Twp of Tinicum v. US DOT , 685 F.3d 288 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1472
___________
TINICUM TOWNSHIP, PENNSYLVANIA,
an incorporated first class township;
COUNTY OF DELAWARE, PENNSYLVANIA,
a political subdivision of the
Commonwealth of Pennsylvania;
THOMAS J. GIANCRISTOFORO, individually and
in his capacity as President of the Tinicum Township
Board of Commissioners;
DAVID McCANN, an individual,
Petitioners
v.
UNITED STATES
DEPARTMENT OF TRANSPORTATION;
SECRETARY OF TRANSPORTATION;
FEDERAL AVIATION ADMINISTRATION;
ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION;
CARMINE GALLO,
Regional Administrator, FAA Eastern Region,
Respondents
CITY OF PHILADELPHIA,
Intervenor-Respondent
_______________________
On Petition for Review of an Order of the
United States Department of Transportation,
Federal Aviation Administration
_____________
Argued March 6, 2012
Before: SCIRICA, AMBRO and JORDAN, Circuit Judges.
(Filed: July 6, 2012)
BARBARA E. LICHMAN, ESQUIRE (ARGUED)
Buchalter Nemer
18400 Von Karman Avenue, Suite 800
Irvine, California 92612
SAM S. AUSLANDER, ESQUIRE
Eckell, Sparks, Levy, Auerbach, Monte,
Sloane, Matthews & Auslander
344 West Front Street, P.O. Box 319
Media, Pennsylvania 19063
Attorneys for Petitioners
LANE N. McFADDEN, ESQUIRE (ARGUED)
MARY G. SPRAGUE, ESQUIRE
United States Department of Justice
Environment & Natural Resources Division
2
P.O. Box 23795, L'Enfant Plaza Station
Washington, D.C. 20026
Attorneys for Respondents
W. ERIC PILSK, ESQUIRE (ARGUED)
Kaplan, Kirsch & Rockwell
1001 Connecticut Avenue, N.W., Suite 800
Washington, D.C. 20036
SCOTT J. SCHWARZ, ESQUIRE
City of Philadelphia, Law Department
One Parkway, 1515 Arch Street
Philadelphia, Pennsylvania 19102
CATHERINE M. VAN HEUVEN, ESQUIRE
Kaplan, Kirsch & Rockwell
1875 Broadway, Suite 2300
Denver, Colorado 80202
Attorneys for Intervenor-Respondent
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
This is an appeal of the Federal Aviation
Administration’s approval of a significant expansion of
Philadelphia International Airport. Disputing the FAA’s air
3
quality analysis, Petitioners1 (collectively Tinicum) allege
violations of the National Environmental Policy Act (NEPA),
42 U.S.C. §§ 4321 et seq., and the consistency provision of
the Airport and Airway Improvement Act, 49 U.S.C. §
47106(a)(1). Because we find the Federal Aviation
Administration’s decision was not “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,”
5 U.S.C. § 706(2)(A), we will deny the petition for review.
I.
A.
Philadelphia International Airport (PHL) is the
primary commercial airport for the Philadelphia region and
the ninth busiest airport in the United States. Since 1999,
PHL has been among the ten most delayed airports in the
National Airspace System and has contributed to delays at
airports throughout the United States. The delays arise from
inadequate all-weather airfield capacity at PHL. The Airport’s
runways are too short, too close together, and too few.
Aware of these shortcomings, the City of Philadelphia,
which owns and operates PHL, commenced in 2000 a study
of airport facility needs. The study found that, in its current
configuration, delays at PHL would increase from an average
of over ten minutes per operation in 2003, which the FAA
considers severe, to over nineteen minutes per operation in
1
This petition for review was filed by Delaware County,
Tinicum Township, and two Township residents.
4
2025. The FAA warns that delays of this magnitude lead both
passengers and airlines to avoid an airport. To forestall these
mounting delays and the consequent loss of airlines, the City
sought FAA approval to expand PHL by extending two
existing runways and constructing a new runway.
