions for review with the U.S. Court of Appeals for the D.C. Circuit in June and July 2015. The plaintiffs alleged violations of NHPA, NEPA, and Section 4(f) of the Department of Transportation Act. The court held that, while the plaintiffs filed the lawsuits after the 60-day statute of limitations period for challenging FAA orders, there were reasonable grounds to excuse their delay. On the merits, the court ruled in favor of the plaintiffs on their NHPA, NEPA, and Section 4(f) claims, and granted their petitions to vacate FAA’s order implementing the new flight routes.
Statute of Limitations. There is a 60-day statute of limitations to file a petition for review of an FAA order, unless there are “reasonable grounds” for not filing within 60 days. It was undisputed that the plaintiffs filed their lawsuit beyond the 60-day statute of limitations. The court held, however, that there were reasonable grounds for not filing the lawsuit within 60 days. The court noted that after FAA published the flight routes, FAA had repeatedly communicated (in meetings and letters) that it was open to addressing concerns regarding noise.
“This pattern would certainly have led reasonable observers to think the FAA might fix the noise problem without being forced to do so by a court. And given the FAA’s serial promises, petitioning for review soon after the September order might have shut down the dialogue between the petitioners and the agency. We do not punish the petitioners for treating litigation as a last rather than first resort when an agency behaves as the FAA did here. While we rarely find a reasonable-grounds exception, this is such a rare case.”
Section 106 of the NHPA
Consultation Procedures. The court ruled that FAA did not fulfill its obligation to consult with the City of Phoenix. The court explained that FAA had consulted “only low-level employees in the City’s Aviation Department, whom the City had never designated as its representatives.” The court explained that NHPA regulations required FAA to ask local governments who their authorized representatives are, which FAA did not do. Moreover, the court found that FAA did not provide the City with notice and documentation of its finding of no adverse impact, which “denied the City its right to participate in the process and object to the FAA’s findings.” The court also faulted FAA for not providing the public with information about the undertaking or allowing an opportunity for public comment.
Categorical Exclusion – Public Controversy. FAA had determined that the new flight routes were categorically excluded from environmental review. FAA’s noise modeling predicted that historic properties and parks would experience an increase in noise large enough to be potentially controversial, but FAA concluded that the noise levels would not have a significant environmental impact under the agency’s criteria. In making that determination, FAA had found that the new flight routes were not likely to be “highly controversial on environmental grounds.” The court ruled that this finding was arbitrary and capricious for several reasons.
First, the court held that “FAA’s determination was arbitrary in light of the agency’s admitted failure to notify local citizens and community leaders of the proposed new routes before they went into effect. This failure made it impossible for FAA to take into account opposition on environmental grounds” by state and local governments and members of the public.
Second, the court noted that the new flight routes would result in a 300% increase in the number of aircraft flying over 25 historic neighborhoods and buildings and 19 public parks, with 85% of the new flight traffic coming from jets. The court held that it was “common sense” that associated noise impacts could be highly controversial. “The idea that a change with these effects would not be highly controversial is so implausible that it could not reflect reasoned decisionmaking.”
Third, the court noted that FAA had reached opposite determinations in materially identical cases involving the potential for highly controversial noise impacts, but FAA did not explain why it was changing its position with the Phoenix airport. In assessing proposed route changes at other airports, FAA’s usual practice was to determine that a proposal would be highly controversial if it would increase sound levels by 5 or more decibels in an area already experiencing average levels of 45–60 decibels. With the Phoenix airport, however, FAA reached the opposite determination without any explanation. The court ruled that “the agency acted arbitrarily in departing from its usual determinations regarding when a projected noise increase is likely to be highly controversial.”
Finally, the court noted that FAA should have anticipated that the new flight routes would be highly controversial because the original routes had been in place for a long time, and the City of Phoenix had relied on the old routes in setting its zoning policy to minimize impact on residential areas.
Consultation Procedures. The City of Phoenix alleged that FAA violated Section 4(f) by not consulting with proper City officials about the proposed flight routes. The court explained that although FAA had consulted low-level employees in the City’s Aviation Department, those employees lacked authority to speak on behalf of the City regarding the proposed flight routes, nor did they represent all local officials with jurisdiction over Section 4(f) resources. The court also noted that FAA did not cite any evidence that it had consulted with City officials specifically regarding historic sites and public parks protected by Section 4(f). Therefore, the court concluded that FAA did not satisfy its Section 4(f) consultation requirements.
“[I]t was unreasonable for the agency simply to assume that low-level Aviation Department employees had jurisdiction over the historic sites and public parks protected by section 4(f), much less that these employees (along with the State Historic Preservation Officer) represented all the local officials with such jurisdiction, as the agency’s consultation duties required.”
Constructive Use. FAA determined that a quiet setting was not a recognized purpose of the historic homes, neighborhoods, and sites that would be affected by the new flight routes, and therefore concluded that increased noise would not “substantially impair” the historic properties, and this would not result in a constructive use under Section 4(f). The court held that FAA’s conclusion was arbitrary because FAA did not have enough information to determine if the historic properties were generally recognized as quiet settings. Although FAA argued that the historic sites were not generally recognized as quiet settings because of their urban location, the court noted that “even in the heart of a city, some neighborhoods might be recognized as quiet oases.”