NEIGHBORS ORG. TO INSURE A SOUND ENVIRON. v. Engen

• Decision Date: 29 May 1987
• Docket Number: No. 3-86-0913.,3-86-0913.
• Citation: 665 F. Supp. 537
• Parties: NEIGHBORS ORGANIZED TO INSURE A SOUND ENVIRONMENT, INC., et al. v. Donald ENGEN, et al.
• Court: U.S. District Court — Middle District of Tennessee

665 F. Supp. 537

NEIGHBORS ORGANIZED TO INSURE A SOUND ENVIRONMENT, INC., et al. v. Donald ENGEN, et al.

No. 3-86-0913.

United States District Court, M.D. Tennessee, Nashville Division.

May 29, 1987.

Bruce & Barrick, William M. Barrick, Nashville, Tenn., for plaintiffs.

Leonard Ceruzzi, Chief Counsel, Washington, D.C., for defendant FAA.

Sam Bartholomew, Jr., Everett H. Falk, Kirk Shaffer, Stokes & Bartholomew, Nashville, Tenn., for defendants.

James Thomason, U.S. Atty., Nashville, Tenn., for U.S.

William R. Willis, Jr., Russell Willis, Willis & Knight, Nashville, Tenn., for defendant Metropolitan Airport Authority.

Gina R. Belt, Gen. Litigation Section, Land & Natural Resources Div., Washington, D.C., for defendants Engen and Administrator, FAA.

MEMORANDUM

WISEMAN, Chief Judge.

NOISE¹ a Tennessee corporation has sued Donald Engen in his official capacity as Administrator of the Federal Aviation Administration and the Metropolitan Nashville Airport Authority (MNAA) seeking to enjoin increased use of Nashville Metropolitan Airport (the Airport).² Plaintiffs allege that the defendants have violated the National Environmental Policy Act (NEPA)³ by failing to prepare a comprehensive environmental impact statement on the new terminal that has been built at the airport. Defendants have filed motions for summary judgment as have plaintiffs. The defendants state that there is no genuine issue of material fact; plaintiffs agree, but argue that summary judgment may be inappropriate since differing inferences may be drawn from the undisputed facts. To whatever extent this contention may have survived Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court finds it inapplicable to this case. In deciding a NEPA case the Court must determine whether on a substantive level the agency has given objective, good faith consideration to the environmental effects of a proposal and whether the procedures of NEPA have been followed. See Stryckers Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (discussing NEPA procedure); Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir. 1980).

Legal Background

Before turning to the specifics of the case at bar, an overview of the structure and purpose of NEPA will serve to facilitate clarity. In 1969 Congress passed NEPA

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation.

42 U.S.C. § 4321. Congress established a requirement that every proposal for "major Federal action significantly affecting the quality of the human environment" include a statement on the environmental impact of the proposed action. The statement must discuss the impact, unavoidable adverse effects, alternative actions, short-versus long-term tradeoffs, and "any irreversible and irretrievable commitments of resources." 42 U.S.C. § 4332.⁴ This action forcing provision ensures that federal agencies follow both the letter and the spirit of NEPA.

Congress also established the Council on Environmental Quality (CEQ). The CEQ serves as an information gathering advisor to the President. The CEQ also promulgates regulations implementing the EIS requirement of NEPA. On March 5, 1970, the President ordered the CEQ to establish guidelines for the preparation of EIS's. Ex. Order 11514, 3 C.F.R. § 902 (1966-70). These guidelines were revised in 1973. 38 Fed.Reg. 20550. In 1979 the CEQ was directed to issue regulations governing compliance with NEPA. Ex. Order 11991, 42 F.R. 26967 (amending Ex. Order 11514, 35 F.R. 4247). The regulations became effective on July 30, 1979. 40 C.F.R. § 1500.1 et seq.⁵

Every federal agency is required to adopt procedures to supplement the CEQ regulations. 40 C.F.R. § 1507.3 (1986). The FAA has done so. FAA Order 1050.4 was approved by the CEQ in 1980. The 1983 amended version, FAA Order 1050.4A, has also been approved. This version creates a categorical exclusion for terminals.⁶

