United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 5, 2007 Decided May 11, 2007
No. 05-1328
CITY OF DANIA BEACH, FLORIDA, ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
On Petition for Review of an Order of the
Federal Aviation Administration
T. Neal McAliley argued the cause for petitioners. With him
on the briefs was Francis A. Vasquez, Jr.
Todd S. Aagaard, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was Lisa
E. Jones, Attorney.
Before: SENTELLE, TATEL and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Petitioners seek review of a
Federal Aviation Administration (“FAA”) letter that allegedly
changed the runway use procedures at Fort Lauderdale-
Hollywood International Airport. They argue that the new
2
procedures will route more jet aircraft onto two previously
restricted runways, thus increasing noise, soot, and exhaust
fumes over residential areas. Petitioners contend that the FAA
made this change without engaging in the required
environmental review process. The FAA argues that the letter
is not reviewable because it merely explains the existing
procedures and does not actually change the manner in which
the runways will be used. We hold that the letter is a reviewable
“final order,” and we grant the petition for review.
I.
Fort Lauderdale-Hollywood International Airport (“FLL”)
is a busy and fast-growing airport located near several
residential communities. FLL has three runways – two parallel
east-to-west runways (“9L/27R” and “9R/27L”) and one
“crosswind” northwest-to-southeast runway (“13/31”).
In 1995, the FAA approved a “noise compatibility program”
to minimize airport noise over residential communities near
FLL. Approval of Noise Compatibility Program, Ft.
Lauderdale-Hollywood Int’l Airport, 60 Fed. Reg. 65,373
(Dec. 19, 1995). Under this program, “Runway 9L is the
preferred runway,” and “[a]ll turbojet arrivals and departures
will use Runway 9L-27R.” Id. at 65,374. Since the noise
compatibility program was adopted, runway 9L/27R has been
the primary runway for jet traffic, while runways 13/31 and
9R/27L (the “secondary runways”) are used mostly for general
aviation and commuter traffic. The secondary runways have
occasionally been used for jet traffic during high winds,
maintenance on the primary runway, and special events such as
air shows.
3
In recent years, air traffic at FLL has greatly increased, and
the airport has become prone to delays and congestion. On
several occasions in 2004 and 2005, the FAA sought permission
from Broward County aviation officials to use runway 9R/27L
for jet traffic at specified dates and times to reduce traffic
congestion. For example, on March 16, 2005, the FAA air
traffic manager wrote a letter to a county official stating that
FLL was experiencing “near record traffic on a daily basis,” and
requesting permission to use runway 9R/27L for five days to
“mitigate the possible delays” during peak travel hours.
Broward County officials granted at least one of the FAA’s
requests to use runway 9R/27L to mitigate delays (for March 4-
6, 2005). However, the Broward County Director of Aviation
also made clear that the approval to use 9R/27L was limited to
the specific times and dates requested by the FAA, and that any
future use of this runway was contingent upon “specific
authorization” from the County.
On June 23, 2005, the FAA’s Director of Eastern Terminal
Operations wrote a letter to the Broward County Director of
Aviation stating that the FAA has authority to use “all available
runways” to reduce congestion. The letter emphasized that
delays were getting worse at FLL, and that this congestion was
causing “an adverse effect throughout the national airspace
system, particularly in the northeastern United States.” To
mitigate the delays, the FAA stated that it “will continue to
accommodate requests for use of the preferential runway
[9L/27R],” but that it “will allow use of all available runways”
when air traffic cannot be accommodated efficiently on the
preferred runway. To justify this policy, the FAA pointed to
Broward County aviation ordinances, which permit jet
operations on runway 13/31 when “operational necessity”
requires such use. The letter continued:
4
It is our intent to only assign the use of Runway 13/31 and
Runway 9R/27L when it is necessary because of the traffic
demands. We anticipate this will generally be during peak
hours when the demand exceeds the use of the preferred
runway.
The letter emphasized that the FAA was “not proposing to
change the informal runway use program” at FLL, and that “[a]ll
arrivals and departures will operate within existing procedures.”
