Trenton Threatened Skies Inc v. FAA

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______________________

No. 22-1965
_______________________

TRENTON THREATENED SKIES, INC; BOROUGH OF
YARDLEY, Pennsylvania; TOWNSHIP OF LOWER
MAKEFIELD, Pennsylvania; BRANDON FARMS
PROPERTY OWNERS ASSOCIATION INC; JULIE
SILL YOGA; DEBRA BASEMAN; CRAIG
DEARDORFF; ELEANOR DEARDORFF; LISA
FISCHETTI; TANICE FITZPATRICK; PAMELA
JENSEN; JOYCE JOHNSON; LAURA LANNING;
ROBERT LANNING; DEBRA JEAN MERCER; TAHER
MOHAMAD-ALI; VRUNDA PATEL; ELIZABETH
PECK; ELWOOD PHARES; HADLEY PHARES;
JACQUELINE PHARES; MELISSA PHARES,
ALEXANDRA POWERS; RICHARD PRESTON;
KATHRYN HUGHES REDMOND; JUMANA SOUDAH;
DEREK STRAUT; GRANT WARD; LESLIE WARD;
RICHARD WAYNE; CYNTHIA WEINSTEIN;
RICHARD WESTHOUSE,
Petitioners

v.
 FEDERAL AVIATION ADMINISTRATION; BILLY
NOLEN, in his official capacity as Acting Administrator,
Federal Aviation Administration; UNITED STATES
DEPARTMENT OF TRANSPORTATION; PETE
BUTTIGIEG, in his official capacity as Secretary
_______________________

On Petition for Review of a
Decision of the Federal Aviation Administration
__________________________

Argued November 8, 2023

Before: RESTREPO, SCIRICA, and SMITH, Circuit Judges

(Filed: January 4, 2024)

Steven M. Taber [ARGUED]
Leech Tishman Fuscaldo & Lampl
200 S Robles Avenue
Suite 300
Pasadena, CA 91101
Counsel for Petitioners

Justin Heminger
United States Department of Justice
Environment & Natural Resources Division
950 Pennsylvania Avenue NW
Washington, DC 20530

2
Rebecca Jaffe [ARGUED]
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 7611
Ben Franklin Station
Washington, DC 20044
Counsel for Respondents

Peter J. Kirsch
W. Eric Pilsk [ARGUED]
Kaplan Kirsch & Rockwell
1634 I Street, NW
Suite 300
Washington, DC 20006
Counsel for Intervenor Respondent

__________________________

OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
I. INTRODUCTION
Municipal, individual, and organizational
Petitioners filed a petition to review the Federal Aviation
Administration’s (“FAA’s”) March 21, 2022 “Finding of
No Significant Impact and Record of Decision – Trenton-

3
Mercer Airport Terminal Area Improvements”
(“FONSI”), to determine whether it violated the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq. Petitioners assert that: (1) the FAA’s decision was
arbitrary and capricious; (2) the FAA failed to consider the
cumulative impact of its past actions; (3) the agency
unlawfully segmented its review of interconnected and
interdependent projects in expanding the Airport; (4) it
conducted an unreasonable environmental justice
analysis; and (5) the FAA failed to meet the Act’s
requirement of completing a health risk assessment.
Because each of these assertions lacks merit, we will deny
the Petition.
II. FACTUAL BACKGROUND
Mercer County owns and operates the two-runway
Trenton-Mercer Airport (the “Airport”), located in Ewing
Township, New Jersey, four miles northwest of the state
capital. Frontier Airlines, a low fare air carrier that offers
frequent flights, has provided commercial service at the
Airport continuously since 2013. After it was constructed
in 1975, the Airport had fewer than 55,000 passengers
yearly. It now has over 350,000 annual passengers.
The Airport’s aging terminal building no longer
complies with ADA standards or TSA requirements,
having been built before the implementation of such
requirements. Many of the Airport’s inadequacies stem
from spatial limitations. The terminal has about half the

4
space recommended for security screening lanes. At
24,780 square feet, the terminal1 is 92,000 square feet
smaller than recommended by federal guidelines.2 And it
fails to meet fire egress requirements, in addition to having
heating, ventilation, air conditioning, plumbing, roofing,
and windows “in various stages of aging and disrepair.”
AR60.
Based on ACRP criteria, the Airport has ‘earned’ an
F grade for its Level of Service (“LOS”), which relates to
passenger congestion and the length of queues that
passengers encounter within an airport terminal.3 That is

1
With passenger parking, the terminal size is 29,000
square feet.
2
These include TSA’s Checkpoint Design Guide, the FAA
Advisory Curricular 150/5360-13 (AC) Planning and
Design Guidelines for Airport Terminal Facilities, the
FAA Advisory Curricular (AC) 150/5360-13 Planning
and Design of Airport Terminal Facilities at Non-Hub
Locations, and the Airport Cooperative Research Program
(“ACRP”) Report Passenger Level of Service and Spatial
Planning for Airport Terminals.
3
The FONSI explains that the LOS “often relates to the
degree of congestion or crowding experienced by travelers
at the processing points within a building that include the
ticketing counter/area, the security checkpoint, the
5
the lowest possible grade and “an unacceptable LOS that
consists of cross flows, system breakdown, unacceptable
delays, and unacceptable level of comfort.” AR5-6. An
airport’s LOS grade “is based upon quantitative and
qualitative analysis of the functions and operations within
the building, comparisons with other airport terminals, and
standards/recommendations for terminal programming
and space planning.” Id.
Not surprisingly, conditions at the Airport present
various challenges for passengers. The terminal does not
have enclosed jet bridges for boarding and disembarking
from aircraft. Passengers must traverse an unprotected
apron, prompting concerns about passenger safety during
adverse weather conditions. Additionally, to meet terminal
functional area requirements, the terminal needs about
2,345 square feet of restroom space, 3,570 square feet of
family waiting area space, and 3,390 square feet of
passenger security screening space. Because of the
terminal’s limited available space, the Airport leases
approximately 5,000 square feet of off-site space for both

