Airport Neighbors Alliance, Inc. v. United States

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 7/23/96
TENTH CIRCUIT

AIRPORT NEIGHBORS ALLIANCE, INC.,)
a New Mexico corporation, )
)
Petitioner, )
)
v. ) No. 95-9503
)
UNITED STATES OF AMERICA; )
FEDERICO PENA, Secretary of )
Transportation; DAVID R. HINSON, )
Administrator, Federal Aviation )
Administration; CYNTHIA RICH, )
Assistant Administrator, Airports )
Division; ALBUQUERQUE, CITY OF, )
)
Respondents. )

Petition for Review from a Final Order of the
Federal Aviation Administration

Eric Ames of the Western Environmental Law Center, Taos, NM, (Grove T.
Burnett, of the Western Environmental Law Center, with him on the brief) for
Petitioner.
Michael M. Conway of Hopkins & Sutter, Chicago, IL (Mark G. Shoesmith, of
the Albuquerque City Attorney’s Office, NM, and Michael Schneiderman, of
Hopkins & Sutter, Chicago, IL, with him on the brief) for Respondent City of
Albuquerque.

Peter R. Steenland, Jr., U.S. Department of Justice (Lois J. Schiffer, Asst. Atty.
General, and Andrew C. Mergen, Attorney, U.S. Department of Justice, and
Daphne A. Fuller, Eric Anderson and Loretta Barlow, Federal Aviation
Administration, with him on the brief) for the Federal Respondents.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
LUCERO, Circuit Judge.

EBEL, Circuit Judge.

The number of passengers flying in and out of New Mexico’s sole

commercial jet airport has been increasing during the 1990s, and the City of

Albuquerque--home to the Albuquerque International Airport--projects the

passenger traffic at the Airport to continue a steep ascent. Anticipating a growing

influx in passengers, the City proposed to upgrade Runway 3-21 at the

Albuquerque International Airport in order to enable it to accommodate large

aircraft such as commercial jets. The Federal Aviation Administration, pursuant

to the National Environmental Policy Act, prepared an Environmental Assessment

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("EA") for the proposed action and, following public comment, issued a Decision

and Order which approved the runway expansion and incorporated a Finding of

No Significant Impact to the environment ("FONSI"), foreclosing Respondents'

need to prepare an Environmental Impact Statement ("EIS"). Petitioner Airport

Neighbors Alliance Inc., an assembly of neighborhood associations surrounding

the Airport, challenges the FAA's decision to issue a FONSI, and argues that the

agency should have prepared an EIS. Airport Neighbors considers the EA inad-

equate for: (1) failing to consider cumulative impacts associated with the Run-

way 3-21 upgrade; (2) failing to consider a reasonable range of alternatives to the

Runway 3-21 upgrade; and (3) failing to analyze adequately noise and safety

effects related to the Runway 3-21 upgrade. For the reasons stated below, we

AFFIRM the FAA's decision to issue a FONSI.

Background

The Airport is located four miles south of Albuquerque's central business

district and is surrounded by residential neighborhoods to the north, Kirtland Air

Force Base to the east and southeast, undeveloped land to the south, and industrial

operations to the west. The Airport is served by four runways. At the time the

Runway 3-21 upgrade was proposed, only two of the runways--Runway 8-26 and

Runway 17-35--could be used by commercial jet aircraft. Runway 8-26 was the

primary runway, with Runway 17-35 being used less than six percent of the year.

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The other two runways--Runway 3-21 and Runway 12-30--were of insufficient

width, length, and pavement strength to accommodate air carrier jet traffic.

In December 1993, the City, in anticipation of a projected increase in

passenger use during the upcoming decades, announced a Master Plan for the

Airport which sets forth a construction schedule in three phases over 20 years.

The components of the Master Plan include: upgrading Runway 3-21 to ac-

commodate commercial jet traffic; reconstructing Runway 8-26; closing Runway

17-35; expanding the terminal facility; constructing a second parking structure;

building a new cargo services building; expanding surface access roads; and

relocating rental car facilities.

