City of Dania Beach v. Federal Aviation Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2010 Decided December 28, 2010

No. 09-1064

CITY OF DANIA BEACH, A POLITICAL SUBDIVISION OF THE
STATE OF FLORIDA, ET AL.
PETITIONERS

v.

FEDERAL AVIATION ADMINISTRATION,
RESPONDENT

BROWARD COUNTY, FLORIDA,
INTERVENOR

Consolidated with 09-1067

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

Neil McAliley argued the cause and filed the briefs for
petitioners.

Robert P. Stockman, Attorney, U.S. Department of
Justice, argued the cause for respondent. With him on the
brief were Andrew C. Mergen and M. Alice Thurston,
Attorneys. John C. Cruden, Assistant Attorney General, and
Ellen J. Durkee, Attorney, entered appearances.
 2

Michael G. Schneiderman argued the cause for
intervenor. With him on the brief were Andrew J. Meyers and
James D. Rowlee.

Before: GINSBURG and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Opinion concurring in part, dissenting in part, and
concurring in the judgment filed by Circuit Judge ROGERS.

WILLIAMS, Senior Circuit Judge: Fort Lauderdale-
Hollywood International Airport no longer has the capacity to
meet existing demand without substantial delays. Congestion
and delay, indeed, are projected to increase. The parties
dispute what to do about it.

The airport now has three runways. Two are widely
spaced and run parallel in the east/west direction on either
side of the airport terminal—the 9,000-foot by 150-foot
“main” runway and a shorter south runway; the third runs
diagonally from northwest to southeast. Only the main
runway is long and wide enough to accommodate larger
aircraft. The airport’s owner, Broward County, seeks to
extend the south runway to 8,600 feet by 150 feet and to close
the diagonal runway. It applied to the Federal Aviation
Administration for federal funding and for the many FAA
approvals needed to begin construction pursuant to the Airport
and Airway Improvement Act (“AAIA”), 49 U.S.C.
§§ 47101-47131, and related statutes. After considering
several possible alternatives to the county’s proposal and
conducting a lengthy environmental review process, the FAA
issued a Record of Decision that with minor modifications
 3

approved the county’s proposal, dubbed Alternative B1b. 74
Fed. Reg. 978 (Jan. 9, 2009) (the “Decision”).

The cities of Dania Beach and Hollywood and several
individuals challenge the adopted proposal. They argue that
instead of approving Alternative B1b, the FAA should have
chosen an alternative that is concededly preferable
environmentally, “Alternative C1,” consisting of a new
runway to the north of the main runway. Besides a variety of
other environmental benefits (discussed below), Alternative
C1 would spare an area called “Brooks Park”; petitioners
describe this as an “old neighborhood park” containing “1.5
acres, with picnic tables, parking, and ‘passive open space.’”
Pet. Br. at 46-47.

Petitioners invoke two environmental statutes and an
executive order: (1) 49 U.S.C. § 47106(c)(1)(B), a part of the
AAIA, which conditions FAA approval, when a project such
as the county’s is shown to have certain adverse
environmental impacts, on a finding that there is no “possible
and prudent” alternative; (2) § 4(f) of the Department of
Transportation Act of 1966, 49 U.S.C. § 303(c), which
somewhat similarly conditions approval of a project that will
use a publicly owned park “of national, State, or local
significance,” plus some other publicly owned amenities, on a
finding that there is no “prudent and feasible” alternative; and
(3) Executive Order 11,990, § 2(a), 42 Fed. Reg. 26,961 (May
24, 1977), which conditions federal assistance for construction
in wetlands on a finding that there is no “practicable
alternative.”

In its administrative proceedings and before us, the FAA
points to airport delays that would continue and even be
exacerbated if Alternative C1 were adopted, and to safety
hazards associated with that option. It regards these problems
as extreme enough, in context, to support its finding that
 4

Alternative C1 was not “prudent” under either statute, nor
“practicable” under the Executive Order. It also found Brooks
Park not to be a park of local significance.

After addressing the county’s arguments that the FAA
decision is not final and that petitioners lack standing, we
consider whether the FAA either was required to, or did, give
the term “prudent” in the AAIA the same meaning that the
Supreme Court found “prudent” to have in § 4(f) in Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 411-13
(1971); we find that it was free to, and did, give it a somewhat
laxer construction. Applying that construction, we find the
FAA’s decision consistent with the AAIA. We also find that
the FAA could reasonably conclude that Brooks Park was not
a park protected by § 4(f). Finally, we hold that the agency
was not arbitrary or capricious in viewing Alternative C1 as
“impracticable” within the meaning of the Executive Order.

Finality and standing

Section 46110(a) of Title 49 provides this court
jurisdiction to review orders issued by the FAA under the
AAIA. Although the FAA does not contest jurisdiction,
Broward County has intervened and objected to subject matter
jurisdiction on two grounds: lack of finality and lack of
standing.

First, the county argues that the FAA’s challenged actions
under 49 U.S.C. § 47106(c)(1)(B) and Executive Order
11,990 are not final orders, because they merely determine
eligibility for federal funds, rather than actually approving a
grant of funds. Because the Decision does not award a grant,
the county says that the petitioners’ objections are premature
(with the exception of their § 4(f) claim).
 5

Second, the county objects to the petitioners’ standing,
saying that a favorable decision in this case would not redress
their alleged injury. Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (“it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision”) (internal quotations omitted). The county contends
that it has an approved airport layout plan (“ALP”) (approved
in the Decision itself, see Decision at 91), and could and
would make the proposed changes to the airport even without
federal funding and thus, it argues, without the contested
rulings under § 47106(c)(1)(B) or Executive Order 11,990.
The county is adamant that if federal funding were denied, its
intent and ability to proceed with its expansion plans would be
just as firm as O’Hare’s were shown to be in Village of
Bensenville v. FAA, 457 F.3d 52, 70 (D.C. Cir. 2006). It says
that if the FAA approved the ALP under § 47107(a)(16), the
challenged FAA determinations could only be reviewed in a
final award of the grant, which the Decision clearly is not.
See Decision at 89 (the Decision does “not signify an FAA
commitment to provide financial support, which is a separate
future decision”).

