Safeguarding the Historic Hans v. FAA , 651 F.3d 202 ( 2011 )

United States Court of Appeals
For the First Circuit
No. 10-1972
SAFEGUARDING THE HISTORIC HANSCOM AREA'S
IRREPLACEABLE RESOURCES, INC., ET AL.,
Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent,
_________
MASSACHUSETTS PORT AUTHORITY,
Intervenor.
_________
PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL AVIATION ADMINISTRATION
Before
Torruella, Selya and Lipez, Circuit Judges.
Matthew F. Pawa, with whom Law Offices of Matthew F. Pawa,
P.C., Jonathan S. Klavens, and Klavens Law Group, P.C. were on
brief, for petitioners.
Elizabeth S. Merritt, Stephen F. Hinchman, and Law Offices of
Stephen F. Hinchman, LLC on consolidated brief for National Trust
for Historic Preservation; Representatives Markey, Tierney, and
Tsongas; Boards of Selectmen of Towns of Bedford, Concord,
Lexington, and Lincoln; Hanscom Area Towns Committee; National
Parks Conservation Association; and Friends of Minute Man National
Park, amici curiae.
Brian C. Toth, Attorney, Appellate Section, Environment &
Natural Resources Division, U.S. Department of Justice, with whom
Ignacia S. Moreno, Assistant Attorney General, John R. Donnelly,
and Lisa A. Holden were on brief, for respondent.
Martin R. Healy, with whom Michael K. Murray, Goodwin Procter
LLP, David S. Mackey, Chief Legal Counsel, and Ira M. Wallach,
Associate Chief Legal Counsel, were on brief, for intervenor.
July 12, 2011
SELYA, Circuit Judge. The area around the venerable
towns of Lexington and Concord is commonly regarded as the
birthplace of the American Revolution. The communities in that
area, now fashionable Boston suburbs, are deservedly proud of both
their storied history and their aesthetic advantages. When an
affiliated arm of the state government — the Massachusetts Port
Authority (Massport) — sought to modernize a mixed-use airport in
the vicinity, a phalanx of preservationist organizations and
concerned citizens treated the move as a call to arms. Massport
nevertheless pushed ahead with its desired project and asked the
Federal Aviation Administration (FAA) to authorize the demolition
of an existing hangar and allow the development of a state-of-the-
art fixed base operator (FBO) facility. The upshot was an epic
battle fought with statutes, regulations, legal precedents, and
expert reports.
The results of this battle are now before us by way of a
petition for judicial review of the FAA's order permitting the
project to proceed. The protagonists are ably represented, and the
petitioners have raised a gallimaufry of issues involving the
Department of Transportation Act, 49 U.S.C. § 303(c), the National
Historic Preservation Act (NHPA), 16 U.S.C. § 470f, and the
National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347.
After careful consideration of the parties' briefs and oral
arguments, helpful submissions by amici, and an amplitudinous
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administrative record, we conclude that the painstaking process
conducted by the FAA comported with its responsibilities under the
dizzying array of applicable statutes and regulations.
Accordingly, we deny the petition.
I. BACKGROUND
Laurence G. Hanscom Field (Hanscom) is a general aviation
airport located in Bedford, Massachusetts. The area teems with a
rich cornucopia of historically significant sites, including Minute
Man National Historical Park and Walden Pond (a designated national
historic landmark).
During the middle of the twentieth century, the Army Air
Corps leased and operated Hanscom. Later, the facility morphed
into a joint military and civilian operation. Among other things,
Hanscom now serves as a relief valve for Logan International
Airport (the major airport in the Boston area), allowing Logan to
concentrate on large-scale commercial flights.
Massport is an independent state authority established
under Massachusetts law, see 1956 Mass. Acts ch. 465, §§ 1-35,
which has operated Hanscom's civilian component since 1974.
Massport has intervened in these proceedings and staunchly defends
the FAA's decision to allow the requested demolition and subsequent
new construction.
The focal point of the parties' dispute is Hangar 24,
which was originally built in Georgia, shipped to Massachusetts,
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and reconstructed at Hanscom in 1948. For several decades,
Massachusetts Institute of Technology (MIT) leased the structure
and used it as a research facility. In 2001, MIT deemed it
unsuitable for that purpose. The hangar has been vacant ever
since.
Responding to a perceived demand for increased corporate
aircraft services at Hanscom, Massport issued a request for
proposals to redevelop the Hangar 24 site. In 2005, it blessed a
proposal that contemplated replacing Hangar 24 with an FBO facility
that would "provide service, maintenance, fueling, and shelter for
general aviation aircraft." Although the putative developer later
withdrew, Massport clung to the concept and proceeded with
preparations for the redevelopment of the Hangar 24 site as an FBO
facility — a facility compatible with the needs of modern-day
corporate aircraft.
Massport's proposed course of action not only required it
to jump through a long line of statutory and regulatory hoops but
also drew considerable opposition from concerned citizens and
groups. The ensuing battle was waged on a variety of fronts. In
July of 2006, a nonprofit organization, Save Our Heritage, Inc. (a
petitioner here), requested that the Massachusetts Historical
Commission (the Commission), see Mass. Gen. Laws ch. 9, §§ 26-27,
evaluate Hangar 24 for possible inclusion on the National Register
of Historic Places (the National Register). After mulling the
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matter, the Commission determined that Hangar 24 was eligible for
listing only under Criterion A (association with significant
historical events) and Criterion B (association with the lives of
historically significant persons). See 36 C.F.R. § 60.4(a), (b).
