City of Las Vegas v. Faa ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LAS VEGAS, NEVADA, a 
political subdivision of the State
of Nevada; ENVIRONMENTAL
COALITION, INC., a Nevada
corporation; CANYON GATE
HOMEOWNERS ASSOCIATION, INC., a
Nevada corporation; CANYON
RIDGE HOMEOWNERS ASSOCIATION
INC., a Nevada Corporation; SUN
CITY SUMMERLIN COMMUNITY
ASSOCIATION, INC., a Nevada
corporation; VALERIE E. WEBER,
Member, Nevada State Assembly,
Clark County District 5; ROBERT No. 07-70121
W. HALL, an individual; GREG
TOUSSAINT, an individual; AND
 FAA FONSI/ROD
CHARLES JONES, an individual, OPINION
Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION,
United States Department of
Transportation; MARY E. PETERS,
Secretary of Transportation;
MARION C. BLAKEY, Administrator,
Federal Aviation Administration;
and WILLIAM C. WITHYCOMBE,
Regional Administrator, FAA
Western Pacific Region,
Respondents.

7061
7062 CITY OF LAS VEGAS v. FAA
On Petition for Review of an Order
of the Federal Aviation Administration
Argued and Submitted
October 22, 2008—San Francisco, California
Filed June 12, 2009
Before: Mary M. Schroeder, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt
CITY OF LAS VEGAS v. FAA 7065
COUNSEL
Bradford R. Jerbic, Esq., City Attorney, Las Vegas, Nevada,
for petitioner City of Las Vegas.
Barbara E. Lichman, Esq.; Berne C. Hart, Esq.; Ricia R.
Hager, Esq., Chevalier, Allen & Lichman, LLP, Costa Mesa,
California, for the petitioners.
Anne Christenson, Esq.; Joseph Manalili, Esq., Office of Gen-
eral Counsel, Federal Aviation Administration, Washington,
DC, for the respondents.
Ronald J. Tenpas, Esq., Acting Assistant Attorney General,
Andrew C. Mergen, Esq.; Ronald M. Spritzer, Esq., Environ-
ment & Natural Resources Division, Washington, DC, for the
respondents.
OPINION
REINHARDT, Circuit Judge:
In 2006, the Federal Aviation Administration (FAA) issued
a Finding of No Significant Impact (FONSI)/Record of Deci-
sion (ROD) approving the modification of the departure route
at Las Vegas McCarran International Airport that would
direct a third of the eastbound flights departing west from one
of the runways to complete a turn to the north of the airport
instead of the south. The City of Las Vegas and other commu-
nities to the north of the airport, as well as individual residents
of those communities, have filed a petition for review chal-
lenging the FONSI/ROD under the Administrative Procedure
Act (APA), the National Environmental Policy Act (NEPA),
and the Clean Air Act (CAA). We deny the petition.
I. Factual Background
This case involves the flight departure paths from one of
the runways at the Las Vegas McCarran International Airport.
7066 CITY OF LAS VEGAS v. FAA
There are two sets of parallel runways at the airport: one set
oriented from east to west (7L/R and 25L/R) and one set ori-
ented from north to south (1L/R and 19L/R). Most of the
planes depart to the west and to the south due to prevailing
winds, but many of those flights are bound for destinations to
the east. Prior to 2001, more than 60% of eastbound flights
departing to the west from Runway 25R flew west for some
time and then turned to the right over the territory to the north
of the airport.
In 2001, the FAA issued a FONSI/ROD to implement a
new plan — “the Four Corner Post Plan” — that directed
approximately 95% of the flights departing westward from
Runway 25R but heading to the east to turn left over the terri-
tory to the south of the airport. The remaining 5% of the
flights still turned right and completed the turn in the north-
erly direction, following a slightly different path from that
taken before. According to the petitioners, this new plan was
an improvement over the earlier route because it avoided fly-
ing above the more densely populated area to the north of the
airport, including Las Vegas, or near the Nellis Air Force
Base and North Las Vegas Airport.