The petitioners in this case are two cities in Florida –
Hollywood and Dania Beach – and two individuals who reside
near FLL. Petitioners seek review of the FAA’s June 23, 2005
letter. They argue that the letter is a reviewable “final order”
because it changes air traffic control procedures at FLL by
authorizing the use of the two secondary runways (13/31 and
9R/27L) to reduce delays and congestion. Petitioners contend
that the letter should be set aside because the FAA issued this
order without engaging in the environmental review process
required by the National Environmental Policy Act (“NEPA”)
and the Transportation Act.
II.
The FAA argues that petitioners lack standing to challenge
the agency’s alleged failure to follow the procedural
requirements of NEPA. In particular, the FAA asserts that any
injuries suffered by the petitioners are too speculative to
establish injury-in-fact, and that these injuries could not have
been caused by the June 23, 2005 letter, which does not change
runway use procedures at FLL. To the contrary, we hold that
petitioners have met the threshold requirements of Article III by
establishing “procedural injury” as a result of the FAA’s alleged
failure to engage in the environmental review process required
by NEPA.
5
In order to satisfy the “irreducible constitutional minimum
of standing,” a litigant must show that it has suffered a “concrete
and particularized” injury that is actual or imminent, caused by
or fairly traceable to the act being challenged in the litigation,
and redressable by the court. Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 663 (D.C. Cir. 1996) (en banc). In cases in which a
party has been accorded a procedural right to protect his
concrete interests, “the primary focus of the standing inquiry is
not the imminence or redressability of the injury to the plaintiff,
but whether a plaintiff who has suffered personal and
particularized injury has sued a defendant who has caused that
injury.” Id. at 664 (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 572 n.7 (1992)).
To establish injury-in-fact in a “procedural injury” case,
petitioners must show that “the government act performed
without the procedure in question will cause a distinct risk to a
particularized interest of the plaintiff.” Fla. Audubon Soc’y, 94
F.3d at 664. In other words, petitioners must be seeking to
“enforce a procedural requirement the disregard of which could
impair a separate concrete interest of theirs.” Lujan, 504 U.S. at
572. We have held that “[a] violation of the procedural
requirements of a statute is sufficient to grant a plaintiff standing
to sue, so long as the procedural requirement was designed to
protect some threatened concrete interest of the plaintiff.” City
of Waukesha v. EPA, 320 F.3d 228, 234 (D.C. Cir. 2003)
(internal quotation marks omitted). As the Supreme Court has
stated, the purpose of NEPA is to integrate environmental
review into the agency decisionmaking process to ensure that
“environmental values and consequences have been considered
during the planning stage of agency actions.” Andrus v. Sierra
Club, 442 U.S. 347, 350-51 (1979). We have little difficulty
concluding that the injuries asserted by petitioners are exactly
the types of injuries that NEPA’s procedural requirements were
intended to mitigate. To the extent that the FAA has authorized
6
increased use of the secondary runways at FLL, petitioners –
who live in close proximity to the airport – will be even more
susceptible to these injuries in the future. For example,
petitioner Marco Salvino stated in his declaration that he lives
“adjacent to the southern border” of FLL, and that when runway
9R/27L is used for jet traffic, he is subject to “piercing” noise
that “sound[s] like a missile.” Similarly, when runway 13/31 is
used for jet traffic, Mr. Salvino is affected by “severe” noise, the
smell of jet exhaust, and a “sheen” of “black residue” on his
swimming pool and his car. The procedural requirements of
NEPA were designed to protect persons – such as Mr. Salvino
– who might be injured by hasty federal actions taken without
regard for possible environmental consequences. See Andrus,
442 U.S. at 351 (noting that the purpose of NEPA was to
prevent environmental factors from being “ignored and omitted
from consideration in the early stages of planning” (citation
omitted)). And Mr. Salvino has adequately demonstrated that
the FAA’s failure to follow the NEPA procedures poses a
“distinct risk” to his “particularized interests”– given the
location of his home, he is uniquely susceptible to injury
resulting from increased use of the secondary runways.
