United States Court of Appeals
For the First Circuit
No. 07-1953
TOWN OF WINTHROP, ET AL.,
Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent,
MASSACHUSETTS PORT AUTHORITY,
Intervenor-Respondent.
PETITION FOR REVIEW OF A FINAL ORDER
OF THE FEDERAL AVIATION ADMINISTRATION
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Peter L. Koff with whom Engel & Schultz, LLP, Jerome E. Falbo,
and Falbo Solari & Goldberg were on brief for petitioner.
M. Alice Thurston, Attorney, U.S. Department of Justice, with
whom Ronald J. Tenpas, Assistant Attorney General, Ronald M.
Spritzer, Attorney, U.S. Department of Justice, and John Donnelly,
Attorney, Federal Aviation Administration, were on brief for
respondent.
Roscoe Trimmier, Jr., with whom Richard J. Lettieri, F. Turner
Buford, Ropes & Gray LLP, David S. Mackey, Massachusetts Port
Authority, and Ira M. Wallach, Massachusetts Port Authority, were
on brief for intervenor-respondent.
July 23, 2008
LYNCH, Chief Judge. The Town of Winthrop, which is
located next to Boston's Logan International Airport ("Logan"), and
two local residents (one from Winthrop and one from East Boston)
petition this court for review of a Federal Aviation Administration
("FAA") order permitting the construction of a new taxiway at the
airport. They argue primarily that the FAA acted arbitrarily and
capriciously in deciding that it did not need to prepare a
supplemental environmental impact statement before issuing this
final order.
Petitioners' concerns, as we understand them, may be
grouped under three major themes. The FAA has concluded that the
new taxiway, along with other previously approved projects, will
ease congestion at the airport, reducing the amount of time planes
spend idling on the airfield and causing an overall reduction in
noise and air pollution. Even if that were so, petitioners fear
that the FAA's solution for reducing delay will lead to greater use
of Logan, which in the long run will lead to more, not less,
adverse environmental impacts.
Second, they fear that the FAA has not used the most
current data or methodologies available, which may cast doubt on
the agency's benefits analysis.
Third, they say that public health studies show an
increasing concern about ultrafine particulate matter and that the
FAA should be required to continue to study this pollutant at
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Logan, both to evaluate these possible health effects and to keep
the public informed. Notably, petitioners do not seek an
injunction to stop the construction which has begun at Logan.
We find that the FAA has taken all of these concerns into
account, has responded, and did not act arbitrarily or capriciously
in issuing its final order. We deny the petition for review.
I.
Logan is the largest airport in New England; it has a
history of being one of the country's airports with the most
delayed flights. In the year 2000, when 27.4 million passengers
and 1 billion pounds of freight passed through the airport, Logan
was ranked sixth nationally for airports with the most delays, even
though it was ranked eleventh for overall number of takeoffs and
landings and eighteenth for passenger volume.
In 1993, the Massachusetts Port Authority ("Massport"),
which operates Logan, and the FAA began studying options for
improving Logan's operational efficiency. In 1995, Massport
released a feasibility study which preliminarily analyzed different
options and recommended some for further consideration. These
recommended options included building a new runway (Runway 14/32),
realigning Taxiway November, building a new Centerfield Taxiway,
simplifying taxiway and runway crossings, and adding a surcharge
for use of the airport during peak demand periods. Implementation
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of all or a subset of these options, it was believed, would
significantly reduce airport delays.
In late 1995, Massport and the FAA began preparation of
an environmental impact statement ("EIS") regarding these potential
improvements, as required by state and federal law. The National
Environmental Policy Act ("NEPA") requires that all proposals for
"major Federal actions significantly affecting the quality of the
human environment" be accompanied by an EIS. 42 U.S.C. § 4332(c).
The goal of NEPA is to focus attention on the possible
environmental effects of proposed actions, which in turn furthers
two important purposes: to ensure that agencies do not make
decisions based on incomplete information, and to provide
information about environmental effects to the public and other
governmental agencies in a timely fashion so that they have an
opportunity to respond. Marsh v. Or. Natural Res. Council, 490
U.S. 360, 371 (1989). NEPA does not prevent agencies from then
deciding that the benefits of a proposed action outweigh the
potential environmental harms: NEPA guarantees process, not
specific outcomes. Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 350 (1989).1
1
Massachusetts has a similar act, the Massachusetts
Environmental Policy Act, which requires preparation of an
environmental impact report. Mass. Gen. Laws ch. 30, §§ 61-62I.
The undergoing of the state regulatory process was congruent with
the NEPA process and is not discussed separately here.
