In re: Public Employees for Environmental Responsibility ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2019 Decided May 1, 2020
No. 19-1044
IN RE: PUBLIC EMPLOYEES FOR ENVIRONMENTAL
RESPONSIBILITY AND HAWAII COALITION MALAMA PONO,
PETITIONERS
On Petition for Writ of Mandamus
Paula N. Dinerstein argued the cause and filed the briefs
for petitioners.
Eric Grant, Deputy Assistant Attorney General, U.S.
Department of Justice, argued the cause for respondents. With
him on the brief were Jeffrey Bossert Clark, Assistant Attorney
General, Andrew C. Mergen and Ellen Durkee, Attorneys, and
Catherine Basic, Attorney, Federal Aviation Administration.
Before: HENDERSON, TATEL, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: This case arises out of the
underwhelming—and ultimately unsuccessful—efforts of the
Federal Aviation Authority (FAA) and National Park Service
(NPS) to regulate commercial sightseeing flights over national
parks. The Air Tour Management Act of 2000 directs the FAA
2
and NPS to “make every effort” to establish rules governing
such flights within two years of the first application. Although
applications have been pending at twenty-five parks for nearly
two decades, the agencies have fulfilled their statutory mandate
at only two. Petitioners seek a writ of mandamus to compel the
agencies to regulate air tours at seven parks where they have
injured members. Because the agencies have failed to timely
do so, we grant the petition.
I
A
The Air Tour Management Act of 2000 requires vendors
who wish to conduct commercial air tours over certain national
parks and tribal lands to first obtain a permit from the FAA. See
Pub. L. No. 106-181, §§ 801-809, 114 Stat. 61, 185-94
(codified as amended at 49 U.S.C. § 40128 and note). The Act
provides that the FAA, “in cooperation with” the NPS, “shall
establish an air tour management plan . . . whenever a person
applies for authority to conduct a commercial air tour
operation.” 49 U.S.C. § 40128(b)(1)(A). Management plans
must go through notice and comment and comply with the
National Environmental Policy Act (NEPA). See id.§ 40128(b)(2), (b)(4)(B). Management plans may “prohibit”
air tours entirely or place certain conditions on them, such as
“maximum or minimum altitudes,” “time-of-day restrictions,”
“maximum number of flights per unit of time,” and “mitigation
of noise, visual, or other impacts.” Id. § 40128(b)(3)(A)-(B).
Congress directed the agencies to act with dispatch. The
Act provides that the FAA “shall make every effort to act on
[an] application . . . and issue a decision . . . not later than 24
months after it is received or amended.” Id. § 40128(a)(2)(E).
But because Congress recognized that this process couldn’t be
3
completed overnight, the Act also allowed the FAA to grant
“interim operating authority,” id. § 40128(c)(1), (c)(3), to
existing tour operators so they “would not be put out of
business,” Notice of Final Opinion on the Transferability of
Interim Operating Authority Under the National Parks Air Tour
Management Act, 72 Fed. Reg. 6,802, 6,803 (Feb. 13, 2007).
The agencies’ efforts to comply with the Act got off to a
promising start. In 2000, they established the National Park
Overflights Advisory Group, and by 2002, they had published
a rule defining “commercial air tour operations” and launching
a permit application system. See National Parks Air Tour
Management, 67 Fed. Reg. 65,662 (Oct. 25, 2002). But trouble
began to brew when the agencies started to respond to the
operators’ applications. Each agency prioritized different goals
and sought to retain as much control over the process as
possible. See Lusk Decl. ¶ 45; Trevino Decl. ¶¶ 21-24. The
FAA emphasized air traffic safety; the NPS, protecting park
resources and visitor experience. As a result, the agencies
bickered over everything from responsibility for making
certain NEPA determinations to the proper metric for
measuring baseline noise levels. For example, the NPS “sought
sole jurisdiction” over environmental “impact determinations
on park resources,” but the FAA refused to “abdicat[e]” its role
in that process or defer to the “park superintendent’s
professional judgment.” Lusk Decl. ¶ 45. “The inability to
resolve these issues” often brought “work to a standstill.” Id.To be sure, the agencies kept busy. Despite their
infighting, they took steps to establish management plans at
sixteen parks, holding stakeholder meetings, drafting
documents, and conducting noise studies. But because the
agencies “were never able to resolve a number” of their
squabbles, id., they never got “beyond [the] initial stages of
environmental review” at any park, Gov’t Br. 11, and “never
4
issued a draft [management plan or] NEPA document . . . for
public review and comment,” Lusk Decl. ¶ 45.