We discuss the two objections to our subject matter
jurisdiction—the lack of finality and redressability—in
reverse order. The county’s understanding of
§ 47106(c)(1)(B) is mistaken. A number of paragraphs in
§ 47106 specifically state conditions for approval of “project
grant[s],” including paragraphs (a), (b), (e) and (g); but
paragraph (c) is in this respect far broader. It governs every
application for an airport development project involving the
location of an “airport or runway or a major runway
extension,” regardless of the applicant’s interest in federal
funding. See Town of Stratford v. FAA, 285 F.3d 84, 90-91
(D.C. Cir. 2002).
 6

Assuming the county proceeded without federal funding,
its theory would be correct that it and the FAA would have
had no need to jump through § 47106(c)(1)(B) hoops, but only
if its proposed changes to the ALP were minor. Here the
county proposes a “major runway extension,” defined in FAA
regulations as one that “causes a significant adverse
environmental impact to any affected environmental
resource.” FAA Order 5050.4B ¶ 9.l(1). So, even if the
county declined federal aid, its airport expansion could
proceed only if the FAA approved a new ALP, which it could
do only on a finding that the project complied with
§ 47106(c). Because the county cannot begin the airport
expansion without an approved ALP, a determination by this
court that the FAA violated § 47016(c)(1)(B) would redress
the petitioners’ injury by stopping the expansion in its tracks.
Lujan, 504 U.S. at 561; FAA Order 5050.4B, ¶ 202.c(2)
(unconditional ALP approval signals that the FAA has
authorized the airport sponsor to begin building the facilities
or equipment depicted on the ALP).

For the same reasons, the county’s finality objection must
fail. The Decision gave its approval to the new ALP,
Decision at 91, a necessary condition for implementing
Alternative B1b, and a sufficient one so far as FAA approvals
are concerned. See United States v. Los Angeles & S.L.R. Co.,
273 U.S. 299, 310 (1927) (holding that agency orders are final
when they “determine [a] right or obligation”). See also
Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d
584, 589 & n.8 (D.C. Cir. 1971).

The county also poses finality and standing objections to
our reaching petitioners’ claims that the FAA violated the
Executive Order. So far as we can determine, this challenge
depends entirely on the county’s claims, set out in its
discussion of the AAIA context, that the Decision did not
establish any right, and that its reversal would not remedy
 7

Dania Beach’s prospective injury, because it was not a final
grant of money. But as we have shown, the Decision did
afford Broward County a right (the right to proceed with
Alternative B1b), and its reversal would correspondingly
relieve Dania Beach of the feared injury, namely the side
effects of the airport expansion. The same points are equally
true as to the FAA’s ruling under the Executive Order.

Merits

The first issue relating to § 47106(c)(1)(B) is whether
“prudent” in that section must have the same meaning as it
does in § 4(f) of the Department of Transportation Act of
1966, 49 U.S.C. § 303(c), as petitioners argue, or whether it is
somewhat less demanding here than in that context, as the
FAA says. The Supreme Court in Overton Park found that
§ 4(f) allowed use of the protected parks, recreation areas and
wildlife resources for transportation projects only when an
alternative was rendered imprudent by “truly unusual factors”
or problems that rose to “extraordinary magnitudes.” 401
U.S. at 413. Petitioners make the seemingly common sense
point that a word’s meaning should be the same across
comparable contexts; after all, both the relevant provisions
allow a federal agency to harm a natural resource only if there
is no “possible and prudent” or “prudent and feasible”
alternative to the proposed project. They also argue that the
FAA’s internal rules, Order 5050.4B, ¶ 1007.e(4)(b), (5)(a),
have assigned the two sections an identical meaning.

Petitioners invoke our decision in Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991), in
support of their argument that the FAA has no discretion to
interpret the term “prudent” more narrowly than the Supreme
Court’s interpretation of § 4(f). But that case does not resolve
the point. Having first found that the agency had not violated
 8

§ 4(f), i.e., that it non-arbitrarily found the proposed
alternative imprudent under § 4(f), we said that we had “little
trouble” deciding that there was no violation of the
predecessor of § 47106(c)(1)(B). Id. at 205. The proposition
that compliance with § 4(f) necessarily entails compliance
with § 47106(c)(1)(B) does not, however, mean the reverse—
not if § 4(f) restricts the agency more severely than does
§ 47106(c)(1)(B).

Given the range of plausible interpretations, some
deference is due the agency’s interpretation under either
Chevron U.S.A. v. Natural Resources Defense Council, 467
U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944); here we need not resolve which. The FAA
discusses the meaning of “prudent” in both statutes in its
Order 5050.4B, an agency “manual” adopted pursuant to a
notice-and-comment process as directed by the Vision 100—
Century of Aviation Reauthorization Act. Pub. L. 108-176,
§ 307, 117 Stat. 2490, 2539 (2003). The order, though hardly
unequivocal, does not equate the two. Paragraph 1007.e(5)(a)
directs FAA officials, in determining whether an alternative is
“prudent” for purposes of § 4(f), to “[u]se” seven listed
factors, such as whether the park-preserving alternative would
cause “extraordinary safety or operational problems.”
Paragraph 1007.e(4)(b) addresses “prudent” in the context of
§ 47106(c)(1)(B); it in turn refers to the ¶ 1007.e(5)(a) factors,
but does so, we think, more vaguely and with somewhat less
insistence, saying that e(5)(a) defines prudent “relative to
Section 4(f)” but is still “very useful” for application of
§ 47106(c)(1)(B). (Both sections say that “‘prudent’ refers to
rationale [sic] judgment”; neither counsel relied on that
language or could offer any interpretive help.)

