C.A.R.E. Now, Inc. v. F.A.A.
| Citation | 844 F.2d 1569 |
| Decision Date | 18 May 1988 |
| Docket Number | No. 87-8784,87-8784 |
| Parties | 18 Envtl. L. Rep. 21,081 C.A.R.E. NOW, INC., Jerry P. Cram, Charles L. Feltus and Robert Lundsten, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
H. Wayne Phears, Phears & Dailey, Michael A. Dailey, Norcross, Ga., George E. Butler, II, Atlanta, Ga., for petitioners.
Elizabeth Ann Peterson, Appellate Section, Dept. of Justice, Lands & Natural Resources Div., Washington, D.C., Sharon Douglas Stokes, Asst. U.S. Atty., Atlanta, Ga., for respondent.
Petition for Review of an Order of the Federal Aviation Administration.
Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH *, Senior Circuit Judge.
C.A.R.E. Now, Inc., a citizens group, petitions this court to review the Federal Aviation Administration's (FAA) order approving a runway extension at DeKalb-Peachtree Airport (PDK). The petitioner urges this court to closely review the FAA's "Finding of No Significant Impact" (FONSI) on the environment. 1 We review only to determine if the record supports the critical findings and if the agency's decisions were reasonable. Because we find that the FAA decision was reasonable, we deny the petition for review.
Petitioner, C.A.R.E. Now, Inc., (Citizens Against Runway Extension Now) is a nonprofit civic organization consisting of homeowner associations and neighborhood groups in areas encircling PDK. Petitioners Jerry P. Cram, Charles L. Feltus, and Robert Lundsten are individual petitioners residing in neighborhoods near PDK. The petitioners oppose a proposal which would at PDK extend runway 2R-20L by 1,000 feet. The DeKalb County Commission originally proposed the runway extension. The FAA supports the proposal and will provide financial assistance for its completion.
The proposal includes the 1,000-foot runway extension, a corresponding extension of the parallel taxiway, and the installation of approach lights in the new pavement. The proposal explicitly maintains the current loading requirement of 66,000 pounds dual wheel. The purpose of the extension is to provide an increased margin of safety on runway 2R-20L. Although corporate jets currently use runway 2R-20L, the existing runway length of 5,000 feet is insufficient to satisfy optimum safety requirements for corporate jet operations. Aircraft approaching from the northeast will not benefit from the runway extension because of trees, power lines, and roads which obstruct the approach to that runway.
The proposal to extend the runway comes in a context of greater growth and expansion at PDK. In 1978, the FAA funded and approved a long-range plan for PDK. This plan designated PDK to become the primary general aviation reliever airport for Atlanta's Hartsfield International. Pursuant to this plan, the FAA funded the installation of a precision instrument landing system to accommodate significantly increased jet traffic at PDK. In addition, the north terminal area of PDK underwent a major expansion. A new air traffic control tower is also currently under construction.
In 1985, DeKalb County presented an airport layout plan which recommended the runway extension. The FAA approved the airport layout plan. In order to comply with the National Environmental Policy Act of 1969 (NEPA), DeKalb County hired a private consulting firm to prepare an environmental assessment (EA) to ascertain the project's impact on the environment. The EA predicted that noise exposure levels surrounding PDK would increase from 16,800 to 19,300 persons because of the runway extension over the 5-year period following completion of the extension. To mitigate the increased noise exposure, the EA proposed two measures. The first was an informal preferential runway use program designed to reduce the number of jets taking off in a southerly direction over the most dense residential populations.
The second mitigation measure was the delayed departure procedures program in which aircraft departing to the south would begin takeoff 1,000 feet farther north than the current takeoff point. By beginning takeoff at a point 1,000 feet farther back, the aircraft would be able to gain a higher altitude before reaching populated areas thereby reducing the severity of the noise level in residences directly beneath the aircraft. Despite the decrease in the overall noise level caused by this mitigation measure, the EA concluded that the higher altitude would mean a broader range of noise dispersion, causing an additional 300 homes to be impacted by noise levels considered disruptive. The EA further concluded that air quality would not be significantly impacted because the proposed project would not increase airport capacity.
