Village of Bensenville v. Federal Aviation Admin.

Decision Date04 August 2006
Docket NumberNo. 05-1383.,05-1383.
Citation457 F.3d 52
PartiesVILLAGE OF BENSENVILLE, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION, Respondent City of Chicago, Intervenor for Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Christopher T. Handman argued the cause for petitioners. With him on the brief was Robert E. Cohn. Anthony R. Picarello, Jr., Derek L. Gaubatz, Gregory G. Garre, and Jessica L. Ellsworth entered appearances.

Robert L. Greene was on the brief for amici curiae Advocates for Faith and Freedom, et al. in support of petitioners.

Mary A. Thurston, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were

Todd S. Aagaard and Lisa E. Jones, Attorneys.

Benna Ruth Solomon argued the cause for intervenor. With her on the brief were Suzanne M. Loose, Sean H. Donahue, and Michael G. Schneiderman.

Before: HENDERSON, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in part and dissenting in part filed by Circuit Judge GRIFFITH.

ROGERS, Circuit Judge.

The principal issue in this appeal is whether the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., requires strict scrutiny of a federal agency's approval of an airport layout plan incident to a determination of eligibility for federal funding if the plan, when implemented by a subdivision of a state, may burden religious exercise. Because O'Hare International Airport, by some measures "the busiest airport in the world," Suburban O'Hare Comm'n v. Dole, 787 F.2d 186, 196 (7th Cir.1986), has been plagued by delays in recent years, the City of Chicago plans to expand and reconfigure the airport. The petitioners, two Chicago suburbs, a church, and several individuals, challenge the Federal Aviation Administration's approval of the City's plan on the ground that the approval violates RFRA because the approved runway configuration, which requires the relocation of a church cemetery, is not the least restrictive means of satisfying the government's compelling interest in reducing delays.

We hold that any burden on the exercise of religion caused by the City's airport expansion plan is not fairly attributable to the FAA. The Supreme Court has recognized that even in instances in which the federal government plays some role, constitutional standards do not attach to conduct by third parties in which the federal government merely acquiesces. So too, a federal agency's determination that a City's expansion plan is eligible for federal funding does not render the City's implementation of the plan tantamount to federal action that is the source of the burden on the free exercise of religion. The expansion plan for the airport, which is owned by the City, was prepared and will be implemented by the City, which is prepared to proceed without federal funds if necessary, and RFRA does not apply to burdens imposed by states or their subdivisions. Hence, the court need not reach the question whether the FAA has shown a compelling governmental interest in imposing a burden on the free exercise of religion.

Additionally, the court lacks jurisdiction to consider the petitioners' challenge to the FAA letter expressing a non-binding intention to obligate federal funding for the expansion because the letter is not a final order. Accordingly, because the petitioners' remaining contentions are without merit, we deny the petitions for review.


The Airport and Airway Improvement Act, 49 U.S.C. §§ 4710149USCAS47101 et seq. ("AAIA"), authorizes federal funding for airport improvement projects and establishes the prerequisites for a project to be eligible for funding. Congress established a national transportation policy aimed at the efficient transportation of passengers and property to ensure "the expanding wealth of the United States, the competitiveness of the industry of the United States, the standard of living, and the quality of life." Id. § 47101(b)(2)49USCAS47101. To those ends, the AAIA requires that "airport construction and improvement projects that increase the capacity of facilities to accommodate passenger and cargo traffic be undertaken to the maximum feasible extent so that safety and efficiency increase and delays decrease." Id. § 47101(a)(7).

To establish a "safe, efficient, and integrated system of public-use airports," the Secretary of Transportation must maintain a public airport development plan that includes the "kind and estimated cost of eligible airport development." Id. § 47103(a). More pertinently, pursuant to a delegation of authority from the Secretary, see id. § 106(g), the FAA may make project grants to a State, public agency, or private owner of a public-use airport from the Airport and Airway Trust Fund for airport development. See id. § 47104(a); see also id. § 47105(a), id. § 47102(19). To be eligible for federal grants, the airport development must comply with standards set by the FAA. See id. § 47105(b)(3). The FAA may approve an application only if satisfied that there are funds to cover costs not paid by the federal government, that the sponsor has authority to carry out the project, and that the project is consistent with state agency plans for the areas surrounding the airport, will contribute to carrying out the AAIA's purposes, and will be completed without unreasonable delay. See id. § 47106(a).

