United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2008 Decided April 18, 2008
No. 06-1377
CLARK COUNTY, NEVADA,
A POLITICAL SUBDIVISION OF THE STATE OF NEVADA,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
On Petition for Review of a Decision of the
Federal Aviation Administration
Lori Potter argued the cause for petitioner. On the briefs
were John E. Putnam, Peter J. Kirsch, Catherine M. van
Heuven, and M. Brooke McKinley. Daniel S. Reimer entered
an appearance.
Stephanie R. Marcus, Attorney, U.S. Department of
Justice, argued the cause for respondent. With her on the
brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General, and Thomas M. Bondy, Attorney. Robert S.
Greenspan, Attorney, entered an appearance.
Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: For several years, Clark
County, Nevada, has been working with the Federal Aviation
Administration on plans for a new airport southwest of Las
Vegas. As that process unfolded, an alternative-energy
company notified the FAA that it wanted to build a wind farm
of 83 electricity-generating turbines on a mountain a few
miles from the planned airport site. The FAA concluded that
the 400-foot-tall turbines would not obstruct the airspace near
the airport site or pose a hazard by interfering with radar
systems at the new airport. Clark County disagrees with the
FAA’s assessments and has petitioned for judicial review of
the FAA’s determinations, arguing that the agency failed to
provide a reasoned explanation for purposes of the
Administrative Procedure Act. We agree with Clark County.
We therefore grant its petition for review, vacate the FAA’s
determinations, and remand to the FAA for further
explanation.
I
Clark County, Nevada, includes Las Vegas and
surrounding communities and is one of the fastest-growing
areas in the United States. The county’s population recently
topped 2 million residents – double its population in 1994 and
triple its population in 1981. The county has grown so rapidly
in large part because of Las Vegas’s popularity as a vacation
destination. Perhaps attracted by the perception that what
happens in Vegas stays in Vegas, more than 39 million people
visited the city in 2007.
The population and tourism booms are straining Clark
County’s infrastructure, including McCarran International
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Airport, the county’s only commercial airport. McCarran
served a record 47.7 million passengers in 2007 and is
projected to exceed its capacity of 53 million passengers
within the next few years.
In 2000, recognizing the need for additional airport
capacity in the Las Vegas region, Congress passed and
President Clinton signed the Ivanpah Valley Airport Public
Lands Transfer Act. Pub L. No. 106-362, 114 Stat. 1404
(2000). This law authorized the sale of roughly 6,000 acres of
federal land to Clark County for a new commercial airport 30
miles southwest of Las Vegas, near the Nevada-California
border. Since the sale closed in 2004, Clark County has filed
an airport layout plan with the FAA showing the proposed
runway and radar-facility locations and the planned flight
procedures. In cooperation with the county, the FAA and the
federal Bureau of Land Management are preparing an
environmental impact statement for the airport. See Notice of
Intent to Prepare an Environmental Impact Statement for the
Southern Nevada Supplemental Airport, 71 Fed. Reg. 52,367
(Sept. 5, 2006). The county predicts that the new airport will
open by 2017.
As the county worked its way through the airport-
planning process, an alternative-energy company proposed to
build an electricity-generating wind farm on federal land atop
Table Mountain, which overlooks the Ivanpah Valley and is
about 10 miles from the airport site. The farm would include
83 wind turbines, 80 of which would reach almost 400 feet
into the air.
Under federal regulations governing airspace, the
company notified the FAA of the proposed wind-farm
construction. See 14 C.F.R. § 77.13. The FAA initiated
aeronautical studies to assess whether the turbines would
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“result in an obstruction of the navigable airspace or an
interference with air navigation facilities and equipment or the
navigable airspace.” 49 U.S.C. § 44718(b)(1); see also
§ 44718(b)(1)(C)-(D) (requiring FAA to study impact of
proposed construction on “existing” and “planned” airports).
The FAA conducted the aeronautical studies under its Part 77
regulations governing “objects affecting navigable airspace”
and its procedural handbook for Part 77 studies. See
Procedures for Handling Airspace Matters, FAA Order
7400.2F (Feb. 16, 2006) (“Handbook”). The FAA sought to
determine whether any turbine would exceed the obstruction
standards in Subpart C of its Part 77 regulations or whether
any turbine would otherwise pose a hazard to air navigation.
