Center for Community Action v. Faa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CENTER FOR COMMUNITY ACTION No. 20-70272
AND ENVIRONMENTAL JUSTICE;
SIERRA CLUB; TEAMSTERS LOCAL
1932; SHANA SATERS; MARTHA
ROMERO,
Petitioners,

v.

FEDERAL AVIATION
ADMINISTRATION; STEPHEN M.
DICKSON, in his official capacity as
Administrator of the Federal
Aviation Administration,
Respondents,

EASTGATE BLDG 1, LLC; SAN
BERNARDINO INTERNATIONAL
AIRPORT AUTHORITY,
Intervenors.
2 CTR. FOR COMMUNITY ACTION V. FAA

STATE OF CALIFORNIA, by and No. 20-70464
through Rob Bonta, * in his official
capacity as Attorney General, OPINION
Petitioner,

v.

FEDERAL AVIATION
ADMINISTRATION; STEPHEN M.
DICKSON, in his official capacity as
Administrator of the Federal
Aviation Administration; SAN
BERNARDINO INTERNATIONAL
AIRPORT AUTHORITY,
Respondents.

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

Argued and Submitted February 1, 2021
San Francisco, California

Filed November 18, 2021

Before: Eugene E. Siler, ** Johnnie B. Rawlinson, and
Patrick J. Bumatay, Circuit Judges.

*
Under Fed. R. App. P 43(c)(2), Rob Bonta has been substituted for
his predecessor, Xavier Becerra, as Attorney General of the State of
California.
**
The Honorable Eugene E. Siler, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
 CTR. FOR COMMUNITY ACTION V. FAA 3

Opinion by Judge Siler;
Concurrence by Judge Bumatay;
Dissent by Judge Rawlinson

SUMMARY **

Federal Aviation Administration / Environmental Law

The panel denied a petition for review challenging the
Federal Aviation Administration (“FAA”)’s Record of
Decision, which found no significant environmental impact
stemming from the construction and operation of an Amazon
air cargo facility at the San Bernardino International Airport
(the “Project”).

To comply with their duties under the National
Environmental Policy Act (NEPA), the FAA issued an
Environmental Assessment (EA) that evaluated the
environmental effects of the Project. In evaluating the
environmental consequences of the Project, the FAA
generally utilized two “study areas” – the General Study
Area and the Detailed Study Area. Petitioners are the Center
for Community Action and Environmental Justice and others
(collectively “CCA”), and the State of California.

In attacking the parameters of the study areas, the CCA
asserted that the FAA did not conform its study areas to the
FAA’s Order 1050.1F Desk Reference. The panel held that
the FAA’s nonadherence to the Desk Reference could not
alone serve as the basis for holding that the FAA did not take

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 CTR. FOR COMMUNITY ACTION V. FAA

a “hard look” at the environmental consequences of the
Project. Instead, the CCA must show that the FAA’s
nonadherence to the Desk Reference had some sort of EA
significance aside from simply failing to follow certain Desk
Reference instructions. The panel held that the CCA had not
done so here.

CCA next asserted that the FAA failed in its obligation
to sufficiently consider the cumulative impacts of the
Project. CCA first argued that the FAA only considered
past, present, and reasonably foreseeable projects within the
General Study Area and should have expanded its
assessment to include an additional 80-plus projects. The
panel held that the record showed that the FAA did consider
the fact that the 80-plus projects would result in massive
average daily trips in the first year of Project operations. The
fact that CCA could not identify any specific cumulative
impacts that the FAA failed to consider suggested that there
were none. CCA additionally argued that the EA did not
disclose specific, quantifiable data about the cumulative
effects of related projects, and it did not explain why
objective data about the projects could not be provided. The
panel held that CCA’s belief that the FAA must provide
quantifiable data was based on a misreading of this court’s
precedent. The panel concluded that there was no reason to
find that the FAA conducted a deficient cumulative impact
analysis.

California chiefly argued that the FAA needed to create
an environmental impact statement (EIS) because a
California Environmental Impact Report prepared under the
California Environmental Quality Act (CEQA) found that
the proposed Project could result in significant impacts on
air quality, greenhouse gas, and noise. First, California
argued the FAA should have refuted the CEQA findings
 CTR. FOR COMMUNITY ACTION V. FAA 5

regarding air quality impacts. The thresholds discussed in
the CEQA analysis that California pointed to are those
established by the South Coast Air Quality Management
District (SCAQMD). The panel held by the SCAQMD’s
own assessment, the Project will comply with federal and
state air quality standards. Second, California argued that
the FAA should have refuted the CEQA findings regarding
greenhouse gas impacts. The panel held that California did
not refute the EA’s rationale for why it found no significant
impact of the Project’s greenhouse gas emissions on the
environment, and did not articulate what environmental
impact may result from the Project’s emissions standards
exceeding the SCAQMD threshold. The panel also rejected
California’s noise concerns. The panel concluded that
California failed to raise a substantial question as to whether
the Project may have a significant effect on the environment
so as to require the creation of an EIS.

Petitioners alleged certain errors related to the FAA’s
calculations regarding truck trip emissions generated by the
Project. First, the panel held that there was no authority to
support petitioners’ assertion that the EA had to use the same
number of truck trips that the CEQA analysis used, or that
the FAA was required to explain the difference. The panel
held further that petitioners failed to show arbitrariness or
capriciousness in the EA’s truck trip calculation method.
Second, petitioners provided no reason to believe that the EA
did not correctly analyze total truck trips emissions. Finally,
the panel rejected petitioners’ argument that the record
contained an inconsistency concerning the number of daily
truck trips calculated by the FAA.

Finally, petitioners asserted that the FAA failed to
consider the Project’s ability to meet California state air
quality and federal ozone standards. First, the CCA argued
6 CTR. FOR COMMUNITY ACTION V. FAA

that the EA failed to assess whether the Project met the air
quality standards set by the California Clean Air Act. The
panel held that CCA failed to articulate a potential violation
of the Act stemming from the Project. More importantly, the
EA did discuss California air quality law. Second, CCA
provided no reason to believe that the Project threatened a
violation of the federal ozone standards. Finally, the panel
rejected petitioners’ argument that the EA failed to assess
whether the Project met California’s greenhouse gas
emissions standards.

Judge Bumatay concurred in order to address the
dissent’s discussion of environmental racism. He noted that
no party raised accusations of racial motivation, and wrote
that the dissent’s assertions were unfair to the employees of
the FAA and the Department of Justice who stood accused
of condoning racist actions and who had no chance to defend
themselves.

Judge Rawlinson dissented. She wrote that the case
reeked of environmental racism, defined as “the creation,
construction, and enforcement of environmental laws that
have a disproportionate and disparate impact upon a
particular race.” San Bernardino County, California, is one
of the most polluted corridors in the United States, and the
site of the Project was populated overwhelmingly by people
of color. Judge Rawlinson agreed with the petitioners that
the difference between the State of California’s conclusion
of significant environmental impacts of the Project under
CEQA and the FAA’s conclusion of no significant impact
could be explained by the FAA’s failure to take the requisite
“hard look” at the Project as required by NEPA. Judge
Rawlinson wrote that the EA was deficient in numerous
ways, and this EA would not prevail if the Project were
 CTR. FOR COMMUNITY ACTION V. FAA 7

located near the home of the multibillionaire owner of
Amazon.
8 CTR. FOR COMMUNITY ACTION V. FAA

COUNSEL

Adrian Martinez (argued) and Yasmine Agelidis,
Earthjustice, Los Angeles, California; Gregory Muren,
Earthjustice, San Francisco, California; for Petitioners
Center for Community Action and Environmental Justice,
Sierra Club, Teamsters Local 1932, Shana Saters, and
Martha Romero.

Yuting Yvonne Chi (argued), Deputy Attorney General;
Christie Vosburg, Supervising Deputy Attorney General;
Edward H. Ochoa, Senior Assistant Attorney General;
Xavier Becerra, Attorney General; Office of the Attorney
General, Oakland, California; for Petitioner State of
California.

Rebecca Jaffe (argued), Justin D. Heminger, and John Emad
Arbab, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Jonathan D. Brightbill, Principal Deputy Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Joseph Manalili, Senior Attorney, Office of the Chief
Counsel, Federal Aviation Administration, Washington,
D.C.; for Respondents.

Michael J. Carroll (argued), Latham & Watkins LLP, Costa
Mesa, California, for Intervenor Eastgate Bldg. 1 LLC.

Ronald J. Scholar (argued), Cole Huber LLP, Roseville,
California, for Intervenor San Bernardino International
Airport Authority.
 CTR. FOR COMMUNITY ACTION V. FAA 9

OPINION

SILER, Circuit Judge:

Petitioners Center for Community Action and
Environmental Justice, Sierra Club, Teamsters Local 1932,
Shana Saters, and Martha Romero (collectively, CCA) and
the State of California (collectively, Petitioners) ask us to
review Respondent Federal Aviation Administration’s
(FAA) Record of Decision, which found no significant
environmental impact stemming from the construction and
operation of an air cargo facility (Project) at the San
Bernardino International Airport (Airport). To comply with
their duties under the National Environmental Policy Act
(NEPA), the FAA issued an Environmental Assessment
(EA) that evaluated the environmental effects of the Project.
In an effort to prevent execution of the Project, Petitioners
allege error in the EA and the FAA’s finding of no
significant environmental impact. Because Petitioners have
not established the findings in the EA to be arbitrary and
capricious, we deny the petition.

I. Background

The Airport is a public airport located in San Bernardino
County, California. The Airport is currently under the
control of Respondent/Intervenor San Bernardino
International Airport Authority (SBIAA), a joint powers
authority consisting of San Bernardino County and some
surrounding cities, including San Bernardino.

Hillwood Enterprises, L.P. (Hillwood), an affiliate of
private developer Respondent/Intervenor Eastgate Bldg 1,
LLC (Eastgate), has served as the Master Developer of the
non-aviation portions of the Airport. Eastgate, Hillwood,
and the SBIAA possess an “Exclusive Right to Negotiate
10 CTR. FOR COMMUNITY ACTION V. FAA

Agreement” providing for extensive due diligence and
entitlement work on the Project. The Project is to develop
the Eastgate Air Cargo Facility, which includes the
development and operation of a 658,000-square-foot sort,
distribution, and office building that would be operated by
third-party air carriers transporting cargo to and from the
Airport.

Because the SBIAA has received federal funding for
previous Airport projects, the Project’s proponents sought
FAA approval of it to comply with 49 U.S.C. § 47107(a)(16)
of the Airport and Airway Improvement Act. Among other
requirements, the Act requires the SBIAA to “maintain a
current layout plan of the airport” with any revisions subject
to FAA review. 49 U.S.C. § 47107(a)(16)(B)–(D).

