Miki Barnes, et al v. USDOT, et al
Filing
FILED OPINION (BETTY BINNS FLETCHER, RICHARD A. PAEZ and SANDRA S. IKUTA) GRANTED; REMANDED. Judge: BBF Authoring, Judge: SSI Dissenting. FILED AND ENTERED JUDGMENT. [7870522]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE BARNES, an individual;
PATRICK CONRY, an individual;
BLAINE ACKLEY,
Petitioners,
PORT OF PORTLAND,
Intervenor,
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION; RAY LAHOOD,
Secretary of Transportation;
FEDERAL AVIATION ADMINISTRATION;
J. RANDOLPH BABBITT,
Administrator, Federal Aviation
Administration; DONNA TAYLOR,
Regional Administrator, Federal
Aviation Administration,
Northwest-Mountain Region;
CAROL SUOMI, District Manager,
Federal Aviation Administration
Seattle Airports District; CAYLA
MORGAN, Environmental Specialist,
Federal Aviation Administration
Seattle Airports District,
Respondents.
No. 10-70718
OPINION
On Petition for Review of an Order of the
Federal Aviation Administration
Argued and Submitted
February 9, 2011—Seattle, Washington
Filed August 25, 2011
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BARNES v. USDOT
Before: Betty B. Fletcher, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Ikuta
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COUNSEL
Sean T. Malone and Andrew J. Orahoske, for the petitioners.
Ignacia S. Moreno, Assistant Attorney General; Hans Bjornson and Patricia A. Deem, the Federal Aviation Administration; David C. Shilton and Michael T. Gray, United States
Department of Justice, Environment and Natural Resources
Division, for the respondents.
Beth S. Ginsberg, Rita V. Latsinova, and Jason T. Morgan,
Stoel Rives LLP, for the intervenor.
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OPINION
B. FLETCHER, Circuit Judge:
Petitioners Michelle Barnes, Patrick Conry, and Blaine
Ackley (collectively, “petitioners”) challenge an order of the
Federal Aviation Administration (“FAA”) concerning the proposed construction by the Port of Portland (“the Port”) of a
new runway at Hillsboro Airport (“HIO”). The FAA issued a
Finding of No Significant Impact (“FONSI”), thus relieving
the agency of preparing an Environmental Impact Statement
(“EIS”). Petitioners argue that the decision not to prepare an
EIS was unreasonable for several reasons, chief among them
the FAA’s failure to consider the environmental impacts of
any increased demand for HIO resulting from the addition of
a runway. Petitioners also argue that the FAA did not afford
them a public hearing within the meaning of 49 U.S.C.
§ 47106.
We have jurisdiction pursuant to 49 U.S.C. § 46110. We
grant the petition and remand.
BACKGROUND
I.
The Hillsboro Airport
HIO is located in the city of Hillsboro in Washington
County, Oregon, 12 miles west of downtown Portland. The
Port of Portland assumed ownership of HIO in 1966. In 2008,
HIO become Oregon’s busiest airport, surpassing Portland
International Airport (PDX) in number of airport operations.1
HIO’s increasingly important role in the Portland metropolitan area and the Oregon state system of airports is the result
of its serving all three segments of the air transportation
industry: commercial air carriers, military, and general avia1
Airport operations include takeoffs and landings.
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tion (GA). Commercial air carrier is broadly defined as any
domestic or foreign aircraft carrying passenger or cargo for
hire. HIO accommodates a broad range of commercial air carriers, including scheduled air carrier activity using aircraft
with nine or fewer passenger seats; air cargo carriers using
aircraft with a payload capacity less than 7,500 pounds; ondemand air carriers using aircraft with 30 or fewer passenger
seats and a payload capacity of less than 7,500 pounds; and
commuter operations with non-turbojet aircraft with nine or
fewer passenger seats and a payload capacity of less then
7,500 pounds.2 HIO also accommodates local and transient
operations by military rotorcraft and occasionally military jet
aircraft. Finally, GA is defined as all aviation other than military and commercial airlines. It includes a diverse range of
activities such as pilot training, sightseeing, personal flying,
agricultural spraying and seeding, fractional business jet operations,3 and emergency medical services. Seventy percent of
the hours flown by general aviation are for business purposes.
HIO’s role is defined within both state and federal aviation
plans. HIO is designated as a reliever airport in FAA’s
National Plan of Integrated Airport Systems (NPIAS).
Reliever airports are specially designated to reduce congestion at large commercial service airports by segregating GA
aircraft from commercial airlines and air cargo activities. HIO
is classified as a reliever for PDX. At the state level, the Oregon Aviation Plan prepared by the Oregon Department of
Aviation (ODA) classifies HIO as a Category 2, Business or
High Activity General Aviation Airport. Neither the NPIAS
nor the Oregon Aviation Plan anticipate HIO changing from
a GA airport to a commercial service airport in the future.
2
HIO is not certified to accommodate scheduled air carrier activity
using aircraft with more than nine passenger seats. In the area, PDX exclusively is certified to accommodate such activity.
3
Fractional business jet operations are the aviation equivalent of real
estate time shares.
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II.
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Hillsboro Airport Master Plan
In 2005, the Port of Portland undertook the HIO Master
Plan to “forecast future aviation demand, and to plan for the
timely development of new or expanded facilities that may be
required to meet that demand” through the year 2025. The
Master Plan states that HIO is “the most capable” GA airport
out of the 23 public-use airports in the Portland-Vancouver
metropolitan area, only one of which, PDX, is a commercial
service airport.
In its current configuration, HIO has two intersecting runways, an airport traffic control tower, and an instrument landing system. The primary runway is 6,600 feet long and 150
feet wide (the longest runway at all GA airports in the area),
and serves the mix of large business jet aircraft and GA aircraft which use HIO. The precision instrument approach is
aligned with this primary runway. The second runway is a
cross-wind runway 4,049 feet long and 100 feet wide, which
serves primarily small GA aircraft. In addition, HIO has three
taxiways parallel with the runways and three helicopter takeoff sites (or helipads). Two of the helipads are located at the
end of each runway and the third, the Charlie helipad, is
located parallel to the primary runway. Due to its capabilities
—which cannot be readily replicated without significant capital investments—HIO has evolved as the primary GA airport
in the Portland-Vancouver metropolitan area.
HIO’s significant role in the region is reflected in its annual
service volume (“ASV”). ASV is one dimension of airfield
capacity and a fundamental tool in airport planning. As used
in the HIO Master Plan, ASV represents a “reasonable estimate of the maximum level of aircraft operations that can be
accommodated at [an airport] in a year”4 at acceptable levels
4
This is the definition used by the FAA Advisory Circular 150/5060-5,
Airport Capacity and Delay, at 2 (Sept. 1983). ASV has another widelyused definition: the level of annual activity at which the average delay per
operation is 4 minutes. See, e.g., FAA Order 5090.3C, Field Formulation
of the National Plan of Integrated Airport Systems, at 20 (Dec.4, 2000).
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of service. ASV accounts for differences in airfield characteristics, aircraft mix, weather conditions and demand characteristics (the mix of different types of aircraft operations) that
would be encountered over a year’s time. ASV is not a ceiling
and airports often operate above the ASV. The FAA, however, requires that improvements for airfield capacity purposes be considered when operations reach 60 percent of ASV.5
The goal of airfield capacity improvements is to increase
ASV to a point where annual operations represent between 60
and 80 percent of ASV.
The HIO Master Plan forecast that the ASV for 2007 would
be 169,000, the annual runway operations 166,033, and therefore HIO would operate at 98 percent of ASV. This would
result in an average delay of 1.2 minutes, and a total aircraft
delay of 3,321 hours a year. By 2010, ASV would increase to
176,000, the annual runway operations would increase to
196,600, and HIO would operate at 112 percent of ASV. The
average delay would be 1.9 minutes, and the total aircraft
delay 6,200 hours a year. By 2015, ASV would increase to
174,000, the annual runway operations to 214,600, and HIO
would operate at 123 percent of ASV. The average delay
would be 3.6 minutes, and the total aircraft delay 12,900
hours a year. For 2025, ASV would drop slightly to 171,000,
but the annual runway operations would further increase to
249,300, and HIO would operate at 146 percent of ASV. The
average delay would be 6 minutes, and the total aircraft delay
24,900 hours a year. Increasing levels of annual delay create
undesirable conditions such as increased air emissions,
increased operating costs, and extended air traffic patterns.
