Natural Resources Defense Council, Inc. v. F.A.A.

• Citation: 564 F.3d 549
• Decision Date: 01 May 2009
• Docket Number: Docket No. 06-5267-ag.
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., Defenders of Wildlife, Friends of PFN, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Lynne A. Osmus, Acting Administrator,<SMALL><SUP>*</SUP></SMALL> Federal Aviation Administration, Respondents, Panama City-Bay County Airport and Industrial District, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

564 F.3d 549

NATURAL RESOURCES DEFENSE COUNCIL, INC., Defenders of Wildlife, Friends of PFN, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Lynne A. Osmus, Acting Administrator,^* Federal Aviation Administration, Respondents, Panama City-Bay County Airport and Industrial District, Intervenor.

Docket No. 06-5267-ag.

United States Court of Appeals, Second Circuit.

Argued: January 23, 2008.

Decided: May 1, 2009.

Victor L. Hou, Geary Gottlieb Steen & Hamilton LLP, New York, New York (Melanie Shepherdson, Benjamin H. Longstreth, Natural Resources Defense Council, Inc., Washington D.C.; Jason Rylander, Defenders of Wildlife, Washington, D.C.; David N. Ellenhorn, Proskauer Rose LLP, New York, New York, on the brief), for Petitioners.

Ellen J. Durkee, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C. (Todd Aagaard, Attorney, Matthew McKeown, Acting Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice; Derek L. Stotts, Office of the Regional Counsel, Federal Aviation Administration, Southern Region, Columbia Park, Georgia; Gail C. Orendorff, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C, on the brief), for Respondents.

Donald A. Carr, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C. (David J. Cynamon, Kenneth P. Quinn, Jennifer E. Trock, Renee Stone, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C; Joseph K. Tannehill, Chairman, Panama City-Bay County Airport and Industrial District, Panama City, Florida, on the brief), for Intervenor.

Christine E. Lamia, Counsel, Florida Department of Environmental Protection, Tallahassee, Florida, Amicus Curiae.

Before: SACK, KATZMANN, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

The Panama City-Bay County Airport and Industrial District (the "Sponsor"), a state-chartered entity that owns and operates Panama City-Bay County International Airport (the "Panama City Airport"), proposes to close the existing airport at Panama City, Florida, and to construct a new airport in western Bay County (the "West Bay Site"). Pursuant to the Airport and Airway Improvement Act (AAIA), 49 U.S.C. §§ 47101-47131, the Sponsor sought and obtained approval for the construction project from the Federal Aviation Administration ("FAA"). Petitioners Natural Resources Defense Council, Inc., Defenders of Wildlife, and Friends of PFN (collectively, "petitioners") challenge the FAA's decision as a violation of the AAIA and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, and they request that this court enjoin the FAA from implementing its decision. Because the FAA's decision is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), we deny the petition for review and the relief sought therein.

I. Background

A. Factual Background

1. The Existing Panama City Airport

The existing Panama City Airport occupies 713 acres on the Florida panhandle. The northwest end of the primary runway abuts the open waters of Goose Bayou, which is part of a system of bays extending inland into Bay County. The remainder of the airport is surrounded by roads and commercial and residential development. Any expansion of the existing airport, therefore, would entail re-routing highways, displacing homes, filling in the bay waters of Goose Bayou, or some combination thereof.

Expansion of the existing airport is necessary to comply with the FAA's revised Runway Safety Area standards. The runway safety area serves to reduce the risk of injury to passengers and damage to property "in the event an aircraft undershoots, overshoots, or deviates from a taxiway or runway." 65 Fed.Reg. 38,636, 38,649 (June 21, 2000). By December 31, 2015, all airports receiving federal funding must conform to revised Runway Safety Area standards, see 2006 Transportation Appropriations Act, Pub.L. No. 109-115, tit. I, 119 Stat. 2396, 2401 (2005); 14 C.F.R. § 139.309, by (1) enlarging the safety area to the requisite dimensions, (2) deploying an Engineered Materials Arresting System ("EMAS"),¹ or (3) declaring the runway to be a shorter length, see FAA, Airport Design, Advisory Circular No. 150/5300-13 at 21, 25-26 & app. 14 (Sept. 29, 1989), available at www.faa.gov (follow "Advisory Circulars" hyperlink). These FAA standards provide that the runway safety area should extend 1,000 feet beyond the runway's end. See id. at 26-1 (table 3-3): see also Town of Stratford v. FAA, 285 F.3d 84, 86 (D.C.Cir. 2002) (describing methodology for calculating runway safety area). An airport that deploys EMAS, however, may require less than 1,000 feet of runway safety area beyond the runway's end to comply with FAA standards. See FAA, Engineered Materials Arresting Systems (EMAS) for Aircraft Overruns, Advisory Circular No. 150/5220-22A at 1 (Sept. 30, 2005), available at www.faa.gov (follow "Advisory Circulars" hyperlink).