At the same time the City issued the Master Plan, the FAA issued a draft

EA for upgrading Runway 3-21, which is the proposed action being challenged

here. Specifically, the proposal included shifting the runway's centerline 50 feet

to the southeast, lengthening the runway to 10,000 feet, widening the runway to

150 feet, and increasing the pavement strength to accommodate commercial jet

and military aircraft. Respondents characterize the two purposes of the proposed

action as: (1) insuring the airport's ability to accept jet air traffic while the

primary runway, Runway 8-26, is closed for reconstruction; and (2)

accommodating the projected growth in air traffic at the Airport. On July 28,

1994, the FAA finalized the EA, and it issued the FONSI in October, 1994. Work

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on the Runway 3-21 upgrade project since has been completed to the point that

commercial aircraft currently use Runway 3-21 for takeoffs and landings. 1

Airport Neighbors now challenges the FAA's decision to issue a FONSI, arguing

that the EA was inadequate because it failed to address the cumulative impacts of

the proposed action, several alternatives to the proposed action, and noise and

safety concerns.

Mootness

Because construction on Runway 3-21 has been substantially completed, we

must consider whether Airport Neighbors’ appeal is now moot. Although both

parties stated at oral argument they do not consider this action moot, we are under

an independent obligation to examine our own jurisdiction. Clajon Prod. Corp. v.

Petera, 70 F.3d 1566, 1574 n.14 (10th Cir. 1995) (citing FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990)). Ordinarily, a NEPA claim no longer presents

a live controversy when the proposed action has been completed and when no ef-

fective relief is available. See Neighborhood Transp. Network, Inc. v. Pena, 42

F.3d 1169, 1172 (8th Cir. 1994); Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th

1
Although the Runway 3-21 construction had not been completed at the time
the parties submitted their briefs, the City filed a motion for leave to file a status
report instanter prior to oral argument, which we now grant. The status report
consists of an affidavit by Dennis A. Parker, assistant aviation director for the
City. In the affidavit, Parker states that Runway 3-21 opened for air carrier use
on August 25, 1995 and that remaining aspects of the project were substantially
completed on December 17, 1995.

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Cir. 1988). However, courts still consider NEPA claims after the proposed action

has been completed when the court can provide some remedy if it determines that

an agency failed to comply with NEPA. See National Parks and Conservation

Ass'n v. FAA, 998 F.2d 1523, 1524 n.3 (10th Cir. 1993) (finding case challenging

airport construction not moot after construction was completed when restrictions

could be placed on the use of an airport); Burbank Anti-Noise Group v. Gold-

schmidt, 623 F.2d 115, 116 (9th Cir. 1980) (holding action challenging already

completed sale of airport not moot when the actions could be "undone"), cert.

denied, 450 U.S. 965 (1981).

We do not believe that the present case is moot because if we find that the

Respondents failed to comply with NEPA, we could order that the runway be

closed or impose restrictions on its use until Respondents complied with NEPA.

The majority of environmental concerns surrounding Runway 3-21 relate not to

the actual physical construction of the enlarged runway, but rather to the new

patterns of commercial jets using the runway. For example, the EA discusses in

detail the impacts that the operation of jets using the runway will have on noise,

air quality, and water quality. In contrast, the EA only briefly addresses the

construction impacts and considers such impacts to be only temporary. Therefore,

although the fact that the upgrade of Runway 3-21 has been completed renders

moot any claim relating to the construction of the runway, we still may consider

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whether Respondents complied with NEPA by adequately addressing the envi-

ronmental impacts resulting from the enhanced use of the runway.

The NEPA Framework

NEPA requires that federal agencies draft an EIS in conjunction with

"every recommendation or report on proposals for … major Federal actions

significantly affecting the quality of the human environment.…" 42 U.S.C. §

4332(C). Under NEPA, an agency generally prepares an EA of the proposed

action to guide whether it should prepare an EIS or issue a FONSI. 40 C.F.R.

