United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2011 Decided October 28, 2011
No. 10-1276
TOWN OF BARNSTABLE, MASSACHUSETTS
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
CAPE WIND ASSOCIATES, LLC,
INTERVENOR
Consolidated with 10-1307
On Petitions for Review of an Order
of the Federal Aviation Administration
W. Eric Pilsk argued the cause for Barnstable, petitioner
in No. 10-1276, and for the Alliance to Protect Nantucket
Sound, petitioner in No. 10-1307. With him on the briefs
were Catherine M. van Heuven and Charles C. Lemley.
Daniel J. Lenerz, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Tony West, Assistant Attorney General, Michael Jay Singer,
2
Attorney, Richard H. Saltsman, Assistant Chief Counsel for
Litigation, Federal Aviation Administration, and Vicki
Leemon, Manager.
Geraldine E. Edens, Frederick R. Anderson, and Daniel
G. Jarcho, were on the brief for intervenor Cape Wind
Associates, LLC.
Before: TATEL and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Cape Wind Associates
has proposed building 130 wind turbines, each 440 feet tall, in
a 25-square mile area of Nantucket Sound—an area roughly
the size of Manhattan island. If constructed, the project would
be the nation’s first offshore wind farm. See Impact Study of
130 Offshore Wind Turbines in Nantucket Sound at 1 fig.1,
Joint Appendix (“J.A.”) 59, shown below:
3
As required by federal regulations, Cape Wind notified
the Federal Aviation Administration of its proposed
construction. See 14 C.F.R. § 77.13. After a preliminary
investigation, the FAA issued a Notice of Presumed Hazard,
J.A. 43, and initiated more extensive aeronautical studies to
decide whether the project would “result in an obstruction of
the navigable airspace or an interference with air navigation
facilities and equipment or the navigable airspace.” 49 U.S.C.
§ 44718(b). The FAA also circulated a public notice of these
studies and invited interested persons to submit comments.
The FAA ultimately issued 130 identical Determinations
of No Hazard, one for each of the proposed wind turbines. In
the determinations, the FAA concluded that the turbines
“would have no substantial adverse effect on the safe and
efficient utilization of the navigable airspace by aircraft or on
the operation of air navigation facilities.” See, e.g.,
Determination of No Hazard to Air Navigation, No. 2009-
WTE-332-OE (May 17, 2010) (“Determination”) at 1, J.A. 1.
Although it ultimately decided that the project was not a
hazard, its decision was contingent on Cape Wind’s
implementing a number of measures to mitigate the turbines’
adverse impact on nearby radar facilities. See Determination
at 5–6, J.A. 5–6.
Petitioners—the town of Barnstable, Massachusetts and
the Alliance to Protect Nantucket Sound, a non-profit
organization of private citizens and other organizations—
challenge these No Hazard determinations. They argue that
the FAA violated its governing statute, misread its own
regulations, and arbitrarily and capriciously failed to calculate
the dangers posed to local aviation.
In response, the FAA claims that petitioners lack standing
to challenge the FAA’s determinations and that their merits
claims are faulty. We find that petitioners do have standing
4
and that the FAA did misread its regulations, leaving the
challenged determinations inadequately justified.
* * *
Petitioners bear the burden of providing, “by affidavit or
other evidence,” “specific facts” sufficient to demonstrate
standing; once provided, however, those facts “will be taken
as true” by this Court. Sierra Club v. EPA, 292 F.3d 895, 899
(D.C. Cir. 2002) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)). At this stage, however, we must
assume the petitioners will prevail on the merits, see City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003), which
means we must assume the FAA would determine the wind
farm poses a hazard of the degree and kind the petitioners
allege.
Of the three familiar prerequisites to Article III
standing—injury, causation, and redressability—the FAA
acknowledges the adequacy only of petitioners’ injury claims.
These include the risk of collisions, as well as delay and
inconvenience for pilots and other members of the Alliance
involved in aviation over and about the proposed wind farm
area, with collateral damage for Barnstable as owner and
operator of the town’s municipal airport (HYA) and for
members of the Alliance affected by the adverse impact on
aviation. Accordingly, petitioners seek a determination from
the FAA that the wind farm poses an unmitigable hazard.