After receiving the City’s proposal in 2003, the FAA
decided to prepare an Environmental Impact Statement (EIS)
in accordance with NEPA. The PHL expansion project was
designated high priority and slated for expedited
environmental review under the Aviation Streamlining
Approval Process Act, 49 U.S.C. §§ 47171-47175, and an
executive order prioritizing national transportation
infrastructure projects, Exec. Order No. 13274, 67 Fed. Reg.
59,449 (Sept. 18, 2002). To comply with this national policy
priority, the FAA collaborated with the City of Philadelphia,
the Environmental Protection Agency (EPA), and several
other interested federal and state agencies to develop a
streamlining agreement that established agency roles,
milestones for agency actions, and a dispute resolution
procedure.
As part of the process, the FAA developed an Air
Quality Analysis Protocol, which set out the scope, models,
and procedures for its air quality analysis. It circulated a draft
of the Protocol for input from interested parties in 2005 and
finalized the Protocol in 2006. In September 2008, having
completed the studies called for in the Protocol, the FAA
published a three-volume, 900-page draft EIS. In relevant
part, the draft set forth the procedures used to analyze the
project’s air quality impacts and the results of that analysis. It
5
also incorporated by reference a draft Air Quality Technical
Report, which further detailed the methodologies and data
underlying the FAA’s analysis.
To assess the project’s air quality impacts, the FAA
conducted a detailed emissions analysis of two potential
project alternatives (“build” alternatives “A” and “B”) and a
third alternative of not undertaking the project (the “no-build”
alternative). In a table known as an emissions inventory, the
FAA estimated the total project-related emissions of six air
pollutants under the two build alternatives for each of the
thirteen years of construction. The FAA calculated the future
impact of the project on PHL’s operational emissions by
comparing predicted total emissions under the build and no-
build alternatives in two post-construction years, 2025 and
2030.2 To obtain a more detailed assessment of operational
air quality impacts, the FAA conducted dispersion modeling,
an analytical technique that converts an emissions inventory
into estimates of outdoor concentrations of pollutants at
particular locations.
In November 2008, the EPA submitted comments on
the draft EIS citing alleged data omissions in the FAA’s
analysis. The FAA considered and responded to each of the
EPA’s comments in the final EIS, issued on August 20, 2010.
Some of the FAA’s responses described revisions to the air
quality analysis it had adopted based on EPA comments.
2
The Project has been delayed because of the longer-than-
anticipated environmental review process. The FAA does not
believe this delay affects its emissions estimates.
6
Others explained the FAA’s decision to stand by its chosen
analytical approach.
Appended to the final EIS was the FAA’s General
Conformity Determination, a formal determination under the
Clean Air Act and related regulations that the project would
not interfere with Pennsylvania’s compliance with national air
quality standards. In that document, the FAA summarized its
findings: (1) operational emissions (i.e., Airport emissions
after project completion) of volatile organic compounds
(VOC), nitrogen oxides (NOx), fine particulate matter of less
than 2.5 micrograms (PM2.5), and sulfur dioxide (SO2) would
be below the de minimis thresholds established by EPA
regulations; (2) construction emissions of PM2.5 and SO2
would be below the de minimis levels; (3) construction
emissions of NOx would exceed the de minimis thresholds in
certain years, but the City of Philadelphia would be required
to apply Airport Emission Reduction Credits to bring those
emissions below the threshold;3 and (4) VOC emissions
would exceed de minimis levels during certain years of
3
As required by a provision of the Vision 100—Century of
Aviation Reauthorization Act, 49 U.S.C. § 47139, the EPA
and FAA created the Voluntary Airport Low Emission
Program, which awards Airport Emission Reduction Credits
for the use of low-emissions vehicles and equipment. These
credits can be used to offset other airport-related emissions to
maintain compliance with national air quality standards. The
City of Philadelphia participates in this program and earns
sufficient credits to fully offset project-related NOx
emissions.