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After extensive analysis and community input, the FAA
filed a draft EIS ("DEIS") in February 1999. In response to that
draft, approximately 800 people attended two public hearings, and
the FAA received approximately 500 comment letters. The FAA then
compiled a supplemental draft EIS ("SDEIS") to consider additional
issues; that document was published for comment in March 2001.
This time, approximately 800 people attended the public hearings,
and 850 comment letters were submitted. The FAA published its
final EIS ("FEIS") in 2002.
The EIS (the DEIS, SDEIS, and FEIS collectively)
considered five project alternatives: three involving some or all
options considered by the feasibility study, one involving those
options not requiring any construction, and one maintaining the
status quo (the "no action alternative"). The EIS analyzed the
operational and environmental effects of each alternative,
considering both short-term and long-term impacts based on a range
of estimated future passenger loads and fleet composition (the mix
of the types of aircraft using Logan).
Based on these findings, the FAA released a Record of
Decision ("ROD") in 2002, setting forth its rationale for approving
the following collection of options (the "preferred alternative"):
a) Construction of a new runway (Runway 14/32)
b) Construction of a new Centerfield Taxiway2
2
While the Centerfield Taxiway was included and analyzed
as part of the preferred alternative, final approval of the Taxiway
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c) Reconfiguration of the southwest corner
taxiway system
d) Extension of Taxiway Delta
e) Realignment of Taxiway November
f) Reduction of instrument approach minimums
for several runways
The FAA determined that this set of actions was
preferable to the status quo. If no action were taken, the FAA
concluded, airport delays would continue to increase; the preferred
alternative, on the other hand, was expected to reduce delays by
approximately twenty-nine percent. There is a relationship between
delays and adverse environmental effects. Delays cause airplanes
to idle needlessly on taxiways, increasing harmful emissions. The
preferred alternative would reduce emissions and improve ambient
air quality, as compared to the no action alternative.
Some local commenters have expressed concern that the
construction of the Centerfield Taxiway, which is at the heart of
the dispute before this court, would lead to an increase in flight
activity, thus increasing air pollutants. The FAA denies this and
responds that airport capacity is primarily a factor of runway
capacity, not taxiway capacity; that the goal of this improvement
project is to reduce delays and improve safety within Logan's
current capacity; and that the Centerfield Taxiway would not
"independently affect the total number of aircraft operations at
Logan."
was not actually provided in the 2002 ROD, as discussed infra.
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As for noise pollution, again compared to the no action
alternative, the FAA found the preferred alternative would (1)
drastically reduce the number of citizens exposed to excessive
noise levels, defined as 70 dB (decibels) DNL (day-night average
sound level) or higher, and (2) reduce the number of citizens
exposed in the near-term to 65 dB DNL, which is the threshold at
which the FAA considers noise levels to be significant as to
residential land use. However, the reduction of the highest noise
levels would be achieved by redistributing aircraft throughout the
airfield, so the preferred alternative would result in
approximately 250 more people being exposed to 65 dB DNL in the
long term. Most of those affected would be residents of Chelsea
and East Boston.
In its 2002 ROD, the FAA concluded, as it had in the
FEIS, that the Centerfield Taxiway would be "the largest
contributor to taxiway delay reduction" out of all the components
of the preferred alternative package and that the new taxiway would
"enhance airfield safety . . . , provide small air quality
benefits, and have no significant adverse noise or other
environmental impact."
However, the FAA deferred final approval of the
construction of the Centerfield Taxiway, despite approving the
remaining components of its preferred alternative, in order to see
whether operational changes, in addition to the construction, would
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provide further benefits. As a mitigation measure, the FAA agreed
first to conduct an additional study, seeking comment from persons
living around the northern side of the airfield, to consider
"potential beneficial operational procedures that would preserve or
improve the operational and environmental benefits of the
Centerfield Taxiway as shown in the EIS." The additional study
would also consider possible changes to the use of Taxiway November
in response to concerns from local communities. Before agreeing to
undertake this mitigation measure, the FAA considered the impact of
deferring construction of the Centerfield Taxiway and concluded
that "the potential deferment of the Centerfield Taxiway would have
no discernable impact on the environmental [benefits] associated
with the other [components] on the Preferred Alternative." It is
the results of this additional consideration of potential
mitigation benefits which is at the heart of this petition.
The FAA contracted with the firm of Harris Miller Miller
& Hanson Inc., experts in the field of noise and vibration control,
to undertake this additional limited analysis of operational
alternatives. That study ("HMMH Report"), which was published in
2006, considered the efficiency, noise, and air quality effects of
different uses of the November and proposed Centerfield Taxiways.