Petitioners have also met their burden of establishing
causation and redressability. A plaintiff asserting procedural
injury “never has to prove that if he had received the procedure
the substantive result would have been altered.” Sugar Cane
Growers Coop. v. Veneman, 289 F.3d 89, 94 (D.C. Cir. 2002).
Though this Court will assume a causal relationship between the
procedural defect and the final agency action, the petitioners
must still demonstrate a causal connection between the agency
action and the alleged injury. Ctr. for Law & Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005). As explained in
greater detail in the next section, the FAA’s June 23, 2005 letter
was a new interpretation of the FLL runway usage program that
authorized more frequent use of the secondary runways for jet
7
traffic. Petitioners’ injuries are causally linked to this agency
action. Based on the location of their homes, petitioners are
vulnerable to injury as a result of increased use of the secondary
runways at FLL. By authorizing more frequent use of the
secondary runways, the FAA’s letter makes petitioners more
susceptible to injuries resulting from noise, fuel residue, and
exhaust fumes. We also hold that petitioners’ injuries are
redressable in this suit. An agency action that is taken without
following the proper environmental review procedures can be
set aside by this Court and remanded to the agency for
completion of the review process. See Fla. Audubon Soc’y, 94
F.3d at 668 (noting that procedural injuries are “easily
redressable, as a court may order the agency to undertake the
procedure”).
The FAA argues that petitioners’ injuries are not
sufficiently imminent to give rise to standing. The agency notes
that there have only been “minor” and “limited” changes in
runway use, and thus petitioners’ fears of adverse impacts are
nothing more than speculation about potential future injuries.
However, the Supreme Court has emphasized that “[t]he person
who has been accorded a procedural right to protect his concrete
interests can assert that right without meeting all the normal
standards for redressability and immediacy.” Lujan, 504 U.S. at
572 n.7. The Court continued:
[O]ne living adjacent to the site for proposed construction
of a federally licensed dam has standing to challenge the
licensing agency’s failure to prepare an environmental
impact statement, even though he cannot establish with any
certainty that the statement will cause the license to be
withheld or altered, and even though the dam will not be
completed for many years.
8
Id. Even if it is true that there has not yet been a significant
increase in use of the secondary runways at FLL, this fact would
not affect our holding that petitioners have standing.
Petitioners’ primary allegation is that the FAA has authorized
increased use of the secondary runways without first engaging
in the NEPA environmental review process. Even if the traffic
on these runways will not increase noticeably for several more
years, the FAA’s failure to follow the proper review procedures
before authorizing such use is sufficient under Lujan to give rise
to procedural injury.1
III.
The FAA also argues that we lack jurisdiction over this
petition for review because the June 23, 2005 letter was not a
“final order.” The agency asserts that the letter is not an order
because it merely “explains” the existing runway use program
and “informs” the County about the current state of air traffic at
FLL. We disagree. At the very least, the letter provides a new
interpretation of the FLL noise compatibility program, and thus
we hold that it is a reviewable “final order.”2
1
This is not to suggest that the requirement of imminence
vanishes from the standing analysis, only that in the context of
procedural injury the standard is relaxed. See, e.g., Ctr. for Law &
Educ., 396 F.3d at 1157 (“Where plaintiffs allege injury resulting from
violation of a procedural right afforded to them by statute and
designed to protect their threatened concrete interest, the courts
relax—while not wholly eliminating—the issues of imminence and
redressability . . . .”).
2
The FAA argues that it is not reinterpreting or otherwise
changing the noise compatibility program, but the allegations of the
petitioner and the scant record available suggest that in fact the
interpretation is new and that action taken on the new interpretation
has the potential for inflicting injury upon the petitioners. Our
9
Petitioners seek review of the FAA’s letter under 49 U.S.C.