In its brief before us the FAA explicitly offers an
interpretation of § 47106(c)(1)(B) and Order 5050.4B
distinctly laxer than that of Overton Park’s reading of § 4(f);
 9

it argues that it may find an option imprudent if it “is
significantly inferior at serving the FAA’s statutory mandates
under the AAIA, including the mandates to increase capacity,
accommodate demand with less delay, and ensure safety.”
Resp. Br. at 23. As an interpretation of the FAA’s regulation,
such an interpretation is entitled to deference so long as it
reflects “the agency’s fair and considered judgment on the
matter in question,” not just its litigating position. Auer v.
Robbins, 519 U.S. 452, 462-63 (1997). Here, the brief’s
interpretation is not new: the FAA elaborated a very similar
interpretation in its legal brief submitted in May 2007 in its
Brief for Respondent at 27-28, 31-34, Natural Resources
Defense Council v. FAA, 564 F.3d 549 (2d Cir. 2009) (No. 06-
526) (“NRDC v. FAA”). The NRDC court substantially
accepted this interpretation. See NRDC v. FAA, 564 F.3d at
565-67. 1

Despite the two statutes’ general similarity in context, the
FAA reasons that the greater breadth of resources protected by
§ 47106(c)(1)(B) cuts against an idea of “prudent” identical to
that of § 4(f). The latter applies only to parks, recreation
areas, and wildlife or waterfowl refuges that have been
declared significant; § 47106(c)(1)(B) protects “natural
resources, including fish and wildlife, natural, scenic, and
recreation assets, water and air quality, or another factor
affecting the environment.” Section 4(f) prohibits “use” while
§ 47106(c)(1)(B) bans “significant adverse effect[s].”

In addition, the NRDC court observed that § 4(f) protects
only publicly owned resources, so their use will almost always
be less costly to “the public purse,” id. at 566 (citing Overton

1
The court speaks of the FAA’s AAIA definition of “prudent”
as “broader,” 564 F.3d at 567, but given the various negatives it is
surely narrower, with the implied “imprudent” being broader.
 10

Park, 401 U.S. at 412); and because no one normally lives or
works in § 4(f)-protected areas, no one will have to be driven
from his home or business, id. Thus the § 4(f) context
requires exceptional agency push-back if the resources are to
have any chance. By contrast, NRDC v. FAA reasoned, the
AAIA protected privately owned as well as public lands, so
that an alternative affecting the protected resources was less
likely to have an automatic advantage.

Besides the difference in range of protected resources and
NRDC v. FAA’s arguments, § 47106(c)(1)(B) is part of a
larger statute, the AAIA, which boosts airport development
unusually aggressively. See 49 U.S.C. § 47101(a)(7) (“airport
construction and improvement projects that increase the
capacity of facilities to accommodate passenger and cargo
traffic [should] be undertaken to the maximum feasible extent
so that safety and efficiency increase and delays decrease”).

This case falls somewhere between the conditions for
deference to agency interpretations of their regulations under
Auer and the restricted conditions for deference to
interpretations of an enabling statute under Mead. United
States v. Mead Corp., 533 U.S. 218 (2001). If Order 5050.4B
simply echoed the exact language of § 47106(c)(1)(B), the
agency’s brief could enjoy no Auer deference. Gonzales v.
Oregon, 546 U.S. 243, 256-57 (2006). But given Order
5050.4B’s suggestion of a gap between the statutes’
meanings, the FAA briefs’ apparently consistent articulation
of such a difference, and the evident differences in the two
provisions’ scope and purpose, we find the interpretation
offered here by the FAA within its discretion.

Quite apart from questions of degree of prudence or
imprudence, the FAA invokes Order 5050.4B, ¶ 1007.e(4)(b)
for the principle that under § 47106(c)(1)(B) it may consider
not only how well each alternative meets the project’s purpose
 11

and need, the FAA’s statutory mandates under the AAIA, and
the county’s goals, but also the competing proposals’ varying
levels of environmental harm. As it points out, all the
alternatives it considered would have some significant adverse
effects on natural resources. While Alternative C1 was the
“environmentally preferred alternative,” it would nevertheless
cause noise impacts to 285 households, could result in
destruction of 15.40 acres of wetlands in order to relocate
displaced airport tenants, and may affect a federally-listed
species—compared with noise impacts to 1051 households
and destruction of 15.41 acres of wetlands under Alternative
B1b. Decision at Tbl.3. To be sure, § 47106(c)(1)(B) does
not allow the FAA to engage in an open-ended, fully
discretionary balancing of competing interests. But we think
that where protected resources are on both sides of the
balance, the FAA may properly consider not only the non-
environmental defects of the environmentally preferred
option, but also the margin by which its environmental
advantages exceed those of the alternative.

With these principles in mind, we have little difficulty
finding that there was nothing arbitrary or capricious in the
FAA’s finding that Alternative C1 was not “prudent,” and that
§ 47106(c)(1)(B)’s demands were satisfied. The FAA found
that although the selected Alternative B1b would have more
adverse environmental impacts than Alternative C1, it would
have a radical edge in meeting the transportation purposes of
reducing delays, ensuring safety and increasing capacity. See
Id. at 46-48. The delay differences alone are striking.
Alternative B1b would have 3.1 minutes of average delay per
operation and would perform almost as well in poor-weather
conditions: 3.2 average minutes of delay in East Flow
operations and 8.3 average minutes of delay in West Flow
operations. Id. at 46 & n.96. By contrast, Alternative C1
would have average delays of 5.0 minutes of per operation,
skyrocketing in poor-weather conditions to 32.2 minutes in
 12

East Flow operations and 79.1 minutes in West Flow ones.
Id.

Petitioners try to parry the delay figures with the point
that poor-weather delays are rare (occurring only 7% of the
time). They also argue that § 47106(c)(1)(B) requires the
FAA to select the environmentally-preferred alternative so
long as it meets the project’s pre-defined purpose and need,
which had been set as six minutes of average delay per
operation, even if it meets that criterion only minimally.