The FAA’s review of the Project under its own statutory
scheme triggers its duties under NEPA, 42 U.S.C. §§ 4321–
4370m. In part, NEPA provides that “all agencies of the
Federal Government shall . . . include in every
recommendation or report on . . . major Federal actions
significantly affecting the quality of the human environment,
a detailed statement by the responsible official on . . . the
environmental impact of the proposed action[.]” Id.
§ 4332(2)(C)(i). Here, the FAA issued a Record of
Decision, which included its Final EA and Finding of No
Significant Impact. See 40 C.F.R. § 1508.9(a) (2019) 1
(“Environmental assessment[] [m]eans a concise public

1
The pertinent NEPA regulations were amended in February 2020,
after the rendering of the EA and Finding of No Significant Impact at
issue in this case. So, the pre-amended regulations apply here, see
40 C.F.R. § 1506.13, although no party has suggested that the difference
in substance between the pre-amended and amended versions affects the
outcome of this case.
 CTR. FOR COMMUNITY ACTION V. FAA 11

document for which a Federal agency is responsible that
serves to[] [b]riefly provide sufficient evidence and analysis
for determining whether to prepare an environmental impact
statement or a finding of no significant impact[ and] [a]id an
agency’s compliance with [NEPA] when no environmental
impact statement is necessary[.]”); 40 C.F.R. § 1508.13
(2019) (“Finding of no significant impact means a document
by a Federal agency briefly presenting the reasons why an
action, not otherwise excluded . . . , will not have a
significant effect on the human environment and for which
an environmental impact statement therefore will not be
prepared. It shall include the environmental assessment or a
summary of it and shall note any other environmental
documents related to it[.]”); 40 C.F.R. § 1501.3(a)
(“Agencies shall prepare an environmental assessment . . .
when necessary . . . . An assessment is not necessary if the
agency has decided to prepare an environmental impact
statement.”). Here, the Petitioners challenge the FAA’s
decision to proceed in this manner and its findings in that
regard.

The parties agree that the FAA’s Record of Decision
constitutes “an order issued by” the FAA under “part B
[which encompasses 49 U.S.C. § 47107(a)(16)]” through
which Petitioners “may apply for review . . . in the court of
appeals of the United States for the circuit in which the
person resides or has its principal place of business.”
49 U.S.C. § 46110(a); see Barnes v. Fed. Aviation Admin.,
865 F.3d 1266, 1268–70 (9th Cir. 2017).

II. Discussion

A. General Standards of Review

“NEPA requires that a federal agency consider every
significant aspect of the environmental impact of a proposed
12 CTR. FOR COMMUNITY ACTION V. FAA

action . . . [and] inform the public that it has indeed
considered environmental concerns in its decisionmaking
process.” Earth Island Inst. v. United States Forest Serv.,
351 F.3d 1291, 1300 (9th Cir. 2003) (simplified). To
accomplish this, NEPA “imposes procedural requirements
designed to force agencies to take a ‘hard look’ at
environmental consequences.” Id. (simplified). As
mentioned, the FAA here decided to issue an EA and a
Finding of No Significant Impact. Although an EA “need
not conform to all the requirements of an EIS [i.e.,
Environmental Impact Statement], it must be sufficient to
establish the reasonableness of the decision not to prepare an
EIS.” Cal. Trout v. F.E.R.C., 572 F.3d 1003, 1016 (9th Cir.
2009) (simplified). “In reviewing an agency’s finding that a
project has no significant effects, courts must determine
whether the agency has met NEPA’s hard look requirement,
‘based [its decision] on a consideration of the relevant
factors, and provided a convincing statement of reasons to
explain why a project’s impacts are insignificant.’” Bark v.
United States Forest Serv., 958 F.3d 865, 869 (9th Cir. 2020)
(simplified).

“The statement of reasons is crucial to determining
whether the agency took a ‘hard look’ at the potential
environmental impact of a project.” Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998) (simplified). “An EIS must be prepared if
substantial questions are raised as to whether a project . . .
may cause significant degradation of some human
environmental factor.” Id. (simplified). “Thus, to prevail on
a claim that the [agency] violated its statutory duty to prepare
an EIS, a plaintiff need not show that significant effects will
in fact occur.” Id. (simplified). “It is enough for the plaintiff
to raise substantial questions whether a project may have a
significant effect’ on the environment.” Id. (simplified).
 CTR. FOR COMMUNITY ACTION V. FAA 13

“Judicial review of agency decisions under [NEPA] is
governed by the Administrative Procedure Act, which
specifies that an agency action may only be overturned when
it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Earth Island,
351 F.3d at 1300 (simplified). “An agency action is arbitrary
and capricious if the agency has: relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Bark, 958 F.3d at 869 (simplified). “An
agency’s factual determinations must be supported by
substantial evidence.” Id. (simplified).

As the “party challenging the administrative decision,”
Petitioners “bear[] the burden of persuasion” here. See J.W.
ex rel., J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431,
438 (9th Cir. 2010). We have upheld an agency decision
when there was no evidence “which compelled a different
conclusion” or “any evidence that [the agency] considered
impermissible factors.” George v. Bay Area Rapid Transit,
577 F.3d 1005, 1011 (9th Cir. 2009) (citing City of Olmsted
Falls, Ohio v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002)). As
the D.C. Circuit has stated, “even assuming the [agency]
made missteps[,] the burden is on petitioners to demonstrate
that the [agency’s] ultimate conclusions are unreasonable.”
City of Olmsted Falls, 292 F.3d at 271; see also San Luis
Obispo Mothers for Peace v. U.S. Nuclear Regulatory
Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (“[T]he party
challenging an agency’s action as arbitrary and capricious
bears the burden of proof.” (citing Nat’l Ass’n of Regul. Util.
Comm’rs v. FCC, 746 F.2d 1492, 1502 (D.C. Cir. 1984))).
14 CTR. FOR COMMUNITY ACTION V. FAA

B. Study Areas

In evaluating the environmental consequences of the
project, the FAA generally utilized two “study areas”—the
General Study Area and the Detailed Study Area. The
General Study Area “is defined as the area where both direct
and indirect impacts may result from the development of the
Proposed Project.” The Detailed Study Area, on the other
hand, “is generally defined as the areas where direct physical
impacts may result from the Proposed Project[.]” The
General Study Area’s “purpose . . . is to establish the study
area for the quantification of impacts to resource categories
that involve issues that are regional in scope and scale,
including noise, land use, socioeconomic impacts, and
Section 4(f) and 6(f) resources.” The Detailed Study Area’s
purpose, meanwhile, “is to establish the study area for
environmental considerations that deal with specific and
direct physical construction or operational issues that
directly affect natural resources such as water resources, air
quality, and hazardous materials.” The CCA’s general
argument here is that the FAA’s defined geographical
boundaries encompassing the study areas did not
appropriately capture the true environmental impacts of the
project. 2

2
As an initial matter, although the FAA argues that most of the
CCA’s arguments are not preserved for the CCA’s failure to exhaust
them, it appears the CCA sufficiently exhausted the arguments they
present here. See Lands Council v. McNair, 629 F.3d 1070, 1076 (9th
Cir. 2010) (“[A] claimant need not raise an issue using precise legal
formulations, as long as enough clarity is provided that the decision
maker understands the issue raised. Accordingly, alerting the agency in
general terms will be enough if the agency has been given ‘a chance to
bring its expertise to bear to resolve [the] claim.’” (citation omitted)).
 CTR. FOR COMMUNITY ACTION V. FAA 15

In attacking the parameters of the study areas, the CCA
repeatedly asserts that the FAA did not conform its study
areas to the FAA’s Order 1050.1F Desk Reference. Most, if
not all, of the CCA’s improper study areas arguments are
derived by evaluating the conformity of the findings in the
EA to the guidance provided by the Desk Reference. But the
CCA’s arguments in this regard are unavailing because the
CCA does not dispute the fact that the Desk Reference does
not serve as binding guidance upon the FAA: “This Desk
Reference may be cited only as a reference for the guidance
it contains, and may not be cited as the source of
requirements under laws, regulations, Executive Orders,
DOT or FAA directives, or other authorities.” FAA 1050.1F
Desk Reference, Introduction (July 2015). 3

We “review an agency’s alleged noncompliance with an
agency pronouncement only if that pronouncement actually
has the force and effect of law.” W. Radio Servs. Co., Inc. v.
Espy, 79 F.3d 896, 900 (9th Cir. 1996) (citation omitted).
We do “not review allegations of noncompliance with an
agency statement that is not binding on the agency.” Id. In
Western Radio, we held that “neither the [Forest Service’s]
Manual nor [its] Handbook has the force and effect of
law[,]” and thus we “review[ed] the Service’s issuance of a
permit only under its binding regulations.” Id. at 902; see
also River Runners for Wilderness v. Martin, 593 F.3d 1064,
1071, 1073 (9th Cir. 2010) (“The text of the 2001 Policies
makes clear that they are intended only to provide guidance
within the Park Service, not to establish rights in the public

3
The applicable Desk Reference at the time of the FAA’s EA was
the July 2015 version, not the February 2020 version the CCA relies
upon. In any event, no party has suggested that the difference in
substance between the pre-amended and amended versions affects the
outcome of this case.
16 CTR. FOR COMMUNITY ACTION V. FAA

generally . . . . The Court therefore may not set aside the . . .
Plan because it fails to comply with portions of the 2001
Policies[.]”).

The only argument the CCA makes to support its
assertion that the Desk Reference is relevant is that the FAA
itself pointed to the Desk Reference as a reference in
analyzing the environmental consequences of the Project.
Yet without more, these references are insufficient to “bind”
the FAA here. See W. Radio, 79 F.3d at 902. References to
the Desk Reference “cannot bind” the FAA “to a Manual or
Handbook that is neither promulgated pursuant to
congressional procedure nor contemplated in a statute.” Id.
And “[m]ere incorporation does not convert a procedural
guideline into a substantive regulation.” Id. We therefore
cannot review the CCA’s allegations that the EA’s study
areas are deficient per the Desk Reference.

The FAA’s nonadherence to the Desk Reference cannot
alone serve as the basis for holding that the FAA did not take
a “hard look” at the environmental consequences of the
Project. Instead, the CCA must show that the FAA’s
nonadherence to the Desk Reference has some sort of EA
significance aside from simply failing to follow certain Desk
Reference instructions. But the CCA has not done so here.

The CCA first argues that the General Study Area is
deficient because the FAA failed to create individualized
study areas for individual impact categories (i.e.,
individualized study areas for the Project’s effects on air
quality, noise, water, etc.). The CCA, however, has
conceded that “[t]he EA may rely on one sufficiently large
study area to address all . . . impacts.” And the CCA does
not explain why the circumstances of the Project dictated
different study areas based on different environmental
impacts, apart from summarily concluding that it did. On
 CTR. FOR COMMUNITY ACTION V. FAA 17

the other hand, the FAA justified the parameters of its
General Study Area, in part, as being based on the region
around the Airport affected by noise, the region considered
to be Airport property, and the region north of the Airport
through which vehicle traffic was expected to flow to and
from the project site. Without an explanation as to why a
more individualized study area per environmental impact
was needed, the CAA raises no substantial questions as to
whether the Project may cause significant degradation of
some environmental factor, and there is no reason to believe
that the FAA’s use of the General Study Area as a general
baseline to evaluate multiple environmental impacts was an
abrogation of its responsibility of taking a hard look at the
environmental consequences of the Project. See J.W.,
626 F.3d at 438; George, 577 F.3d at 1011.

Next, the CCA generally attacks the EA’s consideration
of the impact of the Project on air quality. The CCA argues
that the General Study Area does not appropriately
encompass the effect of vehicle traffic on air quality because
“the FAA’s air quality analysis only captures air quality
impacts to an area that is less than five miles wide and four
miles long, even though many air quality impacts occur
outside the General Study Area.”

