St. John's United Church of Christ v. Federal Aviation Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2008 Decided December 19, 2008

No. 07-1362

ST. JOHN’S UNITED CHURCH OF CHRIST, ET AL.,
PETITIONERS

v.

FEDERAL AVIATION ADMINISTRATION AND ROBERT A.
STURGELL, ADMINISTRATOR, FEDERAL AVIATION
ADMINISTRATION,
RESPONDENTS

CITY OF CHICAGO,
INTERVENOR

On Petition for Review of an Order
of the Federal Aviation Administration

Joseph V. Karaganis argued the cause for petitioners.
With him on the briefs were Robert E. Cohn, Christopher T.
Handman, A. Bruce White, and John W. Kalich.

M. Alice Thurston, Attorney, U.S. Department of Justice,
argued the cause for federal respondents. With her on the
brief was Ellen Durkee, Attorney.

Benna Ruth Solomon argued the cause for intervenor.
With her on the brief were Christopher M. Grunewald, Sean
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H. Donahue, David T. Goldberg, and Michael G.
Schneiderman.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

WILLIAMS, Senior Circuit Judge: This is the latest
installment in an ongoing battle between the City of Chicago
and the Federal Aviation Administration on the one hand, and
various religious and secular communities bordering O’Hare
International Airport on the other. In this case, petitioners
challenge the FAA’s September 4, 2007 Final Agency
Decision, which authorizes Chicago to impose Passenger
Facility Charges (“PFCs”) on passengers using O’Hare, the
revenue to be used for airport improvement projects. The
religious petitioners claim the FAA violated the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1,
arguing that one of the projects—runway construction
necessitating a cemetery relocation—would “substantially
burden” petitioners’ exercise of religion, but would not further
“a compelling governmental interest.” In addition, all
petitioners challenge the FAA’s decision as failing to comply
with statutory and regulatory requirements for approval of
PFCs.

We do not reach the merits of the RFRA claim; the
religious petitioners failed to establish Article III standing to
raise it. Specifically, petitioners did not show a substantial
probability that in the absence of PFCs Chicago would leave
the cemetery alone. In other words, we cannot conclude that
petitioners’ success on the merits would likely lead to redress
of their alleged injury.
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On the merits of the secular claims, we find that the
FAA’s authorization of PFCs was neither arbitrary nor
capricious. Contrary to petitioners’ claim, the FAA’s finding
of “adequate justification,” 49 U.S.C. § 40117(d)(3), for each
of the disputed projects was not unreasonable. We therefore
dismiss the RFRA claim and reject the remaining claims.

* * *

Construction of one of the runways for which Chicago
received PFC authorization requires relocation of the St.
Johannes religious cemetery. According to the religious
petitioners, the relocation offends a “fundamental precept” of
their religious beliefs, namely, “that the remains of their co-
religionists in the sacred consecrated ground of St. Johannes
must remain undisturbed until Jesus Christ raises up the
departed on the Day of Resurrection.” St. John’s Br. 21.
Neither the FAA nor Chicago questions the bona fides of this
belief.

The three prerequisites of standing—injury, causation,
and redressability—are quite familiar. See, e.g., St. John’s
United Church of Christ v. FAA, 520 F.3d 460, 462 (D.C. Cir.
2008). The religious petitioners’ theory for satisfying them
rests on the claimed essentiality of the PFCs to fund the
runway project and concomitant destruction of the St.
Johannes cemetery. Chicago, they say, has no other source of
funding. The airlines operating at O’Hare are refusing to
approve further General Airport Revenue Bonds (“GARBs”),
which allow recourse only against such revenue; and the city
has promised that O’Hare’s modernization will be “at no cost
to local or state taxpayers.” St. Johns Br. at 3 & n.4; 2
Addendum 363, ¶ 31. Accordingly, the PFC authorization
will cause petitioners’ RFRA injury, and vacating the
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authorization would thwart Chicago’s plans and thus redress
the injury.

Even assuming arguendo that the religious petitioners
could be found to have shown injury and causation,
redressability is exceptionally speculative. First, Chicago’s
political promise to protect Chicago taxpayers from the cost of
the O’Hare improvements is just that—a political promise
with no legal force whatsoever.