In 2005, the FAA proposed another change to the flight
paths: about a third of the eastbound flights departing west
from Runway 25R would turn right along a new northern
path, while two-thirds would continue the left turn under the
Four Corner-Post Plan. The stated purpose of increasing the
air traffic to the north was to improve airspace efficiency and
reduce departure delays. On November 22, 2005, the FAA
made available for public review and comment the Draft Sup-
plemental Environmental Assessment (DSEA) of the pro-
posed flight paths.
At the end of December 2005, after the publication of the
DSEA, the FAA learned that its proposal violated the design
criteria for flight paths in FAA Order 8260.44A, which estab-
lishes the minimum leg lengths between each “waypoint” —
CITY OF LAS VEGAS v. FAA 7067
predetermined geographical positions that map out the desired
departure path of the flights, including when the flight should
begin its turn. The FAA Air Traffic Division then modified
the proposed flight path by adding another waypoint, setting
the maximum flight speed, and imposing some limits on the
use of the procedure. Because these changes to the route still
did not satisfy FAA Order 8260.44A, the Air Traffic Division
also applied for a waiver of the design criteria pursuant to
FAA Order 8260.19C. Such waivers are forwarded to the
FAA Flight Technologies and Procedures Division for
approval. See FAA Order 8260.19C § 830(i).
On November 14, 2006, the FAA made the Final Supple-
mental Environmental Assessment (FSEA) available to the
public, and concurrently issued the FONSI/ROD, which gave
agency approval to the proposed route without the need for a
more detailed Environmental Impact Statement (EIS). See
Notice of Availability, 71 Fed. Reg. 67949-03 (Nov. 24,
2006). At that point, however, the waiver of the design
criteria had not been approved yet by the Flight Technologies
and Procedures Division. The waiver was approved on Janu-
ary 19, 2007.1
Petitioners filed a petition for review of the agency order on
January 11, 2007. We denied Petitioners’ Emergency Motion
for Stay Pending Review of Agency Order on March 19,
2007, and thereafter the FAA began to use the northern depar-
ture path. We now deny the petition for review.
1
We grant Petitioners’ Request for Judicial Notice in Support of Peti-
tioners’ Reply Brief Exhibit A, which establishes the undisputed fact that
the waiver was approved on January 19, 2007, after the close of the
administrative proceedings. Fed. R. Evid. 201; see Transmission Agency
of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 924 n.3 (9th Cir. 2002)
(taking judicial notice, on appeal, of a decision released by an administra-
tive law judge after the district court’s decision).
7068 CITY OF LAS VEGAS v. FAA
II. Standing
[1] To bring the petition for review, at least one of the peti-
tioners must have standing. See Watt v. Energy Action Educ.
Found., 454 U.S. 151, 160 (1981). Las Vegas asserts that it
has standing based on a procedural injury. To establish such
standing, Las Vegas must show that it was accorded a proce-
dural right to protect its interests and that it has concrete inter-
ests that are threatened. See Douglas County v. Babbitt, 48
F.3d 1495, 1500 (9th Cir. 1995). It satisfies the first require-
ment because NEPA accords a procedural right to “local
agencies, which are authorized to develop and enforce envi-
ronmental standards,” 42 U.S.C. § 4332(2)(C), and Las Vegas
is a local agency so authorized under Nevada law. See Nev.
Rev. Stat. §§ 278.010-278.630; Churchill County v. Babbitt,
150 F.3d 1072, 1078 (9th Cir. 1998), as amended by 158 F.3d
491 (9th Cir. 1998). It also satisfies the second requirement
because the proposed departure path directs flights over
densely populated parts of the city, which threatens the city’s
interests in the environment and in land management.