In light of this determination, the Commission asked Massport to
study the hangar's condition and to consider alternative uses,
including possible rehabilitation for occupancy by the
Massachusetts Air and Space Museum. This suggestion proved to be
a dead end; after conducting a site inspection, the museum reported
that Hangar 24 fell "far short of what would be necessary to make
the museum a viable entity."
Around the same time, Massport hired an aviation
consultant, HNTB Corporation, to prepare a condition assessment and
feasibility study for Hangar 24. HNTB documented and described the
hangar's condition, and found it "functionally obsolete" and
unsuitable for aviation use. Its report listed several
alternatives for redeveloping the site.
Federal law requires that, in order to remain eligible
for funding, an airport must maintain a current layout plan
approved by the FAA. 49 U.S.C. § 47107(a)(16)(B). In evaluating
a layout plan, "[t]he FAA's primary mission is to ensure the
safety, security, and efficiency of the National Airspace System."
Exec. Order No. 13,180, 65 Fed. Reg. 77,493, 77,493 (Dec. 11,
2000), as amended by Exec. Order No. 13,264, 67 Fed. Reg. 39,243-6-
(June 7, 2002); see also 49 U.S.C. § 47101(a). No facility that
adversely affects the safety, utility, or efficiency of the airport
can be included in such a plan. 49 U.S.C. § 47107(a)(16)(C).
The FAA became involved with the Hangar 24 project to
fulfill these responsibilities. It engaged in a consultation
process and prepared an environmental assessment (EA) effective as
of June 18, 2010. The EA addressed the potential environmental
impacts of Massport's redevelopment proposal, as well as its
effects on historic properties.
In due course, the FAA approved the demolition and
replacement of Hangar 24 as the only feasible and prudent
alternative, found that replacing it would have no adverse effect
within the meaning of the NHPA (save for the effect on Hangar 24
itself), and found no significant impact under the NEPA. The
petitioners filed a timely petition for judicial review, see 49
U.S.C. § 46110, in which they challenge the FAA's actions as
noncompliant with the Transportation Act, the NHPA, and the NEPA.
It is to these challenges that we now turn.
II. ANALYSIS
Our standard of review is familiar. We must uphold the
FAA's findings of fact as long as they are supported by substantial
evidence. See id. § 46110(c). "Substantial evidence is 'such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Penobscot Air Servs., Ltd. v. FAA, 164
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F.3d 713, 718 (1st Cir. 1999) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 (1951)); see Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 377 (1998) (explaining that
"substantial evidence" standard "gives the agency the benefit of
the doubt").
We review an agency's compliance with section 4(f) of the
Transportation Act in accordance with the Administrative Procedure
Act (APA), 5 U.S.C. §§ 551-559, 701-706. See Citizens to Pres.
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Under the
APA, we may set aside agency action if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. § 706(2)(A). The same metric governs judicial
review of agency action under both the NHPA, see Neigh. Ass'n of
the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50, 58 (1st
Cir. 2006), and the NEPA, Dep't of Transp. v. Pub. Citizen, 541
U.S. 752, 763 (2004). Agency action fails under this standard "if
the agency relied on improper factors, failed to consider pertinent
aspects of the problem, offered a rationale contradicting the
evidence before it, or reached a conclusion so implausible that it
cannot be attributed to a difference of opinion or the application
of agency expertise." Assoc'd Fisheries of Me., Inc. v. Daley, 127
F.3d 104, 109 (1st Cir. 1997).
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A. Transportation Act.
As a functional matter, section 4(f) of the
Transportation Act, which refers explicitly to the Secretary of
Transportation, authorizes federal agencies dealing with
transportation matters to approve projects that entail the use of
historically significant sites. 49 U.S.C. § 303(c). But this
authority is not unbridled. Approval may be granted in a
particular case only if two preconditions are met: "(1) there is no
prudent and feasible alternative to using that land; and (2) the
program or project includes all possible planning to minimize
harm." Id. These preconditions apply both when a proposal
involves the physical use or occupation of a protected property
thought to be historic and when a proposal involves indirect (but
meaningful) effects on historic venues. Save Our Heritage, Inc. v.
FAA, 269 F.3d 49, 58 (1st Cir. 2001).
The EA prepared in connection with Massport's proposal to
demolish Hangar 24 explicitly considered four alternative courses
of action: 1) "[d]o nothing"; 2) "[l]ocate a new hangar facility
elsewhere on the airport"; 3) "[a]daptive reuse of Hangar 24"; and
4) "[r]eplace Hangar 24 as proposed by Massport." The EA concluded
that all of these alternatives were feasible, but that only the
fourth was prudent. The petitioners dispute the FAA's
determination of what alternatives are or are not prudent. As a
fallback, they question whether the FAA has engaged in sufficiently
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thorough planning to minimize harm to historic sites. We appraise
these challenges sequentially.