1501.4(a)-(c). If the agency determines that its proposed action may "sig-

nificantly affect" the environment, the agency must prepare a detailed statement

on the environmental impact of the proposed action in the form of an EIS. City of

Aurora v. Hunt, 749 F.2d 1457, 1464 (10th Cir. 1984). If the agency determines

that its proposed action will not significantly affect the environment, it may issue

a FONSI. Id.

The initial determination concerning the need for an EIS lies with the

agency. Id. at 1468. The reviewing court's role is to determine whether the

"agency has adequately considered and disclosed the environmental impact of its

actions and that its decision is not arbitrary or capricious." Id. at 1465-66 (citing

Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S.

87 (1983)).

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 I. Whether the EA adequately addresses cumulative impacts.

Airport Neighbors argues that the EA impermissibly ignores the cumulative

impacts associated with the Runway 3-21 upgrade. Airport Neighbors claims that

the proposed action is a single component in a larger contemplated expansion at

the Airport, as evidenced by the Master Plan. Therefore, Airport Neighbors

believes that the EA should have addressed the environmental impacts of several

projects proposed in the Master Plan such as expansion of the passenger terminal,

construction of a second parking structure, construction of a new cargo terminal,

and expansion of surface access roads. 2 The FAA and City respond that the

Runway 3-21 project has independent utility from other components of the Master

Plan, which at this time are merely elements of a plan that might be completed

over a 20-year period. The Respondents state that the FAA will follow NEPA

procedures for each component of the Master Plan when the City actually

proposes to construct the particular component.

In determining whether a proposed action will significantly affect the

environment and therefore trigger an EIS, the agency must consider:

[w]hether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance exists if it

2
The EA does address the environmental effects of closing Runway 17-35 as
the City plans to close this runway following the completion of the Runway 3-21
upgrade. Airport Neighbors does not argue that the EA's analysis of the Runway
17-35 closure is inadequate.

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 is reasonable to anticipate a cumulatively significant impact on the
environment. Significance cannot be avoided by terming an action
temporary or by breaking it down into small component parts.

40 C.F.R. § 1508.27(b)(7) (emphasis added). In turn, the Council on

Environmental Quality (“CEQ”) regulations define a cumulative impact as:

the impact on the environment which results from the incremental impact of
the action when added to other past, present, and reasonably foreseeable
future actions.... Cumulative impacts can result from individually minor
but collectively significant actions taking place over a period of time.

40 C.F.R. § 1508.7 (emphasis added). Therefore, in determining whether the

Runway 3-21 upgrade will significantly affect the environment, the FAA must

consider the impact of reasonably foreseeable future actions.

In Park County Resource Council, Inc. v. United States Dep't of Agric., 817

F.2d 609 (10th Cir. 1987), we expressed the test for whether particular actions

could be considered cumulative impacts of the proposed action as whether the

actions were "so interdependent that it would be unwise or irrational to complete

one without the others." 817 F.2d at 623 quoting (Webb v. Gorsuch, 699 F.2d

157, 161 (4th Cir. 1983)). See also Sierra Club v. Froehlke, 534 F.2d 1289, 1297-

98 (8th Cir. 1976); Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th Cir.

1974). In Park County, petitioners challenged the Forest Service's issuance of a

federal oil and gas lease to a petroleum company. 817 F.2d at 612. The Forest

Service had issued a FONSI for the agency's program of issuing such leases in the

Rocky Mountain region after conducting an EA, but noted that prior to any

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drilling activity, the need for a site-specific and more comprehensive EIS would

be examined. Id. Park County argued that an EIS was required at the time the

agency issued a lease to the petroleum company because of eventual cumulative

and foreseeable effects of exploratory drilling and full field development. Id. at

622. However, because we considered development on the leased lands to be "an

extremely tentative possibility," we held that the possibility of exploratory drilling

and full-field development were not cumulative effects of granting an oil and gas

lease:

the steps from leasing to full field development are not so interdependent
that it would be unwise or irrational to complete one without the others--the
benchmark signaling the need for a cumulative impact EIS. To require a
cumulative EIS contemplating full field development at the leasing stage
would thus result in a gross misallocation of resources....

