Barnes v. Fed. Aviation Admin.

• Decision Date: 03 August 2017
• Docket Number: No. 14-71180,14-71180
• Citation: 865 F.3d 1266
• Parties: Michelle BARNES, an individual; Patrick Conry, an individual; Blaine Ackley, an individual; David Barnes, an individual; James Lubischer, an individual; Oregon Aviation Watch, an Oregon non-profit organization, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent; Port of Portland, Intervenor-Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

865 F.3d 1266

Michelle BARNES, an individual; Patrick Conry, an individual; Blaine Ackley, an individual; David Barnes, an individual; James Lubischer, an individual; Oregon Aviation Watch, an Oregon non-profit organization, Petitioners,

v.FEDERAL AVIATION ADMINISTRATION, Respondent;

Port of Portland, Intervenor-Respondent.

No. 14-71180

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 5, 2016 Portland, Oregon

Filed August 3, 2017

Sean Malone (argued), Eugene, Oregon, for Petitioners.

Robert Lundman (argued), Maggie B. Smith, and Andrew C. Mergen, Attorneys, Appellate Section; Sam Hirsch, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Patricia Deem, Office of Regional Counsel, NW Mountain Division, Federal Aviation Administration; Eric Elmore and Daphne Fuller, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C.; for Respondent.

Jason T. Morgan (argued) and Beth S. Ginsberg, Stoel Rives LLP, Seattle, Washington, for Intervenor-Respondent.

Before: Sidney R. Thomas, Chief Judge, and Richard R. Clifton and Jacqueline H. Nguyen, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

This case involves a new runway at Hillsboro Airport, a general aviation airport near Portland, Oregon. We previously considered a challenge to the original environmental assessment done for the new runway project in Barnes v. United States Department of Transportation , 655 F.3d 1124 (9th Cir. 2011) (" Barnes I "). Although we rejected many of the arguments raised in the prior petition for review, we granted the petition and remanded for further consideration based primarily on concern for the possibility that the new runway would result in a larger number of takeoffs and landings at the airport, a possibility we concluded had not been adequately addressed.

Following remand, a supplemental environmental assessment was prepared. It concluded that the new runway would cause at most a small increase in air traffic and also determined that, even if the runway did induce a growth in traffic, any impact on air quality would be immaterial. The Federal Aviation Administration accepted that assessment and issued a finding that the new runway would have no significant impact on the environment. Petitioners, five individuals and a non-profit organization, oppose the new runway and challenge the FAA's conclusions. We have jurisdiction pursuant to 49 U.S.C. § 46110(a), and we deny their petition for review.

I. Background

Hillsboro Airport ("HIO") is located in the city of Hillsboro in Washington County, Oregon, twelve miles west of downtown Portland. It is owned by Intervenor-Respondent Port of Portland. In terms of airport operations (the sum of takeoffs and landings), it became the busiest airport in Oregon in 2008, surpassing Portland International Airport.¹

In 2005 the Port undertook to develop a Master Plan for HIO. Among other things, the Plan proposed construction of a new third runway, which would run parallel to the existing primary runway and would be used by small general aviation aircraft. The Plan concluded that adding the new runway would be "the best means available for reducing delays and the undesirable conditions that occur due to delay." The new runway would also allow for separating small, single-engine propeller planes from larger propeller planes and jet aircraft. The modifications were to be funded in part by FAA grants.

The use of FAA funds meant that the environmental effects of the project had to be considered. See 40 C.F.R. § 1508.18(a). The Port produced an environmental assessment ("EA") for the FAA, and the FAA issued a finding of no significant impact ("FONSI") in 2010. See 40 C.F.R. § 1508.13. That finding relieved the FAA of the obligation to have a more detailed environmental impact statement prepared. See 40 C.F.R. § 1501.4(e).

Opponents of the new runway, including three of the petitioners in this action, petitioned this court for review, arguing, among other things, that the EA did not meet the requirements of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. Barnes I , 655 F.3d at 1130–31. We rejected many of the opponents' arguments, but we granted the petition and remanded for further consideration. Id. at 1143. Although the EA concluded that the new runway would not increase air traffic at the airport, our decision concluded that the EA was inadequate because the FAA could not "point to any documents in the record that actually discusse[d] the impact of a third runway on aviation demand at HIO." Id. at 1136. Accordingly, we determined "that remand [was] necessary for the FAA to consider the environmental impact of increased demand resulting from the HIO expansion project, if any." Id . at 1139.

