United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2002 Decided June 18, 2002
No. 01-1152
BFI Waste Systems of North America, Inc.,
Petitioner
v.
Federal Aviation Administration,
Respondent
On Petition for Review of an Order of the
Federal Aviation Administration
Michael S. McCarthy argued the cause for the petitioner.
Michael S. Freeman was on brief.
Jeffrica Jenkins Lee, Attorney, United States Department
of Justice, argued the cause for the respondent. Robert S.
Greenspan, Attorney, United States Department of Justice,
was on brief. Christine N. Kohl, Attorney, United States
Department of Justice, entered an appearance.
Before: Sentelle, Henderson and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Opinion concurring in part and dissenting in part filed by
Circuit Judge Tatel.
Karen LeCraft Henderson, Circuit Judge: BFI Waste
Systems of North America, Inc. (BFI), petitions for review of
a Federal Aviation Administration (FAA) decision, see Appen-
dix for Petitioner (JA) at 5-9 (Affirmation), affirming the
FAA's earlier determination that BFI's proposed expansion
of a landfill near Denver International Airport (DIA) would
be a hazard to air navigation, see id. at 207-09 (Hazard
Determination or Determination). BFI claims, inter alia,
that the Affirmation and Determination are arbitrary, capri-
cious and otherwise unlawful and that the substantive find-
ings underlying them are unsupported by substantial evi-
dence in the administrative record. We agree and therefore
grant the petition for review.
I.
The following factual recitation is divided into two sec-
tions--the first explaining the regulatory regime of the FAA
and the second detailing how BFI's landfill proposal was (or
was not) processed within that regime.
A.
Under the Federal Aviation Act of 1958 (Act), the FAA is
authorized to determine whether a proposed construction or
alteration project will present a hazard to air navigation. The
Act states that the FAA "[b]y regulation ... shall require a
person to give adequate public notice [of] ... the proposed
construction, alteration, establishment, or expansion, of a
structure or sanitary landfill when the notice will promote ...
(1) safety in air commerce; and (2) the efficient use and
preservation of the navigable airspace and of airport traffic
capacity at public-use airports." 49 U.S.C. s 44718(a). Pur-
suant to its statutory authority, the FAA has promulgated
regulations requiring a project sponsor to notify the FAA
when the sponsor proposes, inter alia, any alteration result-
ing in a sanitary landfill "of more than 200 feet in height
above the ground level at its site." 14 C.F.R. s 77.13(a)(1).
Under the regulations, "[e]ach person who is required to
notify the [FAA] under s 77.13(a) shall send [to it] one
executed form set (four copies) of FAA Form 7460-1, Notice
of Proposed Construction or Alteration." 14 C.F.R.
s 77.17(a). The information contained in the Form 7460-1 is
meant to provide the FAA with a basis for determining "the
possible hazardous effect of the proposed construction or
alteration on air navigation." 14 C.F.R. s 77.11(b)(2).
In addition to setting out notice requirements, the regula-
tions provide the standards by which alteration proposals are
evaluated. For instance, Subpart C of the regulations "estab-
lishes standards for determining obstructions to air naviga-
tion" and "applies to existing and proposed manmade objects,
objects of natural growth, and terrain." 14 C.F.R. s 77.21(a).
Subpart C states that a proposed manmade object, like a
landfill, is "an obstruction to air navigation" if it is "500 feet
above ground level at the site of the object," 14 C.F.R.
s 77.23(a)(1), or if it is "200 feet above ground level ...
within 3 nautical miles of the established reference point of an
airport, excluding heliports," 14 C.F.R. s 77.23(a)(2). Under
FAA Order 7400.2D, "Procedures for Handling Airspace Mat-
ters" (Sept. 16, 1993) (FAA Handbook)--a binding set of FAA
guidelines, see D&F Afonso Realty Trust v. Garvey, 216 F.3d
1191, 1196 (D.C. Cir. 2000) (FAA Handbook is "control-
ling")--a proposed object that exceeds the standards of Sub-
part C is presumed to have a substantial adverse effect on the
use of airspace and is therefore "presumed to be [a] hazard[ ]
to air navigation unless an aeronautical study determines
otherwise." FAA Handbook p 7-1(b).