But projections prepared in the final EIS showed that
Alternative C1 would perform as poorly as the no action
alternative in poor weather conditions (and worse than
Alternative B1b by a factor of 10). Final Environmental
Impact Statement for the Development and Expansion of
Runway 9R/27L and Other Associated Airport Projects at Fort
Lauderdale-Hollywood International Airport (June 2008),
App. F at F-19. And the 7% frequency of poor weather
amounts to an average of 25 days a year. We think the FAA
entirely within its discretion in placing weight on defects in
Alternative C1 that were not foreseen in the original
formulation of goals.

The different alternatives also vary considerably in their
fit with the existing airport layout, with the edge decisively in
favor of Alternative B1b. Under it, both the main runway and
the extended south runway could operate independently,
reducing complexity in coordinating arrivals and departures.
Decision at 46-47. Under Alternative C1, no such
independent operation would be possible for the main runway
and the proposed new one. Instead, air traffic control would
have to take extra precautions in coordinating takeoffs and
landings. Id. And under Alternative C1, once airplanes were
on the ground they could access the terminal from either
runway only by crossing an active runway. Id. at 46.
 13

The petitioners respond that this is nothing extraordinary,
and that air traffic control could easily coordinate air traffic
and runway crossings. But the fact that air traffic control
could choreograph the dance of the airplanes does not suggest
that such coordination is not more cumbersome or less safe
than the alternative. Human error is the most common cause
of aviation accidents. See SCOTT SHAPPELL ET AL.,
DOT/FAA/AM-06/18, HUMAN ERROR AND COMMERCIAL
AVIATION ACCIDENTS: A COMPREHENSIVE, FINE-GRAINED
ANALYSIS USING HFACS, at 1 (2006) (reporting that “60-80%
of aviation accidents are due, at least in part, to human error”).
The FAA can reasonably determine that concerns about safety
combined with substantially greater delays would render
Alternative C1 imprudent under § 47106(c)(1)(B). See NRDC
v. FAA, 564 F.3d at 568 (“[t]he AAIA entrusts the agency
with the responsibility for assessing prudence by deciding for
itself the appropriate weight to accord myriad relevant
factors”); Order 5050.4B, ¶ 1007.e(5)(a) (suggesting that
accumulation of adverse factors collectively can render an
alternative imprudent).

In sum, we find that the FAA was not in violation of law
in its construction of “prudent” for the purposes of
§ 47106(c)(1)(B), nor was it arbitrary or capricious in finding
that the use of Alternative C1 would not have been prudent.

Petitioners’ “Brooks Park” argument has two elements:
first, a substantive claim that the area qualified for § 4(f)
protection as a “public park . . . of . . . local significance”;
second, a motion to supplement the administrative record with
draft environmental impact statements (“EISs”) prepared in
2001 and 2002 evaluating a different (albeit similar) proposal
to expand the airport, and with documents submitted during
those processes. If admitted, they argue, these would
reinforce its argument that the FAA’s determination that the
area was not a park was arbitrary and capricious.
 14

The record before the FAA indicated that the primary
public function of the space in question, lying between the
airport fence and a perimeter road on the east side of the
airport, was for airplane-viewing, though with some later
encroachment by commercial vehicles using it as a waiting
area. Joint Appendix (“J.A.”) 114-15. There is no claim that
the area featured the sort of “natural beauty” that is among the
values § 4(f) seeks to protect. See 49 U.S.C. § 303(a).
Invoking the section’s references to “historical sites,”
however, petitioners suggest that the area was an “old
neighborhood park” that “existed for many years,” that Dania
Beach’s 1994 comprehensive plan included a reference to it,
J.A. 20, and that it dates back to “a time when the Airport was
much smaller.” Pet. Br. at 46-47. As a result, they argue, its
significance must be presumed. Pet. Reply Br. at 24 (citing to
23 C.F.R. § 774.11(c)).

None of this seems to undermine the FAA’s refusal to
regard this plane-viewing site as a public park of local
significance. Petitioners reinforce their claim, however, by
invoking an FAA handbook provision against manipulative
redesignations of sites:

Where the use of a property is changed . . . from a section
4(f) type use to a transportation use in anticipation of a
request for FAA approval, section 4(f) shall be
considered to apply.

Order 1050.1E, App. A, ¶ 6.2d. They argue that the county,
after it bought the area from Dania Beach in 1997, changed its
formal “use” from park to transportation. Under the
handbook, they say, it follows that § 4(f) must be “considered
to apply.”

The petitioners are deeply overreading Order 1050.1E,
App. A, ¶ 6.2d. The fact that the designated use of the area
 15

was changed from park to transportation does not convert a
non-§ 4(f) resource into a § 4(f) resource. The evidence in the
record supports the FAA’s conclusion that the land was never
a § 4(f) resource. The county as its owner never considered
the land to be a park. J.A. 114. In fact, it has said that the
land was used “illegally by commercial vehicles . . . as a
waiting area” (a use that prevented use of the picnic tables).
Id. Apart from their assertion, petitioners introduced no
evidence that the area had been used as a park—unless the
FAA was obliged to regard any airplane-watching site with
picnic tables as a “park of local significance.” See also
Stewart Park & Reserve Coalition, Inc. v. Slater, 352 F.3d
545, 557 (2d Cir. 2003) (holding that “uninterrupted and
purposeful use by the public” makes particular lands a public
park and recreation area within the meaning of § 4(f)). It was
not arbitrary or capricious for the FAA to conclude that § 4(f)
did not apply to this tract.

