City of Grapevine, Tex. v. Department of Transp., 92-1151
| Decision Date | 09 May 1994 |
| Docket Number | No. 92-1151,92-1151 |
| Citation | 17 F.3d 1502 |
| Parties | , 24 Envtl. L. Rep. 20,828 CITY OF GRAPEVINE, TEXAS, et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, et al., Respondents. Dallas/Fort Worth International Airport Board, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Department of Transportation.
Eliot R. Cutler, argued the cause for petitioners. With him on the briefs was Perry M. Rosen. Peter J. Kirsch, Robert H. Power, and Christopher Caso entered an appearance for petitioners in No. 92-1151. Peter J. Kirsch and James W. Deatherage entered an appearance for petitioner in No. 92-1158. John Longstreth entered an appearance for petitioners in No. 92-1247.
Albert M. Ferlo, Jr., Attorney, United States Department of Justice, argued the cause for respondents. With him on the brief was Peter R. Steenland, Jr., Acting Deputy Assistant Attorney General, United States Department of Justice.
Michael Schneiderman argued the cause for intervenor Dallas/Fort Worth International Airport Board. With him on the brief were Kevin E. Cox and Michael M. Conway.
On the brief for amici curiae The Church in Dallas, The Church in Irving, and the Living Stream Ministry was Rangely Wallace.
On the brief for amicus curiae Natural Resources Defense Council was S. Jacob Scherr.
On the brief for amicus curiae National Trust for Historic Preservation in the United States was Elizabeth S. Merritt. Paul W. Edmondson and Andrea C. Ferster entered an appearance.
Before MIKVA, Chief Judge, BUCKLEY, and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Various individuals and political subdivisions of the State of Texas petition for review of the Federal Aviation Administration's decision approving a plan to expand the Dallas/Fort Worth International Airport and declaring portions of the expansion project eligible for federal funding. The petitioners contend that: (1) the FAA's categorical exclusion of some elements of the expansion project from consideration in its Final Environmental Impact Statement (FEIS) renders that document inadequate under the FAA's regulations implementing the National Environmental Policy Act, 42 U.S.C. Sec. 4321 et seq.; (2) the FAA failed to consider the environmental impact of all reasonable and feasible alternatives to the project, in violation of Council on Environmental Quality (CEQ) regulations implementing the NEPA; (3) the FAA erred in determining that the airport project would not "use" historic properties within the meaning of Sec. 4(f) of the Department of Transportation (DOT) Act, 49 U.S.C. Sec. 303(c); and (4) the FAA violated the National Historic Preservation Act (NHPA), 16 U.S.C. Sec. 470 et seq., by issuing its Record of Decision before review under the NHPA was complete. For the reasons set forth below, we deny the petitions for review in all respects.
In 1988, the DFW Airport Board proposed to expand the airport and asked the FAA to fund eligible portions of the project. The Board's proposed Airport Layout Plan (ALP) contemplated the addition of two runways, two terminals, and more than 400 acres of parking, as well as cargo, hangar, maintenance, and other support facilities. Existing runways would also be expanded, while some terminals would be razed.
Under the NEPA, the FAA was required as part of its approval process to assess the environmental effects of the project. 42 U.S.C. Sec. 4332(2)(C). Accordingly, in August 1990 the agency solicited comments on a Draft EIS (DEIS), and later (in January 1992) released the FEIS. Still later, the FAA gave "final approval" to the ALP and declared the project eligible for federal funding. See FAA Record of Decision, April 1992. The FAA specifically provided, however, that no expenditures for construction of the West Runway would be permitted until the review process required by the NHPA was completed. Three cities and a school district in which the airport is located, and certain owners of undeveloped property in the area, now seek review of the FEIS and of the FAA's Decision, pursuant to 49 U.S.C.App. Sec. 1486.
The petitioners raise various challenges under the FAA's regulations, CEQ regulations, the DOT Act, and the NHPA.