On September 3, 1986, approximately 2,000 citizens attended a public hearing conducted by DeKalb County and submitted 3,500 comments. In November, 1986, DeKalb County filed the final EA.
After analysis of the methods employed and the conclusions drawn in the EA, the FAA issued its finding of no significant impact (FONSI). The FONSI noted that the EA had adequately discussed eleven development alternatives, including the alternatives of the use of another airport, the extension of another runway, the "do nothing" alternative, and variations and combinations of each of these alternatives. The FONSI also concluded that the EA complied with established FAA procedures in its methodology. Although the FAA raised questions about the EA's estimation of total increased airport capacity in the next five years, the accuracy of these estimations was not critical to determine the impact on the environment caused solely by the runway extension. The FAA did not dispute the EA's conclusions regarding only those impacts which were the result of the expanded runway. In this regard, the FONSI adopted the EA's conclusion that The petitioners found the FONSI inadequate and therefore filed this petition for review. Specifically, petitioners assert that the proposal creates a reasonable possibility of a significant impact on the human environment, requiring the preparation of an environmental impact statement (EIS) under NEPA. In addition, the petitioners assert that the Airport and Airway Improvement Act of 1982 (AAIA) requires that the FAA render written findings that (1) no feasible alternative exists and (2) that all reasonable steps have been taken to minimize adverse effects, whenever a major runway extension having a significant impact on natural resources is constructed. 49 U.S.C. Sec. 2208(b)(5). The petitioners further contend that the FONSI failed to address several available alternatives, failed to consider the cumulative impacts of the extended runway in the context of other improvements, and unfairly relied on speculative mitigation measures.
approximately 2,500 more persons would be affected upon completion of the project. Implementation of the EA's proposed mitigation measures, however, would abate that increased exposure.
The issues are: (1) whether the impacts as presented by the FONSI were "significant" so as to require an environmental impact statement pursuant to NEPA; (2) whether the FONSI was deficient because the FAA failed to determine whether prudent alternatives to the project existed; (3) whether the FONSI was deficient because the FAA failed to consider the cumulative impact of past, present, and reasonably foreseeable actions in finding that the project would not significantly impact the environment; and (4) whether the FAA erred in considering speculative mitigation measures in concluding that the project would have no significant impact on the environment.
Section 102(2)(C) of NEPA, 42 U.S.C. Sec. 4332(2)(C), requires a federal agency to prepare an environmental impact statement (EIS) when a major federal action significantly affects the quality of the human environment. 2 The object of NEPA is to require federal agencies to consider environmental values when making decisions. The initial responsibility of the federal agency is to determine the extent of the impact. An environmental assessment (EA) is an authorized tool for determining the extent of the environmental impacts. 40 C.F.R. Sec. 1508.9(a)(1). If the EA concludes that the impacts are significant, the agency must prepare an EIS. In determining whether the impact is significant, the agency has broad discretion. This discretion is not unlimited, however, and this court must review the agency's finding under a standard of reasonableness, not under the narrower standard of arbitrariness or capriciousness. Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691 (11th Cir.1986); Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir.1973). 3
The petitioners contend that the FAA applied an incorrect standard in determining whether an EIS was required. Specifically, petitioners argue that the FAA required a showing of certainty of environmental harm rather than a reasonable possibility that the project would cause significant environmental impact. Kreger at 467 (). Contrary to petitioners' contention, the FONSI speaks in terms of "potential impact." In fact, the FONSI conceded the possibility that an additional 2,500 persons would be exposed to noise levels in the disruptive range if the project were completed without mitigation measures. 4 The FAA employed methods for projecting potential impact which were legally adequate. See City of Aurora v. Hunt, 749 F.2d 1457, 1462 (10th Cir.1984) (); Sierra Club v. U.S. Dept. of Transportation, 753 F.2d 120, 128 (D.C.Cir.1985) ().
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