It concluded that "no operational action could be identified that
would yield environmental benefits" beyond those already
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anticipated by the EIS for the construction of the Centerfield
Taxiway.
With that report completed, the FAA released a Written
Reevaluation and ROD in April 2007, affirming that the data and
analysis in the EIS were still "adequate, accurate, current and
valid," concluding that the FEIS did not need to be supplemented,
and approving the construction of the Centerfield Taxiway.
The D.C. Circuit has already upheld the EIS and 2002 ROD
against legal challenge, see Cmtys. Against Runway Expansion, Inc.
v. FAA, 355 F.3d 678 (D.C. Cir. 2004), and this case presents no
issue as to the legality of those decisions.
Petitioners now seek review of the 2007 Written
Reevaluation and ROD. Massport has intervened as a respondent in
support of the actions taken. We are told that construction of the
preferred alternative is ongoing. Petitioners do not seek to
enjoin that construction.
We have jurisdiction over this final FAA order under 49
U.S.C. § 46110(a).
II.
As a preliminary matter, intervenor Massport challenges
petitioners' Article III standing before this court. Because
Article III standing is a constitutional requirement, we address it
first, but as the FAA does not join in this challenge, we keep our
discussion brief.
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Article III standing requires an injury-in-fact to a
cognizable interest, a causal link between that injury and
respondent's action, and a likelihood that the injury could be
redressed by the requested relief. Sprint Commc'ns Co. v. APCC
Servs., Inc., ___ S. Ct. ___, 2008 WL 2484712, at *4 (June 23,
2008); Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 55 (1st Cir.
2001). "To establish injury-in-fact in a 'procedural injury'
case," like the present one, "petitioners must show that 'the
government act performed without the procedure in question [here,
sufficient NEPA review] will cause a distinct risk to a
particularized interest of the plaintiff." City of Dania Beach v.
FAA, 485 F.3d 1181, 1185 (D.C. Cir. 2007) (quoting Fla. Audubon
Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc)).
Massport challenges this requirement of injury-in-fact on
the grounds that the construction of the Centerfield Taxiway
(according to the EIS) will have minimal if any environmental
effect on the surrounding area. Massport's argument puts the cart
before the horse; it assumes the outcome on the merits in making
its preliminary standing objection.
Our standing discussion in Save Our Heritage is both
instructive and dispositive. In that case, local towns and
preservationist organizations challenged an FAA order regarding
flights originating from Hanscom Field, outside Boston. The FAA
argued there, as Massport does here, that the FAA's order would
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have "no significant environmental impact," so there would be no
standing. Save Our Heritage, 269 F.3d at 56. As we explained:
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. . . . But
beyond that, we think that the likelihood and
extent of impact are properly addressed in
connection with the merits . . . . A
reasonable claim of minimal impact is enough
for standing . . . .
Id. (citations omitted).
Petitioners here have reasonably and adequately alleged
that they fear harm-in-fact should the Centerfield Taxiway
construction go forward as approved by the FAA. That is enough,
even if the FAA concluded otherwise in the order that petitioners
challenge. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572
n.7 (1992) ("[U]nder our case law, one living adjacent to the site
for proposed construction of a federally licensed dam has standing
to challenge the licensing agency's failure to prepare an
environmental impact statement, even though we cannot establish
with any certainty that the statement will cause the license to be
withheld or altered . . . ."). Petitioners have Article III
standing.
III.
We turn to the heart of petitioners' argument: that the
FAA's decision not to compile a supplemental EIS ("SEIS") was
arbitrary and capricious and that the HMMH Report erred in its
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choice of noise impact modeling. We first describe the regulatory
requirements for an SEIS before addressing petitioners' three
challenges to the FAA's decision not to undertake one here.
A. Regulatory Scheme and Standard of Review
The road to final approval for an agency action is often
a long one; in this case it has been more than ten years since the
commencement of the EIS process and five years since the FEIS. It
would undermine NEPA's policies if agencies in the interim were
allowed to ignore material new information or circumstances which
could change the environmental analysis contained in the original
EIS. See Marsh, 490 U.S. at 371. The Council on Environmental
Quality's regulations implementing NEPA thus require a supplemental
EIS if "[t]he agency makes substantial changes in the proposed
action that are relevant to environmental concerns" or "[t]here are
significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts." 40 C.F.R. § 1502.9(c)(1) (emphasis added). That is, an
SEIS would be required here if new information "paint[ed] a
dramatically different picture of impacts compared to the
description of impacts in the EIS." Environmental Impacts:
Policies and Procedures, FAA Order 1050.1E chg. 1 ¶ 516a (Mar. 20,
2006).3
3
FAA Order 1050.1E chg. 1 is available at
http://www.faa.gov/regulations_policies/orders_notices/media/1050
1echg.pdf.