The petitioners have moved before us to supplement the
administrative record with hundreds of pages of documents
introduced in prior EIS processes that contemplated the
airport expansion. We deny their motion. As we explained in
Texas Rural Legal Aid v. Legal Services Corp., we do not
allow parties to supplement the record “unless they can
demonstrate unusual circumstances justifying a departure
from this general rule.” 940 F.2d 685, 698 (D.C. Cir. 1991).
In American Wildlands v. Kempthorne, 530 F.3d 991 (D.C.
Cir. 2008), we held that the record can be supplemented in
three instances: (1) if the agency “deliberately or negligently
excluded documents that may have been adverse to its
decision,” (2) if background information was needed “to
determine whether the agency considered all the relevant
factors,” or (3) if the “agency failed to explain administrative
action so as to frustrate judicial review,” id. at 1002. None of
these conditions is met here.
 16

The FAA has been considering the expansion of the
airport since 1996. 61 Fed. Reg. 14,190 (Mar. 29, 1996). In
2001 and 2002, the FAA issued a draft EIS and two
supplemental draft EISs analyzing that proposal. In 2005, the
county substantially revised the proposed expansion, and the
FAA began the process anew, including holding new public
hearings and preparing a completely new EIS. 70 Fed. Reg.
3095 (Jan. 19, 2005). The petitioners contend that the
administrative record nevertheless must include documents
produced since the FAA first began considering the airport’s
expansion. They claim that the FAA selectively excluded
adverse documents from the earlier administrative process.
Those documents would show that the FAA once considered
Brooks Park to be a § 4(f) resource (they are also said to show
that the alleged problems with Alternative C1 were
exaggerated).

Instead of identifying particular documents adverse to the
FAA, the petitioners have simply submitted the entirety of the
three draft EIS statements prepared in 2001 and 2002 during
the prior EIS processes. But this vague proffer hardly
supplies the requisite “unusual circumstances” to justify an
order supplementing the record with 1500 pages of additional
material. Texas Rural Legal Aid, 940 F.2d at 698.
Petitioners’ positions about Brooks Park and Alternative C1
have by no means been scanted, and they make no claim that
they were denied a chance to press those positions. In fact,
they submitted a number of comments and objections
regarding Brooks Park during the process and the FAA
properly considered them. See Decision, App. A at A.9-1. As
regards problems with Alternative C1, the court is satisfied
that FAA’s treatment in the Decision under review was
complete and thorough. Petitioners’ claim that the
supplementary documents would manifest FAA exaggeration
of the problems with Alternative C1 is too generalized to
 17

support such a massive inflation of the record. Accordingly,
we deny the motion to supplement the record.

Petitioners’ final argument invokes Executive Order
11,990, § 2(a), 42 Fed. Reg. 26,961 (May 24, 1977), which
conditions federal assistance for construction in wetlands on a
finding that there is no “practicable alternative”; in resolving
that issue, the agency is to consider “economic, environmental
and other pertinent factors.” Id. Alternative B1b would
destroy 15.41 acres of wetlands, the FAA found, of which
3.05 acres are mangrove wetlands. Alternative C1 would
destroy 15.40 acres of wetlands, but the FAA believed the
impacts could be reduced with further planning. Decision at
28, 47 & n.97.

The Ninth Circuit has found that the standard under
Executive Order 11,990 is “less prohibitive and contemplates
more balancing of other factors” than § 4(f). Nat’l Wildlife
Federation v. Adams, 629 F.2d 587, 591 (9th Cir. 1980). For
reasons similar to those behind our decision about
§ 47106(c)(1)(B)—the greater breadth of the resources
protected, the section’s application regardless of private or
public ownership, and the ubiquity of application—we find
that conclusion persuasive.

Even assuming for the purposes of argument that
Alternative C1 would cause no impacts to wetlands, the
FAA’s determination was not arbitrary and capricious. As we
discussed above, Alternative C1’s inferiority to Alternative
B1b, in its longer delays (particularly in poor weather) and the
safety drawbacks of the requisite runway-crossing, render it
not only imprudent under § 47106(c)(1)(B) but impracticable
under the Executive Order.
 18

* * *

The motion to supplement the record and the petition for
review are accordingly

Denied.
 ROGERS, Circuit Judge, concurring in part, dissenting in
part, and concurring in judgment: I write separately on the
question whether the court may properly defer to the Federal
Aviation Administration’s position on appeal that the word
“prudent” has different meanings in section 4(f) of the
Department of Transportation Act of 1966 (“DOT Act”) and
section 509(b)(5) of the Airport and Airway Improvement Act of
1982 (“AAIA,” codified at 49 U.S.C. § 47106(c)(1)(B)). The
analysis adopted by the majority in deferring to a post hoc
litigating position takes a strange turn and is flawed. In section
4(f), Congress used the word “prudent” in an environmental
context involving transportation projects. The Supreme Court
construed the word in Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402 (1971). Thereafter Congress used the same
word in the AAIA in a broader environmental context involving
transportation projects. The FAA formally announced in Order
5050.4B that it interpreted “prudent” in the two statutes to mean
the same thing, and this court previously understood the two
statutes the same way. Nonetheless, the majority concludes that
because the AAIA protects more of the environment than section
4(f), there was a “gap” between the statutes affording the FAA
“discretion,” Maj. Op. at 10, to adopt an interpretation of
“prudent” that is “distinctly laxer,” Maj. Op. at 8, than the
Supreme Court’s even though this interpretation can be found
only in the FAA’s appellate brief, Maj. Op. at 9. Precisely why
a post hoc statement of counsel for the FAA is entitled to
deference the majority does not say other than to note that
counsel’s post-hoc statement is “not new.” Maj. Op. at 9. The
majority also draws on a distinction between public and private
property that another court adopted in a case where facts belied
the validity of the distinction.

