Citizens Against Burlington, Inc. v. Busey, No. 90-1373

CourtU.S. Court of Appeals — District of Columbia Circuit
Writing for the CourtBefore BUCKLEY, WILLIAMS, and THOMAS; CLARENCE THOMAS; BUCKLEY
Citation290 U.S.App. D.C. 371,938 F.2d 190
Docket NumberNo. 90-1373
Decision Date14 June 1991
Parties, 21 Envtl. L. Rep. 21,142 CITIZENS AGAINST BURLINGTON, INC., et al., Petitioners, v. James B. BUSEY IV, Administrator, Federal Aviation Administration, Respondent, Toledo-Lucas County Port Authority and Burlington Air Express, Inc., Intervenors.

Page 190

938 F.2d 190
290 U.S.App.D.C. 371, 21 Envtl. L. Rep. 21,142
CITIZENS AGAINST BURLINGTON, INC., et al., Petitioners,
v.
James B. BUSEY IV, Administrator, Federal Aviation
Administration, Respondent,
Toledo-Lucas County Port Authority and Burlington Air
Express, Inc., Intervenors.
No. 90-1373.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 1, 1990.
Decided June 14, 1991.

Page 191

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

Bruce J. Terris, with whom James M. Hecker was on the brief, Washington, D.C., for petitioners.

David C. Shilton, Attorney, Dept. of Justice, Washington, D.C., for respondent. With him on the brief were Barry M. Hartman, Acting Asst. Atty. Gen., Peter R. Steenland, Attorney, Dept. of Justice, and Gregory S. Walden, Chief Counsel, Federal Aviation Admin., Washington, D.C.

Jim J. Marquez, Washington, D.C., with whom Teresa L. Grigsby, Toledo, Ohio, for Toledo-Lucas County Port Authority, and John W. Simpson, Washington, D.C., for Burlington Air Express, Inc., were on the joint brief, for intervenors. Stephen H. Lachter, Washington, D.C., also entered an appearance for intervenors.

Before BUCKLEY, WILLIAMS, and THOMAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge THOMAS.

Opinion dissenting in part filed by Circuit Judge BUCKLEY.

CLARENCE THOMAS, Circuit Judge:

The city of Toledo decided to expand one of its airports, and the Federal Aviation Administration decided to approve the city's plan. In this petition for review of the FAA's order, an alliance of people who live near the airport contends that the FAA has violated several environmental statutes and regulations. We hold that the FAA

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has complied with all of the statutes and all but one of the regulations.

I.

The Toledo Express Airport, object of the controversy in this case, lies about twenty-five miles to the west of downtown Toledo. Half a mile to the southwest of the airport, surrounded by four highways and intersected by three more, lies the Oak Openings Preserve Metropark, used by joggers, skiers, and birders, and site of one of the world's twelve communities of oak savannas. Within Oak Openings lies the Springbrook Group Camp, site of a primitive (tents only) campground, and used by hikers and campers, including Richard Van Landingham III, one of the petitioners in this lawsuit. Near the airport live Daniel Kasch, Carol Vaughan, and Professor William Reuter, three of the other petitioners. The Toledo-Lucas County Port Authority, one of the intervenors, wants to make the city of Toledo a cargo hub. Burlington Air Express, Inc., the other intervenor, wants to move its operations to Toledo. Kasch, Vaughan, Reuter, Van Landingham, and others have formed Citizens Against Burlington, Inc. to stop them.

Citizens Against Burlington first materialized about a year after the Port Authority first commissioned an "Airport Noise Compatibility Planning" study (known as a "Part 150 study," see generally 14 C.F.R. pt. 150 & apps. A & B) and began to consider the possibility of the airport's expansion. The Port Authority soon heard from Burlington Air Express, which had been flying its planes out of an old World War II hangar at Baer Field, an Air National Guard airport in Fort Wayne. After looking at seventeen sites in four midwestern states, Burlington chose the Toledo Express Airport. Among Burlington's reasons were the quality of Toledo's work force and the airport's prior operating record, zoning advantages, and location (near major highways and close to Detroit and Chicago). For its part, the Port Authority expects the new hub to create one thousand new jobs in metropolitan Toledo and to contribute almost $68 million per year to the local economy after three years of the hub's operation. The Port Authority plans to pay for the new hub with both private and public funds. Much of the money, however, will come from user fees and lease agreements, and more than half will come from local bonds issued to private investors. Grants from the city of Toledo and the state of Ohio will make up another, much smaller portion of the costs. The Port Authority has applied for some federal funds as well, but the FAA has reacted coolly to the Port Authority's feelers.

