Communities, Inc. v. Busey, s. 91-3222
| Decision Date | 03 April 1992 |
| Docket Number | 91-5386,Nos. 91-3222,s. 91-3222 |
| Citation | 956 F.2d 619 |
| Parties | COMMUNITIES, INC.; Dulworth & Rives, Inc.; Prestonia Area Neighborhood Association; Highland Park Neighborhood Association; Standiford Neighborhood Association, Petitioners, v. James B. BUSEY, Administrator, Federal Aviation Administration; Federal Aviation Administration, Respondents, Regional Airport Authority of Louisville and Jefferson County, Kentucky, Intervening Respondent. COMMUNITIES, INC., Petitioner, v. Samuel K. SKINNER, Secretary of the United States Department of Transportation; United States Department of Transportation, Respondents, Regional Airport Authority of Louisville and Jefferson County, Kentucky, Intervening Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert E. Reeves (briefed), Todd E. Leatherman (briefed), W. Henry Graddy, IV (argued and briefed), Reeves & Graddy, Versailles, Ky., for Communities, Inc. and Dulworth & Rives, Inc.
Joseph M. Whittle, U.S. Atty., David L. Huber, Asst. U.S. Atty., Louisville, Ky., Peter R. Steenland (briefed), M. Alice Thurston (argued and briefed), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for Samuel K. Skinner and U.S.
Michael M. Conway (briefed), Michael Schneiderman (argued), Hopkins & Sutter, Chicago, Ill., Robert W. Griffith, Stites & Harbison, Louisville, Ky., for Regional Airport Authority of Louisville and Jefferson County.
Eleanore M. Garber, William H. Allison, Jr., Allison, Soreff & Garber, Joe G. Leibson, Louisville, Ky., for Prestonia Area Neighborhood Ass'n, Highland Park Neighborhood Ass'n and Standiford Neighborhood Ass'n.
Peter R. Steenland (briefed), Dept. of Justice, Land and Natural Resources Div., J.E. Murdock, III, Robert F. Eisengrein, F.A.A., Office of Gen. Counsel, M. Alice Thurston (briefed), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for James B. Busey and F.A.A.
Elizabeth S. Merritt (argued and briefed), Andrea C. Ferster (briefed), Washington, D.C., for National Trust for Historic Preservation in the U.S., amicus curiae.
Frank Shafroth (briefed), Washington, D.C., for the National League of Cities, amicus curiae.
Donald L. Cox (briefed), Lynch, Cox, Gilman & Mahan, Louisville, Ky., for City of Louisville, Ky. and Jefferson County, Ky., amicus curiae.
J. Thomas Cochran (briefed), Washington, D.C., for the U.S. Conference of Mayors, amicus curiae.
Ronn E. Harding (briefed), Deputy Asst. Chief Counsel, FAA, Atlanta, Ga., for FAA.
Before JONES and NELSON, Circuit Judges, and ROSEN, District Judge. *
Petitioners, Communities, Inc. and others, seek review of a Federal Aviation Administration ("FAA") order approving the Louisville Airport Improvement Plan ("LAIP"). For the reasons that follow, we deny the petition and affirm the FAA's decision.
Standiford Field ("SDF") is centrally located within the city limits of Louisville, Kentucky, in a developed environment, with residential neighborhoods to the north, industrial areas to the south, and various residential and commercial centers or strips to the east and west. Some of the residential neighborhoods, directly under the flight paths of the existing runways, are "historic neighborhoods." To the northeast and west of SDF are a number of such neighborhoods, including Cherokee Triangle, Southern Heights-Beechmont, and Highlands. Another historic neighborhood to the north is Old Louisville, an inner-city neighborhood, bordered by the following: Interstate 65 to the east; railroads, rail yards, and industrial areas to the west and northwest; downtown, commercial Louisville to the north; and the University of Louisville (Belknap Campus) to the south.
SDF has operated since 1947. In addition to serving nine commercial airlines, SDF has been the national hub for United Parcel Service ("UPS") since 1981. UPS's operations have caused a dramatic growth in both express and air cargo aircraft operations; in four years, express cargo volumes have increased almost fivefold. The Final Environmental Impact Statement ("FEIS") states that, since 1982, there has also been steady growth in the annual number of enplaned passengers and actual departures at SDF, with continued growth forecast. Petitioners maintain, however, that there is in fact no reliable evidence of any increase in passenger traffic, and that the forecasted future growth is based upon unrealistic estimates. Respondents counter that the forecast for passenger-traffic growth reflects national growth patterns and recognizes the steady continuing growth of cargo services. At oral argument, however, respondent Regional Airport Authority ("RAA") of Louisville and Jefferson County, Kentucky conceded that, "This is a cargo project."
