Howard Cnty. v. Fed. Aviation Admin.

• Decision Date: 11 August 2020
• Docket Number: No. 18-2360,18-2360
• Citation: 970 F.3d 441
• Parties: HOWARD COUNTY, MARYLAND, Petitioner, v. FEDERAL AVIATION ADMINISTRATION; Stephen Dickson, Administrator, Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

970 F.3d 441

HOWARD COUNTY, MARYLAND, Petitioner,

v.FEDERAL AVIATION ADMINISTRATION; Stephen Dickson, Administrator, Federal Aviation Administration, Respondents.

No. 18-2360

United States Court of Appeals, Fourth Circuit.

Submitted: March 26, 2020

Decided: August 11, 2020

Gary W. Kuc, County Solicitor, Lewis J. Taylor, Senior Assistant County Solicitor, Melissa E. Goldmeier, Assistant County Solicitor, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Petitioner. Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, J. David Gunter II, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John E. Doyle, Anne Christenson, Lane N. McFadden, FEDERAL AVIATION ADMINISTRATION, Bloomington, Indiana, for Respondent.

Before MOTZ, DIAZ, and RUSHING, Circuit Judges.

Petition dismissed by published opinion. Judge Diaz wrote the opinion, in which Judge Motz and Judge Rushing joined.

DIAZ, Circuit Judge:

In February 2016, the Federal Aviation Administration ("FAA") modified an air-traffic procedure, or series of flight routes, that governs westbound departing aircraft at Baltimore/Washington International Thurgood Marshall Airport ("BWI"). The modified procedure, called "TERPZ-6," directs westbound aircraft to depart over historic areas of Howard County, Maryland that had previously endured little air traffic, and at altitudes below 3,000 feet, bringing with them allegedly insufferable levels of noise.

In November 2018, the County brought this petition to vacate or set aside the TERPZ-6 departure procedure on the ground that the FAA failed to comply with a constellation of environmental statutes and regulations when assessing its likely noise impacts. But the FAA contends that the petition is untimely under 49 U.S.C. § 46110(a) because it was filed well over sixty days after the issuance of the agency's relevant order, and the County fails to show reasonable grounds for not filing on time. We agree, finding that the County unreasonably waited 110 days to demand voluntary relief from the FAA as a first resort, and six months for the agency to come to the table.

We therefore dismiss the petition.

I.

We begin with an overview of the FAA's implementation of TERPZ-6 and the thirty-three-month aftermath leading to this lawsuit.

A.

Pursuant to the Federal Aviation Act of 1958, 49 U.S.C. § 40101 et seq. , the FAA is authorized to prescribe regulations "for the [safe and efficient] use of the navigable airspace," id. § 40103(b)(1). Such regulations naturally include "air traffic regulations" (comprising arrival, departure, and en route procedures), which govern the path and altitude of aircraft moving through the navigable airspace. Id. § 40103(b)(2).

For many years, the FAA used "conventional" air-traffic procedures that relied on ground-based navigation aids and verbal instructions (called "vectors") radioed in from an air-traffic controller. But that began to change in the early 2000s, when, as air travel was booming and new technologies were precipitating, the FAA introduced so-called "area navigation" procedures, or "RNAV" for short. Unlike the conventional variety, RNAV procedures are entered directly into an aircraft's on-board flight management (i.e., computer) system, using satellite technology to navigate the aircraft from point A to B. Because flight operations are thus significantly more automated than before, RNAV procedures tend to boast greater efficiency, precision, and safety.

Seeking to encourage the transition away from conventional air-traffic procedures, Congress in 2012 enacted legislation directing the FAA "to modernize the nation's air-traffic control system." City of Phoenix v. Huerta , 869 F.3d 963, 966 (D.C. Cir. 2017), opinion amended on reh'g , 881 F.3d 932 (D.C. Cir. 2018) ; see FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 101(a), 213(a)(1)(A), 126 Stat. 11, 15, 46–47 (2012). Among other so-called "Next Generation" or "NextGen" technologies that the legislation promotes, it directs the FAA to make greater use of RNAV and other such "performance-based navigation procedures" at the nation's thirty-five busiest airports. See Pub. L. No 112-95, § 213, 126 Stat. at 46–50. The FAA's ongoing and nationwide initiative to implement the legislation is likewise called "NextGen."

