John S. Lowman, IV v. Federal Aviation Administration

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[PUBLISH]

In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 21-14476
____________________

JOHN S. LOWMAN, IV,
HOLLY LOWMAN,
RICK BRIAN STEVENS,
MARYANNE STEVENS,
JABIN BONNETT,
Petitioners,
versus
FEDERAL AVIATION ADMINISTRATION,
FEDERAL AVIATION ADMINISTRATOR,

Respondents,
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2 Opinion of the Court 21-14476

CITY OF LAKELAND, FLORIDA,

Intervenor-Respondent.
____________________

Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FAA: FONSI/ROD
____________________

Before ROSENBAUM, BRANCH, and BRASHER, Circuit Judges.
BRANCH, Circuit Judge:
The City of Lakeland, Florida, (“City”) owns and operates
the Lakeland Linder International Airport (“Airport”). To improve
the Airport’s ﬁnancial performance and boost economic
development, the City invested in projects—approved by the
Federal Aviation Administration (“FAA”)—to enhance the Airport.
The City’s plan worked; it landed a deal to lease the Airport’s
newly-constructed air cargo area to Amazon.com Services, Inc.
(“Amazon”).
Then, to further accommodate Amazon, the City sought
FAA approval of a second set of expansion projects (“Phase II”).
The FAA reviewed an Environmental Assessment and issued a
Finding of No Signiﬁcant Impact/Record of Decision, which
greenlighted Phase II.
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Petitioners, a group of ﬁve individuals, ﬁled this petition for
review, claiming that the FAA violated the National Environmental
Policy Act (“NEPA”) during its Phase II approval process.
Petitioners assert that the FAA violated NEPA by (1) segmenting its
review of a single Airport development project into multiple,
smaller projects to make the project’s environmental eﬀect appear
less signiﬁcant, (2) failing to consider the project’s cumulative
eﬀects, and (3) failing to analyze all air quality impacts. The FAA
responds that, as an initial matter, Petitioners cannot bring this
petition for review because they lack standing and did not exhaust
their administrative remedies. Alternatively, the FAA contends that
it did not violate NEPA, and the petition for review should be
denied.
After careful review, and with the beneﬁt of oral argument,
we conclude that Petitioners have standing and did not fail to
exhaust their administrative remedies. Thus, we must consider the
merits of their petition for review. Petitioners, however, fall short
on the merits because it is clear that the FAA satisﬁed NEPA’s
requirements. Accordingly, we deny the petition for review.
I. Background
A. NEPA Overview
We start with an overview of NEPA to provide context for
Petitioners’ arguments.
NEPA, one of the nation’s ﬁrst large-scale environmental
statutes, was passed in part to “declare a national policy which will
encourage productive and enjoyable harmony between man and
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4 Opinion of the Court 21-14476

his environment,” “prevent or eliminate damage to the
environment,” and “enrich the understanding of the ecological
systems and natural resources important to the Nation.” 42 U.S.C.
§ 4321 (quotation omitted). In broad strokes, NEPA requires
federal agencies to assess the environmental eﬀects of certain
proposed actions. Id. § 4332. And, to ensure that NEPA was
implemented properly, the statute created the Council on
Environmental Quality (“CEQ”). Id. § 4344.
NEPA is not results-oriented; rather, its procedural
mechanisms were designed such that agencies must “follow a
certain [decision-making] process” when evaluating proposed
actions. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1361 (11th Cir.
2008). CEQ’s regulations direct federal agencies to evaluate
diﬀerent proposed actions through diﬀerent processes. 1
First, for proposed actions “likely to have signiﬁcant eﬀects”
on the “quality of the human environment,” an agency must
prepare an Environmental Impact Statement (“EIS”). 42 U.S.C.
§ 4332(2)(C); 40 C.F.R. § 1501.3(a)(3). EISs “shall provide full and
fair discussion of signiﬁcant environmental impacts and shall

1
While the FAA was reviewing Phase II, CEQ amended its NEPA regulations.
See Update to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Acy, 85 Fed. Reg. 43304-01 (July 16, 2020).
Under 40 C.F.R. § 1506.13, the amended regulations apply to NEPA processes
initiated “after September 14, 2020.” For ongoing reviews, agencies have
discretion to apply the new regulations or those previously in effect. Here,
the FAA “decided to apply the regulations in effect” in February 2020 when it
initiated the NEPA process in this case.
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21-14476 Opinion of the Court 5

inform decision makers and the public of reasonable alternatives
that would avoid or minimize adverse impacts or enhance the
quality of the human environment.” 40 C.F.R. § 1502.1. EISs must
go through a public comment period. See, e.g., id. § 1506.11(d)
(“[A]gencies shall allow at least 45 days for comments on draft
[EISs].”).
Second, for proposed actions that are “not likely to have
signiﬁcant eﬀects or [for which] the signiﬁcance of the eﬀects is
unknown,” an Environmental Assessment (“EA”) should be
prepared rather than an EIS. Id. § 1501.5. EAs essentially serve an
intermediary function—requiring that the agency “[b]rieﬂy
provide suﬃcient evidence and analysis for determining whether
to prepare an [EIS] or a ﬁnding of no signiﬁcant impact
[(“FONSI”)] . . . .” Id. § 1501.5(c)(1). In other words, EAs inform
an agency as to whether a more in-depth analysis is needed because
the proposed action will have signiﬁcant eﬀects—leading to an
EIS—or whether no further study is needed because the proposed
action will not have signiﬁcant eﬀects—leading to a FONSI. 2 Id.;
see also id. § 1501.6(a)–(c) (“An agency shall prepare a [FONSI] if the
agency determines, based on the [EA], not to prepare an [EIS]
because the proposed action will not have signiﬁcant eﬀects.”).
Irrespective of its role in the NEPA decision tree, each EA must
“[b]rieﬂy discuss the purpose and need for the proposed action,

2
When an agency makes its decision, it is required to “prepare and timely
publish” a Record of Decision (“ROD”). 40 CFR § 1505.2(a). Here, the Phase
II FONSI and ROD were published together.
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6 Opinion of the Court 21-14476

alternatives [to the proposed action] . . . and the environmental
impacts of the proposed action and alternatives . . . .” Id.
§ 1501.5(c)(2). EAs are not strictly required to go through public
comment like EISs. Id. § 1501.5(e) (“Agencies shall involve the
public . . . to the extent practicable in preparing [EAs].”); see also
FAA Order 1050.1F § 6-2.2(g) (“Circulation of a draft EA for public
comment should be considered but is optional at the discretion of
the responsible FAA oﬃcial.”).
Third, and ﬁnally, a small subset of proposed actions that
“normally do not have a signiﬁcant eﬀect” are categorically
excluded from NEPA review. 40 C.F.R. §§ 1501.3(a)(1), 1501.4. In
simpler terms, federal agencies determine “categories of actions”
that normally do not have signiﬁcant environmental impacts, and
if a proposed action falls within such a category, then the action is
allowed to proceed without being analyzed through a more
onerous environmental review (such as an EIS or EA). Id.
§ 1501.4(a); see also FAA Order 1050.1F § 5-6 (listing actions that the
FAA has categorically excluded from fuller environmental review).
With this general NEPA review framework in mind, we turn
to the relevant procedural history in this case.
B. The FAA’s Review of Phase I
There is more groundwork to be laid. Petitioners challenge
the FAA’s Phase II FONSI/ROD, but the FAA’s previous
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consideration of other Airport enhancements (i.e., the “Phase I”
developments) is an important part of their larger argument. 3
In 2015, the City commissioned an Intermodal Feasibility
Study to assess development opportunities for the Airport. The
feasibility study indicated that the Airport was “ideally suited to
undertake air cargo activity” because of its location, runway
length, and logistics capabilities, among other advantages. The
study opined that the Airport “could become a secondary
international air cargo hub for one or more of the air cargo carriers
serving [Miami International Airport].” But, for the Airport to
attract this industry, the study indicated that it would have to
construct air cargo facilities and invest in other improvements.
Accordingly, the City proposed a new Airport Layout Plan
(“ALP”) to the FAA. 4 The Phase I EA described the project as