Second, Chicago convincingly disputes petitioners’
assertion that it lacks alternative sources of funds to replace
the PFCs. In its brief and during oral argument, Chicago
pointed out it “does not need . . . airline approval to issue
bonds on which principal and interest are payable from airport
revenue collected after the current airline agreements
terminate in 2018,” i.e., bonds not secured by the existing
agreements and the associated revenues. Chicago Br. 41. In
fact, it has already issued hundreds of millions of dollars
worth of such bonds. See id.; Oral Arg. Tr. 35. Presumably it
can do so again.

Petitioners do not dispute the point. They argue instead
that bonds not secured by airline agreements would put
Chicago taxpayers at risk, arguably contrary to Chicago’s
promise. St. John’s Br., 2 Addendum 363, ¶ 31. But putting
taxpayers at risk (assuming the hypothetical bonds would do
so) is not the same as an unconditional city obligation.
Airport revenue may well prove adequate, so that no taxpayer
payment will be required. Certainly politicians frequently
describe schemes that impose such risks on taxpayers as
“free” or “at no cost to the taxpayer.”

Finally, if we were to vacate the PFC authorization,
Chicago could go back to the airlines and attempt to
renegotiate. As we have already said during one of this case’s
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many predecessors in our court, the necessity of
renegotiations with the airlines would “not create ‘a
significant increase in the likelihood’ that the project would be
scuttled altogether rather than merely delayed.” Village of
Bensenville v. FAA, 457 F.3d 52, 70 (D.C. Cir. 2006) (quoting
Utah v. Evans, 536 U.S. 452, 464 (2002)). Accordingly, the
religious petitioners have not shown the requisite “substantial
probability” that any order of ours could redress their injury.
St. John’s, 520 F.3d at 462.

* * *

All petitioners challenge the PFC authorization as failing
to comply with relevant statutory and regulatory requirements.
Before getting to the merits, we briefly note that petitioners
have standing to challenge the authorization. “Having to pay
the passenger facility fee every time an officer or employee
enplanes at O’Hare is a legally cognizable injury, directly
traceable to the FAA’s order authorizing it and redressable by
a favorable ruling from us.” Village of Bensenville v. FAA,
376 F.3d 1114, 1119 (D.C. Cir. 2004). As we have just
explained how Chicago’s alternative sources of revenue defeat
redressability of the RFRA claim, one might wonder why they
do not have the same effect here. After all, even in the
absence of PFCs, passengers in the aggregate will likely pay
this same amount through other airport charges—e.g., ones
collected via the various concessions at O’Hare. See Oral
Arg. Tr. 38. But courts have never required a plaintiff, forced
by an agency ruling to pay a specific charge, to show that he
or she will in the end escape an equivalent burden (or
offsetting reduction in service). To do so would likely end up
with the parties searching for—and almost certainly finding—
a fee-payer who could show that the alternative would not
burden him, or would not burden him as much; this would be
true, for example, of an airport patron who used concessions
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little or not at all. Given the overwhelming probability of
there being some such differently positioned fee-payer, the
search would uselessly consume litigation resources.

PFCs are non-federal funds that an airport operator can
receive for eligible airport-related projects. They are collected
by airlines through ticket charges from their customers. See
14 C.F.R. § 158.3; FAA Br. 5–7. Chicago applied for PFC
authorization for four projects related to various
improvements at the O’Hare airport. Three projects directly
involved runways—the construction of two new ones
(including the runway that requires relocation of the St.
Johannes cemetery) and an extension of an existing one. In
the fourth project, Chicago sought reimbursement for the cost
of already-acquired parcels of land surrounding O’Hare. This
land was needed for runway construction, overflight
protection, Oral Arg. Tr. 31, and other projects related to the
building of runways, all intended to improve airport
operations and decrease passenger delays. FAA Br. 10–12.