Undisputed Facts

The Nashville Metropolitan Airport is about six miles from downtown Nashville. In 1969 the MNAA was formed by the Tennessee General Assembly; MNAA functions independently of Metropolitan Nashville Davidson County. In 1970, MNAA retained Peat, Marwick, Mitchell & Co. to evaluate the air traffic at the airport and to consider development options for the period up to 1990. The resulting 1971 Air Trade Study and Airport's evaluation laid out a number of alternatives utilizing Berry Field, the Smyrna Airport,⁷ and an entirely new site. The conclusions of the 1971 Air Trade Study are at issue in this litigation. The post-planning period forecast concluded that:

prevailing land use patterns and land values may effectively preclude the development of the Nashville Metropolitan Airport as the major air carrier facility at some future date (most likely beyond the 1990 planning period) unless (a) major changes occur in the established urban development pattern of the Nashville Metropolitan Region or (b) major innovations in aircraft technology significantly reduce the noise levels generated by the turbojet aircraft fleet and therefore markedly lessen their adverse impacts on the surrounding community.

1970 Air Trade Study p. 105 (emphasis original). The Tabular Summary at issue is attached to this memorandum as Appendix 1. In the post-1990 column, that table reiterates the "effectively precluded" conclusion. The post-1990 airport that the 1971 Air Trade Study thought might be effectively precluded was one encompassing 12,000 acres and affecting 20,000 additional acres.⁸

Also in 1971 a noise study on a new runway was done⁹ and long range cost estimates were prepared including a new runway and a new terminal. In October 1971 MNAA and the FAA met and discussed all of the future projects. In December 1971 Peat, Marwick finished the 1971 Air Trade Study. As a result of that study MNAA decided to continue development of the Berry Field site beyond 1990. This decision was made at an MNAA meeting on January 30, 1972. This concluded the first phase of the planning program for the airport.

Peat, Marwick was then hired to prepare a Master Plan for airport development.¹⁰ During the preparation of the Master Plan MNAA approved the concept of a new parallel runway 7,500 feet from the existing North-South Runway and a new terminal located between the two.¹¹ The Master Plan was completed in October 1973 and was accepted by FAA in January, 1974.

This was the second phase of the planning process. The 1973 Master Plan concluded that a North-South 7,500 feet separated parallel runway was more desirable than Northwest-Southeast configuration because of airspace and air traffic control. The latter configuration would conflict with the Smyrna flight path. A North-South runway would require just over half the land acquisition of the Northwest-Southeast configuration. Surrounding Land Use Compatibility for both was rated "fair"; 900 residential acres would be affected by the North-South configuration, 800 by the Northwest-Southeast. The need for a new runway was projected to occur after the 1990 planning period.

The 1973 Master Plan concluded however that the existing terminal, opened in 1961, required "immediate improvement to meet even the 1975 requirements." The Plan then evaluated three alternatives: the remote aircraft parking concept and the unit terminal concept involved continued use of the 1961 terminal with modifications; the third concept involved a new terminal. The most feasible site for a new terminal, the Plan concluded, was between the existing and the future North-South runways. Of the three alternatives the new terminal site had the best post-planning period capacity; after meeting with MNAA, Peat, Marwick eliminated the unit terminal concept in preparing the Master Plan.

The Master Plan concluded that the new terminal alternative would require access from Donelson Pike rather than the existing Briley Parkway access. The Master Plan also noted that the capacity of Briley Parkway would be exceeded within the planning period and that, if the parallel runway were constructed, Donelson Pike would have to be relocated.

MNAA then undertook a Terminal Evaluation Study (1974 Study) which selected the new terminal option in the inter-runway area. The 1974 Study determined that the maximum capacity of the old terminal was 1.8 million passengers a year and that development of the new terminal should be triggered by 1.3 million passengers in a year. MNAA also developed an Off-Airport Land Use Plan in 1974. During 1975 to 1976 MNAA acquired approximately 950 acres for the parallel runway.¹² An environmental impact assessment report (EIAR) was prepared for this acquisition, which was federally funded. In 1977 further noise studies were done as part of an Airport Vicinity Plan. The Metropolitan Council adopted the Comprehensive Zoning Ordinance (COMZO) on February 24, 1978 showing the parallel runway and discouraging incompatible land use around the airport. Some taxiway work was also proposed in 1978. An EIAR was prepared for this proposed action. This concluded the third phase.

In 1978-79 the airport approached the 1.3 million passengers trigger for a new terminal which the 1973 Master Plan had established. The fourth phase then began: detailed planning of the new terminal. In 1979 a Master Plan Update was prepared (1979 Master Plan). The 1979 Master Plan selected a pier-finger terminal layout to be constructed in two phases. Phase I of the new terminal involved two concourses and 23 gates. Phase II would add two additional concourses and either 21 or 23 gates. Phase II was planned for long range requirements past the year 2000 and was...