1. Prudence. The doctrinal linchpin of the petitioners'
section 4(f) argument is their reading of the Supreme Court's
decision in Overton Park. In their view, Overton Park holds that,
for the purpose of section 4(f), an alternative cannot be ruled out
as imprudent absent a strong showing of aposematic conditions,
manifested by "truly unusual factors," "extraordinary" costs and
community disruption, or "unique problems." 401 U.S. at 413. The
FAA's section 4(f) analysis, the petitioners say, does not measure
up to this benchmark.
Like alchemists who would turn dross into gold, the
petitioners cherry-pick isolated phrases from the Overton Park
opinion and attempt to convert those phrases into a broad,
inflexible holding. This wordplay will not wash. The Court's
mention of "truly unusual," "extraordinary," and "unique"
circumstances was intended as a gloss on the application of section
4(f) in a particular type of situation. Those descriptive terms
were never meant to displace the statutory directive that the
agency determine whether an alternative is "prudent." See Eagle
Found., Inc. v. Dole, 813 F.2d 798, 804-05 (7th Cir. 1987); see
also Hickory Neigh. Def. League v. Skinner, 910 F.2d 159, 163 (4th
Cir. 1990) (explaining that a section 4(f) evaluation need not
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explicitly find "unique problems" when record confirms "compelling
reasons for rejecting the proposed alternatives as not prudent").
Context drives this point home. Overton Park involved a
proposal to use publicly owned parklands for highway construction.
401 U.S. at 406. The Court reasoned that the cost of using public
land will almost always be less than that of acquiring private
property for alternate routes and that, in addition, building on
public parkland will almost always prove less disruptive to the
acquiring community because homes and businesses will not be
displaced. Id. at 411-12. These verities "are common to
substantially all highway construction." Id. at 412 (emphasis
supplied). If Congress had intended cost and community disruption
"to be on an equal footing with preservation of parkland," the
Court declared, section 4(f) would have been unnecessary. Id.The explanation given by the Justices in Overton Park is
situation-specific, and comparing this case to Overton Park is like
comparing a plum to a pomegranate. The Overton Park language is
tailored to fit situations in which, from a practical standpoint,
there otherwise would be a perverse incentive in favor of using
protected land for federal transportation projects. Cf. City of
Dania Beach v. FAA, 628 F.3d 581, 587 (D.C. Cir. 2010) (noting that
Overton Park analysis was premised on public/private cost and
disruption disparities and that it is this "automatic advantage"
that calls for "exceptional agency push-back").
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Here, however, no such perverse incentive exists. All of
the feasible alternatives involve land that is already part of
Hanscom (i.e., land that is already government-owned). There is no
built-in impediment to preservation. It would, therefore, make no
sense to wrest the quoted Overton Park language from its contextual
moorings and superimpose it upon the statutory imperative. It is
the statute that ultimately controls our inquiry. See Eagle
Found., 813 F.2d at 804-05 (examining Overton Park against backdrop
of section 4(f)'s language and concluding that an agency's "reasons
for using the protected land have to be good ones, pressing ones,
well thought out").1
Let us be perfectly clear. Without question, section
4(f) imposes significant obligations upon a reviewing agency. See
Save Our Heritage, 269 F.3d at 58. But the petitioners' attempt to
festoon those obligations with magic words, selectively culled from
the Overton Park opinion, distorts the statute and overreads the
Court's teachings. As a general matter, the agency's obligations
are what the statute says they are. Thus, our focus must be on the
statute and its application to the facts at hand. See Hickory, 910
F.2d at 162-63.
1
At the expense of adding hues to a rainbow, we note that, in
compiling the EA, the FAA specifically stated that its prudence
inquiry centered on "extraordinary safety or operational problems"
(emphasis supplied). It seems to us that this reference indicates
that the agency proceeded in the spirit of Overton Park, albeit
adapting its inquiry to the vastly different circumstances before
it.
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This brings us to the substance of the petitioners'
section 4(f) challenge. The starting point is the FAA's
determination that none of the three explored alternatives to the
Massport proposal would be prudent. In the pages that follow, we
examine the three rejected alternatives one by one.2
a. Do Nothing.
The petitioners complain about the FAA's analysis of the
"do nothing" alternative. The agency rejected this alternative
because "it would not meet Massport's purpose to provide an
additional location on the airport to service, maintain, fuel, and
shelter general aviation aircraft."
"It is well settled that an alternative is not prudent if
it does not meet the transportation needs of a project." Back Bay,
463 F.3d at 65. The petitioners try to circumnavigate this
principle on the ground that Massport never established any "need"
for the Hangar 24 project. This evasion is easily thwarted.
2
The petitioners protest that the FAA incorrectly disregarded
a fourth alternative: the possibility of locating the new FBO
facility at Worcester. But this suggestion surfaced for the first
time during the comment period, and the FAA persuasively responded
that, due to the approximately 50-mile distance between Hanscom and
Worcester, the idea was "not practical." This makes eminently good
sense for two reasons. First, the articulated need for a third FBO
facility was based on data evidencing increased corporate jet use
at Hanscom specifically, not in the region generally. Second, the
record indicates that improvements to infrastructure are not
usually in themselves sufficient to attract new activity to a
particular airport. Air travel is, after all, tied clearly to
location.
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There are two existing FBO facilities at Hanscom.
