United States Court of Appeals
For the First Circuit
No. 00-2340
SAVE OUR HERITAGE, INC., ET AL.,
Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent,
and
SHUTTLE AMERICA CORPORATION and MASSACHUSETTS PORT AUTHORITY,
Intervenors.
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL AVIATION ADMINISTRATION
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Andrea C. Ferster for petitioners.
Elizabeth S. Merritt, Associate General Counsel, Paul W.
Edmondson, General Counsel, Anita C. Canovas, Assistant General
Counsel, National Trust for Historic Preservation, Frances
Gould, Special Assistant Attorney General for the Commonwealth
of Massachusetts, Massachusetts Historical Commission, Neil T.
Proto, Patricia A. Deem and Verner Liipfert Bernhard, McPherson
and Hand on brief for National Trust for Historic Preservation,
Commonwealth of Massachusetts, Honorable Congressman Marty
Meehan, Historic Concord, Inc., and Freedom's Way Heritage
Association, Amici Curiae.
M. Alice Thurston, Environment and Natural Resources
Division, Department of Justice, with whom John C. Cruden,
Acting Assistant Attorney General, James C. Kilbourne,
Environment and Natural Resources Division, Department of
Justice, and Daphne A. Fuller, Manager, Environmental Law
Branch, Federal Aviation Administration, were on brief for
respondent.
Roscoe Trimmier, Jr. with whom Richard J. Lettieri, M.
Concetta Burton, Amy E. Serino, Ropes & Gray, David S. Mackey,
Ira
M. Wallach and Michael P. Sady were on brief for intervenor
Massachusetts Port Authority.
H. Bissell Carey, III, Clive D. Martin and Robinson & Cole
LLP on brief for intervenor Shuttle America Corporation.
October 23, 2001
BOUDIN, Chief Judge. The Federal Aviation
Administration ("FAA") authorized Shuttle America Airlines
("Shuttle America") to provide scheduled passenger service to
New York's LaGuardia Airport ("LaGuardia") from Hanscom Field
("Hanscom"), a general aviation airport that lies 15 miles
northwest of Boston abutting the towns of Bedford, Concord,
Lexington, and Lincoln. The petitioners--two preservationist
organizations, three of the four towns (Bedford is an
intervenor), and stewards of several nearby historic sites--seek
review of the FAA decision on the ground that the agency did not
adequately consider the adverse effect of the additional Shuttle
America flights on historic and natural resources near Hanscom.
Hanscom has been a major aviation facility since 1940,
when the Commonwealth of Massachusetts first acquired the site
to accommodate the U.S. Army Air Corps. In 1973 the
Massachusetts Port Authority ("MassPort") converted a portion of
the site into a general aviation facility serving corporate
aviation, flight schools, air charter operations, light cargo,
and private business and recreational flights. (The U.S. Air
Force uses the remainder as Hanscom Air Force Base.) In 1995,
there were about 95,000 general aviation and military flights
(defined as a departure and an arrival) at Hanscom.
-3-
In recent years, MassPort and the FAA have expanded
commercial passenger service at Hanscom, seeking to lessen
congestion at Boston's Logan International Airport. These steps
have concerned community groups who fear that the increased
noise, air pollution, and surface traffic from the additional
flights will harm the natural and historic resources near
Hanscom. These sites include Minute Man National Historic Park,
Walden Pond, and the homes of eminent American authors such as
Ralph Waldo Emerson and Louisa May Alcott. The main access road
to Hanscom is a part of Route 2A, which runs through the heart
of Minute Man National Park.
In July 1999, MassPort backed a plan to let Shuttle
America--a commuter airline then operating out of several
airports on the East Coast--provide scheduled passenger service
at Hanscom. To this end, Shuttle America asked the FAA to add
Hanscom to the list of airport destinations in its operating
specifications. MassPort asked the FAA to upgrade Hanscom's
operating certificate to a "full Part 139 certificate," which
allows use of planes with greater than 30 seats. See generally
14 C.F.R. Part 139 (2000).
The FAA granted both requests in September 1999, and
Shuttle America immediately commenced passenger service out of
Hanscom, with four daily round-trip flights. The FAA determined
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that it did not need to perform an environmental analysis for
the two approvals because they were categorically excluded from
review under the National Environmental Policy Act of 1969
("NEPA"), 42 U.S.C. § 4321 et seq. (1994). It also concluded
that the categorical exclusion under NEPA obviated the need for
consultation under Section 106 of the National Historic
Preservation Act of 1966 ("NHPA"), 16 U.S.C. § 470f (1994).