7
construction, but the City would be required to fully offset
those emissions by acquiring and applying Emission
Reduction Credits.4
The publication of the final EIS concluded the NEPA
process, but agency discussions on the air quality studies
continued. On September 27, 2010, the EPA again submitted
comments on the FAA’s study design. After several weeks of
dialogue, some differences of opinion remained. On
December 30, 2010, the FAA published its Record of
Decision, which approved the expansion project and
delineated the FAA’s reasons for approval. The Record of
Decision included a finding that the project was “reasonably
consistent with existing plans of public agencies for
development of areas surrounding the airport,” as required by
the consistency provision of the Airport and Airway
Improvement Act, 49 U.S.C. § 47106(a)(1).
B.
PHL lies on the boundary between the City and
County of Philadelphia on the east and Tinicum Township,
Delaware County, on the west. The expansion project calls
for the acquisition of land to the west of the Airport and will
result in the displacement of a number of residences and
businesses in Tinicum Township.
4
Emissions Reduction Credits are off-airport reduction
credits that the City will purchase through a state program.
8
Tinicum petitioned for review of the Record of
Decision, which constituted final agency action subject to
review under the Administrative Procedures Act (APA). See
49 U.S.C. § 46110. We review the FAA’s action under the
APA’s arbitrary and capricious standard. 5 U.S.C. §
706(2)(A) (requiring that a reviewing court “hold unlawful
and set aside agency action, findings, and conclusions found
to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”). We confine our
review to the administrative record upon which the FAA’s
Record of Decision was based. See C.K. v. N.J. Dep’t of
Health & Human Servs., 92 F.3d 171, 182 (3d Cir. 1996)
(citing Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.
402, 420 (1971)).5
II.
A.
The FAA conducted the air quality analysis at issue to
meet the overlapping requirements of NEPA and the Clean
5
Respondents urge us to consider a letter the EPA submitted
on April 26, 2011, four months after the FAA issued its
Record of Decision. In that letter, the EPA clarified its final
views on the EIS, dropping several of its objections to the air
quality analysis conducted by the FAA. We will consider the
April 26 letter for the limited purpose of evaluating
Petitioners’ argument that new information, obtained from
two supplemental emissions studies and described in the
letter, mandates a supplemental EIS.
9
Air Act. “NEPA is a procedural statute that does not mandate
particular substantive results.” N.J. Dep’t of Envtl. Prot. v.
U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 133 (3d Cir.
2009). NEPA’s procedural requirements aim to ensure that an
agency “consider[s] every significant aspect of the
environmental impact of a proposed action” and “inform[s]
the public that it has indeed considered environmental
concerns in its decisionmaking process.” Id. at 134 (quoting
Baltimore Gas & Elec. Co. v. NRDC., 462 U.S. 87, 97 (1983)
(internal quotation marks omitted)).
In reviewing the adequacy of an agency’s
Environmental Impact Statement under NEPA, “[w]e make a
pragmatic judgment whether the [EIS’s] form, content and
preparation foster both informed decision-making and
informed public participation.” Concerned Citizens Alliance,
Inc. v. Slater, 176 F.3d 686, 705 (3d Cir. 1999) (citation and
quotation marks omitted). We ask whether the agency took a
“hard look” at the potential environmental impacts of its
action. Id. We do not, however, “substitute [our] judgment for
that of the agency.” Prometheus Radio Project v. FCC, 373
F.3d 372, 389 (3d Cir. 2004) (quoting Motor Vehicle Mfrs.
Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). NEPA entrusts agencies with the role of determining
“whether and to what extent to prepare an EIS based on the
usefulness of any new potential information to the
decisionmaking process.” Dep’t of Transp. v. Public Citizen,
541 U.S. 752, 767 (2004). In the air quality analysis on
review, the FAA reasonably considered the “usefulness” of
additional information on the project’s air quality impacts in
light of the national air quality policy priorities and standards
10
articulated in the Clean Air Act, 42 U.S.C. §§ 7401-7671q,
and related regulations. In fact, Council on Environmental
Quality (CEQ) regulations call on federal agencies to
integrate the NEPA process with the Clean Air Act analysis.
40 C.F.R. § 1502.25(a) (“To the fullest extent possible,
agencies shall prepare draft environmental impact statements
concurrently with and integrated with environmental impact
analyses and related surveys and studies required by . . . other
environmental review laws . . . .”).