Perscrutation of the record reveals appreciable support for the
proposition that a third FBO facility is needed. For example,
Massport's 2005 draft environmental status and planning report
(ESPR), heavily relied on in the EA, supplies data indicating that,
even though the total volume of operations at Hanscom decreased
between 1990 and 2005, corporate aviation grew at a rate of 4.4
percent per year.3 Indeed, corporate aviation was "the only
segment of general aviation that [was] growing at Hanscom" during
that span. The ESPR projected that this pattern of growth would
continue through 2010 and beyond. The ESPR described the
methodology underlying its projections, and Massport compared the
projections for 2005 with actual data for that year. The trend was
evident: corporate aviation was experiencing continued growth at
Hanscom, "which would increase the demand for [general aviation]
hangars and associated facilities."
The ESPR also provided background information linking
this trend to the need for a new FBO facility. Among other things,
it related that "the majority of FBO activity involves servicing
corporate general aviation activity," creating a link from its
corporate aviation growth predictions to the need for a third FBO
3
An agency is free to rely in part on relevant, previously
conducted studies when preparing an EA. See Save Our Heritage, 269
F.3d at 59; Conservation Law Found. v. Fed. Hwy. Admin., 24 F.3d
1465, 1473 n.1 (1st Cir. 1994).
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facility. The FAA built on this information, noting in the EA that
"FBO capacity is not monolithic" and that "FBOs most frequently try
to differentiate their services from those of their competitors"
by, say, specializing in servicing a particular type of aircraft.
The FAA's explanation that the apron and hangar facilities at the
two existing FBO sites "have inadequate storage capacity for larger
. . . aircraft" illustrates the pertinence of this conclusion.
In an effort to blunt the force of these data points, the
petitioners insist that general aviation operations at Hanscom are
in decline. This statistic misses the mark: the proposed FBO
facility is not tethered to an anticipated increase in general
aviation activity as a whole but, rather, to an anticipated
increase in the narrower subset of corporate jet operations. Such
an anticipated increase is adequately documented.
To say more on this point would be supererogatory. Given
the substantial evidence of a need for the Hangar 24 project, we
conclude that the FAA's rejection of the "do nothing" alternative
as imprudent was neither arbitrary nor capricious. After all,
doing nothing would fail to provide additional FBO services at
Hanscom (and, thus, would fail to meet a demonstrated need).
b. The East Ramp.
In its alternatives analysis, the FAA rejected the
possibility of locating a new FBO facility elsewhere at Hanscom.
A major drawback of this alternative is that "Hanscom Field is
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approaching build-out," leaving only the East Ramp and Hangar 24 as
available sites for general aviation improvements. As between
these two options, the FAA determined that locating the new FBO
facility on the East Ramp "would not be the most efficient use of
space" because of the ramp's distance from the terminal area and
the other two FBO facilities. Furthermore, "using the East Ramp
for the FBO function . . . would preclude this area from being
developed for general aviation aircraft hangars that are already
located in this area of the airport."
The FAA had other worries. The agency found the East
Ramp alternative plagued by access problems, because it could not
be reached without passing through a secure military facility.
Massport was wary of this potential problem and investigated
various road reconfiguration layouts that might help to alleviate
it. None of those routes provided an obvious solution; each would
require an easement of some sort, and many would pass over natural
features such as rivers and wetlands, creating potential
environmental issues. What is more, the EA expresses a concern
that potential developers would be less enthusiastic about
constructing an FBO facility in such a remote area of the airport,
possibly preventing the completion of the project.
Based on this collocation of factors, the FAA concluded
that it would be more prudent to build the new FBO facility at
Hangar 24 and use the East Ramp for general aviation aircraft
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hangars. This was a judgment call — and one that fell within the
purview of the FAA's expertise. The FAA's determination as to
whether a given alternative is prudent must be informed by the
statutory dictates that "the safe operation of the airport and
airway system is the highest aviation priority" and that "airport
construction and improvement projects that increase the capacity of
facilities to accommodate passenger and cargo traffic be undertaken
to the maximum feasible extent so that safety and efficiency
increase and delays decrease." 49 U.S.C. § 47101(a)(1), (7); see
City of Bridgeton v. FAA, 212 F.3d 448, 462 (8th Cir. 2000)
(expressing "doubt whether [section 4(f)] mandates a rigid least-
harm standard in airport expansion cases," because such an approach
would be at odds with the "congressional mandate" prioritizing
safety and efficiency in airport operations); see also Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir.
1991).
The petitioners concede that there is no site at Hanscom,
other than the East Ramp, that might be a viable alternative to the
Hangar 24 site. But they claim that the FAA's evaluation of the
East Ramp alternative fails adequately to quantify the supposed
inefficiencies, lacks specifics regarding the terminal distance
differential, and includes insufficient documentation of the access
problem. In support, they cite Stop H-3 Ass'n v. Dole, 740 F.2d
1442 (9th Cir. 1984), a case purportedly standing for the
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proposition that such a level of detail is required before a
feasible alternative may be discarded as imprudent.
The record refutes this claim. The FAA did not rely on
taxi distance or access impediments alone to justify its decision
but, rather, cited the combined effect of a number of
considerations which weighed heavily against the East Ramp as a
safe and efficient FBO site. An agency legitimately may invoke an
accumulation of factors to rule out an alternative as imprudent.
