Tinicum Twp., Pa. v. U.S. Dep't of Transp.

• Decision Date: 06 July 2012
• Docket Number: No. 11–1472.,11–1472.
• Citation: 74 ERC 1993,685 F.3d 288
• Parties: TINICUM TOWNSHIP, PENNSYLVANIA, an incorporated first class township; County of Delaware, Pennsylvania, a political subdivision of the Commonwealth of Pennsylvania; Thomas J. Giancristoforo, individually and in his capacity as President of the Tinicum Township Board of Commissioners; David McCann, an individual, Petitioners v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Secretary of Transportation; Federal Aviation Administration; Administrator, Federal Aviation Administration; Carmine Gallo, Regional Administrator, FAA Eastern Region, Respondents City of Philadelphia, Intervenor–Respondent.
• Court: U.S. Court of Appeals — Third Circuit

685 F.3d 288

74 ERC 1993

TINICUM TOWNSHIP, PENNSYLVANIA, an incorporated first class township; County of Delaware, Pennsylvania, a political subdivision of the Commonwealth of Pennsylvania; Thomas J. Giancristoforo, individually and in his capacity as President of the Tinicum Township Board of Commissioners; David McCann, an individual, Petitioners

v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Secretary of Transportation; Federal Aviation Administration; Administrator, Federal Aviation Administration; Carmine Gallo, Regional Administrator, FAA Eastern Region, RespondentsCity of Philadelphia, Intervenor–Respondent.

No. 11–1472.

United States Court of Appeals, Third Circuit.

Argued March 6, 2012.

Filed: July 6, 2012.

Barbara E. Lichman (Argued), Buchalter Nemer, Irvine, CA, Sam S. Auslander, Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, Media, PA, for Petitioners.

Lane N. McFadden (Argued), Mary G. Sprague, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Respondents.

W. Eric Pilsk (Argued), Kaplan, Kirsch & Rockwell, Washington, D.C., Scott J. Schwarz, City of Philadelphia, Law Department, Philadelphia, PA, Catherine M. Van Heuven, Kaplan, Kirsch & Rockwell, Denver, CO, for Intervenor–Respondent.

Before: SCIRICA, AMBRO and JORDAN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This is an appeal of the Federal Aviation Administration's approval of a significant expansion of Philadelphia International Airport. Disputing the FAA's air quality analysis, Petitioners ¹ (collectively Tinicum) allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the consistency provision of the Airport and Airway Improvement Act, 49 U.S.C. § 47106(a)(1). Because we find the Federal Aviation Administration's decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), we will deny the petition for review.

I.

A.

Philadelphia International Airport (PHL) is the primary commercial airport for the Philadelphia region and the ninth busiest airport in the United States. Since 1999, PHL has been among the ten most delayed airports in the National Airspace System and has contributed to delays at airports throughout the United States. The delays arise from inadequate all-weather airfield capacity at PHL. The Airport's runways are too short, too close together, and too few.

Aware of these shortcomings, the City of Philadelphia, which owns and operates PHL, commenced in 2000 a study of airport facility needs. The study found that, in its current configuration, delays at PHL would increase from an average of over ten minutes per operation in 2003, which the FAA considers severe, to over nineteen minutes per operation in 2025. The FAA warns that delays of this magnitude lead both passengers and airlines to avoid an airport. To forestall these mounting delays and the consequent loss of airlines, the City sought FAA approval to expand PHL by extending two existing runways and constructing a new runway.

After receiving the City's proposal in 2003, the FAA decided to prepare an Environmental Impact Statement (EIS) in accordance with NEPA. The PHL expansion project was designated high priority and slated for expedited environmental review under the Aviation Streamlining Approval Process Act, 49 U.S.C. §§ 47171–47175, and an executive order prioritizing national transportation infrastructure projects, Exec. Order No. 13274, 67 Fed.Reg. 59,449 (Sept. 18, 2002). To comply with this national policy priority, the FAA collaborated with the City of Philadelphia, the Environmental Protection Agency (EPA), and several other interested federal and state agencies to develop a streamlining agreement that established agency roles, milestones for agency actions, and a dispute resolution procedure.

As part of the process, the FAA developed an Air Quality Analysis Protocol, which set out the scope, models, and procedures for its air quality analysis. It circulated a draft of the Protocol for input from interested parties in 2005 and finalized the Protocol in 2006. In September 2008, having completed the studies called for in the Protocol, the FAA published a three-volume, 900–page draft EIS. In relevant part, the draft set forth the procedures used to analyze the project's air quality impacts and the results of that analysis. It also incorporated by reference a draft Air Quality Technical Report, which further detailed the methodologies and data underlying the FAA's analysis.