The Clean Air Act establishes a joint federal and state
program to limit air pollution by setting national ambient air
quality standards (NAAQS). See 42 U.S.C. § 7409. The EPA
sets the NAAQS for specified pollutants, including sulfur
dioxide, carbon monoxide, ozone, lead, nitrogen dioxide,
coarse particulate matter of less than ten micrometers in
diameter (PM10), and fine particulate matter of less than 2.5
micrometers in diameter (PM2.5). Each state then must adopt
and submit to EPA for approval a plan—called a State
Implementation Plan (SIP)—to meet the national standards.
42 U.S.C. § 7410. Federal agencies, in turn, must ensure that
their actions conform to the applicable SIP. 42 U.S.C. §
7506(c)(1). EPA regulations set forth specific requirements
for this conformity determination. 40 C.F.R. §§ 93.150-
93.160. Agency actions that will result in emissions below the
de minimis levels set by EPA regulations do not require a
formal conformity determination. See 40 C.F.R. § 93.153(b).
Because the EPA is charged with administering and
implementing the Clean Air Act and has significant
responsibilities under the National Environmental Policy Act,
11
Tinicum urges us to defer to its comments on the FAA’s air
quality analysis under Chevron U.S.A. Inc. v. Nat’l Res. Def.
Council, Inc., 467 U.S. 837 (1984). We extend Chevron
deference to an agency action if Congress intended the action
to “carry the force of law.” Swallows Holding, Ltd. v.
Comm’r of Internal Revenue, 515 F.3d 162, 169 (3d Cir.
2008). In urging deference here, Tinicum misapprehends the
EPA’s role in commenting on the FAA’s Environmental
Impact Statement. CEQ regulations require the lead agency,
the FAA in this case, to “[o]btain the comments of any
Federal agency” that has “jurisdiction” or “special expertise”
or “is authorized to develop and enforce environmental
standards,” including the EPA here. 40 C.F.R. § 1503.1(a)(1).
The EPA and other relevant agencies then review and
comment on the EIS. 40 C.F.R. § 1503.2. Responding, the
lead agency may: modify the alternative action it has
reviewed; develop and evaluate new alternative actions;
“supplement, improve, or modify its analyses[;]” “make
factual corrections[;]” or “[e]xplain why the comments do not
warrant further agency response . . . .” 40 C.F.R. § 1503.4(a).
And if, in its review of an agency action, the EPA determines
that it “is unsatisfactory from the standpoint of public health
or welfare or environmental quality[,]” the Clean Air Act
directs the EPA to refer the matter to the Council on
Environmental Quality. 42 U.S.C. § 7609(b). Significantly,
the EPA did not do so here.
Under this statutory and regulatory framework, the
EPA’s comments do not carry the force of law and do not
warrant Chevron-style deference. See Mercy Catholic Med.
Ctr. v. Thompson, 380 F.3d 142, 154-55 (3d Cir. 2004)
12
(noting that Chevron deference is inapplicable to agency
interpretations rendered in “opinion letters, policy statements,
agency manuals, and enforcement guidelines”). As the D.C.
Circuit noted in similar circumstances, “[the FAA] does not
have to follow the EPA’s comments slavishly—it just has to
take them seriously.” Citizens Against Burlington, Inc. v.
Busey, 938 F.2d 190, 201 (D.C. Cir. 1991). Accordingly, we
review whether the FAA gave sufficient consideration to the
EPA’s comments.
B.
Citing the EPA’s comments, Tinicum alleges five
technical errors in the FAA’s air quality analysis that
purportedly render its environmental review inadequate under
NEPA. Each allegation pertains to a category of data
excluded from the FAA analysis. While additional data might
enable a more detailed environmental analysis, NEPA does
not require maximum detail. Rather, it requires agencies to
make a series of line-drawing decisions based on the
significance and usefulness of additional information.
Coalition on Sensible Transp. Inc. v. Dole, 826 F.2d 60, 66
(D.C. Cir. 1987). With this in mind, we review the FAA’s air
quality analysis, considering each of the alleged technical
defects.