Twelve years passed, and the agencies still hadn’t come up
with a single management plan. In an effort to speed things up,
Congress amended the Act to exempt parks with fifty or fewer
air tours per year and permit the agencies to enter into voluntary
agreements in lieu of management plans. See FAA
Modernization and Reform Act of 2012, Pub. L. No. 112-95,
§ 501, 126 Stat. 11, 100-03 (codified at 49 U.S.C.
§ 40128(b)(7)). Voluntary agreements are more flexible and
easier to implement. The agencies need not jump through as
many procedural hoops to create them, as they aren’t subject to
NEPA and don’t require full-dress notice and comment. 49
U.S.C. § 40128(b)(7)(C). But there’s a catch—voluntary
agreements must be, well, voluntary. Unlike management
plans, voluntary agreements can’t be imposed without operator
approval. What’s more, to substitute for a management plan,
the voluntary agreement must be unanimous; all operators
possessing interim operating authority must sign on. Id.§ 40128(b)(7)(A). A single holdout can force the agencies back
to the drawing board.
After Congress amended the Act, the agencies agreed to
put management plans on the back burner and focus their
efforts on voluntary agreements. They anticipated that these
agreements would be easier to complete, and they were right—
to some extent.
In 2015 and 2016, the agencies finalized voluntary
agreements with the air tour operators at Big Cypress National
Preserve and Biscayne National Park, bringing these parks into
compliance with the Act. But the statutory fix was no magic
bullet. Getting air tour operators to sign on to voluntary
agreements without the credible threat of a management plan
5
proved difficult. Each operator gains a competitive advantage
by hanging on to their (largely unregulated) interim authority
while their rivals voluntarily accept restrictions. See Sauvajot
Decl. ¶ 7; Trevino Decl. ¶¶ 47-48. Unable to credibly threaten
holdouts with the prospect of a stricter management plan, the
agencies lack the necessary leverage to bring everyone to the
table. For example, although the agencies drafted partial
agreements for Glen Canyon National Recreation Area and
Rainbow Bridge National Monument, those agreements don’t
yet pass muster under the Act because two of the nine operators
have refused to join. Still, the agencies have pressed on. They
are currently working on voluntary agreements for Badlands
National Park and Mount Rushmore National Memorial.
B
In 2018, Public Employees for Environmental
Responsibility and the Hawaii Island Malama Pono
Coalition—organizations representing national park
employees, visitors, and hiking guides—filed a petition for a
writ of mandamus that would compel the agencies to establish
management plans or voluntary agreements within two years at
seven parks: Bryce Canyon National Park, Glacier National
Park, Great Smoky Mountains National Park, Haleakala
National Park, Hawaii Volcanoes National Park, Lake Mead
National Recreation Area, and Muir Woods National
Monument.* We dismissed that petition for lack of Article III
standing because it listed only the FAA as respondent and
*
The agencies inform us that Muir Woods National Monument is
now exempt from the Act’s requirements because it has fewer than
fifty overflights per year and the NPS hasn’t exercised its statutory
authority to withdraw that exemption. See Gov’t 28(j) Letter (Dec.
4, 2019); 49 U.S.C. § 40128(a)(5)(A)-(B). Thus, we do not include
it in the relief afforded here.
6
Petitioners’ injuries weren’t redressable by the FAA alone. See
In re Pub. Emps. for Envtl. Responsibility, No. 18-1044 (D.C.
Cir. Nov. 13, 2018) (per curiam). Petitioners’ new filing, which
names both the FAA and NPS as respondents, does not suffer
from this jurisdictional defect.
In response to this litigation, the agencies produced a
schedule for bringing into compliance one park named in the
petition and six other parks. This plan sets target dates for
establishing voluntary agreements at Badlands National Park,
Great Smoky Mountains National Park, Mount Rainier
National Park, and Mount Rushmore National Memorial,
ranging from January 31, 2020 to March 31, 2022. If the
agencies can’t produce unanimous voluntary agreements at
those parks within eighteen months, the plan calls for the
agencies to develop management plans. The plan also calls for
the agencies to establish management plans at Death Valley
National Park, Glen Canyon National Recreation Area, and
Rainbow Bridge National Monument by May 31, 2022 at the
latest. The agencies have not offered a proposed timeline for
Petitioners’ other parks but pledge they will “begin preparatory
work in additional parks on a rolling basis.” Savaujot Suppl.