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The FAA has, by order, imposed further requirements upon
itself for airport projects. If more than three years have passed
since the FAA approved an FEIS and no major steps toward
implementing the proposed action have taken place, the FAA must
prepare a written reevaluation to determine whether the FEIS
"remains accurate, adequate, and current." NEPA Implementing
Instructions for Airport Projects, FAA Order 5050.4B ¶ 1401(c)(1)
(Apr. 28, 2006)4; see also FAA Order 1050.1E ¶ 514b(1) (requiring,
after three years of no major action, a written reevaluation of the
"adequacy, accuracy, and validity of the FEIS"). That is, the mere
passage of time does not require preparation of an SEIS, only a
written reevaluation. The FAA also specifically committed itself
in the 2002 ROD to preparing a written reevaluation of whether it
was necessary to prepare an SEIS before issuing its final decision
on the Centerfield Taxiway, and it has done so.
If "substantial change" has occurred involving the
earlier data or other conditions relevant to the FAA's prior
decision, the preparation of an SEIS is required. FAA Order
5050.4B ¶ 1401(c)(1); see also FAA Order 1050.1E ¶ 514b(1) (if,
after three years, "there have been significant changes in . . .
the affected environment [or] anticipated impacts," an SEIS must be
prepared); FAA Order 5050.4B ¶ 1402(b)(2) (requiring an SEIS,
4
FAA Order 5050.4B is available at
http://www.faa.gov/airports_airtraffic/airports/resources/publica
tions/orders/environmental_5050_4.
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regardless of passage of time, if "[s]ignificant new changes,
circumstances or information relevant to the proposed action, its
affected environment, or its environmental impacts becomes
available"). The written reevaluation determining whether it is
necessary to prepare an SEIS need not, however, be made public.
FAA Order 5050.4B ¶ 1401(d); FAA Order 1050.1E ¶ 515c.
While NEPA requires agencies to "take a 'hard look' at
the environmental effects of their planned action, even after a
proposal has received initial approval," Marsh, 490 U.S. at 374,
"an agency need not supplement an EIS every time new information
comes to light after the EIS is finalized," id. at 373. "To
require otherwise would render agency decision-making intractable,
always awaiting updated information only to find the new
information outdated by the time a decision is made." Id.
The key question for the FAA, then, is determining what
constitutes significant new information, and that is a factual
question requiring technical expertise. Id. at 376. The agency's
resolution of this question is thus one to which a reviewing court
owes considerable deference. See id. at 376-77. Considerable
deference is also owed to the FAA's determination of whether a
three-year-old FEIS remains accurate, adequate, and current, as
that determination is but a variation on the same question of
significance.
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As a result, the FAA's decision not to issue an SEIS
cannot be set aside by a reviewing court unless that decision is
arbitrary and capricious. Id. at 376; see also 5 U.S.C.
§ 706(2)(A). An agency's decision is not arbitrary and capricious
if that decision was based on consideration of the relevant factors
and if it did not commit a clear error of judgment. Marsh, 490
U.S. at 378; Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197,
202 (1st Cir. 1999).
B. Whether the FAA Erred in Its Determination That the FEIS
Remains "Accurate, Adequate, Current, and Valid"
Petitioners primarily argue that the FAA did not
adequately consider all the requisite factors in determining
whether there have been significant material changes since the 2002
ROD. We start with petitioners' allegation that the data
underlying the EIS is outdated. The relevant requirement for the
FAA as to preparation of an SEIS is whether the FEIS remains
accurate, adequate, current, and valid. FAA Order 5050.4B
¶ 1401(c)(1); FAA Order 1050.1E ¶ 514b(1).
As petitioners acknowledge, the 2007 ROD did specifically
make the finding that the FEIS remains accurate, adequate, current,
and valid. Petitioners' two-sentence counter to this finding is,
at most, general and conclusory, providing us no grounds for
critiquing the FAA's procedures. See Save Our Heritage, 269 F.3d
at 60 ("Gauzy generalizations . . ., in the face of specific
findings and a plausible result, are not even a start at a serious
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assault."); Airport Impact Relief, 192 F.3d at 205 ("Issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived for purposes of
appeal."). These general and undeveloped arguments are waived.
