Town of Stratford, Connecticut v. F.A.A.

• Citation: 285 F.3d 84
• Decision Date: 09 April 2002
• Docket Number: No. 99-1507.,99-1507.
• Parties: TOWN OF STRATFORD, CONNECTICUT, Petitioner, v. FEDERAL AVIATION ADMINISTRATION and Jane F. Garvey, Administrator, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 84

285 F.3d 84

TOWN OF STRATFORD, CONNECTICUT, Petitioner, v. FEDERAL AVIATION ADMINISTRATION and Jane F. Garvey, Administrator, Respondents.

No. 99-1507.

United States Court of Appeals, District of Columbia Circuit.

Argued October 6, 2000.

Decided April 9, 2002.

On Petition for Review of a Decision of the Federal Aviation Administration.

William A. Butler argued the cause and filed the briefs for petitioner.

Robert H. Oakley, Attorney, United States Department of Justice, argued the cause for respondents. With him on the brief were Lois J. Schiffer, Assistant Attorney General, and Ellen Durkee, Attorney.

Before: ROGERS and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

SILBERMAN, Senior Circuit Judge:

The Town of Stratford petitions for review of the Federal Aviation Administration's Decision concerning the Bridgeport-Sikorsky Memorial Airport and disposal of land from the Stratford Army Engine Plant. We conclude that Stratford lacks prudential standing to pursue its claims that the FAA's Environmental Impact Statement (EIS) was inadequate under the National Environmental Policy Act¹ and that its remaining claims are without merit. Stratford's petition is therefore denied.

I.

The Bridgeport-Sikorsky Memorial Airport (BDR) belongs to Bridgeport, Connecticut, but actually sits in the neighboring town of Stratford. The airport is bounded by wetlands and the Stewart B. McKinney National Wildlife Refuge, Great Meadows Marsh to the southwest, by the Lordship township to the south and east, by Connecticut State Highway 113 (Stratford's "Main Street") to the northeast, and by the residential township to the northwest. Across Main Street from the airport is the Stratford Army Engine Plant (SAEP), which has closed. Stratford and Bridgeport have had a number of disputes over the airport, some of which focused on the property tax revenues Stratford loses because of the airport's municipal status. In 1978, the disputes resulted in a court-approved settlement that required Bridgeport to obtain Stratford's permission for "the acquisition of land for the purposes of extension of the airport runways, and ... for the extension of any of the airport runways." The airport has two runways currently in use: Runway 6-24, which is the primary one, and Runway 11-29.²

Bridgeport has filed an "Airport Master Plan" with the FAA that calls for the renovation of the two runways, beginning with Runway 6-24, and the addition of several safety enhancements. Bridgeport asserts that the concrete on Runway 6-24 needs replacement to make the airport safer. Replacing the concrete is a "reconstruction... of a runway," which requires the city to construct "a [runway] safety area that conforms to the dimensions acceptable to the [FAA]" at the time of reconstruction. 14 C.F.R. 139.309(a)(2).

The length of a runway safety area is determined by an airport's "design classification," a description of the largest class of aircraft that uses the runway for 500 or more operations per year. The category is determined by the design aircraft's landing-approach speed and the group by the design aircraft's wingspan. The recommended safety area for a C-II airport is 1000 feet long by 500 feet wide at either end of the runway. (By contrast, a B-II airport has a recommended safety area of only 600 feet by 300 feet.) BDR is currently a C-II airport, the safety areas for which would require expansion of the airport (although not the runways themselves) into the space currently occupied by Main Street and beyond.

After receiving Bridgeport's Airport Plan, the FAA prepared an EIS evaluating various possible safety measures at the airport. The EIS' Statement of Purpose and Need outlined its general objective of increasing safety for general/corporate and commercial aviation services. The EIS considered three groups of alternatives. The Preferred Alternative shifted runway 6-24 to the northeast, provided for a new taxiway area (which encroaches on the SAEP), provided for safety areas of 1000 feet on either end of the runway, placed a light system on a catwalk through wetlands, required the rerouting of Main Street through the SAEP, recommended annexation of four SAEP acres and placing "avigation restrictions covering height and electromagnetic, smoke, and light emissions," on an additional five,³ and created wetland impacts which would require mitigation. Importantly, the Preferred Alternative did not contemplate extending the runway itself.