These assertions, however, are belied by the fact that the
FAA did evaluate air quality impacts outside of the General
Study Area and provided a detailed explanation of its
methodology in that regard. There is no indication from the
EA that the FAA limited its consideration of air quality
impacts within the geographical parameters of the General
Study Area only. For example, throughout the EA, the FAA
continuously evaluates the impact of vehicular emissions
and the Project in general on the air quality within the South
Coast Air Basin. The Basin encompasses a geographical
18 CTR. FOR COMMUNITY ACTION V. FAA

area greater than the General Study Area and is overseen by
the South Coast Air Quality Management District
(SCAQMD) under the direction of the California Air
Resources Board to ensure air pollutant levels adhere to state
and federal standards. In ascertaining the impact of
vehicular emissions on air quality, the FAA considered the
“[a]verage truck trip length for delivery trucks,” and the
average 64.25-mile length truck trip, goes far beyond the
“five-by-four mile General Study Area[.]” Moreover:

The air quality analysis for this EA includes
direct and indirect emissions inventories, as
well as air dispersion modeling for landside
sources (area, energy, and mobile) and
airside sources (aircraft operations and GSE).
Mass emissions inventories were prepared
for both construction and operations of the
Proposed Project and No Action Alternative.
The criteria pollutant emission inventories
developed as part of this EA used standard
industry software/models and federal, state,
and locally approved methodologies.
Emissions of regulated pollutants were
calculated to determine if the impacts to air
quality from the Proposed Project would
potentially be significant under the federal
Clean Air Act of 1970, as amended. For
those Proposed Project pollutant emissions
that exceeded mass emissions thresholds,
dispersion-modeling analyses were
performed to determine if the Proposed
Project would contribute to an exceedance of
a [National Ambient Air Quality Standard].
 CTR. FOR COMMUNITY ACTION V. FAA 19

So contrary to what the CCA suggests, the FAA did go
beyond the General Study Area in ascertaining the true scope
of both the Project’s emissions and the impact of those
emissions.

The CCA also argues that the General Study Area does
not appropriately encompass the socioeconomic impacts of
the Project. Specifically, the CCA argues that “the General
Study Area is significantly smaller than the local population
centers for the Cities of San Bernardino, Highland,
Redlands, and unincorporated San Bernardino County, even
though Eastgate is located in or borders each of these areas.”
Yet, as is the case with most of their study area arguments,
the CCA fails to articulate exactly why the FAA needed to
expand the General Study Area to include more of the local
population centers than it already did. Simply summarily
asserting that the FAA should have expanded its General
Study Area to include more people based on the guidance
offered in the nonbinding Desk Reference is insufficient to
render the FAA’s chosen socioeconomic General Study
Area arbitrary when it was based, in part, on expected noise
and vehicle traffic considerations.

The CCA’s next argument is that the EA deficiently
examines whether “the proposed action or alternative(s)
creates impacts that are incompatible with existing and/or
future planned uses in the study area.” The only specific
argument the CCA makes here, however, is that the General
Study Area “is not big enough to be able to evaluate whether
the Project navigates truck trips through residential
neighborhoods . . . [so] it is . . . far too small to determine
whether the Project will lead to any incompatible land uses
from truck traffic.” But the parameters of the General Study
Area were based, in part, on “the neighborhoods north of the
Airport through which employee vehicle and truck traffic is
20 CTR. FOR COMMUNITY ACTION V. FAA

expected to flow to and from the Proposed Project site[.]”
The CCA has not pointed to anything suggesting that traffic
stemming from the Project is expected to flow to residential
neighborhoods outside of those parameters. Without more,
the CCA’s argument here is meritless.

Finally, the CCA attacks the legitimacy of the Detailed
Study Area examined by the FAA. More specifically, the
CCA argues that the FAA failed to comply with the Desk
Reference’s instruction that the FAA must consider the
“existing contaminated sites at the proposed project site or
in the immediate vicinity of a project site” and include “local
disposal capacity for solid and hazardous wastes generated
from the proposed action or alternative(s).” But with respect
to the two hazardous material sites the FAA allegedly failed
to properly evaluate, the CCA has not explained why those
sites fall within the “proposed project site or in the
immediate vicinity of a project site” when they fall “more
than 1.5 miles and 0.75 miles, respectively, from the
[Project] Site.” Distance is relative, and what may seem
sufficiently close for consideration to a non-expert may not
in fact be so. Without an explanation of why that is the case
here, we cannot conclude that the FAA acted arbitrarily in
purportedly omitting those two sites from the Detailed Study
Area.

Additionally, although the CCA harps on the exclusion
of certain sites from the Detailed Study Area where “past
waste management [and] disposal practices” may have
contaminated the surrounding soil and groundwater, the
CCA ignores the FAA’s consideration of the remediation
and monitoring efforts at these sites in determining that they
do not present any notable risks. This remediation and
monitoring effort also applies to the two hazardous materials
sites, mentioned above, that the CCA highlights.
 CTR. FOR COMMUNITY ACTION V. FAA 21

Lastly on this point, the CCA asserts that “the FAA does
not explain how and why on an active Superfund site this
tiny section encompasses the entire geographic area that may
be directly or indirectly impacted by hazardous materials
from this Project” and “fails to account for the common
sense reality that wind and trucks carrying materials also
transport dust containing hazardous materials outside the
Detailed Study Area and throughout the Project site and
beyond.” But the CCA fails to point to any evidence to
support its assertion that the Detailed Study Area failed to
encompass the true scope of the impact of hazardous
materials. Cf. Bark, 958 F.3d at 870–71.

In sum, the CCA has not carried its burden of showing
missteps on the part of the FAA. Without the CCA meeting
this burden, we cannot conclude that a substantial question
has been raised as to whether the Project may have a
significant effect on the environment, or that the FAA skirted
its duty of taking a “hard look” at the environmental
consequences of the Project.

C. Cumulative Impacts

The CCA next asserts that the FAA failed in its
obligation to sufficiently consider the cumulative impacts of
the Project. This court has discussed NEPA’s requirement
of a cumulative impacts analysis as follows:

NEPA always requires that an environmental
analysis for a single project consider the
cumulative impacts of that project together
with “past, present and reasonably
foreseeable future actions.” Cumulative
impact “is the impact on the environment
which results from the incremental impact of
the action when added to other past, present,
22 CTR. FOR COMMUNITY ACTION V. FAA

or reasonably foreseeable future actions.” . . .
[R]egulations specifically admonish agencies
that cumulative impacts “can result from
individually minor but collectively
significant actions taking place over a period
of time.”

We have recognized that even EAs, the less
comprehensive of the two environmental
reports envisioned by NEPA, must in some
circumstances include an analysis of the
cumulative impacts of a project. . . . An EA
may be deficient if it fails to include a
cumulative impact analysis or to tier to an
EIS [i.e., Environmental Impact Statement]
that reflects such an analysis.

Native Ecosystems Council v. Dombeck, 304 F.3d 886, 895–
96 (9th Cir. 2002) (citations omitted). This court in Bark
expounded on the requisite cumulative impact analysis:

“[I]n considering cumulative impact, an
agency must provide ‘some quantified or
detailed information; . . . [g]eneral statements
about possible effects and some risk do not
constitute a hard look absent a justification
regarding why more definitive information
could not be provided.’” “This cumulative
analysis ‘must be more than perfunctory; it
must provide a useful analysis of the
cumulative impacts of past, present, and
future projects.’” We have held that
cumulative impact analyses were insufficient
when they “discusse[d] only the direct effects
of the project at issue on [a small area]” and
 CTR. FOR COMMUNITY ACTION V. FAA 23

merely “contemplated” other projects but had
“no quantified assessment” of their combined
impacts.

958 F.3d at 872 (citations omitted).

The CCA first argues that the FAA only considered past,
present, and reasonably foreseeable projects within the
General Study Area and should have expanded its
assessment to include an additional 80-plus projects. But the
only actual, specific cumulative environmental impact
resulting from these projects that the CCA asserts the FAA
failed to consider is the fact that “these 80[-plus] projects
taken together will result in a massive 168,493 average daily
trips in the first year of project operations.” However, the
record shows that the FAA did consider that fact.

Seemingly conceding this point, the CCA pivots to its
argument that the FAA should have considered more than
just the traffic effects of the 80-plus projects. But the CCA’s
failure to identify any other specific cumulative impact that
the FAA failed to consider is what distinguishes this case
from the cases on which the CCA relies. See Bark, 958 F.3d
at 872–73 (“The [agency]’s failure to engage with the other
projects identified by Appellants leaves open the possibility
that several small forest management actions will together
result in a loss of suitable owl habitat. Preventing or
adequately mitigating this potential loss is the fundamental
purpose of NEPA’s requirement that agencies analyze
cumulative impacts, and we have no basis in the record to
assess whether the [agency] has taken the necessary steps to
consider this possibility.” (emphasis added)); Klamath-
Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d
989, 996–97 (9th Cir. 2004) (holding a lack of a cumulative
impact analysis where the EA did not address “the potential
24 CTR. FOR COMMUNITY ACTION V. FAA

for a combined effect from the combined runoffs” from two
separate minerals or discuss the effect of the loss of the
spotted owl’s habitat on the region (emphasis added)); Kern
v. United States Bureau of Land Mgmt., 284 F.3d 1062,
1066–67, 1078 (9th Cir 2002) (holding a lack of cumulative
impact analysis where the revised EA did not “analyz[e] the
impact of reasonably foreseeable future timber sales within
the District,” because the “absence of” this analysis would
make it “easy to underestimate the cumulative impacts of the
timber sales” on the “spread” and “impact” of “pathogenic
root fungus” on the area).

While the petitioners in the aforementioned cases
identified specific cumulative impacts that the agency did
not address and supported the existence of those impacts
with record evidence, the CCA here summarily concludes
that the FAA needed to conduct a better cumulative impacts
analysis. The fact that the CCA cannot identify any specific
cumulative impacts that the FAA failed to consider suggests
that there are none. Although the CCA states that “[t]he
80 projects Petitioners identified will produce an average of
168,493 truck and car trips every day, in addition to other
impacts[,]” the CCA’s citation to the record in support of
that statement includes a discussion of traffic volumes only,
something that the FAA did consider. The CCA seems to
implicitly suggest that the 80-plus projects should have been
considered for their cumulative impact on air quality. But
the Project’s Final Environmental Impact Report (FEIR)
analysis performed under the California Environmental
Quality Act (CEQA) and cited by the CCA recognizes that
only if a project alone exceeds certain emission thresholds
does a cumulatively significant impact occur:

[P]rojects that do not exceed the project-
specific thresholds are generally not
 CTR. FOR COMMUNITY ACTION V. FAA 25

considered to be cumulatively significant.
Therefore, . . . individual projects that do not
generate operational or construction
emissions that exceed the SCAQMD’s
recommended daily thresholds for project-
specific impacts would also not cause a
cumulatively considerable increase in
emissions for those pollutants for which the
Basin is in nonattainment, and, therefore,
would not be considered to have a significant,
adverse air quality impact.

Pet’rs ER 0913-0914 (Pet’rs ER Vol. 4). Yet the CCA points
to nothing to show that emissions from any of the 80-plus
projects individually exceed relevant thresholds. In sum, the
CCA offers no reason to believe that the FAA needed to
examine any other cumulative impact resulting from the 80-
plus projects. This is also why the CCA’s contention that
the FAA utilized improper baselines to study cumulative
impacts is unavailing—the CCA never explains why that is
the case.