The FAA ultimately issued 83 “Does Not Exceed”
determinations – one for each turbine. It concluded that each
turbine “does not exceed [the Subpart C] obstruction
standards, does not have substantial adverse physical or
electromagnetic interference effect upon navigable airspace or
air navigation facilities, and would not be a hazard to air
navigation.” Handbook ¶ 7-1-3(a); 14 C.F.R. § 77.19(c)(1)
(aeronautical study results in determination that proposed
construction “[w]ould not exceed any standard of subpart C
and would not be a hazard to air navigation”); see also, e.g.,
Determination of No Hazard to Air Navigation, No. 2006-
AWP-2865-OE (Sept. 17, 2006), Joint Appendix (“J.A.”) 97
(issuing “Does Not Exceed” determination for one of the
turbines after an “aeronautical study revealed that the
structure does not exceed obstruction standards and would not
be a hazard to air navigation”).
Clark County has petitioned for review of the FAA’s
“Does Not Exceed” determinations, which are reviewable
orders under 49 U.S.C. § 46110(a). The county argues that
the FAA’s determinations violated the arbitrary-and-
capricious standard of the Administrative Procedure Act. In
5
response, the FAA first contends that Clark County’s petition
is not justiciable because the county lacks standing and its
petition is not ripe. If standing and ripeness requirements are
satisfied, the FAA argues that its “Does Not Exceed”
determinations are reasonable and reasonably explained.
II
We first consider the FAA’s contentions that Clark
County lacks standing to challenge the determinations and
that the county’s petition is not ripe for review.
The “irreducible constitutional minimum of standing”
requires a party to show injury in fact caused by the
defendants’ conduct and redressable by judicial relief. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also
Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002) (party
whose “standing is not self-evident . . . must supplement the
record to the extent necessary to explain and substantiate its
entitlement to judicial review”). Clark County has
sufficiently demonstrated injury in fact: It has submitted
affidavits, which the FAA does not persuasively rebut, that
the proposed wind turbines would pose a hazard to planes
flying near its planned airport and that the turbines would
interfere with radar units at the airport. Cf. City of Dania
Beach v. FAA, 485 F.3d 1181, 1186-87 (D.C. Cir. 2007). For
standing purposes, the FAA’s determinations cause that injury
because they allow construction of the wind turbines.
Conversely, a hazard determination by the FAA would
preclude construction. See CLARK COUNTY, NEV., CODE
§ 30.56.070(c); see also Renal Physicians Ass’n v. Dep’t of
Health & Human Servs., 489 F.3d 1267, 1275 (D.C. Cir.
2007) (“[S]tanding exists where the challenged government
action authorized conduct that would otherwise have been
illegal.”); BFI Waste Sys. of N. Am., Inc. v. FAA, 293 F.3d
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527, 531-32 (D.C. Cir. 2002). The injury is redressable under
standing precedents because, on remand, the FAA could issue
hazard determinations that would prevent construction of the
turbines. See Am.’s Cmty. Bankers v. FDIC, 200 F.3d 822,
828-29 (D.C. Cir. 2000); Tel. & Data Sys., Inc. v. FCC, 19
F.3d 42, 47 (D.C. Cir. 1994); see also Lujan, 504 U.S. at 572
n.7 (“The person who has been accorded a procedural right to
protect his concrete interests can assert that right without
meeting all the normal standards for redressability and
immediacy.”). In sum, the FAA’s standing argument is
meritless – akin to arguing that homeowners have no standing
to object to federal approval of a toxic dump or dam being
built in their neighborhood. See Lujan, 504 U.S. at 572 n.7.
In addition to contesting Clark County’s standing, the
FAA argues that the county’s petition is not ripe for review.
