Trenton Threatened Skies, Inc. et al v. FAA
(3rd Cir. 2024) 90 F.4th 122
The Trenton Threatened Skies, Inc. v. FAA decision involves Mercer County, which owns and operates Trenton-Mercer Airport in New Jersey. The airport, as it stands, is a two-runway airport that has offered commercial service from Frontier Airlines since 2013. The airport’s aging terminal building does not comply with ADA standards or TSA requirements and has other various inadequacies due to spatial limitations.
Mercer County proposed a new terminal building for its airport in 2018, aiming to address the identified deficiencies. The new terminal design would serve as a complete replacement structure for the existing terminal and would include expanded facilities, enhanced concessions, and improved security measures. Notably, the new terminal would provide the same number of gates and aircraft parking spaces as the existing terminal.
The FAA prepared an environmental assessment (EA) for the airport terminal project, considering numerous alternatives and ultimately determining that the selected terminal design offered enhanced energy efficiency at a lower cost. In brief summary, the EA concluded that the project’s construction emissions would be below USEPA thresholds, and noise impacts would not be significant, in part due to compliance with the local noise control ordinance. The FAA issued a Finding of No Significant Impact (FONSI) in March 2022, approving the new terminal project. The petitioners sought review of the FONSI decision in May 2022, leading to the decision summarized herein, in which the U.S. Court of Appeals, Third District, upheld all challenged aspects of the FAA’s analysis and decision-making.
The FAA Did Not Violate NEPA by Relying on False Premises or Inaccurate or False Information
The petitioners argued the FONSI was flawed because it was based on false premises or inaccurate information. They argued the FAA incorrectly determined that the proposed new terminal would not expand the airport’s capacity and would not induce air traffic growth.
However, the FAA concluded the new terminal would not induce growth based on cited air traffic forecasts that predicted substantial increases regardless of the new terminal. Additionally, as noted above, the FAA considered that the new terminal would have the same number of gates and aircraft parking spaces as the existing terminal. The Court accorded deference to the FAA’s demand forecasts and fact-based determinations.
The petitioners relatedly argued the FAA relied on false information, referring the Court to an EA from 2002 that acknowledged an increase in the number of gates at the airport was considered at one point in time. The FAA countered by underscoring the petitioners were looking at outdated information and could not challenge prior actions not identified in their petition for review. The Court agreed with the FAA, observing that “the [Administrative Procedure Act] allows challenges to discrete agency action, but not broad challenges to the administration of an entire program.”
The FAA Did Not Violate NEPA by Failing to Consider the Cumulative Impact of Past Actions at the Airport or by Segmenting the Project
The petitioners claimed the FAA violated NEPA by not considering the cumulative impact of its past actions at the airport, and alleged improper segmentation of the airport terminal project from other pending airport improvement projects. As background, NEPA regulations require agencies to evaluate connected, cumulative, and similar actions in the same impact statement. The petitioners argued the FAA segmented the review of the new terminal from various other projects at the airport that collectively would expand it, claiming that such projects shared economic interdependence, common timing and geographic proximity. The Court rejected the petitioners’ arguments, applying the independent utility test, which focuses on whether segmented projects have independent utility (i.e., would take place in the absence of the other).
In its EA, the FAA appropriately considered past, present, and foreseeable future actions at the airport, including runway rehabilitation, taxiway reconstruction, parking lot construction, and various other projects. The FAA concluded the impacts of the new terminal, even when combined with other projects, would not be significant. The Court affirmed the FAA’s determination, stating the new terminal had independent utility due to deficiencies in the current terminal and the forecasted increase in passenger trips. The Court rejected the petitioners’ claims, stating the FAA reasonably exercised its discretion in evaluating the impacts of past actions on the project.
The FAA Did Not Violate NEPA’s Environmental Justice Requirements
In brief, the Court affirmed the FAA’s decision to consider the environmental justice implications of the airport terminal project via reference to census tract data, in lieu of the petitioners’ argument that census block data be used. The Court also found reasonable the FAA’s decision to utilize the USEPA’s Environmental Justice Screening and Mapping Tool for purposes of its analysis.
The FAA Did Not Violate NEPA by Failing to Perform a Health Risk Assessment as Part of its Environmental Assessment
The petitioners argued the FAA violated NEPA by not conducting a health risk assessment. NEPA aims to promote the health and welfare of people, requiring disclosure of significant health and environmental consequences of proposed actions. However, NEPA does not mandate assessing every impact, only those on the environment directly caused by the proposed action. The FAA determined that there was no close causal relationship between environmental changes and potential health effects on surrounding communities due to mitigation measures. The Court found the FAA acted reasonably in deciding not to conduct a health risk assessment, as it considered the data needed “to make an informed decision that adequately took account of the important environmental concerns.”
In closing, the Trenton Threatened Skies, Inc. decision affirms the adequacy of the record of evidence and analysis developed by the FAA to support its issuance of a FONSI for a much-needed replacement project for an aging terminal facility at Trenton-Mercer Airport. In upholding the FAA’s analysis, the Third District applied well-established legal principles and rubrics associated with the standard of review applicable to NEPA proceedings.
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