On remand, the Port produced a supplemental environmental assessment ("SEA"), which included three different forecasts for demand at HIO. The forecasts predicted at most a small increase in air traffic operations due to the new runway and concluded that pollution generated by any increased traffic would be negligible. The FAA adopted the SEA, concluded that it was unnecessary to prepare an environmental impact statement, and, in 2014, issued a new FONSI. See 40 C.F.R. §§ 1501.4, 1508.13 ; Morongo Band of Mission Indians v. FAA , 161 F.3d 569, 575 (9th Cir. 1998) ("If a FONSI is made, the agency need not prepare an EIS."). Following the decision of a motions panel of this court to deny Petitioners' motion for an injunction pending consideration of the petition, the Port constructed the runway, and the runway is now completed and open for use.²

Petitioners now contend that, on remand, the FAA did not fulfill NEPA's requirement to take a "hard look" at the environmental impacts of additional air traffic generated by the new runway. See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv. , 451 F.3d 1005, 1009 (9th Cir. 2006). They also argue that the circumstances of the project necessitated preparation of an environmental impact statement. See 42 U.S.C. § 4332(2)(C) ; 40 C.F.R. § 1508.27. Finally, they contend that the FAA did not comply with the Airport and Airway Improvement Act's requirement to ensure that the new runway was consistent with the plans of the appropriate local agencies. See 49 U.S.C. § 47106(a)(1).

II. Discussion

"Judicial review of agency decisions under NEPA ... is provided by the [Administrative Procedure Act], which maintains that an agency action may be overturned only when it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Pit River Tribe v. U.S. Forest Serv. , 469 F.3d 768, 778 (9th Cir. 2006) (quoting 5 U.S.C. § 706(2)(A) ). In the context of "reviewing an agency's decision not to prepare an EIS under NEPA," we consider "whether the agency has taken a ‘hard look’ at the consequences of its actions, ‘based [its decision] on a consideration of the relevant factors,’ and provided a ‘convincing statement of reasons to explain why a project's impacts are insignificant.’ "

Envtl. Prot. Info. Ctr. , 451 F.3d at 1009 (alteration in original) (quoting Nat'l Parks & Conservation Ass'n v. Babbitt , 241 F.3d 722, 730 (9th Cir. 2001) ). The FAA's conclusion that a proposed project meets the requirements specified in the Airport and Airway Improvement Act, 49 U.S.C. § 47106, is also reviewed under the arbitrary and capricious standard. See City of Dania Beach v. FAA , 628 F.3d 581, 588 (D.C. Cir. 2010).

A. Petitioners' Challenges to the Supplemental Environmental Assessment

Petitioners argue that the SEA was deficient in a number of respects and that it therefore did not constitute the "hard look" NEPA requires. We address each of Petitioners' contentions in turn.

1. Forecasting Methodologies

On remand, the Port produced three forecasts for air traffic growth at HIO: the Unconstrained Forecast, the Constrained Forecast, and the Remand Forecast.

The Unconstrained Forecast modeled air traffic based on socio-economic data without limitations related to the airport's infrastructure. In other words, the Unconstrained Forecast predicted how much air traffic HIO would see if it had limitless runways and other facilities. The Unconstrained Forecast predicted that HIO would have 224,260 total aircraft operations in 2016 and 242,680 total aircraft operations in 2021.

The Constrained Forecast modeled air traffic while taking account of HIO's limited runways and assuming that the new runway would not be built. The Constrained Forecast assumed that, if HIO became so crowded that the wait time to use its two then-existing runways became intolerable, then pilots would begin using other airports, and growth at HIO would taper off. The Constrained Forecast determined that, even without the new runway, the delays at HIO would not have reached an intolerable level by 2021, the end of the forecasting period adopted by the SEA. Because a delay-induced curb on operations growth was the only difference between the Unconstrained and Constrained Forecasts, and because such delays were not anticipated during the forecasting period, the Constrained Forecast predicted the same number of operations as the Unconstrained Forecast.

In order to accommodate our direction in Barnes I to consider demand induced by the new runway, the SEA also included what it called a Remand Forecast, which incorporated data derived from a survey. In the survey, pilots with planes based at HIO and other airports around Portland estimated whether and by how much they would increase their operations at HIO due to the new runway, the associated reduced delays at peak times, and the increased safety arising from separating single-engine propeller planes from larger planes. The SEA added the increase that the pilots projected to the projections from the Unconstrained Forecast to arrive at the Remand Forecast, which predicted that HIO would see 235,610 operations in 2016 and 254,030...