Id. at 623 (citations omitted). 3

Airport Neighbors argues that the present case is closer to Citizens for

Responsible Area Growth v. Adams, 477 F. Supp. 994 (D. N.H. 1979), where the

3
We noted, however, that as an overall regional pattern or plan evolves, the
region-wide ramifications of development will need to be considered at some
point:

A singular, site-specific [application to drill], one in a line that prior to that
time did not prompt such a broad-based evaluation, will trigger that
necessary inquiry as plans solidify. We merely hold that, in this case,
developmental plans were not concrete enough at the leasing stage to
require such an inquiry.

817 F.2d at 623.

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City of Lebanon employed the assistance of three federal agencies to expand its

airport and an adjacent industrial park, none of which decided an EIS was

necessary for the particular projects they each sponsored. Id. at 997. The City of

Lebanon argued that the three projects were independent, but the plaintiffs

characterized the three projects as a comprehensive air terminal-industrial park

development program that ultimately would expand the industrial park from 50 to

260 acres. Id. However, each of the various components of the airport expansion

and development of the adjacent industrial park either were actually underway or

were in the design and bidding stage, and the federal agencies had consistently

considered each of the components as part of a single project. Id. at 997, 1001-

02. On these facts, the court noted that the decision of whether to prepare an EIS

requires that "the agencies look not only to the full scope of the present project,

but also to the overall cumulative effect of the ultimate project." Id. at 1003.

Recognizing that the "responsibility to perform a comprehensive initial

assessment of environmental impact under NEPA is not diminished by a limited

project definition," the court ordered the FAA to prepare an EIS for the entire

development project. Id. at 1001, 1005. See also Save the Yaak Comm. v. Block,

840 F.2d 714, 720-21 (9th Cir. 1988) (requiring the Forest Service to consider

impact of increased timber harvesting that would foreseeably result from the

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proposed reconstruction of a road when an "inextricable nexus" existed between

the road reconstruction and the logging operations).

However, we consider Adams and Save the Yaak readily distinguishable

from the present case. Here, no "inextricable nexus" exists between the Runway

3-21 upgrade and other components of the Master Plan. Although the Runway 3-

21 upgrade and the other components currently might be linked, the City clearly

could sever this link by deciding to abandon the Master Plan without destroying

the proposed action's functionality; the upgrade still would serve the purpose of

accommodating the influx of passengers anticipated to occur during the upcoming

decades at the state's only commercial jet passenger airport. 4 And unlike in

Adams, where the agencies "themselves once treated the proposed and completed

construction at Lebanon Airport as one project," see 477 F. Supp. at 1002, and

where the City of Lebanon had publicly discussed the projects as being

interdependent, see id. at 1001 n.13, the record suggests that the FAA and the

City would upgrade Runway 3-21 even if the other components of the Master Plan

never get off the ground.

Therefore, applying the Park County test, we agree with Respondents that

the remaining components of the Master Plan are not so interdependent that it

4
The EA states that the Airport enplaned 2,461,434 passengers in 1991 and
forecasts that 5,900,000 passengers will enplane annually by 2015.