5
See FAA Order 5090.3C at 24. That order, however, defines ASV as
the level of annual activity at which the average delay per operation is 4
minutes. By contrast, the HIO Master Plan appears to calculate the ASV
as the level of annual activity at which the average delay per operation is
slightly more than 1.2 minutes. See infra at 16269-70. Whether the Master
Plan’s recommendations for airfield capacity improvements would have
been the same had it relied on the ASV definition actually used by FAA
Order 5090.3C is not before us.
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After analyzing two alternative actions—increasing radar
coverage and building additional exit taxiways to the primary
runway—the Master Plan concluded that adding a runway for
use by small GA aircraft exclusively is “the best means available for reducing delays and the undesirable conditions that
occur due to delay.” Adding a new runway would allow HIO
to operate at 65 percent of ASV in 2012, 69 percent in 2015
and 81 percent in 2025.
III.
The Proposed Project—Construction of a New
Parallel Runway and Related Actions
Following the Master Plan’s recommendations, the Port of
Portland proposed to construct a new, 3,600-foot-long and 60foot-wide, runway parallel to the existing primary runway, to
construct associated taxiways, relocate the Charlie helipad,
and make associated infrastructure improvements. The Port
proposed to start the construction of the new runway and
associated taxiways in 2010 and complete them by 2011. The
relocation of the Charlie helipad would start in 2014 and the
relocated helipad would be in operation by 2015. The modifications would be partially funded by FAA grants and would
therefore require FAA approval and the preparation of an
environmental assessment (“EA”).
The FAA approved and published a Draft Environmental
Assessment (“DEA”) prepared by the Port on October 9, 2009.6
For its purposes, the FAA approved the use of the HIO Master
Plan’s demand forecast.7 The DEA stated the purpose of the
project is “to reduce congestion and delay at HIO in accor6
For an explanation of the roles of the FAA and the Port in the process
of preparing the EA for the HIO expansion project, see infra p.16276.
7
Although the FAA found that the Master Plan’s forecast was outside
the FAA’s recommended range of variation from its own forecast at the
5-year mark (by then 2013), it found that it was within the range of variation at the 10-year mark (then, 2018). The FAA ultimately approved the
use of the Master Plan’s forecast for use in the DEA.
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dance with planning guidelines established by the FAA.” The
DEA explained that as congestion and delay increase, HIO’s
ability to serve as an attractive, safe and efficient reliever for
PDX diminishes:
The proposed action is needed because the HIO airfield is currently operating at close to 100 percent of
annual service volume (ASV) and current Airport
activity levels exceed the FAA capacity planning
criteria. . . . Forecast activity levels through 2025 are
expected to substantially exceed the ASV of the current airfield, with increasing levels of unnecessary
congestion and delay corresponding to the increased
demand.
In the DEA, the Port considered the proposed project and
seven alternative actions, including a “no action” alternative.
The Port eliminated five of these alternatives as not meeting
the purpose and need of the project and focused on the three
remaining alternatives. Alternative 1, the “no action” alternative, would maintain the status quo and would not meet the
purpose and need for the project. Under Alternatives 2 and 3,
HIO would gain a new runway parallel to the primary runway, a taxiway parallel to the new runway, and additional
infrastructure, including electrical service for lighting and
signage, an access roadway, and drainage facilities for new
impervious surfaces. The alternatives differed only as to the
new location of the Charlie helipad, which needed to be
moved in order to make room for the new runway.
The Port analyzed the environmental impacts of the three
alternatives. It found that, due to its location, a new runway
would increase the size of the area of significant noise impact
compared to the “no action” alternative, but no residential or
other noise-sensitive land uses occur in that area. In fact,
Alternatives 2 and 3 would shift noise impacts modestly away
from the most densely populated residential areas and towards
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farmlands. Construction noise impacts would be temporary
and would not approach the FAA threshold of significance.
The Port stated that Alternatives 2 and 3 “would not lead
to increased aviation activity compared to the No Action
Alternative.” It concluded, “In the absence of induced offairport development, increased levels of aviation activity, or
significant environmental impacts, [Alternatives 2 and 3]
would not lead to secondary impacts with respect to shifts in
patterns of population movements and growth, public service
demands, or changes in business and economic activities.”
The Port found that the construction of the new runway
would temporarily increase air emissions, but estimated that
they would not be significant. As to the operational emissions,
the Port stated that “[o]nce constructed, operation of the proposed project would not increase emissions from other
sources because all of the alternatives under consideration
would experience the same level of aviation activity.” In fact,
by reducing congestion and delay, Alternatives 2 and 3 would
reduce aircraft ground idle emissions compared to the “no
action” alternative and result in “long-term, ongoing emission
reductions.” Relying on the fact that operations at HIO represent less than 1 percent of U.S. aviation activity, the Port
stated that it did not expect the emissions of greenhouse gases
from the project to be significant.
The Port further found that a new runway would slightly
increase storm water runoff, impact some 70 acres of vegetation (which include 6.30 acres of Vegetated Corridor as
defined by Clean Water Services), result in permanent loss of
2.22 acres of wetlands, affect some 50 acres of prime farmland or farmland of statewide importance, and raise electricity
use slightly. To mitigate these impacts, the Port proposed
compensating for damaged wetlands by restoring or enhancing the same acreage of historic wetlands in a nearby
environmentally-sensitive area. It also provided a plan to
reduce air emissions during construction, designed a strategy
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to absorb excess storm water runoff, proposed measures to
protect wildlife and plants, and adopted a protocol for preserving any artifacts found during construction.
In light of the above, the Port concluded that a new runway
would not have cumulative significant impacts.
The FAA made copies of the DEA available to the public
and solicited public comment for 45 days. On November 10,
2009, the Port held a two-hour meeting with the public. The
meeting had an open house format, which included tables
with copies of the DEA, multiple stations with information
about the project, and a stenographer for recording oral statements. Twice during the meeting, the Port made a presentation providing an overview of the project and summarizing
the results of the DEA. Approximately 18 members of the
public attended the meeting. Petitioner Barnes made oral
statements. Seven individuals, including all three petitioners,
submitted written comments.
The Port made minor revisions to the DEA in response to
comments from the public and prepared a final environmental
assessment (“EA”). The Port selected either Alternative 2 or
3 as the preferred alternative. The FAA approved the EA and
issued a FONSI on January 8, 2010.
Petitioners filed a timely petition for review in this court
pursuant to 49 U.S.C. § 46110. They argue that the FAA violated the National Environmental Policy Act of 1969, 42
U.S.C. §§ 4321 et seq. Specifically, they contend that: (1) the
FAA failed to consider the indirect effects of increased aircraft operations; (2) the context and intensity of the project
requires that the FAA prepare an environmental impact statement; (3) the FAA failed to take a hard look at the cumulative
effects of the project; and (4) the FAA failed to consider a
reasonable range of alternatives. Petitioners also argue that
the FAA failed to provide them with a public hearing, in violation of the Airport and Airway Improvement Act of 1982,
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49 U.S.C. §§ 47101 et seq. The Port intervened in this petition
as an interested party pursuant to 49 U.S.C. § 46109.
ANALYSIS
I.
The National Environmental Policy Act Claims
A.
Statutory Background
The National Environmental Protection Act of 1969, commonly known as NEPA, is “our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a) (2006).
Congress passed NEPA “to protect the environment by requiring that federal agencies carefully weigh environmental considerations and consider potential alternatives to the proposed
action before the government launches any major federal
action.” Lands Council v. Powell, 395 F.3d 1019, 1026 (9th
Cir. 2005). To accomplish this, “NEPA imposes procedural
requirements designed to force agencies to take a ‘hard look’
at environmental consequences.” Earth Island Inst. v. U.S.
Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003). NEPA,
however, does not contain substantive environmental standards, nor does it mandate that agencies achieve particular
substantive environmental results. Bering Strait Citizens for
Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d
938, 947 (9th Cir. 2008).
NEPA requires federal agencies to prepare an EIS before
undertaking “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2)(C).