The CCA additionally argues that “the EA does not
disclose specific, quantifiable data about the cumulative
effects of related projects, and it does not explain why
objective data about the projects could not be provided.”
This argument is easily dismissed because the CCA’s belief
that the FAA must provide quantifiable data is based on a
misreading of our precedent. While the CCA suggests that
our precedent, specifically Klamath-Siskiyou, requires “that
an EA . . . provide an ‘objective quantification of the
impacts,’ or at the very least an explanation for ‘why
objective data cannot be provided[,]’” what “[a] proper
consideration of the cumulative impacts of a project requires
[is] some quantified or detailed information[.]” Klamath-
26 CTR. FOR COMMUNITY ACTION V. FAA

Siskiyou, 387 F.3d at 993 (simplified) (emphasis added). So
despite what the CCA argues, quantified data in a cumulative
effects analysis is not a per se requirement.

And in that vein, the FAA did provide “detailed
information” about cumulative impacts here. The only
specific deficiency with this information that the CCA
alleges is the EA’s cumulative air quality impact discussion.
The CCA insists that the FAA did not sufficiently support its
conclusion that “cumulative emissions are not expected to
contribute to any potential significant air quality impacts”
because the EA makes no “references to combined PM or
NOx emissions from the 26 projects” falling within the
General Study Area. Again though, the CCA points to
nothing to support its assertion that the FAA needed to
evaluate cumulative air quality impact in this way. More
importantly, the CCA offers no evidence to substantiate its
suggestion that the FAA’s rationale for its cumulative effects
conclusions, which does include a discussion of PM and
NOx emissions, is deficient. See Bark, 958 F.3d at 872.
Finally, as previously mentioned, the CCA’s own cited
evidence reveals that cumulative air quality impact is
measured by each individual project’s excess emissions
beyond certain thresholds and not by the cumulative effect
of all projects’ emissions. Accordingly, the CCA’s
conclusory criticism of the EA’s failure to conduct a more
robust cumulative air impact analysis by considering the
emissions of nearby projects, when the CCA has offered no
reason to believe that any of those other projects individually
exceed applicable emissions thresholds, is unavailing.

In sum, there is no reason to find that the FAA conducted
a deficient cumulative impact analysis.
 CTR. FOR COMMUNITY ACTION V. FAA 27

D. California’s Arguments for the Preparation of an EIS

California agrees with the CCA that the FAA should
have prepared an EIS.

California chiefly asserts that the FAA needed to create
an EIS because a California Environmental Impact Report
(EIR) prepared under the California Environmental Quality
Act (CEQA) found that “[t]he proposed Project could result
in significant impacts [on] . . . Air Quality, Greenhouse Gas,
and Noise[.]” Because CEQA review “closely
approximat[es]” review under NEPA, California argues,
“NEPA requires the FAA to meaningfully address the
substantial questions raised by the prior CEQA analysis that
concluded the Project would cause significant and
unavoidable environmental impacts.”

California does not go so far as to argue that an EA under
NEPA must reach the same conclusion as the CEQA
analysis. California’s argument does assume, however, that
if a CEQA analysis finds significant environmental effects
stemming from a project, a NEPA analysis must explain
away this significance. But “[d]efendants [a]re not required
to rely on the conclusion in the CEQA EIR because CEQA
and NEPA are different statutes with different
requirements.” Save Strawberry Canyon v. United States
Dept. of Energy, 830 F. Supp. 2d 737, 749 (N.D. Cal. 2011).
Indeed, “California courts have recognized that CEQA
obligations may exceed those imposed by NEPA.” City of
South Pasadena v. Goldschmidt, 637 F.2d 677, 680 n.4 (9th
Cir. 1981) (citation omitted). So instead of simply relying
on the conclusions in the CEQA report, California must
identify specific findings in that report that it believes raise
substantial questions about environmental impact. But
California identifies only a few such findings, and none of
28 CTR. FOR COMMUNITY ACTION V. FAA

them raise substantial questions as to whether the Project
may have a significant effect on the environment.

First, California argues the FAA should have refuted the
CEQA findings regarding air quality impacts. According to
California, the “Final EIR found that the construction of the
Project would result in nitrogen oxides and PM emissions
that exceed applicable local regional air quality thresholds
based on additional mitigation, and that even after
implementing recommended mitigation measures, the
Project’s emissions from operations would exceed regional
thresholds of significance for VOC, nitrogen oxides, carbon
monoxide, and PM.” Furthermore, in the State’s view, the
Final EIR found that “[n]o feasible mitigation measures have
been identified that would reduce these emissions to levels
that are less than significant.” The thresholds discussed in
the CEQA analysis that California points to are those
established by the SCAQMD. The “SCAQMD is
responsible for ensuring that federal and state air quality
standards are met within the Basin.” To that end, the
SCAQMD “has adopted a series of Air Quality Management
Plans (AQMPs) to meet the state and federal ambient air
quality standards.”

Noted within the EA is the fact that the SBIAA “initiated
a formal request to the SCAQMD to determine if the mass
emissions generated from the operation of the Proposed
Project are within the General Conformity Budgets
identified in the 2012 AQMP.” Importantly, the
SCAQMD’s response to the request states, “[i]n summary,
based on our evaluation the proposed project will conform
to the AQMP (i.e. project emissions are within AQMP
budgets) and is not expected to result in any new or
additional violations of the NAAQS or impede the projected
attainment of the standards.” So by the SCAQMD’s own
 CTR. FOR COMMUNITY ACTION V. FAA 29

assessment, the Project will comply with federal and state air
quality standards.

Second, California argues that the FAA should have
refuted the CEQA findings regarding greenhouse gas
impacts. California claims that “the Final EIR determined
that emissions from Project operations would exceed local
air district thresholds, and that no feasible mitigation
measures could reduce greenhouse gas emissions to levels
that are less than significant.” According to the State, the
Final EIR concluded that the “Project operations would
create a significant cumulative impact to global climate
change.” The CEQA analysis’s conclusion here appears to
be based solely on the fact that greenhouse gas emissions are
projected to exceed SCAQMD regional thresholds. But
even if there was such a threat, California does not articulate
why the presence of this one intensity factor requires the
preparation of an EIS. See Wild Wilderness, 871 F.3d at 727
(“One of these factors may demonstrate intensity sufficiently
on its own, although the presence of one factor does not
necessarily do so.”); see also Native Ecosystems Council v.
United States Forest Serv., 428 F.3d 1233, 1240 (9th Cir.
2005) (“[I]t does not follow that the presence of some
negative effects necessarily rises to the level of
demonstrating a significant effect on the environment.”).

Just as important, California does not refute the EA’s
following rationale for why it found no significant impact of
the Project’s greenhouse-gas emissions on the environment:

The[ Project’s operational] levels of
[greenhouse gas (GHG)] emissions increases
would comprise less than 1 percent of both
the U.S.-based GHG emissions and global
GHG emissions (IPCC, 2014).
30 CTR. FOR COMMUNITY ACTION V. FAA

. . . As noted by CEQ, “climate change is a
particularly complex challenge given its
global nature and inherent interrelationships
among its sources, causation, mechanisms of
action and impacts . . . .” Given the enormity
of GHG emissions worldwide, the
contributions of one project, such as that of
the Proposed Project, are negligible. CEQ
has also noted, “it is not currently useful for
the NEPA analysis to attempt to link specific
climatological changes, or the environmental
impacts thereof, to the particular project or
emissions, as such direct linkage is difficult
to isolate and to understand.”

. . . As previously stated, given the enormity
of GHG emissions worldwide . . . , the
contributions of one project, such as the
Proposed Project would comprise of less than
1 percent of both the U.S.-based GHG
emissions and global emissions (IPCC, 2014)
. . . . The emissions generated from
construction of the Proposed Project in 2019
would be 0.0009 percent of the 2017
California GHG inventory and even less for
the duration of the 2020 construction.

This rationale is not refuted by the CEQA analysis’s cursory
assumption that because the SCAQMD emissions threshold
was violated, a significant environmental impact can be
expected. California does not articulate what environmental
impact may result from the Project’s emissions exceeding
the SCAQMD threshold.
 CTR. FOR COMMUNITY ACTION V. FAA 31

Finally, California cites the noise findings issued in the
CEQA analysis. The CEQA analysis found that “off-site
transportation noise level increases at adjacent noise-
sensitive residential homes are considered significant and
unavoidable, but all other noise impacts are less than
significant or can be mitigated to a level of less than
significant.” So the only noise concern stemming from the
CEQA analysis is that connected with off-site transportation
at adjacent noise-sensitive residential homes. But the EA
notes that the SBIAA plans on expanding its territory and
acquiring adjacent properties to the airport as a noise
mitigation measure.

In sum, California fails to raise a substantial question as
to whether the Project may have a significant effect on the
environment so as to require the creation of an EIS. Cf. Am.
Wild Horse Campaign v. Bernhardt, 963 F.3d 1001, 1008
(9th Cir. 2020) (“NEPA regulations do not anticipate the
need for an EIS anytime there is some uncertainty, but only
if the effects of the project are highly uncertain.”
(simplified)).

E. Truck Trips

Next, Petitioners allege certain errors related to the
FAA’s calculations regarding truck trips emissions
generated by the Project.

First, Petitioners argue that the EA fails to explain why
its calculation for total truck trips is lower than the amount
stated in the CEQA analysis. But Petitioners do not point to
any authority to support their assertion that the EA had to
use the same number of truck trips that the CEQA analysis
used, or that the FAA was required to explain away this
difference.
32 CTR. FOR COMMUNITY ACTION V. FAA

More importantly, Petitioners fail to show arbitrariness
or capriciousness in the EA’s truck trip calculation method.
As the EA explains:

The number of truck trips was determined by
dividing the total number of packages
arriving at the Project Site daily by the
average package size and then dividing that
by the number of packages that can fit into
each truck (approximately 1,500 packages
per truck). The Proposed Project would
develop a package sorting facility, with truck
trips limited to moving air cargo shipments to
and from distribution centers. The Proposed
Project would not result in truck trips to
deliver packages from the Airport directly to
homes in the community. In 2019, the
Proposed Project would generate . . .
192 round trip truck trips. In 2024, the total
average daily trips generated by the Proposed
Project would be . . . 500 round trip truck
trips.

In contrast to the total amount of truck trips in 2019 and 2024
that the EA calculated, the CEQA analysis determined that
the respective 2019 and 2024 truck trip count would be 248
and 652. California does not assert error in the FAA’s peak
packages volume calculations, calculated to be 824,000 and
2,145,000 in 2019 and 2024 respectively, which served as
the basis for the FAA’s total truck trips calculation. In
contrast, the CEQA analysis’s package volume calculations
came out to be “1,030,877 per day during the peak season”
for 2019 and “2,238,443 per day during peak season” for
2024. It appears the CEQA analysis’s only basis for its truck
trip numbers is the “data provided by the tenant[,]” so it is
 CTR. FOR COMMUNITY ACTION V. FAA 33

unclear how the CEQA analysis arrived at those numbers.
But, if the CEQA analysis’s truck trip numbers were
calculated in a similar way as the FAA’s, the slight
difference in package volume could explain the slight
difference in truck trip numbers and additionally lend
credence to the FAA’s methodology for arriving at such a
number, which, despite Petitioners’ contention, is clearly
laid out as shown in the record.

Petitioners do not argue that the EA’s methodology was
improper or that the data the FAA relied on was erroneous.
Petitioners argue only that the EA should have explained the
differences in numbers reached by the CEQA analysis and
the EA. But if Petitioners cannot even point to the CEQA
analysis’s rationale for coming to its conclusion—seemingly
because no explanation for that conclusion exists—it is
unreasonable to insist that the FAA can.

