Alliance for Legal Action v. U.S. Army Corps of Engineers, Civ. No. 1:04CV00034.

• Citation: 314 F.Supp.2d 534
• Decision Date: 27 April 2004
• Docket Number: Civ. No. 1:04CV00034.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: ALLIANCE FOR LEGAL ACTION, Gilsen C. Happel, Walter S. Druce, J. Richard Black, and Randall I. Schultz, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Lieutenant General Robert B. Flowers, Colonel Charles R. Alexander, and Piedmont Triad Airport Authority, Defendants.

314 F.Supp.2d 534

ALLIANCE FOR LEGAL ACTION, Gilsen C. Happel, Walter S. Druce, J. Richard Black, and Randall I. Schultz, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Lieutenant General Robert B. Flowers, Colonel Charles R. Alexander, and Piedmont Triad Airport Authority, Defendants.

Civ. No. 1:04CV00034.

United States District Court, M.D. North Carolina.

April 27, 2004.

COPYRIGHT MATERIAL OMITTED

James E. Tanner, Clark Bloss & Wall, PLLC, Jeffrey K. Peraldo, Greensboro, NC, Carolyn Dorman Mozden, Bruce J. Terris, Terris Pravlik & Millian, Washington, DC, for Plaintiffs.

Gill P. Beck, Office of U.S. Attorney, Jessica Mollie Marlies, George William House, William P.H. Cary, Brooks Pierce McLendon Humphrey & Leonard, William Owen Cooke, Jr., Cooke & Cooke, Greensboro, NC, Michael B. Heister, U.S. Dept. of Justice, Environment and Nat. Resource Div., Washington, DC, Justin P. McCorcle, U.S. Army Corps of Engineers, Wilmington, NC, for Defendants.

MEMORANDUM OPINION

BULLOCK, District Judge.

Defendant Piedmont Triad Airport Authority ("PTAA") owns and operates the Piedmont Triad International Airport ("PTIA") in Guilford County, North Carolina. PTAA is expanding its existing facilities to include an overnight express air cargo hub. Because this project involves discharging "dredge and fill" material into 22.93 acres of wetlands surrounding the airport, PTAA applied for a permit from the United States Army Corps of Engineers ("the Corps"). On December 8, 2003, the Corps issued Department of the Army Permit Number 200021655 ("Section 404 permit") to PTAA pursuant to Section 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ("the Clean Water Act").

Plaintiffs, a non-profit corporation and four members of its board of directors, have filed this action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, seeking to enjoin construction of the hub and to invalidate PTAA's Section 404 permit. On March 2, 2004, the court heard argument on Plaintiffs' motion for a preliminary injunction and denied injunctive relief. This matter is now before the court on Plaintiffs', PTAA's, and the Corps's motions for summary judgment.¹ The Corps has filed a certified copy of the twenty-two volume Administrative Record ("AR"). For the following reasons, the court will grant Defendants' motions for summary judgment and will deny Plaintiffs' motion.

FACTS

PTAA's Section 404 permit authorizes construction of a 9,000-foot runway parallel to PTIA's existent 10,001 foot runway, a 300-acre storage facility between the runways on the northeast side, new taxiways, and the rerouting of three area roadways. To facilitate this construction, the permit allows PTAA to discharge 1,450,399 cubic yards of fill into 12,823 linear feet of stream channels and 22.93 acres of wetlands. Work on the project began in January 2004 and is not expected to be fully complete until 2009.² (App. Supp. Br. Opp'n Pls.' Mot. Prelim. Inj. Relief, D7, Aff. of Edward A. Johnson ¶ 3.)

Since 1968, PTAA has contemplated building a cargo hub that generally conforms to the project's present configuration. See Federal Aviation Administration Record of Decision ("ROD") at 9 (AR 1414) ("the proposed parallel runway and land area for cargo facility have been depicted on the PTIA [Airport Layout Plan] in the currently proposed locations since the publication of the 1968 Master Plan"); see also id. (discussing PTAA's 1994 Master Plan, which recommended development of a parallel runway and high speed taxiways); (Johnson Aff. at ¶ 7 (discussing PTAA's Master Plans of 1968, 1973, 1990, and 1994, which depict a parallel runway at approximately the same location as the current plan, and the 1994 plan, which identifies a "Future Air Cargo Area" on the site chosen for the FedEx hub)); AR 5301-05 (PTAA documentation of these plans). However, PTAA has tailored the proposed improvements to accommodate FedEx Corp. ("FedEx"), an overnight delivery company that will operate the cargo hub. In November 1997, FedEx sought to establish a Mid-Atlantic cargo hub in the Carolinas and solicited proposals for the project from regional airports. See AR 5484. PTIA, Raleigh-Durham International Airport, Charlotte International Airport, North Carolina Global Transpark, Greenville-Spartanburg International Airport, and Columbia Metropolitan Airport submitted proposals. FedEx then evaluated each airport based on criteria such as airport operation, configuration, and airfield capacity; site selection and environmental constraints; and financial considerations. See Federal Aviation Administration Final Environmental Impact Statement ("EIS") § 2.2.2.2. In April 1998, FedEx selected PTIA as its desired site.³

To obtain approval of the construction plans and determine its eligibility for federal funding, PTAA submitted a project proposal to the Federal Aviation Administration ("FAA"). In accordance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the FAA prepared an Environmental Impact Statement ("EIS"). In the EIS, the FAA formulated a purpose statement for the project, analyzed alternatives to PTAA's proposal, and considered preliminary environmental impacts.