An EIS must “provide full and fair discussion of significant
environmental impacts and shall inform decisionmakers and
the public of the reasonable alternatives which would avoid or
minimize adverse impacts or enhance the quality of the
human environment.” 40 C.F.R. § 1502.1.
Under the Council on Environmental Quality regulations
implementing NEPA, an agency prepares an EA in order to
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determine whether to prepare an EIS or to issue a FONSI, the
latter of which excuses the agency from its obligation to prepare an EIS. See C.F.R. §§ 1500.1-.8; Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998).
Regulations consistent with this approach have also been promulgated by the FAA for the purpose of evaluating FAA
actions, including airport developments. See F.A.A. Order
1050.1E, Policies and Procedures for Considering Environmental Impacts ¶ 201 (Mar. 20, 2006).
Under the FAA regulations, the FAA was required to conduct an environmental assessment of the HIO expansion project. See id. § 401k (EA required for “[f]ederal financial
participation in, or unconditional airport layout plan approval
of, the following categories of airport actions: . . . (2) New
runway.”). The FAA permitted the Port, as the proponent of
the project, to prepare the draft and final environmental
assessments, a task which the Port contracted to CH2M HILL.
See 40 C.F.R. § 1506.5(b) (federal agencies may permit an
applicant to prepare an EA). The FAA, however, was required
to independently evaluate the information in the EA and was
responsible for its accuracy. Id. § 1506.5(a). The FAA was
also required to make “its own evaluation of the environmental issues and take responsibility for the scope and content of
the environmental assessment.” Id. § 1506.5(b). In light of the
foregoing, we review the actions by the FAA—taken either
independently or in conjunction with the Port,—and not separately the actions by the Port.
B.
Standard of Review
The Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701 et seq., provides the authority for this court’s review
of agency decisions under NEPA. See, e.g., Pit River Tribe v.
U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006). A
reviewing court may set aside an agency action only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). Review under
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the arbitrary and capricious standard is narrow, and we do not
substitute our judgment for that of the agency. Lands Council
v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Natural Res. Defense
Council, 129 S. Ct. 365 (2008). An agency decision will be
upheld as long as there is a rational connection between the
facts found and the conclusions made. Siskiyou Reg’l Educ.
Project v. U.S. Forest Serv., 565 F.3d 545, 554 (9th Cir.
2009).
In reviewing an agency’s decision not to prepare an EIS,
the arbitrary and capricious standard under the APA requires
this court
to determine whether the agency has taken a “hard
look” at the consequences of its actions, “based [its
decision] on a consideration of the relevant factors,”
and provided a “convincing statement of reasons to
explain why a project’s impacts are insignificant.”
Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005,
1009 (9th Cir. 2006) (quoting Nat’l Parks & Conservation
Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001)).
C.
Waiver
[1] Preliminarily, the Port and the FAA argue that the petitioners waived their NEPA arguments because they failed to
raise them during the public comment period.
[2] Persons challenging an agency’s compliance with
NEPA must “structure their participation so that it . . . alerts
the agency to the [parties’] position and contentions,” in order
to allow the agency to give the issue meaningful consideration. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 764
(2004) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)). The
agency, however, bears the primary responsibility to ensure
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that it complies with NEPA and an EA’s flaws “might be so
obvious that there is no need for a commentator to point them
out specifically in order to preserve its ability to challenge a
proposed action.” Public Citizen, 541 U.S. at 765. This court
has interpreted the “so obvious” standard as requiring that the
agency have independent knowledge of the issues that concern petitioners. ‘Ilio ‘ulaokalani Coal. v. Rumsfeld, 464 F.3d
1083, 1092 (9th Cir. 2006).
Our review of the record of the hearing held by the Port and
the written materials submitted by petitioners persuades us
that they raised some, but not all the arguments they raise
now. We address them in turn.
Petitioners first argue that the EA is inadequate because the
Port and the FAA failed to consider the indirect effects of
increased aviation activities due to the proposed expansion in
capacity at HIO. Although petitioners Barnes and Conry
expressed generalized grievances about the negative effects of
aviation activities, the HIO’s role as a reliever airport for
PDX, and the high level of operations at HIO, there is nothing
in their comments to alert the agencies to petitioners’ argument that a new runway would cause an increase in the level
of operations at HIO and that the DEA should have addressed
the environmental impacts of that increase.
[3] By contrast, petitioner Ackley stated in a letter
responding to the DEA that he was “opposed to a third runway because such a development would adversely affect our
property value and our quality of life,” and that “[i]ncreased
air traffic will affect our quality of life and the value of our
property should we wish to sell it.” We see no other way to
read this comment than that petitioner Ackley equated the
construction of a third runway with increased air traffic. He
also identified indirect effects resulting from increased air
traffic—greater noise pollution, decrease in property value,
and a decrease in quality of life. Although the agencies might
have preferred that petitioner Ackley be more expansive or
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more detailed in his comments, petitioners need not “incant
[certain] magic words . . . in order to leave the courtroom
door open to a challenge.” Idaho Sporting Congress, Inc. v.
Rittenhouse, 305 F.3d 957, 966 (9th Cir. 2002).
[4] Even if petitioner Ackley’s letter were insufficient to
alert the FAA to the issue of increased demand, we are persuaded that the agencies had independent knowledge that the
HIO expansion project would cause an increase in aircraft activity.8 Petitioners rely on three statements in the administrative
record. First, while reviewing a draft of the Scope of Work
document for the EA, an FAA official inquired whether the
Air Quality section “need[s] to assume/consider a worst case
scenario for maximum use of the 3rd runway.” Second, the
Scope of Work contained this statement: “The proposed
action is expected to reduce aircraft emissions compared to
the no action alternative, but it is possible that construction of
the third runway would remove a constraint to growth in aircraft activity. . . . Preliminary analyses indicate that the degree
of delay reduction per operation associated with the proposed
action would more than offset the potential increase in aircraft
operations.” Third, an attachment to an email regarding the
demand forecast at HIO stated that, even with a new runway,
by 2015 operational demand at HIO will again exceed 60 percent of ASV and in 20 years will exceed 80 percent of ASV.
Petitioners interpret this forecast as proving that the agencies
were aware that the newly-created capacity would begin to be
filled immediately.
The agencies challenge the significance of the three statements. They contend that the third statement is consistent with
8
Petitioners also argue that the FAA and the Port were apprised of their
objection when they filed with this court a Request to Stay Pending
Review over three months before filing their opening brief. The Request
for Stay was filed months after the issuance of the FONSI. It is therefore
irrelevant to the issue of whether petitioners raised their objections during
the public comment period.
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the HIO Master Plan’s demand forecast. The agencies are correct on this point. They further contend that the first two statements were made in the early stages of the administrative
process and that the Supreme Court has cautioned that courts
must focus on the final action by an agency. The Supreme
Court, indeed, has held that the mere fact that a preliminary
determination is overruled at a higher level within the agency
does not render the decisionmaking process arbitrary and
capricious:
With regard to the various statements made by the
involved agencies’ regional offices during the early
stages of consideration, the only “inconsistency”
respondents can point to is the fact that the agencies
changed their minds—something that, as long as the
proper procedures were followed, they were fully
entitled to do. The federal courts ordinarily are
empowered to review only an agency’s final action,
see 5 U.S.C. § 704, and the fact that a preliminary
determination by a local agency representative is
later overruled at a higher level within the agency
does not render the decisionmaking process arbitrary
and capricious.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551
U.S. 644, 659-60 (2007). The Court did not hold, however,
that such preliminary determinations are irrelevant in any
context—such as the question of waiver raised by the FAA
here, or that they may not be considered when reviewing an
agency action. See id.; cf. Wetlands Action Network v. U.S.
Army Corps of Engineers, 222 F.3d 1105, 1122, 1122 n. 8
(9th Cir. 2000) (considering the evidentiary value of an internal memorandum in analyzing whether an EA and subsequent
FONSI were arbitrary and capricious), abrogated on other
grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d
1173 (9th Cir. 2011).