Additionally, the FAA’s posited explanation for the
difference in truck trips amounts as being a product of the
CEQA analysis’s reliance on outdated data is not
appropriately termed an impermissible post-hoc
rationalization. “The rule barring consideration of post hoc
agency rationalizations operates where an agency has
provided a particular justification for a determination at the
time the determination is made, but provides a different
justification for that same determination when it is later
reviewed by another body.” Independence Min. Co. v.
Babbit, 105 F.3d 502, 511 (9th Cir. 1997) (citations omitted).
In pointing out the differences in data used between the
CEQA analysis and the EA, the FAA is not trying to justify
anything it did; rather, the FAA is simply pointing out that
the differences in data points could explain the different
truck trip totals the agencies calculated.
34 CTR. FOR COMMUNITY ACTION V. FAA

In sum, Petitioners do not raise a substantial question
about whether the Project will have a significant
environmental effect simply by pointing out the difference
in the number of truck trips calculated as between the EA
and CEQA analysis.

Second, Petitioners argue that the EA considered only
one-way trips, not roundtrips, in calculating truck trip
emissions. Specifically, Petitioners assert that, because the
“EA estimated emissions using CalEEMod, a program that
estimates vehicle emissions based solely on one-way trips
together with their one-way travel distances[,]” the FAA
should have doubled the numbers it obtained when running
the CalEEMod analysis in order to obtain correct emissions
calculations. But, as the FAA states, “[u]pon completion of
the CalEEMod modeling, further analysis was completed to
calculate the total round trip truck traffic emissions that
would be generated by the operation of the Proposed
Project.” Although the FAA does not appear to specifically
articulate what further analysis was conducted, Petitioners
do not refute the FAA’s following representations:

Agency consultation included coordination
with agencies and local jurisdictions such as
the U.S. Environmental Protection Agency
(U.S. EPA), South Coast Air Quality
Management District (SCAQMD),
California Air Resources Board (CARB), and
the Southern California Association of
Governments (SCAG) to review the Air
Quality Protocol and modeling methodology.
Modeling outputs (which included truck
traffic data discussed by the commenter)
from CalEEMod were thoroughly reviewed
by the SCAQMD staff to ensure that all
 CTR. FOR COMMUNITY ACTION V. FAA 35

emissions (mobile, area, energy, etc.)
generated by the Proposed Project were
correctly calculated and those emissions
generated would conform to the most recent
Air Quality Management Plan (AQMP).

Pet’rs ER 0414 (Pet’rs ER Vol. 2). Petitioners do not refute
the FAA’s contention that the SCAQMD “thoroughly
reviewed” and “correctly calculated” the FAA’s truck trips
emissions analysis. As such, Petitioners provide no reason
to believe that the EA did not correctly analyze total truck
trips emissions.

Finally, Petitioners argue that the record contains an
inconsistency concerning the number of daily truck trips
calculated by the FAA. Specifically, Petitioners point out
that the FAA itself sometimes refers to the Project as
generating “3,823 daily truck trips” but uses a 192 daily
truck trips figure to calculate air quality impact. Although
Petitioners seem to suggest that the FAA impermissibly
reduced the 3,823 figure to the 192 figure in calculating
environmental impacts generally, the only portion of the EA
that the FAA points to for the use of the 192 figure is the air
quality impact calculation.

Petitioners cite no portion of the EA that contains the
3,823 figure but rather cite to portions of the FAA’s
responses to public comments regarding the EA. This figure
appears to come from the CEQA analysis, and was generated
there to determine traffic volumes, pursuant to the City of
San Bernardino’s requirement that truck trips be converted
to “Passenger Car Equivalents” in determining traffic
volumes. Under the City’s requirement, for every truck that
possesses four or more axles, for example, one truck trip is
36 CTR. FOR COMMUNITY ACTION V. FAA

equivalent to three passenger car trips and must be calculated
as such.

Petitioners, however, fail to articulate why the 3,823
figure or the City’s conversion requirement is relevant for
any environmental impact other than traffic volume.
Petitioner’s argument that the FAA needed to explain why it
relied on a 192 daily truck trips figure in determining air
quality impact as opposed to the 3,823 figure assumes that
the 3,823 figure is significant as it relates to air quality. But
Petitioners fail to articulate what exactly that significance is.
Moreover, Petitioners improvidently assume that the
language “daily truck trips” after the two numbers designates
both figures as describing the same calculation or statistic.
Although the FAA could have been clearer about the
differences between the 192 and 3,823 figures, it was
Petitioners who assumed the two figures described the same
calculation or statistic, and a review of where those figures
came from reveals their differing significances. Cf. Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983) (“We may not supply a
reasoned basis for the agency’s action that the agency itself
has not given. We will, however, uphold a decision of less
than ideal clarity if the agency’s path may reasonably be
discerned.” (citations and quotation marks omitted)). The
FAA does not need to explain away the significance of a
figure that Petitioners erroneously assume without
explanation possesses certain significance or applies to
environmental impacts apart from traffic volume.

In sum, Petitioners fail to raise any legitimate concerns
about the EA’s truck trips emissions calculations.
 CTR. FOR COMMUNITY ACTION V. FAA 37

F. California and Federal Environmental Standards

Petitioners finally assert that the FAA failed to consider
the Project’s ability to meet California state air quality and
federal ozone standards. Petitioners’ arguments here invoke
40 C.F.R. § 1508.27(b)(10)’s instruction that evaluating
whether a project will have a “significant” environmental
impact “requires consideration[] of . . . [w]hether the action
threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the
environment.”

First, the CCA argues that the EA failed to assess
whether the Project meets the air quality standards set by the
California Clean Air Act (CCAA). The CCA’s contention
in this regard is unavailing, however, because the CCA fails
to identify even one potential CCAA violation stemming
from the Project. This failure to specifically articulate a
potential violation is what distinguishes this case from Sierra
Club v. United States Forest Serv., 843 F.2d 1190 (9th Cir.
1988). In that case, the petitioner identified a specific
California water quality standard that one of its expert
witnesses believed would be violated, and the expert witness
explained how that violation would occur. Id. at 1195, n.3.
The only semblance of an attempt to articulate such a
violation comes from the CCA’s citation in its reply brief to
the CEQA analysis, which concluded that “[e]xceedances of
applicable SCAQMD regional thresholds are considered
significant and unavoidable[,]” and that “[t]he Project has
the potential to result in or cause . . . CAAQS violations[.]”
But, as previously discussed, the CEQA analysis’s
conclusion in this regard is unavailing because of the
SCAQMD’s letter refuting that contention in noting that the
Project “will conform to the AQMP[.]”
38 CTR. FOR COMMUNITY ACTION V. FAA

More importantly, the EA did discuss California air
quality law. As explained in the EA, “[t]he [CCAA],
administered by [the California Air Resources Board],
requires all air districts in the state to achieve and maintain
the California Ambient Air Quality Standards (CAAQS)[.]
California law does not require that CAAQS be met by
specified dates as is the case with NAAQS. Rather, it
requires incremental progress toward attainment.” The
implication here is that the FAA perceives no violation of
the CCAA because the Project will be able to meet the
incremental progress it needs for attainment. The CCA does
not refute this contention. There is therefore no reason to
believe that a CCAA violation is likely to occur and no
reason to believe that the EA failed to consider whether the
Project threatens a violation of the CCAA.

Second, the CCA argues that the EA failed to assess
whether the Project meets federal ozone standards. In 1979,
the EPA adopted a national air quality standard, colloquially
known as the “1-hour ozone standard,” limiting maximum
1-hour average concentrations of ozone to 0.12 parts per
million. See 44 Fed. Reg. 8,202 (Feb. 8, 1979) (codified at
40 C.F.R. § 50.9). Recognizing that further public health
protection was needed, the EPA also adopted an “8-hour
ozone standard” that similarly limits average concentrations
of ozone. See 62 Fed. Reg. 38,856 (July 18, 1997). The EPA
has updated its 8-hour ozone standard twice, once in 2008,
see 73 Fed. Reg. 16,436 (Mar. 27, 2008), and once in 2015,
see 80 Fed. Reg. 65,292 (Oct. 26, 2015).

The CCA argues that the EA fails to address the Project’s
compliance with the 2008 and 2015 federal 8-hour ozone
standard. The EA, however, states as follows:

[O]perational emissions in 2019 would
exceed the applicable de minimis thresholds
 CTR. FOR COMMUNITY ACTION V. FAA 39

for VOC and NOx resulting in a potential
exceedance of the ozone and NO2 NAAQS.
Thus, a [General Conformity Determination]
is required for the Proposed Project’s
emissions of non-attainment and
maintenance pollutants. The SCAQMD has
confirmed the emissions of VOCs and NOx
resulting from the Proposed Project are
within the 2012 AQMP General Conformity
Budget. The SCAQMD confirmation, in the
form of a letter dated April 30, 2019, is
provided in Attachment 2 of Appendix B.
The letter stated that the proposed Project
will conform to the AQMP (i.e., project
emissions are within AQMP budgets) and is
not expected to result in any new or
additional violations of the NAAQS or
impede the projected attainment of the
standards. The confirmation that the
estimated emissions are within the 2012
AQMP General Conformity Budget
demonstrates the Proposed Project will not
jeopardize the timely attainment of the ozone
NAAQS.

The CCA recognizes that the letter relied upon by the EA
“establishes the Project’s attainment of the 1997 ozone
standard,” but it believes that the letter does not recognize
such attainment of the 2008 and 2015 standards. Located
within the letter, however, is a link to the “latest approved
AQMP [which] is currently the Final 2012 AQMP[.]”
Following the link reveals the Final 2012 AQMP, and
Appendix IV(B): Proposed 8-hour Ozone Measures to the
plan, which establishes how the Basin will attain the 2008 8-
hour ozone standard. See 73 Fed. Reg. 16,436 (Mar. 27,
40 CTR. FOR COMMUNITY ACTION V. FAA

2008) (noting that EPA “for O3[ is] setting an AQI value of
100 equal to 0.075 ppm, 8-hour average”); Appendix IV(B):
Proposed 8-hour Ozone Measures Draft at Introduction and
n.1 (setting out path to attain “75 ppb NAAQS” standard
which the Draft notes was “adopted in 2008[ and] has been
established by the U.S. EPA”). So, contrary to what the
CCA asserts, the 2012 Final AQMP did “set[] a path to
attainment of the [2008] federal ozone standard,” and the
SCAQMD letter, relied upon by the EA, therefore
establishes the Project’s attainment of the 2008 federal
ozone standards by confirming the Project’s compliance
with the 2012 AQMP.

As for the 2015 federal ozone standard, the letter also
addresses how the Project can meet that standard. The CCA
itself recognizes that federal ozone standards can be met by
ensuring that project emissions fall within the SCAQMD’s
emissions “budget”:

[W]hen it became apparent that [the
project’s] impacts on air quality would
exceed de minimis thresholds for [federal
ozone standards], the Airport looked for a
loophole. On April 4, 2019, the Airport
Authority requested that the Air District stash
these emissions under its general conformity
emissions budget for the 2012 Air Quality
Management Plan. The Air District
agreed. . . . [I]n order to accommodate this
request, the Air District had to allocate
almost half of its statewide emissions budget
for the next five years to cover emissions
from this specific project . . . .
 CTR. FOR COMMUNITY ACTION V. FAA 41

As the CCA recognizes, the SCAQMD can ensure emissions
conform to federal ozone standards by allocating a certain
amount of its “emissions budget” to a project. The
SCAQMD letter recognizes this, as well:

[I]n order to incorporate the projected aircraft
operations in the next AQMP, South Coast
AQMD staff recommends that detailed
aircraft activity and emissions data for the
San Bernardino International Airport be
submitted to South Coast AQMD by the end
of 2019. This way, these emissions can be
appropriately included in the next AQMP
emissions inventory and not rely on the
general conformity budgets, which are in
high demand and have a limited availability.