Nonetheless, we address petitioners' criticism of the
continuing validity of the EIS as presented in their argument that
the data no longer reflects "existing environmental conditions."5
We disagree that the 2007 Written Reevaluation and ROD failed to
evaluate adequately the continuing validity of the data underlying
the EIS. The ROD stated twice that the updated data analyzed in
the HMMH Report were consistent with and validated the earlier data
and analyses in the EIS.
The HMMH report, in turn, carefully compared its data-
based conclusions regarding both air quality and noise impacts with
those reached earlier in the EIS. The HMMH Report's analyses
incorporated new data gathered between 2002 and 2005. The report
noted that the "models, methodologies and data" used in that report
were similar to those used in the EIS; these similarities allowed
5
Petitioners try to rephrase the FAA's obligation as one
of determining whether the FEIS "accurately reflect[s] existing
environmental conditions," which they treat as a distinct
requirement. This is not the standard; that language is lifted
from the FAA's rationale for allowing FAA officials "the discretion
to determine if a written re-evaluation of a NEPA document is
needed." FAA Order 5050.4B ¶ 1401(a) (emphasis added). That
language is not binding here, where a written reevaluation is
required due to the passage of time. Further, petitioners'
treatment of the term "existing" suffers from the same faults as
their definition of "current," as we discuss.
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for meaningful comparison. As one example of a specific
comparison, the report demonstrated numerically how "[t]he
estimated annual average DNL values for the [HMMH Report]" -- that
is, the measurement of noise impact -- were "very comparable to
those listed in the EIS." The report concluded that "[t]he
analyses . . . reflected in this report are consistent with those
performed for the [EIS]" and, "[t]herefore, the results of the
analysis on noise and air quality described in this report . . . do
not change any of the conclusions that were reached in the EIS."
Given this validation of its earlier data, the FAA could
reasonably have concluded that there was no "substantial change" in
conditions since the data used in its EIS were gathered. That is,
it was reasonable to assume in these circumstances that the mere
passage of time did not invalidate or render out-dated the data and
analyses in the EIS.
Petitioners seem to assume that "current" in the FAA
regulation means literally contemporaneous. That cannot be the
correct reading of the requirement, as data relied on in an FEIS
will never be current in that sense. Further, such an
interpretation would read out the role of the written reevaluation,
as the data in a three-year-old FEIS would by definition never be
current.
Rather, "current" should be read in conjunction with
"accurate" and "adequate" and in light of the general SEIS standard
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of significant change: the data remain "current" if there has been
no major change that would cause one to expect contemporaneous
conditions to vary significantly from conditions at the time the
data were gathered. By validating through the HMMH Report that
more recent conditions generate similar data as the data used in
the EIS, the FAA could reasonably conclude that all the data still
reflected current conditions. In another recent situation where
the FAA determined that more recent data did not draw into question
the modeling it had conducted using older data, the D.C. Circuit
explained:
However desirable it may be for agencies to
use the most current and comprehensive data
available when making decisions, the FAA has
expressed its professional judgment that the
later data would not alter its conclusions in
the EIS . . . , and it is reasonably concerned
that an unyielding avalanche of information
might overwhelm an agency's ability to reach a
final decision. . . . The method the FAA
chose, creating its models with the best
information available when it began its
analysis and then checking the assumptions of
those models as new information became
available, was a reasonable means of balancing
those competing considerations, particularly
given the many months required to conduct full
modeling with new data.
Vill. of Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006)
(citation omitted); cf. Save Our Heritage, 269 F.3d at 59-60.
To the extent that petitioners seek a more detailed
description of the FAA's consideration of the HMMH report's
conclusions regarding the continuing validity of the EIS data, none
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was required. See Forest Guardians v. U.S. Forest Serv., 495 F.3d
1162, 1172-73 (10th Cir. 2007) ("NEPA imposes no obligation to use
precise phrasing."); cf. Airport Impact Relief, 192 F.3d at 209
("[A] federal agency need not perform the detailed environmental
analysis of an [S]EIS before it can determine that no [S]EIS need
be prepared. Such a requirement would eliminate the threshold
requirements of the regulations in favor of a full . . . SEIS in
every case."). Instead, the arbitrary and capricious standard of
review "requires substantial deference to the agency . . . when
[courts] review[] drafting decisions like how much discussion to
include on each topic, and how much data is necessary to fully
address each issue." Sierra Club v. Van Antwerp, 526 F.3d 1353,
1361 (11th Cir. 2008).
The FAA adequately considered the continuing validity of
the data underlying the FEIS. Its determination that the data were
still adequate, accurate, current, and valid was not arbitrary and
capricious.