The Advisory Council on Historic Preservation, which
is authorized to enforce NHPA, see 16 U.S.C. § 470s, questioned
the FAA's reading of NHPA, and petitioner Save Our Heritage
unsuccessfully sought reconsideration and rehearing of both the
Part 139 certification and the addition of Hanscom to Shuttle
America's operating specifications. However, no party sought
timely judicial review of either of the FAA's decisions; such
review is now time-barred. 49 U.S.C. § 46110(a) (1994).1
In May 2000, Shuttle America applied for the operating
specifications amendment at issue in this case--an amendment to
add LaGuardia to its list of approved airport destinations. It
proposed to make seven round-trip flights between Hanscom and
LaGuardia, with the possibility of eventually expanding the
1The four Hanscom-area towns unsuccessfully sued in
Massachusetts state court to enjoin MassPort's application on
the ground that it violated promises made in MassPort's 1978
Hanscom Master Plan. Hanscom Area Towns Comm. v. Mass. Port
Auth., CIV No. 99-04461-F (Mass. Sup. Ct. 1999).
-5-
service to ten flights a day. The FAA expressed doubt that NHPA
consultation was required, but in light of the Advisory
Council's earlier concerns, it decided it would be "prudent" to
consult provisionally with the Massachusetts Historical
Commission, which the Commonwealth had designated as its NHPA
consulting agency. After conducting an environmental analysis,
the FAA proposed a finding that the additional flights to
LaGuardia would have no potential adverse effect on historic
properties.
Petitioners Save Our Heritage and the Hanscom-area
towns sent the FAA detailed criticisms of its proposed finding,
and the Massachusetts Historical Commission also refused to
concur. After providing additional documentation in an
unsuccessful effort to persuade the Commission, the FAA
terminated the consultation and, on October 27, 2000, issued the
amendment ("the LaGuardia amendment"). Shuttle America began
commercial service from Hanscom to LaGuardia with five round-
trip flights per day, later reaching a peak of seven daily
round-trip flights in January 2001.2
2
Since that time, Shuttle America has entered into Chapter
11 reorganization proceedings, but it continues to maintain one
LaGuardia flight daily and has stated that it hopes eventually
to reinstate its previous level of service.
-6-
On direct review, 49 U.S.C. § 46110(a), petitioners now
ask us to set aside and enjoin the LaGuardia amendment on the
grounds the FAA decision violated NEPA, NHPA, and Section 4(f)
of the Department of Transportation Act of 1966, 49 U.S.C. §
303(c) (1994) (originally codified at 49 U.S.C. § 1653(f)
(1970)). The statutory requirements are described below. The
gist of the FAA's position is that its "effects" determination--
that the addition of seven to ten flights a day would have no
significant environmental impact--exempted the amendment from or
otherwise satisfied these requirements.
At the threshold, the FAA and supporting intervenors
raise two objections to our consideration of the case. The
first is that the petitioners lack Article III standing, and the
second is that the petitions are effectively out-of-time attacks
on prior agency orders. Because the first challenge is
constitutional, we start with it.
The basic requirements for Article III standing are
that the petitioner is someone who has suffered or is threatened
by injury in fact to a cognizable interest, that the injury is
causally connected to the defendant's action, and that it can be
abated by a remedy the court is competent to give. 3 What
3
Cotter v. Mass. Ass'n of Minority Law Enforcement Officers,
219 F.3d 31, 33 (1st Cir. 2000), cert. denied, 531 U.S. 1072
(2001); Town of Norwood, Mass. v. Fed. Energy Reg. Comm'n, 202
-7-
constitutes a "cognizable interest" can present vexing problems,
see Chemerinsky, Federal Jurisdiction § 2.3, at 68-74 (3d ed.
1999), but here the FAA and supporting intervenors concede that
aesthetic and environmental injury are cognizable, see Sierra
Club v. Morton, 405 U.S. 727, 734 (1972).
Rather, the objections to standing are threefold. The
first, and least persuasive, is the suggestion that even if some
individuals or organizations are adversely affected by the
increased flights, none of the petitioners or identified members
of petitioner organizations have shown that they are among those
injured. Admittedly, a specified petitioner or identified
member must be within the affected group. See Friends of the
Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 181-84
(2000).