Two of the statements identified by petitioners show that
the FAA officials involved in the planning process for the
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HIO expansion project acknowledged the possibility that an
additional runway would induce growth. The agencies contend these early opinions reflect thorough consideration of the
issue, but were ultimately rejected, as confirmed by the fact
that the DEA discussed growth-inducing effects and found
none. The agencies fail to mention, however, that the entirety
of the EA discussion of the growth-inducing effects on aviation activities consists of these two sentences:
As described in Section 3.2.2, Alternative 2 would
not lead to increased aviation activity compared to
the No Action Alternative. . . . In the absence of
induced off-airport development, increased levels of
aviation activity, or significant environmental
impacts, this alternative would not lead to secondary
impacts with respect to shifts in patterns of population movement and growth, public service demands,
or changes in business and economic activities.
On its part, Section 3.2.2 conclusorily states, “Total aircraft
operations would be the same as under the No Action Alternative.”
[5] The agencies are unable to point to anything in the
record showing that they in fact considered the possibility that
expanding HIO’s capacity would lead to increased demand
and increased aircraft operations, but discounted it in the face
of evidence to the contrary. Furthermore, the FAA acknowledged that a new runway is “the most effective capacityenhancing feature an airfield can provide,” and repeatedly
stated that HIO, a busy reliever airport, must accommodate all
GA activity demand directed towards it. Most relevantly, as
stated above, the two statements identified by petitioners
demonstrate that FAA officials were aware that a new runway
could induce growth and accordingly included a statement to
this effect in the Scope of Work document.9 Cumulatively,
9
At oral argument, counsel for both the FAA and the Port expressly disclaimed the possibility that the new runway could induce increased
demand at HIO.
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this record demonstrates that the agencies had independent
knowledge of a reasonable possibility that increasing capacity
at HIO would lead to increased demand, but chose to gloss
over it. We therefore hold that the agencies’ failure to discuss
the environmental impact of increased demand is a flaw “so
obvious” that there was no need for petitioners to point it out
specifically in order to preserve their ability to challenge the
EA on this ground. See Public Citizen, 541 U.S. at 765; ‘Ilio
‘ulaokalani Coal., 464 F.3d at 1092.
[6] Petitioners’ next argument is that the context and intensity of the project require an EIS. See 40 C.F.R. § 1508.27.
During the comment period, petitioner Barnes stated that the
DEA’s conclusion that the HIO project would have no significant environmental impact is inappropriate for “this facility,
which logs close to a quarter of a million annual operations”
and accused the FAA of trying to downplay the negative
effects of aviation activities at HIO, including pollution. The
only fair reading of these comments, in light of petitioner
Barnes’ overall testimony, is that she thought that an EIS
should be prepared for the project in light of its context and
intensity. The argument is not waived.
[7] Petitioners also challenge the EA’s assessment of the
project’s cumulative impacts. The argument is premised on
the agencies’ failure to consider the effects of a new control
tower and two proposed zoning changes that would impact
areas north of HIO. In her comments, petitioner Barnes contended that one of the zoning changes would “essentially
[result in] an expansion of the Airport boundary” and would
operate as a “taking of neighboring private properties.” These
comments alerted the agencies to the need to consider the
effects of the proposed zoning changes while assessing the
project’s cumulative impacts. To that extent, the argument is
not waived.
Petitioners’ comments, however, did not include one single
reference to a new control tower. They nevertheless point our
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attention to a series of emails in the administrative record discussing whether the new runway would be in the “line of
sight” of the existing control tower. Although not couched in
these terms, petitioners essentially argue that the EA’s failure
to consider the alleged new control tower falls under the “so
obvious” exception discussed above. See Ilio ‘ulaokalani
Coal., 464 F.3d at 1092.
The emails identified by petitioners reflect one FAA
employee’s concerns whether the existing control tower meets
the current height and downward angle viewing requirements
for control towers. Another FAA employee responded that
regulations had changed since the tower had been built and
that the tower may have been operating under a waiver or a
grandfather clause in the new regulations. The employee
stated that there were no safety concerns because the length
and position of the new runway would allow for an enhanced
downward angle compared to the primary, longer runway.
The same employee clarified that HIO “is not in line for a
new tower,” although he also commented that “[t]his may be
a backdoor way to get a new tower paid for by AIP.”
[8] Consistent with this email, the agencies assert before
this court that there is no new control tower project and that
the FAA has no concerns about HIO’s safety in the absence
of a new tower. Because there is no plan, immediate or
remote, to build a new control tower, according to the agencies, their alleged failure to address it in its cumulative
impacts analysis is not a flaw, let alone one “so obvious” as
to dispense with the requirement that petitioners raise it themselves before the agencies. See 40 C.F.R. § 1508.7 (as part of
its cumulative impacts analysis, an agency must assess
impacts of “reasonably foreseeable future actions”). The petitioners’ argument is both meritless and waived.
[9] Petitioners further argue that the EA is inadequate for
failing to consider a reasonable range of alternatives. In her
comments, petitioner Barnes recommended that the monies
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earmarked for aviation be redirected “towards high-speed rail
and environmentally sustainable transportation alternatives
that provide protection for urban and rural communities from
the negative impacts of aviation.” An EA, however, need only
discuss alternatives that advance the purpose of the project.
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1246-47 (9th Cir. 2005). Here, the purpose of the project is “to reduce congestion and delay at HIO in accordance
with planning guidelines established by the FAA.” Petitioner
Barnes’s recommendations of alternative modes of transportation failed to alert the agencies to the argument that the range
of alternatives to the project actually discussed in the EA was
not reasonable. The argument lacks merit and is waived.
In sum, petitioners’ comments sufficiently raised the argument that the EA should have considered the indirect effects
of increased demand for aviation activities due to increased
capacity. Furthermore, the EA’s failure to address this argument is a flaw “so obvious” that petitioners did not need to
preserve it by raising it in their comments. Petitioners’ arguments that the EA did not consider a reasonable range of
alternatives and the impacts of a new control tower are both
waived and unpersuasive. They preserved their arguments that
an EIS should have been prepared because the context and
intensity of the project is significant and that the cumulative
impacts analysis was deficient for failing to address zoning
changes related to the airport and neighboring properties. We
address the arguments properly before us in order.
D.
Indirect Effects
[10] Petitioners’ main argument in this petition for review
is that adding a new runway at HIO would result in increased
demand and that the EA is deficient for failing to consider the
impact of the indirect effects from this increased demand.
Petitioners emphasize that an EIS must be prepared if “substantial questions are raised as to whether a project . . . may
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cause significant degradation of some human environmental
factor.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402
F.3d 846, 864 (9th Cir. 2005) (internal quotations and quotation marks omitted). To trigger the need for an EIS, a plaintiff
need not show that significant effects will in fact occur; “raising substantial questions whether a project may have a significant effect is sufficient.” Id. at 864-65 (internal quotations
omitted). The effects that must be considered are both direct
and indirect. 40 C.F.R. § 1508.8. Indirect effects are “caused
by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. at § 1508.8(b).
Indirect effects include growth inducing effects. Id. “While
‘foreseeing the unforeseeable’ is not required, an agency must
use its best efforts to find out all that it reasonably can.” City
of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975).
[11] The agencies’ first line of defense is that the project
will not have growth-inducing effects on aviation activity.
They contend that, according to their forecast, aviation activity at HIO is expected to increase at the same rate regardless
of whether a new runway is built or not. And they repeatedly
point out that the FAA’s expertise in forecasting air transportation demand is an area where courts accord significant deference. See City of Los Angeles v. F.A.A., 138 F.3d 806, 80708 & n. 2 (9th Cir. 1998).
[12] The agencies cannot point to any documents in the
record that actually discusses the impact of a third runway on
aviation demand at HIO. Tellingly, the Aviation Demand
Forecasts chapter of the HIO Master Plan does not even mention the number of runways at HIO in its almost 50 pages,
although it recognizes that aviation demand is affected,
among other factors, by “the nature of available facilities.” In
essence, the agencies would like this court to take their word
for it and not question their conclusory assertions in the EA
that a new runway would not increase demand. Their word,
however, is not entitled to the significant deference that courts
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give aviation activity forecasts actually performed by the
FAA.