We disagree. To be sure, the environmental impact statement
for the airport is not yet complete, and the county may change
the location of the radar units. And it is true that the FAA’s
“Does Not Exceed” determinations are subject to periodic
review and renewal (and have in fact been renewed). But
Clark County’s challenge to the initial determinations is
nonetheless fit for review at this time. See Nat’l Ass’n of
Home Builders v. U.S. Army Corps of Eng’rs, 440 F.3d 459,
463 (D.C. Cir. 2006). The initial “Does Not Exceed”
determinations represent the FAA’s only decision on the
merits of whether the turbines exceed obstruction standards or
otherwise pose a hazard to navigation. And as the FAA’s
counsel candidly acknowledged at oral argument, a later
challenge to any of the FAA’s renewal decisions likely could
not include objections to the merits of the FAA’s “Does Not
Exceed” determinations. The FAA’s now-is-too-early, later-
is-too-late argument exposes the hole in its ripeness
submission and demonstrates why this case is fit for judicial
resolution.
7
The FAA also says that the turbines might never be built
because the federal Bureau of Land Management has yet to
approve the wind-farm project. That’s true but irrelevant.
The county’s petition is still ripe because this is the only time
the county may challenge the merits of the FAA’s “Does Not
Exceed” determinations, and the FAA could stop the wind-
farm project entirely. Cf. Khodara Envt’l, Inc. v. Blakey, 376
F.3d 187, 195 (3d Cir. 2004) (Alito, J.) (allowing party to
challenge one of two “independent” regulatory obstacles).
III
We proceed to the merits of Clark County’s petition.
In Administrative Procedure Act parlance, the FAA did
not conduct formal, on-the-record hearings; rather, its “Does
Not Exceed” determinations were the product of informal
adjudication. We review these informal adjudicatory
determinations under the APA to determine whether they are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A); see also
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633,
653-56 (1990).
“‘The scope of review under the “arbitrary and
capricious” standard is narrow and a court is not to substitute
its judgment for that of the agency.’” Mount Royal Joint
Venture v. Kempthorne, 477 F.3d 745, 753 (D.C. Cir. 2007)
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)). We must uphold the FAA’s
determinations so long as the agency “engaged in reasoned
decisionmaking and its decision is adequately explained and
supported by the record.” N.Y. Cross Harbor R.R. v. STB,
374 F.3d 1177, 1181 (D.C. Cir. 2004) (internal quotation
marks omitted); see also D&F Afonso Realty Trust v. Garvey,
216 F.3d 1191, 1195 (D.C. Cir. 2000).
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Here, each of the FAA’s determinations stated that the
FAA had performed an aeronautical study on a particular
turbine demonstrating “that the structure does not exceed
obstruction standards and would not be a hazard to air
navigation.” Determination of No Hazard to Air Navigation,
No. 2006-AWP-2865-OE (Sept. 17, 2006), J.A. 97. Although
such a brief explanation may suffice in typical informal
agency adjudications, the FAA’s failure to further explain its
conclusions here is problematic because the only evidence in
the record available to this Court actually supports the
opposite conclusions – that the turbines both would exceed
the FAA’s obstruction standards and would interfere with
radar systems at the new airport.
As to obstruction standards, the record evidence contains
“40:1 Reports” prepared by the FAA. The agency does not
dispute that the reports measure whether a proposed
construction project would penetrate an imaginary 40:1 slope
climbing out and up from the end of an airport runway. In
some cases, as the FAA’s procedural Handbook indicates, tall
objects that penetrate the 40:1 slope exceed the Part 77
obstruction standards and pose a hazard to aircraft. See 14
C.F.R. § 77.23(a)(3); Handbook ¶ 6-3-9(e)(4) (requiring FAA
to issue Notice of Presumed Hazard when structure penetrates
40:1 departure slope by more than 35 feet). The 40:1 Reports
in the record here indicate that the wind turbines would
significantly penetrate the 40:1 slope for runways at the
Ivanpah airport (and at the nearby Henderson airport, which
serves general-aviation traffic). The only contrary indications
in the record are two statements by the FAA official who
ultimately issued the “Does Not Exceed” determinations; he
asserted that there “are no Part 77 penetrations – clear as a
bell” and that there “are NO Part 77 penetrations within this
project area.” J.A. 27, 276. Those conclusory statements do
not address the seemingly contrary findings in the 40:1
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Reports. Nor do they offer any explanation for the FAA’s
ultimate conclusion that the turbines would not exceed its Part
77 obstruction standards. In short, the FAA’s determinations
do not satisfy the APA’s reasoned decisionmaking
requirement with respect to the agency’s Part 77 obstruction
standards.