Here, the petitioners comprise nonprofit environmental
or preservationist associations such as Save Our Heritage; the
towns located near Hanscom; and at least two petitioners that
own nearby historic sites: the Walden Woods Project, which owns
part of the Walden Woods site and operates a Thoreau research
and educational facility on it; and the Louisa May Alcott
Memorial Association, which manages the writer's home. It is
sufficient for the case to proceed if at least one petitioner
F.3d 392, 405-06 (1st Cir.), cert. denied, 531 U.S. 818 (2000).
-8-
has standing, Wash. Legal Found. v. Mass. Bar Found., 993 F.2d
962, 971-72 (1st Cir. 1993).
There is little reason to doubt that the two nonprofit
landowners (Walden Woods Project and the Alcott Association)
would be affected by both noise and air pollution, given their
function and proximity to Hanscom; and it is likely, although
unnecessary to decide, that the three towns themselves would
have a direct interest, e.g., in traffic congestion.4 We need
not resolve whether the petitioner associations have established
standing based on the rather sparse allegations of injury to the
interests of their individual members. See Int'l Union, United
Auto., Aero. & Agric. Implement Workers of Am. v. Brock, 477
U.S. 274, 281-82 (1986).
Next, the FAA says that there is no actual or
threatened adverse effect on any petitioner because, according
to the FAA's findings, the small number of additional flights
will have no significant environmental impact. At first blush,
this appears to be a question of the merits rather than one of
standing; the petitioners certainly allege substantial effects
and challenge both the FAA's contrary findings and the
procedures used to reach them.
4
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7
(1992); Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir.
1995), cert. denied, 516 U.S. 1042 (1996).
-9-
We need not rule out the possibility of cases where the
claim of impact is so specious or patently implausible that a
threshold standing objection might be appropriate. See, e.g.,
Town of Norwood, 202 F.3d at 406; Florida Audubon Soc'y v.
Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996). But beyond that, we
think that the likelihood and extent of impact are properly
addressed in connection with the merits and issues of harmless
error. Breyer & Stewart, Administrative Law and Regulatory
Policy 1107 (2d ed. 1985); cf. Bell v. Hood, 327 U.S. 678, 681-
84 (1946). A reasonable claim of minimal impact is enough for
standing even though it may not trigger agency obligations.
Third, the FAA points out that the order here under
review did not increase the number of flights that Shuttle
America is authorized to operate at Hanscom. Given prior orders
that are now beyond review, Shuttle America was and is entitled
to fly an unlimited number of flights to its other, already-
approved airports regardless of the outcome of this case. Thus,
says the FAA, the order permitting flights to LaGuardia cannot
be the cause of the alleged injury to petitioners, because it
could fly the same number of flights even if the order were
overturned.
If the same number of flights carrying the same number
of passengers would be flown regardless of the present order,
-10-
the order would hardly be the but-for cause of any impact due to
more flights or ground traffic. But as a matter of common
sense, Shuttle America likely sought authorization for LaGuardia
because it would generate some additional traffic over and above
its existing demand. Shuttle America has not shown or offered
to show that the number of flights and the amount of car traffic
would be identical even without the authorization. Petitioners
asserting standing are not required to negate every possibility
that the outcome might be the same under highly unusual
circumstances.
The FAA makes a separate and quite different threshold
objection. It says that petitioners are making out-of-time
attacks on prior orders. It points out that the statute imposes
a 60-day limit on direct review, 49 U.S.C. § 46110(a), and, no
petition for review having been filed within that time, it
argues that it is not open to petitioners now to challenge the
orders entered in September 1999 allowing Shuttle America to
operate from Hanscom and Hanscom to handle commercial flights
using larger planes.
No doubt much of the impact on nearby natural and
historic sites, assuming the allegations are true, stems from
these earlier orders and not from the authorization to add a
limited number of flights to LaGuardia. Nevertheless, the
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petitioners are entitled to claim that an additional impact will
be felt from the now-authorized LaGuardia flights, over and
above the effects of the prior orders. Whether or not the
plausible added effects are so slight as to justify the
shortcuts taken by the FAA is a merits issue yet to be
addressed; but it does not make an attack on this alleged
incremental impact an attack on the wrong order.