Decl. ¶ 24.
II
Before addressing the merits of the petition, we must first
assess our jurisdiction.
A
Our court has exclusive jurisdiction over mandamus
petitions alleging unreasonable agency delay whenever a
statute commits review of the relevant action to the courts of
appeals. See Telecomms. Research & Action Ctr. v. FCC
7
(TRAC), 750 F.2d 70, 75 (D.C. Cir. 1984) (explaining that this
statutory commitment of review, “read in conjunction with the
All Writs Act,” gives this court jurisdiction); see also 28 U.S.C.
§ 1651 (All Writs Act). The courts of appeals have exclusive
jurisdiction to review the FAA’s management plans and
voluntary agreements, including any predicate environmental
determinations by the NPS. See 49 U.S.C. §§ 40128(b)(5),
46110(a); cf. City of Tacoma v. FERC, 460 F.3d 53, 76 (D.C.
Cir. 2006) (holding that a challenge to a FERC order gave us
jurisdiction to review a predicate biological opinion prepared
by another agency). Accordingly, we have jurisdiction over this
mandamus petition under the All Writs Act.
B
Petitioners assert associational standing to seek relief.
“[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.” Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). The
agencies do not dispute, and we agree, that Petitioners satisfy
the second and third elements. However, the agencies question
whether Petitioners satisfy the first element. They do.
To establish standing to sue in their own right, Petitioners’
members must show injury in fact, causation, and
redressability. See Susan B. Anthony List v. Driehaus, 573 U.S.
149, 157-58 (2014). Petitioners’ members include frequent
hikers, whose enjoyment of the woods is marred by the
intrusive noise of overflights. See, e.g., Contreras Decl. ¶¶ 6-7;
Hingson Decl. ¶¶ 5-9; Plakanis Decl. ¶¶ 3-10. This is a
cognizable aesthetic and recreational injury. See Friends of the
8
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
183 (2000). It is caused by the agencies’ failure to regulate air
tours and could be redressed by a grant of mandamus relief.
The agencies raise two objections to redressability, but
neither is persuasive. First, the agencies object that “there is no
guarantee that air tour impacts would be reduced with the
implementation of plans or voluntary agreements.” Gov’t Br.
18. But Petitioners need not show that relief is “certain,” Int’l
Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795,
811 (D.C. Cir. 1983) (internal quotation marks omitted), only
that it is “substantial[ly] likel[y],” Vt. Agency of Nat. Res. v.
U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000) (internal
quotation marks omitted). Management plans may prohibit air
tours altogether or establish certain conditions, including noise
mitigation, 49 U.S.C. § 40128(b)(3)(A)-(B), and plans “shall
include incentives . . . for the adoption of quiet aircraft
technology,” id. § 40128(b)(3)(D); see also id.
§ 40128(b)(7)(B) (similar for voluntary agreements). Plans and
agreements are thus substantially likely to mitigate the noise
impact of air tours.
Second, the agencies object that Petitioners’ injuries aren’t
redressable because the agencies haven’t violated a
nondiscretionary duty, so mandamus relief is inappropriate.
See Gov’t Br. 18-22. But that argument confuses standing with
the merits, which we address next. See Consol. Edison Co. of
N.Y. v. Ashcroft, 286 F.3d 600, 604-06 (D.C. Cir. 2002)
(finding standing but denying mandamus relief on the merits).
III
“Our consideration of any and all mandamus actions starts
from the premise that issuance of the writ is an extraordinary
remedy, reserved only for the most transparent violations of a
9
clear duty to act.” In re Bluewater Network, 234 F.3d 1305,
1315 (D.C. Cir. 2000). This is the rare case in which mandamus
relief is appropriate. For nineteen years, the agencies have
failed to comply with their statutory mandate despite
Congress’s command to “make every effort” to do so within
two years of an application. 49 U.S.C. § 40128(a)(2)(E). And
the agencies’ latest proposed schedule is too little, too late. At
some point, promises are not enough; judicial intervention is
needed.
A
Before granting mandamus relief, we must “satisfy
ourselves that the agenc[ies] ha[ve] a duty to act.” In re Am.
Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir.
2004). The agencies argue that they do not. In their view,
“completion of a management plan [or voluntary agreement] is
not a ministerial, clear-cut, or non-discretionary duty” because
they must exercise their “discretion” over “the environmental
analyses and action [that they] will approve.” Gov’t Br. 20.
