City of Oxford, Ga. v. F.A.A., 04-13934.

• Citation: 428 F.3d 1346
• Decision Date: 31 October 2005
• Docket Number: No. 04-13934.,04-13934.
• Parties: CITY OF OXFORD, GEORGIA, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Marion C. Blakely, Administrator of the Federal Aviation Administration, Respondents, City of Covington, Georgia, Georgia Department of Transportation ("GDOT"), Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

428 F.3d 1346

CITY OF OXFORD, GEORGIA, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Marion C. Blakely, Administrator of the Federal Aviation Administration, Respondents, City of Covington, Georgia, Georgia Department of Transportation ("GDOT"), Intervenors.

No. 04-13934.

United States Court of Appeals, Eleventh Circuit.

October 31, 2005.

COPYRIGHT MATERIAL OMITTED

Susan Marie Garrett, Decatur, GA, for Petitioner.

M. Alice Thurston, Lisa E. Jones, U.S. Dept. of Justice, Appellate Section/Environ. & Nat. Res., Washington, DC, for Respondents.

Daniel S. Reinhardt, Steven J. Hewitson, Troutman Sanders LLP, Atlanta, GA, Cynthia A. Presto, Presto & Berggren, LLC, Roswell, GA, for Intervenors.

Petition for Review of an Order of the Federal Aviation Administration.

Before TJOFLAT and KRAVITCH, Circuit Judges, and LIMBAUGH^*, District Judge.

TJOFLAT, Circuit Judge:

The City of Oxford, Georgia petitions this court to review the Federal Aviation Administration's ("FAA") order approving revisions to the Airport Layout Plan ("ALP")¹ at the Covington Municipal Airport.² The City asserts that the FAA failed adequately to assess the environmental impacts of the airport renovation project proposed in the ALP, as required by the National Environmental Policy Act ("NEPA"), and that the FAA failed to comply with the procedural requirements imposed by the National Historic Preservation Act ("NHPA") for analyzing the project's impacts on historic properties. We find that the FAA fulfilled its obligations under NEPA and the NHPA, and therefore deny the petition for review.

I.

The Covington Municipal Airport is a regional airport located in the City of Covington, Georgia.³ The airport's western boundary abuts the city limits of the City of Oxford. Oxford is a small town with a historic district listed on the National Register of Historic Places. The historic district is located a few miles southeast of the airport and contains Oxford College of Emory University. In addition, the United Methodist Church deems the city to be a "Methodist Shrine," the only city in the United States so designated, and thus considers Oxford to be of historical significance.

Covington endeavors to renovate the airport so that it may better serve Covington and the surrounding communities. The proposed renovations accord with the Georgia Aviation System Plan ("GASP"), which the Georgia Department of Transportation ("GDOT") promulgated in an effort to respond to Georgia's current aviation needs. An ostensible goal of the GASP is to provide, within a forty-five minute drive of each Georgia community, an airport capable of landing 95% percent of the business and corporate aircraft fleet.

The GASP classifies each Georgia airport as a Level I, Level II or Level III airport.⁴ Level III airports are the most highly developed airports and are defined as "general aviation airports of regional significance capable of accommodating commercial aircraft or a variety of business and corporate jet aircraft." According to the GASP Executive Summary, published in 2001, "a minimum runway length objective of 5,500 feet has been established [for Level III airports]." The Executive Summary goes on to state that "ideally, operations at Level III airports should also be aided by a precision instrument approach."⁵ Other "objectives" identified by the GASP for Level III airports include a minimum runway width of 100 feet and a 2,500 square foot minimum terminal/administrative building with public restrooms, a conference area and a pilot's lounge.

The Covington Municipal Airport is classified as a Level III airport and has a runway 4,203 feet long and seventy-five feet wide. To meet the GASP objectives, Covington seeks to extend the runway by approximately 1,300 feet and to widen it by twenty-five feet. After this is done, Covington plans to extend the parallel taxiway. The extension and widening of the runway, along with the extension of the parallel taxiway, are the only airport modifications to which funds have been committed. The GDOT is providing 75% of the funding, with Covington providing the additional 25%.

