Ctr. for Cmty. Action & Envtl. Justice v. Fed. Aviation Admin.

• Decision Date: 18 November 2021
• Docket Number: No. 20-70464,No. 20-70272,20-70272
• Citation: 18 F.4th 592
• Parties: CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE ; Sierra Club; Teamsters Local 1932 ; Shana Saters; Martha Romero, Petitioners, v. FEDERAL AVIATION ADMINISTRATION ; Stephen M. Dickson, in his official capacity as Administrator of the Federal Aviation Administration, Respondents, Eastgate Bldg 1, LLC; San Bernardino International Airport Authority, Intervenors. State of California, by and through Rob Bonta, in his official capacity as Attorney General, Petitioner, v. Federal Aviation Administration ; Stephen M. Dickson, in his official capacity as Administrator of the Federal Aviation Administration ; San Bernardino International Airport Authority, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 592

CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE ; Sierra Club; Teamsters Local 1932 ; Shana Saters; Martha Romero, Petitioners,

v.FEDERAL AVIATION ADMINISTRATION ; Stephen M. Dickson, in his official capacity as Administrator of the Federal Aviation Administration, Respondents,Eastgate Bldg 1, LLC; San Bernardino International Airport Authority, Intervenors.

State of California, by and through Rob Bonta,^* in his official capacity as Attorney General, Petitioner,

v.Federal Aviation Administration ; Stephen M. Dickson, in his official capacity as Administrator of the Federal Aviation Administration ; San Bernardino International Airport Authority, Respondents.

No. 20-70272

No. 20-70464

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 1, 2021 San Francisco, California

Filed November 18, 2021

Adrian Martinez (argued) and Yasmine Agelidis, Earthjustice, Los Angeles, California; Gregory Muren, Earthjustice, San Francisco, California; for Petitioners Center for Community Action and Environmental Justice, Sierra Club, Teamsters Local 1932, Shana Saters, and Martha Romero.

Yuting Yvonne Chi (argued), Deputy Attorney General; Christie Vosburg, Supervising Deputy Attorney General; Edward H. Ochoa, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Oakland, California; for Petitioner State of California.

Rebecca Jaffe (argued), Justin D. Heminger, and John Emad Arbab, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Joseph Manalili, Senior Attorney, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C.; for Respondents.

Michael J. Carroll (argued), Latham & Watkins LLP, Costa Mesa, California, for Intervenor Eastgate Bldg. 1 LLC.

Ronald J. Scholar (argued), Cole Huber LLP, Roseville, California, for Intervenor San Bernardino International Airport Authority.

Before: Eugene E. Siler,^** Johnnie B. Rawlinson, and Patrick J. Bumatay, Circuit Judges.

SILER, Circuit Judge

Petitioners Center for Community Action and Environmental Justice, Sierra Club, Teamsters Local 1932, Shana Saters, and Martha Romero (collectively, CCA) and the State of California (collectively, Petitioners) ask us to review Respondent Federal Aviation Administration's (FAA) Record of Decision, which found no significant environmental impact stemming from the construction and operation of an air cargo facility (Project) at the San Bernardino International Airport (Airport). To comply with their duties under the National Environmental Policy Act (NEPA), the FAA issued an Environmental Assessment (EA) that evaluated the environmental effects of the Project. In an effort to prevent execution of the Project, Petitioners allege error in the EA and the FAA's finding of no significant environmental impact. Because Petitioners have not established the findings in the EA to be arbitrary and capricious, we deny the petition.

I. Background

The Airport is a public airport located in San Bernardino County, California. The Airport is currently under the control of Respondent/Intervenor San Bernardino International Airport Authority (SBIAA), a joint powers authority consisting of San Bernardino County and some surrounding cities, including San Bernardino.

Hillwood Enterprises, L.P. (Hillwood), an affiliate of private developer Respondent/Intervenor Eastgate Bldg 1, LLC (Eastgate), has served as the Master Developer of the non-aviation portions of the Airport. Eastgate, Hillwood, and the SBIAA possess an "Exclusive Right to Negotiate Agreement" providing for extensive due diligence and entitlement work on the Project. The Project is to develop the Eastgate Air Cargo Facility, which includes the development and operation of a 658,000-square-foot sort, distribution, and office building that would be operated by third-party air carriers transporting cargo to and from the Airport.