The NEPA requires each federal agency to consider in an EIS the environmental impact of "every recommendation or report on proposals for ... major federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). The EIS must include, among other things, a "detailed statement" describing the reasonably foreseeable environmental impact both of the proposed federal action and of any feasible alternative(s) to the proposed federal action, including non-action. 42 U.S.C. Secs. 4332(2)(C)(i), (iii). Upon review of the EIS, our job is to ensure that the agency took a "hard look" at the environmental consequences of its decision to go forward with the project. Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 294 (D.C.Cir.1988).
The petitioners contend that the FEIS fails the "hard look" test. The gravamen of their argument is that the FAA improperly excluded substantial portions of the ALP from its environmental review, thereby failing to consider the full environmental impact of the project as required under the FAA's regulations governing the proper scope of an EIS.
The FAA described the "proposed federal action" for which it prepared the FEIS as "the Federal approval and funding participation in the construction of proposed new Runway 16/34 East, scheduled to be operational in 1992, and proposed new Runway 16/34 West, scheduled to be operational in 1997, and the runway-related improvements and safety actions associated with their operation at the [DFW] Airport." The FAA determined that certain elements of the project, such as ground transportation improvements, could be categorically excluded from individualized consideration in the FEIS.
In Appendix 3 of the FEIS the FAA explained that it categorically excluded those aspects of the project under FAA Order 5050.4A p 23. That regulation implements a CEQ rule, 40 C.F.R. Sec. 1508.4, that authorizes an agency to list in advance the types of federal actions within its jurisdiction for which an Environmental Assessment (EA) or an EIS normally will not be required. The petitioners do not deny that the elements that the FAA excluded in this instance are all listed in p 23; rather they claim that the FAA was required to examine their effects anyway pursuant either to p 24, which enumerates various characteristics that preclude exclusion under p 23, or pursuant to p 26, which requires consideration of "the overall cumulative impact of the proposed action and the consequences of subsequent related actions."
Paragraph 24 provides that "[p]roposed Federal actions which are normally categorically excluded but which have any of the following characteristics shall be the subject of an environmental assessment ...
a. An action that is likely to have an effect on properties protected under section 106 of the Historic Preservation Act of 1966 ... or use section 4(f) lands....
b. An action that is likely to be highly controversial on environmental grounds. A proposed Federal action is considered highly controversial when the action is opposed on environmental grounds by a Federal, state, or local government agency or a substantial number of the persons affected by such action....
c. An action that is likely to have a significant impact on natural, ecological, cultural, or scenic resources of national, state, or local significance....
d. An action that is likely to be highly controversial with respect to the availability of adequate relocation housing....
e. An action that is likely to ... cause substantial division or disruption of an established community, or disrupt orderly, planned development or ... increase surface traffic congestion....
f. An action that is likely to ... have a significant impact on noise levels of noise sensitive areas; [h]ave a significant impact on air or water quality or violate the local, state, or Federal standards for air quality; [or h]ave a significant impact on water quality or contaminate a public water system; or ... [b]e inconsistent with any Federal, state, or local law or administrative determination relating to the environment.
g. Other action that is likely to directly or indirectly affect human beings by creating a significant impact on the environment."
The petitioners do not claim that each excluded element, standing alone, satisfies a p 24 criterion; rather, they argue more broadly that "[t]he Expansion Project met not just one, but most of the criteria set forth in paragraph 24." (Emphasis added.) For example, invoking p 24(b) they point out that each of the petitioners opposed the airport expansion project, and that each of the petitioners as well as the Attorney General of Texas, the DOT, and the Environmental Protection Agency (EPA) submitted comments questioning the adequacy of the FAA's environmental review of the project. Presumably with p 24(e) in mind, they contend that the proposed ALP would disrupt community planning that had been carried out in reliance upon an airport master plan devised in the 1970's. "In short," they say, "even the FAA's own regulations obliged it to review the entire expansion project, including all the portions it ignored as categorically excluded."
The FAA, on the other hand, maintains that the petitioners improperly aggregate the excluded elements into an "action" precluded by p 24 from exclusion. According to the agency, an element that is otherwise excluded pursuant to p 23--a new terminal, or the expansion of a runway, for example--is...
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