The Act and the regulations require the FAA, in certain
circumstances, to conduct an aeronautical study to determine
the extent of any adverse impact on the use of airspace. The
relevant provision of the statute provides that
[u]nder regulations prescribed by the Secretary [of
Transportation], if the [FAA] decides that constructing
or altering a structure may result in an obstruction of the
navigable airspace or an interference with air navigation
facilities and equipment or the navigable airspace, [it]
shall conduct an aeronautical study to decide the extent
of any adverse impact on the safe and efficient use of the
airspace, facilities, or equipment.
49 U.S.C. s 44718(b)(1). Pursuant to this statutory authority,
the Secretary has prescribed Subpart D, which provides that
[t]he Regional Manager, Air Traffic Division of the re-
gion in which the proposed construction or alteration
would be located ... conducts [an] aeronautical study
[that] ... may include the physical and electromagnetic
radiation effect the proposal may have on the operation
of an air navigation facility....
To the extent considered necessary, the Regional Manag-
er ... [s]olicits comments from all interested persons;
... [e]xplores objections to the proposal and attempts to
develop recommendations for adjustment of aviation re-
quirements that would accommodate the proposed con-
struction or alteration; [and] ... [c]onvenes a meeting
with all interested persons for the purpose of gathering
all facts relevant to the effect of the proposed construc-
tion or alteration on the safe and efficient utilization of
the navigable airspace.
14 C.F.R. s 77.35(a), (b). Once an aeronautical study has
been initiated, the FAA applies all of its "operational, proce-
dural and electronic" standards (including those pertaining to
radar coverage) to "determine if the object being studied
would actually be a hazard to air navigation." FAA Hand-
book p 7-1(b); see id. p 7-3 ("An object to be considered for
adverse aeronautical effect must first exceed the obstruction
standards of Subpart C ... and/or be found to have physical
or electromagnetic radiation effect on the operation of air
navigation facilities."). Upon the study's conclusion, the Re-
gional Manager issues a hazard/no-hazard determination.
See 14 C.F.R. s 77.35(c). In order to issue a hazard determi-
nation, the Regional Manager "must find by a clear showing
that the [object] in question will have a 'substantial adverse
effect' on air navigation." D&F Afonso, 216 F.3d at 1195
(citing FAA Handbook p p 7-2 to 7-5, 8-2); see also FAA
Handbook Fig. 4-23[9]. The Regional Manager's determina-
tion is final unless the FAA grants discretionary review. See
14 C.F.R. s 77.37.
A hazard/no-hazard determination has "no enforceable legal
effect." Aircraft Owners & Pilots Ass'n v. FAA, 600 F.2d
965, 966 (D.C. Cir. 1979). The FAA lacks authority to
prohibit a construction or alteration it believes to be hazard-
ous to air navigation.1 See id. at 967. Nonetheless, a hazard
determination can hinder the project sponsor in acquiring
insurance, securing financing or obtaining approval from state
or local authorities. See id.
B.
BFI is a waste disposal company that operates solid waste
landfills in Colorado, including the Tower Road landfill at
issue here. The Tower Road landfill is located approximately
two miles west of DIA in Commerce City, Colorado. Before
1999 BFI had permission from state and local authorities to
extend the landfill vertically to 119 feet above ground level
(AGL) at its tallest point. In February 1999 BFI obtained
state and local authorization to increase the landfill's height
by 157 feet (to 276 feet AGL) over a period of 40-60 years.
Thus, as of March 1999, the FAA's regulatory approval was
the final approval needed in order to expand.
