United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-1153 September Term, 2020
FILED ON: NOVEMBER 20, 2020
TUSCOLA AREA AIRPORT AUTHORITY, ET AL.,
PETITIONERS
v.
STEPHEN DICKSON,
RESPONDENT
Consolidated with 19-1258
On Petitions for Review of a Final Order
of the Federal Aviation Administration
Before: TATEL and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
JUDGMENT
These cases were considered on the record from the Federal Aviation Administration and
the briefs and arguments of the parties. The Court has accorded the issues full consideration and
has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED AND ADJUDGED that for the reasons set forth in the attached
memorandum, the petitions for review be denied.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after the disposition of any
timely petition for rehearing or petition for rehearing en banc. See Fed R. App. P. 41(b); D.C.
Cir. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
No. 19-1153 September Term, 2020
MEMORANDUM
A local airport authority and others (“the Authority”) petition for review of an FAA
determination that several proposed wind turbines near the Tuscola Area Airport would not be a
hazard to aeronautical safety. The area already contains numerous other turbines. Because the
proposed turbines exceeded the height the FAA presumes to be safe near airports, the FAA
issued a notice of presumed hazard. See 14 C.F.R. § 77.17(a). The FAA then performed a full
aeronautical study and determined that the turbines would generate clutter on the primary radar
used by the airport for air traffic control but that the aggregate impact on air safety would be
negligible.
The Authority now petitions us to vacate the FAA’s no-hazard determination. They raise
several arguments that allege the FAA’s no-hazard determination was arbitrary and capricious in
violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). They argue that the FAA
lacked substantial evidence for its determination, and that the FAA failed to consider relevant
factors including the turbines’ local economic impacts and the turbines’ impacts on the airport’s
ability to meet its grant assurances. Finally, they argue that the FAA provided insufficient notice
to permit adequate public comment on the turbines’ safety because the FAA’s notice provided
the wrong aeronautical study number twice.
The petitioners’ arguments are unpersuasive. Their arguments concerning the evidence
essentially just disagree with the agency’s weighing of the evidence. Their disagreement does not
render the FAA’s decision arbitrary or capricious. See Town of Barnstable v. FAA, 740 F.3d 681,
690 (D.C. Cir. 2014). The FAA reasonably concluded that the turbines would not have a
substantial adverse effect on aeronautical safety due to the low quantity of flights that the
turbines would affect and the distance of the turbines from the regular traffic pattern of the
airport. Moreover, the FAA solicited the views of air traffic controllers at the affected air traffic
control facility in Saginaw, and, in their expert view, the additional wind turbines would not
create a safety issue. As for the petitioners’ argument that the FAA failed to consider relevant
factors, the FAA is not required to consider local economic impacts or grant assurances when
determining whether a structure will affect aeronautical safety. See 49 U.S.C. § 44718(b)(1).
Finally, as to the petitioners’ final argument, the FAA’s typographical errors did not prejudice the
petitioners. The notice issued by the FAA provided the correct study number numerous times.
Petitioners do not provide a single public comment that the FAA actually failed to consider due
to the typos. As for the additional comments submitted when the Authority petitioned the agency
to review its determination, the FAA acknowledged those comments and stated that they would
not have changed its determination.
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