It is unnecessary in concurring in the judgment to decide
whether the FAA’s Order 5050.4B is consistent with the
Supreme Court’s analysis of the word “prudent” in section 4(f).
 2

Suffice it to say, because the record demonstrates that the FAA
acted consistently with its regulatory interpretation of “prudent”
in Order 5050.4B in determining whether Alternative C1,
favored by petitioners, met the transportation goals of the Fort
Lauderdale-Hollywood International Airport expansion, the
FAA’s determination that Alternative C1 is imprudent was not
arbitrary or capricious or contrary to law. See FED. AVIATION
ADMIN., RECORD OF DECISION, THE DEVELOPMENT AND
EXPANSION OF RUNWAY 9R/27L AND OTHER ASSOCIATED
AIRPORT PROJECTS AT FORT LAUDERDALE-HOLLYWOOD
INTERNATIONAL AIRPORT, BROWARD COUNTY, FLORIDA 32-33
(2008) (“RECORD OF DECISION”). Accordingly, except as
discussed below, I concur.

I.

Section 4(f) of the DOT Act of 1966 provides that the
Secretary of Transportation may approve a transportation
program or project

requiring the use of publicly owned land of a public
park, recreation area, or wildlife and waterfowl refuge
of national, State, or local significance . . . only if--

(1) there is no prudent and feasible alternative to
using that land; and

(2) the program or project includes all possible
planning to minimize harm to the park, recreation
area, wildlife and waterfowl refuge, or historic site
resulting from the use.

49 U.S.C. § 303(c) (emphasis added).

In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
 3

402 (1971), the Supreme Court addressed the meaning of
“prudent” in section 4(f). It held that to be imprudent and
thereby justify the destruction of parkland, the alternative to
using a section 4(f)-protected resource must present “unique”
and “truly unusual” problems reaching “extraordinary
magnitudes.” 401 U.S. at 413.

In 1982, Congress enacted the AAIA, Pub. L. No. 97-248,
96 Stat. 324, 684 (1982). Section 509(b)(5) of the AAIA, now
codified at 49 U.S.C. § 47106(c)(1)(B), provides that the
Secretary of Transportation may authorize a major airport
development project that

is found to have a significant adverse effect on natural
resources, including fish and wildlife, natural, scenic,
and recreation assets, water and air quality, or another
factor affecting the environment, only after finding [1]
that no possible and prudent alternative to the project
exists and [2] that every reasonable step has been taken
to minimize the adverse effect.

49 U.S.C. § 47106(c)(1)(B) (emphasis added). A recodification
in 1994, see Pub. L. No. 103-272, 108 Stat. 745, 1255, changed
the original “feasible and prudent” to the current “possible and
prudent,” 49 U.S.C. § 47106(c)(1)(B), but “no substantive
change in the law” was intended, H.R. REP. NO. 103-180, at 5
(1993), reprinted in 1994 U.S.C.C.A.N. 818; see S. REP. NO.
103-265, at 3 (1994).

The Supreme Court has long considered Congress to intend
similar or identical language to have the same meaning in two
different statutes when “the two provisions share a common
raison d’etre.” Northcross v. Bd. of Educ. of Memphis City Sch.,
412 U.S. 427, 428 (1973) (quoting Johnson v. Combs, 471 F.2d
84, 86 (5th Cir. 1972)). Thus, as the Supreme Court held in
 4

Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), “when
Congress uses the same language in two statutes having similar
purposes, particularly when one is enacted shortly after the other,
it is appropriate to presume that Congress intended that text to
have the same meaning in both statutes.” 544 U.S. at 233 (citing
Northcross); see Nat’l Treasury Emps. Union v. Chertoff, 452
F.3d 839, 857 (D.C. Cir. 2006) (citing Smith). Further, “when
‘judicial interpretations have settled the meaning of an existing
statutory provision, repetition of the same language in a new
statute indicates, as a general matter, the intent to incorporate its
. . . judicial interpretations as well.’” Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006) (quoting
Bragdon v. Abbott, 524 U.S. 624, 645 (1998)) (modification in
original).

Applying the presumption, it is clear Congress intended
“prudent” in section 47106(c)(1)(B) (the AAIA) to mean the
same thing as in section 4(f) and as construed by the Supreme
Court in Overton Park. Contextually, the term is used identically
in the two statutes: both provisions limit the Secretary of
Transportation’s power to approve new transportation projects
when they would “use” (as in section 4(f)) or “cause significant
adverse effects” (as in section 47106(c)(1)(B)) to the protected
environmental resources. In the years between enactment of
section 4(f) and the AAIA’s enactment, the Supreme Court
defined “prudent” as used in section 4(f) in Overton Park. It is
difficult to imagine that Congress did not have in mind this
settled understanding of the meaning of “prudent” when it chose
to employ the same word (and the same concomitant
requirement, feasibility) in a virtually identical context for the
same purpose of protecting environmental resources. Congress
gave no indication in the AAIA that it intended a different
meaning, which it easily could have done, much less that it
intended to water down the high hurdle that the Supreme Court
identified in Overton Park.
 5

The FAA, which, as relevant here, has been delegated
authority for carrying out section 4(f) and section
47106(c)(1)(B), reached the same conclusion in formally
adopting the interpretation that the word “prudent” has the same
meaning in both statutes. In Order 5050.4B, the FAA’s
regulatory announcement of internal policies published upon
congressional direction for notice and comment in the Federal
Register, see Maj. Op. at 8, the FAA stated that “prudent” as
used in the AAIA is “defined relative to section 4(f).” Order
5050.4B, ¶ 1007.e(4)(b) (Apr. 26, 2006), available at
http://www.faa.gov/airports/resources/publications/orders/envi
ronmental_5050_4/; see Notice of Publication of the Preamble
to Order 5050.4B, 71 Fed. Reg. 29,014 (May 18, 2006) (“2006
Notice”); Notice of Availability and Request for Comments on
Draft Order 5050.4B, 69 Fed. Reg. 75,374 (Dec. 16, 2004). The
“ordinary or natural meaning,” Bailey v. United States, 516 U.S.
137, 145 (1995) (internal quotation marks omitted), of the noun
“relative” is “a thing having a relation to or connection with or
necessary dependence on another thing,” MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 987 (10th ed. 1993) (“MERRIAM”).
Order 5050.4B cross-references its own paragraph 1007.e(5)(a)
for “more information” about the meaning of “prudent” in
section 47106(c)(1)(B), and that paragraph lists seven factors for
the FAA to weigh in considering “[a]irport actions resulting in
use of section 4(f)-protected resources.” The preamble to Order
5050.4B states, moreover, that the “FAA . . . believes [this
definition of “prudent”] is appropriate for FAA actions under 49
U.S.C. § 47106(c)(1)(B) as well as Section 4(f).” 2006 Notice,
71 Fed. Reg. at 29,019. Viewed contextually, the “necessary
dependence” meaning of the word “relative” applies.