Only to the extent that petitioners are actually
seeking redress from the effects of the present orders are their
petitions timely, and this limitation must be borne in mind in
considering the arguments. Admittedly, there is some language
in the briefs that appears to attack the earlier orders because
of alleged infirmities in its findings or procedures. But the
possibility that some of the petitioners' arguments are time-
barred does not defeat those actually directed to the more
recent order.
This brings us to the merits. Although the claims can
be segmented in several ways, the underlying issues basically
reduce themselves to two: whether the FAA erred substantively in
concluding that the additional flights--up to ten new round
trips a day--would have a de minimis environmental impact and
whether, regardless of impact, the FAA erred procedurally in
failing to consult further with governmental agencies concerned
-12-
with historic preservation. We begin with the "substantive"
issue which arises, in slightly different frameworks, under
three different statutes.
The most familiar is NEPA, which requires agencies to
develop a detailed environmental impact statement (an "EIS")
before undertaking "major Federal actions significantly
affecting the quality of the human environment." 42 U.S.C. §
4332(2)(C). The NEPA regulations permit agencies to conduct a
less demanding "environmental assessment" to determine whether
an EIS is required; if not, the agency must explain its
determination in a "finding of no significant impact." 40
C.F.R. §§ 1501.4 (2000).
In a regulation whose validity is not in dispute, the
FAA effectively concedes that the LaGuardia amendment qualifies
as a major federal action. Dep't of Transp., Fed. Aviation
Admin. Order 1050.1D, "Policies and Procedures for Considering
Environmental Impacts," App. 4, ¶ 3(e).5 However, a categorical
exclusion excuses the FAA from preparing either an EIS or an
environmental assessment for "operating specifications and
amendments thereto which do not significantly change the
5
FAA Order 1050.1D, which was in effect at the time of the
LaGuardia amendment, is the FAA's formal rule for implementing
all three statutes implicated in this case. 49 Fed. Reg. 28,501
(July 12, 1984). A proposed revision to the order is not
relevant here. See 64 Fed. Reg. 55,526 (Oct. 19, 1999).
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operating environment of the airport." FAA 1050.1D, App. 4, ¶
4(h).
This exclusion is itself qualified by an "extraordinary
circumstances" provision which requires at least an
environmental assessment for an otherwise excluded action if the
action is, inter alia, "likely to have an effect that is not
minimal on properties protected under Section 106 of [NHPA] or
Section 4(f) [of the Transportation Act of 1966]," or "likely to
be highly controversial on environmental grounds." FAA Order
1050.1D, ¶ 32. Petitioners rely on both of these exceptions and
argue that the additional flights have more than minimal effects
and were highly controversial.
NHPA and Section 4(f) impose different requirements
than NEPA, in the service of somewhat more focused interests;
but the requirements of concern here--with one possible
qualification regarding an obligation to consult--both turn (as
with NEPA) on whether the agency action poses a plausible
environmental threat. A brief description of the two statutes
makes this clear.
NHPA, heavily relied on by petitioners, is designed to
protect certain "historic properties," which indisputably
include sites near Hanscom. Section 106 of the statute requires
that prior to a proposed federal "undertaking," the agency must
-14-
"take into account the effect" on such properties and allow the
Advisory Council on Historic Preservation a "reasonable
opportunity to comment." 16 U.S.C. § 470f. The act thus
imposes both a substantive obligation to weigh effects in
deciding whether to authorize the federal action and a
procedural obligation to consult. See generally 36 C.F.R. Part
800 (2000).
The grant of a permit such as the LaGuardia
authorization can certainly qualify as an undertaking. 16
U.S.C. § 470w(7)(C); 36 C.F.R. § 800.16(y) (2000); see also
Sugarloaf Citizens Ass'n v. Fed. Energy Reg. Comm'n, 959 F.2d
508, 515 (4th Cir. 1992). But even if the approval of the
LaGuardia flights is assumed to be an undertaking, the
substantive obligation to "take into account the effect" of the
flights on historic properties is beside the point if there is
no potential adverse effect. See 36 C.F.R. § 800.3(a)(1)
(2000). To that extent, the question under NEPA and under NHPA
is the same: whether the FAA erred in finding that any impact of
the newly authorized flights on the surrounding area was de
minimis.