3
We note from the outset that the parties refer to the construction projects at
the Airport as Phase I and Phase II. These terms were not used when the FAA
was making its so-called Phase I determination. That is, when the FAA
analyzed the City’s initial 2016 proposal that we refer to as Phase I, the FAA
did not view that project as the first part of a larger build-out. Rather, it viewed
the proposal as a regular project in the normal course. The FAA was only
informed of the City’s “need for [Phase II] during construction of the initial
[Phase I] air cargo facility.” Nevertheless, for ease of reference, we also refer
to the projects as Phase I and Phase II.
4
ALPs are regulatory documents that reflect “the agreement between the FAA
and the [City] regarding the proposed allocation of airport areas to specific
operational and support functions.” Airport Compliance Manual, FAA Order
5190.6B, Change 2, § 7.18 (Dec. 9, 2022); see also 49 U.S.C. § 47107(a)(16). A
“sponsor,” in this case the City, that is seeking to develop or make changes to
an airport is required to complete an ALP that “depict[s] the airport’s
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“consist[ing] of constructing and operating up to three aircraft
maintenance, repair and overhaul [] facilities and one air cargo
facility[.]” The construction of these four buildings was projected
to “total approximately 223,000 square feet.” Other major project
elements included constructing “approximately 78,400 yards of
aircraft parking apron, apron taxilanes, and a connector taxiway”
as well as “[c]onstruction of on-airport roads.” 5 These

boundaries, including all facilities, and to identify plans for future
development on its ALP.” Id. As the FAA indicated in the Phase I EA, its
unconditional approval of an ALP is a “federal action” subject to NEPA
review: “The specific federal actions under consideration [in Phase I]
include . . . [u]nconditional approval of the portion of the [ALP] that depicts
the components of the Proposed Project and its connected actions pursuant to
49 U.S.C. Sections 40103(b), 44718, and 47107(a)(16), and Title 14 CFR Parts
77, 157, and 139.”
5
Additionally, the Phase I EA’s “Related Project Elements” section included:
• Site preparation, including demolition of existing
pavement, clearing and grubbing, excavation and
embankment, and grading.
• Install new taxiway edge lights and airfield directional
signs on the new connector taxiway.
• Construction [of] an aircraft staging apron and wash rack
(with oil/water separator).
• Install exterior pole-mounted and building-mounted
lighting for the new aircraft maintenance hangars, air
cargo building, access roads, vehicle parking lots, and
portions of aircraft parking aprons.
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developments were projected to result in 820 additional “air cargo
aircraft operations” per year by 2023.
After a draft EA for Phase I was made available for public
review and comment, the FAA created a ﬁnal EA and issued the
Phase I FONSI/ROD approving the proposed Airport
developments. The FONSI/ROD laid out the project’s component
parts, purpose, time frame, and potential alternatives to the
proposed development, including that the proposed projects would
not be developed at all (also known as the “No Action
Alternative.”). In pertinent part, the FONSI stated that “[n]o
signiﬁcant air quality, noise, or traﬃc impacts would occur” as a
result of the proposed action, that there were no substantial
cumulative eﬀects associated with the development, and that,
despite being available for public review and comment, “[n]o public
comments were received on the Draft EA.” In sum, the FAA
determined that “the proposed Federal action [was] consistent with
existing national environmental policies and objectives as set forth

• Extend utilities to the development sites, including
electric, natural gas, water, sanitary sewer, and
communications, and other related infrastructure.
• Construct stormwater management system
improvements (e.g., inlets, swales, pipes, berms) and
modify existing stormwater management system
conveyances.
• Install security fencing and controlled access vehicle gates
and pedestrian gates.
• Install landscaping[.]
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10 Opinion of the Court 21-14476

in section 101 of [NEPA] and other applicable environmental
requirements and [would] not signiﬁcantly aﬀect the quality of the
human environment or otherwise include any condition requiring
consultation pursuant to [NEPA].”
C. The FAA’s Revalidation of Phase I
During the pendency of the FAA’s NEPA review of Phase I,
the City was engaged in preliminary talks with Amazon about
bringing Amazon’s air cargo operations to the Airport. After Phase
I was approved but before construction commenced, however,
Amazon notiﬁed the City that it would require a diﬀerent
orientation of the air cargo facility and it anticipated a greater
number of incoming and outgoing ﬂights. The City notiﬁed the
FAA of these two changes via letter in 2018. As to the site’s
orientation, the City stated: “Discussions with possible tenants
ha[ve] determined that it would be more advantageous to their
operations to orient the cargo building the opposite direction on
the site.” 6 And it changed its projections for the number of ﬂights
that would be conducted by 2023—increasing total “air cargo
aircraft operations” from 820 for the year to 5,840 for the year. In
the end, the City submitted that even with the revised site
orientation and increased ﬂight estimate, the Phase I EA remained
accurate, and no formal reevaluation was necessary.

6
The City continued: “This revision to the site plan reduces the project
footprint slightly and also reduces the building size while allowing the site to
be used more efficiently by the proposed tenant operator(s).”
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The FAA agreed. In a letter to the City, the FAA stated:
The revised development plan would construct and
operate the same types of facilities within the same
study area evaluated in the [Phase I] EA and approved
in the [Phase I] FONSI/ROD. Other than an increase
in cargo aircraft operations, the revised development
plan did not identify any impacts that would be
materially diﬀerent than those identiﬁed and
disclosed in the [Phase I] EA. . . . [T]here appears to
be no changes to the action, or new circumstances or
information, which would trigger the need for a
Supplemental EA or an [EIS].