[2] In addition to the procedural injury, Las Vegas must
also meet the statutory requirements for standing under the
Administrative Procedure Act (APA), 5 U.S.C. § 702, by
establishing that there is a final agency action adversely
affecting the city, and that, as a result, it suffers injury within
the “zone of interests” of the statutory provision it seeks to
enforce—in this case, NEPA. Churchill County, 150 F.3d at
1078. Las Vegas also satisfies these requirements, as the
FONSI/ROD is a final agency action that adversely affects
Las Vegas, and the city alleges a concrete injury to its inter-
ests in the environment and in safety which falls within the
zone of interests of NEPA. See id.III. Jurisdiction and Exhaustion
Petitioners challenge the FONSI/ROD, an order issued by
the FAA Administrator under 49 U.S.C. Chapter 401 and 49
CITY OF LAS VEGAS v. FAA 7069
U.S.C. § 47101. We have jurisdiction under 49 U.S.C.
§ 46110.
Under 49 U.S.C. § 46110(d), however, we may only review
objections that were raised in the administrative proceeding,
unless there is “a reasonable ground for not making the objec-
tion in the proceeding.” Petitioners have raised many issues
before us that they did not raise before the agency.2 They
argue that they had no opportunity to do so because the FSEA
was issued on the same day as the FONSI/ROD, which was
the final agency action that terminated the agency proceeding.
Given this timing, we conclude that, for the information that
was available to the petitioners for the first time in the FSEA,
the petitioners present “a reasonable ground” for not raising
the objections to the new information in the proceeding.
These are objections to the issuance of FONSI before the
approval of the waiver and objections to the safety, noise, and
air quality analyses based on modifications to the path made
after the DSEA.
Petitioners, however, also raise many challenges for the
first time before us based on information that was available in
the DSEA and remained the same in the FSEA. For such
information, petitioners had full opportunity to voice their
objections during the comment period for the DSEA. Petition-
ers have thus failed to provide “a reasonable ground for not
making the objection[s] in the proceeding,” 49 U.S.C.
§ 46110(d), and we will not review them in the first instance.
IV. The FAA did not act arbitrarily or capriciously in
violation of NEPA in its analysis of the post-DSEA
modifications to the flight path
NEPA requires federal agencies to prepare an Environmen-
2
In fact, the only objection in the petition for review that was raised
before the agency was the question of whether the FAA complied with the
Clean Air Act.
7070 CITY OF LAS VEGAS v. FAA
tal Impact Statement (EIS) before undertaking “major Federal
actions significantly affecting the quality of the human envi-
ronment.” 42 U.S.C. § 4332(2)(C). Under the regulations
implementing NEPA, an agency prepares an Environmental
Assessment (EA) in order to determine whether to prepare an
EIS or to issue a Finding Of No Significant Impact (FONSI),
the latter of which excuses the agency from its obligation to
prepare an EIS. See Morongo Band of Mission Indians v.
FAA, 161 F.3d 569, 575 (9th Cir. 1998).
A court upholds the agency’s decision to issue a FONSI
instead of preparing an EIS unless the decision is arbitrary
and capricious. See Greenpeace Action v. Franklin, 14 F.3d
1324, 1331 (9th Cir. 1992). “This standard requires [the court]
to ensure that an agency has taken the requisite ‘hard look’ at
the environmental consequences of its proposed action, care-
fully reviewing the record to ascertain whether the agency
decision is founded on the reasoned evaluation of the relevant
factors.” Id. at 1332 (internal quotation marks and citations
omitted).