Because the CCA does not demonstrate a risk of a violation
of federal ozone standards and rather argues only that the EA
needed to determine whether a risk existed, the CCA does
not refute the fact that the Project could be allocated a greater
portion of the emissions budget, as the CCA admits
happened before. In sum, the CCA provides no reason to
believe that the Project threatens a violation of the federal
ozone standards. Cf. Am. Wild Horse Campaign, 963 F.3d
at 1009.

Finally, Petitioners argue that the EA failed to assess
whether the Project meets California’s greenhouse gas
emission standards. Petitioners, however, only cite to
California statutory pronouncements that statewide
greenhouse gas emissions must be reduced to certain levels
by certain time periods. Those statutes charge the California
Air Resources Board with determining exactly how to
accomplish that task. See Cal. Health & Safety Code
42 CTR. FOR COMMUNITY ACTION V. FAA

§§ 38501, 38550, 38561, 38566. In its brief, California
points to the CEQA analysis’s finding of a significant
environmental impact resulting from the Project’s
greenhouse gas emissions. In conflict with Petitioners’
assertion, however, the CEQA analysis itself finds that “[t]he
Project would not conflict with any applicable plan, policy,
or regulation of an agency adopted for the purpose of
reducing the emissions of greenhouse gases.” The CEQA
analysis goes on to state:

[The California Air Resources Board]’s
Scoping Plan identifies strategies to reduce
California’s greenhouse gas emissions in
support of AB32 which requires the State to
reduce its GHG emissions to 1990 levels by
2020. Many of the strategies identified in the
Scoping Plan are not applicable at the project
level, such as long-term technological
improvements to reduce emissions from
vehicles. Some measures are applicable and
supported by the project, such as energy
efficiency. Finally, while some measures are
not directly applicable, the Project would not
conflict with their implementation.

. . . As summarized, the project will not
conflict with any of the provisions of the
Scoping Plan and in fact supports seven of the
action categories through energy efficiency,
water conservation, recycling, and
landscaping.

. . . Executive Order[] S-3-05 . . . [is an]
order[] from the State’s Executive Branch for
the purpose of reducing GHG emissions. The
 CTR. FOR COMMUNITY ACTION V. FAA 43

goal of Executive Order S-3-05 is to reduce
GHG emissions to 1990 levels by 2020 [and]
was codified by the Legislature as the 2006
Global Warming Solutions Act (AB 32). The
Project, as analyzed above, is consistent with
AB 32. Therefore, the Project does not
conflict with this component of Executive
Order S-3-05. . . .

As shown above, the Project would not
conflict with any of the 2017 Scoping Plan
elements as any regulations adopted would
apply directly or indirectly to the Project.

The CEQA analysis therefore recognizes that the Project will
not risk a violation of the California sources of law that
Petitioners argue the EA needed to consider. While the
CEQA analysis’s discussion of the Project’s compliance
with state standards does not necessarily absolve the FAA of
the duty to include such a discussion in the EA, it does
suggest that there is no risk of such a violation. And
although the CEQA analysis found that the emissions from
the Project’s operational activities would exceed the
SCAQMD threshold even with mitigation measures, as
discussed earlier, Petitioners do not refute the EA’s other
rationale for finding no significant environmental impact
stemming from the Project’s greenhouse gas emissions. See
Wild Wilderness, 871 F.3d at 727 (“One of these factors may
demonstrate intensity sufficiently on its own, although the
presence of one factor does not necessarily do so.” (citation
omitted)).

Because Petitioners have failed to proffer any specific
articulation of how the Project will violate California and
federal law, there is no reason to believe that the EA is
44 CTR. FOR COMMUNITY ACTION V. FAA

deficient for purportedly failing to explicitly discuss the
Project’s adherence to California and federal environmental
law. See Sierra Club, 843 F.2d at 1195 (ordering the
preparation of an EIS, in part, because Petitioner articulated
a specific way of how the “harvesting of the nine timber sales
may violate California’s water quality standards”).

III. Conclusion

Petitioners have failed to establish that the FAA acted
arbitrarily or capriciously in this case, so their Petition is
DENIED.

BUMATAY, Circuit Judge, concurring:

I take no pleasure in writing this concurrence because I
have great respect for our dissenting colleague. This case
deals with whether the Federal Aviation Administration
complied with its obligations under the National
Environmental Policy Act in approving a construction
project in San Bernardino, California. The majority, with
which I fully concur, grapples with these difficult questions
based on the law and facts as presented by the parties. I
acknowledge, however, that reasonable jurists can disagree
on the merits here.

But rather than simply addressing the issues presented
here, the dissent injects the case with accusations of
“environmental racism.” Such accusations are a serious
matter. If the government acted with any racial motivation,
this court has an obligation under the Constitution and the
laws to stop it. The majority did not address such
accusations—not because they are unimportant—but
because no party raised them. No party asserted that
 CTR. FOR COMMUNITY ACTION V. FAA 45

“environmental racism” had anything to do with the
government’s actions here. No party asked us to consider
whether the government violated equal protection or anti-
discrimination laws. Neither the petitioners nor the State of
California allege that the lack of an environmental impact
statement here was driven by racial animus. There is also no
briefing on the subject. The words “discrimination,”
“disparate impact,” and “racism” appear nowhere in the
parties’ briefing. Instead, our dissenting colleague alone
raises the claim of “environmental racism.”

Of course, every judge is entitled to his or her views, but
the dissent’s assertions are unfair to the employees of the
FAA and the Department of Justice who stand accused of
condoning racist actions without a chance to defend
themselves. Now, in the pages of the federal reporters, these
government employees will forever be marked with
advancing what our dissenting colleague calls
“environmental racism”—with no opportunity to respond. If
our dissenting colleague believes “environmental racism”
infected the FAA’s decision-making process, the proper
course would have been to order supplemental briefing on
the subject and to allow both sides to make their case through
the crucible of the adversarial process. But without fair
notice to the parties or suitable briefing, it was inappropriate
for the dissent to reach such a highly charged conclusion sua
sponte.

Make no mistake—racism is real, it’s immoral, and it
should be condemned at every turn. Had the parties alleged
that “environmental racism” led to the decisions made here,
this court would have had a legal and moral duty to fairly
adjudicate that claim. But leveling accusations of racism
with no chance of rebuttal is fundamentally unfair and not
how the judicial process should work.
46 CTR. FOR COMMUNITY ACTION V. FAA

RAWLINSON, Circuit Judge, dissenting:

I do not say this lightly, but it must be said. This case
reeks of environmental racism, defined as “the creation,
construction, and enforcement of environmental laws that
have a disproportionate and disparate impact upon a
particular race[.]” Pamela Duncan, Environmental Racism:
Recognition, Litigation, and Alleviation, 6 Tul. Envtl. L.J.
317, 325 (1993) (Environmental Racism). 1

San Bernardino County, California, is one of the most
polluted corridors in the entire United States. Not so
coincidentally, the location within San Bernardino County
that is the site of the approved project in this case is
populated overwhelmingly by people of color: 73% Latinx
and 13% African-American. Asthma rates in the community
are among the highest 2% in California and more than 95%
of the community lives below the poverty level.

1
By making this statement, I in no way intend to cast any aspersions
on my esteemed colleagues in the majority for not addressing this issue.
I readily acknowledge that the primary focus of the parties was on the
technical violations of the Environmental Assessment. However, I
hasten to add that this observation was not plucked out of thin air. The
State of California, both in its comments to the draft Environmental
Assessment and in its brief to this court, pointed out the designation of
the San Bernardino area as an environmental justice community
populated primarily by people of color and already saturated with
pollution. In response, the Environmental Assessment, under the
Caption of “Socioeconomics [and] Environmental Justice,” without
addressing the State’s expressed concerns, rendered the cursory
conclusion that the Amazon Project “would not result in any significant
socioeconomic impacts [or] environmental justice impacts.” This
cursory conclusion did not come anywhere close to taking the “hard
look” required by the National Environmental Policy Act (NEPA). Am.
Wild Horse Campaign v. Bernhardt, 963 F.3d 1001, 1007 (9th Cir.
2020).
 CTR. FOR COMMUNITY ACTION V. FAA 47

Environmental racism is real. As recently as 2018, a
group of scientists for the federal Environmental Protection
Agency (EPA) published a scholarly study of environmental
racism. See Ihab Mikati BS, Adam F. Benson, MSPH,
Thomas J. Luben, PhD, MSPH, Jason D. Sacks, MPH, and
Jennifer Richmond-Bryant, PhD, Disparities in Distribution
of Particulate Matter Emission Sources by Race and Poverty
Status, Am. J. of Public Health (Envtl. Justice), Vol. 108, No.
4 (2018). In explaining the basis for their study, the scholars
acknowledged initially the existence of “[p]revious literature
[showing] that non-Whites and below-poverty individuals
are more likely to reside near” highly polluted sites. Id. at
480. The scientists measured exposure to air pollution in
view of the “human health impacts of residential proximity
to facilities emitting air pollutants.” Id. The scientists
focused on the specific air pollutant of “particulate matter
(PM), a mixture of solid and liquid particles suspended in the
air.” Id. They explained that exposure to PM 2.5 “has been
[especially] associated with a number of health effects,
including respiratory and cardiovascular diseases as well as
premature mortality.” 2 Id.

The EPA scientists examined facility emissions data and
demographic data to reach their conclusion that “non-Whites
. . . face a disproportionate burden from PM-emitting
facilities. Blacks in particular are likely to live in high-
emission areas . . . Id. at 481. “[D]isparities for Hispanics
are less pronounced or consistent but still present. . . .” Id.
at 483. Ultimately, the EPA scientists concluded that “high
non-White populations [such as San Bernardino County]
coincide with high emissions nationally.” Id. at 482. Indeed,

2
Particulate matter 2.5 is defined as particles of 2.5 micrometers or
less in diameter.
48 CTR. FOR COMMUNITY ACTION V. FAA

“overall higher burdens for non-Whites are a consistent
outcome at both state and county levels.” Id. (cleaned up).

Almost twenty-five years ago, academics recognized the
problem of environmental racism. See Environmental
Racism, 6 Tul. Envtl. L.J. at 321 (urging the “design [of] a
regulatory model for environmental justice . . . to stop the
trend of allowing people of color to bear the brunt of living
with” environmental pollution). Various studies confirmed
that “[m]inority communities are bearing a greater
proportion of the effects of past and current industrial
pollution.” Id. at 318. This disproportion is no coincidence,
despite efforts to characterize it as such. See id. at 320.
Notably, “neglect of minority communities under
environmental law occurs whether or not the communities
are poor.” Id. at 335.