As such, the FAA approved the changes without going through a
formal reauthorization process.
After the FAA’s revalidation of Phase I, the City
Commission unanimously approved a “Ground Lease Agreement
with [Amazon]” for air cargo operations. Construction of the air
cargo facility was completed in July 2020 and Amazon commenced
its air cargo operations. In January 2020, before Phase I
construction was completed, Amazon exercised its option to
expand the air cargo facility, which required the City to seek FAA
approval for “the expansion of the air cargo facility and related
improvements” (i.e., “Phase II”). The so-called Phase II
developments included the expansion of the existing sort facility
and office building; construction of a paved truck court, paved
vehicle lot, concrete aircraft parking apron, pavement for aircraft
ground support equipment, and a new airport access road;
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extension of Taxiway A; installation of security fencing, gates,
security checkpoints, aboveground fuel storage tanks and a fuel
farm, and airfield lighting/signage; and modification of the
Airport’s stormwater management system. 7
D. The FAA’s Review of Phase II
The FAA issued a FONSI/ROD approving Phase II after
analyzing an EA for Phase II prepared by the Airport Sponsor,
considering public comments made to the draft EA for Phase II, 8
and determining that Phase II would not have signiﬁcant
environmental eﬀects. In relevant part, as to the environmental
eﬀect categories of air quality, noise, and cumulative impacts, 9 the

7
Not all of these projects required FAA approval, see, e.g., FAA
Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186, § 163
(codified at 49 U.S.C. § 47101) (limiting the types of airport projects that
require FAA approval), but even those projects “depend[ed] on the portions
of the project [that did] requir[e] FAA approval in order to be constructed or
operated as planned.”
8
Petitioners provided public comment to the draft EA. The Lowmans, for
example, requested in part that “the FAA [] do whatever possible to abate the
flight noise” from “Amazon flights.” Another set of Petitioners, the Stevenses,
noted a similar concern: “My appeal to each of you is be certain that this air
traffic growth is carefully measured and controlled before any further
expansion of jets flying in and out of [the Airport] is approved.” Finally,
Petitioner Bonnett expressed a concern that the increased flights and the lower
altitude at which they were required to fly would increase the risk of a
“collision between an airplane and a bird.”
9 “Cumulative impacts are those that result from the incremental impact of

the action when added to other past, present, and reasonably foreseeable
future actions, whether Federal or non-Federal. If the proposed action would
cause significant incremental additions to cumulative impacts, an EIS is
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ﬁnal Phase II EA and FONSI/ROD included the following
information and analysis.
To start, after laying out the alternatives to Phase II
(including the No-Action alternative), the FAA considered the
environmental eﬀects that Phase II would have across 15 diﬀerent
categories. 10 One section dealt with cumulative impacts for which
the FONSI noted that “[t]he impacts associated with [Phase II],
when considered in addition to other cumulative projects, are not
expected to exceed thresholds that would indicate a signiﬁcant
impact.” The associated cumulative eﬀects section of the EA was
more detailed, as depicted by its table that studied the impact risk
of 40 diﬀerent sub-projects in Phase II across 14 diﬀerent target
categories, including air quality, noise, and hazardous materials,
and its related “cumulative impacts summary” that oﬀered a deeper
dive on the aggregated eﬀect in each category.
As to noise, the FAA noted that the increased air traﬃc
would tangibly aﬀect the sound generated over nearby land parcels.

required.” Environmental Impacts: Policies & Procedures, FAA Order
1050.1F § 2-3.2(b)(1) (July 16, 2015).
10
Those categories included: Air Quality; Biological Resources; Climate;
Coastal Resources; DOT Act, Section 4(f) Resources; Farmlands; Hazardous
Materials, Solid Waste, and Pollution Prevention; Historical, Architectural,
Archeological, and Cultural Resources; Land Use; Natural Resources and
Energy Supply; Noise and Noise-Compatible Land Use; Socioeconomics,
Environmental Justice, and Children’s Environmental Health and Safety
Risks; Visual Effects Including Light Emissions; Water Resources (including
Wetlands, Floodplains, Surface Waters, Groundwater, and Wild and Scenic
Rivers); and Cumulative Impacts.
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But, the FAA noted that by 2027 there would only be three
additional residences within the designated noise sensitive area (the
FAA focuses its noise analysis on the “DNL 65 contour,” which
stands for a “Day-Night Average Sound Level” of 65 decibels, which
is the threshold for signiﬁcant noise). Those three residences
“would not experience an increase [in sound] of 1.5 dB or greater.”
In other words, while there would be noise-related eﬀects, those
eﬀects would not be signiﬁcant.
Finally, as to air quality, the FAA noted that “[t]he additional
aircraft operations and vehicle/truck trips associated with [Phase
II] would increase air emissions at [the Airport]; however, the
increase in emissions would not constitute a signiﬁcant impact.”
And, in more technical terms, the Airport was in an attainment
area for all National Ambient Air Quality Standards (“NAAQS”),
which meant that there was no State Implementation Plan
(required for non-attainment areas) that would have presented an
additional hurdle to navigate. Stated simply, the air quality in the
Airport’s county was good, and any air quality aﬀects from Phase
II would not be signiﬁcant enough to alter that status.
E. Additional Airport Projects
In addition to the Phase I and Phase II developments, the
FAA also approved at least two related Airport projects via
categorical exclusion. The ﬁrst project was to strengthen and
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rehabilitate certain runways in late 2016. The second was to
“upgrade [] the instrument landing system” in early 2021.
* * *
Petitioners brought this petition for review of the FAA’s
Phase II FONSI/ROD alleging that the FAA’s decision-making
process violated NEPA in various ways.
II. Standard of Review
“We review an agency’s ﬁnal decision to determine whether
it is arbitrary and capricious.” City of Oxford v. FAA, 428 F.3d 1346,
1351 (11th Cir. 2005) (citing 5 U.S.C. § 706). “In the NEPA context,
the reviewing court must ensure that the agency took a ‘hard look’
at the environmental consequences of the project.” Id. (citing
Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.
2002)). “The agency need not have reached the same conclusion
that the reviewing court would reach” because the agency’s
decision must only have a “rational basis.” Id.; see also Van Antwerp,
526 F.3d at 1360 (“[A]n agency’s NEPA decisions are only reviewed
under the [Administrative Procedure Act’s] highly deferential
standard.”). Accordingly, the reviewing court may only overturn
the agency’s decision if:
(1) the decision does not rely on factors that Congress
intended the agency to consider; (2) the agency failed
entirely to consider an important aspect of the
problem; (3) the agency oﬀers an explanation which
runs counter to the evidence; or (4) the decision is so
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16 Opinion of the Court 21-14476

implausible that it cannot be the result of diﬀering
viewpoints or the result of agency expertise.

U.S. Army Corps, 295 F.3d at 1216 (citing Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Finally, “we do not review an agency’s compliance with NEPA by
asking whether it made optimal choices; NEPA does not require
perfection.” Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669
F.3d 1203, 1215 (11th Cir. 2012) (holding that, because of this
deferential standard, “[a]ppellees’ compliance with NEPA may not
have been perfect, but it was suﬃcient”).
III. Discussion
In the petition for review, Petitioners argue that the FAA’s
Phase II review process was fatally ﬂawed. Speciﬁcally, Petitioners
argue that the FAA violated NEPA in three ways: (1) improperly
segmenting the larger Airport overhaul into multiple, smaller
projects so that the overall environmental eﬀect appeared lesser, (2)
failing to properly consider “cumulative impacts,” and (3) failing to
analyze all air quality eﬀects from the project. The FAA responds
that Petitioners’ challenge must be dismissed because they lack
standing or, alternatively, did not exhaust their administrative
remedies. As to the merits, the FAA argues that its processes were
more than adequate to satisfy NEPA’s requirements, and, therefore,
the petition for review must be denied. We address each argument
in turn, starting with the procedural arguments (standing and
administrative exhaustion) before turning to the merits of
Petitioners’ NEPA challenge.
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A. Procedural Arguments
i. Standing
The FAA argues that Petitioners do not have Article III
standing to bring this petition because they cannot show that (1)
they have suﬀered a concrete and actual or imminent injury, (2) the
complained-of injury was caused by the FAA’s approval of Phase II,
or (3) the complained-of injury would be redressed by a favorable
decision. Petitioners disagree in all respects.
“We review issues of standing de novo.” See Black Warrior
Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 833 F.3d 1274, 1279 (11th
Cir. 2016).
[T]o satisfy Article III’s standing requirements, a
plaintiﬀ must show (1) it has suﬀered an ‘injury in
fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed
by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992)). When, as here, an individual seeks to enforce a
procedural right, “such as the right to challenge agency action
unlawfully withheld,” the standing analysis is simpliﬁed, and the
individual does not have to meet “all the normal standards for
redressability and immediacy.” Cahaba Riverkeeper v. U.S. Env’t Prot.
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18 Opinion of the Court 21-14476

