City of Mukilteo, Washington v. Usdot , 815 F.3d 632 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF MUKILTEO, WASHINGTON, a No. 13-70385
non-charter code city; CITY OF
EDMONDS, WASHINGTON, a non-
charter code city; SAVE OUR OPINION
COMMUNITIES, a tax exempt
organization; MICHAEL MOORE, an
individual; VICTOR M. COUPEZ, an
individual,
Petitioners,
v.
U.S. DEPARTMENT OF
TRANSPORTATION; ANTHONY FOXX,
Secretary of Transportation;*
FEDERAL AVIATION
ADMINISTRATION; MICHAEL P.
HUERTA, Acting Administrator,
FAA; DAVID SUOMI, Regional
Administrator, FAA Northwest
Mountain Region,**
Respondents.
*
Anthony Foxx is substituted for Ray LaHood as Secretary of
Transportation. See Fed. R. App. P. 43(c)(2).
**
David Suomi is substituted for Kathryn Vernon as Acting Regional
Administrator, FAA Northwest Mountain Region. See Fed. R. App. P.
43(c)(2).
2 CITY OF MUKILTEO V. USDOT
On Petition for Review of an Order of the
U.S. Department of Transportation
Federal Aviation Administration
Argued June 18, 2014
Submitted October 9, 2015
Seattle, Washington
Filed March 4, 2016
Before: Diarmuid F. O’Scannlain, Marsha S. Berzon,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
SUMMARY***
Federal Aviation Administration / Environmental Law
The panel denied a petition for review challenging the
Federal Aviation Administration’s (“FAA”) decision that no
Environmental Impact Statement was necessary to commence
operating commercial passenger service at Paine Field near
Everett, Washington.
Under the National Environmental Policy Act (“NEPA”),
and its implementing regulations, the FAA was required to
analyze all “reasonably foreseeable” environmental impacts
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CITY OF MUKILTEO V. USDOT 3
of its decision to open Paine Field to commercial passenger
traffic.
The panel held that the scope of the FAA’s review was
not arbitrary and capricious. The panel further held that the
FAA’s demand-based flight operation projections for Paine
Field were neither arbitrary nor capricious. The panel also
rejected the petitioners’ contention that the FAA violated 40
C.F.R. § 1508.25, which requires agencies to consider
“connected actions” in NEPA documents, and held that it was
not arbitrary for the FAA to have included no connected
actions in the final Environmental Assessment. The panel
rejected petitioners’ bias-based arguments, and held that: the
FAA’s Finding of No Significant Impact was not
predetermined by the creation of an optimistic schedule for
completing the environmental review or statements favoring
commercial service at Paine Field; and the FAA performed its
NEPA obligations in good faith and did not prematurely
commit resources to opening the terminal.
COUNSEL
Barbara E. Lichman (argued), Buchalter Nemer, Irvine,
California, for Petitioners.
Lane N. McFadden (argued), Attorney, Environment &
Natural Resources Division; Robert G. Dreher, Acting
Assistant Attorney General, United States Department of
Justice, Washington, D.C.; Patricia A. Deem, Office of
Regional Counsel, NW Mountain Region, Federal Aviation
Administration, Seattle, Washington, for Respondents.
4 CITY OF MUKILTEO V. USDOT
OPINION
TALLMAN, Circuit Judge:
Paine Field, located in Snohomish County, Washington,
near the city of Everett, was originally constructed in 1936
when it was envisioned to become a major airport serving the
communities located north of Seattle. Over the years, it has
been used for military purposes (both during and after World
War II), and for commercial and general aviation aircraft.
Today, the Boeing Company operates its 747 aircraft
production factory at Paine Field. There are a host of related
commercial businesses which repair and service large
airplanes, providing jobs to more than 30,000 people. For
that reason, the three existing runways are as long as 9,010
feet.
Paine Field has not, however, become the hub of
commercial passenger traffic originally envisioned when it
was first built. In 2012, authorization was given to
commence service by commercial passenger carriers, starting
with permission to build a small two-gate terminal. This case
brings to our attention a longstanding public debate over the
future of the airfield.
Petitioners challenge the Federal Aviation
Administration’s (FAA) decision that no Environmental
Impact Statement (EIS) is necessary to commence operating
commercial passenger service at Paine Field. The FAA made
that decision after preparing a draft Environmental
Assessment (EA), a less robust form of environmental
review. See Earth Island Inst. v. U.S. Forest Serv., 697 F.3d
1010, 1021–22 (9th Cir. 2012). Two and a half years and
over 4,000 public comments later, the FAA published a final
CITY OF MUKILTEO V. USDOT 5
EA in September 2012. It found no significant environmental
impacts as a result of the FAA’s approval. Petitioners claim
that the FAA unreasonably restricted the scope of the EA,
failed to include connected actions as required, and
predetermined an outcome before conducting its review.