holdroom/gate, and baggage claim within the terminal
building.” AR5-6. Further, “[i]t may also be a measure of
the amount of waiting or processing time, or the length of
the queues or lines encountered by travelers at these
locations within a terminal.” AR6.
6
administrative offices and law enforcement—functions
normally located inside airport terminals.
Mercer County completed an Airport Master Plan
Update (“AMPU”) in 2018, recommending a new terminal
for the Airport. The AMPU proposed building a 125,000
square foot replacement structure (the “Project”). This
came to be known as Terminal Building Replacement
Alternative 4C (“Alternative 4C”). The County designed
the new terminal using sizing and planning guides,4 basing
the design on factors including maximum waiting time,
seating, occupancy, social distancing, security, and carry-
on bag space. The new terminal design includes ten ticket
counters, three TSA screening lanes, expanded baggage
claim facilities, larger passenger waiting areas, enhanced
concessions, reconfigured parking areas, and a parking
garage. With these proposed upgrades, Alternative 4C
would operate at a minimum C grade under the ACRP
criteria. By relocating its Aircraft Rescue and Firefighting
Facility, vehicle impound lot, and canine kennels, the

4
These include the FAA Advisory Curricular (AC)
150/5360-13, Planning and Design Guidelines for Airport
Terminal Facilities; the FAA AC 150/5360-9, Planning
and Design of Airport Terminal Facilities at Non-Hub
Locations; TSA’s Checkpoint Design Guide (CDG);
ACRP Report 25, Airport Passenger Terminal Planning
and Design; and ACRP Report 55, Passenger Level of
Service and Spatial Planning for Airport Terminals.
7
County would create more space for construction. It would
demolish the existing terminal after completion of the new
one.
The FAA prepared an environmental assessment
(“EA”), to which it attached technical reports as
appendices. The reports included an analysis of the
Project’s potential effects on noise using an FAA-
approved noise model, the Aviation Environmental
Design Tool, and a Traffic Engineering Report. The EA
set out four alternatives: (1) a no action alternative; (2)
building a new terminal in different potential locations on
the Airport property; (3) reconstructing and retrofitting the
existing terminal; and (4) building a replacement terminal.
It determined that building a new terminal, specifically
Alternative 4C (the alternative the FAA eventually
approved), would offer an energy-efficient building at a
lower cost than other designs considered.
The FAA determined, using the ACRP Airport
Construction Emissions Inventory Tool, that construction
emissions would be below the EPA’s General Conformity
de minimis thresholds for air pollutants. That tool
estimates emissions for construction activities by
considering project dimensions, equipment use, labor
hours, engine horsepower, and vehicle trips. To follow
best practices to reduce construction-related health and
environmental impacts, Mercer County made various
commitments, including suspending or adjusting
construction activities during sustained high winds,
8
decreasing speed limits to reduce dust, and limiting engine
idling.
The FAA also used a modeling tool to determine
that the Project would not cause significant noise impacts,
and it ensured that construction activities would comply
with the Noise Control Ordinance for the Township of
Ewing, the municipal subdivision in which the Airport is
located. The Final EA stated: “The analysis found no
change in noise levels outside of the airport property as a
result of the proposed project.”5
Mercer County offered several opportunities for
public comment and participation prior to finalizing the

5
The Airport employs noise abatement procedures “based
on the weight and size of the aircraft,” and “when a noise
complaint is submitted by either the online portal,
telephone, or mail it is entered into the database in the
Noise Reporting Portal for [the Airport].” AR270-71.
After receiving a noise complaint, the “Airport staff calls
the individual owner, operator, or pilot with the phone
number they provide to inform them of the complaint or
voluntary curfew violation.” AR271. The Airport’s
Voluntary Nighttime Flight Curfew extends from 12AM
to 6AM, and if a registered aircraft owner violates this
curfew, the owner “receive[s] a Notice of Violation as well
as information on all noise abatement procedures at [the
Airport],” “regardless of whether or not a noise complaint
was filed.” Id.
9
EA. It first held public meetings in October 2018 and
January 2019. Before and after a formal presentation, the
public could inspect display materials from the consultant
team preparing the EA. “Both meetings included public
question and answer sessions with the consultant team
preparing the EA.” AR26. The County published several
newspaper notices, in English and Spanish, explaining that
public comment regarding the draft EA could be submitted
during a 45-day window (from May 3 to June 16, 2021).
And in June 2021, it held another public hearing to receive
comments, at which Spanish translation services were
offered. That hearing was conducted virtually due to the
COVID-19 pandemic.
Mercer County received over 400 written
comments. It also sought input from Tribal, state, local,
and federal agencies (other than the FAA). Appendix I of
the Final EA addressed the comments that were received.
Ultimately, the FAA issued a FONSI as required by
NEPA. The FAA approved the Project in March 2022,
authorizing the County to build the new Alternative 4C
terminal.
III. PROCEDURAL BACKGROUND
In May 2022, Petitioners sought review of the FAA’s
FONSI decision, which approved the County’s plan to
build a new terminal. Mercer County, as the Airport’s
owner and operator, intervened in support of Respondents
to defend the FAA’s decision.
10
 IV. JURISDICTION
The Court has jurisdiction under 49 U.S.C. §
46110(a), which provides the federal courts of appeals
with exclusive jurisdiction to review FAA orders.
Additionally, the Court has subject-matter jurisdiction
because the Municipal, Individual, and Organizational
Petitioners all have standing.
While Respondent FAA “notes that the municipal
petitioners ‘cannot establish standing . . . premised on the
alleged harm to their residents,’” Resp. Br. at 3 n.2, it cites
only City of N. Miami v. FAA, 47 F.4th 1257, 1277 (11th
Cir. 2022). There, a panel of the Eleventh Circuit
recognized that “[t]he problem for the municipalities is
that ‘[a] State does not have standing as parens patriae to
bring an action against the Federal Government.’” Id.
(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex
rel., Barez, 458 U.S. 592, 610 n.16 (1982)). The court
went on to explain that because “municipalities derive
their existence from the state and function as political
subdivisions of the state, presumably they too cannot sue
the federal government under the doctrine of parens
patriae.” Id. (quoting City of Olmsted Falls v. FAA, 292
F.3d 261, 268 (D.C. Cir. 2002)). But here the Municipal
Petitioners, the Borough of Yardley and Lower Makefield
Township, have alleged an injury that affects each
municipality, not only its residents.