The last of the three statutes--Section 4(f) of the
Department of Transportation Act--is even more stringent where
it applies. It protects certain public parks and historic
-15-
sites, again indisputably including some near Hanscom, from any
"transportation program or project" requiring the "use" of such
park or land, unless certain quite restrictive tests have been
met. To proceed in the teeth of such a "use," the agency must
find that there is no feasible alternative to using that land
and that the program or project includes all possible planning
to minimize harm. 49 U.S.C. § 303(c).
At first blush, one might think that Section 4(f) could
have nothing to do with authorizing new flights from an
existing, physically unaltered airport; but the statute has been
read to apply not only to a physical use or occupancy of
protected parks or land but also to activities that will have a
serious indirect impact on the protected park or land--a so-
called "constructive use." 23 C.F.R. § 771.135(p)(1)(iii)
(2000); Morongo Band of Mission Indians v. Fed. Aviation Admin.,
161 F.3d 569, 583 (9th Cir. 1998). Once again, the FAA's
finding that the LaGuardia flights would have only a de minimis
effect would avoid the statute if the finding were to be upheld.
Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982).
What, then, underpins the FAA's finding of de minimis
impact in this case? The starting point is that independent of
the LaGuardia flights, Hanscom handled just under 100,000
flights in 1999, and the disputed LaGuardia flights would add,
-16-
at a maximum, ten more flights per day. The more realistic
estimate of seven flights, according to the FAA, would produce
an annual increase in Hanscom flights of about 2.5 percent--a
number that absent special circumstances would approach the
trivial.
This figure might at first appear to understate the
potential environmental effect because most existing Hanscom
flights are private aircraft, which are somewhat smaller and
carry fewer passengers than even the modest 50 passenger
turboprop planes used by Shuttle America. On the other hand,
some of the resulting ground traffic occurs in non-peak periods
where existing levels are light, and the new flights use
turboprop aircraft considerably quieter than the corporate jets
and other civilian aircraft currently using the airport. Thus,
certain effects of the additional flights may be less than the
already small percentage increase in the number of flights.
But we need not rely on such inferences because here
the FAA directly studied the three types of potential effects
from the additional flights: noise, fuel emissions, and surface
traffic from passenger travel to and from the airport. As
background for considering the effects, the FAA extrapolated
from MassPort's 1995 Generic Environmental Impact Report ("the
GEIR"), actually completed in 1997, which projected and
-17-
extensively assessed the noise, emissions, and traffic effects
of future Hanscom operations under zero, modest, and robust
growth scenarios for commercial aviation. It also relied on a
surface traffic study performed in 2000 for the adjacent Hanscom
Air Force Base.
The FAA summarized its findings in two letters (on
September 15, 2000 and October 6, 2000) to the Massachusetts
Historical Commission. The FAA first compared the actual number
of flights in 1999 (prior to the LaGuardia authorization) with
the GEIR's 1999 projections under the modest growth scenario,
and found that the GEIR's forecast was nearly exact
(approximately 99,000 flights). This both confirmed the
accuracy of the GEIR and, since the GEIR indicated no
significant environmental concerns under the modest growth
scenario, showed that pre-amendment baseline conditions were
acceptable.
The FAA then conducted its own studies, which found
that the additional LaGuardia flights would not exacerbate
environmental conditions. As to noise, the FAA found that the
additional flights would have a 1 percent or less increase in
the 65 DNL dB noise contour, which indicates noise levels
compatible with all land uses, see 14 C.F.R. Part 150, App. A,
Tbl. 1 (2001), under a test in which a 17 percent increase is
-18-
deemed significant. It also found that the 65 DNL dB noise
contour would continue to remain "almost completely on airport
property" and that most of Minute Man National Park and Walden
Woods would fall outside the 55 DNL dB line.6 It thus concluded
that the area around Hanscom "should not experience appreciable
increases in aircraft noise or overflights" as a result of the
added air traffic.
For air quality effects, the FAA used a model that took
account of emissions both from aircraft (accounting for factors
such as equipment type and including take-off, taxi, and idling
time) and surface vehicles (both passenger traffic and ground
support equipment). The FAA concluded that the potential
emissions associated with the LaGuardia flights were "below de
minimis levels" as to both of the two critical ozone-producing
pollutants and that the new flights would not undercut the
state's implementation plan for air quality.