We heard argument on this appeal in June of 2014.
Shortly thereafter, the parties requested that we stay this
action because, for lack of funding, it appeared unlikely that
development would proceed. Construction of the passenger
terminal was indefinitely delayed after Snohomish County,
which owns and operates Paine Field, decided it would not
fund the three million dollars needed to construct a building
that could handle passengers and their baggage. At the time,
no one else was willing to step forward with the money, even
though Alaska Airlines, through its subsidiary Horizon Air,
and Allegiant Airlines had expressed an interest in providing
service in and out of Paine Field if adequate facilities were
made available.1
After argument, we stayed the proceeding and requested
interim status reports every six months. Based on the
Respondents’ September 2015 undisputed assurances that
construction is now imminent, we reinstated this case and
now reach the merits of the petition.
We have jurisdiction over this appeal under 49 U.S.C.
§ 46110(a). We have reviewed the record compiled by the
1
It appears Horizon Air and Allegiant Airlines may no longer be
interested in providing service at Paine Field. The government has
represented, however, that there is no reason to believe that the new
commercial service proposed at Paine Field would involve a different
number of flight operations than provided for in the original proposal.
6 CITY OF MUKILTEO V. USDOT
agency in support of its decision. We hold that the scope of
the FAA’s analysis was not arbitrary and capricious; we
recognize that under the enabling act that created it, the FAA
is allowed to express a preference for a certain outcome; and
we deny the petition for review and uphold the FAA’s
decision to permit commercial passenger operations to begin
at Paine Field once the terminal is built.
I
Petitioners make several arguments about the scope of the
FAA’s review, essentially claiming that the FAA wrongly
failed to analyze what would happen if more airlines followed
the first two proposed airlines into Paine Field. Under the
National Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4321-4370h, and its implementing regulations, the FAA
was required to analyze all “reasonably foreseeable”
environmental impacts of its decision to open Paine Field to
commercial passenger traffic. See 40 C.F.R. § 1508.9
(requiring EAs to analyze environmental impacts of the
proposed action); Id. at § 1508.8(b) (equating “impact” with
“effect” and defining “indirect effects” as those that are
“reasonably foreseeable”); Id. at § 1508.7 (defining
“cumulative impacts” as those which result from the addition
of impacts from current and past actions to those of
“reasonably foreseeable” future actions). Similarly, the Clean
Air Act, 42 U.S.C. §§ 7401-7671, and related federal
regulations also require the FAA to analyze “reasonably
foreseeable” emissions resulting from its action. See 40
C.F.R. § 93.153(b) (requiring agencies to analyze indirect and
direct emissions); Id. at § 93.152 (defining “indirect
emissions” as those that are, among other things, “reasonably
foreseeable”).
CITY OF MUKILTEO V. USDOT 7
The Supreme Court has emphasized that NEPA only
“guarantees a particular procedure, not a particular result”
and “a person with standing who is injured by a failure to
comply with the NEPA procedure may complain of that
failure at the time the failure takes place, for the claim can
never get riper.” Ohio Forestry Ass’n, Inc. v. Sierra Club,
523 U.S. 726, 737 (1998). Accordingly, when reviewing
agency decisions under NEPA, the starting point is the
administrative record. Animal Def. Council v. Hodel,
840 F.2d 1432, 1436 (9th Cir. 1988), amended, 867 F.2d
1244 (9th Cir. 1989). Our task is to determine whether the
agency made an arbitrary and capricious decision based on
that record. Id.
Here, the FAA based its flight operation projections on
demand and determined that the only additional, and
reasonably foreseeable, flights were those initially proposed
by two airlines, amounting to approximately twenty-two
operations2 per day. Those airlines proposed to employ
smaller aircraft with a capacity of up to 150 passengers. In
contrast, the projections touted by petitioners were based
solely on the airport’s maximum capacity and do not take into
account actual historical demand. While it is true that we do
not have the most current projections before us, that data is
not necessary to determine whether the FAA based its 2012
decision on reasonable grounds. Further, the ongoing validity
of that 2012 decision is unchallenged. The FAA claims that
2
An “[a]ir carrier operation” is defined as a single takeoff or landing.
