United States Court of Appeals
For the First Circuit
No. 07-2820
TOWN OF MARSHFIELD,
Petitioner,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL AVIATION ADMINISTRATION
Before
Boudin, Stahl and Howard,
Circuit Judges.
Andrea C. Ferster on brief for petitioner.
Elizabeth Ann Peterson, Andrew C. Mergen, M. Alice Thurston,
Environmental & Natural Resources Division, Department of Justice,
and Ronald J. Tenpas, Assistant Attorney General, on brief for
respondent.
December 18, 2008
BOUDIN, Circuit Judge. The Federal Aviation
Administration ("FAA") has authority to prescribe aircraft approach
and departure patterns in order to minimize noise and ensure
safety. See 49 U.S.C. §§ 44502, 44505 (1994). In 2002, the agency
approved a change in the runway layout of Logan Airport in Boston
to include a new runway and, at the same time, began a study of
improved noise abatement measures. The outcome was the "Boston
Overflight Noise Study" ("BONS"), conducted with advice and
participation by various organizations.
The participants in BONS included not only the FAA but
also Massport, a Massachusetts entity that is responsible for Logan
Airport; the Logan Community Advisory Committee ("CAC"), a
community organization founded thirty years ago to represent
interests affected by Logan's operations (and a sometime adversary
of the airport); and the Boston Technical Advisory Committee
("BOS/TAC"), which provides technical advise to Massport and the
CAC.
In October 2007, the FAA adopted certain of the BONS
report's "phase I" measures for the rerouting of aircraft to
increase use of Logan approaches and departures over the ocean with
shoreline crossings at higher altitudes. In finding that these
measures required no environmental assessment ("EA") or
environmental impact statement ("EIS"), the FAA relied upon noise
studies to measure the impact on surrounding communities. Deferred
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to phase 2 and an expected phase 3 were possible measures that
required more study and potentially more detailed and formal
environmental analysis.
The Town of Marshfield, Massachusetts, located about 25
miles south of Logan Airport, opposed the new phase 1 measures,
arguing that the new flight patterns would adversely affect its
residents. It now seeks judicial review of the FAA's decision
pursuant to 49 U.S.C. § 46110(a) (2004), claiming violations by
the FAA of the National Environmental Policy Act ("NEPA"), 42
U.S.C. § 4321 et seq. (2000), the Federal Advisory Committee Act
("FACA"), 5 U.S.C. App. 1, § 1 et seq. (2000), and the FAA's own
rules. We begin with the NEPA claim.
NEPA requires that "every recommendation or report on
proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment"
include a statement addressing, inter alia, "the environmental
impact of the proposed action" and "any adverse environmental
effects." 42 U.S.C. § 4332(c)(i), (ii). The NEPA statement or
EIS, usually entailing substantial efforts and a detailed analysis,
is not required if the agency supportably determines that no such
"significantly affecting" impact will result. Id.
Agency regulations sometimes provide "categorical
exclusions" identifying classes of actions that do not threaten
environmental damage and thus do not require the preparation of an
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EA or EIS. See generally 40 C.F.R. § 1508.4 (2003). An FAA order
governing environmental assessments, FAA Order 1050.1E (June 10,
2004), provides (albeit in technical and somewhat opaque terms) a
categorical exclusion for various departure, routing and approach
procedures, see FAA Order 1050.1E, paras. 311g, 311i, 311p, an
exclusion that the FAA treats as applicable to phase 1; but the
exclusion is itself subject to a major qualification, which is at
issue in this case.
The qualification states that where "extraordinary
circumstances" exist, an otherwise categorically excluded action
"could" require further environmental analysis, see FAA Order
1050.1E, Para. 304, and such circumstances include inter alia "an
impact on noise levels of noise-sensitive areas," id. at para.
304f. A further provision, dealing specifically with noise,
classes as significant a noise impact comprising an increase in
decibel level of 1.5 dB or more--based on a day-night average
("DNL")--to or above the 65 dB level. Id. at App. A, para. 14.3.
