County of Delaware v. Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided February 3, 2009

No. 07-1385

COUNTY OF DELAWARE, PENNSYLVANIA, A POLITICAL
SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA, ET
AL.,
PETITIONERS

v.

DEPARTMENT OF TRANSPORTATION, ET AL.,
RESPONDENTS

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

Barbara E. Lichman argued the cause for petitioners. With
her on the briefs were Berne C. Hart, Steven M. Taber, and
Jeffrey L. Karlin.

Lane McFadden, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Ellen J. Durkee, Attorney, and Ellen Athas, Attorney, Federal
Aviation Administration. Ronald M. Spritzer, Attorney, U.S.
Department of Justice, entered an appearance.

Before: SENTELLE, Chief Judge, and RANDOLPH and
GARLAND, Circuit Judges.
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Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: On July 30, 2007, the Federal
Aviation Administration (“FAA”) published a notice in the
Federal Register entitled Federal Presumed to Conform Actions
Under General Conformity (“PTC List”). 72 Fed. Reg. 41,565.
The PTC List, promulgated by the FAA under authority granted
it by the Environmental Protection Agency (“EPA”), see 40
C.F.R. §§ 93.153(f)-(h), set forth a list of 15 categories of FAA
actions that are presumed to conform to state implementation
plans (“SIPs”) of national air quality standards in a particular
local area. One of the categories that the PTC List deemed
“presumed to conform” to any SIP was Category 14: “Air
Traffic Control Activities and Adopting Approach, Departure
and Enroute Procedures for Air Operations.” 72 Fed. Reg. at
41,578. According to the PTC List, alterations in air traffic
control activities at airports are presumed to conform to SIPs if
the airspace alterations “are designed to enhance operational
efficiency (i.e., to reduce delay), increase fuel efficiency, or
reduce community noise impacts by means of engine thrust
reductions.” Id. On September 14, 2007, a group of petitioners
comprised of public entities, associations, and individuals filed
a petition for review with this court, challenging the validity of
the PTC List and the FAA’s reliance on the PTC List in making
alterations to air traffic control routes in two separate instances.
We cannot reach the merits of the petitioners’ challenge,
however, because they have not established that they have met
Article III standing requirements. We therefore dismiss their
petition for review.

I.

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, establishes
a joint state and federal program to control the country’s air
pollution by establishing national air quality standards. Under
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this program, states must adopt, and submit to the EPA for
approval, SIPs that provide for the implementation,
maintenance, and enforcement of these national standards in
each of their “air quality control regimes.” 42 U.S.C. §
7410(a)(1). Federal agencies must act consistently with these
state plans, and may only engage in or approve activities that
conform to SIPs. See 42 U.S.C. § 7506(c)(1).

The EPA has promulgated regulations to assist federal
agencies in determining whether their actions conform with
SIPs. See 40 C.F.R. § 93.150 et seq. According to these general
conformity regulations, if an agency’s proposed action affects a
maintenance or nonattainment area, the agency must determine
whether its proposed action conforms to the Clean Air Act. See
40 C.F.R. § 93.153(b). In these instances, an agency must make
a conformity determination for each pollutant when the total
emissions caused by a proposed action would equal or exceed
specified emissions levels or would otherwise be deemed
regionally significant. See 40 C.F.R. §§ 93.153(b), (i). Prior to
making a conformity determination, however, agencies must
first conduct an applicability analysis to determine whether these
thresholds would be exceeded by the proposed action. See 40
C.F.R. § 93.153(c). If the applicability analysis reveals that the
effect would be at or below de minimis levels, then that activity
is exempt from the conformity analysis requirement. 40 C.F.R.
§§ 93.153(c)(1), (2). Such a conformity analysis is therefore
only required if the proposed agency conduct exceeds these de
minimis levels.

The EPA also promulgated regulations allowing federal
agencies to establish categories of actions that are presumed to
conform to a SIP, and that therefore do not require either an
applicability or conformity determination. See 40 C.F.R. §§
93.153(f)-(h). Following the EPA’s prescription, the FAA
published the PTC List, which set forth 15 categories of actions
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that are presumed to conform to any applicable SIPs. 72 Fed.
Reg. 41,565 (July 30, 2007). Because the activities listed on the
PTC List were presumed to conform to the SIPs, the FAA
determined that they did not require either a conformity
determination (Section 93.153(b)) or an applicability analysis
(Section 93.153(c)). 72 Fed. Reg. at 41,579. As mentioned
previously, Category 14 of the PTC List presumes that changes
in air traffic control activities at airports conform to the Clean
Air Act if those changes “are designed to enhance operational
efficiency (i.e., to reduce delay), increase fuel efficiency, or
reduce community noise impacts by means of engine thrust
reductions.” 72 Fed. Reg. at 41,578.