But the FAA sharply asserts inadequacy as to causation
and redressability. Here petitioners’ burden is to show that
their injuries are fairly traceable to the challenged conduct and
that any ultimate success on the merits would yield a
“significant increase in the likelihood that [they] would obtain
relief that directly redresses the injur[ies] suffered.” Utah v.
Evans, 536 U.S. 452, 464 (2002); see also Nat’l Parks
5
Conservation Ass’n v. Manson, 414 F.3d 1, 7 (D.C. Cir. 2005)
(quoting the same). Put another way, there must be a
“substantial probability” that a favorable outcome would
redress petitioners’ injuries. St. John’s United Church of
Christ v. FAA, 550 F.3d 1168, 1170 (D.C. Cir. 2009).
Potentially undermining petitioners’ showing of causation
and redressability is the fact that the FAA’s hazard
determinations, by themselves, have “no enforceable legal
effect.” BFI Waste Sys. v. FAA, 293 F.3d 527, 530 (D.C. Cir.
2002) (quoting Aircraft Owners & Pilots Ass’n v. FAA, 600
F.2d 965, 966 (D.C. Cir. 1979)). The Interior Department, as
lessor of the project area to Cape Wind, is the ultimate arbiter
of whether the wind farm receives government permission.
See 43 U.S.C. § 1337(p) (delineating Interior’s authority to
grant leases on the outer continental shelf). Thus, answering
the causation and redressability questions requires us, first, to
assume that the FAA will determine that the wind farm poses
a hazard of the degree and kind petitioners allege, and second,
to appraise the likely effects of such a finding on Interior—
specifically whether it would generate a significant increase in
the likelihood that Interior would exercise its authority to
revoke the lease or to modify it in a way that would in whole
or in part redress petitioners’ threatened injuries. See
Commercial Lease of Submerged Lands for Renewal Energy
Development on the Outer Continental Shelf (Oct. 6, 2010)
(“Lease”), available at http://www.boemre.gov/offshore/Rene
wableEnergy/PDFs/CapeWind_signed_lease.pdf, at 3 §§ 7, 8.
We conclude that petitioners have shown the requisite
likelihood. Interior repeatedly assigned the FAA a significant
role in its decision-making process, mandating that Cape
Wind “could not begin construction until [its] receipt of the
FAA’s final determination on whether a hazard exists and
[Cape Wind’s] compliance with any resulting mitigation
measures.” Record of Decision, Cape Wind Energy Project,
6
Horseshoe Shoal, Nantucket Sound (Apr. 28, 2010) (“Record
of Decision”), available at http://boemre.gov/offshore/renewa
bleenergy/PDFs/CapeWIndROD.pdf, at 24. And despite
recognizing that “FAA [hazard] determinations are advisory
in nature,” Interior incorporated in the lease a requirement that
Cape Wind abide by any mitigation measures FAA might
propose in its ultimate determination. Id. at 59. Thus the final
lease with Cape Wind states that if the FAA “imposes
requirements on the Lessee which supersede those in the
[prior] FAA Determination [], the Lessee shall comply instead
with such superseding post-lease requirements.” Lease at C-
28. Interior thereby gave its blessing to the FAA to impose
any future mitigation measures that the FAA might deem
necessary to reduce or eliminate a hazard on Cape Wind, and
to do so without any further consultation.
In a curious display of agency modesty, the FAA
dismisses its influence with Interior. It emphasizes that
Interior reached its decision only after years of deliberation
that involved consultation with over a dozen agencies, and
that Interior decided to move forward with the project only
“[a]fter careful review of the project need, the various
alternatives considered, the concerns expressed through years
of public comment, as well as the many agency consultations
that were conducted and the potential impact to Nantucket
Sound and environs therein.” Record of Decision at 5.
But in fact the evidence seems to us to show that Interior
would take an FAA finding of hazard very, very seriously.
