City of New York v. Minetta

Decision Date01 August 2000
Docket NumberDocket No. 00-4124
Citation262 F.3d 169
Parties(2nd Cir. 2001) CITY OF NEW YORK, RUDOLPH W. GIULIANI, AS MAYOR OF THE CITY OF NEW YORK, & CLAIRE SHULMAN, AS PRESIDENT OF THE BOROUGH OF QUEENS, PETITIONERS, v. NORMAN Y. MINETTA, SECRETARY OF TRANSPORTATION; SUSAN MCDERMOTT, DEPUTY ASSISTANT SECRETARY FOR AVIATION AND INTERNATIONAL AFFAIRS, U.S. DEPARTMENT OF TRANSPORTATION & FEDERAL AVIATION ADMINISTRATION, RESPONDENTS
CourtU.S. Court of Appeals — Second Circuit

Petition for review of four orders of the Secretary of Transportation granting take-off and landing slots to airlines servicing New York's LaGuardia and Kennedy Airports. Petitioners claim that the Secretary failed to perform a required environmental review, did not consider certain statutory factors, and did not evaluate each airline's application individually prior to issuing the orders. We conclude that no environmental review was required and that the Secretary has complied with the statute. We therefore deny the petition for review. [Copyrighted Material Omitted] Susan E. Amron (Michael D. Hess, Corporation Counsel of the City of New York, of counsel), New York, New York, for Petitioners.

F. Franklin Amanat, Assistant United States Attorney (Loretta E. Lynch, United States Attorney for the Eastern District of New York, and Deborah B. Zwany and Stanley N. Alpert, Assistant United States Attorneys for the Eastern District of New York, and Paul M. Geier, Assistant General Counsel for Litigation and Thomas L. Ray, Senior Trial Attorney, U.S. Department of Transportation, Office of the General Counsel, Washington D.C., of counsel), Brooklyn, New York, for Respondents.

Lorraine B. Halloway, Crowell & Moring L.L.P. (r. Bruce Keiner, Jr., of counsel), Washington, D.C., for Amici Curiae Regional Airline Association in support of Respondents.

Robert E. Cohn, Shaw, Pittman, Potts & Troebridge (Alexander Van der Bellen, and W. Paul Zampol, General Attorney, Delta Air Lines, Inc., Atlanta, Georgia, and Robert P. Silverberg, Silverberg, Goldman and Bikoff, L.L.P., Washington, D.C., of counsel), Washington, D.C., for Amici Curiae Delta Connection Carriers in support of Respondents.

Before: Van Graafeiland, Winter, And Calabresi, Circuit Judges.

Winter, Circuit Judge

The City of New York, its Mayor, and the President of the Borough of Queens (collectively "City") petition for review of four orders of the Secretary of Transportation granting take-off and landing slots at New York's LaGuardia and John F. Kennedy International Airports. See In re The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Orders 2000-4- 10-13, Nos. OST-2000-7175-7178 (Dep't of Transp. Apr. 14, 2000) [hereinafter Orders].

The City claims that the orders must be overturned because the Secretary failed to: (i) assess the environmental impact of the orders; (ii) exercise discretion in granting the orders by considering additional statutory factors concerning the domestic economic benefits from granting each request; and (iii) review the merits of each application individually. Respondents, the Secretary of Transportation, the Deputy Assistant Secretary for Aviation and International Affairs, the United States Department of Transportation, and the Federal Aviation Administration (collectively "Secretary"), argue that we have no jurisdiction to review the orders and that, even if jurisdiction exists, no environmental assessment was required and the Secretary complied with the relevant statutory requirements. We conclude that we have jurisdiction but agree with the Secretary on the merits and deny the petition for review.

BACKGROUND

The present petition arises from the federal regulation of air traffic at four airports -- LaGuardia, Kennedy, Chicago's O'Hare International, and Washington, D.C.'s Reagan National. Congress's phasing out of regulation of aviation routes in the 1970s, see Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705, removed regulatory limits on the number of flights at all but the four airports named above. These four, because of unusual congestion and delays, remain under the regulation of the Federal Aviation Administration ("FAA"). See 14 C.F.R. §§ 93.121-133 & 93.211-229.