The Port Authority agreed to let Burlington move to Toledo when Burlington's lease at Baer Field expired, in October 1990. Burlington later extended its lease in Fort Wayne, and the Port Authority now expects Burlington to move to Toledo Express in January 1992. First, though, the Port Authority has to accommodate Burlington's operations. In the first stage of the airport's expansion, the Port Authority plans to build a concrete ramp for cargo planes, a warehouse for sorting freight, lighting for the warehouse and the area around it, a road to the warehouse, a fuel farm, a maintenance building, taxiway connections to one of the airport's runways and lighting for the new taxiways, an overrun area attached to one of the runways, new power outlets for parked airplanes, and storage areas for de-icing equipment. In the second stage of expansion, planned for the five years after Burlington's move, the Port Authority wants to extend one of the airport's primary runways, install a landing system nearby, and build a new taxiway parallel to the extended runway.

The Port Authority submitted its proposal to the FAA on February 2, 1989 and promptly hired Coffman Associates, Inc., a consulting firm, to prepare an environmental assessment, see 40 C.F.R. Secs. 1501.3, 1508.9, and then to convert the environmental assessment into an environmental impact statement (EIS), see id. Sec. 1501.4; 42 U.S.C. Sec. 4332(2)(C). In December 1989, the FAA sent a draft of the EIS to the Environmental Protection Agency and several state and local agencies. See id. Sec. 7609; 40 C.F.R. Secs. 1503.1, 1503.2. Early

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the next month, the FAA made the draft public and held a public hearing. See id. Sec. 1502.19. Over the following six weeks, Citizens Against Burlington sent the FAA twenty-five letters, commenting on virtually every aspect of the EIS. Individuals sent over three hundred more.

On May 11, 1990, the FAA published a final environmental impact statement. The first chapter of the statement explained that the Port Authority needed the FAA's approval for its plan to expand the Toledo Express Airport and described the role in that process that Congress meant for the agency to play. The second chapter of the EIS reviewed the particulars of the Port Authority's plan, listed the fourteen separate federal statutes and regulations that applied to the Port Authority's proposal, briefly described some alternatives to acting on the Port Authority's plan, and explained why the agency had decided not to discuss those possibilities more fully. The FAA then concluded that it had to consider in depth the environmental impacts of only two alternatives: the approval of the Port Authority's plan to expand the airport, and no action. The third chapter of the EIS described the environment affected by the proposal, and the fourth chapter detailed the environmental consequences of the two alternatives. After summarizing the environmental impacts in the fifth chapter, the agency listed in the sixth chapter the statement's preparers. Appendices to the statement collected scientific data and relevant inter-agency correspondence. In the second volume of the statement, the FAA compiled copies of the hundreds of letters concerning the draft EIS, a transcript of the public hearing, and written comments submitted after the hearing had ended.

Having approved the final EIS, the agency faced a final choice: whether to endorse the Port Authority's plan, which the agency preferred, or not to endorse the plan. In a record of decision dated July 12, 1990, the FAA approved the plan to expand the Toledo Express Airport. See 49 U.S.C. app. Secs. 1349(a), 2208(b). Five days later, Citizens petitioned this court for review of the FAA's order and for a stay of the order pending our decision. See id. app. Sec. 1486(a), (d). On August 1, we denied the latter request.

Citizens continues to press for wide-ranging declaratory and injunctive relief, asking this court to vacate the FAA's decision, to force the agency to prepare a new EIS, to enjoin the agency from approving the Port Authority's current plan, and to enjoin any further construction at Toledo Express until the FAA complies with the applicable laws. Citizens contends that the FAA has violated the National Environmental Policy Act, regulations promulgated by the Council on Environmental Quality, the Department of Transportation Act, and the Airport and Airway Improvement Act. We consider these arguments in turn.

II.

A.