11
 The Municipal Petitioners’ alleged injury, discussed
in greater detail below, is set forth in declarations outside
the administrative record. In a case since reversed on other
grounds, our Court explained: “It is well established that
petitioners challenging agency action may supplement the
administrative record for the purpose of establishing
Article III standing, even though judicial review of agency
action is usually limited to the administrative record.”
Prometheus Radio Project v. FCC, 939 F.3d 567, 578 (3d
Cir. 2019), rev’d on other grounds, 592 U.S. 414 (2021);
see also US Magnesium, LLC v. EPA, 690 F.3d 1157, 1164
(10th Cir. 2012); Texas Indep. Producers and Royalty
Owners Ass’n v. EPA, 410 F.3d 964, 971 (7th Cir. 2005);
Nw. Env’t. Def. Ctr. v. Bonneville Power Admin., 117 F.3d
1520, 1528 (9th Cir. 1997). Thus, we can consider
Petitioners’ declarations, though outside the
administrative record, for purposes of deciding if they
have standing.
Here the Municipal Petitioners have standing based
on an alleged loss of property value. The Supreme Court
held that a municipality experienced injury-in-fact via
realtors’ racial discrimination that produced a “significant
reduction in property values [that] directly injures a
municipality by diminishing its tax base, thus threatening
its ability to bear the costs of local government and to
provide services.” Bank of Am. Corp. v. City of Miami, 581
U.S. 189, 200 (2017) (quoting Gladstone Realtors v. Vill.
of Bellwood, 441 U.S. 91, 110-11 (1979)). In their

12
supplemental record, Petitioners include a Declaration of
the Borough of Yardley Council President, which states:
“The increased flight traffic at the Airport and the
expansion of flight traffic that will result from the Project
has harmed Yardley’s real property interest in the
properties and facilities that Yardley itself owns or has a
real property interest in.” Appx. 396. The Declaration also
states that increased flight traffic at the Airport has and
will continue “adverse[ly] impact[ing] Yardley’s
proprietary interest in protecting the health, safety, and
welfare of its citizens from aircraft noise and air
pollution,” “will significantly reduce the values of
properties within Yardley,” and will “impact Yardley’s
budget goal, its economic interest and proprietary
interests.” Id. The Chair of the Board of Supervisors for
Lower Makefield Township, the other Municipal
Petitioner, asserted the same for Lower Makefield. Appx.
398.
V. STANDARD OF REVIEW
The Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701-06, grants us jurisdiction to review final decisions
of the FAA. Under the APA, a court may “set aside agency
action, findings, and conclusions” that it determines to be
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Id. § 706(2)(A). Thus, an
agency action must “be reasonable and reasonably
explained.” Prometheus Radio Project, 592 U.S. at 423.
We must “ensure[] that the agency has acted within a zone
13
of reasonableness and, in particular, has reasonably
considered the relevant issues and reasonably explained
the decision.” Id. That requires us to review an
administrative record6 “to ascertain that the agency has
made a reasoned decision based on reasonable
extrapolations from some reliable evidence, to ensure that
the agency has examined the relevant data and articulated
a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.”
Sw. Pa. Growth All. v. Browner, 121 F.3d 106, 117 (3d
Cir. 1997) (quoting Am. Mining Cong. v. EPA, 907 F.2d
1179, 1187 (D.C. Cir. 1990)).
Reviewing courts must show deference to an
agency’s judgment when considering whether it has
violated NEPA. The Supreme Court has explained that
“[n]either the statute nor its legislative history
contemplates that a court should substitute its judgment

6
Under the APA, judicial review must be based on “the
whole record or those parts of it cited by a party.” 5 U.S.C.
§ 706(2); see Florida Power & Light Co. v. Lorion, 470
U.S. 729, 743 (1985). Thus, “the administrative record
cannot normally be supplemented.” NVE, Inc. v. Dep’t of
Health & Hum. Servs., 436 F.3d 182, 189 (3d Cir. 2006)
(citing Camp v. Pitts, 411 U.S. 138, 142 (1973) (per
curiam)). This Court accordingly denied Petitioners’
Motion to Supplement the Administrative Record, or in
the Alternative, Request for Judicial Notice.
14
for that of the agency as to the environmental
consequences of its actions.” Kleppe v. Sierra Club, 427
U.S. 390, 410 n.21 (1976) (internal citation omitted). A
court’s role is limited to ensuring that “the agency has
taken a ‘hard look’ at the environmental consequences; it
cannot ‘interject itself within the area of discretion of the
executive as to the choice of the action to be taken.” Id.
(quoting Nat. Res. Def. Council v. Morton, 458 F.3d 827,
838 (1972)); see also Twp. of Bordentown v. FERC, 903
F.3d 234, 248 (3d Cir. 2018). Neither NEPA nor its
implementing regulations specify procedures for how a
“hard look” should be conducted. Del. Dep’t of Nat. Res.
& Env’t Control v. U.S. Army Corps of Eng’rs, 685 F.3d
259, 270 (3d Cir. 2012).
Moreover, the FAA is entitled to a presumption of
regularity, which “ensures that [courts] give proper
deference and respect to the official actions of an agency.”
Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592,
604 (3d Cir. 2016). Courts may “presume that what
appears regular is regular, [with] the burden shifting to the
attacker to show the contrary.’” Id. (first quoting Butler v.
Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); and then
citing Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir.
2005)).
VI. ANALYSIS
a. NEPA BACKGROUND