§ 46110(a), which states in relevant part:
[A] person disclosing a substantial interest in an order
issued by the Secretary of Transportation . . . may apply for
review of the order by filing a petition for review in the
United States Court of Appeals for the District of Columbia
Circuit . . . .
Several courts have emphasized that the term “order” in this
provision should be read “expansively.” See Aviators for Safe
& Fairer Regulation v. FAA, 221 F.3d 222, 225 (1st Cir. 2000)
(noting that “[t]he term ‘order’ is read expansively in review
statutes generally and this statute specifically” (citations
omitted)); New York v. FAA, 712 F.2d 806, 808 (2d Cir. 1983).
A reviewable order under 49 U.S.C. § 46110(a) “must possess
the quintessential feature of agency decisionmaking suitable for
judicial review: finality.” Village of Bensenville v. FAA, 457
F.3d 52, 68 (D.C. Cir. 2006). To be deemed “final,” an order
must mark the “consummation” of the agency’s decisionmaking
process, and must determine “rights or obligations” or give rise
to “legal consequences.” Id. (quoting Bennett v. Spear, 520 U.S.
154, 177-78 (1997)). See also Aerosource, Inc. v. Slater, 142
F.3d 572, 578 (3d Cir. 1998) (defining “order” in this statute as
an agency action that “impose[s] an obligation, den[ies] a right,
or fix[es] some legal relationship”).
At the outset, we have little difficulty concluding that the
June 2005 letter is the consummation of the FAA’s
decisionmaking process. Nothing in the letter indicates that the
FAA’s statements and conclusions are tentative, open to further
disposition of the case will permit the development of a record for
resolution of any factual dispute as to the accuracy of the allegations
while providing a more complete record for review.
10
consideration, or conditional on future agency action. Compare
Bensenville, 457 F.3d at 69 (holding that an FAA letter was not
“final” because it “only affects [petitioners’] rights adversely on
the contingency of future administrative action”).
The next question is whether the letter is an agency action
that determines “rights or obligations” or has “legal
consequences.” Petitioners argue that the letter is reviewable
because use of the secondary runways to alleviate traffic
congestion is flatly inconsistent with the FLL noise
compatibility program, which states that “all” turbojet traffic
shall use runway 9L/27R. Approval of Noise Compatibility
Program, 60 Fed. Reg. at 65,374. Based on the prior actions of
the FAA and the County, we do not believe the word “all”
should be interpreted quite so literally. The noise compatibility
program has never been interpreted as categorically prohibiting
controllers from using the secondary runways for jet traffic.
Indeed, both parties acknowledge that runways 9R/27L and
13/31 have been used for jet traffic in the past because of
weather conditions, special events, and maintenance on the
primary runway.
Nonetheless, we hold that the June 23, 2005 letter is a
reviewable final order because it authorizes the use of the
secondary runways to alleviate traffic congestion at FLL. There
is no question that this is a new interpretation of the noise
compatibility program. Prior to the issuance of this letter, the
FAA had never interpreted the program to permit use of the
secondary runways to reduce congestion and delays. As counsel
for the FAA conceded at oral argument, there is no evidence in
the administrative record that runway 13/31 has ever been used
to reduce delays. Similarly, runway 9R/27L has been used for
jet traffic on a limited basis to alleviate congestion during peak
travel hours, but the FAA has always sought permission from
Broward County officials before using 9R/27L for this purpose.
11
In March 2005, the FAA brought a team of air traffic control
experts to FLL to analyze different procedures for managing
congestion at the airport. In their report, these experts stated
that increased use of runway 9R would relieve congestion, but
that the FAA “needs to request, in advance, permission from the
airport authority for use of runway 9R for jets for particular
periods of known high demand.” If the noise compatibility
program clearly allowed the FAA to use the secondary runways
for jet traffic to alleviate congestion – as the agency now
contends – then it would have been unnecessary for the FAA to
seek permission from the County before using 9R/27L for this
purpose.
In sum, the FAA’s 2005 letter provides new marching
orders about how air traffic will be managed at FLL. Cf.