See Comm. to Pres. Boomer Lake Park v. Dep't of Transp., 4 F.3d
1543, 1550 (10th Cir. 1993); see also Eagle Found., 813 F.2d at 805("A prudent judgment by an agency is one that takes into account
everything important that matters. A cumulation of small problems
may add up to a sufficient reason to use § 4(f) lands."). Even the
Stop H-3 court acknowledged the salience of this principle. See
740 F.2d at 1455.
In the last analysis, "it is up to those who assail [the
agency's] findings or reasoning to identify the defects in evidence
and the faults in reasoning." Save Our Heritage, 269 F.3d at 60.
The petitioners have not carried this burden. Although they decry
the FAA's appraisal of the East Ramp alternative, the FAA has
presented a compelling articulation of the factors that contributed
to its decision. The petitioners have not offered the "sustained
and organized rebuttal," id., that would be necessary to invalidate
this articulation.
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c. Adaptive Reuse.
We come now to the FAA's evaluation of the third
alternative: the possibility of adapting Hangar 24 to accommodate
the FBO project. The FAA explained that "this alternative has
significant disadvantages because of the hangar's poor condition,
relatively small size, and functional inadequacy." The size of
both the building and the doorway aperture would have to be
increased dramatically in order to outfit the hangar for use by
larger aircraft.
Enumerating these and other considerations, the EA
concluded that adaptive reuse "is expected to require substantial
and impractical building modifications to allow the building to
function for its intended use and bring the building into
compliance with current environmental, structural, fire, safety,
and energy codes." This conclusion was reinforced by the HNTB
study, which reported that any reconfigured version of Hangar 24
"would be inefficient to use and maintain . . . and unusable as a
hangar." The study also noted that refurbishing Hangar 24, which
"may or may not be structurally feasible," would cost some $500,000
more than the estimated cost of constructing a brand new facility.
In rebuttal, the petitioners assert that there is no data
showing that Hangar 24 would require enlargement. This assertion
is at best a half-truth; it is premised on the hypothesis that
there is no demonstrated demand for facilities that can accommodate
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larger aircraft. This hypothesis is a slight variation on a
previously rejected theme, see supra Part II(A)(1)(a), but the
variation is immaterial. As we have explained, the record contains
substantial support for the assertion that demand for FBO services
at Hanscom is likely to continue to increase. The record likewise
reveals that the two existing FBO facilities cannot readily
accommodate larger aircraft, and it further notes that the existing
Hangar 24 structure is too small to be compatible with G5 business
jets. This information is sufficient to undergird the FAA's
conclusion that enlargement of Hangar 24 would be required in any
sensible reuse scenario.
As evidence of the viability of adaptive reuse, the
petitioners seize upon a suggestion that it might be feasible to
raise the roof of Hangar 24 without demolishing the building. In
support, they note that the roof had been raised once before and
that the agency did not respond to this possibility (which first
surfaced during the comment period). An agency is under no
obligation to respond individually to each and every concern raised
during the comment period. See Conservation Law Found. of New
Engl., Inc. v. Andrus, 623 F.2d 712, 717 (1st Cir. 1979). Here,
moreover, the comment was not so compelling as to demand a direct
response given the building's overall condition and structural
deficiencies. See 40 C.F.R. § 1508.9(a) (describing EA as "a
concise public document" (emphasis supplied)).
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The petitioners' critique of the FAA's adaptive reuse
analysis gains no traction from a claimed inconsistency between the
FAA's conclusion that Hangar 24's door height would have to be
increased and Massport's commitment to maintaining an unobtrusive
building profile when redeveloping the site. There is simply no
reason to believe that a door-height increase would necessarily
result in a building incompatible with surrounding structures. In
the absence of concrete evidence to that effect, such conjecture is
insufficient to undermine the FAA's finding regarding the
imprudence of adaptive reuse. See Save Our Heritage, 269 F.3d at
60 ("Gauzy generalizations and pin-prick criticisms, in the face of
specific findings and a plausible result, are not even a start at
a serious assault.").
We add that even if none of the factors cited by the FAA,
standing alone, would justify its finding that adaptive reuse is
imprudent, that finding would still be supported by the totality of
the factors. In making judgment calls of this sort, an agency is
both entitled and obliged to consider the totality of the
circumstances. See, e.g., Eagle Found., 813 F.2d at 805. The
whole is sometimes greater than the sum of the parts, and the
considerations limned in the EA, taken together, provide a reasoned
basis, adequately anchored in the administrative record, upon which
the FAA could conclude — as it did — that adaptive reuse is not a
prudent alternative.
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There is one loose end. As discussed in the EA and as
considered during the consultation period, the reuse alternative
encompassed a proposal that Hangar 24 be converted into an aviation
museum. The FAA discussed this option "because of the significant
interest expressed on the part of consulting parties and the
public." Though the proposal was sufficiently broad to include a
number of potential museum developers, one of the most likely
candidates — the Massachusetts Air and Space Museum — had already
declared the site unsuitable. Ultimately, the agency rejected the
museum possibility because such a use would not address perceived
transportation needs and would present significant security
concerns that made it "undesirable and impractical." We find no
error in this determination. See 49 U.S.C. § 47101(a)(1) ("[T]he
safe operation of the airport and airway system is the highest
aviation priority . . . ."); see also Back Bay, 463 F.3d at 65.
