City of Burien v. Faa

FILED
NOT FOR PUBLICATION
NOV 27 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF BURIEN, No. 18-71705

Petitioner,

v. MEMORANDUM*

DANIEL K. ELWELL, Acting
Administrator; and FEDERAL
AVIATION ADMINISTRATION,

Respondents.

Appeal from the Federal Aviation Administration

Argued and Submitted October 23, 2019
Seattle, Washington

Before: IKUTA and BENNETT, Circuit Judges, and RAKOFF,** District Judge.

Petitioner, the City of Burien (“Burien”), is a town located to the west of the

Seattle-Tacoma Airport (“Sea-Tac”). Burien challenges the FAA’s decision to

approve a procedure for turning southbound turboprops to the west in certain wind

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
conditions (“the Procedure”). The Procedure automates a formerly manual process

of assigning headings to such turboprops, and has the effect of concentrating low-

flying planes over Burien after takeoff. Burien argues that the FAA failed to

comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321

et seq., when it approved the Procedure. We agree in part.

NEPA requires agencies such as the FAA to consider and document the

environmental impacts of their actions prior to implementing them. 42 U.S.C. §

4332(2)(c). Although NEPA usually requires agencies to conduct some form of

environmental analysis before they act, an agency may identify certain actions as

“categorical exclusions” (“CATEXs”) that are exempt from environmental review.

CATEXs are reserved for actions that do not “individually or cumulatively have a

significant effect on the human environment.” 40 C.F.R. § 1508.4. While agencies

promulgate their own rules for identifying and applying CATEXs, all agencies

must “provide for certain extraordinary circumstances in which a normally

excluded action may have a significant environmental impact” such that

environmental review is required. Id.

The FAA has promulgated a series of CATEXs, listed in FAA Order

1050.1F. The same Order explains that extraordinary circumstances exist such that

application of these CATEXs is inappropriate if (1) one of twelve enumerated

2
“extraordinary circumstances” exists and (2) the action “may have a significant

impact.” One such extraordinary circumstance includes actions likely to

“cumulatively create a significant impact on the human environment.” Before

applying a CATEX, the FAA must prepare “concise” supporting documentation

citing the CATEX used, describing why its application is appropriate, and

explaining that there are no relevant extraordinary circumstances.

In this case, the FAA determined that environmental review was not required

before it approved the Procedure because this action fell within a CATEX for

“modifications to currently approved procedures conducted below 3,000 feet

[above ground level] that do not significantly increase noise over noise sensitive

areas.” FAA Order 1050.1F, ¶ 5-6.5i. While Burien argues that this determination

was arbitrary and capricious for multiple reasons, we are persuaded by only one of

these reasons. We agree that the FAA acted arbitrarily and capriciously by failing

to consider all “reasonably foreseeable” future actions at Sea-Tac in its analysis of

whether a cumulative impacts extraordinary circumstance existed. 40 C.F.R. §

1508.7.

Specifically, even though the FAA considered a number of past, present, and

reasonably foreseeable future actions within the study area in its cumulative

impacts analysis, it failed to even mention future actions taking place at Sea-Tac

3
itself, even to dismiss them as not reasonably foreseeable. Most notably, the FAA

failed to address any cumulative impacts that might stem from projects described

in Sea-Tac’s Sustainable Airport Master Plan (“SAMP”). Given that the FAA was

involved in the funding and development of the SAMP, and that a final SAMP

document listing specific expansion projects was published only weeks after the

Procedure was approved in April 2018, the FAA had to be well aware of these

planning documents and the substantial airport expansion described in them. The

FAA should have addressed them in its cumulative impacts analysis.