[13] As part of the same strategy, the agencies contend
that, while a new runway at a major hub airport might enable
airlines to schedule an increased number of connecting
flights, thus increasing demand, a new runway at a GA airport
is unlikely to attract more private aircraft. The agencies do not
explain why this is so and do not refer to anything in the
record backing their contention. It strains credulity to claim
that increasing HIO’s capacity significantly, which in turn
would decrease congestion and delay, would have no bearing
on the decision of flight schools, the military, emergency
medical services, and business and private owners over
whether to locate their aircraft at HIO or at other, considerably less busy, GA airports in the area. Ironically, while the
pilot survey used to support the HIO Master Plan inquired
whether the pilots would consider the availability of rental car
services and a restaurant in choosing HIO over other airports,
it did not inquire whether they would consider a new runway
when making that decision.10
[14] The agencies are correct to point out that this court
has recognized that, “[w]hen it comes to airport runways, it is
not necessarily true that ‘if you build it, they will come.’ ”
Nat’l Parks & Conservation Ass’n v. U.S. Dept. of Transp.,
222 F.3d 677, 680 (9th Cir. 2000).11 But whether that is true
10
The brief for the federal respondents states that “some new runways
. . . could be aimed at attracting new flights or be at an airport where
[attracting new flights] would be reasonably foreseeable . . . .” In light of
the FAA’s concession that a new runway may increase demand at certain
airports, as well as the HIO Master Plan’s consideration of various facilities, we disagree that “[s]uch a study would indeed serve little purpose.”
Dissent at 16299. The FAA’s position in numerous other cases also belies
the dissent’s assertion. See infra, p.16288-89.
11
The dissent relies on Nat’l Parks & Conservation Association, as well
as Seattle Community Council Fed’n v. F.A.A., 961 F.2d 829 (9th Cir.
1992), to state that “aviation demand is driven primarily by variables such
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or not here, we do not know because the agencies failed to
take the required “hard look,” Earth Island Inst., 351 F.3d at
1300, and failed to conduct a demand forecast based on three,
rather than two runways at HIO.
The agencies contend that whether the project will result in
increased demand is, in any event, irrelevant. Relying chiefly
on two cases involving airport improvements—neither of
which involved a new runway—they contend that the case
as location, general aviation trends, the ‘demand of the flying public,’ historical trends, and economic conditions, not the efficiency of the airport.”
Id.
The dissent’s overgeneralization is without support in the two cases.
Nat’l Parks & Conservation Association involved the extension of the runway at Kahalui Airport on Maui from 7,000 feet to 9,600 feet. Id. at 679.
Petitioners contended that the project would increase the number of international arrivals, which in turn would result in introduction of more alien,
non-indigenous, species into Maui. See id. The FAA conducted an EIS. Id.
The EIS was “replete with data regarding the project’s impact on international arrivals,” much of which indicated that the project would result in
no or little increased number of international arrivals. See id. at 680. This
court noted “airport demand projections are little more than guesses that
depend on economic conditions, airlines routing decisions and other variables.” Id. It then went on to discuss the extensive specific projections for
Kahalui and concluded that “[w]hen it comes to airport runways, it is not
necessarily true that ‘if you build it, they will come.’ ” Id. Properly read,
Nat’l Parks & Conservation Association merely holds that, in Kahalui
Airport’s case and based on the extensive projections in the EIS, the
lengthening of the runway would not result in a demand increase. Nat’l
Parks & Conservation Association does not stand for the proposition that
the “efficiency of the airport,” Dissent at 16299, is irrelevant to demand.
The same is true for Seattle Community Council Fed’n. The opinion
quotes the FAA’s projected demand increase for Sea-Tac, which concluded that “[a]ny increase in the number of operations experienced at
Sea-Tac will be the result of demand of the flying public, which the FAA
does not control.” 961 F.2d at 835. Neither the FAA’s demand projections
for Sea-Tac nor the Seattle Community Council Fed’n opinion itself
claims to be a definitive treatise on projecting aviation demand, as the dissent makes them out to be.
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law holds that an EA need not account for the growthinducing effects of a project designed to alleviate current congestion (also referred to as secondary growth inducing
effects). In Seattle Community Council Fed’n v. F.A.A., 961
F.2d 829 (9th Cir. 1992), we held that remand to the FAA was
unnecessary although the FAA did not consider the impacts
of an expected increase in air traffic after changes in flight
patterns were implemented. Id. at 835. To so hold, we relied
on the fact that the project’s stated purpose was “not to facilitate that expansion, but to ensure that safety and efficiency
will be maintained,” meaning that the project “deal[t] with the
existing air traffic.” Id. (emphasis in original). In Morongo
Band of Mission Indians, we similarly held that the FAA did
not have to consider the impacts of an increase in air traffic
resulting from a new flight arrival path because “the project
was implemented in order to deal with existing problems; the
fact that it might also facilitate further growth is insufficient
to constitute a growth-inducing impact under 40 C.F.R.
§ 1508.8(b).” 161 F.3d at 580.
Unlike the flight patterns and the flight arrival path at issue
in Morongo Band of Mission Indians and Seattle Community
Council Federation, this case involves a major ground capacity expansion project. In the words of the FAA itself, a new
runway is “the most effective capacity-enhancing feature an
airfield can provide.” Accordingly, our cases have consistently noted that a new runway has a unique potential to spur
demand, which sets it apart from other airport improvements,
like changing flight patterns, improving a terminal, or adding
a taxiway, which increase demand only marginally, if at all.
See, e.g., Seattle Cmty. Council Fed’n, 961 F.2d at 835 (“The
proposed [flight patterns changes] do not enhance the ground
capacity of Sea-Tac. There is no need to do so since there is
existing ground capacity that is not fully used. This would be
true even if the proposed procedures were put into effect.”);
Ocean Advocates, 402 F.3d at 870 (“Morongo and Seattle
Community Council Federation are also distinguishable
because neither case dealt with any change in ground capaci-
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ty.”); City of Los Angeles, 138 F.3d at 808 (terminal improvement project had no impact on demand; “runway capacity is
important, the agency concedes, but not affected by this project”). See also Town of Winthrop v. F.A.A., 535 F.3d 1, 5 (1st
Cir. 2008) (noting FAA’s argument that building a taxiway
would not lead to an increase in flight activity because “airport capacity is primarily a factor of runway capacity, not
taxiway capacity”); City of Olmstead Falls, Ohio v. F.A.A.,
292 F.3d 261, 272 (D.C. Cir. 2002) (giving deference to the
FAA’s judgment that improvement by moving a runway will
not induce demand; “[h]ere the improvements are to move an
existing runway, not the addition of a runway”). Cf. Nat’l
Parks & Conservation Ass’n, 222 F.3d at 679-60 (EIS conducted for expansion project that would have lengthened runway in order to accommodate rising demand).12
[15] In light of this unique potential to create demand, the
analysis in Morongo Band of Mission Indians and Seattle
Community Council Federation—which focuses inflexibly on
the stated purpose of a project while ignoring its growth
inducing effect —is completely inadequate for cases involving the construction of additional runways. For such cases, a
case-by-case approach is needed. Thus, even if the stated purpose of the project is to increase safety and efficiency, the
agencies must analyze the impacts of the increased demand
attributable to the additional runway as growth-inducing
effects falling under the purview of 40 C.F.R. § 1508.8(b).
[16] We hold that Morongo Band of Mission Indians and
Seattle Community Council Federation do not control here
and conclude that remand is necessary for the FAA to consider the environmental impact of increased demand resulting
12
The dissent conveniently ignores the FAA’s consistent position in
these cases and would treat additional runways just like any other airport
efficiency improvement project. See Dissent at 16299-16301. In contrast,
our “completely unsupported intuition about airports,” Dissent at 16305,
is clearly supported by the FAA.
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from the HIO expansion project, if any, pursuant to 40 C.F.R.
§ 1508.8(b).
E.
The Context and the Intensity of the Project
[17] Petitioners also contend that the “context” and “intensity” of the project independently require an EIS.
Determining whether an action “significantly” affects the
quality of the human environment, 42 U.S.C. § 4332(2)(C),
requires “considerations of both context and intensity.” 40
C.F.R. § 1508.27. “Context” is the setting in which the agency’s action takes place. Nat’l Parks & Conservation Ass’n v.
Babbitt, 241 F.3d 722, 731 (9th Cir 2001), abrogated on other
grounds by Monsanto Co. v. Geertson Seed Farms, 130 S. Ct.