DNL is a measure that signifies the average day-night sound over
the course of a year. Id. at App. A, para. 14.5a.
The FAA found that Marshfield “would experience noise
below 45 DNL,” which was well below the threshold of 65 DNL contour
(the map line marking points where 65 dB registered). In fact, the
FAA expert found that at practically all of the testing points in
Marshfield, the noise levels would decrease, except at a single
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measuring point (PT073) where the increase would be at most 0.2dB.
Another expert, who peer-reviewed the FAA study and conducted
additional data analysis, corroborated the agency's conclusion.
The calculations were done using a computer modeling
program called the Integrated Noise Model ("INM"), which is one of
three methods authorized in FAA Order 1050.1E. Id. at App. A,
para. 14.2b. Marshfield says that the FAA should instead have used
a different program called the Noise Integrated Routing System
("NIRS"), also identified in FAA Order 1050.1E. Id. Ordinarily,
the agency would be entitled to use any reasonable methodology to
arrive at a decision, e.g., Hughes River Watershed Conservancy v.
Johnson, 165 F.3d 283, 289 (4th Cir. 1999), but Marshfield says
that FAA Order 1050.1E required the use of the NIRS methodology.
Marshfield's argument rests on a paragraph of FAA Order
1050.1E that says, most pertinently, that "[f]or air traffic
airspace actions where the study area is larger than the immediate
vicinity of an airport, incorporates more than one airport, or
includes actions above 3,000 feet AGL, noise modeling will be
conducted using NIRS." FAA Order 1050.1E App. A, para. 14.5e.
The FAA does not claim that Marshfield is in the "immediate
vicinity" of Logan, nor deny that some of the routing changes
affect planes above 3,000 feet.
Rather, the FAA explains tersely in its brief that NIRS
is a computer modeling tool for studying air traffic among multiple
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airports over wide areas, and it provides a reference to the
history of NIRS that arguably supports this gloss. In its reply
brief Marshfield merely counters that the provision it relies on
uses the word "will" and therefore requires the use of NIRS. It
makes no effort to counter the FAA's explanation or to explain why
NIRS calculation would be different or superior.
Where neither side has shed much light on a matter,
judges tend to fault the appellant; "it is up to those who assail
its findings or reasoning to identify the defects in evidence and
the faults in reasoning." Save Our Heritage, Inc. v. FAA, 269 F.3d
49, 60 (1st Cir. 2001). In this case, the FAA's assessment of
minimal impact is not implausible. If there is a stronger argument
for insisting that the FAA use NIRS or some other computer modeling
program in cases like this, it can await an instance in which a
more powerful argument is presented.
Marshfield next contends that its own expert calculated
that noise levels would increase at least five decibels for the
single data point location in Marshfield. Because both the FAA and
the CAC experts calculated the number at 0.2 dB, it would take a
detailed and cogent attack for us to find the FAA's factual
conclusion unsupported or irrational. Id., 269 F.3d at 60.
Marshfield's attack on the FAA figure of 0.2 dB for the location in
question may be detailed but it is not persuasive.
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The FAA's brief identifies several seeming methodological
flaws in the Marshfield expert's assessment. These include (1) the
calculation of noise exposure based on selective days and times
when overflights were occurring rather than average DNL
measurements and (2) a faulty assumption that because some flights
produced noise of 50 dB or above all overflights produced noise at
this level. It also appears that the town's expert regards
increases at the 45 dB contour to be fatal whereas the FAA Order
1050.1E is primarily aimed at increases to or above the 65 dB
contour level. We think the FAA's finding is adequately based.
In a further NEPA claim, Marshfield insists that the FAA
erred by considering the impact of the phase 1 measures without
regard to the possible further impact of measures that might be
adopted during phase 2 or later phases. NEPA requires that a
cumulative analysis include future actions that are "reasonably
foreseeable." See 40 C.F.R. § 1508.7. The cumulative test is
meant to ensure that a project is assessed as a whole and not
sliced into "small component parts," id. § 1508.27(b)(7), which
individually judged might elude assessment.