On March 16, 1999 BFI representatives met with an official
from the FAA's Denver Airports District Office (ADO). At
the meeting, BFI submitted a preliminary FAA Form 7460-1
to the FAA and the attendees discussed the proposal's poten-
tial impact on airport traffic and radar operations. Empha-
sizing "the need to perform analysis" before drawing conclu-
__________
1 We must therefore resolve the question whether on the record
before us BFI has Article III standing to challenge the Hazard
Determination and the Affirmation. See infra Part II.
sions, the ADO informed BFI that "[t]he degree of impact to
the [airport surveillance radar] line of sight will need to be
studied and no commitments [are being] made at this time."
JA 47. On April 16 BFI formally submitted a Form 7460-1
to the FAA's Northwest Mountain Region regarding the 157-
foot alteration proposal. The FAA received the form, at the
earliest, on April 22. On April 26 the FAA's Northwest
Mountain Region issued a notice that it intended to conduct
an aeronautical study to determine the effect of the landfill
expansion on air navigation. At no time did the FAA "circu-
larize" the aeronautical study notice to interested parties or
even to BFI.2 On May 26 Tower Road landfill officials met
with ADO representatives who briefly toured the landfill.
Although the record recites that potential radar effects were
"currently being reviewed," id. at 83, it does not state that
radar issues were in fact discussed at the meeting.
On August 30, 1999 the FAA's Northwest Mountain Region
issued the Hazard Determination, which consisted of a form
cover letter and a one-page summary of findings. The Deter-
mination identified five adverse impacts on the safe and
efficient use of navigable airspace at DIA: (1) birds attracted
to the landfill could interfere with aircraft; (2) large dump
trucks and other heavy equipment operating on the landfill
could block or reflect radar signals; (3) the increased size of
the landfill could cause interference with radar coverage for
aircraft executing "missed approaches" on Runway 29 at
nearby Jefferson County Airport; (4) the increased size of
the landfill could cause interference with radar coverage of
the missed approach points for DIA Runway 26 and, during
certain weather conditions, DIA Runways 35L and 35R; and
(5) the increased size of the landfill could cause interference
with radar coverage for lifeguard, police, media and business
helicopters operating in downtown Denver, 20 miles south-
west of the landfill. Because DIA "currently handles more
than 1.5 million aircraft operations a year," the Determination
__________
2 The FAA generally "circulariz[es] a notice of aeronautical
study" by "notify[ing] interested persons of the study being con-
ducted" via FAA Form 7460-8. FAA Handbook p 5-21. Circulari-
zation "provides the opportunity for interested persons to partici-
pate [in the study] by submitting comments for consideration." Id.
stated, "the impacts, taken individually or cumulatively," have
a substantial adverse effect on the use of airspace and "are
determined to be Hazards to Air Navigation." Id. at 209.
On September 28, 1999 BFI filed a petition for administrative
review of the Hazard Determination. On March 3, 2000 the
FAA granted review. The FAA's notice of review invited
interested persons to submit comments to the FAA and BFI
did so.
On July 25, 2000 the FAA affirmed its initial Hazard
Determination. The Affirmation first abandoned several of
the findings made in the Determination, concluding that
neither bird problems nor interference with radar coverage of
Jefferson County Airport or of DIA Runways 26, 35L or 35R
would result from BFI's landfill alteration. The Affirmation
did, however, affirm two of the Determination's five findings
of adverse effect: (1) vehicles on top of the landfill at its
maximum height could cause radar reflections; and (2) radar
coverage of helicopters could be limited. Furthermore, the
FAA based its Affirmation on two adverse effects not men-
tioned in the Determination, i.e., the possibility that BFI's
proposal would affect radar coverage of (1) DIA Runway 25
and (2) proposed but unbuilt DIA Runway 25L.
On September 22, 2000 BFI timely petitioned for review.
II.
