City of Dania Beach v. F.A.A.

• Citation: 628 F.3d 581,393 U.S.App.D.C. 353
• Decision Date: 02 March 2011
• Docket Number: Nos. 09-1067,Nos. 09-1064,s. 09-1064,s. 09-1067
• Parties: CITY OF DANIA BEACH, a political subdivision of the State of Florida, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION, Respondent Broward County, Florida, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

628 F.3d 581

393 U.S.App.D.C. 353

CITY OF DANIA BEACH, a political subdivision of the State of Florida, et al., Petitioners

v.FEDERAL AVIATION ADMINISTRATION, Respondent

Broward County, Florida, Intervenor.

Nos. 09-1064, 09-1067.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 14, 2010.

Decided Dec. 28, 2010.

Rehearing En Banc Denied March 2, 2011.

On Petitions for Review of an Order of the Federal Aviation Administration.

Neil McAliley argued the cause and filed the briefs for petitioners.

Robert P. Stockman, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Andrew C. Mergen and M. Alice Thurston, Attorneys. John C. Cruden, Assistant Attorney General, and Ellen J. Durkee, Attorney, entered appearances.

Michael G. Schneiderman argued the cause for intervenor. With him on the brief were Andrew J. Meyers and James D. Rowlee.

Before: GINSBURG and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Opinion concurring in part, dissenting in part, and concurring in the judgment filed by Circuit Judge ROGERS.

WILLIAMS, Senior Circuit Judge:

Fort Lauderdale-Hollywood International Airport no longer has the capacity to meet existing demand without substantial delays. Congestion and delay, indeed, are projected to increase. The parties dispute what to do about it.

The airport now has three runways. Two are widely spaced and run parallel in the east/west direction on either side of the airport terminal—the 9,000-foot by 150-foot "main" runway and a shorter south runway; the third runs diagonally from northwest to southeast. Only the main runway is long and wide enough to accommodate larger aircraft. The airport's owner, Broward County, seeks to extend the south runway to 8,600 feet by 150 feet and to close the diagonal runway. It applied to the Federal Aviation Administration for federal funding and for the many FAA approvals needed to begin construction pursuant to the Airport and Airway Improvement Act ("AAIA"), 49 U.S.C. §§ 47101-47131, and related statutes. After considering several possible alternatives to the county's proposal and conducting a lengthy environmental review process, the FAA issued a Record of Decision that with minor modifications approved the county's proposal, dubbed Alternative B1b. 74 Fed.Reg. 978 (Jan. 9, 2009) (the "Decision").

The cities of Dania Beach and Hollywood and several individuals challenge the adopted proposal. They argue that instead of approving Alternative B1b, the FAA should have chosen an alternative that is concededly preferable environmentally, "Alternative C1," consisting of a new runway to the north of the main runway. Besides a variety of other environmental benefits (discussed below), Alternative C1would spare an area called "Brooks Park"; petitioners describe this as an "old neighborhood park" containing "1.5 acres, with picnic tables, parking, and 'passive open space.' " Pet. Br. at 46-47.

Petitioners invoke two environmental statutes and an executive order: (1) 49 U.S.C. § 47106(c)(1)(B), a part of the AAIA, which conditions FAA approval, when a project such as the county's is shown to have certain adverse environmental impacts, on a finding that there is no "possible and prudent" alternative; (2) § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c), which somewhat similarly conditions approval of a project that will use a publicly owned park "of national, State, or local significance," plus some other publicly owned amenities, on a finding that there is no "prudent and feasible" alternative; and (3) Executive Order 11,990, § 2(a), 42 Fed.Reg. 26,961 (May 24, 1977), which conditions federal assistance for construction in wetlands on a finding that there is no "practicable alternative."

In its administrative proceedings and before us, the FAA points to airport delays that would continue and even be exacerbated if Alternative C1 were adopted, and to safety hazards associated with that option. It regards these problems as extreme enough, in context, to support its finding that Alternative C1 was not "prudent" under either statute, nor "practicable" under the Executive Order. It also found Brooks Park not to be a park of local significance.