In the National Environmental Policy Act of 1969 (NEPA), Pub.L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. Secs. 4321-4370b), Congress resolved "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." NEPA Sec. 101(a), 42 U.S.C. Sec. 4331(a). 1 These sweeping policy goals have inspired some commentators to call NEPA an environmentalist Magna Carta. See, e.g., D. Mandelker, NEPA Law and Litigation Sec. 1:01, at 1 (1990); cf. 40 C.F.R. Sec. 1500.1(a) ("[NEPA] is our basic national charter for protection of the environment."). But instead of ordering, say, that deforested land be reforested, Congress chose to make NEPA procedural. NEPA commands

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agencies to imbue their decisionmaking, through the use of certain procedures, with our country's commitment to environmental salubrity. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 1844-45, 104 L.Ed.2d 351 (1989); see also 40 C.F.R. Sec. 1502.1. NEPA does not mandate particular consequences.

Just as NEPA is not a green...

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266 practice notes
  • Alliance for Legal Action v. U.S. Army Corps of Engineers, Civ. No. 1:04CV00034.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • April 27, 2004
    ...has the authority to reject PTIA as the project site if PTAA is the proper applicant. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 197 (D.C.Cir.1991) (NEPA case noting that the free market, not the government, determines where a hub should be Further, an alternative is only......
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    ...goals of the agency's action, and the EIS would become a foreordained formality.") (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 Yet again, if the agency's purpose was something as simple as "clarifying" the administrative boundary of the Horseshoe Ranch, clearly th......
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    ...need not have addressed that option in its EA. See Oceana I, 2005 WL 555416, at *7; see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991) (“CEQ regulations oblige agencies to discuss only alternatives that are feasible, or (much the same thing) reasonable.”).......
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    • United States District Courts. United States District Court (Columbia)
    • March 10, 2014
    ...such as the adoption of an FMP or FMP amendment." Locke, 831 F. Supp. 2d at 124 (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991)). "NEPA does not . . . 'require agencies to elevate environmental concerns over other appropriate considerations. . . . [......
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261 cases
  • Alliance for Legal Action v. U.S. Army Corps of Engineers, Civ. No. 1:04CV00034.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • April 27, 2004
    ...has the authority to reject PTIA as the project site if PTAA is the proper applicant. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 197 (D.C.Cir.1991) (NEPA case noting that the free market, not the government, determines where a hub should be Further, an alternative is only......
  • Soda Mountain Wilderness Council v. Norton, No. CIVS042583LKKCMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 24, 2006
    ...goals of the agency's action, and the EIS would become a foreordained formality.") (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 Yet again, if the agency's purpose was something as simple as "clarifying" the administrative boundary of the Horseshoe Ranch, clearly th......
  • Oceana Inc. v. Locke ., Civil Action No. 08-318(ESH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 23, 2010
    ...need not have addressed that option in its EA. See Oceana I, 2005 WL 555416, at *7; see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991) (“CEQ regulations oblige agencies to discuss only alternatives that are feasible, or (much the same thing) reasonable.”).......
  • Oceana, Inc. v. Pritzker, Civil Action No.: 11-1896 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 10, 2014
    ...such as the adoption of an FMP or FMP amendment." Locke, 831 F. Supp. 2d at 124 (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991)). "NEPA does not . . . 'require agencies to elevate environmental concerns over other appropriate considerations. . . . [......
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6 books & journal articles
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    • United States
    • Environmental Law Reporter Nbr. 50-5, May 2020
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    ...while BLM examines its own purpose and need when considering an applicant’s proposal. 199. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196, 21 ELR 21142 (D.C. Cir. 1991). 200. Citizens for Smart Growth v. Secretary of the Dep’t of Transp., 669 F.3d 1203, 1212, 42 ELR 20034 (11......
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    ...U.S. 553–54 (“unjustif‌ied obstructionism”) (1978); then-Judge Clarence Thomas belittling NEPA in Citizens Against Burlington v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (“NEPA is not a green Magna Carta”). 334. See James Q. Wilson, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO ......
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    • Environmental Law Reporter Nbr. 41-3, March 2011
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    ...40 C.F.R. §1508.20, -.25(b), §1502.14(f), -.16(h). 37. 40 C.F.R. §1508.20(b), -(e). 38. See, e.g. , Citizens Against Burlington v. Busey , 938 F.2d 190, 206, 21 ELR 21142 (D.C. Cir. 1991) (only a “reasonably complete discussion of possible mitigation measures” is required); O’Reilly v. U.S.......
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