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Case Law Updates on the Environment (CLUE)
Case Law Update Details
Case Title
Kaufmann v. FAA
Case No.
722 Fed. App’x 438
Court
U.S. Court of Appeals - 6th Circuit
Project
Bowman Field Safety Program
Project Type
Airport
Project Description
The Louisville Regional Airport Authority (LRAA) undertook a project to remove or trim trees near Bowman Field, a general aviation airport near Louisville, Kentucky. The LRAA undertook the project in response to an FAA order that prohibited certain nighttime landings due to the presence of nearby trees. The LRAA received a grant from the FAA to prepare planning documents for the project. However, the FAA grant did not commit the FAA to fund the project itself, and the LRAA decided to complete the project without federal funding. The project did not require federal approval or any federal permits. In 2016, the FAA issued an EA and FONSI/ROD. The ROD did not approve any federal funding for the project, but merely provided the environmental findings necessary for the LRAA to seek federal funding in the future.
Case Summary
The plaintiffs sued the FAA and the LRAA, alleging violations of NEPA, the NHPA, and Section 4(f). The plaintiffs sought an order setting aside the ROD, remanding the case to the FAA, and enjoining the LRAA from trimming or removing trees. The court ruled that the plaintiffs did not have standing to seek a remand of the ROD to the FAA because the project was not dependent on the ROD or any federal funding or approval. The court also ruled that the plaintiffs could not sue the LRAA (a non-federal agency) for violating NEPA, the NHPA, or Section 4(f). The court held that federal funding to assist the LRAA with preparing planning documents for the project was not enough to subject the project to NEPA, the NHPA, and Section 4(f). The court dismissed the case.
Key Holdings
Standing
The court ruled that the plaintiffs did not have standing to seek a remand of the ROD to the FAA. To demonstrate standing, a litigant must show that (1) it has suffered a concrete and actual or imminent injury, (2) the injury is caused by the defendant’s conduct, and (3) the requested relief will remedy the injury. Here, the court determined that the plaintiff did not satisfy the third element because the ROD did not approve any funding or permits for the project, and the LRAA would carry out the project without federal funding:
“Indeed, regardless of the outcome of this case, the LRAA has committed to trimming and removing trees under the Safety Program using its state powers and state funding. Federal approval is not required. Consequently, Petitioners have not shown a ‘substantial likelihood’ that the requested relief—remand to the FAA—will ‘remedy the alleged injury in fact’—tree trimming and removal.”
Application of Federal Laws to Non-Federal Project
The court ruled that the plaintiffs could not sue the LRAA for violations of NEPA, the NHPA, and Section 4(f). The court explained that these statutes generally apply only to federal agencies, but noted that there are two exceptions that allow NEPA claims to be brought against non-federal actors: (1) when the non-federal project restricts or limits a federal agency’s choice of reasonable alternatives, or (2) when a federal agency has authority to exercise sufficient control or responsibility over the project so as to influence its outcome. The court held that neither exception applied.
First, the court determined that the project “would not restrict or limit the FAA’s decision-making process in any related federal project, because there is no related federal project. The only project in this case is the Safety Program itself,” which was undertaken solely by the LRAA. The court explained that the project was not “federalized” merely because it was undertaken in response to an FAA order that prohibited certain landings at the airport until the LRAA trimmed or removed hazardous trees.
Second, the court determined that the FAA had no control over the project, because it was carried out solely by the LRAA using its state powers and state funding. The FAA’s grant of federal funds for preliminary planning did not render the project a federally funded transportation project.
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