Covington sought FAA approval for these modifications,⁶ and it hired an independent contractor, Wilbur Smith Associates, to prepare an Environmental Assessment ("EA") discussing the environmental impacts of the proposed modifications. Wilbur Smith studied four alternatives: extending the eastern end of the runway, extending the western end of the runway, extending both ends of the runway and "no-build."⁷ Its EA concluded that the extension of the eastern end of the runway, which Covington preferred to the other alternatives, would be the least disruptive of the three "build" alternatives.⁸

While Wilbur Smith conducted its study, Covington sponsored archaeological and historical surveys to determine whether the project affected sites of historical or archaeological significance. These surveys, which were completed in June 2000, concluded that no historical or archaeological resources would be impacted by the project. In November 2001, the FAA sent a letter to the Historic Preservation Division ("HPD") of the Georgia Department of Natural Resources⁹ asking it to concur with the determination that the project would not affect historic properties. The HPD responded in May 2002; it requested that the FAA consult with the City of Oxford, Emory University, and the North Georgia Conference of Methodist Churches. These parties had written letters and placed telephone calls to the HPD seeking to become "consulting parties."

The FAA held a "special interest" meeting for the City of Oxford, Emory University and the North Georgia Conference of Methodist Churches on July 16, 2002. This meeting came on the heels of Wilbur Smith's release of the first Draft EA. One week later, on July 23, the FAA held a public hearing at the airport, receiving comments from those in attendance and the City of Oxford.

The HPD contacted the FAA in September 2002 to state that it could not comment on the Draft EA and to suggest that Covington revise its noise estimates. Covington followed this suggestion and revised its aviation forecasts through the year 2020. Then, on January 10, 2003, the FAA held a special interest meeting to discuss noise impact.

The FAA transmitted the result of Covington's revised noise analysis to the HPD. The result was that no historical, residential or other sensitive areas would suffer adverse auditory effects from the project. The HPD responded to the FAA's transmittal on April 17, 2003, stating that it could not reach a conclusion regarding auditory effects of the project. It suggested that the FAA consult with the United States Advisory Council on Historic Preservation ("ACHP"). The FAA sent a letter to the ACHP on April 30, 2003, requesting that the ACHP defer to the finding that the project would not create any adverse auditory effects. The ACHP responded that the FAA was "free to continue with its review of this undertaking under determination that expansion of Covington's new runway will have no adverse visual effect, and [that] there will be no noise effects, to historic properties."¹⁰

On July 8, 2004, the FAA issued a Finding of No Significant Impact ("FONSI") and Record of Decision ("ROD"), approving Covington's proposed project. The FONSI concluded that the proposed project would not significantly impact the environment and included a finding of no adverse effect on historic properties. The City of Oxford received copies of the Final EA and the FONSI/ROD on July 21, 2004, and promptly filed the petition for review now before us.

In support of its petition, the City of Oxford (the "Petitioner") contends that the FAA violated NEPA by (1) failing to assess the environmental impacts of the proposed project in conjunction with relocation of Georgia Highway 142 ("S.R.142") and the construction of a new terminal building; (2) failing to assess the air quality in light of the fact that the airport is located in a county that is not "in attainment" for air quality standards;¹¹ and (3) exercising insufficient oversight over Wilbur Smith in its preparation of the EA. Petitioner argues that the FAA violated the NHPA by (1) failing properly to involve consulting parties; and (2) failing adequately to consider the project's adverse auditory effects on historic properties.

II.

We review an agency's final decision to determine whether it is arbitrary and capricious. 5 U.S.C. § 706.¹² See also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989) (holding that federal courts apply the "arbitrary and capricious" standard, as opposed to the "reasonableness" standard, when reviewing final agency decisions under the Administrative Procedure Act). This standard of review provides the reviewing court with very limited discretion to reverse an agency's decision. North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir.1990). The reviewing court may not substitute its judgment for that of the agency but must, instead, defer to the agency's technical expertise. Id. at 1539.

In the NEPA context, the reviewing court must ensure that the agency took a "hard look" at the environmental consequences of the project. Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir.2002). The agency need not have reached the same conclusion that the reviewing court would reach; the agency must merely have reached a conclusion that rests on a rational basis. Id. The reviewing court may overturn an agency's decision only if:

(1) the decision does not rely on factors that Congress intended the agency to consider; (2) the agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise.

Id. We therefore...