Agency, 938 F.3d 1157, 1162 (11th Cir. 2019) (quotations omitted);
see also Dep’t of Educ. v. Brown, 600 U.S. 551, __ (2023) (“We have
found . . . that when a statute aﬀords a litigant a procedural right to
protect his concrete interests, the litigant may establish Article III
jurisdiction without meeting the usual standards for redressability
and immediacy.” (quotations omitted)). Rather, in this situation,
the individual has standing “if there is some possibility that the
requested relief will prompt the injury-causing party to reconsider
the decision that allegedly harmed the litigant.” Cahaba Riverkeeper,
938 F.3d at 1162 (quotations omitted).
“To show a cognizable injury in fact in a procedural injury
case, a plaintiﬀ must allege that the agency violated certain
procedural rules, that these rules protect a plaintiﬀ’s concrete
interests and that it is reasonably probable that the challenged
action will threaten these concrete interests.” Ouachita Watch
League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006). For example,
we held that an allegation that the National Forest Service
“shirked” its duties under NEPA “easily” satisﬁed the injury
requirement because “[i]t is well settled that, in a NEPA suit, ‘a
cognizable procedural injury exists when a plaintiﬀ alleges that a
proper EIS has not been prepared . . . when the plaintiﬀ also alleges
a concrete interest—such as an aesthetic or recreational interest—
that is threatened by the proposed actions.’” Id. at 1169–71
(quoting Sierra Club v. Johnson, 436 F.3d 1269, 1278–79 (11th Cir.
2006)).
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“Once . . . a plaintiﬀ has established injury in fact under
NEPA, the causation and redressability requirements are generally
more relaxed.” Id. at 1172. Causation is simpliﬁed because
Petitioners “must demonstrate only that it is reasonably probable
that the challenged actions will threaten [their] concrete interests.”
Id. And redressability is simpliﬁed because this Court “has the
power to order the agency to comply” if we determine that the
FAA has failed to adhere to NEPA’s requirements. Id. at 1173.
As discussed previously, “NEPA establishes procedures that
a federal agency must follow before taking any action.” Van
Antwerp, 526 F.3d at 1360. Petitioners allege that the FAA failed to
adhere to NEPA in three distinct ways—i.e., they assert a
procedural injury. Petitioners also allege a concrete interest that is
threatened by the FAA’s action. Speciﬁcally, the Lowmans, for
example, individually declared that they reside and own property
near the Airport. They further declared that due to the
implementation of the Phase II project, the area has experienced,
and will continue to experience, increased air and truck traﬃc,
resulting in “increased noise impact and environmental harm” that
has “negatively impacted [their] qualify of life and health,” and
“damaged the value of [their] home and property.” Petitioner
Bonnett, who rents a residential home near the Airport, lodged
similar complaints but focused on increased truck and air traﬃc,
the noise related to that increased traﬃc, and the eﬀect on
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20 Opinion of the Court 21-14476

petitioner’s “quality of life and health.” 11 Thus, they have satisﬁed
the injury in fact requirement. See Ouachita Watch League, 463 F.3d
at 1170 (“To show a cognizable injury in fact in a procedural injury
case, a plaintiﬀ must allege that the agency violated certain
procedural rules, that these rules protect a plaintiﬀ’s concrete
interests and that it is reasonably probable that the challenged
action will threaten these concrete interests.”).
Because it is “reasonably probable” that Phase II will aﬀect
their “concrete interest” in the air quality, noise, and traﬃc in their
area and property values, Petitioners have satisﬁed the causation
and redressability requirements as well. Ouachita Watch, 463 F.3d
at 1172. And, because we can require the FAA to redo their NEPA
analysis if we determine that it is incomplete or otherwise
insuﬃcient, this harm is redressable. See 5 U.S.C. § 706 (providing,
in pertinent part, that reviewing courts shall “compel agency action
unlawfully withheld . . . .”).
In sum, Petitioners have satisﬁed the constitutional standing
requirements for procedural injuries. 12 See Cahaba Riverkeeper, 938

11 The Stevenses did not provide an individual declaration detailing their

injuries. Because the Lowmans and petitioner Bonnett have proven standing
through their declarations and comments, however, we proceed to analyze
the petition at issue. See generally Town of Chester v. Laroe Ests., Inc., 581 U.S.
433, 439 (2017) (“At least one plaintiff must have standing to seek each form
of relief requested in the complaint.”).
12 The FAA does not challenge whether Petitioners have a valid cause of action

to bring this petition for review. Accordingly, we simply note that (a) NEPA
challenges are brought under the Administrative Procedure Act (“APA”), (b)
the APA requires only a “final agency action” that adversely affects Petitioners
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21-14476 Opinion of the Court 21

F.3d at 1162 (“[W]hen a litigant is vested with a procedural right,
that litigant has standing if there is some possibility that the
requested relief will prompt the injury-causing party to reconsider
the decision that allegedly harmed the litigant.” (quotations
omitted)).
ii. Administrative Exhaustion
The FAA also argues that Petitioners’ challenge must be
dismissed because they “did not raise any of the issues presented in
[their] opening brief during the administrative process” (i.e., the
public comment period). Petitioners counter by pointing to two
exceptions to the general rule that Petitioners must exhaust their
administrative remedies by raising relevant objections during the
agency’s public comment period. According to petitioners, those
two exceptions are that “commenters need not point out an
environmental assessment’s ﬂaw if it is obvious” and “a
commenter does not waive an issue if it is otherwise brought to the
agency’s attention.”
As an initial matter, the FAA is correct that the general rule
is that NEPA petitioners must exhaust their administrative

to show standing, and (c) “[i]t is well settled that a final [environmental
analysis] or the record of decision issued thereon constitute[s] final agency
action.” Ouachita Watch, 463 F.3d at 1173 (quotations omitted); see also Newton
v. Duke Energy Florida, LLC, 895 F.3d 1270, 1274 n.6 (2018) (“Under [Lexmark
International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)], the
[standing] question is whether [Petitioners] have a valid cause of action . . . .”).
Petitioners easily satisfy these requirements.
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22 Opinion of the Court 21-14476