That ends this aspect of the inquiry. In this context,
prudence is largely a matter of safety and efficiency; and the
FAA's determination that none of the three alternatives would be
prudent was, on the record before it, well within the universe of
reasonable outcomes. When that is true, it is not the place of a
reviewing court to second-guess the agency.
2. Minimization of Harm. Once an agency determines that
there is no feasible and prudent alternative to the use of
protected land, section 4(f) requires it to consider whether the
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proposal at hand "includes all possible planning to minimize harm."
49 U.S.C. § 303(c)(2). An agency determination that a submitted
plan sufficiently minimizes the likely harms to historic properties
must be treated respectfully by a reviewing court. Such
determinations "deserve even greater deference than agency
determinations concerning practicable alternatives." Conservation
Law Found. v. Fed. Hwy. Admin., 24 F.3d 1465, 1476-77 (1st Cir.
1994); see Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d
686, 702 (3d Cir. 1999).
The petitioners insist that the FAA should postpone the
demolition of Hangar 24 until after the design, permitting, and
financing of the new FBO facility are in place, thus leaving open
the possibility that the facility might incorporate the existing
hangar. We reject these importunings. When discussing
minimization, the FAA specifically noted that "reuse of Hangar 24
as a hangar is neither prudent nor practical." The FAA fully
addressed the adaptive reuse approach in its analysis and
supportably determined that this approach was imprudent. No more
was exigible. An agency need only consider harm-minimizing steps
that are feasible and prudent under existing circumstances. Back
Bay, 463 F.3d at 66. A few explanatory comments may be helpful.
Section 4(f)(2)'s requirement that a project include
planning to minimize harm to historic sites does not demand that an
agency, having already ruled out an option as imprudent under
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section 4(f)(1), circle back to reconsider that option as a means
of mitigating harms. Instead, the 4(f)(2) inquiry is focused on
means of minimization that are compatible with the alternative or
alternatives deemed feasible and prudent under 4(f)(1).
Congress established a very rigorous, time-consuming
administrative process through which projects that might affect
protected historic sites are reviewed and, if appropriate,
approved. This administrative process is geared toward
consideration of the project concept itself, regardless of which
developer may ultimately carry the proposal to fruition. Of
course, should the parameters of the project change materially,
additional administrative approvals will likely be necessary. But
so long as the project's scope remains within the general contours
of the proposal reviewed and approved by the agency, the validity
of its approval is not conditioned on the presence or absence of a
developer prepared to move forward with the construction.
B. NHPA.
Section 106 of the NHPA requires that federal agencies
"take into account the effect of [an] undertaking on any district,
site, building, structure, or object that is included in or
eligible for inclusion in the National Register." 16 U.S.C.
§ 470f. It also directs that agencies "shall afford the Advisory
Council on Historic Preservation . . . a reasonable opportunity to
comment." Id. In fine, "[s]ection 106 is a procedural statute
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that requires agency decisionmakers to 'stop, look, and listen,'
but not to reach particular outcomes." Back Bay, 463 F.3d at 60
(quoting Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d
161, 166 (1st Cir. 2003)).
Congress created the Advisory Council on Historic
Preservation (the Council) to administer the NHPA. See 16 U.S.C.
§§ 470i, 470s. The Council has promulgated regulations to guide
agencies in performing their obligations under the statute. See 36
C.F.R. pt. 800. These regulations direct agencies to determine if
a project qualifies as an "undertaking" that "has the potential to
cause effects on historic properties." Id. § 800.3(a). If so, the
agency must consult with the state historic preservation officer
(SHPO) to "[d]etermine and document the area of potential effects."
Id. § 800.4(a)(1); see id. § 800.16(d). The agency, along with the
SHPO, is then directed to "apply the National Register criteria" to
arguably eligible sites within the area of potential effects. Id.
§ 800.4(c)(1). If the agency finds that historic sites may be
affected, it must solicit the views of various parties. Id.
§ 800.4(d)(2). The agency then applies the criteria delineated in
the regulations to determine if there is an effect or effects, id.
§ 800.5(a), and if so, engages in further consultation to resolve
any such effects, id. § 800.5(d)(2).
This step involves notifying the Council so that it can
decide whether its continued participation is desirable, id.
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§ 800.6(a)(1), and looking at alternatives that might "avoid,
minimize or mitigate the adverse effects," id. § 800.6(b)(1)(i),
(b)(2). If the agency and the consulting parties agree on a means
of abating the effects, they must execute a memorandum of agreement
(the Memorandum). Id. § 800.6(b)(1)(iv), (b)(2). The Memorandum
"evidences . . . compliance with section 106" and the regulations.
Id. § 800.6(c).
In the case at hand, NHPA consultation began in April of
2008, when the FAA informed the Commission (the relevant state
entity) that the Hangar 24 project was an "undertaking" within the
purview of the regulations. The FAA concurred with the
Commission's finding that the hangar was eligible for listing on
the National Register under Criteria A and B. The FAA and the
Commission then defined the project's area of potential effects to
include the footprint of the hangar and its appurtenances.