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir.
2000) (holding that an EPA guidance document had “legal
consequences” because the agency “has given the States their
‘marching orders’”). Previously, the secondary runways at FLL
were used for jet traffic only during bad weather, maintenance
on the primary runway, and special events. In contrast, the letter
now makes clear that controllers may use “all available
runways” for jet traffic to reduce delays. At the very least, the
2005 letter provides a new interpretation of the FLL noise
compatibility program in light of the changed circumstances of
increased congestion and delays. See Aviators for Safe & Fairer
Regulation, 221 F.3d at 225 (holding that an FAA “notice of
enforcement policy” was a reviewable final order because it
“adopts a firm interpretation of an existing regulation”).
Accordingly, we hold that the letter is a reviewable “final order”
under 49 U.S.C. § 46110(a).
12
IV.
Turning to the merits, petitioners contend that the FAA’s
letter should be set aside because the agency adopted new
runway use procedures at FLL without engaging in the
environmental review process required by the National
Environmental Policy Act and the Transportation Act. We
agree, and we grant the petition for review.
A.
Under the National Environmental Policy Act, federal
agencies are required to prepare an environmental impact
statement (“EIS”) for “every . . . major Federal action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C). At a minimum, agencies contemplating
a major federal action must prepare an “environmental
assessment” to determine whether the action will cause a
“significant” environmental impact. See 40 C.F.R. § 1508.9(a);
Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983).
Even if the agency determines that a full EIS is not required, it
must still issue a “finding of no significant impact” explaining
why the project is unlikely to have a significant effect on the
environment. See 40 C.F.R. § 1508.13; Town of Cave Creek v.
FAA, 325 F.3d 320, 327 (D.C. Cir. 2003); Coalition on Sensible
Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987) (noting
that an agency need not prepare a full EIS “when a less
comprehensive environmental review, or environmental
assessment . . . , provides a basis for a finding of no significant
impact”).
Under NEPA, the FAA was required – at a minimum – to
prepare an environmental assessment to determine whether the
new runway use procedures at FLL will cause a “significant”
13
impact on the environment. The FAA’s letter – which
authorized the two secondary runways to be used for jet traffic
to alleviate traffic congestion – was clearly “major federal
action.” “Major federal action” includes “actions with effects
that may be major and which are potentially subject to Federal
control and responsibility.” 40 C.F.R. § 1508.18. In turn, the
word “effects” includes both direct and indirect impacts, such as
“ecological . . . , aesthetic, historic, cultural, economic, social or
health” effects. Id. § 1508.8. Here, the FAA’s new
interpretation of the FLL noise compatibility program will have
the effect of increasing the number of takeoffs and landings over
noise-sensitive residential areas near the airport. For residents
of these areas, there is at least a possibility that the noise,
vibrations, and exhaust of low-flying jet aircraft will cause
“major” ecological, aesthetic, or health effects. Thus, the letter
was “major federal action” for which an environmental
assessment was required.
The FAA’s own environmental review policies confirm that
the agency should have conducted an environmental assessment.
In “Order 1050.1E,” the FAA listed the types of agency actions
that “normally requir[e] an environmental assessment.” See
Environmental Impacts: Policies and Procedures, FAA Order
1050.1E (June 8, 2004), at § 401.3 One such action is “[n]ew or
revised air traffic control procedures which routinely route air
traffic over noise sensitive areas at less than 3,000 feet [above
ground level].” Id. § 401n.
Thus, under NEPA and the agency’s own environmental
review policies, the FAA was required to perform an
environmental assessment to determine whether the new runway
3
Order 1050.1E is available at:
http://www.faa.gov/regulations_policies/orders_notices/media/ALL
1050-1E.pdf.