First, the statutory mandate under which Interior issued the
lease explicitly requires it to take into account the “safety” of
the activities enabled by the lease. 43 U.S.C. § 1337(p)(4).
Interior acknowledges this obligation in the lease itself. Lease
at 3.
7
And the record contains numerous contentions indicating
that the wind farm might pose just such a safety risk. For
example, petitioners cite evidence that the many pilots who
regularly operate under visual flight rules (“VFR”) near the
proposed wind farm would have a difficult time staying
beneath the foggy and otherwise inclement weather that often
plagues Nantucket Sound, while at the same time maintaining
a safe distance from the wind turbines. During such times,
there would be a “clear risk of collision with the wind turbine
generators.” Submission of managers of the Barnstable,
Nantucket and Martha’s Vineyard airports (May 14, 2010) at
4, J.A. 586. The “finely balanced airspace over Nantucket
Sound is already one of the most congested, foggy, and
dangerous airspaces on the eastern seaboard.” Submission of
chairman of Barnstable airport (Mar. 17, 2009) at 3, J.A. 109.
A group of air traffic controllers summed it up by saying that
adding the turbines to the area would be a “disaster waiting to
happen.” Submission of National Air Traffic Controllers
Association (Oct. 19, 2004) at 3, J.A. 343.
Petitioners also submitted evidence that attempts to
circumvent the turbines would not solve the problem. Such
attempts, said the CEO and president of Island Airways after
reviewing the volume of traffic and its multiple layers, would
be “problematic because even horizontal diversions of only
one or two miles can further compress air traffic into
concentrated corridors.” Aff. of W. Scott LaForge (June 15,
2010) at 5, J.A. 857. A “horizontal diversion around a 25
square mile project would certainly lead to concentrated
corridors of travel” and thereby “increase the possibility of a
collision.” Id. Moreover, such “encroachment of established
VFR routes [would] severely compromise [pilots’] ability to
execute collision avoidance maneuvers in the dead center of
the three airports of Nantucket Sound.” Letter from W. Scott
LaForge (Apr. 14, 2009) at 2, J.A. 138.
8
While of course the wind farm may be one of those
projects with such overwhelming policy benefits (and political
support) as to trump all other considerations, even as they
relate to safety, the record expresses no such proposition.
Moreover, of the many agencies that Interior consulted, it
adopted prospective, automatic incorporation of mitigation
measures proposed by only two—the Coast Guard and the
FAA. See Lease at C-28, C-30. Interior’s deference to these
two agencies, one tasked with protecting safety on the sea and
the other in the air, appears to reflect a serious effort to meet
its statutory obligation to ensure safety. We note, moreover,
that the Coast Guard determined only that navigation at sea
would be “moderately impaired.” Record of Decision at 25.
The required assumption of the merits in favor of petitioners
precludes our supposing that the FAA’s ultimate label will
speak only of a “moderate” aviation hazard.
The FAA also argues that Interior did not wait for a final
determination before approving the project. But it is hardly
surprising that Interior’s decision came shortly before the
FAA’s final determination. In 2001, when Cape Wind first
proposed the project, the turbines had been designed to be 417
feet tall; only later did it raise them to 440 feet. The FAA had
studied the impact of the original configuration and had issued
a no-hazard determination. See Record of Decision at 24.
Interior cited this previous study in its Record of Decision, id.,
and likely did not expect that the 23-foot height increase
would alter the FAA’s viewpoint. Despite this expectation,
Interior still conditioned any start of construction on receipt of
a final FAA determination. Id.
The facts here are rather similar to those underlying our
decision in National Parks Conservation Ass’n v. Manson,
414 F.3d 1 (D.C. Cir. 2005), where we found that petitioners
had standing to challenge a non-binding Department of
9
Interior opinion on the visibility impact of a project over
which the State of Montana had sole and final authority. Id. at
6–7. The state agency there retained “discretionary authority”
over whether the challenged project ultimately went forward,
id. at 6; the only legal effect of a federal finding on visibility
would have been to require the state agency to consider the
federal report, and, if it disagreed, to justify its decision in
writing, id. In fact, in an opinion we cited, the Montana
Supreme Court had reversed the state agency’s earlier
determination in part because it found that Montana law
compelled the state agency to make its decision independently
of Interior’s opinion. See Mont. Envtl. Info. Ctr. v. Mont.