In December of 2008, the FAA issued a draft EA, which was
made available for public comment. The Council reviewed this
document and determined that its "participation in the consultation
to resolve adverse effects [was] unnecessary." According to the
Council, the EA's discussion of alternatives was "exhaustive," and
the Commission fully concurred with the FAA's findings about the
project's effects (and lack of effects) on historic properties.
The FAA proceeded to prepare a draft Memorandum to memorialize its
commitments to mitigation and circulated the Memorandum to the
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consulting parties for their input. The final EA responded to
comments and included a final version of the Memorandum.
The petitioners advance a salmagundi of arguments as to
why the NHPA requirements were not satisfied. To begin, they argue
that, because the area of potential effects was determined "without
reference to any specific development proposal," that determination
is inconsistent with the regulatory directive that the area's scope
should be "influenced by the scale and nature of an undertaking."
Id. § 800.16(d). It is true that when the EA was prepared, there
was no developer lined up to proceed with FBO facility construction
and, thus, no definitive set of development plans existed. But
Massport had previously reviewed proposals and selected a plan for
the site, thus evincing that it had a particular set of criteria in
mind. The concept was clearly delineated.
NHPA's implementing regulations direct agencies to
"ensure that the section 106 process is initiated early in the
undertaking's planning, so that a broad range of alternatives may
be considered." Id. § 800.1(c). This directive makes it pellucid
that agencies are not expected to delay NHPA review until all
details of the proposal are set in cement. Of course, should the
project's scope change in some material way when a specific
developer is identified, additional FAA approvals may be required.
But the proposal here was sufficiently well-defined to trigger the
NHPA review process.
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Taking a different tack, the petitioners say that the FAA
erred in determining that the area of potential effects did not
encompass any historic sites beyond Hangar 24 itself. This is
whistling past the graveyard; the record reveals beyond hope of
contradiction that the FAA examined the possibility of effects on
other sites and supportedly concluded that none of the alternatives
would have an effect — either direct or indirect — on any protected
historic venue (apart from Hangar 24 itself).
Relatedly, the petitioners fault the FAA for neglecting
to take into account, when defining the area of potential effects,
the possibility that the project would alter views from nearby
sites and, in the bargain, create a fire hazard attributable to
fuel storage. But the 2005 ESPR noted that, due to local
topographical features, the airport was not visible from most
nearby locations; and in any event, Massport committed to
maintaining building dimensions that would "be respectful of views
from off-site vantages." Finally, in its response to public
comments appended to the EA, the FAA explained that the State Fire
Marshal's Office will regulate fuel storage at any new structure
and that other measures for the containment of fuel-related hazards
had been contemplated. Regardless of whether the petitioners agree
with the FAA's conclusions about these matters, they have failed to
show that the conclusions are arbitrary or capricious.
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The petitioners' next plaint is equally without
foundation. Although they express concern that the new FBO
facility would indirectly affect noise levels by attracting
additional jet traffic, the FAA explained in the EA why that
scenario is unlikely to occur. There, it stated that, consistent
with its mandate to provide "a safe and efficient national airspace
system," the FBO project was intended "to meet forecasted demand
for adequate facilities" for corporate aircraft at Hanscom. This
articulated purpose was aimed at meeting an increase in demand that
the record confirms will likely take place independent of any
improvements at Hanscom; it was not calculated to drive an increase
in traffic.
In light of the FAA's observation that improvements to
infrastructure are not typically sufficient, on their own, to
attract new activity to an airport, the record is barren of any
basis for the expectation that the new FBO facility will cause any
increase in traffic. In the absence of such an evidentiary
predicate, it was entirely logical for the FAA to conclude that the
contemplated FBO facility would produce no meaningful increase in
noise levels. Cf. Save Our Heritage, 269 F.3d at 62-63 (upholding
FAA finding that impacts of newly authorized flights were de
minimis under NHPA and NEPA standards).
If more were needed — and we doubt that it is — we note
that, notwithstanding its determination that the potential for
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increased noise was not a problem, the FAA went the extra mile; it
made a "worst case" calculation. While the agency was under no
obligation to make a worst case calculation in light of its no-
effects finding, cf. Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 356 (1989) (explaining that NEPA analysis should
"focus on reasonably foreseeable impacts" and that no "worst case
analysis" is required), the results of that calculation reinforced
its position.
Switching gears, the petitioners urge that because Walden
Pond (a national historic landmark) is nearby, the FAA was required
to comply with the heightened standards that pertain to such sites.
See 16 U.S.C. § 470h-2(f); 36 C.F.R. § 800.10. Given the FAA's
warranted determination that there would be no effects on nearby
historic sites, the agency was under no obligation to move to this
more intensive level of review. See Back Bay, 463 F.3d at 64.
The petitioners have one last grievance addressed to the
FAA's NHPA compliance. They argue that the FAA and the Commission
blundered in finding that Hangar 24 was ineligible for listing on
the National Register under Criterion C, which applies to sites
that embody distinctive architectural characteristics. See 36
C.F.R. § 60.4(c). This grievance is baseless.