As for surface traffic, the FAA found that none of the
flights would affect peak morning traffic and only one would
affect peak evening traffic. Estimating that each flight would
generate 70 additional vehicle trips, it concluded that, at
6These noise contour lines demarcate the land area enclosed
within a particular level of noise, measured in "day-night
average sound level" ("DNL") units, which represent the average
decibel level at a particular location over a 24-hour period.
-19-
worst, the peak evening flight would increase traffic at several
intersections on Route 2A by only about 2.65 percent, which the
FAA deemed minimal and within the GEIR projection already found
to be tolerable. As for noise increase, it found that the
increased traffic volume would raise the peak level by less than
0.3 dB, "which is not a perceptible increase." See 23 C.F.R. §
771.135(p)(5)(iii) (2001).
Remarkably, in their lengthy submissions, petitioners
make no direct attack on the aircraft noise or air pollution
conclusions. Petitioners say only that any reliance on the GEIR
was "inappropriate" because it was prepared for "unrelated"
operations and is out of date. But in fact, the FAA verified
the GEIR's accuracy by finding that the actual growth at Hanscom
as of 1999 coincided almost exactly with the GEIR "modest
growth" scenario whose environmental effects had already been
considered.
The FAA's surface traffic analysis gets more attention,
but even here their discussion is limited to a few pages and is
confined to three brands of criticism: highly general claims
that the agency's analysis is inadequate (e.g., that the FAA
should have discussed non-peak hour traffic or other
intersections); criticisms of the agency's factual assumptions
(e.g., that the FAA underestimated the number of vehicle trips
-20-
that each passenger would take); or abstract statements of
disagreement by other entities (e.g., claims by the National
Park Service that increased traffic would have "serious
detrimental impacts").
Under settled doctrine, the FAA's factual findings are
conclusive if supported by substantial evidence, 49 U.S.C. §
46110(c), and its reasoning is tested for reasonableness under
an arbitrary and capricious standard. 5 U.S.C. § 706(2)(A);
Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d
713, 718-20 (1st Cir. 1999). Further, it is up to those who
assail its findings or reasoning to identify the defects in
evidence and the faults in reasoning. Lomak Petroleum, Inc. v.
Fed. Energy Reg. Comm'n, 206 F.3d 1193, 1198 (D.C. Cir. 2000).
Where the agency is dealing with a very complicated and
technical subject, this takes a lot of work by lawyers in
culling the record and organizing the information for the
reviewing court, but it can be done. Here, the FAA's final
assessment--that a tiny percentage increase in flights would
have a de minimis effect--is presumptively inviting but, in
principle, can be overcome by a sustained and organized
rebuttal. Nothing offered by petitioners approaches such an
effort. Gauzy generalizations and pin-prick criticisms, in the
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face of specific findings and a plausible result, are not even
a start at a serious assault.
There is one obvious concern, and it is not about the
impact of this extremely modest increase in Shuttle America
flights. Conceivably, Shuttle America or another airline could
appear with a succession of new-destination proposals, each
modest in size and in impact; and yet the cumulative effect of
the FAA approvals could be major even though no one approval was
significant in itself. Either a clear plan for such successive
steps or proof that such a succession was foreseeable could
conceivably require an overall prospective assessment. 40
C.F.R. §§ 1508.4, 1508.27(b)(7) (2000).
But we are not faced with any such developed claim in
this case, nor do the known facts suggest any such thing. At
the time of Shuttle America's application, commercial service at
Hanscom had been a repeated failure, and there was no reason to
believe, at that point, that demand would dramatically increase.
Now, Shuttle America has reduced its operations and is under the
protection of the bankruptcy court. If Shuttle America or other
airlines undertake a series of proposed expansions, it will be
time enough to consider whether new and projected activities
need to be considered together.
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Petitioners say that even if the minimal effects
finding stands, the FAA's own regulations still required at
least an environmental assessment under NEPA because the
proposed action was "highly controversial on environmental
grounds." FAA Order 1050.1D ¶ 32(b). The FAA's regulations,
read literally, indicate that this test is met if the "action"
in question is "opposed on environmental grounds by a Federal,
State, or local government agency or by a substantial number of
the persons affected." FAA Order 1050.1D, ¶ 17. Although the
federal and state agencies did not formally oppose the LaGuardia
flights (instead simply asking for more study), the four
adjoining towns flatly opposed the new flights.
