Town of Winthrop v. F.A.A.

• Decision Date: 23 July 2008
• Docket Number: No. 07-1953.,07-1953.
• Citation: 535 F.3d 1
• Parties: TOWN OF WINTHROP, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent, Massachusetts Port Authority, Intervenor-Respondent.
• Court: U.S. Court of Appeals — First Circuit

535 F.3d 1

TOWN OF WINTHROP, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent Massachusetts Port Authority, Intervenor-Respondent.

No. 07-1953.

United States Court of Appeals, First Circuit.

Heard June 6, 2008.

Decided July 23, 2008.

Peter L. Koff with whom Engel & Schultz, LLP, Jerome E. Falbo, and Falbo Solari & Goldberg were on brief for petitioner.

M. Alice Thurston, Attorney, U.S. Department of Justice, with whom Ronald J. Tenpas, Assistant Attorney General, Ronald M. Spritzer, Attorney, U.S. Department of Justice, and John Donnelly, Attorney, Federal Aviation Administration, were on brief for respondent.

Roscoe Trimmier, Jr., with whom Richard J. Lettieri, F. Turner Buford, Ropes & Gray LLP, David S. Mackey, Massachusetts Port Authority, and Ira M. Wallach, Massachusetts Port Authority, were on brief for intervenor-respondent.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

The Town of Winthrop, which is located next to Boston's Logan International Airport ("Logan"), and two local residents (one from Winthrop and one from East Boston) petition this court for review of a Federal Aviation Administration ("FAA") order permitting the construction of a new taxiway at the airport. They argue primarily that the FAA acted arbitrarily and capriciously in deciding that it did not need to prepare a supplemental environmental impact statement before issuing this final order.

Petitioners' concerns, as we understand them, may be grouped under three major themes. The FAA has concluded that the new taxiway, along with other previously approved projects, will ease congestion at the airport, reducing the amount of time planes spend idling on the airfield and causing an overall reduction in noise and air pollution. Even if that were so, petitioners fear that the FAA's solution for reducing delay will lead to greater use of Logan, which in the long run will lead to more, not less, adverse environmental impacts.

Second, they fear that the FAA has not used the most current data or methodologies available, which may cast doubt on the agency's benefits analysis.

Third, they say that public health studies show an increasing concern about ultrafine particulate matter and that the FAA should be required to continue to study this pollutant at Logan, both to evaluate these possible health effects and to keep the public informed. Notably, petitioners do not seek an injunction to stop the construction which has begun at Logan.

We find that the FAA has taken all of these concerns into account, has responded, and did not act arbitrarily or capriciously in issuing its final order. We deny the petition for review.

I.

Logan is the largest airport in New England; it has a history of being one of the country's airports with the most delayed flights. In the year 2000, when 27.4 million passengers and 1 billion pounds of freight passed through the airport, Logan was ranked sixth nationally for airports with the most delays, even though it was ranked eleventh for overall number of takeoffs and landings and eighteenth for passenger volume.

In 1993, the Massachusetts Port Authority ("Massport"), which operates Logan, and the FAA began studying options for improving Logan's operational efficiency. In 1995, Massport released a feasibility study which preliminarily analyzed different options and recommended some for further consideration. These recommended options included building a new runway (Runway 14/32), realigning Taxiway November, building a new Centerfield Taxiway, simplifying taxiway and runway crossings, and adding a surcharge for use of the airport during peak demand periods. Implementation of all or a subset of these options, it was believed, would significantly reduce airport delays.

In late 1995, Massport and the FAA began preparation of an environmental impact statement ("EIS") regarding these potential improvements, as required by state and federal law. The National Environmental Policy Act ("NEPA") requires that all proposals for "major Federal actions significantly affecting the quality of the human environment" be accompanied by an EIS. 42 U.S.C. § 4332(C). The goal of NEPA is to focus attention on the possible environmental effects of proposed actions, which in turn furthers two important purposes: to ensure that agencies do not make decisions based on incomplete information, and to provide information about environmental effects to the public and other governmental agencies in a timely fashion so that they have an opportunity to respond. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). NEPA does not prevent agencies from then deciding that the benefits of a proposed action outweigh the potential environmental harms: NEPA guarantees process, not specific outcomes. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).¹

After extensive analysis and community input, the FAA filed a draft EIS ("DEIS") in February 1999. In response to that draft, approximately 800 people attended two public hearings, and the FAA received approximately 500 comment letters. The FAA then compiled a supplemental draft EIS ("SDEIS") to consider additional issues; that document was published for comment in March 2001. This time, approximately 800 people attended the public hearings, and 850 comment letters were submitted. The FAA published its final EIS ("FEIS") in 2002.