Because the SBIAA has received federal funding for previous Airport projects, the Project's proponents sought FAA approval of it to comply with 49 U.S.C. § 47107(a)(16) of the Airport and Airway Improvement Act. Among other requirements, the Act requires the SBIAA to "maintain a current layout plan of the airport" with any revisions subject to FAA review. 49 U.S.C. § 47107(a)(16)(B)–(D).

The FAA's review of the Project under its own statutory scheme triggers its duties under NEPA, 42 U.S.C. §§ 4321 – 4370m. In part, NEPA provides that "all agencies of the Federal Government shall ... include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action[.]" Id. § 4332(2)(C)(i). Here, the FAA issued a Record of Decision, which included its Final EA and Finding of No Significant Impact. See 40 C.F.R. § 1508.9(a) (2019)¹ ("Environmental assessment [ ] [m]eans a concise public document for which a Federal agency is responsible that serves to[ ] [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact[ and] [a]id an agency's compliance with [NEPA] when no environmental impact statement is necessary[.]"); 40 C.F.R. § 1508.13 (2019) ("Finding of no significant impact means a document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded ..., will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it[.]"); 40 C.F.R. § 1501.3(a) ("Agencies shall prepare an environmental assessment ... when necessary .... An assessment is not necessary if the agency has decided to prepare an environmental impact statement."). Here, the Petitioners challenge the FAA's decision to proceed in this manner and its findings in that regard.

The parties agree that the FAA's Record of Decision constitutes "an order issued by" the FAA under "part B [which encompasses 49 U.S.C. § 47107(a)(16) ]" through which Petitioners "may apply for review ... in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business." 49 U.S.C. § 46110(a) ; see Barnes v. Fed. Aviation Admin. , 865 F.3d 1266, 1268–70 (9th Cir. 2017).

II. Discussion

A. General Standards of Review

"NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action ... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process." Earth Island Inst. v. United States Forest Serv. , 351 F.3d 1291, 1300 (9th Cir. 2003) (simplified). To accomplish this, NEPA "imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences." Id. (simplified). As mentioned, the FAA here decided to issue an EA and a Finding of No Significant Impact. Although an EA "need not conform to all the requirements of an EIS [i.e., Environmental Impact Statement], it must be sufficient to establish the reasonableness of the decision not to prepare an EIS." Cal. Trout v. F.E.R.C. , 572 F.3d 1003, 1016 (9th Cir. 2009) (simplified). "In reviewing an agency's finding that a project has no significant effects, courts must determine whether the agency has met NEPA's hard look requirement, ‘based [its decision] on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project's impacts are insignificant.’ " Bark v. United States Forest Serv. , 958 F.3d 865, 869 (9th Cir. 2020) (simplified).

"The statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project." Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1212 (9th Cir. 1998) (simplified). "An EIS must be prepared if substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor." Id. (simplified). "Thus, to prevail on a claim that the [agency] violated its statutory duty to prepare an EIS, a plaintiff need not show that significant effects will in fact occur." Id. (simplified). "It is enough for the plaintiff to raise substantial questions whether a project may have a significant effect' on the environment." Id. (simplified).

"Judicial review of agency decisions under [NEPA] is governed by the Administrative Procedure Act, which specifies that an agency action may only be overturned when it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Earth Island , 351 F.3d at 1300 (simplified). "An agency action is arbitrary and capricious if the agency has: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Bark , 958 F.3d at 869 (simplified). "An agency's factual determinations must be supported by substantial evidence." Id. (simplified).

As the "party challenging the administrative decision," Petitioners "bear[ ] the burden of persuasion" here. See J.W. ex rel., J.E.W. v. Fresno Unified Sch. Dist. , 626 F.3d 431, 438 (9th Cir. 2010). We have upheld an agency decision when there was no evidence "which compelled a different conclusion" or "any evidence that [the agency] considered impermissible factors." George v. Bay Area Rapid Transit , 577 F.3d 1005, 1011 (9th Cir. 2...