II.

Petitioners challenge two recent FAA actions in which the
FAA altered the air traffic control activities at airports: (1) a
change in departure route at McCarran International Airport in
Las Vegas, Nevada (“Las Vegas Project”), and (2) a revision of
the airspace in the New York/New Jersey/Philadelphia area
(“Airspace Redesign”). The FAA modified its departure
procedures according to the Las Vegas Project on March 20,
2007. Before implementing this procedure, the FAA conducted
a Draft Supplemental Environmental Assessment of the Las
Vegas Project, and later issued a Finding of No Significant
Impact as a result of the Las Vegas Project. Both reports were
issued in November 2006. The reports concluded that the Las
Vegas Project would not result in increased emissions of the
relevant pollutants because the Las Vegas Project would cause
a “decrease in aircraft emissions of all the criteria and precursor
pollutants.” Accordingly, the FAA determined that the Las
Vegas Project had met the de minimis air emission requirement
in Section 93.153(c)(2), and therefore was exempt from the
conformity analysis requirement under Section 93.153(b).
 5

The FAA implemented the Airspace Redesign on
September 28, 2007. The Airspace Redesign was based on over
nine years of environmental study, presented in a Draft
Environmental Impact Statement in June 2005 and then a Final
Environmental Impact Statement in July 2007. In the July 2007
Final Environmental Impact Statement for the Airspace
Redesign, the FAA noted that the PTC List had been created in
draft form, but was not yet enacted. Accordingly, the FAA
conducted a fuel consumption analysis to determine whether the
Airspace Redesign would result in emissions that would exceed
the applicable de minimis emission levels for the surrounding
areas. This study concluded that airline fuel consumption would
in fact be reduced under the proposed Airspace Redesign, and
that this reduction would in turn reduce emissions rather than
increase them. The FAA determined, unsurprisingly, that a
reduction in emissions was clearly a de minimis impact on the
emission levels for the areas surrounding the Airspace Redesign.
Accordingly, the FAA determined in its Final Environmental
Impact Statement that the Airspace Redesign was exempt, under
Section 93.153(c), from having to conduct an additional
conformity analysis under Section 93.153(b).

Later, the FAA issued a Corrected Record of Decision when
several errors or omissions not relevant to this case were
discovered. In this Corrected Record of Decision, the FAA
reaffirmed its findings in the Final Environmental Impact
Statement that the Airspace Redesign was exempt, under
Section 93.153(c), from a conformity analysis under Section
93.153(b), because the fuel consumption analysis revealed that
the project “would clearly reduce rather than increase
emissions.” The FAA also noted that, in the time between the
issuance of the Final Environmental Impact Statement and the
Corrected Record of Decision, the FAA had finally promulgated
the PTC List. Accordingly, based on its findings in the Final
Environmental Impact Statement, and the new promulgation of
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the PTC List, the FAA found that the Airspace Redesign was
“either exempt or presumed to conform under” the PTC List.

Shortly after these two airspace alterations were
implemented, two petitioners (City of Las Vegas and Nevada
Environmental Coalition) and others not represented here filed
a petition for review of the Las Vegas Project in the Ninth
Circuit. That petition is currently awaiting resolution. Twelve
groups of petitioners, including two from this case (County of
Delaware and Heinz Wildlife Refuge), filed with this court a
similar petition for review of the Airspace Redesign. Final
briefs are due in that case by March 3, 2009.

In the present case, the petitioners do not challenge the
substantive merits of either airspace alteration, or the FAA’s
findings and conclusions in implementing the projects. Rather,
the petitioners challenge the validity of the PTC List, and argue
that the FAA’s reliance on the PTC List in enacting the Las
Vegas Project and the Airspace Redesign caused the FAA to
disregard its obligations under the Clean Air Act to provide a
complete analysis of the potential adverse impacts on the air
quality of the areas surrounding these airspace alterations. This,
in turn, injures the County of Delaware and the City of Las
Vegas (“public entity petitioners”) because they are unable to
determine whether the quality of the air that they govern is in
compliance with their respective SIPs. The remaining
petitioners are also injured because they are at increased risk of
being affected by unquantified aircraft emissions, which could
affect the quality of the air they breathe.

III.

Article III of the United States Constitution limits the role
of the federal judiciary to resolving cases and controversies.
U.S. Const. art. III, § 2; see, e.g., Chicago & Grand Truck Ry.
 7

Co. v. Wellman, 143 U.S. 339, 345 (1892). “[T]he core
component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). Accordingly
litigants must show that they have standing to appear before this
court before we may exercise jurisdiction over any of their
claims. Id.