The dissent primarily relies on case law suggesting that a “reasonably

foreseeable future action” does not include a project “that is not yet proposed” and

is “remote in time.” Jones v. Nat’l Marine Fisheries Serv., 741 F.3d 989, 1000

(9th Cir. 2013). But here, the FAA’s own “Desk Reference” that guides its

interpretation of relevant categorical exclusions expressly states that “[a]n action

4
may be reasonably foreseeable even in the absence of a specific proposal.”1 FAA

1050.1F Desk Reference (July 2015). The Desk Reference further provides that the

existence of “planning documents” (like the SAMP), even if short of an official

proposal, provides important evidence for determining whether a future project is

reasonably foreseeable. In such circumstances, even if the FAA concludes that the

planned projects are “improbable or remote,” the Desk Reference specifically

recommends that such actions “be mentioned in the NEPA document with an

indication that they are not reasonably foreseeable.” Indeed, the agency in Jones

1
The dissent errs in suggesting that this internal guidance document is not a
proper source of interpretive guidance. Although the dissent is correct that the
Desk Reference states that it “may not be cited as the source of requirements under
laws, regulations, Executive Orders, DOT or FAA directives, or other authorities,”
it omits the first clause of the sentence which explicitly states that the “Desk
Reference may be cited only as a reference for the guidance it contains.” In fact,
the FAA quoted the Desk Reference in its answering brief when attempting to
define future actions as improbable or remote even though they have been
mentioned in planning documents. Thus, while the Desk Reference is not an
independent source of law regulating the FAA, it can properly serve as guidance
for interpreting FAA Order 1050.1F, which is an independent source of law
regulating the FAA. See Alaska Dep’t of Envtl. Conservation v. E.P.A., 540 U.S.
461, 464 (2004) (finding that although internal guidance lacks dispositive force,
“cogent administrative interpretations not the products of formal rulemaking
nevertheless warrant respect” (citations and internal changes omitted)). Probert v.
Family Centered Servs. of Alaska, Inc., 651 F.3d 1007 (9th Cir. 2011), does not
change this outcome. That case found that internal guidance was not “a proper
source of interpretive guidance” where the guidance explained that “it is not used
as a device for establishing interpretive policy.” Id. at 1012. The Desk Reference
contains no such language.
5
had addressed the future plans raised by plaintiffs and declined to examine their

cumulative impacts, noting significant challenges facing the potential future

projects and that the agency “would consider the impacts of future projects if

permits were sought for them.” 741 F.3d at 995, 1000-1001. The agency, by failing

to even mention the SAMP thus did not meet its obligation to explain its actions

under NEPA. Alaska Ctr. For Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th

Cir. 1999) (“When an agency decides to proceed with an action in the absence of

an EA or EIS, the agency must adequately explain its decision.”).

The dissent further asserts that the FAA did not need to consider the SAMP

in its cumulative impacts analysis because this court had previously held that

approving a change in flight pattern for turboprops does not produce a significant

impact. See Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124 (9th Cir. 2011).

However, the language from Barnes that the dissent primarily relies on was

focused on indirect effects under 40 C.F.R. § 1508.8(b), rather than cumulative

impacts under 40 C.F.R. § 1508.7, and is not controlling here. 655 F.3d at 1137-39.

To the extent the dissent reads FAA Order 1050.1F to release the FAA from

any obligation to consider whether extraordinary circumstances exist upon a

generalized finding that an action does not generate a significant impact, it reads

FAA Order 1050.1F in a manner that conflicts with 40 C.F.R. § 1508.4. The

6
obligation to conduct an extraordinary circumstances analysis imposed by 40

C.F.R. § 1508.4 arises once an agency has already found that an action does not

“individually or cumulatively have a significant effect on the human environment”

-- in other words, once the agency has preliminarily found that application of a

CATEX is appropriate. However, if a preliminary finding that application of a

CATEX is appropriate meant that the agency did not have to conduct an

extraordinary circumstances analysis, there would be no situation in which the

agency would have to do so. Adopting the dissent’s reading would thus render the

first prong of FAA Order 1050.1F’s extraordinary impacts definition superfluous,

and violate 40 C.F.R. § 1508.4’s requirement that all agencies “provide for certain

extraordinary circumstances in which a normally excluded action may have a

significant environmental impact.”

The bottom line is that, even though the FAA’s analysis rambles on for 128

pages, that cannot excuse its failure to even address whether a “Master Plan” for a

major expansion of the airport -- a plan that the FAA staff had commissioned and

that was only weeks away from being published -- encompassed a “reasonably

foreseeable future action” that should be considered within the FAA’s cumulative

impact analysis.

7
 We thus GRANT the petition for review in part and REMAND this case to

the FAA with instructions to consider the potential cumulative impact of all

relevant reasonably foreseeable future actions -- including those which may exist

in the SAMP documents -- as part of its extraordinary circumstances analysis

pursuant to 40 C.F.R. § 1508.7.2

DENIED IN PART, GRANTED AND REMANDED IN PART.