To assess the project's air quality impacts, the FAA conducted a detailed emissions analysis of two potential project alternatives (“build” alternatives “A” and “B”) and a third alternative of not undertaking the project (the “no-build” alternative). In a table known as an emissions inventory, the FAA estimated the total project-related emissions of six air pollutants under the two build alternatives for each of the thirteen years of construction. The FAA calculated the future impact of the project on PHL's operational emissions by comparing predicted total emissions under the build and no-build alternatives in two post-construction years, 2025 and 2030. ² To obtain a more detailed assessment of operational air quality impacts, the FAA conducted dispersion modeling, an analytical technique that converts an emissions inventory into estimates of outdoor concentrations of pollutants at particular locations.

In November 2008, the EPA submitted comments on the draft EIS citing alleged data omissions in the FAA's analysis. The FAA considered and responded to each of the EPA's comments in the final EIS, issued on August 20, 2010. Some of the FAA's responses described revisions to the air quality analysis it had adopted based on EPA comments. Others explained the FAA's decision to stand by its chosen analytical approach.

Appended to the final EIS was the FAA's General Conformity Determination, a formal determination under the Clean Air Act and related regulations that the project would not interfere with Pennsylvania's compliance with national air quality standards. In that document, the FAA summarized its findings: (1) operational emissions (i.e., Airport emissions after project completion) of volatile organic compounds (VOC), nitrogen oxides (NOx), fine particulate matter of less than 2.5 micrograms (PM2.5), and sulfur dioxide (SO2) would be below the de minimis thresholds established by EPA regulations; (2) construction emissions of PM2.5 and SO2 would be below the de minimis levels; (3) construction emissions of NOx would exceed the de minimis thresholds in certain years, but the City of Philadelphia would be required to apply Airport Emission Reduction Credits to bring those emissions below the threshold; ³ and (4) VOC emissions would exceed de minimis levels during certain years of construction, but the City would be required to fully offset those emissions by acquiring and applying Emission Reduction Credits. ⁴

The publication of the final EIS concluded the NEPA process, but agency discussions on the air quality studies continued. On September 27, 2010, the EPA again submitted comments on the FAA's study design. After several weeks of dialogue, some differences of opinion remained. On December 30, 2010, the FAA published its Record of Decision, which approved the expansion project and delineated the FAA's reasons for approval. The Record of Decision included a finding that the project was “reasonably consistent with existing plans of public agencies for development of areas surrounding the airport,” as required by the consistency provision of the Airport and Airway Improvement Act, 49 U.S.C. § 47106(a)(1).

B.

PHL lies on the boundary between the City and County of Philadelphia on the east and Tinicum Township, Delaware County, on the west. The expansion project calls for the acquisition of land to the west of the Airport and will result in the displacement of a number of residences and businesses in Tinicum Township.

Tinicum petitioned for review of the Record of Decision, which constituted final agency action subject to review under the Administrative Procedures Act (APA). See49 U.S.C. § 46110. We review the FAA's action under the APA's arbitrary and capricious standard. 5 U.S.C. § 706(2)(A) (requiring that a reviewing court “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). We confine our review to the administrative record upon which the FAA's Record of Decision was based. See C.K. v. N.J. Dep't of Health & Human Servs., 92 F.3d 171, 182 (3d Cir.1996) (citing Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).⁵

II.

A.

The FAA conducted the air quality analysis at issue to meet the overlapping requirements of NEPA and the Clean Air Act. “NEPA is a procedural statute that does not mandate particular substantive results.” N.J. Dep't of Envtl. Prot. v. U.S. Nuclear Regulatory Comm'n, 561 F.3d 132, 133 (3d Cir.2009). NEPA's procedural requirements aim to ensure that an agency “consider[s] every significant aspect of the environmental impact of a proposed action” and “inform[s] the public that it has indeed considered environmental concerns in its decisionmaking process.” Id. at 134 (quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotation marks omitted)).

In reviewing the adequacy of an agency's Environmental Impact Statement under NEPA, “[w]e make a pragmatic judgment whether the [EIS's] form, content and preparation foster both informed decision-making and informed public participation.” Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 705 (3d Cir.1999) (citation and quotation marks omitted). We ask whether the agency took a “hard look” at the...