"Spurred by this new legislation," in 2013, the FAA developed a package of fortyone new and modified air-traffic procedures, nicknamed the "D.C. Metroplex," to guide arriving and departing aircraft at the three major airports in the Washington, D.C. area. Citizens Ass'n of Georgetown v. Fed. Aviation Admin. , 896 F.3d 425, 429 (D.C. Cir. 2018). Those airports include BWI, the busiest in the D.C. area, which is owned and operated by the Maryland Aviation Administration ("MAA") and located nine miles south of downtown Baltimore, in an unincorporated area of Anne Arundel county.

In developing the D.C. Metroplex procedures, the FAA was obliged to comply with "a constellation of statutory and regulatory schemes designed to ensure that federal agencies properly account" for the environmental impact of their decisions, including with respect to noise levels. Id. At the center of that constellation lies the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. , which requires federal agencies to prepare an environmental impact statement for all major actions "significantly affecting the quality of the human environment," id. § 4332(C). If an agency is unsure whether a proposed action will cause a significant environmental impact, however, regulations promulgated by the Council on Environmental Quality, see 40 C.F.R. § 1500.1 et seq. (which the Supreme Court has held "are entitled to substantial deference," Marsh v. Oregon Nat. Res. Council , 490 U.S. 360, 372, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ), allow the agency to prepare an environmental assessment to determine whether a formal environmental impact statement is necessary, see id. § 1508.9(a). If, following that environmental assessment, the agency concludes that the proposed action will not have a significant environmental impact, it may simply issue a finding to that effect, briefly explaining the reasons behind that conclusion, without preparing an environmental impact statement. Id. § 1508.13.

Uncertain whether the D.C. Metroplex would have a significant impact, the FAA initiated its environmental review in December 2012 by distributing a notice of intent to prepare a draft environmental assessment. The FAA issued the draft for comments in June 2013. The FAA then completed a final environmental assessment in November, which concluded that the proposed air-traffic procedures would "not have significant environmental impacts," S.J.A. 2918, including and especially "significant noise impacts," S.J.A. 2925; cf. FAA, Order 1050.1E, Environmental Impacts: Policies and Procedures, Appendix A (June 8, 2004) (setting forth the then-applicable criteria and procedures to be used in the agency's environmental impact analysis). Finally, in December, the FAA issued a finding of no significant impact and corresponding record of decision explaining its conclusion and exempting the D.C. Metroplex procedures from further environmental review. See FAA, Finding of No Significant Impact and Record of Decision and Agency Concurrence Letters, Public Comment Letters and Responses to Comments, and Environmental Assessment Errata for the Washington D.C. Optimization of the Airspace and Procedures in the Metroplex (DC OAPM) (Dec. 2013) (the "Record of Decision").

Among the procedures approved in the Record of Decision was the fourth generation of the TERPZ line of departure procedures at issue here, called TERPZ-4, which went into effect at BWI on March 5, 2015. The fourth generation procedure directed aircraft departing from BWI's primary westbound runway to head out from the airport in a roughly due west orientation, before splitting off onto other routes depending on their destination. As a result, westbound departing aircraft largely stayed out of the airspace of Howard County, which spreads out further to the northwest of BWI, especially with respect to its more historic (and thus environmentally sensitive) residential areas. The next month, on April 30, 2015, the FAA republished the departure procedure under the name TERPZ-5, adding a single notation to the graphic depiction given to pilots while keeping the substantive flight routes identical to TERPZ-4.

Seeking to further maximize the capacity of the airspace surrounding BWI, in fall 2015 the FAA sought to further modify the TERPZ departure procedure (among a few others) to enable aircraft to depart more rapidly. Because these modifications would apply to currently approved air-traffic procedures, FAA regulations authorized the agency to forego a new environmental assessment and, instead, simply assess whether the proposed changes would significantly impact the environment. See FAA, Order 1050.1F, Environmental Impacts: Policies & Procedures, ¶¶ 9-1–9-2 (July 16, 2015). After modeling their likely noise impacts, on October 8, 2015 the FAA concluded that the modified procedures would not have a significant environmental impact and, as such, categorically exempted them from further environmental review pursuant to Order 1050.1F. See id. ¶ 5-6.5(i).

Meanwhile, MAA officials were growing concerned about noise impacts associated with the departure procedures approved under the D.C. Metroplex and implemented earlier in 2015. The MAA sent a letter to the FAA about these concerns on October 22, 2015, stating that it had recently become aware of the noise impacts through a combination of attending local neighborhood association meetings and its own review of the departure procedures implemented since March 2015. The MAA asserted that the final environmental assessment for the D.C. Metroplex hadn't sufficiently accounted for the noise impacts of these...