Petitioners argue that the FAA’s decision to issue the
FONSI/ROD was arbitrary and capricious because it did not
adequately consider the post-DSEA modifications to the flight
path. Specifically, petitioners contend that the FAA did not
take a hard look at the safety risks of the path or the noise and
air quality impacts of adding a waypoint and imposing a
speed restriction.3
3
Petitioners also argue that the FAA violated the APA by issuing the
FONSI/ROD without first granting the waiver required by FAA Order
8260.19C. Even if we were to consider this argument, which was not
raised in the Opening Brief, FAA Order 8260.19C does not require that
the waiver be issued prior to the issuance of a FONSI/ROD. The waiver
was issued by the FAA Flight Technologies and Procedures Division prior
to the FAA’s implementation of the departure path. That complied with
the FAA rule. In any event, the agency “is entitled to a measure of discre-
tion in administering its own procedural rules” where the rules do not con-
fer important procedural benefits upon individuals and the complaining
CITY OF LAS VEGAS v. FAA 7071
A. Safety
[3] Although NEPA is primarily concerned about the envi-
ronment, the regulations state that, in determining whether a
federal action would “significantly” affect the environment,
the agency should consider “[t]he degree to which the pro-
posed action affects public health and safety.” 40 C.F.R.
§ 1508.27. The agency is therefore responsible for taking a
“hard look” at the project’s effect on safety. See Metro. Edi-
son Co. v. People Against Nuclear Energy, 460 U.S. 766, 772,
775 (1983) (holding that the Nuclear Regulatory Commission
properly considered the risk and effect of a possible nuclear
accident, though it did not need to consider the effect of such
risk on the psychological well-being of residents). In the con-
text of FAA flight procedures, the Tenth Circuit has held that
NEPA is satisfied where the FAA finds “equivalent level of
flight safety and, a fortiori, no significant environmental
impact due to aircraft collisions or crashes.” City of Aurora v.
Hunt, 749 F.2d 1457, 1468 (10th Cir. 1984), abrogated on
other grounds by Village of Los Ranchos de Albuquerque v.
Marsh, 956 F.2d 970 (10th Cir. 1992).
[4] The administrative record reveals that, in this case, the
FAA did take a “hard look” at the safety of the proposed
flight path. Before seeking a waiver for the path, the FAA Air
Traffic Division conducted the series of tests required to
ensure that the proposed flight path maintains an equivalent
level of safety.4 Petitioners do not challenge the adequacy or
party has not shown “substantial prejudice.” Am. Farm Lines v. Black Ball
Freight Serv., 397 U.S. 532, 538 (1970); Steamboaters v. FERC, 759 F.2d
1382, 1390-91 (9th Cir. 1985). Here, the petitioners clearly demonstrate
no such prejudice.
4
We grant the FAA’s unopposed Motion to Supplement the Certified
Index to the Administrative Record with Document 326, which contains
results of the simulator flight tests. The federal rules provide that the par-
ties may, by stipulation, supply any omission from the administrative
record. Fed. R. App. P. 16.
7072 CITY OF LAS VEGAS v. FAA
the accuracy of these tests. Although the FSEA did not refer
to the fact that the FAA had sought a waiver of the design
criteria that was still pending approval from the Flight Tech-
nologies and Procedures Division, it correctly represented that
the FAA had ensured “flyability” and equivalent level of
safety.
Petitioners seek to bolster their argument by supplementing
the administrative record with eleven documents, all e-mails
between FAA officials discussing their efforts to obtain the
waiver. See Petitioners’ Motion to Supplement the Adminis-
trative Record; Supplemental Motion to Supplement the
Administrative Record. Courts may review such extra-record
materials only when: (1) it is necessary to determine whether
the agency has considered all relevant factors and explained
its decision, (2) the agency has relied on documents not in the
record, (3) supplementing the record is necessary to explain
technical terms or complex subject matter, or (4) plaintiffs
make a showing of bad faith. Sw. Ctr. for Biological Diversity
v. U.S. Forest Serv., 100 F.3d 1443,1450 (9th Cir. 1996).