15
 Petitioners challenge the FAA’s order pursuant to
NEPA. “NEPA is primarily a procedural statute, designed
to ensure that environmental concerns are integrated into
the very process of agency decisionmaking.” Morris Cnty.
Tr. for Historic Pres. v. Pierce, 714 F.2d 271, 274 (3d Cir.
1983); see also Twp. of Bordentown, 903 F.3d at 248.
NEPA also aims “to inform the public that an agency has
considered environmental concerns in its decision-making
process.” Morris Cnty. Tr. for Historic Pres., 903 F.3d at
274 (citing Weinberger v. Catholic Action of
Hawaii/Peace Education Project, 454 U.S. 139, 142-43
(1981)); Sierra Club v. FERC, 867 F.3d 1357, 1370 (D.C.
Cir. 2017).
Under NEPA:
The Congress authorizes and directs that, to
the fullest extent possible . . .
(2) all agencies of the Federal Government
shall—
(C) include in every recommendation
or report on proposals for legislation
and other major Federal actions
significantly affecting the quality of
the human environment, a detailed
statement by the responsible official
on—

16
 (i) the environmental impact of
the proposed action,
(ii) any adverse environmental
effects which cannot be avoided
should the proposal be
implemented,
(iii) alternatives to the proposed
action,
(iv) the relationship between
local short-term uses of man’s
environment and the
maintenance and enhancement
of long-term productivity, and
(v) any irreversible and
irretrievable commitments of
resources which would be
involved in the proposed action
should it be implemented.
42 U.S.C. § 4332(2)(C).
The Council on Environmental Quality (“CEQ”)
has promulgated regulations implementing NEPA. See 40
C.F.R. § 1500.1 et seq. These regulations require an
agency to prepare an EA to determine whether to draft
either an Environmental Impact Statement (“EIS”) or a
FONSI. 40 C.F.R. §§ 1501.4, 1508.9, 1508.13. An agency
develops a FONSI if it has determined that an action will
17
“not have a significant effect on the human environment,”
which obviates the need for an agency to write an EIS. 40
C.F.R. § 1508.13; see also Morongo Band of Mission
Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998).
Environmental reviews conducted pursuant to NEPA
do not “necessarily dictate any substantive outcome.”
Morris Cnty. Tr. for Historic Pres., 714 F.2d at 274-75
(citing Twp. of Lower Alloways Creek v. Public Service
Electric, 687 F.2d 732, 739 n.13 (3d Cir. 1982)). Indeed,
we have interpreted NEPA as “merely intended to make
decision makers aware of the potential environmental
ramifications of their actions.” Id. at 275 (citing same).
b. THE FAA DID NOT VIOLATE NEPA BY RELYING
ON FALSE PREMISES OR INACCURATE OR FALSE
INFORMATION
Petitioners contend that the FAA’s FONSI violated
NEPA by relying on false premises or inaccurate or false
information.7 Specifically, they submit that the FAA

7
In making this argument, Petitioners asserted that the
FAA “conspired” to make false claims, Reply Br. at 9,
“l[ied] about expanding the Airport,” id., “repeatedly
mischaracterized the scope, and thus the impact, of the
Project,” id. at 13, and “rel[ied] on false premises” Pet’r’s
Br. at 25. They also claimed that the Final EA “[l]acks
[p]rofessional and [s]cientific [i]ntegrity” id. at 28,
because it used “obsolete” scientific methods, Reply Br. at
18
erroneously determined that the Project does not expand
the terminal and that it will not induce air traffic growth.
However, the record indicates that (1) the FAA reasonably
concluded that the new terminal would not induce growth
because the forecasts of future air traffic predict a
substantial increase regardless of whether a new terminal
is built, and (2) the new terminal will have the same
number of gates and aircraft parking spaces as the existing
terminal.
First, the FAA reasonably determined that air traffic
would likely grow at the Airport regardless of whether
Mercer County builds a new terminal. The air traffic
forecasts that the FAA approved “considered multiple
growth considerations such as national trends, FAA’s
Terminal Area Forecast (“TAF”), and local
socioeconomic conditions.” AR6522. The growth rate
without accounting for a new terminal is consistent with
the TAF, which means “it differs by less than ten percent

18. They went so far as to accuse Respondents as follows:
“[i]nstead of being honest with Petitioners, FAA and
Mercer County have chosen to view the Petitioners as
opponents to be lied to and deceived in the name of
increasing revenues at the Airport.” Reply Br. at 37. As
noted at the conclusion of oral argument, this “is not the
kind of language that we’re accustomed to reading in the
briefs presented to us or that we see as appropriate for
argument in a court of law.” Tr. at 31.
19
in a 5-year forecast period, and 15% in the 10-year forecast
period.”8 Further, the FAA recognized that fluctuation is
to be expected for actual enplanements. As we have
recognized, “we accord deference to the FAA’s demand
forecasts.” Tinicum Twp. v. U.S. Dep’t of Transp., 685
F.3d 288, 298 (3d Cir. 2012); see also Barnes v. U.S. Dep’t
of Transp., 655 F.3d 1124, 1136 (9th Cir. 2011).
Second, the FAA weighed alternatives in its Final
EA. In doing so, it noted that “[t]he existing terminal is
currently operating above maximum capacity and cannot
accommodate either the existing level of enplanements or
the forecasted growth with a reasonable level of passenger
comfort and convenience.” AR81. Thus, it determined that
a no-action alternative would fail to meet the purpose and
need requirements. See FAA Order 1050.1F6-2.1(c)

8
National forecasts by the FAA predict an average annual
growth rate of 1.7 percent for U.S. air traffic between 2014
and 2035. Nationally, as the Airport recognized in the
AMPU, “sharper variations in growth for smaller airports
like TTN near larger hubs are anticipated” during that
time. AR10509. Indeed, “[a]ccording to the FAA
approved forecasts, annual passenger enplanements are
expected to grow from 314,665 in 2016 to 476,507 in
2035.” AR6, AR48.
20
(requiring that an EA include a discussion of purpose and
need requirements).9
The FAA used the no-action alternative as a
baseline to consider the environmental consequences of
the project, in accordance with NEPA and FAA Order
1050.1F6-2.1(d).10 See Twp. of Bordentown, 903 F.3d at

9
This regulatory provision states:

Purpose and Need. This section briefly
describes the underlying purpose and need
for the Federal action. It presents the problem
being addressed and describes what the FAA
is trying to achieve with the proposed action.
The purpose and need for the proposed action
must be clearly explained and stated in terms
that are understandable to individuals who
are not familiar with aviation or commercial
aerospace activities. To provide context
while keeping this section of the EA brief, the
FAA may incorporate by reference any
supporting data, inventories, assessments,
analyses, or studies.