14
use procedures were likely to cause a “significant” effect on the
quality of the human environment. 40 C.F.R. § 1508.9(b)
(noting that an environmental assessment should include “brief
discussions of the need for the proposal . . . , of the
environmental impacts of the proposed action and [its]
alternatives, and a listing of agencies and persons consulted”);
Peterson, 717 F.2d at 1415. After completing the environmental
assessment, if the FAA finds the likely environmental impact to
be significant, then the agency must produce a full EIS. Even if
the impact is not found to be significant, the FAA must still
issue a “finding of no significant impact” explaining why the
new runway use procedures are unlikely to affect the quality of
the environment. 40 C.F.R. § 1508.13. See also Sierra Club v.
Dep’t of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985) (noting
that an agency need not prepare an EIS only when “a finding of
no significant impact is made after analyzing the [environmental
assessment]”).
The FAA asserts that the increased use of runways 13/31
and 9R/27L for jet traffic will not have a significant impact on
the environment. The agency points to data recently published
in the Federal Register that purportedly shows that increased use
of the secondary runways will not affect FLL’s “noise contour.”
Request for Public Comment on Noise Analysis for Fort
Lauderdale-Hollywood Int’l Airport, 71 Fed. Reg. 63,829,
63,833 (Oct. 31, 2006). This new data does not affect our
conclusion that the letter must be set aside. Regardless of the
ultimate outcome of the environmental review, the FAA was still
required by NEPA to engage in the review process. The data
recently published in the Federal Register is certainly relevant
to the environmental review process, and presumably it should
be included in the agency’s environmental assessment.
However, the FAA may not entirely discharge its environmental
review obligations simply by pointing to one study that found no
significant environmental impact. See FAA Order 1050.1E, §
15
404, Figure 4-2 (noting that an environmental assessment should
discuss the purpose and need for the proposed action, reasonable
alternatives to the proposed action (including the “no action”
alternative), the environmental consequences of the proposed
action, possible mitigation procedures, and the persons
consulted during the environmental review process).
In sum, we grant the petition for review and set aside the
June 23, 2005 letter for failure to follow the environmental
review procedures required by NEPA.
B.
Petitioners also argue that the FAA failed to comply with
the environmental review procedures set forth in Section 4(f) of
the Transportation Act. That provision states:
[T]he Secretary may approve a transportation program or
project . . . requiring the use of publicly owned land of a
public park, recreation area, or wildlife and waterfowl
refuge . . . , or land of an historic site . . . only if—
(1) there is no prudent and feasible alternative to
using that land; and
(2) the program or project includes all possible
planning to minimize harm to the park, recreation
area, wildlife and waterfowl refuge, or historic site
resulting from the use.
49 U.S.C. § 303(c). Petitioners contend that the new runway use
procedures at FLL will “use” nearby parks by routing more jet
traffic over these areas. Thus, they assert that the FAA was
required to analyze whether there were “prudent and feasible
alternatives” to the new procedures, and to do “all possible
16
planning to minimize harm” to the nearby parks.
The FAA argues that the Transportation Act does not apply
to the June 2005 letter because the letter did not change any air
traffic procedures, and thus did not “approve a transportation
program or project” under section 4(f). To the contrary, as we
held above in Section III, the 2005 letter was a new
interpretation of the noise compatibility plan that had the effect
of changing longstanding runway use procedures at FLL – the
letter was not merely a recitation of existing policy. As to
whether these procedures will “use” nearby parks under section
4(f) of the Transportation Act, it is the agency’s responsibility
to determine in the first instance whether an action constitutes
a “transportation program or project . . . requiring the use of
publicly owned land of a public park.” See FAA Order 1050.1E,
App. A, § 6.2e (noting that the FAA must make an “initial
assessment” of whether section 4(f) applies to a given project).
As we are vacating the letter order on other grounds, the FAA
will have the opportunity on remand to consider those issues.
V.
The FAA’s June 23, 2005 letter is a reviewable “final
order” because it adopts a new interpretation of the noise
compatibility program, and thus has the effect of altering
longstanding runway use procedures at FLL. On the merits, we
grant the petition for review and set aside the letter because the
FAA failed to follow the environmental review procedures
required by NEPA and the agency’s own environmental review
policies.
So ordered.