[5] Petitioners have not shown here that the e-mail evi-
dence falls within any of the exceptions to the rule against
supplementing the administrative record. The e-mails may
suggest that the FAA officials sought the waiver to keep the
departure path within the confines of the environmental
assessment, but the issue before us is not the propriety of the
reasons for applying for a waiver of the design criteria, but
whether the FAA acted arbitrarily or capriciously in its analy-
sis of safety risks.5 As discussed above, the administrative
record shows that, despite whatever justification the FAA had
for requesting a waiver, the tests found equivalent levels of
5
Additionally, although the petitioners suggest otherwise, the FAA does
not dispute that it sought a waiver in order to implement the proposed
right-hand turn, and that it did not obtain approval until after the
FONSI/ROD had issued. In fact, the administrative record already con-
tains e-mails between FAA officials showing that they sought a waiver.
CITY OF LAS VEGAS v. FAA 7073
safety for the proposed path. Because we do not need to con-
sider the e-mails for any of the reasons permitting the supple-
mentation of the administrative record, we deny the
Petitioners’ Motion to Supplement the Administrative Record
and the Petitioners’ Supplemental Motion to Supplement the
Administrative Record, and we conclude that petitioners have
failed to show that the modified path may have a significant
effect on safety risks and thus on the environment.
B. Air Quality and Noise
[6] Petitioners next argue that the FAA’s air quality and
noise analyses were arbitrary and capricious because the FAA
failed to analyze the impact of the waiver or the post-DSEA
modifications on noise and air quality. This argument also
fails. Whether the waiver is approved or not does not impact
noise or air quality, so the FAA did not need to analyze the
waiver in those sections of the FSEA. Moreover, the record
shows that the FSEA accounted for the post-DSEA modifica-
tions to the flight path that would have some impact on the
noise and air quality analysis, such as the addition of the
waypoint and the speed restriction.6
C. Supplemental Environmental Assessment
[7] Petitioners contend that the FAA should have issued a
supplemental environmental assessment (SEA) that analyzes
the impact of the waiver and the post-DSEA modifications.
An SEA is only required, however, when the environmental
impact is significant or uncertain and the EA/FONSI is no
longer valid. See Price Road Neighborhood Ass’n, Inc. v. U.S.
Dep’t of Transp., 113 F.3d 1505, 1509-10 (9th Cir. 1997).
The FAA did not need to produce an SEA for these modifica-
6
We grant the FAA’s unopposed Motion to Supplement the Certified
Index to the Administrative Record with Document 327, which is a report
showing that the noise analysis took into account the modifications that
resulted from the inclusion of the altered procedures.
7074 CITY OF LAS VEGAS v. FAA
tions because the modifications were not significant, as evi-
denced by the FSEA, which included the analysis of the
modifications.
V. The FAA did not violate the Clean Air Act’s confor-
mity determination requirement because the pro-
posed action is categorically de minimis
[8] The Clean Air Act (CAA) requires that federal projects
“conform” to emissions limits on six criteria pollutants estab-
lished in the State Implementation Plan (SIP). 42 U.S.C.
§ 7506(c)(1). A federal agency must conduct a “conformity
determination” analysis for each criteria pollutant where the
proposed federal action would cause the total of direct and
indirect emissions of the pollutant in a nonattainment or main-
tenance area to equal or exceed certain rates. 40 C.F.R.
§ 93.153(b). The agency is exempt from the conformity deter-
mination, however, if, inter alia, an analysis (“applicability
analysis”) demonstrates that the total emissions from a pro-
posed project are below the emissions levels specified in 40
C.F.R. § 93.153(b), or if the proposed action “would result in
no emissions increase or an increase in emissions that is
clearly de minimis,” 40 C.F.R. § 93.153(c)(2). The FAA
argues that changes in departure paths are considered categor-
ically de minimis under 40 C.F.R. § 93.153(c)(2) and thus no
conformity determination or applicability analysis is required.
[9] The provisions in 40 C.F.R. § 93.153(c)(2) and the
equivalent provisions in 40 C.F.R. § 51.853(c)(2) set forth a
list of actions that would not result in an emissions increase
above the de minimis level and therefore would not require a
conformity analysis. The modification of the flight path at
issue in this petition does not fall under any of the enumerated
exceptions. It is not clear from the regulations, however,
whether the list was intended to be exclusive or illustrative.