Citing a number of cases, the FAA argues that whether
a project is environmentally controversial does not depend on
whether vocal opponents exist but on whether reasonable
disagreement exists over the project's risk of causing
environmental harm. See, e.g., Found. for N. Am. Wild Sheep v.
U.S. Dep't of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982).
Otherwise, says the FAA, projects could be bogged down by a
"heckler's veto" despite the lack of a genuine environmental
threat. The FAA says that its own assessment here that the
project is not objectively controversial is entitled to
deference.
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The FAA's approach certainly makes sense on policy
grounds, but it is in some tension with the wording of its own
regulation, which seems to make official opposition to the
proposed "action" the trigger. By contrast, the decisions on
which the FAA relies interpret "controversial" as used in other
regulations, where the term modifies "effects"--phrasing more
helpful to the FAA's reading. See, e.g., id. (interpreting 40
C.F.R. § 1508.27(b)(4)).
We need not decide whether the latitude allowed to the
agency in interpreting its own regulations, see Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512 (1994), stretches to a
reading that may make policy sense but appears at odds with the
language. (Certainly the FAA might wish expressly to clarify
its language for future cases.) Rather, we think that even if
the "controversial" action regulation is read in petitioners'
favor, it makes no sense to remand for an environmental
assessment where, as here, the FAA has already made a reasoned
finding that the environmental effects are de minimis. In a
nutshell, the failure to make a more formal assessment was
harmless error.
The doctrine of harmless error is as much a part of
judicial review of administrative action as of appellate review
of trial court judgments. Indeed, the Administrative Procedure
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Act, 5 U.S.C. § 706, says that in reviewing agency action, the
court "shall" take due account of "the rule of prejudicial
error," i.e., whether the error caused actual prejudice. And
while many of the decisions involve harmless substantive
mistakes, no less an authority than Judge Friendly has applied
the harmless error rule to procedural error, as has the circuit
that most often reviews agency action.7
Obviously, a court must be cautious in assuming that
the result would be the same if an error, procedural or
substantive, had not occurred, and there may be some errors too
fundamental to disregard. But even in criminal cases involving
constitutional error, courts may ordinarily conclude that an
admitted and fully preserved error was "harmless beyond a
reasonable doubt." Chapman v. California, 386 U.S. 18, 24
(1967). Agency missteps too may be disregarded where it is
clear that a remand "would accomplish nothing beyond further
expense and delay." Kerner, 340 F.2d at 740.
7
Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir. 1965)
(Friendly, J.). See also Steel Mfrs. Ass'n v. EPA, 27 F.3d 642,
649 (D.C. Cir. 1994) (failure to allow comment in hazardous
waste standard case was harmless error); Illinois Commerce
Comm'n v. ICC, 848 F.2d 1246, 1257 (D.C. Cir. 1988) (order to
prepare an environmental assessment or an EIS would be "a
meaningless gesture"); Gerber v. Babbitt, 146 F. Supp. 2d 1, 4-5
(D.D.C. 2001) (failure in NEPA case to make site location and
map public was harmless procedural error).
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We will assume that an environmental assessment and
finding of no significant impact might look somewhat different
in form and follow somewhat more complicated procedures than the
study and findings by the FAA in this case. See generally 40
C.F.R. §§ 1501.4, 1508.9, 1508.13 (2000). But this case does
not involve a simple refusal to study environmentally
problematic consequences. On the contrary, even though only
seven to ten flights a day are realistically at issue, the FAA
examined each of the three principal possible negative effects
and found each to be de minimis, and petitioners have provided
no basis for serious doubt about those findings.
Under these circumstances, the presence of
"controversy" is beside the point. Ultimately, the entire NEPA
process is designed to make certain that significant negative
effects are taken into account. See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 348-50 (1989). Remanding for a
differently named assessment, where the project's negative
consequences have already been analyzed and found to be absent
and the findings have been disclosed to interested parties, is
a waste of time. If there was error in denominating the
assessment, it was patently harmless.
The same is true of petitioners' argument that the FAA
committed a procedural error by failing to consult adequately
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with the Massachusetts Historical Commission. As already noted,
NHPA imposes an obligation not only to take account of adverse
effects of an "undertaking" on historic properties but also to
permit the federal Advisory Council a "reasonable opportunity to
comment." This might sound like an obligation easily
discharged, but that is far from the case.