2743, 2757 (2010). The significance of an action must
be analyzed in several contexts such as society as a
whole (human, national), the affected region, the
affected interests, and the locality. Significance varies with the setting of the proposed action. For
instance, in the case of a site-specific action, significance would usually depend upon the effects in the
locale rather than in the world as a whole.
40 C.F.R. § 1508.27(a).
[18] Building a new runway at HIO is a site-specific project. Petitioners therefore argue that the agencies cannot dilute
their analysis of environmental impacts by averaging out
across the nation or the globe. More specifically, they contend
that the EA is deficient because its analysis of greenhouse
gases is not specific to the locale. But the effect of greenhouse
gases on climate is a global problem; a discussion in terms of
percentages is therefore adequate for greenhouse gas effects.
See Climate Change Division, Office of Atmospheric Programs, U.S. Environmental Protection Agency, Technical
Support Document for Endangerment and Cause or Contrib-
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ute Findings for Greenhouse Gases under Section 202(a) of
the Clean Air Act 2-3 (2009) (emphasizing the global nature
of climate change due to greenhouse gases; explaining that
“greenhouse gases, once emitted, become well mixed in the
atmosphere, meaning U.S. emissions can affect not only the
U.S. population and environment but other regions of the
world as well; likewise, emissions in other countries can
affect the United States.”).
“Intensity” refers to the degree to which the agency action
affects the locale and interests identified in the context part of
the inquiry. Nat’l Parks, 241 F.3d at 731. The Council on
Environmental Quality regulations provide ten factors under
which intensity of a project is evaluated. See 40 C.F.R.
§ 1508.27(b). Any of these factors may be sufficient to
require preparation of an EIS in appropriate circumstances.
Nat’l Parks, 241 F.3d at 731.
Petitioners first argue that the project has both beneficial
and adverse effects, see 40 C.F.R. § 1508.27(b)(1), and that
it affects public health and safety, see id. § 1508.27(b)(2).
This argument is premised on the contention, discussed at
length above, that a new runway will cause an increase in
demand, thereby increasing air pollution, noise, and risks of
accidents. Any further discussion of this issue is superfluous.
Petitioners next argue that the project’s effects are highly
uncertain or involve unique or unknown risks. See id.
§ 1508.27(b)(5). An agency must generally prepare an EIS if
the environmental effects of a proposed agency action are
highly uncertain. Native Ecosystems, 428 F.3d at 1240 (internal quotations and quotation marks omitted). Preparation of
an EIS is mandated “where uncertainty may be resolved by
further collection of data, or where the collection of such data
may prevent speculation on potential . . . effects.” Id.
Relying on the FAA’s statement in the EA that it is leading
or participating in several projects intended to clarify the role
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that commercial aviation plays in climate change, petitioners
argue that the project’s greenhouse gas effects are highly
uncertain. We disagree. First, there is ample evidence that
there is a causal connection between man-made greenhouse
gas emissions and global warming. See Massachusetts v.
E.P.A., 549 U.S. 497, 508-10, 521-23 (2007) (discussing state
of the science); Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean
Air Act, 74 Fed. Reg. 66496-01, 2009 WL 4767932 (2009)
(EPA findings regarding effects of greenhouse gases in the
atmosphere, their effect on climate, and the public health and
welfare risks and impacts associated with such climate
change). Second, the EA includes estimates that global aircraft emissions account for about 3.5 percent of the total
quantity of greenhouse gas from human activities and that
U.S. aviation accounts for about 3 percent of total U.S. greenhouse gas emissions from human sources. Because HIO represents less than 1 percent of U.S. aviation activity,
greenhouse emissions associated with existing and future aviation activity at HIO are expected to represent less than 0.03
percent of U.S.-based greenhouse gases. Because this percentage does not translate into locally-quantifiable environmental
impacts given the global nature of climate change, the EA’s
discussion of the project’s in terms of percentages is adequate.
The project’s effects are not highly uncertain.
Finally, petitioners argue that this case would establish precedent that an additional runway can be constructed without
preparing an EIS. See 40 C.F.R. § 1508.27(b)(6). Although
we share this concern, we are confident that our refusal to
extend the rule of Morongo and Seattle Community Council
Federation to new runways will ensure that proper consideration will be given to all effects of such a project, including
its growth inducing impacts. Also, EAs are usually highly
specific to the project and the locale, thus creating no binding
precedent. See Town of Cave Creek v. FAA, 325 F.3d 320,
332 (D.C. Cir. 2003) (rejecting a similar 40 C.F.R.
§ 1508.27(b)(6) argument because the airspace redesign plans
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in the case were developed to address the particular circumstances and problems encountered in and around Phoenix Sky
Harbor International Airport and that decision would create
no binding precedent which would control the FAA’s future
use of EISs for similar projects). An EIS is not warranted on
this basis alone.
F.
Cumulative Effects
[19] We next address petitioners’ argument that the discussion of cumulative effects in the EA is deficient because the
agencies failed to consider the effects of two recent zoning
changes impacting HIO.
An EA must fully assess the cumulative impacts of a project. Te-Moak Tribe of Western Shoshone of Nevada v. U.S.
Dept. of Interior, 608 F.3d 592, 603 (9th Cir. 2010). A cumulative impact is “the impact on the environment which results
from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person
undertakes such other actions.” 40 C.F.R. § 1508.7.
[20] In 2009, the City of Hillsboro approved two zoning
changes that amended the Hillsboro Comprehensive Plan and
the Hillsboro Zoning Ordinance to create two new zones, the
Airport Use zone and the Airport Safety and Compatibility
Overlay zone. See Barnes v. City of Hillsboro, Or. LUBA No.
2010-011 at 3-5 (June 30, 2010) (describing zoning changes),
available at http://www.oregon.gov/LUBA/docs/Opinions/
2010/06-10/10011.pdf. Petitioner Barnes challenged these
zoning changes before the State of Oregon’s Land Use Board
of Appeals (“LUBA”). In June 2010, LUBA invalidated both
zoning changes. See id. at 6-28. The Oregon Court of Appeals
affirmed. See Barnes v. City of Hillsboro, 243 P.3d 139 (Or.
Ct. App. 2010). It therefore appears that the two zoning
changes would not be implemented. If so, the agencies’ failure to consider them as part of its cumulative impacts analysis
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is harmless error. See 5 U.S.C. § 706 (in reviewing agency
action, “due account shall be taken of the rule of prejudicial
error.”). See also Nat’l Ass’n of Home Builders, 551 U.S. at
659 (same).
II. Public Hearing Under the Airport and
Airway Improvement Act
[21] We now turn our attention to petitioners’ argument
that the FAA failed to hold a public hearing consistent with
49 U.S.C. § 47106(c)(1)(A)(i).
Under the Airport and Airway Improvement Act, the Secretary of Transportation may not approve an application for “an
airport development project involving the location of an airport or runway or a major runway extension” unless “the
sponsor certifies to the Secretary that-(i) an opportunity for a
public hearing was given to consider the economic, social,
and environmental effects” of the project. Id.
[22] The statute does not define “public hearing.” See id.
The FAA, however, defines it in its internal policy documents
as “a gathering under the direction of a designated hearing
officer for the purpose of allowing interested parties to speak
and hear about issues of concern to interested parties.” FAA
Order 5050.4B, National Environmental Policy Act Implementing (NEPA) Instructions for Airport Projects ¶ 403.a
(2006). When the FAA published Order 5050.4B in the Federal Register, it declined to further define “public hearing,”
explaining:
“Public hearing” is a term of art under 49 U.S.C.
47106(c)(1)(A)(I). . . . [The FAA’s Office of Airports] recognizes that the most important aspects of
a traditional, formal hearing are that a designated
hearing officer controls the gathering and there is an
accurate record of the major public concerns stated
during the gathering. . . . [The FAA’s Office of Air-
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ports] declines for the first time in this final Order to
define the term public hearing for purposes of 49
U.S.C. 47106(c)(1)(A)(i) and NEPA, including
whether a public hearing may take forms other than
the traditional one.
National Environmental Policy Act (NEPA) Implementing
Instructions for Airport Actions, 71 Fed. Reg. 29014, 29032
(2006).