remedies before petitioning this Court. Under 49 U.S.C. § 46110(d),
we have jurisdiction to “consider an objection to an order of
the . . . Administrator of the [FAA] only if the objection was made
in the proceeding conducted by the . . . [FAA].” Further, “[u]nder
ordinary principles of administrative law, a reviewing court will not
consider arguments that a party failed to raise in timely fashion
before the administrative agency.” Vidiksis v. EPA, 612 F.3d 1150,
1158 (11th Cir. 2010); see also Zukas v. Hinson, 124 F.3d 1407, 1410
n.6 (11th Cir. 1997) (noting that “[b]ecause [petitioner] failed to
raise [two speciﬁc] objections before the [administrative law judge]
or [National Transportation Safety Board], we need not address
them”); Bradshaw v. Fed. Aviation Admin., 8 F.4th 1215, 1222 (11th
Cir. 2021) (“Because Bradshaw failed to raise [his argument that the
FAA followed improper procedures in terminating his designation]
before the FAA appeal panel, we cannot consider it.”). But there is
an exception if “there was a reasonable ground for not making the
objection in the proceeding.” 49 U.S.C. § 46110(d). “[T]he agency
bears the primary responsibility to ensure that it complies with
NEPA, and an EA’s or an EIS’[s] ﬂaws might be so obvious that
there is no need for a commentator to point them out speciﬁcally
in order to preserve its ability to challenge a proposed action.”
Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 765 (2004) (dicta)
(internal citation omitted).
During the public comment period for the Phase II draft EA,
Petitioners participated in the administrative process by providing
comments expressing general concern over the additional Airport
expansion. The Lowmans primarily expressed concern about the
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21-14476 Opinion of the Court 23

increase in ﬂight noise and Bonnett focused on the risk that the
increase in ﬂights posed to the bird population. These comments,
however, touched on generalized issues that are not the subject of
this petition. Thus, we must analyze the discrepancy between
Petitioners’ generalized comments during the public review period
and their more speciﬁc arguments as part of this petition to
determine whether there was a “reasonable ground” for Petitioners
not to raise the arguments they currently make because the FAA
committed an “obvious” mistake in its NEPA review. 49 U.S.C. §
46110(d); Public Citizen, 541 U.S. at 765.
Under NEPA, the FAA is required to conduct certain
reviews, 42 U.S.C. § 4332(2)(C), and it has regulations mandating
that it consider the issues that Petitioners raise in this petition.
Speciﬁcally, on segmentation, the FAA’s regulations provide that
“[a] proposed action cannot be segmented by breaking it down into
small component parts to attempt to reduce impacts.” FAA Order
1050.1F § 2-3.2(b)(1). Similar requirements exist for analyzing
cumulative impacts, id. § 2-3.2(b)(2) (providing that “[c]umulative
actions [that] when viewed with other proposed actions, have
cumulatively signiﬁcant impacts” “should be discussed in the same
EIS [as one another]”), and the eﬀect on air quality, id. § 4-3.3
(exhibit 4-1) (describing the signiﬁcant threshold for air quality as
when an “action would cause pollutant concentrations to exceed
one or more of the National Ambient Air Quality Standards”).
Thus, because the FAA—according to its own regulations—was
supposed to have analyzed Phase II’s cumulative impacts and eﬀect
on air quality as well as refrain from segmenting the Airport
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24 Opinion of the Court 21-14476

projects, the Petitioners were not obligated to point out obvious
ﬂaws in the FAA’s NEPA analysis on these issues. Accordingly, we
conclude that Petitioners had “reasonable grounds” for not raising
their instant arguments previously. 13 49 U.S.C. § 46110.
B. Merits Arguments
Having concluded that Petitioners have standing and having
addressed the exhaustion issue, we now consider Petitioners’ main
argument that the FAA failed to adhere to NEPA’s requirements in
issuing its FONSI/ROD which greenlighted Phase II. Petitioners
look back in time to argue that the FAA improperly segmented the
various Airport projects and conducted an inadequate cumulative
impacts analysis. They also argue that the FAA failed to properly
analyze Phase II’s potential eﬀect on air quality. We address each
argument in turn.
i. Segmentation
In simple terms, Petitioners argue that the Airport
renovations were improperly considered as separate projects rather

13
We note as well that this conclusion is consistent with the general purpose
of administrative exhaustion—notice. See, e.g., Chandler v. Crosby, 379 F.3d
1278, 1287 (11th Cir. 2004) (“[T]he purpose of administrative exhaustion, . . .
is ‘to put the [administrative authority] on notice of all issues in contention
and to allow the [authority] an opportunity to investigate those issues.’”
(alterations in original) (quoting Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir.
1985)). Here, the FAA was required to consider segmentation, cumulative
impacts, and air quality and, therefore, was on notice of those predominant
issues even if Petitioners never raised those arguments during the public
comment period.
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21-14476 Opinion of the Court 25

than one larger Airport build-out (i.e., Phase I, Phase II, and the
other projects in-between were really just subcomponents of one
larger Airport project that the FAA should have analyzed together
to determine the true environmental impact). But Petitioners’
argument lacks evidence and boils down to an untimely challenge
against the FAA’s previous decisions.
The FAA directs its oﬃcials to consider “connected actions
and other proposed actions or parts of proposed actions that are
related to each other closely enough to be, in eﬀect, a single course
of action” in “the same EA or EIS.” FAA Order 10501.F § 2-3.2(b)(1)
(citing 40 C.F.R. §§ 1502.4(a), 1508.25(a)(1)); see also Kleppe v. Sierra
Club, 427 U.S. 390, 410 (1976) (explaining that “[a] comprehensive
impact statement may be necessary” in some cases,
including “when several [proposed actions] that will have
cumulative or synergistic environmental impact upon a region are
pending concurrently before an agency”). Relatedly, “[a] proposed
action cannot be segmented by breaking it down into small
component parts to attempt to reduce [environmental] impacts.”
FAA Order 10501.F § 2-3.2(b)(1) (citing 40 C.F.R. § 1508.27(b)(7));
see also Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps
of Eng’rs., 87 F.3d 1242, 1247 (11th Cir. 1996) (noting that “the
[Army Corps of Engineers] cannot ‘evade [its] responsibilities’
under [NEPA] by ‘artiﬁcially dividing a major federal action into
smaller components, each without a “signiﬁcant” impact’” (citing
Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987)));
see also Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C.
Cir. 1987) (“The rule against segmentation was developed to
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26 Opinion of the Court 21-14476

[e]nsure that interrelated projects the overall eﬀect of which is
environmentally signiﬁcant, not be fractionalized into smaller, less
signiﬁcant actions.”).
We have also recognized, however, that “just because [a]
project at issue connects existing highways does not mean that it
must be considered as part of a larger highway project; all roads
must begin and end somewhere.” Pres. Endangered Areas of Cobb’s
History, Inc., 87 F.3d at 1247. In other words, the simple fact that
two projects are related does not mean that those projects must
necessarily be considered as part of one larger project. Similarly,
proving that a project was segmented requires more than merely
showing that a series of related projects were approved
sequentially—after all, EA’s and EIS’s are “forward-looking
instrument[s]” designed “to assist in evaluating proposals for major
federal action,” and we must remain mindful that we, of course,
are reviewing them with the added beneﬁt of hindsight. See Aertsen
v. Landrieu, 637 F.2d 12, 19 (1st Cir. 1980) (quotation omitted); see
generally Churchill Cnty. v. Norton, 276 F.3d 1060, 1082 (9th Cir. 2001)
(rejecting a segmentation claim because “[p]laintiﬀs [did] not show
that the [agency] acted arbitrarily or capriciously”). Indeed, for an
agency to segment a larger project into component parts, the
agency would necessarily have to know about the entire proposal
on the front end. See City of Oxford, 428 F.3d at 1356 (recognizing
this timing disparity in a similar context and determining that
because there was “no concrete plan to consider” and little
indication that the sponsor planned to construct a new building,
“investigators and researchers would be forced to analyze the
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21-14476 Opinion of the Court 27