C. Whether Concerns About Ultrafine Particulate Matter
Constitute Significant New Information
Petitioners next argue that new studies demonstrating the
effects of fine and ultrafine particulate matter ("PM") on public
health constitute significant new information that the FAA should
have considered in an SEIS. See 40 C.F.R. § 1502.9(c)(1)(ii).
They also fault the FAA for not adequately responding to and
considering concerns about these health effects.
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The Environmental Protection Agency ("EPA") sets National
Ambient Air Quality Standards ("NAAQS"), which define acceptable
levels of certain regulated air pollutants, including PM. PM is,
in turn, categorized as coarse, fine, and ultrafine. At the time
of the EIS, there were NAAQS for coarse PM, which is PM with an
aerodynamic diameter of 10 microns or smaller ("PM10"). Fine PM is
defined as PM with a diameter of 2.5 microns or smaller ("PM2.5");
ultrafine PM is defined as PM with an diameter of 0.1 microns or
less.
The FAA included coarse PM (PM10) in the air pollutants
it measured and analyzed during the EIS process. It concluded that
none of the alternatives considered would come close to violating
the NAAQS for PM10, and it also found that the preferred
alternative would slightly decrease PM10 emissions over the other
alternatives, including the no action alternative. For example,
under the no action alternative, PM10 emissions in 2010 were
estimated to range from 280 to 336 kilograms per day, depending on
airport volume; under the preferred alternative, PM10 emissions
would range from 251 to 299 kilograms per day.6
6
After the FEIS but before the 2007 Written Reevaluation
and ROD, NAAQS for PM2.5 took effect. Petitioners do not argue
that the FAA has not measured PM2.5 adequately or applied the PM2.5
NAAQS; rather, they argue that the FAA has not adequately
considered the health effects of fine and ultrafine particulate
matter.
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Petitioners point to three letters in particular,
submitted in response to the draft written reevaluation, that raise
questions about the adequacy of the FAA's consideration of the
health impacts of the Centerfield Taxiway: a letter from the
Massachusetts Department of Public Health, Center for Environmental
Health; a letter from the City of Boston's Environment Department;
and a letter from the Boston Public Health Commission,
Environmental Hazards Program. Contrary to petitioners'
assertions, the FAA did respond to these concerns, and its
responses were not unreasonable.
These letters primarily urged greater data collection and
analysis. They specifically expressed concern that air quality
data be gathered at points closer to the airport to better measure
local impact. They also argued that city-wide or region-wide
compliance with NAAQS was insufficient reassurance of local air
quality, as air quality near a major emission source like Logan
would likely be worse than the regional average. In its responses,
the FAA emphasized that multiple ongoing studies were or would be
gathering such localized data. Massport already provides annual
Environmental Data Reports on emissions from Logan. As a condition
of state approval for the project, Massport agreed to implement an
air quality study that would measure emissions in neighborhoods
around Logan both before and after the Centerfield Taxiway becomes
operational. The Massachusetts Department of Public Health is
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currently conducting a study of the health impacts of Logan on
surrounding communities, a project that includes further data
gathering and analysis. The FAA also noted additional programs
requiring Logan to monitor the local impact of emissions of
specific pollutants. To the extent the letters suggested that the
FAA wait until further data had been collected, it was not
arbitrary and capricious for the FAA to conclude that it had enough
data to make a reasoned decision. There will always be more data
that could be gathered; agencies must have some discretion to
decide when to draw the line and move forward with decisionmaking.
All three letters expressed concern that the HMMH Report
used emissions inventory data (the amount of pollutants generated)
rather than atmospheric dispersion modeling based on that emissions
inventory data (which would estimate levels of human exposure to
pollutants at specific times and locations). The latter provides
a more complete picture of the health impact of emissions on
surrounding communities. The FAA responded by pointing out that
such dispersion analyses had been conducted as part of the EIS.
The measurement of health effects is integral to an EIS, but the
purpose of a written reevaluation is not the same. The question
for the FAA at this stage was whether the data in the HMMH Report
drew into question the health impact analyses in the EIS. The FAA
has reasonably concluded that it did not.
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Finally, and in petitioners' view most importantly, all
three letters urged monitoring of ultrafine PM because of growing
evidence of that pollutant's adverse health effects. The FAA
acknowledged these concerns and noted that it is "sponsoring
research into the potential health effects of PM emitted from
aircraft engines." It explained that it did not measure ultrafine
PM separately in this decision-making process because the
"technology and methods for monitoring ultra-fine PM is considered
to be emerging and is still under development by the U.S. EPA and
others."7 The FAA also noted that it is engaged in an ongoing
effort with the EPA, NASA, and other agencies to measure emissions
from modern-day aircraft engines, including emissions of ultrafine
PM.