FAA Order 1050.1F6-2.1(c).
10
This regulatory provision states:

21
258 (“An agency can take a ‘hard look’ at cumulative
impacts . . . by . . . incorporating the expected impact of [a

Alternatives (Including the Proposed
Action). The alternatives discussed in an EA
must include those that the approving official
will consider. There is no requirement for a
specific number of alternatives or a specific
range of alternatives to be included in an EA.
An EA may limit the range of alternatives to
the proposed action and no action when there
are no unresolved conflicts concerning
alternative uses of available resources.
Alternatives are to be considered to the
degree commensurate with the nature of the
proposed action and agency experience with
the environmental issues involved.
Generally, the greater the degree of impacts,
the wider the range of alternatives that should
be considered. The preferred alternative, if
one has been identified, should be indicated.
For alternatives considered but eliminated
from further study, the EA should briefly
explain why these were eliminated. For more
information on alternatives, see Paragraph 7-
1.1.e.

FAA Order 1050.1F6-2.1(d).
22
forthcoming] project into the environmental baseline
against which the incremental impact of a proposed
project is measured.”) (parenthetically quoting Cascadia
Wildlands v. Bureau of Indian Affs., 801 F.3d 1105, 1112
(9th Cir. 2015)).
In 2018, the AMPU considered five different
scenarios, which showed air traffic would likely increase
regardless of whether Mercer County builds a new
terminal. Every scenario showed that air traffic into and
out of the Airport would increase substantially between
2014 and 2035.11 The AMPU relied upon Scenario 5 as it
averaged all the other scenarios’ growth outcomes.
Scenario 5 predicted larger growth than the scenario that
considered growth based on the national trend plus a new
terminal.12 The FAA ultimately approved Scenario 5 since
it was consistent with the agency’s official aviation
activity for airports nationwide. And even though a new
terminal has yet to be built, passenger trips have already

11
The following scenarios were used in forecasting:
Scenario 1 – National Trend Based; Scenario 2 – National
Trend Based plus New Terminal Factor; Scenario 3 –
Tertiary Airports; Scenario 4 – Air Service Development
Based; Scenario 5 – Average of Scenario 1-4.
12
Scenario 2 predicted 455,560 passenger trips in 2035,
compared to Scenario 5, which predicted 476,507 trips in
2035.
23
increased more than the Scenario 5 forecast, “with the
Airport reporting a total of 404,349 enplanements in
2018,” compared to a predicted growth to 358,728 in
2020. AR54.
Third, Petitioners go to great length arguing that (1)
the new terminal would increase air traffic by increasing
both the number of terminal gates and aircraft parking
positions, and (2) the FAA relied on false information by
determining otherwise. Petitioners’ focus on the number
of gates stems from an acknowledgement in a November
2002 EA that increasing the number of gates was
considered at one point in time.13 But the petition for

13
This November 2002 EA document explained:

Mercer County’s original intent was to build
a two-gate facility in the first phase (Build
Alternative 1). At a later unspecified date,
based upon demand, the second phase (Build
Alternative 2) with an additional two gates
would have been built. Due to the uncertainty
of the need and the anticipated time frame for
the second phase, the County of Mercer has
designated 2005 Build Alternative 1, a two-
gate facility, as the Preferred Alternative to
be evaluated in this EA. All references to
2005 Build Alternative 2 are merely included
24
review here identified only the March 2022 decision to
allow Mercer County to replace the existing terminal.
Federal Rule of Appellate Procedure 15(a)(2)(C)
forecloses Petitioners from challenging actions not
identified in their petition for review.14 Additionally, “the
APA allows challenges to discrete agency action, but not
broad challenges to the administration of an entire
program.” Gentile v. Sec. & Exch. Comm’n, 974 F.3d 311,
317 (3d Cir. 2020). So Petitioners cannot generally argue
that, years ago, the terminal should not have been

as additional information, but not relevant to
the decision requested by this EA on the
current sponsor’s Preferred Alternative. The
2005 Build Alternative 2 will not be
permitted to be built on the basis of a
favorable decision on this EA, but would
require further environmental
documentation.
AR 7451.
14
Challenging actions prior to March 21, 2022 would also
be untimely because petitions challenging FAA orders
must be filed no later than 60 days after an order issues. 49
U.S.C. § 46110(a). “The court may allow the petition to be
filed after the 60th day only if there are reasonable grounds
for not filing by the 60th day.” Id. The agency case here
was docketed May 19, 2022.
25
expanded from a two-gate terminal. As the Supreme Court
explained in Lujan v. National Wildlife Federation:
[T]he flaws in the entire ‘program’—
consisting principally of the many individual
actions referenced in the complaint, and
presumably actions yet to be taken as well—
cannot be laid before the courts for wholesale
correction under the APA, simply because
one of them that is ripe for review adversely
affects one of respondent’s members.
497 U.S. 871, 893 (1990).
In sum, the record belies Petitioners’ argument that
the FAA relied on false or inaccurate premises.
c. THE FAA DID NOT VIOLATE NEPA BY FAILING
TO CONSIDER THE CUMULATIVE IMPACT OF ITS
PAST ACTIONS OR BY SEGMENTING THE
PROJECT

Petitioners contend that the FAA violated NEPA by
failing to consider the cumulative impact of its past
actions, in part by segmenting the Airport Project and
unmooring it from past Airport construction projects.
Under NEPA, “if the cumulative impact of a given project
and other planned projects is significant, an applicant can
not simply prepare an EA for its project, issue a FONSI,
and ignore the overall impact of the project on a particular