Dep’t of Envtl. Quality, 112 P.3d 964, 972 (Mont. 2005).
Although we noted in National Parks that Interior’s opinion
had been “virtually dispositive” of the state’s earlier decision,
414 F.3d at 6, this fact was not necessary to our standing
determination as the intervening Montana Supreme Court
decision had relegated Interior’s opinion to an important, but
nevertheless advisory role. Yet we still found standing
because a changed ruling “doubtless would significantly
affect” the state decision. Id. at 7.
Indeed, courts have often found standing where there was
no binding legal mechanism by which the challenged action
might be redressed. See, e.g., Bennett v. Spear, 520 U.S. 154,
170 (1997) (finding standing despite noting that the ultimate
decision-maker was “technically free to disregard” the
challenged opinion). Given Interior’s incorporation in the
lease of all past and prospective mitigation measures proposed
by the FAA, its conditioning of initial construction on the
final FAA decision, and its persistent attention to the safety
mandate in its authorizing statute, we think it improbable that
Interior would then turn around and blithely disregard a
determination that the project posed a substantial danger to
aviation safety that defied cure through mitigation measures.
We find it “likely, as opposed to merely speculative,” that the
10
Interior Department would rethink the project if faced with an
FAA determination that the project posed an unmitigable
hazard. Lujan, 504 U.S. at 561.
* * *
Petitioners make two arguments on the merits. They
contend that the FAA’s No Hazard determinations are
arbitrary and capricious because they depart from the
agency’s own internal guidelines. They also argue that the
FAA failed to fulfill its obligations under 49 U.S.C.
§ 44718(b). We need reach only the first of these arguments
because we agree with petitioners that, in light of the FAA’s
improper application of its own handbook, the FAA did not
“adequately explain its result.” Public Citizen v. FAA, 988
F.2d 186, 197 (D.C. Cir. 1993).
According to the handbook, see Procedures for Handling
Airspace Matters, FAA Order 7400.2G (Apr. 10, 2008)
(hereafter “handbook”), the FAA can find a hazard if the
proposed structure would have a “substantial adverse effect.”
Id. § 7-1-3(e). A “substantial adverse effect” is defined to
include one that would have an “[a]dverse effect” on a
“significant volume of aeronautical operations.” Id. § 6-3-5
(defining “Substantial Adverse Effect”); see also id. § 6-3-4
(noting that the volume of flights is significant “if one or more
aeronautical operation per day would be affected”). We will
return shortly to the concept of “adverse effect.”
After discussing the adverse effects the turbines would
have on nearby radar facilities, the FAA’s Determination
addressed the impact on VFR operations, purporting to find
no adverse effect on such operations. In so doing, the FAA
relied solely on § 6-3-8(c)1 of the handbook, which says:
11
A structure would have an adverse [aeronautical] effect
upon VFR air navigation if its height is greater than 500
feet above the surface at its site, and within 2 statute
miles of any regularly used VFR route.
Handbook, § 6-3-8(c)1 (accurately paraphrased in
Determination at 7, J.A. 7). After acknowledging that a
regularly used VFR route would be affected, and correctly
reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the
turbines would not have an adverse effect because they would
not exceed the 500-foot threshold. Id. (“Therefore, . . . , the
wind turbines . . . do not meet the criteria to have an adverse
effect.”).
But under any reasonable reading of the handbook, § 6-3-
8(c)1 simply identifies one circumstance in which a structure
could have an adverse effect, potentially one among many. A
different part of the handbook, § 6-3-3 (including subsections
(a) through (f)), introduces the concept of “adverse effect”:
6-3-3. Determining adverse effect.
A structure is considered to have an adverse
aeronautical effect if it first exceeds the obstruction
standards of part 77, and/or is found to have physical
or electromagnetic radiation effect on the operation of
air navigation facilities. A proposed or existing
structure, if not amended, altered, or removed, has an
adverse effect if it would:
...
b. Require a VFR operation, to change its regular
flight course or altitude.