The FAA divided its analysis of the project’s air
quality impacts into two time periods: the construction period
and the post-construction operational period. In its study of
construction period emissions, the FAA compiled an
emissions inventory that detailed, for each year of
13
construction, all project-related emissions of sulfur dioxide
(SO2), nitrogen oxides (NOx), volatile organic compounds
(VOCs), and fine particulate matter of less than 2.5
micrometers in diameter (PM2.5). The inventory included
anticipated emissions from construction vehicles and
equipment, asphalt paving, fugitive dust, the vehicles of
commuting construction workers, and additional aircraft
emissions due to delays caused by construction. The FAA
compared total project-related emissions against the de
minimis emissions levels set by the EPA’s conformity
regulations under the Clean Air Act and found that during the
construction period emissions of SO2 and PM2.5 would be
below the de minimis thresholds set by EPA regulations. But
the FAA also found that emissions of VOC would exceed the
de minimis threshold in the fifth, sixth, and eighth years of
construction and that emissions of NOx would exceed the
threshold in the second, fifth, and sixth years. Accordingly,
the Record of Decision calls on the City of Philadelphia to
acquire and apply emissions credits to fully offset VOC and
NOx emissions during those particular years.
Citing an EPA comment, Tinicum claims that NEPA
required the FAA to go further and model the dispersion of
these construction period emissions to show how they would
affect local ambient concentrations of pollutants in the area.
We disagree. As the FAA explained, aside from emissions of
two pollutants over short periods of time, emissions levels
during construction would fall below the de minimis
thresholds defined by the EPA’s conformity regulations.
Those levels have been set to reflect “activities [that] by
definition could not threaten a state’s attainment of the goals
14
in its SIP.” Envtl. Def. Fund, Inc. v. EPA., 82 F.3d 451, 467
(D.C. Cir. 1996). Meanwhile, the emissions of two pollutants
that would exceed de minimis thresholds for a short period of
time would be fully offset by emissions credits for reductions
in emissions at PHL and elsewhere. Moreover, the FAA’s
approach to construction emissions was consistent with the
Air Quality Analysis Protocol agreed to by the FAA and the
EPA. For these reasons, the FAA’s decision to stop short of
dispersion modeling for the construction period was not
arbitrary or capricious.
We reach the same conclusion in our review of the
FAA’s analysis of operational emissions upon completion of
the project. To evaluate post-project operational emissions,
the FAA prepared an inventory of anticipated airport
emissions for the years 2025 and 2030. Using the anticipated
emissions under the no-build alternative as a point of
comparison, the FAA found the expansion project would
initially decrease operational emissions by significantly
reducing the time that delayed aircraft spent waiting and
taxiing on congested runways. Five years after project
completion, emissions of certain pollutants would increase
slightly relative to the no-build alternative as airlines made
use of additional runway capacity. Significantly, the FAA
determined that any increase in emissions would fall well
below the de minimis thresholds. Although this finding was
sufficient to satisfy the conformity regulations, the FAA
decided to conduct dispersion modeling of the project’s
operational emissions to better analyze and disclose the
project’s ongoing impact on ambient concentrations of air
pollutants.
15
The EPA commented that this modeling did not
include nearby sources of PM2.56 and suggested that this
omission conflicts with EPA guidance on air quality
modeling.7 But the FAA had already demonstrated that the
project’s impact on operational emissions was de minimis,
and no modeling at all was required under the conformity
regulations. See 40 C.F.R. § 93.153. Further, in its response to
the EPA, the FAA noted that the dispersion modeling it had
conducted was intended to assess the project’s impact on
ambient concentrations near PHL. Because the project would
not affect emissions from nearby sources, adding those
sources to its dispersion model would not help assess that
impact.
The EPA also questioned the FAA’s decision not to
model the effect of building downwash (i.e., the tendency of
buildings to generate a downdraft that pulls pollutants toward
the ground) on the dispersion of emissions from boilers. But
as the FAA explained, boiler emissions were a trivial
contributor to total project emissions. Furthermore, at this
stage of project planning, the size and location of boilers and
buildings had yet to be determined. After those aspects of the
6
Fine particulate matter emissions are of concern because the
area surrounding the Airport is designated a nonattainment
area for PM2.5, meaning ambient levels of PM2.5 already
exceed the National Ambient Air Quality Standards.