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would be unwise or irrational to complete the Runway 3-21 upgrade without

them. We recognize that one of the asserted purposes of the Runway 3-21

upgrade is to accommodate air traffic while another component of the Master

Plan--reconstruction of the 8-26 Runway--is proceeding. However, the alternate

purpose of the Runway 3-21 upgrade--to accommodate the inevitable increased

passenger traffic flying in and out of the Airport--possesses a justification

independent from other components of the Master Plan. Upgrading Runway 3-21

does not necessarily signal a commitment to proceed with the rest of the Master

Plan. Accordingly, we do not believe that the FAA inappropriately ignored

cumulative impacts when it failed to analyze extensively the remaining com-

ponents of the Master Plan in the EA. As in Park County, requiring a cumulative

EIS analyzing possible future actions postulated in a twenty-year Master Plan that

are far from certain would result in "a gross misallocation of resources, would

trivialize NEPA and would diminish its utility in providing useful environmental

analysis for major federal actions that truly affect the environment." 817 F.2d at

623 (quotations omitted). 5

5
Airport Neighbors suggests that the various elements of the Master Plan also
can be considered "connected actions" because they are projects that "cannot or
will not proceed unless other actions are taken previously or simultaneously" and
constitute "interdependent parts of a larger action and depend on the larger
actions for their justification." See 40 C.F.R. § 1508.25(a)(1). Assuming,
without deciding, that this definitional section applies to EA obligations, we
conclude that the record does not show that any elements of the Master Plan
(continued...)

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 II. Whether the EA considers a reasonable range of alternatives.

Airport Neighbors argues that the EA fails to discuss reasonable

alternatives to the Runway 3-21 expansion as required by NEPA and

implementing regulations. See 40 C.F.R. § 1508.9(b) (requiring the EA to

consider the "environmental impacts of the proposed action and alternatives").

Airport Neighbors states that the FAA evaluated only one alternative--the no

action alternative--while summarily rejecting several other reasonable

alternatives, including: (1) the construction of a second east-west runway parallel

to Runway 8-26; and (2) the development of a new airport. In deciding whether

the FAA acted arbitrarily by not considering certain alternatives, we remain

mindful that an agency decision concerning which alternatives to consider is

necessarily bound by a "rule of reason and practicality." Committee to Preserve

Boomer Lake Park v. DOT, 4 F.3d 1543, 1551 (10th Cir. 1993); Environmental

Defense Fund, Inc. v. Andrus, 619 F.2d 1368, 1375 (10th Cir. 1980).

Here, we do not believe the FAA acted arbitrarily by not considering either

alternative because implementing either alternative would be infeasible. In

reviewing whether an agency should have considered a particular alternative, we

have held that "[a]n agency need not analyze the environmental consequences of

5
(...continued)
necessarily are connected to the Runway 3-21 expansion under Section
1508.25(a)(1).

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alternatives it has in good faith rejected as too remote, speculative, or as in this

case, impractical or ineffective." City of Aurora v. Hunt, 749 F.2d 1457, 1467

(10th Cir. 1984) (upholding FAA's rejection of alternative when FAA considered

alternative infeasible due to precipitous terrain, high-rise complexes, and dense

development). See also Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515,

1528 (10th Cir. 1992) (upholding agency's rejection of alternative on grounds that

agency considered alternative too speculative and dependent on many

uncertainties). Regarding the parallel runway alternative, the EA concluded that a

parallel runway could not be built more than 3,400 feet away from the existing

runway because of rapidly falling terrain to the south, east, and west, 6 and

because of developed urban use to the north. The EA also rejected a parallel

runway closer to the primary runway as infeasible because this alternative would

require the removal of two major Air Force weapons laboratories and storage

facilities. Similarly, regarding the new airport alternative, the EA sets forth

numerous reasons why constructing a new airport would be infeasible. Planners

would have to build new facilities and a new infrastructure, extend utilities and

6
The Airport is located on the edge of a mesa. As a result, a runway placed
3,400 feet away from the existing runway--the minimum distance between
runways which permits simultaneous operations on parallel runways--would be
located off the edge of the mesa and require as much as 150 feet of fill over
seventy to eighty percent of the runway length. The EA considered this
alternative as "virtually impossible" to implement.