§ 6-3-3 (emphasis added). It is undisputed that the project
turbines would (i) have the threshold “physical or
12
electromagnetic radiation effect on the operation of air
navigation facilities” (per the first sentence), and would (ii)
“[r]equire a VFR operation, to change its regular flight course
or altitude” (per the second sentence, together with § 6-3-
3(b)).1 See Determination at 5, 7. The FAA’s complete
reliance on § 6-3-8(c)1 is therefore inconsistent not only with
the language of that provision (reading into it a non-existent
“only”), but with the organization of the handbook, which
anticipates that structures qualifying under either segment of
§ 6-3-3’s first sentence are to be assessed for the harms
identified in the second sentence’s subsections (a) through (f).
Improperly relying solely on § 6-3-8(c)1, the FAA failed
to supply any apparent analysis of the record evidence
concerning the wind farm’s potentially adverse effects on
VFR operations. A study by a consulting firm, MITRE,
commissioned by the FAA, charted how many flights flew
through a three-dimensional zone around the project, the
boundaries of which were 500 feet to the side and 1000 feet
above the turbines. The study found that over the course of a
90-day period 425 VFR flights flew through the immediate
vicinity of the project site and that 94.1% of these 425 were
flying at an altitude of 1000 feet or less. J.A. 381, 391–92.
The 425 flights would be, of course, more than four and a half
times the one flight per day that § 6-3-4 sets as the threshold
of significance.
Once the turbines are built, many of these flights may be
forced to be rerouted or to proceed in violation of the FAA’s
own regulation, 14 C.F.R. § 91.119, which requires a 500-foot
1
In assuming that elements (i) and (ii) are both necessary, we
give the benefit of the doubt to the FAA, reading the “first” of § 6-
3-3’s first sentence as implying that structures qualify as having
adverse effects only if they satisfy the criteria of both the first
sentence and the second (through one or more of its subsections).
13
distance between an aircraft and any structure. Further, the
FAA’s own weather compressibility study concluded that,
during instances of inclement weather, “VFR aircraft could
potentially be compressed to a lower altitude” to avoid cloud
cover, such that they also would come within 500 feet of the
turbines in violation of § 91.119. J.A. 469. Indeed, § 6-3-
8(b)2 of the handbook says that any structure “that would
interfere with a significant volume of low altitude flights by
actually excluding or restricting VFR operations in a specific
area would have a substantial adverse effect and may be
considered a hazard to air navigation.” The FAA may
ultimately find the risk of these dangers to be modest, but we
cannot meaningfully review any such prediction because the
FAA cut the process short in reliance on a misreading of its
handbook and thus, as far as we can tell, never calculated the
risks in the first place.
The FAA repeatedly notes in its brief that the handbook
“largely consists of criteria rather than rules to follow.”
Respondent’s Br. at 40. We agree. Any sensible reading of
the handbook, and of § 6-3-8(c)1 in particular, would indicate
there is more than one way in which the wind farm can pose a
hazard to VFR operations. Indeed, other sections of the
handbook, especially when read in light of some of the
evidence noted above, suggest that the project may very well
be such a hazard. Here, by abandoning its own established
procedure, see D&F Alfonso Realty Trust v. Garvey, 216 F.3d
1191, 1197 (D. C. Cir. 2000), the FAA catapulted over the
real issues and the analytical work required by its handbook.
Whether in fact an application of the handbook’s
guidelines to the studies discussed above will cause the FAA
to find the project a hazard, and if so, of what degree, we
obviously cannot tell at this stage. But it surely is enough to
trigger the standard requirement of reasoned decision-making,
i.e., to require the FAA to address the issues and explain its
14
conclusion. Public Citizen, 988 F.2d at 197. The FAA’s
misplaced reliance on § 6-3-8(c)1 is no substitute.
* * *
The petitions for review are accordingly granted, and the
FAA’s determinations are
Vacated and Remanded.