The record evidence also suggests that the turbines would
interfere with radar systems at the Ivanpah airport. Clark
County submitted an aerospace consultant’s study to the
FAA; the study concluded that the turbines “may impact
aviation safety.” ASRC Aerospace Corp. Radar Impact
Analysis, at 4 (Apr. 21, 2006), J.A. 5. Among other things,
the study stated that the wind turbines “will likely show up on
the display of air traffic control” radar at the Ivanpah airport.
Id. at 3, J.A. 4. Because each wind turbine has a radar
“signature approximately that of a jumbo jet,” the wind farm
“could likely appear as a fleet of jumbo jets” on the radar
screen and confuse air traffic controllers. Id. In addition, the
turbines could intermittently disappear from the screen and
reappear a few seconds later – hampering “the ability of the
air traffic controller to successfully control aircraft in the
area.” Id. Because of potential radar issues, two offices
within the FAA raised concerns to the FAA’s Obstruction
Evaluation Service, which was the office conducting the
aeronautical study. The Airway Facilities Division objected
to the turbines due to “the proximity of proposed sites to
proposed air traffic radar facilities” at the Ivanpah airport.
J.A. 90. The Flight Procedures Office similarly stated that the
turbines “could very possibly impact some air navigation
facilities” for the Ivanpah airport, “such as RADAR or other”
navigational aids. Id. In a subsequent e-mail to the
Obstruction Evaluation Service, an employee in the Flight
Procedures Office elaborated: “History has borne out the fact
that wind turbines can impact RADAR and other”
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navigational aids, and the wind turbine project needs “to be
brought to the attention of” the FAA’s Airports Division
(which was in charge of the Ivanpah airport project) as well as
Clark County. J.A. 23.
In an e-mail to a colleague at the FAA, the official who
ultimately issued the “Does Not Exceed” determinations
dismissed the radar study and the internal staff objections as
“a whole lot of IFs, Might’s and Maybe’s.” J.A. 27. He
acknowledged that the FAA could have circulated the
proposed determinations to interested parties – including
Clark County – for comment, but he stated that notice and
comment would have yielded only “a lot of responses citing
the if’s, might’s and maybe’s.” Id. The official stated that he
therefore was “inclined to let the whole project go,” id.,
notwithstanding the agency’s statutory duty to consider the
impact of proposed structures on “planned” airports. 49
U.S.C. § 44718(b)(1)(D).
In light of the record evidence and the lack of any
coherent explanation countering the concerns about radar
interference, the FAA’s determinations do not satisfy the
reasoned decisionmaking requirement for this reason as well.1
1
Seeking to prop up the agency’s determinations, the FAA’s
counsel capably offered several new justifications to this Court.
But we find nothing in the agency’s determinations that supports
counsel’s post hoc explanations. See SEC v. Chenery Corp., 332
U.S. 194, 196 (1947) (“[A] reviewing court . . . must judge the
propriety of [agency] action solely by the grounds invoked by the
agency.”); PanAmSat Corp. v. FCC, 198 F.3d 890, 897 (D.C. Cir.
1999) (“We do not ordinarily consider agency reasoning that
appears nowhere in the [agency’s] order.”) (internal quotation
marks omitted and alteration in original).
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***
In sum, the FAA failed to reasonably explain why the
turbines would not exceed its Part 77 obstruction standards or
cause hazardous interference with radar systems at the
Ivanpah airport. We therefore grant Clark County’s petition
for review, vacate the 83 “Does Not Exceed” determinations,
and remand to the FAA.2
So ordered.
2
At oral argument, the FAA’s counsel argued that it would be
overly burdensome for the FAA to prepare a detailed explanation
each time a “pre-decisional” 40:1 Report indicates that construction
might exceed an obstruction standard but a “more detailed
calculation” leads the agency to conclude otherwise. Oral Arg. Tr.
at 29. But our narrow, fact-bound holding today will not require
more explanation in most such cases. Instead, if the FAA performs
a “more detailed calculation” that bears on its decision, the agency
may simply include that calculation in the record. If the calculation
in fact supports the agency’s ultimate conclusion, no further
explanation may be needed in many cases. But here, the only
record evidence actually undermines the agency’s ultimate
conclusions.