NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-4355
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BRRAM, INC.; HOLLY BUSSEY; WILLIAM G. LYNCH; RICHARD J. DELELLO,
Petitioners
v.
FEDERAL AVIATION ADMINISTRATION
Respondent
ALLEGIANT AIR LLC,*
Intervenor
(* Pursuant to the Court’s Order dated 1/20/17)
_________________
On Application for Review of a Decision and Order of the
Federal Aviation Administration
(FAA No. C070 AMDT 165 Cert WX0A151)
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 15, 2017
Before: CHAGARES, VANASKIE, FUENTES, Circuit Judges
(Filed: January 9, 2018 )
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OPINION **
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**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
BRRAM, Inc., Holly Bussey, William G. Lynch, and Richard Delello (collectively
“Petitioners”) appeal a Federal Aviation Administration (“FAA”) decision to allow
Allegiant Air LLC (“Allegiant”) to operate at Trenton-Mercer Airport (“Trenton”). For
the following reasons, we will affirm.
I.
Although the parties in this case have previously been involved in numerous
appeals regarding Trenton, 1 we need only discuss the facts relevant to the case before us.
Trenton is a commercial airport owned by the Mercer County Board of Chosen
Freeholders in Ewing Township, New Jersey. In 2016, Allegiant requested that the FAA
amend its Operating Specifications 2 to allow it to operate at Trenton. In its request,
Allegiant explained that it would conduct fourteen operations (seven takeoffs and seven
landings) at Trenton per week. Allegiant also submitted an assessment of the noise
impact its proposed operations would have on the area surrounding Trenton. The
assessment stated that Allegiant’s operations at Trenton would not have a significant
impact on noise levels in the area. On November 2, 2016, the FAA issued a Record of
Decision (“Decision”) approving Allegiant’s requested amendment. The Decision
discussed Allegiant’s noise assessment along with a noise assessment prepared by
1
See Bd. of Supervisors of Lower Makefield Township v. Fed. Aviation Admin., 3d Cir. 06-
2929; BRRAM v. FAA, 670 Fed. Appx. 50 (3d Cir. 2016).
2
According to the FAA, an airline’s Operating Specifications are “the terms an air carrier
must comply with to ensure an air carrier operates safely in air transportation.” Joint
Appendix (“J.A.”) 35.
2
Trenton, which was based on a forecast of air traffic twenty years into the future, and
concluded that “no significant noise impacts will occur as a result of Allegiant’s
operations.” 3 The Petitioners—most of whom reside or operate in Pennsylvania across
the Delaware River from Trenton—appealed. 4
II.
Under the National Environmental Policy Act, federal agencies, including the FAA,
are required to prepare Environmental Impact Statements for “major Federal actions
significantly affecting the quality of the human environment.” 5 However, an agency need
not prepare an Environmental Impact Statement if its action falls within one of its
categorical exclusions, which are defined as “categor[ies] of actions which do not
individually or cumulatively have a significant effect on the human environment and which
have been found to have no such effect in procedures adopted by a Federal agency.” 6 An
agency’s list of categorical exclusions must be published in the Federal Register, 7 and an
agency’s procedures must “provide for extraordinary circumstances in which a normally
excluded action may have a significant environmental effect.” 8 Before an agency can
3
J.A. 35.
4
We have jurisdiction under 49 U.S.C. § 46110(a). We review agency actions using an
“arbitrary and capricious” standard. Del. Dep’t of Nat. Resources & Envtl. Control v. U.S.
Army Corps of Eng’rs, 685 F.3d 259, 271 (3d Cir. 2012).
5
42 U.S.C. § 4332(C).
6
40 C.F.R. § 1508.4.
7
40 C.F.R. § 1507.3(a).
8
40 C.F.R. § 1508.4.
3
conclude that its action is categorically excluded, the agency must consider whether any of
its delineated extraordinary circumstances apply. 9
The FAA has published a list of categorical exclusions and has also created a list of
twelve extraordinary circumstances that require more thorough environmental review. 10 In
this case, the FAA considered Allegiant’s request to amend its Operating Specifications
and determined that no extraordinary circumstances existed. The FAA then concluded that
its categorical exclusion for “[o]perating specifications and amendments that do not
significantly change the operating environment of the airport” applied and that therefore
preparing an Environmental Impact Statement was unnecessary. 11
The Petitioners challenge the FAA’s determination that Allegiant’s request did not
present any extraordinary circumstances. Specifically, the Petitioners take issue with the
FAA’s conclusion that its extraordinary circumstance regarding noise—which precludes a
determination that a categorical exclusion is applicable when an action “has the potential
for a significant impact” on “noise levels of noise sensitive areas”—did not apply to
Allegiant’s request. 12 The Petitioners contend that the FAA acted arbitrarily and
capriciously because it only evaluated the impact that Allegiant’s fourteen proposed
operations would have on noise in the area surrounding Trenton. Instead, the Petitioners
assert, the FAA was required to consider the impact of Allegiant’s expansion beyond the
fourteen operations it proposed because the FAA has explained that once an airline is
9
FAA Order 1050.1F at ¶¶ 5-6.2.