2
We also GRANT the Petitioner’s motion to correct the record as to Exhibit
1 and motion for consideration of extra-record evidence as to Exhibit 5. We DENY
the motion for consideration of extra-record evidence as to Exhibits 2, 3, 4, 6, and
7.
8
 FILED
City of Burien v. FAA, 18-71705 NOV 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IKUTA, Circuit Judge, dissenting:

“It’s never enough, no it’s never enough, No matter what I say” are the

lyrics to a song by an American heavy metal band,1 but it could be the anthem of a

federal agency attempting to comply with the National Environmental Policy Act

(NEPA). Here the Federal Aviation Administration (FAA) provided a thorough

128-page analysis, which established beyond doubt that its modification to a flight

plan fits into a categorical exclusion and does not create an “extraordinary

circumstance.” Indeed, the majority does not claim otherwise; instead, it merely

repeats the refrain that the FAA’s analysis was “never enough,” because it did not

consider the cumulative impacts of speculative project ideas that were neither

adopted nor proposed by the Port of Seattle for its airport. I dissent.

I

NEPA requires federal agencies taking “major Federal actions significantly

affecting the quality of the human environment,” 42 U.S.C. § 4332, to take a “hard

look” at the environmental consequences of a decision, Save the Peaks Coal. v.

U.S. Forest Serv., 669 F.3d 1025, 1036 (9th Cir. 2012). The agency that

promulgates NEPA regulations, the Council on Environmental Quality (CEQ),

1
Five Finger Death Punch, Never Enough, The Way of the Fist (Prospect
Park Records 2007).
provides that agencies may categorically exclude certain types of federal actions

“which do not individually or cumulatively have a significant effect on the human

environment” from the requirement to prepare an environmental assessment or an

environmental impact statement. 40 C.F.R. § 1508.4. The regulations also require

agencies to consider exceptions to these exclusions by providing for “extraordinary

circumstances in which a normally excluded action may have a significant

environmental effect.” Id.

The FAA has developed a guidance document, Order 1050.1F, for

complying with NEPA’s requirements. Among other things, the Order includes a

list of categorical exclusions. See FAA Order 1050.1F, Chapter 5. One such

exclusion is set forth in Paragraph 5-6.5(i), which provides that “modifications to

currently approved procedures conducted below 3,000 feet AGL that do not

significantly increase noise over noise sensitive areas” are exempt from NEPA’s

requirement to prepare further environmental analysis. The Order also provides

that “extraordinary circumstances” constitute an exception to those exclusions.

Under Paragraph 5-2, “an extraordinary circumstance exists if a proposed action

involves” two circumstances: (1) the proposed action must involve any of a list of

12 circumstances described in Paragraph 5-2(b); and (2) the proposed action “has

the potential for a significant impact.” Id. ¶ 5-2(b). One of the 12 listed

2
circumstances is a catchall: a project that has a “[l]ikelihood to directly, indirectly,

or cumulatively create a significant impact on the human environment.” Id. ¶ 5-

2(b)(12).

We give broad deference to the FAA’s decisions regarding its NEPA

compliance. We have explained that “an agency’s interpretation of the meaning of

its own categorical exclusion should be given controlling weight unless plainly

erroneous or inconsistent with the terms used in the regulation.” Alaska Ctr. For

Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999). We also defer to the

agency’s determination as to whether a proposed action falls within the

“extraordinary circumstances” exception. See Id. “Once the agency considers the

proper factors and makes a factual determination on whether the impacts are

significant or not, that decision implicates substantial agency expertise and is

entitled to deference. Id.

In this case, the FAA proposed a modification to the flight plan used by

southbound turboprops. After determining the modification would not have

significant noise effects, the FAA concluded that the modification to the flight plan

fell within the scope of categorical exclusion Paragraph 5-6.5(i) and that no

extraordinary circumstances exist. Therefore, the FAA concluded that no further

NEPA review was required. Under our deferential review, the FAA’s reasoning

3
and conclusions are unassailable, and the majority errs in crediting the City’s

argument.

