Alliance for Legal Action v. Federal Aviation Administration

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ALLIANCE FOR LEGAL ACTION; J. 
RICHARD BLACK; JEAN M. BLACK;
GILSEN C. HAPPEL; ELIZABETH E.
HAPPEL; RONALD M. GOGA; CAROL
E. GOGA; PATRICIA C. EASTIN,
Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION;


JANE F. GARVEY, Administrator,
Federal Aviation Administration; No. 02-1062
UNITED STATES DEPARTMENT OF
TRANSPORTATION; NORMAN Y.
MINETA, Secretary, United States
Department of Transportation,
Respondents,
PIEDMONT TRIAD AIRPORT AUTHORITY,
a body politic and corporate of the
State of North Carolina,
Intervenor.

On Petition for Review of an Order of the
Federal Aviation Administration.

Argued: January 21, 2003

Decided: July 10, 2003

Before WILKINS, Chief Judge, and MICHAEL and
TRAXLER, Circuit Judges.

Petition for review denied by unpublished per curiam opinion.
2 ALLIANCE FOR LEGAL ACTION v. FAA
COUNSEL

ARGUED: Bruce J. Terris, TERRIS, PRAVLIK & MILLIAN,
L.L.P., Washington, D.C., for Petitioners. M. Alice Thurston, Envi-
ronment and Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.
Michael Goodman Schneiderman, FOLEY & LARDNER, Chicago,
Illinois, for Intervenor. ON BRIEF: Demian A. Schane, TERRIS,
PRAVLIK & MILLIAN, L.L.P., Washington, D.C., for Petitioners.
Thomas L. Sansonetti, Assistant Attorney General, Andrew Mergen,
Ellen Durkee, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Daphne A. Fuller, Randy Ellen Hyman, Office of Chief Coun-
sel, FEDERAL AVIATION ADMINISTRATION, Washington, D.C.,
for Respondents. Michael M. Conway, FOLEY & LARDNER, Chi-
cago, Illinois; William O. Cooke, Jr., COOKE & COOKE, Greens-
boro, North Carolina, for Intervenor.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

This case concerns the Federal Aviation Administration’s decision
to approve plans to expand the Piedmont Triad International Airport
(PTIA or the Airport) in North Carolina, which is operated by the
Piedmont Triad Airport Authority (the Airport Authority). The FAA
based its approval on an Environmental Impact Statement prepared in
accordance with the National Environmental Policy Act, 42 U.S.C.
§ 4321 et seq. A non-profit group, Alliance for Legal Action, and
seven individuals petitioned this court for review of the FAA’s deci-
sion, challenging the adequacy of the EIS and requesting that we
vacate the FAA’s decision and require the agency to prepare a new
EIS. Although the EIS was not perfect, we hold that it was sufficient.
We therefore deny the petition for review.
 ALLIANCE FOR LEGAL ACTION v. FAA 3
I.

PTIA serves the area around Greensboro, High Point, and Winston-
Salem, North Carolina. About 17,200 single-family homes and over
2,500 multi-family homes are within a five-mile radius of the Airport.
It currently has two perpendicular runways, and various expansion
plans have been considered over the years. In 1997 FedEx Corp., the
overnight delivery company, solicited expansion proposals from air-
ports in the Carolinas that were interested in accommodating a new
FedEx mid-Atlantic cargo hub. FedEx selected PTIA over five other
competing airports. After PTIA was selected, the Airport Authority
applied to the FAA for approval to expand the Airport to meet
FedEx’s needs. The expansion proposal calls for the building of a new
9,000-foot runway parallel to the existing 10,001-foot runway and the
construction of a 300-acre sorting facility between the two runways.
FAA approval is necessary to expand the Airport and to make the
project eligible for federal funding. The FAA, as part of its consider-
ation of the application, prepared an environmental impact statement
in accordance with the National Environmental Policy Act (NEPA),
42 U.S.C. § 4321 et seq.