To be sure, the criteria used to determine whether a site
qualifies for listing on the National Register will inform the
choice of appropriate mitigation measures. Here, however, there is
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ample evidence in the record to show that the FAA and the
Commission fully considered the applicability vel non of Criterion
C. To this end, the Commission observed, in correspondence to the
FAA, that Hangar 24 was "deteriorated" and had been "cleared of its
historical scientific instrumentation, equipment, research files,
and furnishings." In a return letter, the FAA confirmed its
awareness of "new information" pertinent to Criterion C proffered
by the Concord Historical Commission and found that this proffer
contained no insights beyond those previously considered.
The short of it is that the petitioners, despite their
kaleidoscopic array of attacks, have not shown noncompliance with
any of the procedures mandated by the NHPA and its implementing
regulations. Nor have they shown that the FAA failed to satisfy
its obligation to weigh effects. While the petitioners may
disagree with the FAA's calibration of these scales, that
disagreement, in itself, is insufficient to scuttle the FAA's
findings.
C. NEPA.
The NEPA requires federal agencies to prepare an
environmental impact statement (EIS) for "major Federal actions
significantly affecting the quality of the human environment." 42
U.S.C. § 4332(2)(C). Where the need for an EIS is not obvious, an
agency may instead prepare an EA. 40 C.F.R. § 1501.4(b). An EA is
meant to be less detailed than an EIS. See, e.g., United States v.
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Coal. for Buzzards Bay, ___ F.3d ___, ___ (1st Cir. 2011) [No. 10-
1664, slip op. at 11]. If the agency, based on the EA, determines
that an EIS is not needed, it may issue an explained finding of no
significant impact. 40 C.F.R. § 1501.4(c), (e). The requirements
imposed by the NEPA are procedural in nature and are not intended
to dictate any particular substantive outcome. Pub. Citizen, 541
U.S. at 756; Robertson, 490 U.S. at 350.
The petitioners' NEPA challenge focuses on the FAA's
consideration of the potential to increase noise levels.
Specifically, the petitioners upbraid the FAA for failing properly
to quantify cumulative noise impacts. The applicable regulations
define cumulative effects as "the incremental impact of the action
when added to other past, present, and reasonably foreseeable
future actions." 40 C.F.R. § 1508.7.
This lament does not withstand scrutiny. The record
shows that the FAA considered all the relevant factors. It
identified the only other reasonably foreseeable development (that
anticipated for the East Ramp) and added anticipated noise from
that project, calculated at 0.3 dB, to a predicted maximum noise
increase of 0.2 dB from the Hangar 24 project. The 2008 East Ramp
noise study upon which the FAA based its worst case calculation
took account of total noise levels in the area. It added the
projected increase for the East Ramp development to preexisting
baseline noise conditions. See League of Wilderness Defenders v.
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U.S. Forest Serv., 549 F.3d 1211, 1217 (9th Cir. 2008). The FAA
generally regards as significant a decibel increase of 1.5 dB or
greater (based on a day-night average) at or above a 65 dB noise
exposure level. FAA Order 1050.1E, CHG 1, App. A, para. 14.3 (Mar.
20, 2006). The foreseeable increase here fell comfortably within
that range. We conclude, therefore, that the FAA's exercise
constituted a reasonable approach to the potential problem. And as
a further check, the FAA "carefully reviewed" the 2005 ESPR's
analysis of the projected cumulative noise and air quality effects
of both the Hangar 24 and the East Ramp projects.4
The petitioners calumnize the FAA's decision to
extrapolate from prior studies rather than commission a new study
for Hangar 24. In our view this decision was not unreasonable,
especially given the agency's prediction, based on the FAA's
experience with other airport projects, that the Hangar 24 project
was unlikely to have any impact at all on noise levels. We hold,
4
The petitioners point out that the FAA's own internal
guidance acknowledges that the "65 dB threshold does not adequately
address the effects of noise on visitors to areas within a national
park . . . where other noise is very low and a quiet setting is a
generally recognized purpose and attribute." FAA Order 1050.1E,
CHG 1, App. A, para. 14.3. This guidance does not help the
petitioners. Although Hanscom is located in close proximity to at
least one historic national park, the petitioners have proffered no
evidence that any such park is specifically recognized for its
tranquility. See, e.g., 16 U.S.C. § 410s(a) (establishing Minute
Man National Historical Park and describing its purposes). For
that matter, the petitioners have proffered no evidence showing a
need for special noise level protection at any place in the
vicinity.
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therefore, that the FAA's noise impact calculations are impervious
to the petitioners' challenge.
Of course, if and when Massport chooses to proceed with
additional development at Hanscom, that work may require additional
FAA approvals. But the NEPA requires a cumulative analysis only
"to ensure that a project is assessed as a whole and not sliced
into 'small component parts.'" Town of Marshfield v. FAA, 552 F.3d
1, 4 (1st Cir. 2008) (quoting 40 C.F.R. § 1508.27(b)(7)). For NEPA
purposes, an agency need not speculate about the possible effects
of future actions that may or may not ensue. See, e.g., Coal. on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir. 1987).
III. CONCLUSION
We need go no further. A careful reading of the
administrative record shows with conspicuous clarity that the FAA
was cognizant of, and complied with, its responsibilities under the
applicable statutes and regulations. The conclusions that it
reached, though not inevitable, are adequately grounded and in
accordance with law. Accordingly, we deny the petition for
judicial review.
So Ordered.
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