This argument confuses the creation of the plans with their
content. While the latter may be discretionary, the former is
not. As the agencies concede, “the Air Tour Management Act
generally requires [the] establishment of plans or voluntary
agreements for non-exempt parks.” Id. (emphasis added). The
Act provides that the agencies “shall establish an air tour
management plan . . . whenever a person applies for authority
to conduct a commercial air tour operation.” 49 U.S.C.
§ 40128(b)(1)(A) (emphasis added). The agencies may not
ignore this clear command. Petitioners do not seek to control
the content of the plans; they “simply seek[] to compel the
[agencies] to make decisions within the statutory time frames.”
10
Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 191 (D.C. Cir.
2016). That is an appropriate subject for mandamus relief.
B
In evaluating a petition for mandamus relief based on
unreasonable agency delay, we consider six factors:
(1) the time agencies take to make decisions must be
governed by a rule of reason; (2) where Congress has
provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling
statute, that statutory scheme may supply content for this
rule of reason; (3) delays that might be reasonable in the
sphere of economic regulation are less tolerable when
human health and welfare are at stake; (4) the court should
consider the effect of expediting delayed action on agency
activities of a higher or competing priority; (5) the court
should also take into account the nature and extent of the
interests prejudiced by delay; and (6) the court need not
find any impropriety lurking behind agency lassitude in
order to hold that agency action is unreasonably delayed.
TRAC, 750 F.2d at 80 (internal citations and quotation marks
omitted). No one factor is determinative, and “[e]ach case must
be analyzed according to its own unique circumstances.” Air
Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81,
86 (D.C. Cir. 1984). Our analysis of the six TRAC factors
convinces us mandamus relief is warranted.
1
The majority of the TRAC factors favor granting relief.
Time is “[t]he first and most important factor.” In re Core
Communications, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). The
11
Act directs the agencies to “make every effort” to rule on
applications within two years, 49 U.S.C. § 40128(a)(2)(E), but
after nineteen, the agencies have little to show for their labors.
Although “[t]here is no per se rule as to how long is too long,”
a “reasonable time for agency action is typically counted in
weeks or months, not years.” In re Am. Rivers, 372 F.3d at 419(internal quotation marks omitted); see also Midwest Gas
Users Ass’n v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987) (“[A]
reasonable time for an agency decision could encompass
months, occasionally a year or two, but not several years or a
decade.” (internal quotation marks omitted)). Indeed, we have
found far shorter delays than nineteen years to be “nothing less
than egregious.” In re Am. Rivers, 372 F.3d at 419 (six years);
see also In re Bluewater Network, 234 F.3d at 1316 (nine
years); Air Line Pilots Ass’n, 750 F.2d at 85-86 (five years); cf.
Nader v. FCC, 520 F.2d 182, 206 (D.C. Cir. 1975) (“[N]ine
years should be enough time for any agency to decide almost
any issue.” (citation omitted)).
The agencies argue that the Act’s timeline is aspirational.
See Gov’t Br. 23-25. But even the lack of a hard deadline “does
not give government officials carte blanche to ignore their legal
obligations.” Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir.
2001). Although the Act does not impose a rigid schedule, it
provides a ruler against which the agencies’ progress must be
measured. And that progress simply doesn’t measure up.
The agencies further insist that their task is complicated
and time intensive. See Gov’t Br. 28-29. Of course, a
reasonable time for action depends on “the complexity of the
task at hand, the significance (and permanence) of the outcome,
and the resources available to the agency.” Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1102 (D.C. Cir. 2003). But the failure to meet the timeline in
this case is primarily attributable to interagency conflict, not
12
financial or personnel shortages. Mandamus relief can’t make
money grow on trees, but it can end an interagency turf war.
Most of the remaining TRAC factors either favor granting
relief or are neutral. “[T]ak[ing] into account the nature and
extent of the interests prejudiced by delay,” 750 F.2d at 80, we
note that park visitors are among the Act’s intended
beneficiaries and the ones most harmed by the agencies’ listless
pace. Granting relief will aid these visitors by reducing the
disruptive impacts of air tours. See 49 U.S.C. § 40128(b)(1)(B)
(stating that an “objective of any air tour management plan”
should be to mitigate “adverse impacts” on “visitor
experiences”). Moreover, “delays that might be reasonable in
the sphere of economic regulation are less tolerable when
human health and welfare are at stake.” TRAC, 750 F.2d at 80.