One of the primary purposes of an EIS is to consider alternatives
to the proposed project. In fulfilling this purpose, the FAA developed
a list of alternative sites for the cargo hub. The agency also developed
alternative configurations for the runways and sorting facility at the
PTIA site. In the first stage of its alternatives analysis, the agency
eliminated most of the alternative sites and configurations because
they did not meet the requirements that the hub be located at PTIA
and that the airport have two parallel, 9,000-foot runways with space
in between for a sorting facility. The five off-site alternatives were
eliminated at this first stage mainly because they were not at the PTIA
location; nevertheless, the FAA offered additional reasons for reject-
ing each of the alternative locations. Five of the ten on-site alternative
configurations were also eliminated. The next stage of the analysis
compared the five remaining on-site configurations and the alternative
of leaving PTIA as is (known as the "no-action alternative"). These
six alternatives were the subject of extensive environmental analysis
documented in the EIS issued in November 2001. On the basis of the
EIS, the FAA selected a proposal called W1-A1, a slight modification
of the original proposal, and approved the expansion in a Record of
4 ALLIANCE FOR LEGAL ACTION v. FAA
Decision (ROD) issued December 31, 2001. Under the decision the
Airport is required to mitigate the problem of increased noise by
offering to buy some properties near the Airport and providing insula-
tion for others.

Alliance for Legal Action, a non-profit group representing about
900 persons living near the Airport, and seven individuals (together,
ALA) have petitioned this court for review of the FAA’s decision
approving the Airport expansion project on the ground that it was
based on a faulty EIS. The Airport Authority has intervened as a
respondent.

II.

We first consider whether we have subject matter jurisdiction.
Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Betty B Coal Co. v.
Dir., Office of Workers’ Comp. Programs, 194 F.3d 491, 495 (4th Cir.
1999). Our jurisdiction would be based on federal aviation law, which
is collected in Subtitle VII of Title 49 of the United States Code. Sub-
title VII is divided into five parts, and the only ones relevant to this
case are Part A, Air Commerce and Safety, and Part B, Airport Devel-
opment and Noise. All of the parties agree that we have jurisdiction
under 49 U.S.C. § 46110(a), located in Part A. Section 46110(a) pro-
vides that "a person disclosing a substantial interest in an order issued
. . . under this part may apply for review of the order." The courts of
appeals have exclusive jurisdiction over such an application or peti-
tion for review. 49 U.S.C. §§ 46110(a), (c). On the other hand, a per-
son challenging an order not covered by § 46110(a) must begin in
district court by filing an action under the Administrative Procedure
Act, 5 U.S.C. § 701 et seq. The order challenged here, the ROD, con-
tains determinations required by provisions of both Part A and Part
B and by other statutes as well. For example, the ROD determines
that the proposed expansion is "reasonably necessary for use in air
commerce or for the national defense" under § 44502(b), which is in
Part A, and as a prerequisite for federal funding it approves of the
proposed airport layout plan under § 47107(a)(16), which is in Part B.
ALA’s challenge to the ROD, however, does not directly involve the
Part A determinations. ALA alleges violations of provisions of the
Airport and Airways Improvement Act (AAIA), 49 U.S.C. §§ 47101
 ALLIANCE FOR LEGAL ACTION v. FAA 5
& 47106, which are in Part B, and of NEPA, a separate statute that
is not in Part A.

The first question is whether a petition for review of the FAA’s
order is within the exclusive jurisdiction given to the courts of appeals
by § 46110(a). Specifically, we must decide whether an order includ-
ing determinations under multiple sections and statutes, with Part A
among them, may be considered an order issued under Part A. When
a statutory provision makes it "unclear whether review jurisdiction is
in the district court or the court of appeals the ambiguity is resolved
in favor of the latter." Gen. Elec. Uranium Mgmt. Corp. v. United
States Dep’t of Energy, 764 F.2d 896, 903 (D.C. Cir. 1985) (quoting
Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1197
(7th Cir. 1983)). See also Clark v. CFTC, 170 F.3d 110, 114 (2d Cir.
1999); Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192-93 (7th
Cir. 1986); cf. Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 745
(1985) ("Absent a firm indication that Congress intended to locate ini-
tial APA review of agency action in the district courts, we will not
presume that Congress intended to depart from the sound policy of
placing initial APA review in the courts of appeals."). Moreover,
"[w]hen an agency decision has two distinct bases, one of which pro-
vides for exclusive jurisdiction in the courts of appeals, the entire
decision is reviewable exclusively in the appellate court." Suburban
O’Hare Comm’n, 787 F.2d at 192 (construing predecessor statute to
§ 46110(a)). See also Sutton v. United States Dep’t of Transp., 38
F.3d 621, 625 (2d Cir. 1994). We therefore hold that as long as part
of an FAA order is issued pursuant to Part A authority, review of the
order is within the exclusive jurisdiction of the courts of appeals
under § 46110(a).