On March 1, 2002 we ordered the parties to submit simulta-
neous briefs addressing the question of BFI's constitutional
standing to pursue its claims in light of the advisory nature of
the FAA's Hazard Determination and Affirmation. We now
conclude that on the record before us BFI has satisfied
Article III's standing requirements--i.e., it has shown that it
has suffered or will suffer "an injury in fact" which is
"concrete and particularized," "actual or imminent," "fairly
... trace[able] to the challenged action" and "redress[able]
by a favorable decision," Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992) (internal quotations omitted); see
D&F Afonso, 216 F.3d at 1193-94.
Pursuant to Colorado law, see C.C.R. 1007-2, s 1.6.1, BFI
applied to the city council of Commerce City for a "certifi-
cate of designation" permitting it to expand the Tower
Road landfill. Under C.C.R. 1007-2, s 1.6.2-.6, the Colora-
do Department of Public Health and Environment
(CDPHE) provided Commerce City with a required report
on BFI's proposal, stating that the expansion would comply
with applicable environmental laws, provided that "[a]ny re-
striction of elevation imposed by FAA under applicable fed-
eral law ... [is] honored." JA 454. Relying on the
CDPHE report, the city council approved BFI's expansion
proposal with the express caveat that if the FAA deter-
mined "there is a problem," the council "has authority to
review the certificate of designation to determine if the
approval needs to be reconsidered, and changes made as
necessary." Id. at 457. Because, as we noted earlier, an
FAA hazard determination itself has "no enforceable legal
effect," Aircraft Owners & Pilots Ass'n, 600 F.2d at 966, it
does not function as a "restriction" on landfill elevation in
the same way that a binding federal statute or regulation
would. Nonetheless, a hazard determination is the only
means by which the FAA can "restrict[ ]," within the mean-
ing of the CDPHE report, the elevation of the Tower Road
landfill. Accordingly, we conclude that the CDPHE report,
which was incorporated into the city council's approval, ex-
pressly conditioned BFI's certificate of designation on the
FAA's non-issuance of a hazard determination. We there-
fore credit BFI's allegation--supported by the declaration
of its regional vice-president in charge of the Tower Road
landfill--that it faces a concrete, imminent injury from the
reopening and modification of the state and local approvals
as a result of the Hazard Determination. Plainly, the inju-
ry is "fairly ... trace[able] to the challenged action"--that
is, the FAA's alleged arbitrary and capricious decision-
making--and it is "redress[able] by a favorable decision,"
one vacating and remanding the Determination and Affir-
mation. Lujan, 504 U.S. at 560-61.
III.
Having determined that BFI's petition for review is prop-
erly before us, we now turn to the FAA's Determination and
Affirmation to determine whether, based on the administra-
tive record, they are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5
U.S.C. s 706(2)(A). The FAA's determinations are arbitrary
and capricious if, inter alia, they are "not supported by
substantial evidence" in the record as a whole. Motor Vehicle
Mfrs. Ass'n v. Ruckelshaus, 719 F.2d 1159, 1164 (D.C. Cir.
1983); see 49 U.S.C. s 46110(c). We address BFI's two
major claims in turn.
A.
First, BFI contends that the Determination and Affirma-
tion were arbitrary, capricious and otherwise unlawful be-
cause the FAA violated its own standards in (1) conducting an
aeronautical study without "circularizing" notice thereof and
without negotiating with BFI to identify mitigation measures
that could eliminate purported adverse effects; and (2) failing
to give BFI notice of the two new issues it relied on in
affirming the Determination. Both prongs of BFI's first
contention are meritorious.
When the FAA conducts an aeronautical study, it must
[t]o the extent considered necessary ... [s]olicit[ ] com-
ments from all interested persons; ... [e]xplore[ ] objec-
tions to the proposal and attempts to develop recommen-
dations for adjustment of aviation requirements that
would accommodate the proposed construction or altera-
tion; [and] ... [c]onvene[ ] a meeting with all interested
persons for the purpose of gathering all facts relevant to
the effect of the proposed construction or alteration on
the safe and efficient utilization of the navigable airspace.