Petitioners focus their arguments on the definition in FAA
Order 5050.4B, and do not argue that a public hearing, as the
term is used in 49 U.S.C. § 47106(c)(1)(A)(i), is more encompassing than that definition.
The FAA’s orders, as agency manuals without the force of
law, are not afforded deference under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). Natural Res. Def. Council, Inc. v. F.A.A., 564 F.3d
549, 564 (2d Cir. 2009). The FAA’s interpretation of “public
hearing,” however, may be entitled to deference pursuant to
Skidmore v. Swift & Co., 323 U.S. 134 (1944). Id. Under Skidmore, the weight courts accord an agency interpretation
depends on “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control.” Id.
(quoting Skidmore, 323 U.S. at 140).
[23] We need not decide whether the FAA Order
5050.4B’s definition of “public hearing” is entitled to Skidmore deference. Even if that definition applies, petitioners
still cannot prevail. The record shows that the meeting had a
designated hearing officer. The members of the public were
invited to talk to project team members, who were available
to answer their questions and get their feedback. The members of the public were also invited to visit the oral testimony
area to provide their feedback. Twice during the two-hour
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meeting, the FAA made a presentation about the project and
the EA.
Petitioners argue that the hearing was deficient because
there was no exchange of ideas among the members of the
public and no facilitation of such exchange by the hearing
officer. But all FAA Order 5050.4B requires is that the gathering be under the direction of a designated hearing officer for
the purpose of allowing the members of the public to “speak
and hear” about the project. This much petitioners were
afforded.
Relying on City of South Pasadena v. Slater, 56 F. Supp.
2d 1106 (C.D. Cal. 1999), petitioners also argue that an “open
house” format—the terminology used by the agencies to characterize the format of the meeting—does not satisfy the
requirements of a public hearing. In City of South Pasadena,
the sponsors of a freeway extension project held an “open
house” by opening a storefront for two weeks to facilitate the
taking of comments from the public. Id. at 1132. The plaintiffs argued that the “open house” was not a “public hearing”
as required by 23 U.S.C. § 128 and 23 C.F.R. § 771.111(h)
(concerning federal-aid highway programs; “public hearing”
not defined). The district court acknowledged that plaintiffs
had not shown that a public hearing was required in the first
instance. Id. It nevertheless went on to say:
[I]n the event that a hearing was required, the plaintiffs have raised serious questions about whether the
format of an open house is the equivalent of a public
hearing. . . . Public hearings provide the community
and the decisionmakers a forum for the free and contemporaneous exchange of ideas. It is a dynamic
process which has at its core the idea that it is only
through a public meeting that details and intricacies
of controversies can be best explored and understood.
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Id.
City of South Pasadena, of course, is not binding upon us.
Furthermore, not only is the quoted statement dictum, it also
lacks any supporting authority. Finally, City of South Pasadena concerned an “open house” very different in nature from
the hearing petitioners were afforded here. The case is inapposite.
[24] Petitioners’ arguments are unpersuasive. We therefore
hold that the hearing afforded petitioners was a “public hearing” within the meaning of 49 U.S.C. § 47106 and FAA Order
5050.4B.
CONCLUSION
For the foregoing reasons, we GRANT the petition for
review. We REMAND this case to the FAA with instructions
to consider the environmental impact of increased demand
resulting from the HIO expansion project, if any, pursuant to
40 C.F.R. § 1508.8(b).
GRANTED and REMANDED.
IKUTA, Circuit Judge, dissenting:
It is conventional wisdom among aviators that “when the
weight of the paper equals the weight of the airplane, only
then you can go flying.” The majority confirms the truth of
this quotation: here a federal agency is trying to reduce airport
delays and the concomitant negative environmental effects by
commencing a project in anticipation of future growth, and
the majority sides with delay and air pollution by imposing
pointless paperwork on the agency before the necessary project can go forward. Because the majority’s approach is contrary to our case law and the facts, I dissent.
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I
A new highway interchange, a new cargo port, and the
expansion of the only bridge leading to an offshore island
may all attract or facilitate development and thus have
“growth inducing effects” under NEPA, 40 C.F.R.
§ 1508.8(b). See City of Davis v. Coleman, 521 F.2d 661,
674-76 (9th Cir. 1975); Sierra Club v. Marsh, 769 F.2d 868,
878-89 (1st Cir. 1985); Mullin v. Skinner, 756 F. Supp. 904,
917-21 (E.D. N.C. 1990). Does expanding an existing airport
have such an effect? Our case law, based on the informed
input of the airport experts, says it does not. See Morongo
Band of Mission Indians v. F.A.A., 161 F.3d 569, 580 (9th
Cir. 1998); Seattle Cmty. Council Fed’n v. F.A.A., 961 F.2d
829, 835-36 (9th Cir. 1992); see also Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677, 680 (9th
Cir. 2000); City of Los Angeles v. F.A.A., 138 F.3d 806, 80708 (9th Cir. 1998).
We have reached this conclusion for several reasons. Most
important, airports are expanded to avoid the negative effects
that occur when the increasing demand for an airport based on
existing conditions swamps that airport’s capacity, leading to
increased delays and the environmental impacts such delays
cause. See Morongo Band of Mission Indians, 161 F.3d at
572; Seattle Cmty. Council Fed’n, 961 F.2d at 835. In other
words, before expanding an airport, the FAA engages in a
complex process to project growth in demand, and plans the
expansion to meet that growth. The goal is to prevent the airport from operating above its annual service volume (ASV),
because when “demand reaches capacity, delays increase
exponentially.” More delays mean that airplanes will have to
idle longer before taking off and circle longer before landing,
which in turn leads to increased air emissions in the neighboring areas. It would be illogical to hold that after completing
a study to determine future demand, and proposing a fix to
avoid the negative impacts caused by the anticipated growth
in demand, the FAA must then turn around and complete
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another study to determine whether the fix itself could possibly cause additional future demand. Where would this end?
Thus, a leading NEPA treatise explains: “[A]n impact statement need not discuss growth-inducing impacts when a highway or other project is planned only to meet existing needs.”
Daniel R. Mandelker, NEPA Law & Litigation, § 8.41 (2d ed.
2010) (emphasis added).1 Such a study would indeed serve little purpose, given that aviation demand is driven primarily by
variables such as location, general aviation trends, the “demand of the flying public,” historical trends, and economic
conditions, rather than the efficiency of the airport. See Seattle Cmty. Council Fed’n, 961 F.2d at 835; Nat’l Parks & Conservation Ass’n, 222 F.3d at 680. Thus we have said, “[w]hen
it comes to airport runways, it is not necessarily true that ‘if
you build it, they will come.’ ” Nat’l Parks & Conservation
Ass’n, 222 F.3d at 680 (quoting City of Los Angeles, 138 F.3d
at 807).
Applying this approach in Seattle Community Council Federation, we rejected the petitioner’s argument that the FAA
should have considered the potential for increased air traffic
due to the project’s improvements to the flight patterns of aircraft departing from and arriving at Seattle-Tacoma International Airport. 961 F.2d at 831. We explained that any
material increase in air traffic would be due to existing trends,
not due to the project itself. See id. at 835 (noting that “the
volume of traffic at Sea-Tac will continue to increase” due to
“the operational trend of the past three years and the population increase in the metropolitan area”). Indeed, these existing
growth trends were the “impetus for proposing” the project in
the first place. Id. Because the proposed changes “would sim1
For the sake of its argument on appeal, the FAA entertained the counterfactual that a runway built for the very purpose of attracting new flights
(or under other hypothetical circumstances not present in this case) “might
require examining the impact of those new flights.” Such a rhetorical
device is scarcely a “concession that a new runway may increase demand
at certain airports.” Maj. op. at 16286 n.10.
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ply accommodate the existing demand for landing and departing Sea-Tac more efficiently, thereby reducing delays,” we
concluded that the environmental “effects of [the potential]
increased number of flights” were not “growth inducing
effects” that needed to be considered under 40 C.F.R.
§ 1508.8(b). Id. at 835-36.
We applied the rule again in Morongo Band of Mission
Indians, where the petitioner claimed that the “FAA improperly failed to consider the ‘growth-inducing’ impact” of a
project which, by virtue of making the airport run more efficiently, would also remove “a constraint to growth.” 161 F.3d
at 580. Because “the project was implemented in order to deal
with existing problems,” we held that “the fact that it might
also facilitate further growth is insufficient to constitute a
growth-inducing impact under 40 C.F.R. § 1508.8(b).” Id.