environmental impact of a project, the parameters and speciﬁcs of
which would be a mere guess”).
To review, a simpliﬁed timeline of the project approvals at
issue in this case is as follows. Phase I was approved in 2016. After
two years of inaction, Phase I—including the changes to the
orientation of the air cargo facility and increase in ﬂight traﬃc—
was revalidated in 2018. The FAA also approved a runway
rehabilitation project via categorical exclusion in 2019. The
projects approved in Phase I, such as the air cargo facility, became
operational in 2020. The FAA approved another project—the
upgrade of the instrument landing system—via categorical
exclusion in early 2021. Finally, Phase II was approved in late
2021. 14
We note that Petitioners’ challenge, in many ways, boils
down to an untimely objection to the FAA’s approval of Phase I
(and/or the other Airport projects that were previously approved
via categorical exclusion). That is, Petitioners’ arguments are
focused on the past, not the actual processes of Phase II, which is
the only action we are empowered to review. See 49 U.S.C.
§ 46110(a) (limiting the time period for ﬁling a petition for review
of the FAA’s orders to “no[] later than 60 days after the order is
issued”). Thus, to the extent that Petitioners are actually
challenging Phase I or other previous approvals, such challenges
are untimely and inappropriate. See, e.g., Clayton Cnty. v. FAA, 887

14
Petitioners also reference the construction of a fuel farm. That project,
however, is already included as part of Phase II’s ALP and the EA.
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28 Opinion of the Court 21-14476

F.3d 1262, 1267 n.3 (2018) (“Petitioners do not challenge the FAA’s
[two-year old] policy clariﬁcation, likely because such a challenge
would be untimely.” (citing 49 U.S.C. § 46110(a)).
Turning to Phase II itself, the ultimate analysis of the
segmentation claim proves simple. Petitioners’ claim fails because
they oﬀer no evidence that the FAA broke Phase I, Phase II, and the
other Airport-related projects apart to avoid a more onerous
environmental review. To start, Petitioners’ argument that the
Airport projects are connected actions that lack independent utility
(and thus should have been considered together rather than as
separate projects) is entirely conclusory. While the projects were
proposed and approved sequentially, that fact alone is not enough
for us to conclude that the FAA improperly segmented these
projects. Rather, looking to the record, it is clear Phase II was not
pending before the FAA (or seriously contemplated) when it
approved Phase I. See Kleppe, 427 U.S. at 410 (focusing on the need
for a “comprehensive impact statement” when multiple related
actions are “pending concurrently before an agency”). Indeed, the
only reference to future Airport projects at the time was the
observation in the Phase I EA that future projects could be
undertaken “as demand dictate[d].” For obvious reasons, this one-
oﬀ observation about an entirely speculative, not-yet-proposed
future development is insuﬃcient to prove that the FAA arbitrarily
and capriciously violated NEPA’s mandate against segmentation.
See City of Oxford, 428 F.3d at 1356 (guarding against holdings that
would require “investigators and researchers” to “analyze the
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21-14476 Opinion of the Court 29

environmental impact of a project, the parameters and speciﬁcs of
which would be a mere guess” (emphasis added)).
The deﬁciencies of Petitioners’ challenge are even clearer
when compared to the facts of a case they cite repeatedly—
Delaware Riverkeeper Network v. Federal Energy Regulatory
Commission, 753 F.3d 1304 (D.C. Cir. 2014). In Delaware Riverkeeper,
Tennessee Gas Pipeline Company, L.L.C., submitted four separate
project proposals to the Federal Energy Regulatory Commission
(“FERC”) for upgrade work on one section of pipeline. Id. at 1308.
FERC’s approval of one project (the “third upgrade project,” to use
the D.C. Circuit’s terminology) was challenged on segmentation
grounds. Id. The D.C. Circuit held, in part, that FERC improperly
segmented the proposed actions in part because “the ﬁrst upgrade
project was under construction” and “the applications for the
second and fourth upgrade projects were pending before FERC”
when it approved the project at issue. Id. at 1308, 1318.
Whereas FERC considered the pipeline projects separately
despite the fact that they were pending at the same time, there is
no evidence in the instant case that the FAA manipulated its
processes in a similar way. Phase I was approved in 2016 and Phase
II was not even proposed until 2020 when the construction of
Phase I was well underway. 15 While Delaware Riverkeeper may be a

15
And while there were other projects that were approved via categorial
exclusion, the consideration of those projects did not temporally overlap with
the FAA’s consideration of Phase II (or were otherwise properly treated as
categorical exclusions) and did not need to be considered as part of Phase II.
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30 Opinion of the Court 21-14476

prime example of segmentation, it is clear that the FAA’s actions in
the instant case in no way resemble FERC’s violative processes in
that case.
Further, to the extent that Petitioners’ segmentation
arguments capitalize on hindsight (i.e., looking back at the Airport
developments since 2016 to make it appear like the FAA pushed the
Airport projects through in piecemeal fashion), we ﬁrst
reemphasize that NEPA’s environmental assessments are forward-
looking and created to provide agency actors with up-to-date
information to aid their decision-making. Landrieu, 637 F.2d at 19;
see also Nat’l Wildlife Fed. v. Appalachian Reg. Comm’n, 677 F.2d 883,
890 (D.C. Cir. 1981) (“Where, for instance, substantial construction
of a project has already been realized, the ‘forward-looking’
criterion suggest that where new construction is necessary to ﬁnish
oﬀ work already done, the new work does not trigger an obligatory
EIS evaluating program-wide eﬀects.”). And second, to reiterate,
the fact that a series of projects have been approved over a set
period of time is not enough—without other evidence—to prove
that an agency was improperly segmenting its review process in
contravention of NEPA. Here, Petitioners have presented no such
evidence.
Petitioners oﬀer two additional arguments on segmentation.
First, Petitioners rely on Western North Carolina Alliance v.
North Carolina Department of Transportation, 312 F. Supp. 2d 765
(E.D.N.C. 2003), to argue that the Phase I and Phase II projects
were impermissibly segmented because “[t]he lease agreement
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21-14476 Opinion of the Court 31

between Amazon and the City made the expansion of the facility
inevitable,” thereby eﬀectively eliminating all viable alternatives to
the project. Petitioners essentially argue that—if (a) the approval
of Action 1 would (b) also require Action 2 to be undertaken, then
(c) there is no true “alternative” to Action 2, so that (d) Action 1
and Action 2 should be considered together and not segmented
from one another. In other words, because the lease to the air
cargo facilities gave Amazon a right of expansion, and if Amazon
exercised that right, the City could not refuse the expansion, the
FAA was required to analyze Phase I and Phase II together.
Petitioners’ argument fails. The only legal support they cite
is an out-of-circuit, district court case that carries no precedential
value. See W. N.C. Alliance, 312 F. Supp. 2d 765. Regardless, that
case is distinguishable. In Western North Carolina Alliance, the North
Carolina Department of Transportation addressed interconnected
road projects such that “[i]f I-4400 [was] expanded to six lanes
[Action 1], then I-4700 . . . [would] have to be expanded as well
[Action 2].” Id. In other words, there was no real alternative to
Action 2 because the outcome was predetermined. In the instant
case, however, the City’s contract with Amazon in no way required
the FAA to approve Phase II. That is, while the City may have been
contractually obligated to go along with the expansion, the FAA
was free to fully consider each alternative and, ultimately, deny
Phase II if it determined that the project’s environmental eﬀects
were too signiﬁcant.
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32 Opinion of the Court 21-14476