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freeways, possibly relocate the adjoining Air Force facilities, and address

numerous environmental complications to presently undeveloped land. The EA

estimates that a new airport could cost several billion dollars. Considering these

problems with a parallel runway and a new airport, we do not find the FAA's

decision that implementing either proposed alternative would be infeasible to be

arbitrary.

III. Whether the EA adequately addresses direct and indirect effects.

Airport Neighbors next argues that in the EA the FAA ignored safety

concerns surrounding the construction on Runway 3-21 and the additional noise

that will be generated by aircraft using new air traffic patterns during

reconstruction of Runway 8-26. 7 Because construction of Runway 3-21 has been

7
Airport Neighbors’ evidence of the effects the Runway 3-21 upgrade will
have on noise and safety arises solely from an affidavit (the "Lintzenich
affidavit") that is not part of the agency record because it was not presented to the
FAA while the agency was drafting the EA, but rather was introduced for the first
time as part of the present legal proceedings. The parties accordingly dispute
whether this Court can consider on appeal the allegations made in the Lintzenich
affidavit. Normally, challengers to a proposed action must make their record
before the agency and courts will not consider any new evidence on appeal. See
New Mexico Env. Imp. Div. v. Thomas, 789 F.2d 825, 834 (10th Cir. 1986).
Airport Neighbors argues that a court can consider evidence outside the record
when necessary to establish that the agency ignored relevant factors in making its
decision. See American Mining Congress v. Thomas, 772 F.2d 617, 626 (10th
Cir. 1985), cert. denied, 476 U.S. 1158 (1986). However, as we conclude below,
we do not believe that the agency ignored any relevant factors in issuing the
FONSI, and thus we decline to consider the factual allegations contained in the
Lintzenich affidavit.

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completed, we consider Airport Neighbors’ concern over safety during

construction to be moot. Furthermore, because the reconstruction of Runway 8-26

is not part of the proposed action, the FAA was not required to address in the

present EA the impact this construction will have on noise in the area surrounding

the Airport. Airport Neighbors argues that the FAA was required to consider the

noise impact from the Runway 8-26 reconstruction as a direct or indirect effect of

the Runway 3-21 expansion. See 40 C.F.R. § 1508.8 (including direct and in-

direct effects as effects that must be considered when reviewing environmental

effects). However, Section 1508.8 defines direct or indirect effects as “effects,

which are caused by the [proposed] action....” Id. The EA states that

reconstruction of Runway 8-26 is required within the next five to seven years, and

will proceed regardless of whether Runway 3-21 is upgraded. Therefore, we find

no basis to conclude that the expansion of Runway 3-21 is the cause of the

reconstruction of Runway 8-26. Rather, It is the deteriorating condition of

Runway 8-26 which is creating the need for reconstruction; the upgrade of

Runway 3-21 merely is facilitating airport operations while Runway 8-26 is under

reconstruction. 8

8
In its briefs, Airport Neighbors raised a fourth argument that the EA relied
on inflated capacity requirements to justify the Runway 3-21 upgrading because
the predicted volume assumed the installation of an Instrument Landing System
("ILS") on Runway 3-21--a project which Airport Neighbors claimed had never
been authorized or funded. However, the FAA since has installed such an ILS
(continued...)

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 Conclusion

For the reasons stated above, we conclude that Respondents did not ignore

any cumulative impacts of the Runway 3-21 upgrade in the EA because the

upgrade of the runway is not so interdependent with the other components of the

Master Plan that it would be unwise or irrational to upgrade the runway without

implementing the Plan's other elements. We also believe that the Respondents

acted reasonably in excluding analysis of the parallel runway and new airport

alternatives from the EA. Finally, we believe the Respondents did not

inappropriately ignore noise and safety issues in the EA. We therefore AFFIRM

the FAA decision to issue a FONSI and not draft an EIS.

8
(...continued)
system on Runway 3-21. Accordingly, Airport Neighbors conceded at oral
argument that this issue is moot.

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