14 C.F.R. s 77.35(b) (emphasis added). Here, the FAA
performed none of these tasks.3 Nor did it explain its
reasons for declining to do so. The government argues that
the "to the extent considered necessary" language of section
__________
3 The only point at which the FAA invited comments--in its
notice of review--occurred after it issued the Hazard Determina-
tion, i.e., after it had already acted arbitrarily in failing to solicit
comments.
77.35 gives the agency discretion not to perform the tasks.
Its argument, however, ignores the Act, the FAA Handbook
and the relevant case law. As the Eighth Circuit has held,
section 77.35 "must be interpreted to require the FAA to
provide interested persons with an opportunity to comment
upon proposed construction where notice would promote air
safety and efficiency." White Indus., Inc. v. FAA, 692 F.2d
532, 535 (8th Cir. 1982) (emphasis added). The White holding
is unsurprising given that the FAA's authority derives from
its statutory mandate "to insure the safe and efficient use of
airspace." Id. (emphasis added); see 49 U.S.C. s 44718.
The Handbook states that "[n]ormally, any propos[al] that
would affect an airport or require a change in aeronautical
operations or procedures should always be circularized" and
it then enumerates six specific circumstances, not applicable
here, in which "[c]ircularization should not be necessary."
FAA Handbook p 5-20 (emphasis added). Because circulari-
zation helps "[e]xplain the probable effects of [a] proposal in
sufficient detail to assist interested persons in formulating
comments on how the proposal would affect aeronautical
operations," id. p 5-21, it is an essential step in determining
how to tailor the sponsor's proposal to strike a proper balance
between safety interests and efficiency interests. See Great-
er Orlando Aviation Auth. v. FAA, 939 F.2d 954, 961 (11th
Cir. 1991) (FAA obliged "to do more than just pay lip service"
to comments endorsing potential non-aviation uses of naviga-
ble airspace).
The FAA's unexplained failure to solicit comments as di-
rected by the Handbook was arbitrary and capricious, see
D&F Afonso, 216 F.3d at 1195 ("[T]he requirement that
agency action not be arbitrary and capricious includes a
requirement that the agency adequately explain its result."
(quotations omitted)), especially in light of the fact that FAA
staff members themselves believed it would be helpful if BFI
suggested possible solutions to the agency's radar coverage
concerns, see JA 89. The brief March 16, 1999 meeting--
which occurred before BFI formally filed its proposal and
before the FAA's decision to conduct an aeronautical study--
does not substitute for an opportunity, open to all interested
parties, to submit written comments on the proposal.
Moreover, the FAA acted arbitrarily and capriciously in
failing to negotiate with BFI, pursuant to 14 C.F.R.
s 77.35(b), a compromise "accommodat[ion]" plan that would
resolve anticipated impacts of the proposal. The Handbook
explicitly requires the FAA, in circumstances where the
"proposed structure may create harmful electromagnetic in-
terference," to "meet and informally discuss alternatives"
with the project sponsor and to provide the sponsor "ade-
quate time to consider the problems and alternatives." FAA
Handbook p 7-35(f); see id. p 5-12 (FAA must "attempt to
negotiate a solution to any adverse effect on aeronautical
operations ... with the construction sponsor"). The FAA
correctly observes that "neither the regulations nor the
[Handbook] prescribe any set number of meetings or negotia-
tion sessions that the FAA must conduct with a proponent."
Br. of Resp't at 21. Therefore, it asserts, the March 16, 1999
meeting itself satisfied any duty the FAA might have. The
agency is mistaken. The March meeting occurred before BFI
formally submitted a Form 7460-1 and, therefore, before the
FAA's duty to negotiate even arose. Indeed, the March
meeting took place several weeks before the FAA studied the
landfill's impact on radar coverage and, therefore, well before
any meaningful give-and-take with BFI would have been
possible. In any event, nothing in the record suggests that a
substantive discussion ever came to pass, either on March 16
or at any time thereafter.