In 1968, the FAA adopted the "High Density Rule" ("HDR"), which limited the number of flights at these four (high density) airports and required airlines to obtain "slots" -- reservations for takeoffs and landings -- before offering services during regulated time periods. See id. By the early 1990s, however, the HDR was perceived as a barrier to improved service, in part because new air carriers were unable to establish service due to the lack of slot availability. See H.R. Rep. No. 106-167, at 225-26, reprinted at 1999 WL 355951 (1999). As a result, in 1994, Congress enacted a provision giving the Secretary discretion to grant exemptions from the slot requirement where the Secretary "finds it to be in the public interest and the circumstances to be exceptional." Pub. L. No. 103-305, § 206(c)(1), 108 Stat. 1569 (1994) (prior to 2000 amendment). By the late 1990s, however, Congress, dissatisfied with the number of exemptions granted, concluded that "[e]xpanding the current exemptions or adding new exemptions no longer seems to be the best approach," H.R. Rep. No. 106-167, at 226, and decided to eliminate the HDR at LaGuardia, Kennedy, and O'Hare, while retaining some limits at Reagan National, see id. at 227, 229.

The new law, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR21"), Pub. L. No. 106-181, 114 Stat. 61 (2000) (codified in scattered sections of 49 U.S.C.), phases out the HDR at LaGuardia and Kennedy as of January 1, 2007, see 49 U.S.C. § 41715(a)(2). The Act provides interim slot rules to allow new entrants to offer services at the two airports until that date. The legislation is generally intended to increase the number both of carriers offering services and of non-stop flights from the two airports to small hub or non-hub airports through the use of regional jets.

Because the City's petition for review requires a close reading of AIR21, we set forth in some detail the pertinent provisions of AIR21. Section 41716 provides the interim slot rules at the New York airports:

(a)... Subject to section 41714(i), the Secretary of Transportation shall grant, by order, [slot] exemptions... to any air carrier to provide nonstop air transportation, using an aircraft with a certificated maximum seating capacity of less than 71, between LaGuardia Airport or John F. Kennedy International Airport and a small hub airport or nonhub airport--

(1) if the air carrier was not providing such air transportation during the week of November 1, 1999;

(2) if the number of flights to be provided between such airports by the air carrier during any week will exceed the number of flights provided by the air carrier between such airports during the week of November 1, 1999; or

(3) if the air transportation to be provided under the exemption will be provided with a regional jet as replacement of turboprop air transportation that was being provided during the week of November 1, 1999.

(b)... Subject to section 41714(i), the Secretary shall grant, by order, [slot] exemptions... to any new entrant air carrier or limited incumbent air carrier to provide air transportation to or from LaGuardia Airport or John F. Kennedy International Airport if the number of slot exemptions granted under this subsection to such air carrier with respect to such airport when added to the slots and slot exemptions held by such air carrier with respect to such airport does not exceed 20.

(c) Stage 3 aircraft required.--An exemption may not be granted under this section with respect to any aircraft that is not a Stage 3 aircraft (as defined by the Secretary).

49 U.S.C. § 41716 (emphases added).

The requirements of Section 41716 are "[s]ubject to section 41714(i)." That Subsection provides that, within 60 days after an application for a slot exemption is filed, the Secretary must approve the request if the Secretary determines that the requirements of the section under which the request is made are met; [] return the request to the applicant for additional information relating to the request to provide air transportation; or [] deny the request and state the reasons for its denial.

49 U.S.C. § 41714(i)(2). The 60-day period is tolled if the Secretary requests additional information from the applicant. See id. § 41714(i)(3). The Subsection also provides:

If the Secretary neither approves... nor denies the request... within the 60-day period... then the request is deemed to have been approved on the 61st day....

Id. § 41714(i)(4).

Section 41717 of AIR21 governs interim exemptions at O'Hare and is substantially similar to Section 41716's regulation of New York airports quoted above. Section 41718 governs only Reagan National and is markedly different in two respects. First, as set out in detail in the margin,1 it limits the total number of slot exemptions that may be granted at Reagan National and gives the Secretary discretion to develop criteria to determine the distribution of the limited number of slot exemptions. Second, Section 41718 is the only section that refers to the environmental impact of granting more slot exemptions. Specifically, Subsection 41718(e) states:

Neither the request for, nor the granting of an exemption, under this section shall be considered for purposes of any Federal law a major Federal action significantly affecting the quality of the human environment.

Finally, Section 41715, which provides general rules governing the phase-out of the slot rules at all four airports, states: (

c) Factors to consider. --

(1) In general.--Before the award of slot exemptions under sections 41714 and 41716-41718, the Secretary of Transportation may consider, among...

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