Though this is not a case where inaction risks life and limb, see
Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150,
1157 (D.C. Cir. 1983), the agencies’ failure to regulate air tours
harms visitor welfare to some extent by exposing visitors to
unmitigated noise pollution, see H.R. REP. NO. 106-167, at 95
(1999) (noting that the FAA has “responsibility for . . .
protecting the public health and welfare from aircraft noise.”).
Thus, these factors are at least neutral toward Petitioners.
2
Only one TRAC factor—competing agency priorities—
seems to favor the agencies. Precedent directs us to “consider
the effect of expediting delayed action on agency activities of
a higher or competing priority.” TRAC, 750 F.2d at 80. The
agencies argue that (1) regulating commercial air tours is only
one “small component” of their missions, which must compete
for resources with other projects; and (2) we should not upset
the agencies’ newly proposed schedule, which prioritizes some
parks over others. Gov’t Br. 29-31.
13
But the agencies’ competing obligations cannot justify
their nineteen-year holdup. See Cobell, 240 F.3d at 1097(“[N]either a lack of sufficient funds nor administrative
complexity, in and of themselves, justify extensive delay.”).
Although we appreciate that it may be difficult for the agencies
to complete management plans or voluntary agreements at all
of the outstanding parks in the two years that Petitioners
request, that doesn’t make mandamus relief inappropriate.
Recognizing that the agencies have legitimate resource-based
concerns, we order the agencies to propose a schedule for
bringing all parks into compliance. In crafting this schedule,
the agencies should bear in mind that Congress expected them
to complete the task in two years.
Moreover, while we will not grant mandamus relief that
serves only to put the petitioner “at the head of the queue”
while “mov[ing] all others back one space,” In re Barr
Laboratories, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991), we need
not reorder the agencies’ priorities to grant relief here.
Petitioners “are not asking to jump the line.” Oral Arg. Tr.
13:6-7. By ordering the agencies to produce a schedule, we do
not require them to address any particular park first. The
agencies remain free to choose the order, provided they bring
all parks into compliance within a reasonable timeframe.
Finally, the agencies implore us to allow them to try out
their new plan before granting mandamus relief. Had the
agencies submitted a plan imposing reasonable deadlines for
all parks, we might agree. But they did not. The agencies’ plan
covers only seven of the twenty-three outstanding parks. And
while many of these parks have partial voluntary agreements
or low levels of air tours, the agencies still anticipate that their
plan will take up to four years to complete. That is too long.
14
In any event, the agencies have already missed some of the
target dates they’ve set for themselves. For example, the
agencies promised to publish final voluntary agreements with
fixed-wing operators at Badlands National Park and Mount
Rushmore National Memorial by January 31, 2020. Sauvajot
Supp. Decl. ¶¶ 15, 17. It’s now May, and the agencies still have
not published either agreement. See National Park Units
Requiring Air Tour Management Plans, FAA,
https://www.faa.gov/about/office_org/headquarters_offices/ar
c/programs/air_tour_management_plan/park_specific_plans;
see also Gov’t 28(j) Letter (Dec. 6, 2019) (explaining that the
agencies were also “unable to meet [their] target” for
publishing “notices of draft voluntary agreements” at these
parks). If the agencies can’t stick to their own plan with the
threat of judicial supervision hanging over them, how can we
expect them to do so when the threat is gone?
IV
Left to their own devices, the agencies have failed to
comply with their statutory mandate for the past nineteen years.
Accordingly, we grant the petition for a writ of mandamus and
order the agencies to produce a schedule within 120 days of the
issuance of this opinion for bringing all twenty-three parks into
compliance. See In re United Mine Workers of Am. Int’l Union,
190 F.3d 545, 554-56 (D.C. Cir. 1999) (ordering an agency to
produce a schedule in response to a mandamus petition and
retaining jurisdiction); MCI Telecomms. Corp. v. FCC, 627
F.2d 322, 343-46 (D.C. Cir. 1980) (same); Nader, 520 F.2d at
207 (same).
We fully expect that the agencies will make every effort to
produce a plan that will enable them to complete the task within
two years, as Congress directed. If the agencies anticipate that
15
it will take them more than two years, they must offer specific,
concrete reasons for why that is so in their proposal.
The court will retain jurisdiction to approve the plan and
monitor the agencies’ progress. After the plan is approved, the
agencies are directed to submit updates on their progress every
ninety days until their statutory obligations are fulfilled.
So ordered.