Finally, the FAA acted arbitrarily and capriciously in fail-
ing, without explanation, to inform BFI in the notice of review
of two issues it ultimately relied on in affirming the initial
Hazard Determination. Where, as here, the FAA decides to
conduct review without a hearing, the Handbook requires it
to advise interested parties of the specific issues to be consid-
ered. See FAA Handbook p 8-58. Pointing to the notice of
review as well as a telephone call from the FAA to counsel for
BFI,4 the agency claims that it "substantially complied" with
__________
4 The FAA is referring to its "contact[ing] petitioner's counsel by
telephone to inquire whether [a scientific study] submitted as an
the Handbook's requirement and properly notified BFI that
the adverse impact on radar coverage of DIA Runway 25 and
proposed Runway 25L were issues it planned to consider.
See Br. of Resp't at 23-27. The record belies the FAA's
assertion. The notice of review states that the FAA was to
"consider all material relevant to the question whether the
proposed construction would have a substantial adverse effect
on the safe and efficient use of the navigable airspace." JA
102. Notice at such a high level of generality is not notice at
all, cf. McComb v. Jacksonville Paper Co., 336 U.S. 187, 197
(1949) (Frankfurter, J., dissenting) ("Ambiguity lurks in gen-
erality and may thus become an instrument of severity."); the
Handbook states that "the notice of review shall ... advise of
the specific issues which are to be considered." FAA Hand-
book p 8-58 (emphasis added). And the FAA's telephone
conversation with BFI, whatever its content, is insufficient as
a matter of law to put BFI on notice; the Handbook states
that "the notice of review shall ... advise of the specific
issues which are to be considered." Id. (emphasis added).
B.
Next, BFI contends that the "FAA's factual conclusions
about the landfill's continued operation are as flawed as the
procedures [it] used to reach them." Br. of Pet'r at 20. We
agree. A hazard determination must be based on "a clear
showing of substantial adverse effect" and, in the determina-
tion itself (not simply in its appellate brief), the FAA must
"adequately explain its result." D&F Afonso, 216 F.3d at
1195-96; see SEC v. Chenery Corp., 318 U.S. 80, 95 (1943)
("[A]n administrative order cannot be upheld unless the
grounds upon which the agency acted in exercising its powers
were those upon which its action can be sustained."). This it
failed to do. The two findings of adverse impact upon which
the Affirmation was based and of which BFI had notice--
__________
attachment to petitioner's April 20, 2000 comments 'took into con-
sideration the plans on file to build new runways at Denver Interna-
tional Airport.' " Br. of Resp't at 26 (quoting JA 25).
first, vehicles at the top of the landfill at its maximum height
could cause radar reflections and, second, radar coverage of
helicopters could be limited--are unsupported by substantial
evidence in the record.
In the Hazard Determination and Affirmation, the FAA
found that the Tower Road landfill at its proposed height
"would be in the radar line of sight and vehicles [i.e., dump-
trucks and graders] operating at the landfill may cause radar
reflection and consequently create false targets." JA 7. The
Determination and Affirmation themselves provide no eviden-
tiary basis for the "false target" finding. Indeed, we can find
at most only two pages in a 462-page record to support it--
the FAA's aeronautical study reports that
Airways Facility radar technicians have ... identified
the potential for false targets. At the current elevation
of 5,423' AMSL [above mean sea level], the landfill is
below the radar line-of-sight. At the new height of 5,542'
AMSL, the large dump trucks, graders, and other heavy
equipment create the potential for reflecting the radar
and causing false targets.... The impact in this circum-
stance would be an erroneous position indication for the
aircraft.