After addressing the county's arguments that the FAA decision is not final and that petitioners lack standing, we consider whether the FAA either was required to, or did, give the term "prudent" in the AAIA the same meaning that the Supreme Court found "prudent" to have in § 4(f) in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); we find that it was free to, and did, give it a somewhat laxer construction. Applying that construction, we find the FAA's decision consistent with the AAIA. We also find that the FAA could reasonably conclude that Brooks Park was not a park protected by § 4(f). Finally, we hold that the agency was not arbitrary or capricious in viewing Alternative C1 as "impracticable" within the meaning of the Executive Order.

Finality and standing

Section 46110(a) of Title 49 provides this court jurisdiction to review orders issued by the FAA under the AAIA. Although the FAA does not contest jurisdiction, Broward County has intervened and objected to subject matter jurisdiction on two grounds: lack of finality and lack of standing.

First, the county argues that the FAA's challenged actions under 49 U.S.C. § 47106(c)(1)(B) and Executive Order 11,990 are not final orders, because they merely determine eligibility for federal funds, rather than actually approving a grant of funds. Because the Decision does not award a grant, the county says that the petitioners' objections are premature (with the exception of their § 4(f) claim).

Second, the county objects to the petitioners' standing, saying that a favorable decision in this case would not redress their alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision") (internal quotations omitted). The county contends that it has an approved airport layout plan ("ALP") (approved in the Decision itself, see Decision at 91), and could and would make the proposed changes to the airport even withoutfederal funding and thus, it argues, without the contested rulings under § 47106(c)(1)(B) or Executive Order 11,990. The county is adamant that if federal funding were denied, its intent and ability to proceed with its expansion plans would be just as firm as O'Hare's were shown to be in Village of Bensenville v. FAA, 457 F.3d 52, 70 (D.C.Cir.2006). It says that if the FAA approved the ALP under § 47107(a)(16), the challenged FAA determinations could only be reviewed in a final award of the grant, which the Decision clearly is not. See Decision at 89 (the Decision does "not signify an FAA commitment to provide financial support, which is a separate future decision").

We discuss the two objections to our subject matter jurisdiction—the lack of finality and redressability—in reverse order. The county's understanding of § 47106(c)(1)(B) is mistaken. A number of paragraphs in § 47106 specifically state conditions for approval of "project grant[s]," including paragraphs (a), (b), (e) and (g); but paragraph (c) is in this respect far broader. It governs every application for an airport development project involving the location of an "airport or runway or a major runway extension," regardless of the applicant's interest in federal funding. See Town of Stratford v. FAA, 285 F.3d 84, 90-91 (D.C.Cir.2002),

Assuming the county proceeded without federal funding, its theory would be correct that it and the FAA would have had no need to jump through § 47106(c)(1)(B) hoops, but only if its proposed changes to the ALP were minor. Here the county proposes a "major runway extension," defined in FAA regulations as one that "causes a significant adverse environmental impact to any affected environmental resource." FAA Order 5050.4B ¶ 9.1( l ). So, even if the county declined federal aid, its airport expansion could proceed only if the FAA approved a new ALP, which it could do only on a finding that the project complied with § 47106(c). Because the county cannot begin the airport expansion without an approved ALP, a determination by this court that the FAA violated § 47016(c)(1)(B) would redress the petitioners' injury by stopping the expansion in its tracks. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; FAA Order 5050.4B, ¶ 202.c(2) (unconditional ALP approval signals that the FAA has authorized the airport sponsor to begin building the facilities or equipment depicted on the ALP).

For the same reasons, the county's finality objection must fail. The Decision gave its approval to the new ALP, Decision at 91, a necessary condition for implementing Alternative B1b, and a sufficient one so far as FAA approvals are concerned. See United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 310, 47 S.Ct. 413, 71 L.Ed. 651 (1927) (holding that agency orders are final when they "determine [a] right or obligation"). See also Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 589 & n. 8 (D.C.Cir.1971).

The county also poses finality and standing objections to our reaching petitioners' claims that the FAA violated the Executive Order. So far as we can determine, this challenge depends entirely on the county's claims, set out in its discussion of the AAIA context, that the Decision did not establish any right, and that its reversal would not remedy Dania Beach's prospective injury, because it was not a final grant of money. But as we have shown, the Decision did afford Broward County a right (the right to proceed with Alternative B1b), and its reversal would correspondingly relieve Dania Beach of the feared injury, namely the side effects of the...