Grand Canyon Trust v. F.A.A.

• Decision Date: 24 May 2002
• Docket Number: No. 01-1154.,01-1154.
• Parties: GRAND CANYON TRUST, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 339

290 F.3d 339

GRAND CANYON TRUST, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 01-1154.

United States Court of Appeals, District of Columbia Circuit.

Argued April 11, 2002.

Decided May 24, 2002.

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

Robin Cooley argued the cause and filed the briefs for petitioner. Mary-Lynn Sferrazza entered an appearance.

Ellen J. Durkee, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Alice B. Thurston, Attorney.

Before: EDWARDS, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The Grand Canyon Trust petitions for review of the decision of the Federal Aviation Administration ("FAA") approving the federal actions necessary to allow the city of St. George, Utah, to construct a replacement airport near Zion National Park. The Trust challenges the adequacy of the FAA's environmental assessment under § 102(2)(C) of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(C) (1970), and the FAA's conclusion that there would be no significant environmental impacts from the project necessitating preparation of an environmental impact statement under NEPA. Focusing on the noise impacts on the Park, the Trust principally contends that the FAA failed adequately to consider the cumulative impact on the natural quiet of the Park and instead addressed only the incremental impact of the replacement airport. We grant the petition.

I.

In 1995, the FAA began working with the City of St. George, Utah, to determine the feasibility of continuing use of the existing airport as compared to development of a new airport at a new site. A growing retirement community and projected air-traffic demand was outstripping the capacity of the existing airport, which could not be expanded due to geographic constraints. Three sites in addition to a no-action alternative were examined. In response to comments on a draft environmental assessment, the FAA conducted a Supplemental Noise Analysis on the potential noise impacts of the replacement airport on Zion National Park ("the Park"). The Park is located approximately 25 miles northeast of St. George and is the preferred replacement airport alternative.

The FAA concluded that the noise impacts on the Park from the replacement airport would be negligible and insignificant. On January 30, 2001, the FAA approved the final environmental assessment, concluding that an environmental impact statement was unnecessary, and issued the record of decision, setting forth actions, determinations, and approvals that will allow St. George to construct the replacement airport. It is the determination underlying this record of decision, that the proposed action will not significantly affect the environment of the Park, that the Trust challenges.

II.

The essential disagreement between the parties is whether the FAA was required in its environmental assessment to address more than the incremental impact of the replacement airport as compared to the existing airport. NEPA requires federal agencies to prepare an environmental impact statement ("EIS") for "every ... major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An environmental assessment ("EA") is made for the purpose of determining whether an EIS is required. See 40 C.F.R. § 1508.9. "If any `significant' environmental impacts might result from the proposed agency action then an EIS must be prepared before agency action is taken." Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C.Cir. 1983) ("Peterson").

An agency decision that an EIS is not required may be overturned "only if it was arbitrary, capricious or an abuse of discretion." Sierra Club v. United States Dep't of Transportation, 753 F.2d 120, 126 (D.C.Cir.1985) ("Transportation"). Under the long-established standard in this circuit, the court reviews an agency's finding of no significant impact to determine whether:

First, the agency [has] accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a `hard look' at the problem in preparing the EA. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that the changes or safeguards in the project sufficiently reduce the impact to a minimum.

Id. at 127; see also Maryland-Nat'l Capital Park and Planning Comm'n v. U.S. Postal Serv., 487 F.2d 1029, 1040 (D.C. Cir. 1973).

The Trust does not dispute that the FAA properly defined the relevant environmental concern of noise impacts from aircraft on the Park. Rather, the Trust contends that the FAA cannot be said to have taken a "hard look" at the problem when it considered only the incremental impacts of the replacement airport and not the total noise impact that will result from the relocated airport. The Trust notes that the EA does not address the cumulative impact in light of other air flights over the Park, air tours in or near the Park, and reasonably foreseeable future aircraft activity and airport expansions that will contribute to the cumulative noise impact on the Park. Indeed, the EA's statement on cumulative impact is, in full: "There are no known factors that could result in cumulative impacts as a result of the proposed St. George Replacement Airport." Further, the Trust notes, the FAA's Supplemental Noise Analysis disregards cumulative impacts. The FAA responds that it adequately considered the cumulative impact when it compared noise impacts associated with the replacement airport with the no-action alternative of continued use of the existing airport. It rejects the Trust's position that it was required in an EA to compare the project to an environmental baseline of natural quiet and to consider the total impact of aircraft noise on the Park.

The issue dividing the parties is settled by regulations promulgated by the Council on Environmental Quality ("CEQ") to implement NEPA and by case law applying those regulations.^* "The CEQ regulations, which... are entitled to substantial deference, impose a duty on all federal agencies." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989) (citations omitted); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 200 (D.C.Cir.1991). The CEQ regulations define each term within NEPA's requirement of an EIS for "every ... major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.3. The term "significantly" is defined as those actions "with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment." 40 C.F.R. § 1508.27(b)(7). "Cumulative impact," in turn, is defined as:

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

40 C.F.R. § 1508.7. Although federal agencies have discretion to decide whether a proposed action "is significant enough to warrant preparation of an EIS," the court owes no deference to the FAA's interpretation of NEPA or the CEQ regulations because NEPA is addressed to all federal agencies and Congress did not entrust administration of NEPA to the FAA alone. Citizens Against Rails-to-Trails v. Surface Transportation Board, 267 F.3d 1144, 1150 (D.C.Cir.2001); see Amfac Resorts, LLC v. United States Dep't. of Interior, 282 F.3d 818, 835 (D.C.Cir.2002); cf. Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C.Cir.2001).

The courts, in reviewing whether a federal agency has acted arbitrarily and capriciously in finding no significant environmental impact, have given effect to the plain language of the regulations. While the factual settings differ in some respects from the instant case, the consistent position in the case law is that, depending on the environmental concern at issue, the agency's EA must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum. For example, in Coalition on Sensible Transportation v. Dole, 826 F.2d 60 (D.C.Cir.1987) ("Dole"), this court stated that the CEQ regulations on cumulative impact "provide a distinct meaning to the concept" separate and apart from the notion of improper segmentation of agency action. Id. at 70. Noting that the regulatory definition of cumulative impact specifies that the "`incremental impact of the action' [at issue]" must be considered "`when added to other past, present, and reasonably foreseeable future actions,'" id. (quoting 40 C.F.R. § 1508.7), the court observed that, consistent with the regulation and purpose of NEPA, "[i]t makes sense to consider the `incremental impact' of a project for possible cumulative effects by incorporating the effects of other projects into the background `data base' of the project at issue." Id. at 70-71. The point, the court stated, was to provide in the EA "sufficient [information] to alert interested members of the public to any arguable cumulative impacts involving [] other projects." Id. at 71. Further, the court concluded that insofar as Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), "may bear on an agency's duty to consider impacts in a context that realistically includes other pending projects, the [agency] fully complied by planning on the basis of ... ultimate completion of...