Ordinarily, were deference due to the FAA’s interpretation,
whether under Chevron U.S.A. v. Natural Res. Def. Council, 467
U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134
(1944), see Maj. Op. at 8, the FAA has already spoken by
 6

regulation on the precise question in a manner consistent with the
presumption that Congress used the word “prudent” to mean the
same thing in the AAIA and section 4(f), as interpreted by the
Supreme Court in Overton Park. See Auer v. Robbins, 519 U.S.
452, 461 (1997). Before this court, although not contesting that
the FAA is bound by its interpretation in Order 5050.4B, see
United States v. Mead Corp., 533 U.S. 218 (2001), counsel
representing the FAA states that FAA Order 5050.4B provides
that the definition of “prudent” in section 4(f) is “useful” to
defining the term in section 47106(c)(1)(B) but “does not suggest
that ‘prudent’ has the same meaning under both statutes.”
Respd.’s Br. 42. This means, counsel tells the court, that
additional factors may be considered in the
section 47106(c)(1)(B) “prudent” analysis that may not be
considered in the section 4(f) analysis. See id. at 42-44. Counsel
further maintains that this litigating interpretation merits
deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944).
See Respd.’s Br. 42. Yet the Order, in fact, uses the phrase “very
useful”(emphasis added) and in the context of the surrounding
language, and considering also the unequivocal statement in the
preamble, the phrase “very useful” in Order 5050.4B simply
explains that the definition contained in paragraph 1007.e(5)(a)
applies to section 47106(c)(1)(B) notwithstanding that
paragraph’s references to section 4(f). Nothing in the “very
useful” phrase indicates that the meaning of “prudent” differs
under the two statutes, and the FAA has not identified a separate
list of factors for consideration under the AAIA. Under the
circumstances, unlike in Auer, 519 U.S. at 462, there is “reason
to suspect” FAA’s post hoc litigating position does not reflect the
agency’s “fair and considered judgment on the matter in
question” and no deference is due to that position, even if, as the
majority states, Maj. Op. at 9, counsel has taken the same
position in another case while Order 5050.4B remains
unchanged. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 50 (1983).
 7

In construing “prudent” to have the same meaning in both
statutes, the FAA’s interpretation is also consistent with our
precedent. In Citizens Against Burlington, Inc. v. Busey, 938
F.2d 190 (D.C. Cir. 1991), the court addressed a challenge to a
proposed airport expansion under both section 4(f) and the
original version of what is now section 47106(c)(1)(B). In
holding that the FAA violated neither statute when it rejected the
proposed alternative as imprudent, the court observed that some
of the AAIA “parrots” (i.e., “repeat[s] by rote,” MERRIAM at
846) some of section 4(f), specifically, the latter statute’s
“feasible and prudent” requirement. 938 F.2d at 205.
Responding to the petitioners’ theory that anytime the FAA
violates section 4(f)(1) it automatically violates the AAIA, the
court stated that “[a]n agency that fails to choose a ‘prudent and
feasible alternative’” under the AAIA “obviously fails at the
same time to choose a ‘feasible and prudent alternative’” under
section 4(f). Id. Although the court had no occasion to hold that
an imprudent alternative under the AAIA is necessarily also
imprudent under section 4(f), see Maj. Op. at 7-8, there is
nothing in the opinion to suggest that the word should be read
differently in the two statutes and everything to suggest that the
court understood the meaning of “prudent” in each to be the
same. See 938 F.2d at 205. The petitioners there argued that any
time the FAA violates section 4(f), it also violates the AAIA.
See id. The court stated “we agree in principle with this aspect
of [petitioner’s] theory,” and went on to hold that “we have little
trouble deciding under [the AAIA] that while [the rejected
alternative] may have been a feasible alternative to [the
alternative chosen by the FAA], it was also an imprudent one.”
Id.

Nonetheless, the majority concludes that petitioners’
“seemingly common sense point that a word’s meaning should
be the same across comparable contexts,” Maj. Op. at 7, much
less the FAA’s regulatory interpretation in Order 5050.4B, must
 8

yield to FAA counsel’s “distinctly laxer,” Maj. Op. at 8,
interpretation of the meaning of the word “prudent” in the AAIA
because of some contextual differences between
section 47106(c)(1)(B) and section 4(f). Those differences,
according to the majority, include that section 4(f) protects a
narrower set of resources and prohibits “use” rather than
“significant adverse effect[s].” Maj. Op. at 8; see Respd.’s Br.
44. These differences, which are not mentioned by the FAA in
either the Record of Decision or Order 5050.4B, merely define
the precise contours of each statute’s application; they do not
suggest that the contexts are so dissimilar that the ordinary
presumption does not apply. After all, two statutes need not be
so similar as to be redundant in order for Congress to have
intended identical terms to be read identically. In Smith v. City
of Jackson, Miss., 544 U.S. 228, the Supreme Court held that
Congress meant in the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. (“ADEA”), to create a cause of action for
disparate impact because the language prohibiting discriminatory
conduct tracked the language of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. 544 U.S. at 233. The Court
reached this conclusion although the ADEA prohibits age
discrimination while Title VII prohibits discrimination on the
basis of race, color, religion, sex, or national origin, and thus, the
objects of those statutes do not overlap at all. In contrast, section
4(f) and section 47106(c)(1)(B) have considerable overlap, as
many of the resources protected by section 4(f) are also protected
by section 47106(c)(1)(B), and an airport expansion under the
AAIA is, by definition, a transportation project under section
4(f). Additionally, the Supreme Court in Smith applied the
presumption that the statutes’ “parallel” language had the same
meaning even though the ADEA “contains [additional] language
that significantly narrows its coverage” relative to Title VII. 544
U.S. at 233. The same analysis is reflected in Order 5050.4B’s
conclusion as stated in its preamble, but the majority ignores it.
 9