Before the FAA can authorize an airport operator to
receive PFC funds, it must find, among other things, that “the
application includes adequate justification for each of the
specific projects.” 49 U.S.C. § 40117(d)(3); see also 14
C.F.R. § 158.15(c) (“An eligible project must be adequately
justified to qualify for PFC funding.”). FAA Order 5500.1
further spells out the “adequate justification” requirement. In
relevant part, the order requires the FAA to “conclude that the
sum of aeronautical benefits would not be disproportionately
less than project costs.” FAA Order 5500.1, ¶ 4-8, 1 Joint
Appendix (“J.A.”) 205. In making this determination, “there
is no requirement for benefit-cost analysis (BCA).” Id. But
“in the event that a BCA is available on a project, its inclusion
in the project application materials should be encouraged.”
Id.
 7

In the FAA’s September 4, 2007 decision, it authorized
Chicago to collect approximately $1.2 billion of PFCs for the
four projects. 14 J.A. 9536. Relying on Chicago’s
application materials (including a BCA), the FAA found that
each project was supported by adequate justification.
Petitioners claim, however, that the FAA’s decision did not
satisfy the requirements set out in Order 5500.1 because the
FAA failed to find, in a non-arbitrary fashion, that the benefits
of each project were not disproportionately less than project
costs.

We review the FAA’s compliance with statutory and
regulatory requirements under the highly deferential arbitrary
and capricious standard. See Bensenville, 376 F.3d at 1120.
Moreover, when the FAA’s determination involves, as here,
forecasts of capacity and demand at an airport, even more
deference is due. City of Olmsted Falls, Ohio v. FAA, 292
F.3d 261, 270 (D.C. Cir. 2002).

In approving Chicago’s PFC petition, the FAA relied on
the available BCA data. The data were not disaggregated for
each project, but were grouped in blocks corresponding to
stages in the overall O’Hare improvement program.

Using these data, the FAA reached judgments about the
justifiability of the four projects contained in Chicago’s
application. The three runway projects closely correspond to
what is labeled “Phase 1 Airfield” (the only difference is that
Phase 1 Airfield includes several taxiways and miscellaneous
runway-related projects in addition to the three runways, FAA
Br. 10 n.3). In authorizing PFC funds for each of the three
runway projects, the FAA noted the benefit-cost ratio of 6.2
for Phase 1 Airfield. 14 J.A. 9453, 9473, 9496. Benefits
quantified to produce the ratio were savings in “aircraft,
passenger, and cargo delay” and “[i]mproved efficiency of
traffic flows.” 10 J.A. 6763. It appears that in finding
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“adequate justification,” 14 J.A. 9554, 9559, 9565, the FAA
concluded that the three runways would contribute most of the
benefits quantified in the 6.2 ratio. The runway projects were
thus not disproportionately costly; together with several
taxiways, they produced $6.2 of benefits for every dollar of
costs.

Petitioners have offered no direct evidence or reason to
think the FAA acted arbitrarily or capriciously in reaching this
conclusion. And there’s no merit to petitioners’ argument that
the FAA must show an alternate financial plan in the event
that PFC revenues are not made available. There’s simply no
such requirement. To be sure, Order 5500.1 does require a
viable alternative funding source plan, but that is only for
Airport Improvement Program (“AIP”) discretionary
projections, not for PFCs. FAA Order 5500.1, ¶ 4-19(6), 1
J.A. 218–19 (“The financial plan for each project should
include . . . [v]iable alternate funding source plan for AIP
discretionary projections.”). Petitioners have not shown that
in approving Chicago’s PFC application for the three runway
projects the FAA failed to comply with any of the applicable
statutory and regulatory requirements.

The FAA analyzed the land acquisition project somewhat
differently. Because the land would be used for runway
construction in more than one phase of the overall O’Hare
improvement plan, FAA Br. 10 n.3, the FAA appears to have
relied on the benefit-cost ratio for that overall program
(labeled “Total Master Plan”), for which the calculated
benefit-cost ratio was 2.02, 14 J.A. 9519.