In order to establish the “‘irreducible constitutional
minimum of standing,’” a party must demonstrate “that it has
suffered a ‘concrete and particularized’ injury that is: [1] actual
or imminent [2] caused by or fairly traceable to the act being
challenged in the litigation, and [3] redressable by the court.”
City of Dania Beach v. FAA, 485 F.3d 1181, 1185 (D.C. Cir.
2007) (citing Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663
(D.C. Cir. 1996) (en banc)); see also Defenders of Wildlife, 504
U.S. at 560-61. According to Defenders of Wildlife, a litigant
may also have standing to challenge an agency’s failure to abide
by a procedural requirement, provided that this requirement was
“designed to protect some threatened concrete interest” of the
litigant. Defenders of Wildlife, 504 U.S. at 573 n.8; see Fla.
Audubon Soc’y, 94 F.3d at 664-65. To demonstrate standing in
such cases, it is not enough to show that the agency omitted
some procedural requirement; to establish a so-called procedural
injury, the plaintiff must also show that it is “substantially
probable that the procedural breach will cause the essential
injury to the plaintiff’s own interest.” Fla. Audubon Soc’y, 94
F.3d at 665. However, a litigant “who alleges a deprivation of
a procedural protection to which he is entitled never has to prove
that if he had received the procedure the substantive result
would have been altered. All that is necessary is to show that
the procedural step was connected to the substantive result.”
Sugar Cane Growers Coop. of Fla v. Veneman, 289 F.3d 89, 94-
95 (D.C. Cir. 2002). This court must dismiss the petition if any
element of constitutional standing is found lacking. In this case,
 8

the petition for review must be dismissed because it fails to meet
both the causation and redressability requirements.

Causation

First, the petitioners have failed to establish that their injury
was caused by the FAA’s promulgation of and reliance on the
PTC List in enacting these two airspace alterations. In order to
establish causation sufficient for standing, a plaintiff asserting
procedural injuries must demonstrate that there is a “substantial
probability that the substantive agency action that disregarded
a procedural requirement created a demonstrable risk . . . of
injury to the particularized interests of the plaintiff.” Fla.
Audubon Soc’y, 94 F.3d at 669 (citation omitted); see also Ctr.
for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1167 (D.C.
Cir. 2005) (explaining standard for establishing causation in
procedural injury cases). Here, the petitioners’ affidavits assert
that their alleged injuries are caused by the PTC List because the
FAA relied on the PTC List when it implemented the Airspace
Redesign and the Las Vegas Project, which in turn increased the
risk of potentially adverse effects that these two airspace
alterations would have on the areas in which the petitioners live.

This argument has no support in the record. The record
reveals that the FAA did not rely on the promulgated PTC List
in issuing either airspace alteration, and that the applicability
analyses supporting an exemption for both airspace alterations
predated the promulgation of the PTC List. The PTC List was
officially promulgated on July 30, 2007. 72 Fed. Reg. 41,565.
Based on this fact alone, the FAA clearly did not—and could
not—rely on the finalized PTC List in undertaking the two
airspace alterations. In fact, the Las Vegas Project predates the
promulgation of the PTC List by eight months. Both the Final
Supplemental Environmental Assessment and the Record of
Decision for the Las Vegas Project were issued in November
 9

2006. Similarly, the Final Environmental Impact Statement for
the Airspace Redesign was issued in July 2007, prior to the
promulgation of the final PTC List later that month.

The petitioners point to two statements by the FAA as
evidence that the PTC List did not, in fact, predate the issuance
of the Las Vegas Project or the Airspace Redesign, and that,
consequently, the FAA’s reliance on the PTC List caused the
petitioners’ injuries. First, the petitioners point to the FAA’s
statement in an opposition brief in the Ninth Circuit challenge
to the Las Vegas Project asking the Ninth Circuit to apply the
PTC List in that matter. Petitioners argue that this is evidence
that the FAA believed the PTC List applied when it issued the
Las Vegas Project. This argument is ludicrous. An agency
relies on a rule at the point that the rule is final, not before. It is
undisputed that the Las Vegas Project was enacted eight months
before the PTC List was promulgated. A statement from a
parties’ brief in a wholly separate matter, taken out of context,
does not alter this finding. Therefore, the petitioners have
not—and cannot—establish a causal link between the PTC List
and the issuance of the Las Vegas Project.