The LAIP proposed adopting the recommendation of a study conducted by the RAA through its contractor, Schimpeler-Corradino Associates, which calls for two independent, parallel runways to be constructed on the current site of SDF. To accommodate the new runways, the airport boundaries must be expanded. This involves the acquisition or relocation of a number of commercial and industrial sites and other businesses. Three residential neighborhoods adjacent to the airfield's boundaries (Prestonia, Standiford, and Highland Park) are being cleared and developed for uses compatible with the airport. Only a portion of the acreage acquired in the land acquisition program will be used for the airport itself. As of the date of the FAA's order, 69% of all residential structures had been purchased. In addition, the project contemplates the temporary closure and permanent realignment of a portion of Crittenden Drive.
As a result of the new runways, SDF will be able to accommodate UPS's nighttime operational needs. The project will also increase the airport's maximum capacity by 67%.
On June 22, 1988, the RAA approved the plan to construct the two independent runways and called for the immediate commencement of an environmental assessment to meet the requirements of federal law, including Department of Transportation Act, § 4(f), 49 U.S.C. § 303 (1988). Based on this information and national and regional needs, the respondent Secretary of the Department of Transportation ("DOT"), acting through the FAA, formally approved federal funding for the LAIP in the January 7, 1991 Record of Decision ("ROD"). The decision stated that the LAIP complied with, inter alia, § 4(f).
Petitioners consist of the following organizations with interests in the communities located near the airport: Communities, Inc., which is an umbrella organization representing Beechmont Neighborhood Association, Inc., Cloverleaf Neighborhood Association, Inc., Okolona Community Council, Old Louisville Neighborhood Association, St. Joseph Neighborhood Association, and the municipalities of Minor Lane Heights and South Park View; Dulworth & Rives, Inc., which is a real estate development firm in Louisville, Kentucky that owns several investment properties to the south of SDF; and Prestonia Area Neighborhood Association, Highland Park Neighborhood Association, and Standiford Neighborhood Association, which are independent neighborhood associations representing residents in the three neighborhoods slated for demolition due, in part, to the LAIP. 1 On March 7, 1991, petitioners filed a timely petition for review by this Court of the FAA's order of January 7, 1991, granting federal approval for the LAIP. On March 25, 1991, pursuant to 28 U.S.C. § 1631 (1988), the United States District Court for the Western District of Kentucky transferred to this Court a complaint also challenging the January 7, 1991 order, filed by petitioners on March 6, 1991. Pursuant to 49 U.S.C.App. § 1486(a) (1988), this Court has exclusive jurisdiction over both the claims presented in that complaint and the claims in the petition for review.
Petitioners assert that the Environmental Impact Statement ("EIS") prepared by the FAA for this project violates the National Environmental Policy Act ("NEPA"), 42 U.S.C.A. §§ 4321-4347 (West 1977 & Supp.1991); that the FAA also violated National Historic Preservation Act ("NHPA"), § 106, 16 U.S.C. § 470f (1988), by failing to consult adequately with the Advisory Council on Historic Preservation; and that the FAA violated both § 4(f) and a similar provision in the Airport and Airway Improvement Act ("AAIA"), 49 U.S.C.App. § 2208(b)(5) (1988), because this project will result in the constructive "use" of properties protected by that statute and more could be done to minimize adverse impacts. They contend that the FEIS analysis omitted a number of cumulative impacts associated with the project, including the impact of the LAIP on numerous hazardous waste sites and the resulting remediation of hazardous wastes on those sites, and the impact from the deferred relocation of a major thoroughfare (Crittenden Drive). Additionally, petitioners contend that the FEIS fails to evaluate all reasonable alternatives and their environmental consequences, particularly the noise impacts of those alternatives and the impact on historic and park resources protected by § 4(f).
The FAA states through the FEIS, however, that implementation of the LAIP will substantially reduce overall noise exposure in the Louisville community. The FAA plans to accomplish this by, inter alia, directing traffic, whenever possible, over the industrial areas south of the airport between 10:00 p.m. and 7:00 a.m. ("contraflow" operations). Furthermore, UPS has agreed to operate only quieter, "Stage III" aircraft in Louisville by 1995, if the LAIP is fully implemented. Nonetheless, the FAA concedes that noise exposure will shift, causing noise levels to increase in certain areas, such as Old Louisville.
In addition to the petition for review filed in this Court and the complaint filed in district court that was...
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