The FAA then issued its Decision, which followed the EIS, approving in most part the Airport Master Plan, including expanded safety areas. Stratford petitions for review of that Decision on three grounds: first, that the FAA's Environmental Impact Statement was inadequate under NEPA, the CEQ regulations and Airport Handbook; second, the FAA violated the Airports and Airways Improvement Act;⁴ and third, subsequent events require preparation of a Supplemental EIS.

While the FAA was considering the Airport Master Plan, the SAEP was scheduled for closure under the Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510 (1990), and the recommendations of the 1995 Defense Base Closure and Realignment Commission (collectively "BRAC"), and the Army was considering how to dispose of that land. BRAC sets forth the federal policy preference of returning the land of closing bases to the host community-in this case, Stratford. As part of the base closure process, the Army also prepared an EIS. Its Preferred Alternative was the "Encumbered Disposal Alternative," which would transfer the SAEP land to Stratford subject to restrictions preventing redevelopment of the property from interfering with BDR and from producing excessive wetland or other environmental impacts. In its EIS, the Army discussed the economic effects of the proposed safety enhancements as well as the potential conflict between protecting BDR's operations and Stratford's redevelopment plans. The Army ultimately concluded that its Preferred Alternative would not be expected to cause "any serious disruption or impairment to redevelopment of the site," in part because the encumbered parcel was at the fringe of the SAEP in the area most prone to airport noise, which made it the least desirable parcel for development. As for moving Main Street, the Army concluded that it would entail minor long term adverse impacts but would also produce minor beneficial effects on air quality. The Army issued two decisions concerning disposal of the disputed land, one in January 2001, the other in November 2001. The FAA now purports to rely on the Army's consideration of certain factors.

At oral argument, we sua sponte raised the question of whether Stratford had been injured so that standing existed, and whether the case was ripe for decision. We had two primary concerns: first, the Army had not yet issued its decision concerning disposal of the SAEP land. Second, Stratford claimed that it exercised veto power over a potential movement of Main Street, which called into question the likelihood of the FAA's Preferred Alternative ever being implemented. After the Army issued its decision, the parties submitted supplemental briefing concerning standing and ripeness. The FAA told us "that the Administrator ... has concluded that the FAA will seek to condemn the road so that the airport enhancements needed for safety reasons can be constructed at BDR." Stratford, therefore, will no longer be able to exercise veto power over a movement of Main Street. With the issuance of the Army's decision and FAA counsel's representation as to condemnation, Stratford's petition is ripe for review.⁵ We are also satisfied that Stratford meets the requirements for Article III standing because its developmental prospects are clearly impaired.

II.

Although we conclude that Stratford has suffered an injury-in-fact, there still remains the question whether it has prudential standing to raise its NEPA, CEQ, and Airport Handbook claims. Stratford does assert that relocating Main Street will add almost a minute of travel time to automobile users of Main Street— including its emergency personnel—but the Town does not claim that it (or anyone else) will suffer any environmental injury because of that delay. Nor does Stratford claim that its other injury-in-fact—that but for the FAA's decision nine additional acres would be available for development—has any negative environmental consequences.

Since NEPA does not create a private right of action, petitioner relies on the APA, which limits prudential standing to an "aggrieved party" within the meaning of the substantive statute upon which the claim is based. 5 U.S.C. § 702; see also Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). But we have squarely held that a NEPA claim may not be raised by a party with no claimed or apparent environmental interest. See, e.g., ANR Pipeline Co. v. FERC, 205 F.3d 403, 408 (D.C.Cir.2000). It cannot be used as a handy stick by a party with no interest in protecting against an environmental injury to attack a defendant.

To be sure, the Supreme Court in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), in reversing the Ninth Circuit, not surprisingly recognized that the Endangered Species Act did allow a petitioner with only economic interests to challenge an action of the Fish and Wildlife Service. That was because the specific section of the statute upon which the petitioners (irrigation districts and ranchers) relied was drafted at least in part to avoid needless economic dislocation. The Court emphasized that a court must examine— not just the general aims of a statute—but the specific provision in question to determine whether a plaintiff or petitioner has prudential standing.

Although petitioner in our case does not even suggest a real basis...