Second, Petitioners argue that the FAA should have prepared
a “supplemental [EA for Phase I], not a separate [EA for Phase II].”
Supplemental environmental assessments for a project are required
if: “(1) there are substantial changes to the proposed action that are
relevant to environmental concerns, or (2) there are signiﬁcant new
circumstances or information relevant to environmental concerns
and bearing on the proposed action or its impacts.” See FAA Order
1050.1F, § 9-3; Van Antwerp, 526 F.3d at 1360 (“In some cases, after
an agency publishes a FONSI or an EIS, but before any action is
taken, the proposed action changes . . . [so] the agency must make
an additional NEPA determination” and may have to prepare a
supplemental environmental analysis). The instant case, however,
was never a candidate for a supplemental analysis because the
Phase II project was not an addition to a pending proposed action
but rather an all-new proposal—indeed the Phase I project had
already been implemented. Thus, a supplemental EA to Phase I
was not required. And, to the extent that Petitioners take issue
with Phase I, we have explained that such a challenge is untimely.
For all these reasons, Petitioners’ segmentation argument
fails.
ii. Cumulative Impacts
Next, Petitioners argue that the FAA failed to “take into
consideration the cumulative impact of its past actions.” They
argue that the FAA failed to follow NEPA because the FAA’s Phase
II analysis did not adequately account for the cumulative impacts
of (a) Phase I, (b) the other Airport development projects it
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21-14476 Opinion of the Court 33

approved via categorical exclusion, and (c) Phase II. Within their
larger cumulative impacts argument, Petitioners advance four sub-
arguments: (1) the FAA’s cumulative impact analysis is inadequate,
(2) the FAA did not consider the cumulative impact of its past
actions, (3) the FAA’s use of the DNL 65 dB corridor is unduly
restrictive, and (4) the FAA’s use of the “no action” alternative is the
wrong noise baseline. We address each argument in turn.
The FAA’s regulations provide: “Cumulative impacts are
those that result from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future
actions, whether Federal or non-Federal. If the proposed action
would cause signiﬁcant incremental additions to cumulative
impacts, an EIS is required.” FAA Order 1050.1F § 4-2(d)(3). 16
While the regulations clearly require a cumulative impacts analysis,
they do not detail the required form of such analysis. Id.
Nevertheless, we have identiﬁed certain considerations that “[a]
cumulative impact analysis must identify,” including:
(i) the area in which the eﬀects of the proposed
project will be felt, (ii) the impact expected in that
area, (iii) those other actions—past, present, and
proposed, and reasonably foreseeable that have had or

16
This definition of cumulative impacts is consistent with CEQ’s definition of
“cumulative impacts” that was in effect at the time of the FAA’s decision in
2020. See 40 C.F.R. § 1508.7 (2020). We note that, in 2022, CEQ’s regulations
were amended, and the term “cumulative impacts” was changed to
“cumulative effects,” and the definition (which remained the same except for
the change in terminology) was recodified in § 1508.1(g)(3) (2022).
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34 Opinion of the Court 21-14476

will have impact in the same area; (iv) the eﬀects of those
other impacts; and (v) the overall impact that can be
expected if the individual impacts are allowed to
accumulate.

City of N. Miami v. Fed. Aviation Admin., 47 F.4th 1257, 1270 (11th
Cir. 2022) (quoting Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir.
2016) (emphasis in original)). While the analysis must identify
certain considerations, the “determination of the extent and eﬀect
of [the cumulative impact] factors, . . . is a task assigned to the
special competency of the appropriate agencies.” Kleppe, 427 U.S.
at 414. Finally, the cumulative eﬀects must be directly correlated
with the project at issue—otherwise they are not properly
considered as part of that project’s environmental analysis. See
C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1575 (11th Cir. 1988)
(“[C]umulative impacts include only the indirect and direct eﬀects
caused by a project” and do not include “speculation” (emphasis
omitted)).
Petitioners’ ﬁrst two sub-arguments—that the FAA’s
cumulative impact analysis was inadequate and the FAA did not
consider the cumulative impact of its past actions—are so closely
related that they are properly considered together. Turning to the
cumulative impacts section of the Phase II EA, it is clear that the
FAA’s analysis was rigorous and detailed, and covered all of the
factors that we have identiﬁed as necessary to include. Speciﬁcally,
in its ﬁnal Phase II EA, the FAA assessed the cumulative impacts of
40 diﬀerent actions—past, present, and future—across 14 diﬀerent
ﬁelds (air quality; biological resources; climate; coastal resources;
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21-14476 Opinion of the Court 35

hazardous materials; cultural resources; land use; natural
resources/energy; noise; socio-economics/environmental justice;
light emissions/visual; wetlands; ﬂoodplains; and water resources)
and determined the extent of the environmental eﬀect on each of
these ﬁelds. Then, after conducting this analysis, the FAA
aggregated the eﬀects to complete the cumulative eﬀects analysis.
Accordingly, we conclude that Petitioners’ contentions that the
cumulative impacts analysis was inadequate is without merit.
Resisting this conclusion, Petitioners argue that the Phase II
EA was “unduly restrictive” because the FAA, in its analysis of noise
impacts, limited its study to the 65 DNL contour although it “knew
that the Phase II expansion would have impacts on noise levels far
beyond the boundaries of the 65 DNL contours.” Critically,
however, the FAA’s regulations provide that “[a]n airport environs
study area must be large enough to include the area within the
DNL 65 decibels (dB) contour, and may be larger.” FAA Order
1050.1F, App’x B., § B-1.3 (emphasis added). Thus, while
Petitioners may have hoped the study would span a larger area, the
FAA did exactly what it was required to do in its EA (study the area
within the DNL 65 contour).
Finally, Petitioners argue that “[the] FAA’s use of ‘no action’
conditions for its noise baseline fails to capture the impacts of noise
from [the] FAA’s actions prior to the project.” Essentially, their
argument is that the “no action” baseline (i.e., if Phase II were not
undertaken) is an insuﬃcient comparator because it does not take
into consideration the cumulative impacts that will result from the
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36 Opinion of the Court 21-14476

previous airport projects. But, as we recognized in City of North
Miami, the FAA’s Desk Reference on Cumulative Impact Analysis
provides that “[the] FAA has discretion to determine whether, and
to what extent, information about the speciﬁc nature, design, or
present impacts of a past action are useful for the analysis of the
impacts of the proposed action and alternative(s).” City of N.
Miami, 47 F.4th at 1271. 17 Here, as we have described, the FAA’s
cumulative eﬀects analysis was robust, and it clears this low bar. 18