Not only were these responses adequate, but they also
demonstrate that the FAA did consider the information presented,
and we cannot say that the agency committed a clear error in
judgment in concluding that this information did not warrant an
SEIS. Preliminarily, it was not unreasonable for the FAA to assume
that, if the preferred alternative would reduce all NAAQS-regulated
air pollutants (including PM10), then the preferred alternative --
which includes construction of the Centerfield Taxiway -- would
7
The PM10 NAAQS covers all PM up to 10 microns in
diameter, including ultrafine PM. The concern is that a high
concentration of ultrafine PM within otherwise acceptable PM10
levels could cause health problems, in which case there would be a
need for separate measurements of ultrafine PM.
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also reduce levels of ultrafine PM. It is a matter of common sense
that an action quantitatively projected to reduce all air
pollutants that were studied would also reduce the amount of air
pollutants not studied. Cf. Airport Impact Relief, 192 F.3d at 209
(describing sensibleness of presuming that increased noise due to
building roadway at a higher elevation than originally planned
would be largely offset by decreased noise due to moving roadway
further away from area of concern). Petitioners have provided no
reason to doubt that decreased idling and taxiing time would lead
to a decrease in all emissions.8
Further, the FAA acted within reason in considering how
to treat this information. Health impacts due to PM had already
been considered in the EIS; while these newer studies might provide
more information on potential health effects, the FAA could
reasonably conclude that the information presented was not
"significant new information" because it did not "paint[] a
dramatically different picture of impacts compared to the
description of impacts in the EIS." FAA Order 1050.1E ¶ 516a
(defining "significant information"). This area of research is
also still developing. It is not unreasonable for an agency to
decline to study in an SEIS a pollutant for which there are not yet
standard methods of measurement or analysis. An SEIS is not, after
8
Again, we accept the FAA's and Massport's assertion, in
the absence of any contrary evidence, that the Centerfield Taxiway
will not lead to an increase in the aircraft capacity of Logan.
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all, a research document. Cf. Lee v. U.S. Air Force, 354 F.3d
1229, 1244 (10th Cir. 2004) (Air Force not required to conduct own
studies where scientific information is scarce, despite concerns
raised during the comment period). We emphasize that the FAA has
not ignored these concerns; rather, it has decided to evaluate the
issue fully in a more appropriate setting alongside agencies with
relevant expertise.
We are thus satisfied that the FAA considered the
information presented and that its determination that there was no
significant new information was not a clear error in judgment. The
FAA's decision not to prepare an SEIS was not arbitrary and
capricious.
D. Whether the HMMH Report Erred in Its Choice of Computer
Model for Evaluating Noise Impact of Centerfield Taxiway
Petitioners assert that the HMMH Report did not use an
appropriate modeling program for evaluating the noise impact of
different uses of the November and Centerfield Taxiways. However,
"[a]gencies are entitled to select their own methodology as long as
that methodology is reasonable. The reviewing court must give
deference" to that decision. Hughes River Watershed Conservancy v.
Johnson, 165 F.3d 283, 289 (4th Cir. 1999); see also Valley
Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 469 (1st Cir.
1989).
The HMMH Report provided a reasonable explanation for
selecting the SoundPLAN model. It explained:
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The SoundPLAN model is more appropriate for
evaluation of aircraft ground operations than
the FAA's Integrated Noise Model (INM), which
is intended primarily for the evaluation of
aircraft flight operations. While the INM can
be used to model taxi operations, it is a very
crude tool for this purpose. . . . By using
SoundPLAN and aircraft noise emissions data
collected at idle/taxi power settings, noise
modeling is much more precise. Also, the INM
does not incorporate any building or terrain
shielding, or variation in ground type . . .,
so these characteristics, which are important
for ground-based noise sources[,] cannot be
modeled with INM.
The FAA also responded thoroughly to specific concerns regarding
the HMMH Report's sound analysis.
As a preliminary matter, respondents point out that
petitioners did not specifically object to the use of the SoundPLAN
model during the comment period on the draft written reevaluation,
which relied on the HMMH Report. "[T]he time to complain, and to
complain clearly, about methodology was at the comment stage, not
two years later after the [relevant report] was complete." Valley
Citizens, 886 F.2d at 469. It does the agency no good to receive
criticism of its choice of methodology after it has finished its
decisionmaking process, especially when there was a chance to
comment earlier. See Vt. Yankee Nuclear Power Corp. v. Natural
Res. Def. Council, 435 U.S. 519, 553 (1978) ("[I]t is . . .
incumbent upon intervenors who wish to participate . . . to
structure their participation so that it is meaningful, so that it
alerts the agency to the intervenors' position and contentions.").