JA 32, 38. The foregoing "evidence" amounts to little more
than a conclusion. In light of the equally plausible evidence
BFI presented--an Ohio University aeronautical study con-
cluding that "[a]nalysis of movement of a truck on top of the
landfill at the proposed maximum height does not show any
appreciable effect on radar operations due to signal reflec-
tions," JA 445--we cannot say that the FAA made "a clear
showing" that BFI's proposal will have a substantial adverse
impact on air navigation because of radar reflections. See
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)
("The substantiality of evidence must take into account what-
ever in the record fairly detracts from its weight.").
Nor can we conclude that the FAA has clearly shown or
adequately explained why "the landfill would have a substan-
tial adverse effect on visual flight rules (VFR) operations in
Class B airspace" in that DIA "would no longer have the
ability to provide safety and traffic advisory services to"
helicopters and law enforcement aircraft. JA 6-7. Once
again, the FAA's aeronautical study provides only conclusory
evidence; it reports that "[t]he increase in the height of the
landfill will raise radar coverage to 7000' MSL, resulting in an
inability to provide safety advisory services" to these low-
altitude aircraft. JA 32. Once again, BFI furnishes credible
evidence to the contrary; its radar plots (along with the
FAA's) indicate that the rather limited area for which the
landfill would raise the radar coverage floor above 7000'
MSL--an area that is more than 20 miles from DIA--is not
even within DIA's Class B airspace because it is too far from
the airport. See JA 113, 126-27, 450-52.
IV.
For the foregoing reasons, we conclude that the FAA acted
arbitrarily and capriciously in issuing the Hazard Determina-
tion and Affirmation.5 Accordingly, we grant the petition for
review, vacate the Determination and Affirmation and re-
mand the case to the FAA with instructions to reconsider
BFI's proposal in accordance with the procedures set forth in
the Act, the FAA regulations and the FAA Handbook and in
accordance with this opinion.6
So ordered.
__________
5 We do not reach BFI's argument that the FAA violated the Due
Process Clause of the Fifth Amendment to the United States
Constitution in basing its Affirmation on two adverse effects not
mentioned in the Determination, i.e., the possibility that BFI's
proposal would affect radar coverage of (1) DIA Runway 25 and (2)
proposed but unbuilt Runway 25L. Cf. United Auto., Aerospace &
Agric. Implement Workers of Am. v. Nat'l Right to Work Legal Def.
& Educ. Found., Inc., 590 F.2d 1139, 1148 (D.C. Cir. 1978) (practice
of avoiding constitutional questions "reflects a court's duty 'of not
needlessly projecting delicate issues for judicial pronouncement' "
(quoting United States v. Rumely, 345 U.S. 41, 45-46 (1953))).
6 In light of our disposition, we dismiss as moot BFI's motion to
supplement the administrative record.
Tatel, Circuit Judge, concurring in part and dissenting in
part: I agree that the FAA acted arbitrarily and capriciously
by failing to provide BFI with adequate notice concerning the
two new grounds on which the agency rested its final hazard
determination and that the record lacks substantial evidence
to support two findings of adverse impact. See Maj. Op. at
11-14. In view of the considerable deference we owe the
agency, however, I do not agree that the FAA acted arbitrari-
ly and capriciously by "conducting an aeronautical study
without 'circularizing' notice thereof and without negotiating
with BFI to identify mitigation measures." Id. at 9. Be-
cause of this, and because the FAA may be able to explain its
decision, I would not vacate the order, but would instead
remand to the agency for further consideration. See Allied-
Signal, Inc. v. United States Nuclear Regulatory Comm'n,
988 F.2d 146, 150-51 (D.C. Cir. 1993) (noting that "[a]n
inadequately supported rule ... need not necessarily be
vacated," particularly where the agency may well "be able to
explain" its decision).
My colleagues' conclusion that the FAA acted arbitrarily
and capriciously by failing to circularize notice rests on their
view that applicable regulations require the agency to solicit
comments from all interested persons. Maj. Op. at 9. The
regulation, however, calls for solicitation of comments only
"[t]o the extent considered necessary." 14 C.F.R. s 77.35(b).