We must next clarify whether a petitioner may challenge all parts
of the order or just the Part A determinations that got the order into
this court in the first place. The statute allows review in the court of
appeals of an "order issued . . . under" Part A. 49 U.S.C. § 46110(a).
The ROD is a single order containing multiple determinations and
findings; it is not a collection of several different orders. By its plain
language, the statute does not limit review to claims based on Part A.
Therefore, once the order is before an appellate court under
§ 46110(a), the court may consider a challenge to any part of it. Cf.
Sutton, 38 F.3d at 624-26 (construing predecessor statute); City of
6 ALLIANCE FOR LEGAL ACTION v. FAA
Rochester v. Bond, 603 F.2d 927, 936 (D.C. Cir. 1979) ("[W]e cannot
imagine that Congress intended the exclusivity vel non of statutory
review to depend on the substantive infirmity alleged."). But see City
of Alameda v. FAA, 285 F.3d 1143 (9th Cir. 2002), cert. denied, 123
S. Ct. 1899 (2003) (holding that a challenge to Part B determinations
in an order involving both Part A and Part B must begin in district
court). We therefore have jurisdiction to review the FAA order (or
ROD) in its entirety.

III.

ALA cites both NEPA and the AAIA in stating its case, but its
challenge to the EIS is really based on NEPA standards. NEPA’s
requirement for an EIS is triggered by any "major federal action" that
may have a significant effect on the environment, such as the FAA’s
approval of the PTIA expansion project. See 42 U.S.C. § 4332(C).
The EIS is the vehicle through which the agency contemplating an
action (1) must examine and disclose the action’s environmental
impact and (2) consider alternatives. 42 U.S.C. § 4332(2)(C)(iii).
Here, ALA claims that the FAA’s Record of Decision approving the
Airport expansion project cannot stand because it was based upon a
faulty EIS. ALA challenges the EIS on the grounds that (1) the FAA’s
statement of purpose and need in the EIS was too narrow, which led
the agency to consider an inadequate range of alternatives to the proj-
ect as proposed by its sponsors, and (2) the FAA fell short in its study
of the environmental impacts of the project that it approved.

A.

An EIS must begin with a statement of the purpose and need for
the proposed federal action, 40 C.F.R. § 1502.13; and, as we said
above, it must include an evaluation of alternatives to the action, 42
U.S.C. § 4332(2)(C)(iii). The agency need not consider all of the pos-
sible alternative actions in the EIS; it is only required to look at those
that are reasonable in light of the project’s stated purpose. See Friends
of Southeast’s Future v. Morrison, 153 F.3d 1059, 1065-67 (9th Cir.
1998). Here, the EIS states that the purpose and need for the airport
expansion project is to build a cargo hub at PTIA with parallel,
widely spaced, 9,000-foot runways. ALA claims that this statement
defines the project’s goals too narrowly, allowing them to be set by
 ALLIANCE FOR LEGAL ACTION v. FAA 7
what FedEx (and the Airport Authority, which actually submitted the
proposal) wanted from the project. This narrow statement of purpose
and need led the agency to consider only alternatives that met
FedEx’s needs. The FAA, says ALA, should have started with a
broader statement that reflected the general goal of building a cargo
hub to serve the mid-Atlantic region. A broader statement would have
prompted consideration of a wider variety of alternatives.