[10] When a regulation is ambiguous, we consult the pre-
amble of the final rule as evidence of context or intent of the
CITY OF LAS VEGAS v. FAA 7075
agency promulgating the regulations. See El Comite para el
Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1070-
71 (9th Cir. 2008). Here, the preamble could not be any
clearer that the Environmental Protection Agency (EPA)
intended the list of de minimis actions to be illustrative, not
exclusive. The preamble states:
In order to illustrate and clarify that the de minimis
levels exempt certain types of Federal actions, sev-
eral de minimis exemptions are listed in
§ 51.853(c)(2). There are too many Federal actions
that are de minimis to completely list in either the
rule or this preamble.
Determining Conformity of General Federal Actions to State
or Federal Implementation Plans, 58 Fed. Reg. 63214-01,
63229 (Nov. 30, 1993). Furthermore, the preamble clearly
states that the EPA considered the type of modification in
departure paths undertaken by the FAA in this case as cate-
gorically de minimis:
In addition to the list in the rule, the EPA believes
that the following actions are illustrative of de
minimis actions:
....
(2) Air traffic control activities and adopting
approach, departure and enroute procedures for air
operations.
Id. The FAA was entitled to rely on this clear evidence of
intent to conclude that the proposed action was categorically
de minimis and did not necessitate a conformity determination
or applicability analysis.
Petitioners’ arguments to the contrary are not persuasive.
For example, petitioners ask us to take judicial notice of the
7076 CITY OF LAS VEGAS v. FAA
New York/New Jersey/Philadelphia Metropolitan Area Air-
space Redesign Environmental Impact Statement (EIS),
issued on July 30, 2007, and refer us to a sentence in the doc-
ument that states that the FAA was advised by the EPA not
to rely on the Preamble to the final rule to conclude that air
traffic control activities were de minimis. Even if this EIS —
which was issued after the FONSI/ROD in this case — were
a proper subject of judicial notice in conducting administra-
tive review, this sentence does not tell us how or when the
FAA was advised by the EPA of the alleged change in its
position. We cannot tell from this piece of evidence what
weight to give this advice.
Petitioners also argue that the EPA has proposed a rule that
adds to the list of de minimis actions under 40 C.F.R.
§ 93.153(c)(2)(xxii) a category for “[a]ir traffic control activi-
ties and adopting approach, departure and enroute procedures
for aircraft operations above 3,000 feet above ground level.”
Proposed Rules, Revisions to the General Conformity Regula-
tions, 73 Fed. Reg. 1402-01 (Jan. 8, 2008) (emphasis added).
Petitioners thus contend that air traffic procedures below
3,000 feet above ground level are not categorically de
minimis. The proposed rule, however, has not been finalized.
The EPA may, of course, in the future clarify what actions are
considered categorically de minimis for purposes of the con-
formity analysis.
[11] We therefore conclude that the FAA did not need to
conduct a full conformity determination under the CAA, or an
applicability analysis, because its proposed action was cate-
gorically de minimis. Because we resolve FAA’s compliance
with the CAA on the ground that the proposed action was cat-
egorically exempt, we do not reach the petitioners’ objections
to the air quality applicability analysis, which the FAA per-
formed in excess of its obligations under the CAA.
VI. Conclusion
[12] For the reasons stated above, we conclude that the
FAA did not act arbitrarily or capriciously by issuing a
CITY OF LAS VEGAS v. FAA 7077
FONSI/ROD that approves the northern turn from the Las
Vegas McCarran Airport. We grant the petitioners’ request
for judicial notice of Federal Register Notices. We do not
consider the requests for judicial notice that are not referred
to in this opinion, nor do we consider the FAA’s Motion to
Supplement to the Certified Index to the Administrative
Record with Document 328 because none of the materials are
necessary for resolving the issues that we reach.
PETITION FOR REVIEW IS DENIED.