Therefore, the FAA did not violate NEPA in failing to include
in the EA an analysis of what additional demand (if any)
might be induced by the project. See id.; cf. City of Carmelby-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1162 (9th
Cir. 1997) (reasoning that any growth-inducing effect of the
project would be “limited” because “Carmel is [already] a
well developed area, and . . . it is the existing development
that necessitates the freeway” (emphasis added)).
The FAA and the Port followed exactly this approach here.
In 2005, Hillsboro Airport (HIO) was already operating above
its ASV. That year, the Port started the process of developing
a Master Plan that “evaluates the airport’s capabilities and
role, forecasts future aviation demand, and plans for the
timely development of new or expanded facilities that may be
required to meet that demand.” The Master Plan included a
comprehensive forecast of aviation activity at HIO through
2025. Taking into account factors such as “national and
regional aviation trends, historical and forecast socioeconomic and demographic information of the area, and historical trends” at HIO for different types of aircraft, the Master
Plan projected that aviation demand would continue to grow
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such that, by 2025, HIO would be operating at 146% of its
ASV, with an average delay of 6.0 minutes per aircraft operation. This additional congestion and delay would lead to further increases in the airport’s idle emissions. After examining
a number of alternatives, the Master Plan concluded that the
“best means available for reducing delays and the undesirable
conditions that occur due to delay” over the next 20 years
would be to add “a runway [at HIO] for use by small general
aviation aircraft exclusively.”
The EA for the runway project relied on and adopted the
Master Plan’s forecast of activity levels through 2025. As
noted in the EA, the Port had conceived of and designed the
runway project for the very purpose of meeting these forecasted needs, which were “expected to substantially exceed
the ASV of the current airfield, with increasing levels of
unnecessary congestion and delay corresponding to the
increased demand.” Thus the record shows that the HIO project will lessen the environmental impacts of the demand pressure at the airport. Nothing in the record suggests the project
will have any effect in increasing demand. Given this record,
our caselaw, and the FAA’s expertise, there is no basis for
concluding that the EA was deficient in not addressing the
question whether the HIO project would have growthinducing effects above and beyond the existing demand curve.
II
But that is not even an issue raised by this case, because the
petitioners waived it. No petitioner raised a “growth-inducing
effects” issue in a way that “alert[ed] the agency to the [parties’] position and contentions,” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (quoting Vermont Yankee
Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 553 (1978)), such that the agency had an opportunity to “give the issue meaningful consideration,” id. To be
clear, the issue here is not simply that use of the airport will
continue to increase, creating more noise and traffic. The
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record establishes that this will happen in any event, and
indeed, the pollution and environmental problems will be
worse without the addition of a third runway. Rather, the
“growth-inducing effects” issue is whether the addition of a
third runway will increase the use of the airport beyond the
anticipated increase based on existing conditions that was predicted by the Master Plan and was to be addressed by the
project. Nothing in the record shows any of the petitioners
raising that issue.
In claiming otherwise, the majority relies solely on a letter
by petitioner Ackley during the public comment process. But
the entire thrust of Ackley’s letter is to complain about the
noise that is caused by air traffic.2 He began with the complaint that “we live near the approach pattern to the present
runway and the air traffic can be loud and distracting,” and
then continued with a lengthy discussion of “[t]he adverse
2
In full, Ackley’s letter said:
We are opposed to a third runway at Hillsboro because such a
development would adversely affect our property value and our
quality of life. We live near the approach pattern to the present
runway and the air traffic can be loud and distracting. Increased
air traffic will affect our quality of life and the value of our property should we wish to sell it. This is not only our opinion but scientific studies document these affects as well.
The adverse effect of air traffic noise on property values has been
well documented by over 20 different scientific studies. A metaanalysis of those studies found that, “Stated differently, under
these same circumstances, a $200,000 house would sell for
$20,000 to $24,000 less” (from A meta-analysis of airport noise
and hedonic property values: Problems and prospects By Jon P.
Nelson, Department of Economics, Pennsylvania State University). A conclusion like the above from a meta-analysis is a very
powerful statement because the study considers other valid
studies from metropolitan airports around our country.
Therefore, in the face of valid scientific research and the in name
of property owners near the Hillsboro airport, we urge you to discontinue study of the third runway option for the Hillsboro Airport.
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effect of air traffic noise on property values.” In the midst of
this discussion, he wrote the one sentence on which the
majority hangs its entire argument: “Increased air traffic will
affect our quality of life and the value of our property should
we wish to sell it.” In context, it is clear that Ackley is complaining about the noise caused by the ever increasing use of
the airport, a topic the EA discusses at length. The letter’s
inclusion of the three words “increased air traffic” cannot be
deemed to have put the FAA on notice that Ackley was complaining about the growth-inducing effects of the third runway
beyond the growth that would be caused by current conditions. Even the most enlightened bureaucrat reading Ackley’s
letter could not possibly draw such an inference. Indeed, the
majority’s argument that the FAA should have known that
these three words were raising the “growth-inducing effect”
claim blurs into the majority’s “so obvious” argument; in
effect, the majority contends that in light of the “obvious”
growth-inducing effect of a third runway, Ackley’s three
words in a complaint about air traffic noise should have
alerted the FAA that he was making such a claim.
But the majority’s “so obvious” argument likewise fails for
a simple reason. It was not obvious that the HIO project
would have growth-inducing effects, particularly since we
have held exactly the opposite: when projects are designed to
accommodate existing and projected demand, the FAA has no
obligation to analyze the possibility that addressing these
demands will also lead to a further increase in demand. See
Seattle Cmty. Council Fed’n, 961 F.2d at 836. In fact, in the
only case where we have addressed a runway project, we
deferred to the FAA’s determination that the project would
have “no or little lasting long-term growth-inducing impact,”
despite the petitioners’ arguments that, had the FAA “taken a
harder look, it would have concluded that the project’s alien
species impact [would] be significant.” Nat’l Parks & Conservation Ass’n, 222 F.3d at 680.
Nor does the majority have any basis for countering our
longstanding conclusion that airport projects do not have a
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growth-inducing effect. Indeed, nothing in the record suggests
that the mere four- to five-minute time savings that will be
occasioned by the addition of the third runway will cause a
significant increase in demand. In fact, the only basis for the
majority’s “so obvious” conclusion is its own conclusory
statement that runways should be considered “unique” in their
“potential to spur demand.” Maj. op. at 16288. Given our deference to agency expertise, we cannot rely on such unsupported conclusions.
The majority’s assertion that the FAA “had independent
knowledge that the HIO expansion project would cause an
increase in aircraft activity,” Maj. op. at 16279, is likewise
contrary to the record. Although the majority combs through
the record, it can point to only two comments (a question in
an e-mail and a statement in a preliminary scope of work document) that even arguably relate to the issue of demand
induced by the runway project itself. See Maj. op. at
16279-80. All this shows is that two employees at the FAA
gave preliminary thought to the possibility of demand being
induced by the runway project at the beginning of the administrative process, but the FAA (presumably informed by our
case law and its own experts) determined that the issue did
not need to be addressed in the EA. Such early considerations
by an agency, which are resolved and never appear in the
final, official document, cannot color our analysis of whether
a particular impact is obvious. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007) (“[T]he
fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency
does not render the decisionmaking process arbitrary and
capricious.”); Butte Envtl. Council v. U.S. Army Corps of
Eng’rs, 620 F.3d 936, 946 (9th Cir. 2010) (stating that
“[a]gencies are entitled to change their minds” and this means
the review process is working “just as it should”). In other
words, the fact that a couple of FAA employees made the
same mistake as the majority does about the impact of an airport project (a mistake that was later corrected in the agency’s
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review process) is not evidence that the HIO project will
cause an increase in demand, let alone that the FAA failed to
address an “obvious” issue.
In sum, the FAA did not err in not addressing the question
whether the third runway would have an additional growthinducing effect. In holding otherwise, the majority ignores the
deference we owe to agency decisionmaking and substitutes
its own completely unsupported intuition about airports. I dissent.
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