Airport Neighbors Alliance, Inc. v. U.S.

• Decision Date: 23 July 1996
• Docket Number: No. 95-9503,95-9503
• Parties: , 27 Envtl. L. Rep. 20,214 AIRPORT NEIGHBORS ALLIANCE, INC., a New Mexico corporation, Petitioner, v. UNITED STATES of America; Federico Pena, Secretary of Transportation; David R. Hinson, Administrator, Federal Aviation Administration; Cynthia Rich, Assistant Administrator, Airports Division; Albuquerque, City of, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 426

90 F.3d 426

44 ERC 1104, 27 Envtl. L. Rep. 20,214

AIRPORT NEIGHBORS ALLIANCE, INC., a New Mexico corporation, Petitioner, v. UNITED STATES of America; Federico Pena, Secretary of Transportation; David R. Hinson, Administrator, Federal Aviation Administration; Cynthia Rich, Assistant Administrator, Airports Division; Albuquerque, City of, Respondents.

No. 95-9503.

United States Court of Appeals Tenth Circuit.

July 23, 1996.

Eric Ames of the Western Environmental Law Center, Taos, NM, (Grove T. Burnett, of the Western Environmental Law Center, with him on the brief), for Petitioner.

Michael M. Conway of Hopkins & Sutter, Chicago, IL (Mark G. Shoesmith, of the Albuquerque City Attorney's Office, NM, and Michael Schneiderman, of Hopkins & Sutter, Chicago, IL, with him on the brief), for Respondent City of Albuquerque.

Peter R. Steenland, Jr., U.S. Department of Justice (Lois J. Schiffer, Asst. Atty. General, and Andrew C. Mergen, Attorney, U.S. Department of Justice, and Daphne A. Fuller, Eric Anderson and Loretta Barlow, Federal Aviation Administration, with him on the brief), for Federal Respondents.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and LUCERO, Circuit Judge.

EBEL, Circuit Judge.

The number of passengers flying in and out of New Mexico's sole commercial jet airport has been increasing during the 1990s, and the City of Albuquerque--home to the Albuquerque International Airport--projects the passenger traffic at the Airport to continue a steep ascent. Anticipating a growing influx in passengers, the City proposed to upgrade Runway 3-21 at the Albuquerque International Airport in order to enable it to accommodate large aircraft such as commercial jets. The Federal Aviation Administration, pursuant to the National Environmental Policy Act, prepared an Environmental Assessment ("EA") for the proposed action and, following public comment, issued a Decision and Order which approved the runway expansion and incorporated a Finding of No Significant Impact to the environment ("FONSI"), foreclosing Respondents' need to prepare an Environmental Impact Statement ("EIS"). Petitioner Airport Neighbors Alliance Inc., an assembly of neighborhood associations surrounding the Airport, challenges the FAA's decision to issue a FONSI, and argues that the agency should have prepared an EIS. Airport Neighbors considers the EA inadequate for: (1) failing to consider cumulative impacts associated with the Runway 3-21 upgrade; (2) failing to consider a reasonable range of alternatives to the Runway 3-21 upgrade; and (3) failing to analyze adequately noise and safety effects related to the Runway 3-21 upgrade. For the reasons stated below, we AFFIRM the FAA's decision to issue a FONSI.

Background

The Airport is located four miles south of Albuquerque's central business district and is surrounded by residential neighborhoods to the north, Kirtland Air Force Base to the east and southeast, undeveloped land to the south, and industrial operations to the west. The Airport is served by four runways. At the time the Runway 3-21 upgrade was proposed, only two of the runways--Runway 8-26 and Runway 17-35--could be used by commercial jet aircraft. Runway 8-26 was the primary runway, with Runway 17-35 being used less than six percent of the year. The other two runways--Runway 3-21 and Runway 12-30--were of insufficient width, length, and pavement strength to accommodate air carrier jet traffic.

In December 1993, the City, in anticipation of a projected increase in passenger use during the upcoming decades, announced a Master Plan for the Airport which sets forth a construction schedule in three phases over 20 years. The components of the Master Plan include: upgrading Runway 3-21 to accommodate commercial jet traffic; reconstructing Runway 8-26; closing Runway 17-35; expanding the terminal facility; constructing a second parking structure; building a new cargo services building; expanding surface access roads; and relocating rental car facilities.