On the contrary, the Advisory Council's regulations,
once they are triggered, impose a complex consultative process.
See generally 36 C.F.R Part 800 (2000). Although the choice
whether to approve the undertaking ultimately remains with the
agency, it must consult with the state historic preservation
officer--here, the Massachusetts Historical Commission--and
other "consulting parties" about adverse effects on historic
properties, document any no- effect finding, and submit the
effects issue to binding review by the Advisory Council if the
state officer and the federal agency disagree. 36 C.F.R. §§
800.4, 800.5 (2000). If adverse effects are established, even
more complex steps are entailed.8
8Assuming an adverse effect is found, the agency must
consult with the state officer and other consulting parties to
develop and evaluate mitigation measures. 36 C.F.R. § 800.6
(2000). The process is then completed either by a "memorandum
of agreement" between the agency and the consulting parties,
which then governs the federal undertaking, 16 U.S.C. § 470h-
2(l), or by termination of the consultation by the agency
followed by the issuance of formal comments by the Advisory
Council, 36 C.F.R. § 800.7 (2000).
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Understandably, agencies are loath to submit to this
cumbersome process, and the NHPA regulation in effect at the
time the FAA acted contained a categorical exemption from the
consultation process where "the undertaking does not have the
potential to cause effects on historic properties." 36 C.F.R.
§ 800.3(a)(1) (2000). No consultation was required for this
decision. 64 Fed. Reg. 27,063 (1999). The FAA found that the
LaGuardia flights had no such potential and, after some
consultation with the state officer, discontinued the process,
relying on the regulation's exemption.
As already explained, petitioners make nothing close
to a colorable attack on the FAA's finding that the ten or fewer
LaGuardia flights in question would not adversely affect nearby
historic sites in any substantial way. Nevertheless,
petitioners argue that under section 800.3(a)(1) of the
regulations, it is enough to trigger the consultation process
that the FAA action is a "type of activity"--a change in
operating specifications--that in some other case could have a
potential adverse affect.
The main support for this reading comes from the
language in the overarching paragraph (section 800.3(a)) and the
Advisory Council's amendment of section 800.3(a)(1) following
the FAA decision in this case, 65 Fed. Reg. 77,698, 77,726 (Dec.
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12, 2000), both of which employ the "type of activity" language.9
The Advisory Council claims that the amendment reflects what the
regulation always meant. Although it is not the most natural
reading of the original regulation, a definitive judgment as to
meaning would have to allow some deference to an agency's
clarification. See Thomas Jefferson Univ. 512 U.S. at 512.
At the same time, the current regulation could make the
exemption useless to the FAA--at least, if the FAA continues to
view "operating specifications" as the category to which "type"
refers. One could easily think of some change in operating
specifications--as to equipment, frequency or other variables--
that could have a significant environmental effect. Of course,
the current regulation does not define the notion of a "type";
conceivably, the FAA could still distinguish among "types" of
9
Prior to the amendment, 36 C.F.R. § 800.3(a) (2000) read as
follows:
(a) The Agency Official shall determine
whether the proposed Federal action is an
undertaking . . . and, if so, whether it is
a type of activity that has the potential to
cause effects on historic properties. . . .
(1) If the undertaking does not have the
potential to cause effects on historic
properties, the Agency Official has no
further obligations under section 106.
The amendment changed section 800.3(a)(1) to read "If the
undertaking is a type of activity that does not have the
potential to cause effects on historic properties. . . ." 65
Fed. Reg. 77,698, 77,728 (Dec. 12, 2000).
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amendments so as to preserve some role for the categorical
exception.
We need not resolve any of these questions. The
consultative process under NHPA, like the process of creating an
EIS or environmental assessment under NEPA, is intended in the
end to identify and measure the adverse effects of a proposed
action on a protected interest (historic properties for NHPA,
the environment for NEPA) so that those effects can be
considered by the responsible agency.
Here, the FAA did make specific findings that the
effects on the environment and on historic properties from ten
or so daily flights, against the backdrop of nearly 100,000
flights a year, would be de minimis. If the question were at
all close and if plausible doubts had been raised, requiring a
more elaborate assessment with more extensive consultation might
serve some useful purpose. But neither is the case and, in
these circumstances, the error (if there was one) is harmless.
The petition for review is denied.
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