26
neighborhood.” Soc’y Hill Towers Owners’ Ass’n v.
Rendell, 210 F.3d 168, 180 (3d Cir. 2000) (citing 40
C.F.R. § 1508.27(b)(7)). The regulations define
‘cumulative impact’ as “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 regardless of what agency
(Federal or non-Federal) or person undertakes such other
actions.” 40 C.F.R. §1508.7. And “[c]umulative impacts
can result from individually minor but collectively
significant actions taking place over a period of time.” Id.;
see also Soc’y Hill Towers Owners’ Ass’n, 210 F.3d at
180.
NEPA’s implementing regulations dictate that
“when evaluating a proposed project’s environmental
impacts, an agency must take account of ‘connected,’
‘cumulative,’ and ‘similar actions’ whose impacts should
be ‘discussed in the same impact statement’ as the project
under review.” Twp. of Bordentown, 903 F.3d at 248
(quoting 40 C.F.R. § 1508.25(a)); see also State of N.J.,
Dep't of Env’t Prot. & Energy v. Long Island Power Auth.,
30 F.3d 403, 411 (3d Cir. 1994). “Connected actions” are
those that “(i) [a]utomatically trigger other actions which
may require environmental impact statements,” “(ii)
[c]annot or will not proceed unless other actions are taken
previously or simultaneously,” or “(iii) [a]re
interdependent parts of a larger action and depend on the

27
larger action for their justification.” 40 C.F.R. §
1508.25(a)(1).15
An agency violates NEPA when it “consider[s] such
related actions separately.” Twp. of Bordentown, 903 F.3d
at 248 (citing Del. Riverkeeper Network v. FERC, 753
F.3d 1304, 1313 (D.C. Cir. 2014)). Under the “prevailing
view amongst the Courts of Appeals,” the “essential
question” in determining if segmentation violates NEPA
is “whether the segmented projects have independent
utility.” Id. at 249 (citing Coal. on W. Valley Nuclear
Wastes v. Chu, 592 F.3d 306, 312 (2d Cir. 2009); Great
Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir.
2006)). Projects with independent utility are those in
which “each project would have taken place in the other’s
absence.” Id. (quoting Webster v. U.S. Dep’t of Agric., 685
F.3d 411, 426 (4th Cir. 2012)).
Petitioners contend that the Final EA ignored that
(1) the FAA “allow[ed] Frontier Airlines to begin

15
This prohibition against “segmentation” has also been
incorporated into an FAA order. FAA Order 1050.1F2-
3.2(b)(1) states that “[c]onnected 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 must be evaluated in the same EA
or EIS. . . . A proposed action cannot be segmented by
breaking it down into small component parts to attempt to
reduce impacts.” (referencing 40 CFR § 1508.27(b)(7)).
28
scheduled service at the Airport by amending ‘Operations
Specifications’ (‘OpsSpecs’) in 2012,” and (2) the FAA
failed to “provide information about the impact of noise or
air emissions that would be useful to the public.” Pet’r’s
Br. at 43, 41. Also, they argue that the FAA segmented
review of the new terminal from “other various projects
that FAA requires for an airport with a high volume of
A320 traffic.”16 Id. at 54. They contend that similar actions
collectively expanding the Airport should be considered as
a single project due to economic interdependence,
common timing, and geographic proximity.17

16
In 2017, Frontier switched from the Airbus A319
aircraft, which seats 156 to 162 passengers, to the more
cost-efficient Airbus A320 aircraft, which can seat up to
186 passengers.
17
The CEQ’s implementing regulations for NEPA state:
“Similar actions, which when viewed with other
reasonably foreseeable or proposed agency actions, have
similarities that provide a basis for evaluating their
environmental consequences together, such as common
timing or geography.” 40 C.F.R. § 1508.25(a)(3). Still, the
NEPA regulations define “connected actions” without any
reference to geographic proximity or common timing. See
40 C.F.R. § 1508.25(a)(1) (defining connected actions as
actions that “automatically trigger other actions,” cannot
proceed without other actions, or are “interdependent parts
29
 This Court rejects Petitioners’ argument regarding
economic interdependence, common timing, and
geographic proximity. We adhere to the independent
utility test when determining whether an agency has
violated NEPA by allegedly segmenting its analysis. Twp.
of Bordentown, 903 F.3d at 249; see also Morongo Band
of Mission Indians, 161 F.3d at 579-80 (rejecting the
petitioners’ argument that “the FAA improperly
segmented the [East Arrival Enhancement Project] from a
larger project, the [Los Angeles International Airport]
Expansion Project,” because “the primary purpose of the
[East Arrival Enhancement Project] was to deal with
existing problems of delay and inefficiency”); Lowman v.
FAA, 83 F.4th 1345, 1359 (11th Cir. 2023). In addition, as
discussed above, Petitioners cannot pursue a late challenge
to the 2012 action here. See Lowman, 83 F.4th at 1360.
The sole action at issue before us is the FAA’s 2022
approval of the layout plan modification for the new
terminal.
The FAA considered actions that “have been
implemented, are under current planning, or are

of a larger action”). And Petitioners fail to specify the
projects to which they are referring, instead referencing
“[t]he multiplicity of projects undertaken by the FAA and
the County since 2013 after FAA’s amendment to
Frontier’s OpsSpecs . . . .” Pet’r’s Br. at 57.

30
anticipated in the near future.” AR253. The past actions
the FAA considered when assessing cumulative impacts
included the following: rehabilitating runways;
reconstructing taxiways; constructing a remote parking
lot; redeveloping the Former Naval Air Warfare Center
(therein demolishing existing buildings and building a
hangar); removing trees that protruded into protected
airspace; and demolishing a civil air patrol building.18 The
FAA also considered foreseeable future projects,
including the following: rehabilitating and extending
taxiways; building a combined snow removal equipment
storage and maintenance facility; constructing a
replacement air traffic control tower; constructing a
deicing containment facility; and demolishing the existing
electrical facility and building a replacement. Thus, as
required under FAA rules for an EA’s cumulative analysis,
the Final EA’s Affected Environment section “include[d]
critical background information of past, present, and

18
In considering the reconstruction of taxiways, the FAA
took into account the reconstruction of Taxiways H and B,
which started in 2015; the removal of trees that became
obstructions in taxiways; and the reconstruction of
Taxiways A and B, projects that began in 2021 and were
set to finish in 2024.