II

The City’s challenge to the FAA’s compliance is typical of this sort of

environmental litigation: it argues that the FAA failed to do enough in analyzing

the effects of the flight plan modification. The City frames this challenge as an

argument that the FAA’s proposed flight plan modification constituted an

extraordinary circumstance under the FAA’s Order. Under the first prong of the

FAA’s extraordinary circumstance exception, the City claims the project has a

“[l]ikelihood to directly, indirectly, or cumulatively create a significant impact on

the human environment.” Order 1050.1F, ¶ 5-2(b)(12). Under the second prong,

the City claims that the proposed action “has the potential for a significant impact.”

Id. ¶ 5-2(b).

Neither prong is satisfied. On its face, the City’s claim that the proposed

project involves a “[l]ikelihood to directly, indirectly, or cumulatively create a

significant impact on the human environment” is entirely meritless. The FAA

thoroughly examined the potential impacts of the flight plan modification,

including providing extensive studies of the noise impacts. The FAA’s conclusion

that the flight plan modification would not have such impacts is well supported,

4
and the City does not provide any evidence to the contrary.

Instead, the City argues, and the majority agrees, that the FAA made a

procedural error by failing to consider the cumulative impacts of the flight

modification program together with the Seattle-Tacoma Airport’s Sustainable

Airport Master Plan (SAMP). As a result, according to the City and the majority,

the FAA’s decision to rely on the categorical exclusion for the flight plan

modification was arbitrary and capricious, and its NEPA compliance must be

redone.

This conclusion is flatly wrong. A cumulative impact is “the impact on the

environment which results from the incremental impact of the action when added

to other past, present, and reasonably foreseeable future actions.” 40 C.F.R.

§ 1508.7. A “reasonably foreseeable future action” does not include a project “that

is not yet proposed” and is “remote in time.” Jones v. Nat’l Marine Fisheries

Serv., 741 F.3d 989, 1000 (9th Cir. 2013). A project is generally not “proposed”

until the agency has issued a Notice of Intent to commence NEPA compliance. N.

Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 980 (9th Cir. 2006). Unless a

project has been proposed and is not too remote in time, “a cumulative effects

analysis would be both speculative and premature.” Jones, 741 F.3d at 1000 (9th

Cir. 2013) (citation omitted); see also League of Wilderness Defs./Blue Mountains

5
Biodiversity Project v. Connaughton, 752 F.3d 755, 762 (9th Cir. 2014)

(“Although projects need not be finalized before they are reasonably foreseeable,

they must be more than merely contemplated.”) (internal quotation marks omitted)

(citations omitted)).

In this case, the FAA discharged its obligation to consider cumulative

impacts of eight proposed projects, but reasonably concluded that the projects

discussed in the SAMP were too speculative and remote in time. The 2015 SAMP

does not identify any projects at all; rather, it merely “describes the goals and

objectives established by the Port of Seattle commission to guide the SAMP, the

SAMP process, and how SAMP goals and objectives will guide preparation of a

recommended development plan.” In other words, it was a plan to make a plan.

The 2018 SAMP (which was not completed when the FAA decided to rely on the

categorical exclusion) described “an optimal layout of facilities required to satisfy

the unconstrained 20-year forecast demand,” including a set of “enabling and

capacity improvement projects required to accommodate forecast demand in

2027,” which it labeled “near-term projects.” This planning document, prepared

by consultants for the Port’s consideration, is far removed from a proposed agency

action; the Port did not issue any Notice of Intent for any of the projects described

in the SAMP, nor does the SAMP suggest that the Port was close to doing so. At

6
most, these projects were “merely contemplated.” Connaughton, 752 F.3d at 762

(internal quotation marks omitted). It would be speculative and premature for the

FAA to consider the cumulative impacts of a flight modification along with these

consultant planning ideas. See Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976);

Connaughton, 752 F.3d at 762.