One of the more heartbreaking instances of
environmental racism was documented recently by the
United Nations. Environmental racism in Louisiana’s
‘Cancer Alley’ must end, say UN human rights experts
(March 2, 2021). https://news.un.org/en/story/2021/03/108
6172. The UN branded this proliferation of pollution
sources “environmental racism,” and noted that the pollution
“subjected the mostly African American residents . . . to
cancer, respiratory diseases and other health problems,”
similar to those evidenced in heavily polluted San
Bernardino County. Id. “According to data from the
Environmental Protection Agency’s National Air Toxic
Assessment map, the cancer risks in predominantly African
American Districts . . . could be at 104 and 105 cases per
million, while those threats in predominantly white districts
range from 60 to 75 per million. Id. Stated differently, the
cancer risk for African Americans is almost twice that of
white Americans, all because of unchecked pollution. Sadly,
 CTR. FOR COMMUNITY ACTION V. FAA 49

the experts concluded that “federal environmental
regulations have failed to protect people residing in ‘Cancer
Alley.’”

Despite the designation of the South Coast Air Basin by
the EPA as an “extreme” non-attainment area for ozone and
“serious” non-attainment for PM2.5, 3 a finding one year
earlier by the San Bernardino International Airport
Authority that the project would have significant and
unavoidable environmental impacts, and the release of one
ton of additional air pollution a day into the already overly-
polluted air of San Bernardino County, the Federal Aviation
Administration (FAA) concluded that the project would
have no significant impact on the environment. This
conclusion would be laughable if the consequences were not
so deadly to the population of San Bernardino County.
Because of its conclusion of no significant impact, the FAA
did not prepare an Environmental Impact Statement (EIS)
assessing the effect of the project on the already-polluted
San Bernardino community. I must dissent.

With the definition of environmental racism firmly in
mind, I turn to the summary of this case. The project at issue
is a massive package distribution center for Amazon located
at the San Bernardino International Airport (Airport). 4
Approval of the Amazon Project is challenged by a coalition
of organizations and the State of California (collectively
Petitioners). Petitioners specifically challenge the Finding
of No Significant Impact (Impact) from the FAA.

3
These designations reflect failure to achieve the standards set by
the EPA. See 40 C.F.R. § 93.153.
4
Although the FAA designated this project as the “Eastgate Air
Cargo Facility,” I call it what it really is—the Amazon Project.
50 CTR. FOR COMMUNITY ACTION V. FAA

Petitioners maintain that the FAA violated the National
Environmental Policy Act (NEPA) by not preparing an EIS
analyzing the environmental effects of the Amazon Project
on the surrounding San Bernardino community.

Background

The Amazon Project is an air cargo facility intended to
“support large-scale air cargo operations with on-airport
package sorting capabilities.” It will occupy 101.5 acres of
the Airport, located on the former Norton Air Force Base.
Notably, upon its closure Norton Air Force Base was
designated a superfund site due to past hazardous waste
management and onsite disposal practices. 5 Even before
approval of the Amazon Project, the Airport already
conducted activities involving the use of hazardous
materials, including fueling of aircraft and vehicles, and the
use of oils, antifreeze, paints, sealants, foam, and liquid-
extinguishing compounds.

The Amazon Project will add to this mix of pollutants
taxiways and a parking apron for fourteen aircraft; a 658,500
square-foot building for offices, package sorting, and
distribution; two 25,000 square-foot maintenance buildings;
and roughly 2,000 parking spaces. According to the FAA’s
Environmental Assessment, the Amazon Project will
generate 24 daily take-offs and landings at the airport, 192
daily roundtrip truck trips, and 3,486 daily passenger-car
trips in its first year of operation. By the year 2024, daily

5
The Federal Superfund Program was established by the EPA
pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980. The program developed a list
of sites contaminated with hazardous substances, pollutants, or
contaminants. As noted, Norton Air Force Base was added to the
Superfund Program due to widespread contamination at that location.
 CTR. FOR COMMUNITY ACTION V. FAA 51

take-offs and landings will increase to 26, daily roundtrip
truck trips to 500, and daily passenger-car trips to 7,516.

One year before the FAA issued its finding of no
significant impact, the State of California evaluated the
environmental impact of the Amazon Project under the
California Environmental Quality Act (CEQA), the state
corollary to NEPA. The State of California’s final
Environmental Impact Report concluded that operation of
the Amazon Project would result in “significant impacts” on
air quality, greenhouse gases, and noise.

It is difficult to square the State of California’s
conclusion of significant impacts with the FAA’s conclusion
of no significant impact. Petitioners contend that the
difference can be explained by the failure of the FAA to take
the requisite “hard look” at the Amazon Project as required
by NEPA. I agree with the Petitioners.

Discussion

When reviewing the FAA’s decision not to prepare an
EIS, we are tasked with determining whether the agency
took a “hard look” at the environmental effects of the
proposed project. Am. Wild Horse Campaign v. Bernhardt,
963 F.3d 1001, 1007 (9th Cir. 2020). The FAA was also
required to “provide[] a convincing statement of reasons to
explain why a project’s impacts are insignificant.” Id.
(citation omitted). On this record, I am not convinced that
the FAA has done so. In my view, Petitioners “rais[ed]
substantial questions whether a project may have a
significant effect,” thereby requiring preparation of an EIS.
Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1136 (9th
Cir. 2011) (citation omitted).
52 CTR. FOR COMMUNITY ACTION V. FAA

1. The General Study Area

Petitioners contend that the General Study Area for the
Amazon Project was defined too narrowly to capture the
totality of the impacts on air quality, vehicle traffic,
socioeconomic issues, and other land uses. The FAA
counters that the General Study Area was drawn
appropriately. Both parties anchor their arguments to the
FAA’s 1050.1F Desk Reference. 6

The FAA specifically maintains that the General Study
Area was drawn in compliance with Appendix B of its Desk
Reference and that, in any event, the Desk Reference is not
binding. However, the FAA’s reliance on Appendix B does
not support its decision to define the General Study Area to
include only:

roughly the region around the Airport within
the 2024 Proposed Project community noise
equivalent level (CNEL) 65 decibels (dB)
and higher aircraft noise contours, the Airport
property, and the neighborhoods north of the
Airport through which employee vehicle and
truck traffic is expected to flow to and from
the Proposed Project site (roughly between
Tippecanoe Avenue, Highway 210, and
Victoria Avenue).

This study area “includes parts of the cities of San
Bernardino, Highland, and Redlands, as well as areas of

6
The FAA’s waiver argument is not well-taken. Petitioners
sufficiently addressed the “arbitrarily narrow General Study Area” in its
comments to the draft Environmental Assessment.
 CTR. FOR COMMUNITY ACTION V. FAA 53

unincorporated San Bernardino County.” The total distance
is approximately 11 square miles.

According to the Environmental Assessment, the
General Study Area is meant “to assess direct and indirect
impacts of the Proposed Project,” which echoed the
definitions in the Council on Environmental Quality (CEQ)
regulations implementing the version of NEPA then in
effect. See 40 C.F.R. § 1508.8(a)–(b) (2019) (defining
“effects” as “[d]irect” and “[i]ndirect”).

The FAA asserts that the General Study Area is large
enough to evaluate the effects on all environmental impact
categories because it was drawn in accordance with
Appendix B of FAA Order 1050.1F. But Appendix B
provides that “[t]he compatibility of existing and planned
land uses with proposed aviation actions is usually
determined in relation to the level of aircraft noise.”
(emphasis added). Appendix B does not support a
conclusion that a study area linked solely to the level of
aircraft noise is adequate to analyze every environmental
impact. In fact, the desk reference reflects the opposite
approach: “The study area varies based on the impact
category being analyzed.”

According to the Desk Reference, “[t]he study area for
air quality should be defined as the entire geographic area
that could be either directly or indirectly affected by the
proposed project.” Indeed, the Desk Reference notes that a
project “can lead to air pollutant emissions that may occur at
some distance from a project site, such as exhaust from
project-generated vehicle traffic on the surrounding road
network,” so “the study area for a project’s air quality
analysis could encompass many square miles and/or
multiple air basins.”
54 CTR. FOR COMMUNITY ACTION V. FAA

The Amazon Project is not simply an aviation activity
that will increase aircraft noise, but a massive distribution
hub that will also produce significant mobile emissions,
particularly from trucks. According to the Environmental
Assessment, the Amazon Project may generate one-way
trips by heavy trucks that will extend well beyond the
General Study Area: from 26.9 miles (to Cajon Pass) to
80.47 miles (to Los Angeles/Long Beach), with the average
trip being 64.25 miles. Thus, the effects of the Amazon
Project extend well beyond the 11-mile General Study Area.

The FAA glosses over its deficient designation of the
General Study Area by stating that it “considered the
potential air quality impacts of vehicle traffic flowing
between the Project and locations outside the boundary of
the General Study Area.” But the section of the
Environmental Assessment that the FAA references simply
mentions those trips. Tellingly, the FAA does not point to
any analysis regarding those trips. Indeed, the FAA took the
position in its brief that the 11-square-mile General Study
Area is large enough to address all environmental impacts,
and the Environmental Assessment echoes that view.

The Environmental Assessment is similarly deficient in
its analysis of socioeconomic impacts. The Desk Reference
instructs that “[f]or socioeconomics, the study area may be
larger than the study area for other impact categories and
should consider the impacts of the alternatives on the
following broad indicators: economic activity, employment,
income, population, housing, public services, and social
conditions.” “The baseline conditions should include the
size of local population centers, the distance from a project
site to these areas, and the nature of the local economics.”
Id.
 CTR. FOR COMMUNITY ACTION V. FAA 55

Petitioners point out, and the FAA does not dispute, that
“the General Study Area is significantly smaller than the
local population centers for the Cities of San Bernardino,
Highland, Redlands, and unincorporated San Bernardino
County, even though [the Amazon Project] is located in or
borders each of these areas.” Indeed, the FAA confirms that
it only assessed socioeconomic impacts for “areas located
within the aircraft noise contours” and “neighborhoods north
of the Airport through which employee vehicle and truck
traffic is expected to flow to and from the Project site.” But
economic activity, employment, and other broad
socioeconomic factors do not travel only as far as noise and
trucks traffic.

In sum, the General Study Area does not encompass all
of the Amazon Project’s potential direct and indirect effects
on air quality and socioeconomic conditions. Consequently,
the FAA failed to take the requisite “hard look” at these
consequences of the project. Am. Wild Horse Campaign,
963 F.3d at 1007.

2. Cumulative Impacts Analysis

In addition to the FAA’s failure to designate a
sufficiently extensive General Study Area, the Petitioners
submit that the FAA’s cumulative impacts analysis was also
deficient because it ignored more than 80 projects located
immediately outside the study areas, and the Environmental
Assessment failed to “disclose specific, quantifiable data
about the cumulative effects of related projects,” “explain
why objective data about the projects could not be
provided,” or “discuss the combined effects of these
projects.”

The FAA responds that (1) it considered the 80 projects
outside the General Study Area, albeit only for cumulative
56 CTR. FOR COMMUNITY ACTION V. FAA

traffic impact and not for overall cumulative impacts; (2) it
was only required to include within the cumulative impacts
analysis 26 projects located within the General Study Area,
which it did; and (3) the cumulative impacts analysis may
consist of detailed information rather than quantified data, as
provided in a chart describing the 26 projects within the
General Study Area, along with an explanation of the
cumulative impact of these projects.