31
reasonably foreseeable future actions.” FAA Order
5050.4B, ¶ 706(e)(1).19
The FAA determined that the new terminal’s
impacts, even when combined with the other projects’
impacts, would not be significant. Instead, the agency
found that the new terminal’s impacts would be
temporary, since they related to the construction as it
would take place on Airport property. Though Petitioners
claim this conclusion fails to include “the area in which
the effects of the proposed project will be felt, the impacts
expected from the proposed projects, and the impacts from
past projects,” Pet’r’s Br. at 41, the FAA did not need to
expand the scope of the affected environment beyond the
Airport. After all, as discussed above, the FAA reasonably
concluded that the new terminal itself would not increase
air traffic and thus would not cause more plane-related
noise or air pollution. See Twp. of Bordentown, 903 F.3d
at 254 (explaining that the NEPA cumulative impacts
requirement “need only review impacts likely to occur in
the area affected by the project under [the given agency’s]
review”) (citing Sierra Club v. FERC, 827 F.3d 36, 50
(D.C. Cir. 2016)).

19
See also 40 C.F.R. § 1508.27(a) (requiring that “the
significance of an action[] be analyzed in several contexts
such as . . . the affected region . . . and the locality.”).
32
 Plainly, creating a new terminal for the Trenton
Airport has independent utility for multiple reasons.20 The
current terminal fails to meet ADA, TSA, and fire egress
requirements. The current terminal lacks sufficient square
footage for adequate restrooms, waiting areas, and security
screening. The physical building’s main structure is

20
Petitioners try to shoehorn in an argument that the new
terminal would be unnecessary if Frontier Airlines were
not operating at the Airport, saying that the Project lacks
independent utility for that reason. If this is a challenge to
the FAA’s 2012 decision to allow Frontier’s operating
specifications to be amended, such a challenge cannot be
brought, for reasons we have already stated. The Airport
proposed the new terminal in 2018, six years after
Petitioners explain that the Airport’s OpsSpecs’
amendment allowed for Frontier to begin service there.
Thus, the FAA could not have known in 2012 what the
Airport would need in 2018. Requiring an agency to
“analyz[e] possible future actions . . . that are far from
certain would result in a gross misallocation of resources,
would trivialize NEPA and would diminish its utility in
providing useful environmental analysis . . . .” Soc’y Hill
Towers Owners’ Ass’n, 210 F.3d at 181 (in the EIS
context) (quoting Airport Neighbors All., Inc. v. United
States, 90 F.3d 426, 431 (10th Cir. 1996) (internal
quotation marks and citation omitted)).

33
noticeably aging, with some features in disrepair. With
passenger trips forecast to increase in the future, passenger
experience and service level provided will continue to
decline unless a new terminal is built. As addressed in the
AMPU, taxiway improvements will address existing
safety and maintenance concerns.
The EA also noted the independent utility of the
various projects occurring at the Airport.21 For example,

21
The EA states:
As shown in Table 5-12 and above, TTN has
completed or has proposed a number of
improvements to the airport. Notably, the
current MPU, recommended a robust multi-
phase program of taxiway improvements
needed to address safety and maintenance
concerns. Collectively, these projects will
assure that pavements are maintained in good
condition, provide standard runway/taxiway
separations, and improve safety of aircraft
movements by reducing the number of
runway crossings required for aircraft
moving around the airfield. All of the listed
projects are unrelated to the Proposed Action,
and each has its own independent utility and
is justified regardless of whether the
34
taxiway improvements will address existing safety and
maintenance concerns. Further, they will address failing
infrastructure, including issues with pavement and
lighting. Certain taxiways need to have their ‘non-
standard’ geometry corrected for safety reasons, and the
Airport needs parallel taxiways for each of its runways.
Taxiway improvements will reduce how often aircraft
need to cross runways and provide more separation
between runways and taxiways. Thus, the taxiway
improvement efforts have independent utility.
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 v. FAA, 47 F.4th at 1271
(quoting FAA 1050.1F Desk Reference (V2), at 15-1 (Feb.
2020)).” Here, for the reasons outlined above, “[w]e
cannot say the FAA’s exercise of that discretion was
arbitrary or capricious.” Id. Petitioners’ cumulative
impacts/segmentation arguments therefore fail.

Proposed Action proceeds. As shown, the
projects are primarily maintenance and safety
improvements. Several would benefit
General Aviation users of TTN.
AR258.
35
 d. THE FAA DID NOT VIOLATE NEPA BY FAILING
TO PROPERLY CONDUCT AN ENVIRONMENTAL
JUSTICE ANALYSIS

A 1994 Executive Order requires federal agencies,
“[t]o the greatest extent practicable and permitted by law,”
to “make achieving environmental justice [(“EJ”)] part of
[their] mission by identifying and addressing, as
appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies,
and activities on minority populations and low-income
populations.” Exec. Order 12,898 § 1-101, Federal
Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, 59 Fed. Reg.
7629 (Feb. 11, 1994).22 This means the agency must
“consider designs or alternatives that will avoid or
minimize ‘disproportionately high and adverse’ impacts
on low-income communities or communities of color (‘EJ
communities’).” NAACP Erie Unit 2262 v. Fed. Hwy.
Admin., 2022 WL 17986772, at *9 (W.D. Pa. Dec. 29,

22
The Final EA recognized: “In accordance with EO
12898, Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations,
federal agencies are required to incorporate environmental
justice into their planning processes.” AR176.