The statement of a project’s purpose and need is left to the agen-
cy’s expertise and discretion, and we defer to the agency if the state-
ment is reasonable. Friends of Southeast’s Future. 153 F.3d at 1066-
67. The reasonableness of a given statement of purpose and need
depends first on the nature of the proposed federal action. Here, the
FAA prepared the EIS to consider the environmental impacts of its
approval of a proposal sponsored from outside the agency. In this sit-
uation, the project sponsor’s goals play a large role in determining
how the purpose and need is stated. See Citizens Against Burlington,
Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991); La. Wildlife Fed’n
v. York, 761 F.2d 1044, 1048 (5th Cir. 1985) (per curiam). But see
Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986) (noting
that the agency should consider the project’s "general goal . . . to
deliver coal from mine to utility," not the sponsor’s goal of building
a coal dock). At the same time, the goals that Congress has set for the
agency must also figure into the formulation of the statement. Citizens
Against Burlington, 938 F.2d at 196.

Here, of course, the goals of the project sponsors (the Airport
Authority and FedEx) are to expand PTIA in a configuration that
meets FedEx’s preferences. ALA argues that the FAA gave those
preferences too much weight. The agency, however, is under a con-
gressional mandate to encourage and facilitate the construction of
cargo hubs. 49 U.S.C. §§ 47101(a)(4), (7). It is reasonable for the
agency to advance this goal by facilitating the construction of effi-
cient cargo hubs. The FAA does not, however, have any expertise in
operating hubs. It was therefore appropriate for the agency to take
into account FedEx’s and the Airport Authority’s expertise in design-
ing and locating a hub. See Citizens Against Burlington, 715 F.2d at
196-98 & n.6. Moreover, the sponsors’ goals and Congress’s goal for
the agency (facilitating the development of hubs) coincide in this
case. These factors made it reasonable for the FAA, in stating the
8 ALLIANCE FOR LEGAL ACTION v. FAA
project’s purpose and need in the EIS, to draw on the expertise of the
project sponsors and to reflect their goals.

Even if meeting FedEx’s (and the Airport Authority’s) needs is an
appropriate consideration, ALA argues, the airport configuration
required by the statement of purpose and need is not necessary to sup-
port effective cargo hub operations. But the FAA reasonably deter-
mined otherwise. The agency found that the configuration would
minimize delays and provide FedEx with several operational advan-
tages, such as the ability to launch all of its planes within a seventy-
minute window. Because the agency’s determination is supported by
substantial evidence, we defer to it. See Roanoke River Basin Ass’n
v. Hudson, 940 F.2d 58, 61 (4th Cir. 1991).

ALA also argues that the Airport could support FedEx’s operations
with a new runway shorter than the 9,000 feet required by the state-
ment of purpose and need. Although ALA provides alternate calcula-
tions suggesting that a shorter runway would serve FedEx adequately,
substantial evidence supports the agency’s determination that a 9,000-
foot runway is needed. See id.

B.

An EIS must include a discussion of the environmental impacts of
the proposed action. 42 U.S.C. § 4332(C)(i); Sierra Club v. Morton,
510 F.2d 813, 821 (5th Cir. 1975); 40 C.F.R. § 1502.16. ALA argues
that the FAA’s consideration in the EIS of the environmental impacts
of the expansion suffers from three flaws. First, the agency’s exami-
nation of the effect of the expansion on noise levels is insufficient
because it relies on faulty assumptions and does not take adequate
account of the intensity of FedEx’s nighttime operations. Second, to
the extent that the nighttime noise is examined, the data is not pre-
sented in a meaningful way. And third, the agency failed altogether
to consider aircraft emissions and population growth, two types of
environmental impact that ALA considers important.