Attempting to make this obviously discretionary provision
seem mandatory, the court places the word "must" before its
quotation of the regulation. Maj. Op. at 9. But even with
this judicially added imperative, the regulation remains en-
tirely discretionary--the agency "must" circularize "[t]o the
extent considered necessary."
Were there any doubt about this, the FAA interprets its
regulation as "not mandat[ing] that the FAA solicit com-
ments." Resp't's Br. at 15. We, of course, owe substantial
deference to an agency's interpretation of its own regulation,
see Air Transp. Ass'n of Am., Inc. v. FAA, __ F.3d __, 2002
WL 1071924 (D.C. Cir. May 31, 2002)--a principle recognized
nowhere in the court's opinion. Moreover, we have no indica-
tion that the FAA's interpretation reflects anything other
than its "fair and considered judgment," Auer v. Robbins, 519
U.S. 452, 462 (1997); see also Drake v. FAA, __ F.3d __, 2002
WL 1071929 (D.C. Cir. May 31, 2002) (holding that we owe
deference to an agency's interpretation of its own regulations
expressed during litigation).
In support of their interpretation of the regulation, my
colleagues point to the Federal Aviation Act, an Eighth
Circuit decision, and the FAA Handbook. The only statutory
language they cite, however, is the generic requirement that
the FAA ensure "the safe and efficient use of ... airspace."
49 U.S.C. s 44718(b)(1). The Eighth Circuit did not reach its
decision in the face of a contrary agency interpretation--as
this court now has--nor did it mention the "to the extent
considered necessary" language. And the FAA Handbook's
recommendation that "normally, any proposal that would
affect an airport or require a change in aeronautical opera-
tions or procedures should always be circularized," FAA
Handbook p 5-20 (emphasis added), is consistent with the
agency's view that the obligation is discretionary.
Moreover, even if the regulation required circularization,
the record contains substantial evidence that the FAA did
just that. In April 1999, the FAA issued a notice to BFI
stating that "we are in the process of conducting an aero-
nautical study to determine the effect on air navigation."
Although it is true that the FAA failed to provide "an oppor-
tunity, open to all interested parties, to submit written com-
ments," Maj. op. at 11, BFI nowhere raises the concerns of
any one other than itself, nor would it have standing to do
so, see Nat'l Capital Airlines v. Civil Aeronautics Bd., 419
F.2d 668, 676-77 (D.C. Cir. 1969) (rejecting a petition for
review based on CAB's failure to follow its own procedures
because that failure did not harm the petitioner).
As to the second basis for the court's arbitrary and capri-
cious finding--that the FAA failed to negotiate with BFI over
possible mitigation measures--substantial record evidence in-
dicates that even if the agency has such an obligation, the
required negotiation took place on not one but two occasions:
in March and May 1999. The record of the March meeting
expressly states that "[a]nticipating mitigation, potential op-
tions were discussed, [e.g.,] moving radar[.]" True, the
March meeting occurred before the FAA issued its notice of
proposed study, see Maj. Op. at 10, but neither the FAA
regulation nor the handbook requires that negotiations take
place at any particular time. My colleagues, moreover, never
even mention the May meeting. Although the record might
support the conclusion that there was no "meaningful give-
and-take" between BFI and the FAA, id. at 14, the evidence
is more than sufficient to support the opposite conclusion--
that the FAA "offer[ed] to meet ... informally" and "at-
tempt[ed] to negotiate a solution," FAA Handbook p p 7-35(f),
5-12. That is enough. See Chritton v. NTSB, 888 F.2d 854,
856 (D.C. Cir. 1989) (citation and internal quotation marks
omitted) (explaining that an agency's "conclusion may be
supported by substantial evidence even though a plausible
alternative interpretation of the evidence would support a
contrary view").