36
2022).23 The Order does not create a private right to
judicial review. Exec. Order 12,898 § 6-609. Nonetheless,
we conclude, as our sister circuits have in similar contexts,
that “[t]he FAA exercised its discretion to include the
environmental justice analysis in its NEPA evaluation, and
that analysis therefore is properly subject to ‘arbitrary and
capricious’ review under the APA.” Cmtys. Against
Runway Expansion, Inc. v. FAA, 355 F.3d 678, 689 (D.C.
Cir. 2004); see also Coliseum Square Ass’n v. Jackson,
465 F.3d 215, 232 (5th Cir. 2006).
Here, the FAA conducted a reasonable EJ
analysis.24 The FAA focused its EJ analysis on the
communities surrounding the Airport, since the proposed

23
The Presidential Memorandum that accompanied EO
12,898 stresses the importance of promoting
environmental justice through the NEPA review
processes. Memorandum from President William J.
Clinton on Environmental Justice to the Heads of All
Departments and Agencies (Feb. 11, 1994).
24
Petitioners cite scientific evidence in their reply brief to
support their argument that the FAA chose an arbitrary
radius to establish the location of EJ communities “simply
because there were no EJ communities within that radius.”
Reply Br. at 35. As that evidence is not part of the
administrative record, we need not and will not consider
it.
37
project “would take place on existing Airport property,”
and “impacts to environmental resources . . . are primarily
concentrated on Airport property and would be mitigated
as discussed, and therefore, are not anticipated to impact
[EJ] populations.” AR230. One sister circuit has
determined that conducting an analysis in a manner with
such geographical limitations is reasonable because
“significant noise impacts [were] limited to the vicinity of
the airport.” See Cmtys. Against Runway Expansion, Inc.,
355 F.3d at 689. We believe the same approach applies
here.
Petitioners argue also that the FAA should have
used data from census blocks, i.e., the smaller subdivisions
within census tracts, instead of census tract data. The
FAA’s decision to use census tract data, corroborated by
the EPA’s modeling tool, was reasonable. See Sierra Club,
867 F.3d at 1368, 1370. The CEQ’s guidance document
instructing how to conduct an EJ analysis explains that
minority populations “should be identified” where “the
minority population of the affected area exceeds 50
percent” or “the minority population percentage of the
affected area is meaningfully greater than the minority
population percentage in the general population or other
appropriate unit of geographic analysis.” Council on
Environmental Quality, Environmental Justice: Guidance
Under the National Environmental Policy Act, 25 (Dec.

38
1997).25 Moreover, the FAA noted that the size of the
minority population and the population below the poverty
level percentages were not meaningfully greater than the
examined township, county, and state comparison
populations.26 Thus, contrary to Petitioners’ assertion, the
FAA “did recognize the existence and demographics of
the [community] in question.” See Sierra Club, 867 F.3d
at 1370.
The FAA’s use of the EPA’s Environmental Justice
Screening and Mapping Tool supports the reasonableness
of the EJ analysis. The Final EA reported that, based on
the Screening and Mapping Tool, “low income and
minority populations are generally located southeast of the
Airport and in Trenton, approximately over a mile to two
miles from the project area.” AR177. Moreover, the Tool
showed that “the project area has a 20% minority
population and a 10% low-income population,”

25
FAA 1050.1F Desk Reference cites this guidance
document when defining minority, low-income, and other
EJ concepts.
26
The minority percentage in the Airport’s census tract
was 33.2 percent, with 7.9 percent of the population living
below the poverty level. These percentages are below the
50 percent threshold that the FAA uses to identify
communities which preempt EJ concerns. See Young v.
Gen. Servs. Admin., 99 F. Supp. 2d 59, 84 (D.D.C.), aff’d,
11 F. App’x 3 (D.C. Cir. 2000).
39
percentages that are below the averages of both New
Jersey (30% and 27%) and the United States (38% and
12%). AR177. We conclude from the foregoing that the
FAA reasonably incorporated environmental justice into
its planning process.
e. THE FAA DID NOT VIOLATE NEPA BY FAILING
TO PERFORM A HEALTH RISK ASSESSMENT AS
PART OF ITS ENVIRONMENTAL ASSESSMENT

Petitioners contend that the FAA’s decision not to
perform a health risk assessment violated NEPA. A broad
policy objective underlying NEPA is to “stimulate the
health and welfare of man.” Morris Cnty. Tr. for Historic
Pres., 714 F.2d at 274 (quoting 42 U.S.C. § 4321); see also
Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 106-07
(1983) (“NEPA requires an EIS to disclose the significant
health, socioeconomic and cumulative consequences of
the environmental impact of a proposed action.”) (internal
citations omitted); 40 CFR §§ 1508.7, 1508.8. Still, the
Supreme Court has explained that “NEPA does not require
the agency to assess every impact or effect of its proposed
action, [] only the impact or effect on the environment.”
Metro. Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 771-72 (1983); see also N.J. Dep’t of Env’t Prot.
v. U.S. Nuclear Regul. Comm’n, 561 F.3d 132, 137 (3d
Cir. 2009). Instead, agencies and reviewing courts “must
look at the relationship between that effect and the change
in the physical environment caused by the major federal
40
action at issue.” Metro. Edison Co., 460 U.S. at 773. For
NEPA to apply, there must be a “reasonably close causal
relationship between a change in physical environment
and the effect at issue.” Id. at 774.
Here, the FAA found no such relationship between
any likely change in environment and the health of
children in the surrounding communities “because the
impacts to environmental resources are primarily
concentrated on Airport property and will be mitigated.”27

27
In its response to comments, the FAA explained that a
health risk assessment was not called for, and it further
elaborated in the Final EA that:
[n]o changes are expected between pre-
development and post-development
conditions, regarding health and safety risks.
The proposed alternatives have been
evaluated for their potential to have a
disproportionate effect on children’s
environmental health or safety, including, but
not limited to, water quality, air quality, and
noise . . . . It has been concluded that the
Proposed Action is not of the nature or
magnitude to have an adverse effect upon the
health and safety of children. Mitigation is
not proposed.
AR231.
41
AR21. The FAA acted reasonably in deciding not to
conduct a health risk assessment, as it considered the data
needed “to make an informed decision that adequately
took account of the important environmental concerns.”
Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120, 129
(D.C. Cir. 1985). The FAA also coordinated with the New
Jersey Department of Environmental Protection to ensure
extensive plans were in place to handle any potential
hazardous materials that terminal construction could
disturb.
VII. CONCLUSION
The FAA’s FONSI was reasonable; the FAA
considered the cumulative impact of its past actions; it
correctly concluded that no unlawful segmentation
occurred; its EJ analysis met NEPA requirements; and
NEPA did not require that a health risk assessment be
made. Accordingly, we will deny the Petition.

42