The majority seems to think the FAA was arbitrary and capricious merely

because it failed to mention the SAMP. Again, this echoes the typical demand of

many litigants that agencies must always do more to comply with NEPA. But an

agency need not provide documentation on every piece of available information

before relying on a categorical exclusion. Indeed, the CEQ “strongly discourages

procedures that would require the preparation of additional paperwork to document

that an activity has been categorically excluded.” Guidance Regarding NEPA

Regulations, 48 Fed. Reg. 34,263-01, 34,265 (July 28, 1983). Here, the FAA did

all that was required under its guidance document, Order 1050.1F, and more: it

issued a 128-page Categorical Exclusion document in which it (1) cited to the

applicable categorical exclusion, (2) described how the flight modification plan fell

within the categorical exclusion, and (3) explained why there are no extraordinary

circumstances that would preclude the flight modification plan from being

categorically excluded. The majority errs in requiring the equivalent of an

7
environmental impact statement from the FAA.

In invalidating the FAA’s decision as arbitrary and capricious, the majority

relies primarily on an internal FAA guidance document, FAA 1050.1F Desk

Reference (July 2015). Maj. at 4–5. The majority neglects to note that the Desk

Reference itself states that it “may not be cited as the source of requirements under

laws, regulations, Executive Orders, DOT or FAA directives, or other authorities.”

Such an internal guidance document does not impose judicially enforceable duties

on the FAA, cf. Lockwood v. Comm’r Social Sec. Admin., 616 F.3d 1068, 1072

(9th Cir. 2010), nor is it “a proper source of interpretive guidance,” Probert v.

Family Centered Servs. of Alaska, Inc., 651 F.3d 1007, 1012 (9th Cir. 2011).

Accordingly, the Desk Reference provides no support for the majority’s conclusion

that the FAA failed to discharge its obligations under NEPA.2 But even if the FAA

were legally required to follow the Desk Reference (and even if the City had raised

that argument), any error by the FAA in failing to state expressly that the SAMP

ideas are improbable or remote constitutes harmless error under basic principles of

administrative law. See 5 U.S.C. § 706; Ground Zero Ctr. for Non-Violent Action

2
Despite the majority’s heavy reliance on the Desk Reference, the City itself
did not specifically and distinctly argue that the FAA failed to follow the Desk
Reference and that failing to do so made its decision arbitrary and capricious.
Because “[w]e will not manufacture arguments for an appellant,” the majority errs
in doing so here. Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).

8
v. U.S. Dep’t of Navy, 860 F.3d 1244, 1252 (9th Cir. 2017) (“When considering an

agency’s failure to comply with NEPA, we examine whether the error materially

impeded NEPA’s goals—that is, whether the error caused the agency not to be

fully aware of the environmental consequences of the proposed action, thereby

precluding informed decisionmaking and public participation, or otherwise

materially affected the substance of the agency’s decision.” (internal quotation

marks omitted)).

Even if the first prong of the FAA’s extraordinary circumstances exception

is satisfied, the second is not, because the City has not established that the flight

plan modification “[m]ay have a significant impact” on the human environment.

In fact, the City fails to offer any theory about how the flight plan modification

will have such an impact. The City vaguely suggests that the flight plan

modification, in conjunction with the speculative SAMP, would increase demand

at the airport and therefore have a growth-inducing effect. But we have

conclusively rejected that theory. See Barnes v. U.S. Dep’t of Transp., 655 F.3d

1124 (9th Cir. 2011). As we explained in Barnes, the FAA does not have to

account for the growth-inducing effects of a flight arrival path or changes in flight

patterns because such changes (as opposed to “a major ground capacity expansion

project”) “increase demand only marginally, if at all.” Id. at 1138. In other words,

9
changes in flight patterns do not have a significant growth-inducing impact.

Accordingly, the FAA’s flight plan modification is deemed to increase demand

only marginally, and therefore is not a “significant impact” for purposes of the

second prong of the definition for “extraordinary circumstances.” The City does

not even suggest (let alone establish) any other theory as to how the flight plan

modification, considered with the SAMP, could have a significant impact on the

human environment.

In sum, the FAA followed its Order and appropriately determined that the

flight plan modification was covered by a categorical exclusion. The City has

failed to provide any evidence indicating that the FAA erred in not expressly

analyzing the SAMP, or that the flight plan modification has any significant impact

on the human environment. In fact, neither the City nor the majority can identify

any reason that the proposed flight plan modification does not fit within the FAA’s

categorical exclusion. In holding otherwise, the majority not only fails to give

proper deference to the FAA, but also provides encouragement to the City’s

litigation strategy of “never enough.” I dissent.

10