Arguing against the supposed justifiability of the overall
project, petitioners raise what at first glance seems to be a
valid argument. They focus on the segments into which the
expert consultants organized the BCA data. The following
chart, slightly modified from petitioners’ presentation, which
 9

in turn is derived from data presented by the FAA, breaks the
BCA into segments for Phase 1 Airfield, Total Master Plan,
and the increment from one to the other:

Project Present Value of Present Value of
Benefits (billions) Costs (billions)

Phase 1 Airfield $12.4 $1.9

Total Master Plan $12.6 $6.2

Incremental $0.2 $4.3
Difference, Total
Master Plan over
Phase 1 Airfield

Obviously the increment from Phase 1 Airfield to Total
Master Plan—which we’ll call the TMP increment—has a
dismal BCA: benefits of $0.2 billion and costs of $4.3 billion.
See St. John’s Br., 2 Addendum 374. To be sure, this
incremental analysis overlooks the benefits not quantified in
the BCA data. See 10 J.A. 6763 (listing various other
benefits—e.g., ability to accommodate larger aircraft,
improved passenger comfort, safety improvements, and
shortened pedestrian traffic in getting to a desired gate). But
the FAA did not rely on these other benefits, and under
standard principles we cannot do so either. SEC v. Chenery
Corp., 332 U.S. 194, 196–97 (1947). Thus, if the land
acquisition were justified only by the counted benefits in the
TMP increment, it would seem—short of further
segmentation—to be disproportionately costly. To overcome
the objection, the FAA must show that a significant portion of
the acquisition was necessitated by the first phase of the
overall project, Phase 1 Airfield.
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Although the FAA did not make our job easy, it appears
the agency has done enough—though barely so, and only
under the highly deferential arbitrary and capricious
standard—to shift the focus away from the TMP increment.
On the one hand, the FAA determined that “[m]ost of the
[land] is needed for Phase 1 runways,” with only “a small
portion,” six of the 331 parcels, being justified exclusively by
runway projects in the TMP increment. 14 J.A. 9519; see also
FAA Br. 38. They are the six parcels south of the railroad in
the extreme lower left of the following aerial photo:

FAA Br., Addendum Exhibit 1 (excerpt). On the other hand,
according to the exhibit, the bulk of the remaining 325 parcels
lie directly to the left (west) of runway 10R/28L, which is part
of the TMP increment, and well below (south of) the
southernmost Phase 1 Airfield runway (10C/28C). See id.; 8
J.A. 5423; 10 J.A. 6755.

As best we can resolve the apparent contradiction in the
FAA’s presentation, most of the land, in fact, serves multiple
purposes. In project justification documents filed with the
FAA, Chicago described the intended land use as follows:
“(1) development of new airfield and landside facilities, and
(2) construction-related areas for construction, spoil storage,
parking construction equipment, and providing for
construction haul roads.” 14 J.A. 9512. This will enable
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construction of the overall project “in a way that maintains
O’Hare in an open and fully functioning mode throughout the
entire construction process.” Id. Thus, when the overall
project is finished, most of the land may indeed serve a
runway constructed in the TMP increment. But during
construction, the land will be used for projects related to
Phase 1 Airfield. Because the cost of these parcels appears to
be reasonably connected to the construction of Phase 1
Airfield runways, and thus to the benefits they are expected to
provide, the FAA reasonably justified the whole land
acquisition project by the favorable benefit-cost ratios for the
overall program or Phase 1 Airfield—2.02 and 6.2,
respectively (perhaps deeming the remaining six parcels de
minimis in the grand scheme of 331 parcels). Accordingly,
we are not persuaded that the FAA’s authorization of PFC
funds was either arbitrary or capricious.

Before signing off, we should say a word or two about the
Joint Appendix. The parties sent us 15 volumes, totaling 9710
pages. Most pages appear to contain needless repetition—
e.g., identical exhibits attached to different applications filed
with the FAA in the course of the case’s long history at the
agency level. Worse, the parties’ briefs cite items without
telling us in what volume we might find them. ‘Nuff said.

* * *

We dismiss the religious petitioners’ RFRA claim for
lack of standing and, finding the FAA’s decision to be neither
arbitrary nor capricious, deny the remainder of the petition.

So ordered.