Ninth Circuit Upholds FAA’s Decision to Construct Runway at Montana Airport

Aviation Alert (January 2019)

On December 18, 2018, the United States Court of Appeals for the Ninth Circuit (Court) issued its decision in Informing Citizens Against Runway Airport Expansion (Petitioner) v. Federal Aviation Administration (FAA), 2018 WL 6649605, denying a Petition for Review of the FAA’s Order approving the construction of a 5,200-foot runway at the Ravalli County Airport in Hamilton, Montana (Project).

The decision concerns the FAA’s compliance with the National Environmental Policy Act (NEPA). NEPA requires federal agencies to consider environmental issues in its decision-making and prepare an environmental impact statement (EIS) before undertaking “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An agency first prepares an environmental assessment (EA) to help determine whether or not to prepare an EIS. Courts will uphold an agency decision not to prepare an EIS unless that decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

The Court’s decision analyzes several NEPA issues, including agency discretion; a project’s purpose, need, and alternatives analysis; and public participation in environmental review. Overall, the Court held that the FAA did not abuse its discretion in approving the Project and concluded that an EIS was not required.The Court’s specific holdings include the following: 
  • The Court held the FAA acted within its discretion in utilizing fuel sales to estimate annual airport operations. The Court recognized that “in the realm of aviation forecasting, the FAA has substantial discretion to choose among available forecasting methods, as long as it explains its choice.” The Court found that the FAA provided a sufficient explanation for its aviation forecasting methodology in the EA.
  • In addressing the Project’s purpose and need, the Court held the FAA adequately explained the need for a 5,200-foot runway, opposed to a shorter runway, including the need to accommodate larger planes and more fuel, passengers, and cargo (including in the context of planes used for firefighting). The Court further held the FAA did not merely adopt the County’s goal of a 5,200-foot runway—instead, in selecting the 5,200-foot runway, the FAA was satisfying its statutory mandate to promote safe airport operations and efficient air transportation. 
  • With respect to the FAA’s analysis of project alternatives, the Court stated an agency must only evaluate alternatives “reasonably related to a project’s purpose.” Because maintaining the current runway length was not a viable alternative, the FAA did not need to examine that alternative. Thus, the Court held the FAA acted reasonably in considering only alternatives involving a 5,200-foot runway.
  • The Petitioner complained that the FAA did not address particular studies on property values its members provided. The Court made clear that “an agency need not respond to every single scientific study or comment” and Petitioner had not shown how the FAA’s failure to respond to any specific study rendered the FAA’s decision arbitrary. The Court also rejected the Petitioner’s claim that it should have had another chance to comment on property values after the final EA was released. The Court held that “it would create an endless loop in the administrative process” if the public were allowed to comment on each piece of new information an agency releases.
  • Finally, contrary to the Petitioner’s arguments, the Court held the FAA allowed meaningful opportunity for public participation in approving the Project. The Court clarified that NEPA does not require “substantial” public participation and the necessary level of participation under NEPA is “amorphous.” Thus, it was sufficient that the FAA provided a 73-day comment period (including an extension at Petitioner’s request).
[This case alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]