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While concerns about the application of the chosen
methodology were raised during the comment period (concerns which
we believe the FAA adequately addressed), the petitioners here do
not allege any harm or error resulting from the use of SoundPLAN
but only assert that the very choice of SoundPLAN was erroneous.
We believe that argument was waived because it was not raised
before the agency. We continue on a little further to explain why,
even if preserved, the argument would fail regardless.
Petitioners point to FAA internal regulations regarding
the preparation of an EIS, which require a detailed noise analysis
if significant noise impacts are expected. FAA Order 1050.1E
¶ 14.2a. These regulations further state that "[a]ll detailed
noise analyses must be performed using the most current version of
the FAA's Integrated Noise Model (INM), Heliport Noise Model (HNM),
or Noise Integrated Routing System (NIRS). Use of an equivalent
methodology and computer model must receive prior written approval
from the FAA's Office of Environment and Energy." Id. ¶ 14.2b. No
prior written approval was obtained for the use of SoundPLAN in the
HMMH Report.
However, as the FAA points out, the HMMH Report is not an
EIS. Instead, the HMMH Report considered operational alternatives
that might further decrease noise impacts on neighboring
communities. There was no regulatory requirement for the FAA to
use any specific model for this study. SoundPLAN was selected
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because it was considered more sensitive to the sources of noise of
most concern in the HMMH Report and would thus be more likely to
illuminate an operational alternative that would improve noise
conditions for nearby residents. This is a reasonable explanation
to which we must defer.
IV.
As a final matter, petitioners seek to supplement the
administrative record with additional documents. In considering
whether an agency action was arbitrary and capricious, "the focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in the
reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973).
Supplementing the administrative record on judicial review is
therefore the exception, not the rule, and is discretionary with
the reviewing court. See Valley Citizens, 886 F.2d at 460. There
are two types of situations in which we may exercise that
discretion. This court "'may' (although it is not required to)
supplement the record where there is [] 'a strong showing of bad
faith or improper behavior' by agency decision makers." Olsen v.
United States, 414 F.3d 144, 155 (1st Cir. 2005) (quoting Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971),
overruled on other grounds by Califano v. Sanders, 430 U.S. 99
(1977)). "Alternatively, supplementation of the record may be
permissible where there is a 'failure to explain administrative
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action as to frustrate effective judicial review.'" Id. at 155-56
(quoting Camp, 411 U.S. at 142-43).
Neither situation presents itself here, nor do
petitioners argue otherwise. Indeed, petitioners argue very few
specifics as to why these documents should be included. We deny
the motion to supplement the record and briefly outline our
rationale as to each specific request.
First, petitioners' request for a separate indexing of
documents which are already included in the administrative record
(as part of the administrative record for the D.C. Circuit's review
of the 2002 ROD) is frivolous. Second, the petitioners seek
inclusion of an email from a contractor to an FAA official, but by
its nature the email would not illuminate the thinking of anyone
within the FAA, and the FAA asserts that it did not rely on the
content of that email in its decisionmaking (hence the agency's
omission of the email from the record).
Third, the petitioners would like included forty-six
documents which the FAA has withheld in response to a Freedom of
Information Act ("FOIA") request filed by petitioners. In an
entirely separate proceeding regarding this FOIA request, a
district judge has reviewed those forty-six documents in camera and
agreed with the FAA that the documents pertain to internal
deliberative processes and were properly exempted from disclosure
under FOIA. Petitioners have appealed that ruling as a separate
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matter, not presently before us. Documents pertaining to internal
deliberative processes are irrelevant to this petition.
Finally, petitioners have moved to supplement the record
with the declaration of Helen Suh, Sc.D., dated December 19, 2007
(more than six months after the release of the final ROD).
Petitioners propose that the declaration would aid this court's
understanding of the technical issues involved in this case. See
Valley Citizens, 886 F.2d at 460. "However desirable this kind of
evidentiary supplementation as an aid to understanding highly
technical, environmental matters, its use is discretionary with the
reviewing court." Id. The Suh declaration elaborates on concerns
already addressed in the record. Thus regardless of whether it
might illuminate the factual dispute further, it would not bear on
the relevant legal question: whether the FAA adequately considered
these concerns and reasonably reached the decision it did based on
the information it had at the time. See id. at 461. We decline to
review the document. We can find no other legitimate basis among
petitioners' arguments for supplementing the record with this post-
ROD declaration.
V.
We deny the motions to supplement the record, and we deny
the petition for review.
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