7
The EPA found this omission problematic because the
Airport was situated near sources of substantial particulate
matter emissions, including a coal fired power plant and at
least four oil refineries within five kilometers.
16
project are established, a more accurate assessment of
building downwash may be conducted as part of the
Pennsylvania Department of Environmental Protection
permitting process. For these reasons, the FAA’s omission of
the building downwash effect was not arbitrary or capricious.
Turning to the project’s impacts on traffic volume and
automobile emissions, Tinicum cites another EPA comment
to contest the size of the study area. Consistent with the Air
Quality Analysis Protocol, the FAA defined the boundaries of
its regional study area to include a section of I-95 near PHL
and the roadway system immediately surrounding the Airport.
In its comments, the EPA cautioned that the expansion
project would cause traffic volume to increase beyond the
FAA’s designated study area. But as the FAA noted in
response, the broader regional effects on traffic volumes
would be considered as part of the regional travel demand
analysis prepared by the Delaware Valley Regional Planning
Commission. Fittingly, the conformity regulations
contemplate this regional approach. 40 C.F.R. § 93.158(conformity regulations are satisfied for portions of a project
that are included in a valid transportation improvement plan).
Accordingly, the FAA’s decision to forgo a broader regional
examination of the project’s impact on automobile emissions
in the EIS was neither arbitrary nor capricious.
Finally, Tinicum cites another EPA comment to argue
that the FAA exaggerated the emissions under the no-build
alternative by adopting the assumption that airlines would
“upgauge” (i.e., use larger aircraft) if the airport did not
expand. Because the EIS assessed project emissions relative
17
to the no-build alternative, Tinicum argues that this
assumption understates the project’s emissions impact. This
argument lacks merit. The FAA anticipated increased
passenger demand at PHL whether or not the expansion
project proceeded, and we accord deference to the FAA’s
demand forecasts. See St. John’s United Church of Christ v.
FAA, 550 F.3d 1168, 1172 (D.C. Cir. 2008). Given increasing
passenger demand and no increase in runway capacity under
the no-build alternative, airlines would appear to have little
choice but to fly larger planes. The FAA’s Air Quality
Technical Report explains this aspect of its analysis in detail,
documenting the mix of aircraft that the FAA anticipated
under the no-build alternative and the FAA’s preferred-build
alternative. The FAA’s “upgauging” assumption was both
reasonable and adequately disclosed.
In sum, the FAA gave serious consideration and
reasonable responses to each of the EPA’s concerns.8 As the
lead agency, the FAA has some latitude to determine the level
of analytical detail necessary to support an informed decision
8
As Tinicum points out, CEQ regulations call on the lead
agency to “[u]se the environmental analysis and proposals of
cooperating agencies with jurisdiction by law or special
expertise, to the maximum extent possible consistent with its
responsibility as lead agency.” 40 C.F.R. § 1501.6(a)(2). This
regulation was intended “to emphasize agency cooperation
early in the NEPA process.” 40 C.F.R. § 1501.6. The FAA
fulfilled its responsibility as lead agency by seeking the
EPA’s input and by offering considered responses to the
EPA’s comments.
18
and to adequately disclose air quality impacts to the public.
The technical errors alleged by Tinicum do not render the
FAA’s air quality analysis arbitrary or capricious.
C.
Even if the EIS was adequate when issued, Tinicum
demands a supplemental EIS based on two post-decision air
quality studies referenced in a letter the EPA submitted to the
FAA on April 26, 2011, four months after the Record of
Decision was issued. Council on Environmental Quality
regulations require a supplemental EIS if “[t]he agency makes
substantial changes in the proposed action that are relevant to
environmental concerns” or if “[t]here are significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.”
40 C.F.R § 1502.9(c)(1). We review an agency’s decision not
to supplement an EIS under the arbitrary and capricious
standard. Marsh v. Oregon Natural Res. Council, 490 U.S.
360, 375-76 (1989).