17 Petitioners rely on Grand Canyon Trust v. Federal Aviation Administration, 290

F.3d 339 (D.C. Cir. 2002). In addition to being out-of-circuit precedent, it is
distinguishable from the instant case. In Grand Canyon Trust, the FAA
conducted an EA concerning how a proposal to move an airport would affect
noise levels at a nearby park. Id. at 340. The EA concluded that the
incremental difference in air traffic noise between the two locations was
insignificant. Id. The D.C. Circuit held that the EA was arbitrary and
capricious because the EA considered only the change in noise related to flight
traffic at the different locations, without considering how the increased air
traffic noise tied in with other existing noises at the park. Id. at 345–47. But
unlike the EA in Grand Canyon Trust, the EA here accurately considered the
existing soundscape and aggregated the total noise.
18
Petitioners also invoke NEPA’s purpose to argue that the FAA’s analysis did
not provide useful information to the public. For one, the public information
component is only part of NEPA’s purpose. See Black Warrior Riverkeeper, 833
F.3d at 1278–79 (“NEPA serves the dual purpose of informing agency
decisionmakers of the environmental effects of proposed federal actions and
ensuring that relevant information is made available to the public . . . .”). And,
for two, the tables as well as the FAA’s written descriptions of the cumulative
effects do, in fact, provide extensive information to the public.
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21-14476 Opinion of the Court 37

iii. Air Quality
Petitioners’ last argument is that the “FAA violated NEPA by
failing to analyze all air quality impacts,” meaning that the FAA
should have conducted additional air quality analyses. Once again,
Petitioners’ argument is multi-faceted. We address each part of
their argument in turn.
Starting with their broadest argument, Petitioners argue
that the FAA’s air quality analysis was too limited because it did not
extend to “all air quality impacts.” Petitioners, however, lose sight
of the role of the environmental analyses under NEPA.
Speciﬁcally, an EA is intended to gauge whether there are
“signiﬁcant” impacts so that (a) if there are “signiﬁcant” impacts an
EIS can be created, and (b) if there are not “signiﬁcant” impacts a
FONSI can be issued so that the project can proceed. See Sierra
Club, 295 F.3d at 1215 (“The EA should provide enough evidence
and analysis to guide the agency to one of two conclusions: (1) a
ﬁnding that the project will have a signiﬁcant eﬀect [which would
require the preparation of an EIS], or (2) a ﬁnding of signiﬁcant
impact (‘FONSI’).”).
To bring this broader point into focus, we look to the FAA’s
regulations. For air quality, the FAA describes the “signiﬁcance”
threshold in the following way: “The action would cause pollutant
concentrations to exceed one or more of the National Ambient Air
Quality Standards (NAAQS) . . . [or] increase the frequency or
severity of any such existing violations.” The FAA studied exactly
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38 Opinion of the Court 21-14476

this standard by focusing on the signiﬁcance threshold to
determine if it would be surpassed:
Air Quality – Polk County is located in an attainment
area for all National Ambient Air Quality Standards
(NAAQS) for criteria air pollutants and is not subject
to the requirements of a State Implementation Plan.
Construction activities would generate temporary air
emissions at [the Airport] from equipment and
vehicle exhaust, as well as, fugitive dust during
excavation and grading activities. The EA notes
typical measures that can be taken by contractors to
reduce air emissions during construction.
Operational emissions associated with the No-Action
Alternative and the Proposed Development Project
were computed for study years 2022 and 2027 using
FAA’s Aviation Environmental Design Tool (AEDT).
The emissions inventories in Section 5.2.1.2 of the EA
compares emissions from the No-Action Alternative
and Proposed Development Project. The additional
aircraft operations and vehicle/truck trips associated
with the Proposed Development Project would
increase area emissions at [the Airport]; however, the
increase in emissions would not constitute a
signiﬁcant impact.
The Proposed Development Project occurs in an area
classiﬁed as Attainment for all criteria air pollutants,
and there is no State Implementation Plan or numeric
signiﬁcance threshold applicable to the Proposed
Development Project. However, the EA
demonstrated that even if stringent de minimis
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21-14476 Opinion of the Court 39

thresholds were in place for Polk County, the
anticipated air emissions would not exceed thresholds
indicating a signiﬁcant impact.
The FAA, after studying the issue determined that a FONSI/ROD
was proper because Phase II would not have a signiﬁcant impact.
Thus, the FAA did what it was required to do under NEPA and its
regulations interpreting NEPA. Petitioners’ contention that the
FAA should have done more is merely the expression of a policy
preference.
Petitioners do not stop there. They also cite to a passage in
FAA Order 1050.1F that provides that additional air quality analyses
are required in “extraordinary circumstances.” FAA Order 1050.1F
§ 5-2(b)(8). 19 The problem for Petitioners is that this excerpt comes
from Chapter 5, which is about Categorial Exclusions—and the
Phase II project was not a categorical exclusion. Indeed, even if this
section applied, if there was an “extraordinary circumstance,” the
proper response would be for the FAA to conduct “further analysis
in an EA or an EIS.” Thus, even if Petitioners were correct, they
would not gain anything as the FAA already prepared an EA that
did not reveal any signiﬁcant air quality impacts.

19 This section of FAA Order 1050.1F provides that “[e]xtraordinary
circumstances are factors or circumstances in which a normally categorially
excluded action may have a significant environmental impact that then
requires further analysis in an EA or an EIS.” FAA Order 1050.1F § 5-2(a). It
continues to list circumstances that qualify as “extraordinary,” including: “[a]n
impact on air quality or violation of Federal, state, tribal, or local air quality
standards under the Clean Air Act . . . .” Id. § 5-2(b)(8).
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40 Opinion of the Court 21-14476

Finally, Petitioners also argue that the FAA acted arbitrarily
or capriciously in failing to discuss hazardous air pollutants
(“HAPs”) in the Phase II EA, when there were several potential
sources for HAPs in the Phase II project. Simply put, such an
analysis is outside of the FAA’s air quality requirements and was
not required for this project. 20
Accordingly, Petitioners’ arguments fail because the FAA
properly analyzed air quality according to its regulations
interpreting NEPA. 21
IV. Conclusion
Petitioners are unhappy that the FAA greenlighted Phase II
(as well as the Airport developments preceding Phase II). But we
do not vacate agency decisions over mere policy disagreements.
Upon close inspection, we deny Petitioners’ petition for review
because the record is clear that the FAA followed its regulations

20
Petitioners point us to a 2009 guidance document (Guidance for Quantifying
Speciated Organic Emissions from Airport Sources) that is not in the record.
FAA, Office of Env’t & Energy, Guidance for Quantifying Speciated Organic
Gas Emissions from Airport Sources (Sept. 2009), at 14–15. Even if we were
to consider the guidance document, we would conclude that the FAA was not
required to conduct a HAPs analysis for Phase II. The guidance provides types
of “major” projects (requiring a HAPs analysis) that are dissimilar to Phase II.
Additionally, Phase II is not located in the type of area where the guidance
document indicates that such analyses would be required (e.g., nonattainment
areas).
21
Because we agree with the FAA that Petitioners’ arguments lack merit, we
do not reach the FAA’s final argument that we “should deny [Petitioners’]
requested relief because [they] have not established that vacatur is warranted.”
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21-14476 Opinion of the Court 41

interpreting NEPA and did not improperly segment the Airport
development projects, fail to consider cumulative impacts
adequately, or neglect its air quality analysis. In other words, the
FAA did what it was supposed to do, and its review processes were
not arbitrary and capricious.
Petition DENIED.

John S. Lowman, IV v. Federal Aviation Administration

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