See 14 C.F.R. § 139.5. Historical data shows that Paine Field peaked in
air carrier operations around the year 2000. That year, Paine saw a total
of 213,291 “operations.” More recently, operations declined to 117,104
operations per year in 2011. Thus, adding by 2018 approximately 8,340
operations per year from commercial passenger operators will leave the
overall airport operations within the level of historic variation.
8 CITY OF MUKILTEO V. USDOT
the 2012 finding of no significant impact (FONSI) is still
valid because Propeller Air, Inc., the new outside investor,
now plans to build “a terminal facility consistent with that
evaluated in the Final EA,” and that the number of operations
will be similar. Petitioners submitted nothing to challenge
that statement.
The final EA evaluated four proposed FAA actions.3 The
FAA must still take at least one of those original four
actions—amending Paine Field’s Part 139 Certificate—to
allow commercial passenger operations. Given that the major
action4 analyzed in the original EA is now likely to occur, and
the FAA maintains that it will occur “consistent” with the
original plan, we evaluate the 2012 FONSI based on the
existing administrative record.
Petitioners do not contest the FAA’s claim that the
projections regarding the number of air carrier operations in
the FONSI are still consistent with the current terminal
construction efforts, despite being given the opportunity to do
3
The four actions were: (1) amending Paine Field’s Part 139 Certificate
to allow it to host commercial passenger service; (2) amending the Part
119 Specifications for Horizon to allow flights in and out of Paine;
(3) amending the Part 119 Specifications for Allegiant to allow flights in
and out of Paine; and (4) determining whether Snohomish County was
eligible to receive a federal grant to defray the cost of expanding and
updating the existing terminal. Only action (1) is challenged here.
4
According to Petitioners, this, and the construction of a new terminal,
are the FAA actions that they really seek to challenge. In a letter
submitted to us on May 20, 2014, the Petitioners said the “cause of the
harm that Petitioners allege and from which they require relief” is the
FAA’s “plans to turn Paine Field into a commercial airport, and expand
its facilities to accommodate commercial service,” rather than the change
in Horizon’s and Allegiant’s Part 119 Specifications.
CITY OF MUKILTEO V. USDOT 9
so. Given that we are to defer to the FAA “especially in areas
of agency expertise such as aviation forecasting,” the FAA’s
demand-based projections of approximately 8,340 operations
per year in 2018, were not arbitrary and capricious.5 Nat’l
Parks & Conservation Ass’n v. U.S. Dep’t of Transp.,
222 F.3d 677, 682 (9th Cir. 2000). We decline to apply the
less deferential standard advanced by Petitioners because this
is a factual determination dependent on agency expertise
rather than a legal determination. See San Luis Obispo
Mothers for Peace v. Nuclear Regulatory Comm’n, 449 F.3d
1016, 1028 (9th Cir. 2006).
We also reject Petitioners’ argument that amending Paine
Field’s Part 139 Certificate to allow commercial passenger
operations means that Paine Field “must allow access by all
aircraft so requesting” in the future. Petitioners have
provided no support for this come one, come all theory and
instead rely on statutory provisions that limit the ability to
take away airport access once access has been granted to a
particular airline. See 49 U.S.C. § 47524(c)(1) (providing
limits on new airport access restrictions); 49 U.S.C.
§ 41713(b)(1) (preempting state restrictions on access). The
statutes cited by the Petitioners only go into effect after
access has been authorized—meaning that the airport is open
to commercial operations generally (via the airport’s Part 139
Certificate) and the airline specifically has authority to
conduct operations at that airport (via the airline’s Part 119
Specifications). Thus, our decision today does not open the
floodgates because any future airline must still get an
amendment to its Part 119 Specifications in order to operate
5
These demand-based projections were actually quite close to the
maximum terminal capacity projections advanced by Petitioners, which
predicted 8,760 operations per year by 2018.
10 CITY OF MUKILTEO V. USDOT
out of Paine Field. The FAA, therefore, reasonably based the
EA on the number of operations Horizon and Allegiant
intended to carry out, not on the speculative number of
operations that could someday be carried out at Paine Field if
other airlines also seek an amendment to their Part 119
Specifications.
Given the existing administrative record, we hold that the
FAA’s demand-based projections were neither arbitrary nor
capricious.
II
Petitioners next argue that the FAA violated 40 C.F.R.
§ 1508.25, which requires agencies to consider “connected
actions” in NEPA documents. Connected actions are those
that are interdependent or automatically triggered by the
proposed action. See 40 C.F.R. § 1508.25. The FAA
determined that there were no connected actions for this
project, and Petitioners have failed to provide anything more
than mere speculation that the FAA’s actions now will lead
to more aircraft activity at Paine Field in the future than
covered in the EA. Thus, it was not arbitrary for the FAA to
have included no connected actions in the final EA.