The primary runway at the Panama City Airport is 6,304 feet long, and the secondary crosswind runway is 4,888 feet long. Neither runway complies with the FAA's revised Runway Safety Area standards. To be in compliance, the airport would need to extend the safety area an additional 941 feet beyond the Goose Bayou end of the primary runway. The runway safety area at the southeast end of the primary runway meets an antenna at 445 feet, an airport perimeter road at 678 feet, and State Road 390 at 847 feet. Each of these barriers prevents extension of the safety area to an uninterrupted 1,000 feet beyond the runway's end.

The airport's 6,304-foot primary runway is also too short for larger commercial aircraft. The FAA determined that a 6,800-foot runway would be necessary to accommodate the regional and narrow-body jets that could be expected to serve the airport through 2018. The Sponsor, however, wishes to expand the runway to receive wide-bodied aircraft arriving non-stop from overseas. To serve such larger aircraft, the Sponsor determined that it would need to expand the existing primary runway to 8,400 feet. See Intervener's Br. at 5-6. Extending the runway either to 6,800 or to 8,400 feet would run into the obstacles discussed above: established homes, businesses, roads, and Goose Bayou.

2. The Proposed West Bay Site

The St. Joe Company ("St. Joe"), the largest private landowner in Florida, has agreed to donate approximately 4,000 acres in West Bay County for construction of a new airport, contingent on the Sponsor's agreement to locate the airport within certain boundaries and the FAA's "commitment of funds for the airport's construction." Letter from Peter S. Rummell, CEO, St. Joe, to Donald Crisp, Chairman, Panama City-Bay County Airport and Industrial District, at 1 (Nov. 17, 1999). St. Joe owns most of the land surrounding the proposed site and, thus, would likely benefit from the new airport. See generally Sierra Club v. U.S. Army Corps of Eng'rs, 464 F.Supp.2d 1171, 1177-78 (M.D.Fla.2006) (noting St. Joe's regional land holdings and construction plans). To mitigate environmental damage that would be caused by the construction of a new airport, St. Joe has committed to set aside 9,609 of its acres as conservation easements.

3. Anticipated Effects of the Proposed Airport on Natural Resources

About half of the 4,037-acre site (approximately 1,929 acres) consists of "jurisdictional wetlands."² These wetlands are a potential habitat for several species protected by the Endangered Species Act, including the American alligator, the woodstork, the eastern indigo snake, and the flatwoods salamander. The first phase of the new airport construction would fill 596 acres of the wetlands. The FAA estimates that airport development over the next 50 years would have a direct impact on a total of 1,513 acres of the wetlands, with other development potentially affecting all wetlands within the site. These construction impacts and resulting loss of wetlands may adversely affect the eastern indigo snake and flatwoods salamander.

In addition, the proposed airport would be situated in a watershed between two tributaries, Crooked Creek and Burnt Mill Creek, that empty into the West Bay, a body of water containing potential "Essential Fish Habitat." The project would fill in 7,279 feet of streams that eventually join the two larger tributaries. Airport construction would also create nearly 800 acres of impervious surfaces, such as runways and parking lots, that would channel runoff into the Crooked Creek and Burnt Mill Creek watersheds and eventually into West Bay.

B. Procedural Background

1. Project History

As with many complex construction projects, plans for the West Bay airport have evolved over a number of years. The Sponsor completed an "Airport Master Plan Update" in 1996, which identified a future need for longer runways and larger runway safety areas to service the Bay County area. The Sponsor initially proposed to extend the existing Panama City Airport's primary runway into Goose Bayou, but it abandoned that proposal when the Florida Department of Environmental Protection ("Florida DEP")³ expressed concern that such a runway extension would (1) adversely affect Class II Surface Water suitable for shellfish propagation or harvesting, (2) fill sovereign submerged lands in violation of Florida law, and (3) destroy protected seagrasses. See Letter from Virginia B. Wetherell, Fla. DEP, to Cherie Trainor, Fla. Dep't of Cmty. Affairs (July 15, 1998); see also Letter from David B. Struhs, Fla. DEP, to Virginia Lane, FAA, at 1 (Oct. 24, 2003) ("The issues and objections expressed in the [1998 letter] have not changed or abated."). Having encountered such opposition, the Sponsor explored other options, including the West Bay Site offered by St. Joe. When the "Feasibility Study for Panama City-Bay County International Airport" commissioned by the Sponsor recommended relocation, the Sponsor, pursuant to the...