“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 (2019).
“[A]n agency must provide some quantified or detailed
information” regarding cumulative impacts. Bark v. United
States Forest Serv., 958 F.3d 865, 872 (9th Cir. 2020)
(internal quotation marks omitted). “General statements
about possible effects and some risk do not constitute a hard
look absent a justification regarding why more definitive
information could not be provided.” Id. (citation, alteration,
and internal quotation marks omitted). Moreover, the
analysis “must be more than perfunctory; it must provide a
useful analysis of the cumulative impacts of past, present and
future projects.” Id. (citation omitted).

Preliminarily, given my conclusion that the General
Study Area is not large enough to adequately analyze the
Amazon Project’s effects on air quality and socioeconomics,
it necessarily follows that the cumulative effects analysis is
similarly flawed.

The FAA’s cumulative effects analysis is also
inadequate for three other reasons. First, the FAA does not
explain why it analyzed the delineated 80 projects for traffic
effects only, and no rationale was provided for limiting the
analysis. If the projects would affect traffic, they would
 CTR. FOR COMMUNITY ACTION V. FAA 57

logically also affect air quality, and likely other
environmental areas.

Second, the Environmental Assessment includes a table
of only 26 past, present, and future projects with minimal
information: a description of the project, the address, the
timeframe/status, and potential resources affected. This
Court has rejected similar tables that contain little to no
information. See Bark, 958 F.3d at 872 (criticizing table that
“gave no information about any of the projects listed” but
“merely named them”); see also Klamath-Siskiyou
Wildlands Ctr. v. BLM, 387 F.3d 989, 994 (9th Cir. 2004)
(same, for table that did not provide “objective
quantification of the impacts” and “informed only that a
particular environmental factor will be ‘unchanged,’
‘improved,’ or ‘degraded’ and whether that change will be
‘minor’ or ‘major’”). Giving basic information about other
projects may be a good start toward analyzing their
collective effect on the environment, but it is not enough.
See Klamath-Siskiyou, 387 F.3d at 995.

Third, explanation of the cumulative effects in the
Environmental Assessment is similarly inadequate. For
instance, the Environmental Assessment states that
“cumulative projects have a moderate to low potential to
result in permanent, significant cumulative air quality
impacts,” without any quantification of the emissions from
these projects, individually or collectively. The same holds
true for the analysis of roadway noise. The Environmental
Assessment states that “to noticeably increase noise (i.e., an
increase of 3 dB), vehicle traffic volume would need to
double,” and “[c]onsidering the nature of the cumulative
projects, a doubling of traffic volumes would not be
expected and cumulative impacts associated with roadway
noise would not be anticipated.” But the Environmental
58 CTR. FOR COMMUNITY ACTION V. FAA

Assessment does not expand upon that conclusion. Nor does
it quantify anticipated traffic or generated noise levels.

The FAA concedes that it did not quantify its
conclusions, but argues that its detailed explanations are
sufficient. However, that argument runs afoul of our
decision in Klamath-Siskiyou, 387 F.3d at 994 (rejecting
cumulative effects conclusion that contained “no quantified
assessment of [the projects’] combined environmental
impacts” and a table that did not inform “what data the
conclusion was based on, or why objective data cannot be
provided”). In sum, the FAA offers “the kind of conclusory
statements, based on vague and uncertain analysis, that are
insufficient to satisfy NEPA’s requirements.” Bark,
958 F.3d at 872 (internal quotation marks omitted).

3. Number of Daily Truck Trips

Petitioners point out that the FAA reduced estimated
daily truck trips in the Environmental Assessment by 95%
without explanation. Although the Environmental
Assessment states that the Amazon Project will generate 192
daily truck trips in 2019, a NEPA Data Spreadsheet
incorporated into the Environmental Assessment and one of
the FAA’s responses to comments reference a much higher
number: 3,823 daily truck trips.

The State of California raises a similar argument based
on California’s Environmental Impact Report for the
Amazon Project, reflecting 248 daily truck trips the first year
and 652 daily truck trips at full operation. California also
notes that the Environmental Assessment models only half
of mobile emissions because the modeling program used by
the FAA only counts one-way trips. These miscalculations
underestimated potential emissions, thereby failing to
account for the project’s true intensity and context.
 CTR. FOR COMMUNITY ACTION V. FAA 59

The FAA counters that its methodology is reasonable.
While acknowledging that California’s report estimated
more truck trips, the FAA notes that the California report
“predated the final Environmental Assessment by more than
a year,” 7 and that estimates of how many packages the
Amazon Project would process daily decreased from that
time. The FAA then speculates that “the decrease in package
volumes may explain the decrease in truck trips between the
[California] Report and the Environmental Assessment,”
even though the record does not reflect that California’s
calculation was predicated on package volumes.

The FAA disputes California’s statement that the
Environmental Assessment only modeled emissions for one-
way truck trips. The FAA emphasizes that the
Environmental Assessment continuously states that all truck
trips are “round trips.” The FAA also relies on its response
to comments that “[u]pon completion of the [modeling
program], further analysis was completed to calculate the
total round trip truck traffic emissions that would be
generated by the operation of the Proposed Project.”
However, the FAA does not identify this “further analysis.”

Regarding the reference to “3,823 daily truck trips,” the
FAA first argues that the figure concerns traffic analysis
only and that its “assessment of traffic impacts is not an issue
in this case.” The FAA then contends that the figure’s
inclusion in an Environmental Assessment appendix and a
spreadsheet were “minor” and “inconsequential” errors. The

7
Although the California environmental report was finalized on
October 1, 2018, the trip calculations are based on a Traffic Impact
Analysis performed on July 2, 2018. The calculations for the NEPA
analysis were done on January 15, 2019. So the time between the
calculations is not “more than a year,” but approximately six months.
60 CTR. FOR COMMUNITY ACTION V. FAA

FAA reasons that it converted truck trips to “passenger car
equivalents (PCE),” but acknowledges that it also “stated
incorrect numbers that were larger than the PCE conversion
would yield” and also “inadvertently omitted the PCE
abbreviation and said ‘daily truck trips.’” So rather than
referencing 3,823 daily truck trips, the documents should
have referenced 1,738 PCE. However, the record does not
support this explanation. The FAA stated in its responses to
comments that, according to the traffic analysis, the Amazon
Project would generate “3,826 daily passenger car trips” and
“also include approximately 3,823 daily truck trips.” “Truck
trips were converted to PCE using the City’s conversion
rates of 2.0 for 2-axle trucks, 2.5 for 3-axle trucks and 3.0
for 4+ axle trucks,” resulting in “8,007 daily PCE trips,”
which is roughly 2.09 times 3,823. A PCE of 8,007 would
be consistent with 3,823 daily trips by mostly 2-axle trucks
and a few 3-axle trucks. In short, the 3,823 figure cannot be
dismissed as a typo.

In sum, the FAA did not give the requisite “hard look”
to potential truck emissions because it arbitrarily used two
different truck-trip figures and did not provide the “further
analysis” of roundtrip emissions. Importantly, the FAA
concedes that “none of FAA’s air emissions calculations
[were] based on the traffic figures.” This failure to link air
emissions calculations to traffic figures reflects a “fail[ure]
to consider an important aspect” of the Amazon Project, a
violation of NEPA. Motor Vehicle Mfrs. Assn. of U.S. v.
State Farm, 463 U.S. 29, 43 (1983).

No logical reason exists to divorce traffic figures from
emission calculations. Emissions are generated from mobile
sources, like trucks. If the FAA did not account for most
mobile sources when it calculated emissions, it failed to
provide “a convincing statement of reasons to explain [the
 CTR. FOR COMMUNITY ACTION V. FAA 61

Amazon Project’s] impacts are insignificant.” Am. Wild
Horse, 963 F.3d at 1007. The FAA’s post hoc explanations
do not satisfy its obligations under NEPA. 8 See Dep’t of
Homeland Sec. v. Regents of the Univ. of California, 140 S.
Ct. 1891, 1909 (2020) (“An agency must defend its actions
based on the reasons it gave when it acted. . . .”).

Conclusion

The FAA’s conclusion that the emissions-spewing
Amazon Project will have no significant environmental
impact on the already overly-polluted San Bernardino
Valley does not pass muster under NEPA. The
Environmental Assessment does not come close to taking the
requisite “hard look” at the environmental consequences of
this massive project. Let me count the ways the
Environmental Assessment is deficient:

1. Failing To Define The General Study
Area In A Sufficiently Broad Manner So
As To Capture The Totality Of The
Environmental Impact.

2. Failing To Include More Than 80
Projects Located Immediately Outside
The Study Areas In The Cumulative
Impacts Analysis.

8
A persuasive argument was also made regarding the FAA’s failure
to address air quality standards. However, in view of the significant
deficiencies already discussed, I will not delve further into that issue.
62 CTR. FOR COMMUNITY ACTION V. FAA

3. Patently Undercounting The Number Of
Daily Truck Trips In Calculating
Potential Truck Omissions.

4. Ignoring The Analysis Conducted By The
State of California Concluding That The
Amazon Project Would Result In
“Significant And Unavoidable”
Environmental Impacts To The Already
Over-Polluted San Bernardino Valley.

5. Ignoring The Designation Of The San
Bernardino Valley By The EPA As An
“Extreme” Non-Attainment Area For
Particulate Matter.

Does anyone doubt that this Environmental Analysis
would not see the light of day if this project were sited
anywhere near the wealthy enclave where the
multibillionaire owner of Amazon resides? Certainly not.
The same standard should apply to the residents of San
Bernardino Valley, who have already borne for many years
the heavy cost of pollution resulting in a quantifiable
detriment to their health. But such is the nature of
environmental racism. See Environmental Racism, 6 Tul.
Envtl. L.J. at 321.

Residents of the San Bernardino Valley are not
disposable. Their lives matter. A recent article in the
Washington Post is a startling reminder of the pall pollution
has cast over the planet. According to a scientist from the
Grantham Institute for Climate Change and the
Environment, “[i]t is likely that nearly everyone in the world
now experiences changes in extreme weather as a result of
human greenhouse gas emissions.” Annabelle Timsit and
Sarah Kaplan, At least 85 percent of the world’s population
 CTR. FOR COMMUNITY ACTION V. FAA 63

has been affected by human-induced climate change, new
study shows, The Washington Post, October 11, 2021.
Closer to home, over the summer “hundreds of people in the
Pacific Northwest died after unprecedented heat baked the
unusually temperate region.” Id.; see also Doyle Rice, Over
4 of 10 Americans breathe polluted air report says. And
people of color are 61% more likely to be affected, USA
Today, April 21, 2021 (citing a report from the American
Lung Association). Our children and grandchildren are
looking to us to stem this tide of pollution that is contributing
to increasingly disastrous climate change. See Climate
Change, https://world101.cfr.org/global-era-issues/climate-
change (last visited Oct. 20, 2021). This emissions-spewing
facility that disproportionately impacts communities of color
and was not properly vetted is a good place to start.

We must do better, and I must dissent. 9

9
My concurring colleague chastises me for “mark[ing] . . .
government employees” “with advancing environmental racism.” For
the record, I grew up in the segregated South and looked racism in the
face, up close and personal, long before my concurring colleague was
born. So pardon me if I take a hard pass on the lecture on when, where,
and how to identify racial injustice. Indeed, if any compassion is owed
in this case, it should be directed toward the people in San Bernardino
County who are literally dying from being subjected to pollution on top
of pollution. As for those involved in the preparation of this report who
co-sign my colleague’s accusation, I leave you with the wise words of
my dearly departed Mama Louise: “Only hit dogs holler.”