However, when the FAA determined to implement phase 1,
some phase 2 action was foreseeable but one could only speculate as
to which phase 2 measures would be implemented, cf. City of Oxford
v. FAA, 428 F.3d 1346, 1354 (11th Cir. 2005) ("An agency must
consider the cumulative impacts of future actions only if doing so
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would further the informational purposes of NEPA."); indeed, the
phrasing aimed to reserve decision on those steps that might
involve a substantial environmental impact. Further, the negative
impact of the phase 1 measures, as quantified by the noise study,
appears to have been so slight that problems of cumulative effect
vanish.
Further, the phase 1 measures were deemed independently
valuable regardless of what happened in phase 2. This is not a
case in which the agency's adoption of one step--say, the
construction of footings for a major bridge--makes sense only if
future steps are taken, and the first step effectively commits the
agency to a further step. The phases address the same general set
of problems, but it made perfect sense to move ahead phase 1
measures that posed no significant threat to the environment.
Finally, Marshfield seems to assert that an EA or EIS was
required so long as the phase 1 measures were "highly
controversial," which it regards as covering any introduction of
new noise over inhabited areas and with opposition by a town or
city. Although FAA Order 10501.1E, para. 304, uses the phrase
"highly controversial," it makes clear that controversy is not
decisive but is merely to be weighed in deciding what documents to
prepare.
This brings us to Marshfield's claim under a different
statute, namely, that the FAA violated the National Historical
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Preservation Act, 16 U.S.C. §§ 470 et seq. (2000), by failing to
consult the historic preservation officer. As incorporated by the
FAA into its own regulations, the statute requires, in pertinent
part, that "[u]ndertakings that have the potential to significantly
affect historic properties pursuant to NEPA constitute an
extraordinary circumstance requiring an EA even if the project
normally qualifies as a categorical exclusion under NEPA." FAA
Order 1050.1E, App. A, para. 11.2a.
The FAA does not dispute that the area in and around
Marshfield contains various historic sites such as the Daniel
Webster Library, but it argues instead that under the pertinent
regulations, "[i]f the undertaking is a type of activity that does
not have the potential to cause effects on historical properties,
assuming such historic properties [are] present, the agency
official has no further obligations under section 106 or this
part." 36 C.F.R. 800.3(a)(1)(2000).
Here, the FAA found in the decision under review that
"[t]here would be no potential for effects on [protected] historic
or cultural resources," a view supported by the noise measurement
study. Accordingly, the FAA's task was to report and document this
finding to the preservation officer, 36 C.F.R. § 800.4(d)(1); City
of Oxford, 428 F.3d at 1356-57. Where the preservation officer
does not object, no consultation is required. See 1050.1E, para.
11.2b.
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Marshfield's remaining challenge is that the FAA violated
the FACA statute and underlying regulations. Specifically, it
asserts that the agency relied on advisory committees subject to
the statute but failed to provide public notice of meetings, open
meetings to the public and assure that committee recommendations
were not controlled by special interests. See 5 U.S.C. App. §§
2(a), (b), 3(2), 10(a)(1), 10(a)(2); 41 C.F.R. § 102-3.105(g)
(2001).
FACA does not apply to every entity whose views may be
sought or considered by an agency--vast numbers of private
organizations express their views to regulators; rather, it applies
only to advisory committees or their equivalent "established or
utilized by one or more agencies." 5 U.S.C. App. § 3(2)(C).
Although the term "utilized" could be read broadly, courts have
read it to apply only to committees that are under the actual
management or control of the agency. Public Citizen v. United
States Dep't of Justice, 491 U.S. 440, 457-58 (1989); Center for
Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 840 (D.C.
Cir. 2008).
The two organizations that Marshfield deems to be covered
by the statute are CAC and BOS/TAC. The former is not even
remotely an advisory committee under the FAA's management or
control. And although the FAA plays a role in BOS/TAC, it is at
best a member of the forum and Marshfield points to no facts
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showing that the FAA manages or controls BOS/TAC. See Byrd v. EPA,
174 F.3d 239, 246 (D.C. Cir. 1999).
The petition for review is denied.
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