The agency calculated noise impacts assuming that 95 percent of
FedEx’s air traffic would pass over the area to the southwest of the
Airport. ALA offers several reasons, including competing traffic and
wind direction, why FedEx might not keep its traffic over the south-
 ALLIANCE FOR LEGAL ACTION v. FAA 9
west, pointing out that the company is under no obligation to follow
that pattern. Indeed, the company insisted that the Airport not restrict
its pattern. But FedEx’s plan for the hub is built around a traffic pat-
tern that will keep its planes to the southwest. FedEx did not want to
be tied to this pattern, but the FAA reasonably assumed that the com-
pany would generally operate the hub as it has planned. The calcula-
tions based on this assumption are supported by substantial evidence,
and we will not disturb them. See Roanoke River Basin Ass’n, 940
F.2d at 61.

ALA also argues that the FAA’s assumptions in its noise calcula-
tions failed to account for the extra noise generated by airplanes heav-
ily loaded with freight, taking off into a headwind, or taxiing or
waiting on the ground. Furthermore, an improved version of the noise
analysis program came out seven months before the EIS was com-
plete, but the FAA did not use it. ALA’s major complaint about the
adequacy of the noise analysis is that it takes insufficient account of
the concentration of FedEx’s operations in the middle of the night.
The agency used as its primary measurement the daily noise level
(DNL), which averages sound across an entire year. This measure-
ment diluted the noise impact of the FedEx planes. But the FAA also
performed two other types of noise analysis, the Equivalent Sound
Level test (Leq(9)) and the Sound Exposure Level test (SEL), that
provided more information on what the noise impact will be at partic-
ular times of day. ALA complains that even these measurements do
not adequately capture the effects of FedEx’s planes taking off one
after another in the middle of the night. The agency’s expertise on
how to measure environmental impacts is entitled to deference. See
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289-
90 (4th Cir. 1999); Friends of the Boundary Waters Wilderness v.
Dombeck, 164 F.3d 1115, 1129-30 (8th Cir. 1999); Or. Envtl. Council
v. Kunzman 817 F.2d 484, 496 (9th Cir. 1987). "Agencies are entitled
to select their own methodology as long as that methodology is rea-
sonable." Hughes River Watershed Conservancy, 165 F.3d at 289.
The FAA’s noise analysis may not have been perfect, but it was not
unreasonable.

ALA argues that the alternative noise measurements are not pre-
sented in the EIS in a manner that makes them understandable and
useful to the people likely to suffer from the noise. The Leq(9) data
10 ALLIANCE FOR LEGAL ACTION v. FAA
is presented in a table but not on a map; the SEL data is plotted on
a map, but in a way that does not offer any information beyond what
is already available from the DNL map. Providing the public with
information about environmental impacts is one of the essential goals
of NEPA. Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 356 (1989). But the agency’s failings on this count in this case
are not significant enough for us to reject an otherwise adequate EIS.
We only ask whether an EIS contains "[a] reasonably thorough dis-
cussion of the significant aspects of the probable environmental con-
sequences." Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.
1974). See also Wyoming Farm Bureau v. Babbitt, 199 F.3d 1224,
1240 n.13 (10th Cir. 2000). By this standard, the EIS’s consideration
and presentation of noise impacts were adequate.

ALA identifies two other environmental impacts that it says the
EIS should have included: the effect of air pollution from toxic air-
plane emissions and the effect of population growth induced by the
expansion. On the first, ALA cites several studies suggesting (but not
concluding) that toxic airport emissions are dangerous to human
health. The EPA, which administers air pollution programs, signed off
on the FAA’s determination that the project would conform with cur-
rent law. Of course, the fact that the emissions are within legal limits
does not mean that they have no impacts that need to be considered.
Here, because there is support for the FAA’s contention that there is
no known cause-and-effect relationship between airplane emissions
and human health, the agency was reasonable in its decision not to
study these effects further. With respect to population growth, the
FAA projects that construction of the hub will lead to population
growth of only 2 percent by 2019. In light of the region’s projected
25 percent growth for the same period, the hub’s projected effects on
the area’s population were insignificant enough to be left out of the
EIS.

The FAA’s environmental impact statement was not perfect, but it
was adequate to support the agency’s decision to approve the expan-
sion project. The petition for review is therefore denied.

PETITION DENIED