The EIS (the DEIS, SDEIS, and FEIS collectively) considered five project alternatives: three involving some or all options considered by the feasibility study, one involving those options not requiring any construction, and one maintaining the status quo (the "no action alternative"). The EIS analyzed the operational and environmental effects of each alternative, considering both short-term and long-term impacts based on a range of estimated future passenger loads and fleet composition (the mix of the types of aircraft using Logan).

Based on these findings, the FAA released a Record of Decision ("ROD") in 2002, setting forth its rationale for approving the following collection of options (the "preferred alternative"):

a) Construction of a new runway (Runway 14/32)

b) Construction of a new Centerfield Taxiway²

c) Reconfiguration of the southwest corner taxiway system

d) Extension of Taxiway Delta

e) Realignment of Taxiway November

f) Reduction of instrument approach minimums for several runways

The FAA determined that this set of actions was preferable to the status quo. If no action were taken, the FAA concluded, airport delays would continue to increase; the preferred alternative, on the other hand, was expected to reduce delays by approximately twenty-nine percent. There is a relationship between delays and adverse environmental effects. Delays cause airplanes to idle needlessly on taxiways, increasing harmful emissions. The preferred alternative would reduce emissions and improve ambient air quality, as compared to the no action alternative.

Some local commenters have expressed concern that the construction of the Centerfield Taxiway, which is at the heart of the dispute before this court, would lead to an increase in flight activity, thus increasing air pollutants. The FAA denies this and responds that airport capacity is primarily a factor of runway capacity, not taxiway capacity; that the goal of this improvement project is to reduce delays and improve safety within Logan's current capacity; and that the Centerfield Taxiway would not "independently affect the total number of aircraft operations at Logan."

As for noise pollution, again compared to the no action alternative, the FAA found the preferred alternative would (1) drastically reduce the number of citizens exposed to excessive noise levels, defined as 70 dB (decibels) DNL (day-night average sound level) or higher, and (2) reduce the number of citizens exposed in the near-term to 65 dB DNL, which is the threshold at which the FAA considers noise levels to be significant as to residential land use. However, the reduction of the highest noise levels would be achieved by redistributing aircraft throughout the airfield, so the preferred alternative would result in approximately 250 more people being exposed to 65 dB DNL in the long term. Most of those affected would be residents of Chelsea and East Boston.

In its 2002 ROD, the FAA concluded, as it had in the FEIS, that the Centerfield Taxiway would be "the largest contributor to taxiway delay reduction" out of all the components of the preferred alternative package and that the new taxiway would "enhance airfield safety ..., provide small air quality benefits, and have no significant adverse noise or other environmental impact."

However, the FAA deferred final approval of the construction of the Centerfield Taxiway, despite approving the remaining components of its preferred alternative, in order to see whether operational changes, in addition to the construction, would provide further benefits. As a mitigation measure, the FAA agreed first to conduct an additional study, seeking comment from persons living around the northern side of the airfield, to consider "potential beneficial operational procedures that would preserve or improve the operational and environmental benefits of the Centerfield Taxiway as shown in the EIS." The additional study would also consider possible changes to the use of Taxiway November in response to concerns from local communities. Before agreeing to undertake this mitigation measure, the FAA considered the impact of deferring construction of the Centerfield Taxiway and concluded that "the potential deferment of the Centerfield Taxiway would have no discernable impact on the environmental [benefits] associated with the other [components] on the Preferred Alternative." It is the results of this additional consideration of potential mitigation benefits which is at the heart...