Second, the petitioners point to a sentence in the FAA’s
Corrected Record of Decision for the Airspace
Redesign—which was issued in September 2007, after the PTC
List was promulgated—as proof that the FAA relied on the PTC
List in enacting the Airspace Redesign. In the Corrected Record
of Decision, the FAA stated that “[b]ased upon the
[Environmental Impact Statement, issued in July 2007,] . . . the
proposed airspace redesign alternatives and the selected project
are either exempt or presumed to conform under the [now-
finalized PTC List].” This statement, the petitioners argue,
clearly establishes that the FAA relied on the PTC List in
enacting the Airspace Redesign, at least in part, because the
FAA stated that the Airspace Redesign was “presumed to
 10

conform” under the PTC List. The only reason that such a
presumption would be used in this way would be if the
presumption were part of a finalized rule, and the FAA relied on
that rule. Therefore, the petitioners argue that their injuries
arising out of the Airspace Redesign were caused by the PTC
List because the FAA relied on the presumption of conformity
set forth therein when it issued the Corrected Record of Decision
for the Airspace Redesign.

The court is not moved. In its Corrected Record of
Decision for the Airspace Redesign, the FAA indicated that the
Airspace Redesign’s presumption of conformity was but one of
two alternative grounds on which it based its finding that there
was no significant adverse environmental impact caused by the
Airspace Redesign. As mentioned previously, the FAA also
conducted an independent fuel burn analysis of the previous air
traffic design versus that under the proposed Airspace Redesign.
Based on this analysis, the FAA concluded that the Airspace
Redesign “would clearly reduce rather than increase emissions.”
As a result, the FAA determined that the Airspace Redesign was
exempt under Section 93.153(c) from conducting a full
conformity analysis under Section 93.153(b). The petitioners
have not challenged either the validity of these findings or the
FAA’s conclusions from it. Accordingly, we must assume that
both the study and the FAA’s conclusions are valid. See City of
Cleveland, Ohio v. FERC, 773 F.2d 1368, 1374 (D.C. Cir.
1985). We must also assume, at least for the purposes of this
standing analysis, that the FAA’s unchallenged finding that the
Airspace Redesign was exempt under Section 93.153(c) was
valid. Because the FAA rested its finding on a valid ground that
did not involve the PTC List, it is irrelevant whether the FAA
found in the alternative that it did not have to conduct a full
conformity analysis because the PTC List allowed it. Even if
this alternative determination were incorrect, and we do not
speak to whether it is, the FAA’s valid finding that the Airspace
 11

Redesign was exempt under Section 93.153(c) establishes that
the FAA’s approval of the Airspace Redesign without
conducting a full conformity analysis would still stand.
Accordingly, the petitioners cannot establish that their alleged
injuries were caused by the FAA’s reliance on the PTC List in
enacting the two airspace alterations at issue.

Redressability

Finally, the petitioners have also failed to establish that this
court can, in this action, actually redress any injury to the
petitioners that might have been caused by the FAA’s
promulgation of the PTC List. We reach this conclusion for the
same reasons set forth in our discussion of the causation
element.

In order to determine redressability, the court must examine
“whether the relief sought, assuming that the court chooses to
grant it, will likely alleviate the particularized injury alleged.”
Fla. Audubon Soc’y, 94 F.3d at 663-64 (footnote omitted) (citing
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38-39
(1976)). Here, the petitioners seek to overturn the PTC List and
remand the FAA’s two airspace redesigns so that the FAA may
be forced to conduct additional analyses surrounding the two
redesigns. Accordingly, the court’s redressability determination
depends on whether overturning the PTC List would likely
alleviate the petitioners’ injuries.

Overturning the PTC List will not redress the petitioners’
harm. As mentioned previously, the FAA did not—and could
not—rely on the PTC List in enacting the Las Vegas Project or
the Airspace Redesign. Rather, the FAA relied on other
independent analyses to support its decision to enact the two
redesigns without conducting an additional and more
encompassing conformity analysis under Section 93.153(b).
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Therefore, even if this Court were to overturn the PTC List, the
FAA would still not be required to conduct additional analyses,
because the FAA already conducted these analyses and found
them to be sufficient support for enacting the two redesigns.
The law does not require them to do more. See 40 C.F.R. §
93.153(c). If the petitioners have redress, it must be by a direct
challenge to the merits of the two redesigns—something the
petitioners have already undertaken in both the Ninth Circuit
and this Circuit. Accordingly, the petitioners also lack standing
because their injuries cannot be redressed here.

IV.

Because the petitioners have failed to establish that they
have standing to appear before this court, their petition for
review of the PTC List is hereby dismissed.