III
Petitioners also argue that the FAA decided what the
result would be before performing the EA for two reasons:
(1) the FAA made statements favoring passenger service at
Paine Field; and (2) the FAA gave a schedule to the
consulting firm that prepared the EA which included the date
on which a FONSI could issue. Petitioners argue this
schedule and the FAA’s statements show that the FAA
CITY OF MUKILTEO V. USDOT 11
decided to issue a FONSI before even starting the
environmental review process. We reject both of these bias-
based arguments.
Petitioners’ first argument, that the FAA favored
commercial service, is easily rejected because NEPA does not
prohibit agencies from having or expressing a favored
outcome. Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.
2000). Agencies are required only to conduct the required
environmental review “objectively and in good faith,” rather
than as “subterfuge to rationalize a decision already made.”
Id. at 1142. Indeed, the enabling legislation that created the
FAA includes an express congressional directive that the
agency shall promote and encourage the development of
commercial aviation throughout the United States. See
Federal Aviation Act of 1958, Pub. L. No. 85-726, §§ 102-
103, 72 Stat. 731, 740 (later recodified and repealed)
(explaining that the FAA is charged with “[t]he promotion,
encouragement, and development of civil aeronautics”). The
FAA acted well within the bounds of NEPA by advocating
for commercial service at Paine Field.
Petitioners’ second argument, based on the FAA giving
the EA contractor a schedule which included the date a
FONSI could issue, is also without merit. As the FAA points
out, approving a schedule which included the date a FONSI
could issue did not obligate the FAA to reach a Finding of No
Significant Impact. The FAA simply identified its preferred
outcome and laid out an optimistic timetable for achieving
that outcome. This is consistent with regulations that actually
encourage the FAA to identify a preferred alternative and
encourage the FAA to set time limits during the
environmental review process. See 40 C.F.R. § 1501.8
12 CITY OF MUKILTEO V. USDOT
(encouraging time limits); 40 C.F.R. § 1502.14(e)
(encouraging listing a preferred alternative).
As the FONSI at issue in this case states, the FAA did a
“careful and thorough” review of the final EA before issuing
its finding. Because the FAA reserved the “absolute right” to
determine whether a FONSI would issue or not, creating this
tentative schedule did not violate NEPA. See Friends of
Southeast’s Future v. Morrison, 153 F.3d 1059, 1063–65 (9th
Cir. 1998) (holding that tentative timber cutting schedule
released before EIS did not violate NEPA).
In short, the FAA’s Finding of No Significant Impact was
not predetermined by the creation of an optimistic schedule
for completing the environmental review or statements
favoring commercial service at Paine Field. The FAA
performed its NEPA obligations in good faith and did not
prematurely commit resources to opening the terminal. The
Petitioners’ bias arguments fail.
IV
We emphasize that we base our decision today on the
current administrative record. So far as that record shows, the
only changes in the status quo since the FAA issued its 2012
decision is that a private entity, Propeller Air, Inc., has now
stepped forward to pay for building the small passenger
terminal which the FAA has previously approved, and that
the airlines likely to use the terminal may change. These
changes are not enough to warrant a supplemental EA, as
neither of these changes, in themselves, will necessarily alter
the environmental impact. See Great Old Broads for
Wilderness v. Kimbell, 709 F.3d 836, 854 (9th Cir. 2013)
(holding that supplementation is not required when the final
CITY OF MUKILTEO V. USDOT 13
project is a “minor variation” of one of the alternatives
discussed in the NEPA document); see also FAA Order
1050.1E (Change One) ¶ 402b(1) (requiring the FAA to
supplement an EA only if “significant changes” have been
made to the project).
Practical concerns also weigh against requiring the FAA
to reevaluate or supplement the EA at this time. As
previously discussed, any airline wishing to fly out of Paine
Field, besides Horizon or Allegiant, needs to request access
from the FAA and an amendment to their Part 119
Specifications, potentially triggering another round of
environmental assessment subject to scrutiny under NEPA.
We do not prejudice Petitioners by deciding this case on the
current record because if they want post-2012 facts reviewed,
the Petitioners can simply challenge the FAA’s future actions
when further expansion is sought. But on this record we
cannot say the FAA’s decision to permit limited commercial
passenger operations to begin at Paine Field without a full
environmental impact statement was arbitrary and capricious.
PETITION FOR REVIEW DENIED.