At the same time the City issued the Master Plan, the FAA issued a draft EA for upgrading Runway 3-21, which is the proposed action being challenged here. Specifically, the proposal included shifting the runway's centerline 50 feet to the southeast, lengthening the runway to 10,000 feet, widening the runway to 150 feet, and increasing the pavement strength to accommodate commercial jet and military aircraft. Respondents characterize the two purposes of the proposed action as: (1) insuring the airport's ability to accept jet air traffic while the primary runway, Runway 8-26, is closed for reconstruction; and (2) accommodating the projected growth in air traffic at the Airport. On July 28, 1994, the FAA finalized the EA, and it issued the FONSI in October, 1994. Work on the Runway 3-21 upgrade project since has been completed to the point that commercial aircraft currently use Runway 3-21 for takeoffs and landings. ¹ Airport Neighbors now challenges the FAA's decision to issue a FONSI, arguing that the EA was inadequate because it failed to address the cumulative impacts of the proposed action, several alternatives to the proposed action, and noise and safety concerns.

Mootness

Because construction on Runway 3-21 has been substantially completed, we must consider whether Airport Neighbors' appeal is now moot. Although both parties stated at oral argument they do not consider this action moot, we are under an independent obligation to examine our own jurisdiction. Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1574 n. 14 (10th Cir.1995) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990)). Ordinarily, a NEPA claim no longer presents a live controversy when the proposed action has been completed and when no effective relief is available. See Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir.1994); Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988). However, courts still consider NEPA claims after the proposed action has been completed when the court can provide some remedy if it determines that an agency failed to comply with NEPA. See National Parks and Conservation Ass'n v. FAA, 998 F.2d 1523, 1524 n. 3 (10th Cir.1993) (finding case challenging airport construction not moot after construction was completed when restrictions could be placed on the use of an airport); Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th Cir.1980) (holding action challenging already completed sale of airport not moot when the actions could be "undone"), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981).

We do not believe that the present case is moot because if we find that the Respondents failed to comply with NEPA, we could order that the runway be closed or impose restrictions on its use until Respondents complied with NEPA. The majority of environmental concerns surrounding Runway 3-21 relate not to the actual physical construction of the enlarged runway, but rather to the new patterns of commercial jets using the runway. For example, the EA discusses in detail the impacts that the operation of jets using the runway will have on noise, air quality, and water quality. In contrast, the EA only briefly addresses the construction impacts and considers such impacts to be only temporary. Therefore, although the fact that the upgrade of Runway 3-21 has been completed renders moot any claim relating to the construction of the runway, we still may consider whether Respondents complied with NEPA by adequately addressing the environmental impacts resulting from the enhanced use of the runway.

The NEPA Framework

NEPA requires that federal agencies draft an EIS in conjunction with "every recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Under NEPA, an agency generally prepares an EA of the proposed action to guide whether it should prepare an EIS or issue a FONSI. 40 C.F.R. 1501.4(a)-(c). If the agency determines that its proposed action may "significantly affect" the environment, the agency must prepare a detailed statement on the environmental impact of the proposed action in the form of an EIS. City of Aurora v. Hunt, 749 F.2d 1457, 1464 (10th Cir.1984). If the agency determines that its proposed action will not significantly affect the environment, it may issue a FONSI. Id.

The initial determination concerning the need for an EIS lies with the agency. Id. at 1468. The reviewing court's role is to determine whether the "agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Id. at 1465-66 (citing Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)).

I. Whether the EA adequately addresses cumulative impacts.

Airport Neighbors argues that the EA impermissibly ignores the cumulative impacts associated with the Runway 3-21 upgrade. Airport Neighbors claims that the proposed action is a single component in a larger contemplated expansion at the Airport, as evidenced by the Master Plan. Therefore, Airport Neighbors believes that the EA should have addressed the environmental impacts of several projects proposed in the Master Plan such as expansion of the passenger terminal, construction of a second parking structure, construction of a new cargo terminal, and expansion of surface access roads. ² The FAA and City respond that the Runway 3-21 project has independent utility from other components of the Master Plan, which at this time are merely elements of a plan that might be completed over a 20-year period. The Respondents state that the FAA will follow NEPA procedures for each component of the Master Plan when the City actually proposes to construct the particular component.

In determining whether a proposed action will...