The FAA determined that PTAA's goals of accommodating regional air transportation needs and continuing to be an economic generator for the area were consistent with federal transportation policy and the public interest. See EIS §§ 2.2.1; 2.2.2.1. In light of these goals, the FAA defined the project's purpose as "to develop facilities at PTIA that would provide airside, landside, and surface transportation improvements to support the development and efficient operation of an overnight express air cargo hub facility at PTIA." EIS § 2.2.3.5. The FAA concluded that the following improvements were necessary to fulfill this purpose: an airfield with a redundant transport runway system with a runway a minimum of 9000 feet long; an airfield system that can accommodate dual simultaneous independent operations and head-to-head operations when "Instrument Flight Rules" or "Instrument Meteorological Conditions" exist; and an air cargo hub of sufficient size, geometry, and location to allow flexible, efficient package processing. EIS § 2.2.3.

In its EIS, the FAA discussed how each of these elements would meet the operational requirements of an overnight, express air cargo hub. See EIS §§ 2.2.3-2.2.3.3. As part of its assessment, the agency relied on a computer simulation tool called Total Airport and Airspace Modeling ("TAAM") to compare the efficiency and cost of the existing runway configuration with the proposed configuration. EIS §§ 2.2.3.2; 3.2.1.3; AR 5596 ("A Report of Four Runway Alternatives for Piedmont Triad International Airport Simulated in Total Airport and Airspace Modeller"). The TAAM simulation accounted for factors such as arrival/departure routes to and from paired cities, aircraft fleet mix, time of operation, and traffic control procedures at PTIA. Based on the TAAM data, the FAA indicated that the three elements of PTAA's proposed configuration would provide efficient and safe cargo hub operations and that the parallel runway system ultimately would benefit all airport users by improving PTIA's operational efficiency. See EIS §§ 2.2.3.2; 3.2.1.3. Though PTAA suggested this configuration based on FedEx's operating requirements, the FAA confirmed that:

Based on FAA planning guidelines, the greatest degree of operational capacity improvement is achieved through the development and use of widely spaced parallel runways that allow the ability to conduct dual simultaneous independent operations and efficient head-to-head operations in all weather conditions. No other runway configuration provides for a comparable level of hourly and total daily operations.

EIS § 3.2.1.3. (citing FAA AC 150/5060-5, Change 2, Airport Capacity and Delay, 1995).

After identifying the project purpose and defining the improvements central to meeting that purpose, the FAA identified practicable alternatives to PTAA's proposal using a three-tier scheme. At Level One, the FAA evaluated each alternative based on its ability to meet the project purpose (i.e., to develop an air cargo hub at PTIA, construct a 9000-foot parallel runway, provide the ability to conduct head-to-head operations and dual simultaneous independent operations, and place a 300-acre cargo facility between the runways). See EIS § 3.2.1.4. Those alternatives meeting the Level One requirements were then evaluated at Level Two for constructability, with an emphasis on impacts to existing infrastructure, property acquisition, relocation of residences and businesses, costs, and preliminary environmental impacts. See EIS § 3.2.2. At Level Three, project alternatives were subjected to a more rigorous environmental analysis, including an examination of each alternative's effect on wetlands and floodplains. See EIS § 5.

The FAA subjected forty-two alternatives to Level One analysis. These alternatives included off-site airports, construction of a new airport, on-site configurations, and a no-action alternative. The FAA recognized that it could not authorize construction of the cargo hub at any airport other than PTIA. See EIS §§ 3.2.1.1; 3.3.1. Thus, all off-site alternatives were eliminated at Level One. Nevertheless, the FAA briefly evaluated the off-site alternatives to determine if any conformed to other aspects of the project purpose. The FAA summarily rejected each of the off-site alternatives for various safety or constructability reasons apart from its off-site status. See EIS § 3.3.1.2.

The FAA then evaluated forty on-site alternatives (eight runway configurations matched against five site configurations) in addition to PTAA's preferred alternative and the Citizens Scoping Alternative that Plaintiffs submitted. See EIS Table 3.3.3-1. The FAA eliminated many on-site alternatives because they could not meet the FAA's safety...