10
Id. at ¶¶ 5-2, 5-6.
11
FAA Order 1050.1F at ¶ 5-6.2(d).
12
FAA Order 1050.1F at ¶ 5-2(b).
4
permitted to operate at an airport, the FAA cannot control the number of flights the airline
will operate. 13
The Petitioners’ assertions that the FAA only considered Allegiant’s fourteen
proposed operations in conducting its noise analysis are incorrect. In fact, as the FAA
explained in its Decision, the FAA considered both Allegiant’s noise analysis, which only
accounted for the fourteen proposed operations, and a noise analysis prepared by Trenton
that was based on a forecast twenty years into the future of all foreseeable air traffic by
Allegiant and other airlines operating at Trenton. Neither noise analysis showed that
Allegiant’s operation at Trenton would have a significant impact on noise in the area under
the FAA’s prevailing standards for significance.
The Petitioners do not challenge the validity of Trenton’s noise analysis. For
example, they do not argue that the analysis is based on improper assumptions about future
air traffic or that its conclusions are erroneous. 14 Accordingly, we conclude that the FAA
13
The Township of Lower Makefield (“Township”) submitted an amicus brief in support
of the Petitioners’ position in this matter. The Township seconds the Petitioners’
arguments regarding the FAA’s noise analysis.
14
Although the Petitioners do not challenge the methodology behind the noise analyses the
FAA cited in its Decision, the Township argues that the FAA acted arbitrarily and
capriciously by relying on Allegiant’s noise analysis because the methodology it used was
not the model required by FAA Order 1050.1F Appendix B § B-1.2 for a “detailed noise
analysis.” The Township’s argument does not hold water. While FAA Order 1050.1F
Appendix B § B-1.2 does require that specific methodologies be used for a “detailed noise
analysis,” FAA Order 1050.1F Appendix B § B-1.1 explains that “[a]ircraft noise screening
may rule out the need for more detailed noise analysis.” Here, Allegiant’s analysis
functioned as a noise screening, and its results indicated that a more detailed noise analysis
was unnecessary. Furthermore, Allegiant’s analysis used a methodology (the Area
Equivalent Method) approved for noise screening by FAA 1050.1F Desk Reference §
11.1.3. See FAA 1050.1F Desk Reference § 11.1.3, available at
5
did not act arbitrarily and capriciously in determining that its extraordinary circumstance
regarding noise was not applicable to Allegiant’s request to amend its Operating
Specifications.
Thus, because the Petitioners have waived the rest of their arguments concerning
the FAA’s Decision in this case, 15 we will affirm the FAA’s Decision.
III.
For the foregoing reasons we will affirm the FAA’s Decision to approve Allegiant’s
requested amendment to its Operating Specifications.
https://www.faa.gov/about/office_org/headquarters_offices/apl/environ_policy_guidance/
policy/faa_nepa_order/desk_ref/media/11-noise.pdf.
15
The Petitioners make some additional arguments challenging the FAA’s determinations.
First, they argue in their Reply brief that the FAA should have provided public notice of
Allegiant’s proposed amendment and that the situation at issue presents an extraordinary
circumstance because the impact of Allegiant’s operations was “likely to be highly
controversial on environmental grounds.” FAA Order 1050.1F at ¶ 5-2(b)(10). These
issues have been waived because they were not raised in the Petitioner’s initial brief.
Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375,
398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for
those purposes a passing reference to an issue . . . will not suffice to bring that issue before
this court.”) (internal quotations omitted). Second, the Petitioners attempt to join the
Township’s challenge to the FAA’s analysis of the effect that Allegiant’s operation at
Trenton would have on air quality in the area. However, again, the Petitioners failed to
adequately raise such argument in their initial brief, so it is waived. Id. Accordingly, we
need not consider the issue. N.J. Retail Merchs. Ass'n v. Sidamon-Eristoff, 669 F.3d 374,
383 n.2 (3d Cir. 2012) (“‘Although an amicus brief can be helpful in elaborating issues
properly presented by the parties, it is normally not a method for injecting new issues into
an appeal, at least in cases where the parties are competently represented by counsel.’”)
(quoting Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 2001)).
6
BRRAM Inc v. FAA
Combined Opinion