Save Our Heritage Inc v. FAA, 00-2340

• Decision Date: 02 August 2001
• Docket Number: No. 00-2340,00-2340
• Citation: 269 F.3d 49
• Parties: (1st Cir. 2001) SAVE OUR HERITAGE, INC., ET AL., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent, and SHUTTLE AMERICA CORPORATION and MASSACHUSETTS PORT AUTHORITY, Intervenors. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 49

269 F.3d 49 (1st Cir. 2001)

SAVE OUR HERITAGE, INC., ET AL., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent, and SHUTTLE AMERICA CORPORATION and MASSACHUSETTS PORT AUTHORITY, Intervenors.

No. 00-2340

United States Court of Appeals For the First Circuit

Heard Aug. 2, 2001

Decided October 23, 2001

ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL AVIATION ADMINISTRATION

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Andrea C. Ferster for petitioners.

Elizabeth S. Merritt, Associate General Counsel, Paul W. Edmondson, General Counsel, Anita C. Canovas, Assistant General Counsel, National Trust for Historic Preservation, Frances Gould, Special Assistant Attorney General for the Commonwealth of Massachusetts, Massachusetts Historical Commission, Neil T. Proto, Patricia A. Deem and Verner Liipfert Bernhard, McPherson and Hand on brief for National Trust for Historic Preservation, Commonwealth of Massachusetts, Honorable Congressman Marty Meehan, Historic Concord, Inc., and Freedom's Way Heritage Association, Amici Curiae.

M. Alice Thurston, Environment and Natural Resources Division, Department of Justice, with whom John C. Cruden, Acting Assistant Attorney General, James C. Kilbourne, Environment and Natural Resources Division, Department of Justice, and Daphne A. Fuller, Manager, Environmental Law Branch, Federal Aviation Administration, were on brief for respondent.

Roscoe Trimmier, Jr. with whom Richard J. Lettieri, M. Concetta Burton, Amy E. Serino, Ropes & Gray, David S. Mackey, Ira M. Wallach and Michael P. Sady were on brief for intervenor Massachusetts Port Authority.

H. Bissell Carey, III, Clive D. Martin and Robinson & Cole LLP on brief for intervenor Shuttle America Corporation.

Before Boudin, Chief Judge, Selya and Lipez, Circuit Judges.

BOUDIN, Chief Judge.

The Federal Aviation Administration ("FAA") authorized Shuttle America Airlines ("Shuttle America") to provide scheduled passenger service to New York's LaGuardia Airport ("LaGuardia") from Hanscom Field ("Hanscom"), a general aviation airport that lies 15 miles northwest of Boston abutting the towns of Bedford, Concord, Lexington, and Lincoln. The petitioners--two preservationist organizations, three of the four towns (Bedford is an intervenor), and stewards of several nearby historic sites--seek review of the FAA decision on the ground that the agency did not adequately consider the adverse effect of the additional Shuttle America flights on historic and natural resources near Hanscom.

Hanscom has been a major aviation facility since 1940, when the Commonwealth of Massachusetts first acquired the site to accommodate the U.S. Army Air Corps. In 1973 the Massachusetts Port Authority ("MassPort") converted a portion of the site into a general aviation facility serving corporate aviation, flight schools, air charter operations, light cargo, and private business and recreational flights. (The U.S. Air Force uses the remainder as Hanscom Air Force Base.) In 1995, there were about 95,000 general aviation and military flights (defined as a departure and an arrival) at Hanscom.

In recent years, MassPort and the FAA have expanded commercial passenger service at Hanscom, seeking to lessen congestion at Boston's Logan International Airport. These steps have concerned community groups who fear that the increased noise, air pollution, and surface traffic from the additional flights will harm the natural and historic resources near Hanscom. These sites include Minute Man National Historic Park, Walden Pond, and the homes of eminent American authors such as Ralph Waldo Emerson and Louisa May Alcott. The main access road to Hanscom is a part of Route 2A, which runs through the heart of Minute Man National Park.

In July 1999, MassPort backed a plan to let Shuttle America--a commuter airline then operating out of several airports on the East Coast--provide scheduled passenger service at Hanscom. To this end, Shuttle America asked the FAA to add Hanscom to the list of airport destinations in its operating specifications. MassPort asked the FAA to upgrade Hanscom's operating certificate to a "full Part 139 certificate," which allows use of planes with greater than 30 seats. See generally 14 C.F.R. Part 139 (2000).