The majority (and counsel for the FAA) also relies on NRDC
v. FAA, 564 F.3d 549 (2d Cir. 2009), which suggested that
“prudent” should be read differently in the two statutes because
section 4(f) safeguards only publicly owned lands, which require
more protection than the public or private natural resources
protected by section 47106(c)(1)(B). Maj. Op. at 9-10. There
are several reasons to be wary of following the analysis in NRDC
v. FAA. To begin with, the distinction drawn in NRDC v. FAA
between the public lands covered by section 4(f) and the public
and private lands covered by the AAIA is unpersuasive. There
the court suggested that greater scrutiny is required of proposed
appropriations of public lands because economic considerations
and private interests will often support the use of public over
private lands whenever possible. 564 F.3d at 566. Perhaps so,
but this public/private distinction cannot be divined from
Overton Park and it is belied by the facts in NRDC v. FAA itself,
which involved privately owned wetlands that the
owner/developer, anticipating the economic boom that would
accompany airport expansion, offered to donate for airport
construction purposes. Moreover, in NRDC v. FAA, the court
referred to “broader” when it meant “narrower,” see Maj. Op. at
9 n.1; it incorrectly stated that section 4(f) applies only to
highway projects and not to airport expansions, id. at 566; and it
never addressed the text of Order 5050.4B, much less its
preamble stating that the FAA concluded the word “prudent”
should be construed the same way in the airport expansion
context.

Even assuming Congress sought through enacting the AAIA
to “boost[] airport development unusually aggressively,” Maj.
Op. at 10, Congress imported into the statute a limitation on the
authority of the Secretary of Transportation that was well known
and judicially understood in the context of the environmental
impacts of transportation projects. To conclude on the basis of
the overarching statutory purpose that a limitation to the
 10

effectuation of that purpose should be read narrowly, see id.,
assumes the conclusion about the meaning of “prudent” in the
AAIA. Moreover, notwithstanding the majority’s conclusion
about the AAIA’s broad purpose, Congress also provided in the
statute that another of its objectives is that “airport development
projects authorized pursuant to this title shall provide for the
protection and enhancement of the natural resources and the
quality of the environment of the Nation.” AAIA, Pub. L. No.
97-248 § 509(b)(5), 96 Stat. 324, 684 (1982). Nearly identical
language immediately precedes section 4(f) in the DOT Act. See
49 U.S.C. § 303(a).

For these reasons, the majority’s effort to identify a statutory
gap that may be filled by the “not new” post hoc position of
counsel for the FAA is flawed and there is no basis for deferring
to counsel’s “laxer” interpretation. Whatever ambiguity the
word “prudent” may have has been resolved by the FAA’s Order
5050.4B, which reflects a reading that the word in section
47106(c)(1)(B) as it is defined in section 4(f) and Overton Park
is most consistent with the statutes’ shared objectives.

II.

As this court has observed, “the case law uniformly holds
that an alternative is imprudent under section 4(f)(1) if it does
not meet the transportation needs of a project.” Citizens Against
Burlington, 938 F.2d at 203 (emphasis in original) (citing cases).
The FAA “examined in detail the relative flaws” of Alternative
C1 in terms of meeting the goals of the proposal under review,
to expand the Fort-Lauderdale-Hollywood International Airport
in order to reduce delays and expand capacity. Id. at 204.
Therefore, consistent with the FAA’s conclusion that “prudent”
is to be read the same way in the AAIA and in section 4(f), see
Order 5050.4B, ¶ 1007.e(4)(b), the FAA was not arbitrary and
capricious in deeming Alternative C1 favored by petitioners to
 11

be imprudent due to its failure to meet operational and safety
needs of the project. Petitioners’ objections are unpersuasive for
the reasons stated by the majority. See Maj. Op. at 12-13.

With regard to their contention that Brooks Park is a section
4(f) resource, petitioners introduced no evidence in this
proceeding that the area had been used as a qualifying park,
“unless the FAA was obliged to regard any airplane-watching
site with picnic tables as a ‘park of local significance,’” Maj. Op.
at 15, which they do not claim. Rather, petitioners assert that the
area was a neighborhood park for many years, see Petrs.’ Br. 46-
47, which, in the face of a bare administrative record, is
insufficient, see, e.g., Stewart Park & Reserve Coal., Inc. v.
Slater, 352 F.3d 545, 557 (2d Cir. 2003). Their efforts to
supplement the record in this court with documents from
separate, prior environmental impact assessments related to an
earlier airport expansion proposal fail for the reasons stated by
the majority. See Maj. Op. at 16-17. Hence, as petitioners failed
to show that Brooks Park was ever used as a section 4(f)
resource, the court has no occasion to address petitioners’
objection that Broward County’s purchase and rezoning of
Brooks Park was the type of end-around that FAA Order
1050.1E, which provides that section 4(f) “shall be considered to
apply” in circumstances “[w]here the use of a property is
changed . . . from a section 4(f) type use to a transportation use
in anticipation of a request for FAA approval,” is designed to
prevent. Order 1050.1E, App’x A, ¶ 6.2d; see RECORD OF
DECISION at A.9-1; INTERLOCAL AGREEMENT BETWEEN
BROWARD COUNTY AND CITY OF DANIA PERTAINING TO
EXPANSION OF JURISDICTION OF THE FORT LAUDERDALE-
HOLLYWOOD INTERNATIONAL AIRPORT 2-3 (1995).

Accordingly, I dissent in part, concur in part, and concur in
the judgment.