Ninth Circuit Upholds Supplemental Environmental Assessment of New Airport Runway

Aviation Alert (August 2017)

A recent U.S. Court of Appeals, Ninth Circuit, opinion upheld a supplemental environmental assessment (SEA) prepared for Hillsboro Airport (HIO).  HIO is a general aviation airport located near Portland, Oregon, and is the busiest airport in Oregon in terms of airport operations.  (Barnes v. Federal Aviation Administration (“Barnes II”) (9th Cir. 2017) __ F.3d ___ (2017 WL 3297704).)  Barnes II highlights a contentious issue under the National Environmental Policy Act (NEPA) concerning impacts caused by induced demand

As background, Barnes II involves a new runway at HIO.  In 2005, HIO undertook to develop a master plan, which, among other things, proposed construction of a new third runway.  Because Federal Aviation Administration (FAA) grant funding was proposed, the environmental effects of the project were subject to a NEPA evaluation.  HIO prepared an environmental assessment (EA) for the FAA’s consideration and the FAA subsequently issued a finding of no significant impact (FONSI), thereby relieving the FAA of the obligation to prepare an environmental impact statement (EIS) under NEPA. 

The recent Barnes II opinion was preceded by Barnes I.  (Barnes v. U.S. Dep’t of Transp. (“Barnes I”) (9th Cir. 2011) 655 F.3d 1124.)  In Barnes I, the petitioners challenged the original EA for the project.  The Barnes I court rejected many of the petitioners’ arguments, but granted the petition and remanded the EA for further consideration based primarily on the possibility that the new runway would result in a larger number of takeoffs and landings at the airport, a possibility the court concluded had not been adequately addressed.  Although the original EA concluded that the new runway would not increase air traffic at the airport, the Barnes I court concluded that the EA was inadequate because the FAA could not “point to any documents in the record that actually discusse[d] the impact of a third runway on aviation demand at HIO.”  The Ninth Circuit’s primary concern in Barnes I was the original EA’s lack of a comparison of projected air traffic with and without the new runway. 

On remand, the airport prepared the SEA, which included forecasts for demand at HIO.  The FAA adopted the SEA, concluded that it was unnecessary to prepare an EIS, and issued a new FONSI.  Petitioners again filed suit, in Barnes II, contending that the FAA did not fulfill NEPA’s requirement to take a “hard look” at the environmental impacts of additional air traffic generated by the new runway.  Petitioners also argued that the project required preparation of an EIS, among other things.  Specifically, the petitioners’ arguments against the SEA involved the adequacy of:  (1) the forecasting methodologies for air traffic growth; (2) the lead pollution impact analysis; (3) the water quality impact analysis; (4) the duration of the emissions forecasting period (i.e., the temporal scope of the SEA); (5) the decision not to prepare an EIS; and (6) the project’s consistency with applicable plans.  In a well-reasoned opinion, the court rejected each of these arguments in turn.   

As to the forecasting methodologies, the SEA included three forecasts for air traffic growth at HIO.  Petitioners argued that the forecasts underestimated growth by failing to account for a survey response from a pilot training school.  However, the court found that petitioners were mistaken, as the record indicated that the school’s response was included in the survey.   

As to the lead pollution and water quality impact analyses, petitioners challenged the SEA’s conclusion that, even with higher activity levels at the airport, there would be no significant environmental effects.  Petitioners argued that the lead analysis failed to establish a baseline, failed to consider impacts to children, and failed to account for the various components of a typical flight in its lead emission calculations (such as the “run-up” phase, taxi times, and the altitude at which emissions were released during the “cruise” phase).  However, the court found the SEA demonstrated that the new runway would have “virtually no effect” on lead levels around HIO.  Accordingly, the court concluded it would be pointless to measure or model the baseline presence of that pollutant.  Similarly, the court found that the SEA properly analyzed children’s health and safety risk with respect to lead levels, and properly included the appropriate flight stage components in the lead emission calculations.   The court also rejected petitioners’ argument that the SEA did not account for pollution in water and wetlands arising from potential increased air operations.  In fact, the SEA discussed the project’s impact on water quality and wetlands in detail.  Although the water section did not specifically address lead emissions, the national ambient air quality standards (NAAQS) for lead account for exposure to lead through water, and the SEA concluded that any increased lead emissions would be de minimis under the NAAQS. 

As to the duration of the emissions forecasting period, petitioners argued that the SEA should have published 20 years of emissions projections, instead of the 10 years provided.  In rejecting this argument, the court held that “[t]he selection of the [temporal] scope of an EIS is a delicate choice and one that should be entrusted to the expertise of the deciding agency.”  Here, it was not arbitrary or capricious for the FAA to determine that, under NEPA, the reasonably foreseeable emission forecasting timeframe for this project was 5 to 10 years, even though it had (less precise) demand estimates in the 20-year timeframe.  This was especially true for lead emissions, given that the FAA and U.S. Environmental Protection Agency are working to create an unleaded aviation fuel for existing piston engine aircraft by 2018. 

As to the decision not to prepare an EIS, petitioners argued that the significance of the new runway’s potential impacts requires the agency to produce an EIS.  An agency must prepare an EIS if substantial questions are raised as to whether a project “may cause significant degradation of some human environmental factor.”  Here, the SEA concluded that any increase in lead emissions would be de minimis; accordingly, an EIS was not required merely because the analysis reveals a potential for a minor impact.  In addition, petitioners failed to show any “unique geographical characteristics” or “unique issues” that would require preparation of an EIS – petitioners provided no reason to conclude that there is anything unique about an airport near a residential area. 

Finally, as to the project’s consistency with applicable plans, the Airport and Airway Improvement Act requires that, before approving a project grant, the FAA must ensure that “the project is consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the airport.”  (49 U.S.C. §47106(a)(1).)  The court held that the SEA properly considered city zoning ordinances.   

In short, in adopting the SEA, issuing the FONSI, and concluding that the project complied with the requirements of the Airport and Airway Improvement Act, the FAA did not act in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.  Accordingly, the petition for review was denied.

[The information contained in this transmission does not constitute a legal opinion and should not be relied upon as legal advice.]