The FAA granted both requests in September 1999, and Shuttle America immediately commenced passenger service out of Hanscom, with four daily round-trip flights. The FAA determined that it did not need to perform an environmental analysis for the two approvals because they were categorically excluded from review under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. (1994). It also concluded that the categorical exclusion under NEPA obviated the need for consultation under Section 106 of the National Historic Preservation Act of 1966 ("NHPA"), 16 U.S.C. § 470f (1994).

The Advisory Council on Historic Preservation, which is authorized to enforce NHPA, see 16 U.S.C. § 470s, questioned the FAA's reading of NHPA, and petitioner Save Our Heritage unsuccessfully sought reconsideration and rehearing of both the Part 139 certification and the addition of Hanscom to Shuttle America's operating specifications. However, no party sought timely judicial review of either of the FAA's decisions; such review is now time-barred. 49 U.S.C. § 46110(a) (1994).¹

In May 2000, Shuttle America applied for the operating specifications amendment at issue in this case--an amendment to add LaGuardia to its list of approved airport destinations. It proposed to make seven round-trip flights between Hanscom and LaGuardia, with the possibility of eventually expanding the service to ten flights a day. The FAA expressed doubt that NHPA consultation was required, but in light of the Advisory Council's earlier concerns, it decided it would be "prudent" to consult provisionally with the Massachusetts Historical Commission, which the Commonwealth had designated as its NHPA consulting agency. After conducting an environmental analysis, the FAA proposed a finding that the additional flights to LaGuardia would have no potential adverse effect on historic properties.

Petitioners Save Our Heritage and the Hanscom-area towns sent the FAA detailed criticisms of its proposed finding, and the Massachusetts Historical Commission also refused to concur. After providing additional documentation in an unsuccessful effort to persuade the Commission, the FAA terminated the consultation and, on October 27, 2000, issued the amendment ("the LaGuardia amendment"). Shuttle America began commercial service from Hanscom to LaGuardia with five round-trip flights per day, later reaching a peak of seven daily round-trip flights in January 2001.²

On direct review, 49 U.S.C. § 46110(a), petitioners now ask us to set aside and enjoin the LaGuardia amendment on the grounds the FAA decision violated NEPA, NHPA, and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (1994) (originally codified at 49 U.S.C. § 1653(f) (1970)). The statutory requirements are described below. The gist of the FAA's position is that its "effects" determination--that the addition of seven to ten flights a day would have no significant environmental impact--exempted the amendment from or otherwise satisfied these requirements.

At the threshold, the FAA and supporting intervenors raise two objections to our consideration of the case. The first is that the petitioners lack Article III standing, and the second is that the petitions are effectively out-of-time attacks on prior agency orders. Because the first challenge is constitutional, we start with it.

The basic requirements for Article III standing are that the petitioner is someone who has suffered or is threatened by injury in fact to a cognizable interest, that the injury is causally connected to the defendant's action, and that it can be abated by a remedy the court is competent to give.³ What constitutes a "cognizable interest" can present vexing problems, see Chemerinsky, Federal Jurisdiction § 2.3, at 68-74 (3d ed. 1999), but here the FAA and supporting intervenors concede that aesthetic and environmental injury are cognizable, see Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

Rather, the objections to standing are threefold. The first, and least persuasive, is the suggestion that even if some individuals or organizations are adversely affected by the increased flights, none of the petitioners or identified members of petitioner organizations have shown that they are among those injured. Admittedly, a specified petitioner or identified member must be within the affected group. See Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 181-84 (2000).

Here, the petitioners comprise nonprofit environmental or preservationist associations such as Save Our Heritage; the towns located near Hanscom; and at least two petitioners that own nearby historic sites: the Walden Woods Project, which owns part of the Walden Woods site and operates a Thoreau research and educational facility on it; and the Louisa May Alcott Memorial Association, which manages the writer's home. It is sufficient for the case to proceed if at least one petitioner has standing, Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971-72 (1st Cir. 1993).

There is little reason to doubt that the two nonprofit landowners (Walden Woods Project and the Alcott Association) would be affected by both noise and air pollution, given their function and proximity to Hanscom; and it is likely, although unnecessary to decide, that the three towns themselves would have a direct interest, e.g., in traffic congestion.⁴ We need not resolve whether the petitioner associations have established standing based on the rather sparse allegations of injury to the interests of their individual members. See Int'l Union, United Auto., Aero. & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281-82 (1986)....