The two post-decision studies do not require a
supplemental EIS. As the EPA noted in its April 26 letter,
these two studies confirmed the conclusions the FAA reached
in its Record of Decision and did not indicate any significant
environmental impacts not contemplated in the EIS. Where
new information merely confirms the agency’s original
analysis, no supplemental EIS is indicated. See Town of
Winthrop v. FAA, 535 F.3d 1, 10 (1st Cir. 2008) (citing Vill.
of Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006)).
19
III.
Tinicum contends the FAA failed to comply with the
consistency requirement of the Airport and Airway
Improvement Act (AAIA), which provides that the FAA may
only approve an airport project if it is “consistent with plans
(existing at the time the project is approved) of public
agencies authorized by the State in which the airport is
located to plan for the development of the area surrounding
the airport.” 49 U.S.C. § 47106(a)(1). Citing plans of the
Delaware Valley Regional Planning Commission (DVRPC),
the state-authorized metropolitan planning organization and
comprehensive land use planning agency for the Delaware
Valley region, the FAA found the PHL expansion project
“reasonably consistent” with public agency development
plans for the area. We review the FAA’s compliance with the
AAIA under the arbitrary and capricious standard. See
Communities Against Runway Expansion, Inc. v. FAA, 355
F.3d 678, 689-90 (D.C. Cir. 2004). Tinicum challenges this
finding on two grounds: first, that the FAA applied too lenient
a standard in finding the project “reasonably consistent” with
local development plans, since the statutory language requires
that the project be “consistent” with such plans; and second,
that the relevant public agencies for this consistency
determination are Tinicum Township and Delaware County,
not the DVRPC. We reject both contentions.
A 1964 amendment to the Federal Airport Act required
an airport project to be “reasonably consistent” with agency
development plans for the surrounding area. Pub. L. No. 88-
280, § 8(e), 78 Stat. 158, 161 (1964). In 1994, Congress
20
recodified certain transportation laws, including the
consistency provision. Pub. L. No. 103-272, 108 Stat. 745(1994). The recodified provision omitted the word
“reasonably.” But the law’s text expressly dispels Tinicum’s
contention that this changed the provision’s meaning. Pub. L.
No. 103-272, § 6(a), 108 Stat. at 1378 (1994) (“Sections 1-4
of this Act restate, without substantive change, laws enacted
before July 1, 1993, that were replaced by those sections.
Those sections may not be construed as making a substantive
change in the laws replaced.”). Furthermore, the legislative
history recites that the word “reasonably” was “omitted as
surplus.” H.R. Rep. No. 103-180, at 398 (1993). Accordingly,
this change was semantic, not substantive. The FAA’s use of
a reasonable consistency standard does not render its
determination arbitrary, capricious, or otherwise not in
accordance with law.
Nor did the FAA err in basing its consistency
determination on the plans of the DVRPC. The DVRPC was
created in 1965 by the Delaware Valley Urban Area
Compact. See 73 P.S. § 701; N.J. Rev. Stat. §§ 32:27-1, et
seq. The Compact designates the DVRPC as an
“instrumentality of the Commonwealth of Pennsylvania and
the State of New Jersey exercising a government function.”
Art. VI, § 1. As such, the DVRPC qualifies as a public
agency under the Airport and Airway Improvement Act. See
49 U.S.C. § 47102(20) (defining “public agency” to mean,
inter alia, “a State or political subdivision of a State” or a
“tax-supported organization”). The DVRPC’s plans are
particularly relevant to the FAA’s consistency determination
because of its role in conducting transportation planning for
21
the region surrounding PHL. In the Compact, Pennsylvania
and New Jersey granted the DVRPC authority “to organize
and conduct a continuing, comprehensive, coordinated
regional planning program for the area, including but not
limited to transportation planning for the interests and
purposes . . . of the agencies of Pennsylvania and New Jersey
. . . as well as for the purposes of the local governments and
their planning agencies.” Art. I, § 3. The FAA reasonably
looked to the DVRPC’s plans in making its consistency
determination. Accordingly, that determination was neither
arbitrary nor capricious.
IV.
For the foregoing reasons, we will deny the petition for
review.
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