In addition to the statutory requirements for specific projects, a grant application may not be approved unless the airport itself operates according to certain standards. See id. § 47107. Among these standards, the airport owner must "maintain a current layout plan of the airport" that is approved by the FAA. Id. § 47107(a)(16). The FAA must approve any modified airport layout plan ("ALP") before the owner of the airport implements any changes. See id. § 47107(a)(16)(B); id. § 47104. When the approval of such a plan constitutes a "major Federal action[ ] significantly affecting the quality of the human environment" under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 ("NEPA"), the FAA must prepare an environmental impact statement ("EIS") determining the plan's effect on the environment and considering reasonable alternatives. See id. § 4332(C); Communities Against Runway Expansion v. FAA, 355 F.3d 678, 681 (D.C.Cir.2004); see also 49 U.S.C. § 47106(c).

Once an airport owner has an approved ALP, it may apply for a Letter of Intent ("LOI") to provide AAIA funding for the project. Upon such application, the FAA "may issue a letter of intent to the sponsor stating an intention to obligate from future budget authority an amount." Id. § 47110(e)(1). Any such statement of intention, however, is non-binding on the federal government. Id. § 47110(e)(3).


In December 2002, the City, which owns and operates O'Hare, submitted for FAA review an ALP designed to increase capacity and decrease costly delays that were interfering with O'Hare's role as a major connecting hub. The City's plan called for realigning three of the seven existing runways and adding an eighth runway. To accomplish the expansion, the plan would require the City to acquire 440 acres of adjacent property, including businesses and homes in the neighboring Villages of Bensenville and Elk Grove. Further, the plan would require relocation of two cemeteries: St. Johannes and Rest Haven.

Upon receiving the City's application, the FAA prepared an EIS that initially screened fifteen alternatives. After rejecting many of the alternatives as implausible or insufficient means of addressing the delays at O'Hare, and after a second screening eliminated three more, the FAA compared the four remaining alternatives, using computer software to perform simulations that modeled how well each alternative would enhance capacity and reduce delays. The FAA concluded that the City's plan—Alternative C—with the shortest average delay and $150 million savings in the five years following construction, was clearly preferable to all others.

Members of St. Johannes Church and descendants of those buried at the cemeteries objected that the relocation of the cemeteries would substantially burden their exercise of religion because of their belief in the physical resurrection of the bodies of Christian believers. Citing their rights under RFRA, they asked the FAA to demonstrate that Alternative C was the least restrictive means of meeting the government's compelling interests in reducing delay and enhancing capacity. Although expressing uncertainty over whether it was required to comply with RFRA in this instance because the City was ultimately responsible for designing and implementing the expansion plan, the FAA proceeded as if RFRA did apply in order to avoid litigation over the project. It found that the religious practices of some petitioners would be substantially burdened if the cemeteries were acquired and the bodies were relocated by the City. It concluded— after examining the petitioners' proposals for avoiding the relocation of the cemeteries, each of which the FAA characterized as derivative of the no-build and limited build alternatives it had already considered and rejected, and examining derivatives of its own that would limit effects on the cemeteries, each of which the FAA determined posed significant difficulties that would interfere with the goal of reducing delays—that Rest Haven Cemetery could remain at its current location by repositioning certain cargo facilities.

Therefore, in the final EIS, the FAA proposed to conclude that Alternative C, as modified to protect Rest Haven Cemetery, was the least restrictive means of achieving the federal government's compelling interest in increasing capacity and reducing delay. After receiving additional comments, the FAA reviewed the conclusions of the EIS in the Record of...

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