Town of Cave Creek v. Federal Aviation Administration

Notice: This opinion is subject to formal revision before publication in the

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2003 Decided April 15, 2003

No. 02-1021

TOWN OF CAVE CREEK, ARIZONA, ET AL.,

PETITIONERS

v.

FEDERAL AVIATION ADMINISTRATION AND

DEPARTMENT OF TRANSPORTATION,

RESPONDENTS

On Petition for Review of an Order of the

Federal Aviation Administration

Thomas D. Roth argued the cause and filed the briefs for

petitioner.

Lisa E. Jones, Attorney, U.S. Department of Justice, ar-

gued the cause for respondent. With her on the brief was

Andrew C. Mergen, Attorney.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,

Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: This case predominantly involves

changes to high-altitude arrival and departure procedures to

the north, northeast, and northwest of the Phoenix Sky

Harbor International Airport (‘‘PHX’’). These changes were

necessitated by the massive growth of passenger demand at

PHX over the past 30 years. This growth resulted in imba-

lanced airline routes to and from PHX, outdated arrival and

departure procedures, overburdened airspace configurations,

and increased air traffic complexity. As a consequence of

these problems, operational errors also increased. In re-

sponse to Congress’ National Airspace Redesign (‘‘NAR’’)

mandate and related agency studies, the Federal Aviation

Administration (‘‘FAA’’) developed the Northwest 2000 Plan

to improve the management and safety of flights arriving

from and departing to the north of PHX.

As part of the environmental review of the Northwest 2000

Plan, the FAA issued a Final Environmental Assessment

(‘‘EA’’) and Finding of No Significant Impact Record of

Decision (‘‘FONSI’’). The EA and FONSI concluded that the

environmental impact of the Northwest 2000 Plan would be

insignificant. Because a comprehensive Environmental Im-

pact Statement (‘‘EIS’’) is only required by the National

Environmental Policy Act (‘‘NEPA’’) when the agency’s ac-

tion will ‘‘significantly affect[ ] the quality of the human

environment,’’ 42 U.S.C. § 4332(2)(C), the FAA decided that

preparation of an EIS was unnecessary. See also ROBERT V.

PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND

POLICY 840-42 (3d ed. 2000) (providing an overview of the

origins and development of the EIS requirement); Susannah

T. French, Judicial Review of the Administrative Record in

NEPA Litigation, 81 CAL. L. REV. 929, 945-48 (1993) (same).

Petitioners, Town of Cave Creek, Arizona, et al. – represent-

ing municipal entities surrounding PHX, and their inhabit-

ants – seek review of the EA and FONSI. Petitioners

contend that the FAA should be required to prepare an EIS

3

because the agency failed to give adequate consideration to

certain criteria that agencies are obliged to address in deter-

mining whether a proposed action will significantly affect the

environment.

We deny the petition for review. In preparing the EA and

FONSI, the FAA properly employed a well-established meth-

odology. Petitioners raise only nominal challenges to the

agency’s methodology and findings, and their other argu-

ments lack merit. It is obvious that, after the Northwest

2000 Plan, the noise levels in the challenged areas will be

compatible with all existing land uses in these areas, including

residential housing, churches, and recreational parks. We

therefore conclude that the FAA adequately considered the

relevant criteria, and that the agency reasonably concluded

that preparation of an EIS was unnecessary.

I. BACKGROUND

A. The Need for New Arrival and Departure Procedures

at PHX

PHX was purchased by the City of Phoenix in 1935. It is

now the country’s fifth busiest airport. Due in part to the

extraordinary growth of the Phoenix metropolitan area, pas-

senger use at PHX has tripled twice in the past 50 years.

See, e.g., Windermere, Scott See Arizona as Hot Market,

PUGET SOUND BUS. J., Aug. 31, 2001, at 23 (quoting a business-

man’s statement that the greater Phoenix area is ‘‘a phe-

nomenal growth area for the United States’’).

PHX consists of 3,130 acres located in the southeast corner

of the incorporated City of Phoenix. PHX has three parallel

runways oriented in an east-west configuration. Depending

on the wind and weather patterns, the airport operates either

in ‘‘west flow’’ (where aircraft depart PHX to the west and

arrive from the east) or ‘‘east flow’’ (where aircraft depart

PHX to the east and arrive from the west). Generally, winds

dictate that the airfield operates in east flow in the morning

and west flow in the afternoon.

4

Aircraft at PHX follow published arrival procedures

(‘‘STARs’’) and departure procedures (‘‘DPs’’). Under PHX’s

old procedures, aircraft bound for PHX arrived from the

north along two main flight paths (KARLO STAR and

FOSSL STAR), and north and northeast departures from

PHX proceeded along four routes (EAGUL DP, DRAKE DP,

ST JOHNS DP, and DRYHEAT DP).

Because PHX is located in southwest Arizona, more air-

craft arrive from and depart to the north and east of the

airport than to the south or west. Before the Northwest 2000

Plan, the number of northern routes, the proximity of certain

routes to others, and the increases in eastbound departures

created route conflicts, inefficiencies, and operational errors

within Albuquerque Air Route Traffic Control Center

(‘‘ARTCC’’) and the Phoenix Terminal Radar Approach Con-

trol (‘‘TRACON’’) airspace. For example, the high volume of

air traffic in Albuquerque’s ARTCC Sector 38 created proce-

dural complexities for controllers, in turn increasing PHX’s

departure delays, flight times, and flight distances. High

traffic levels in Sector 39 required frequent use of a holding

pattern that forced turbo-prop aircraft to fly at lower alti-

tudes and forced Albuquerque Center to implement restric-

tions as far away as the Denver and Kansas City Centers.

Descents on KARLO STAR and ascents on DRAKE DP

routinely crossed paths in Sector 43, resulting in increased

separation or rerouting of aircraft. Sector 43 also controlled

an intersection located very near the Luke Air Force Base

Radar Approach Control. Because of the intersection’s prox-

imity to the military’s Radar Approach Control, PHX traffic

interfered with military training missions, and air traffic

complexity increased generally.

The old procedures also created conflicts in Phoenix

TRACON airspace. During both west flow and east flow, the

intersection of some routes restricted departures to lower

altitudes below the arriving aircraft until clear of the arrival

route. These conflicts increased the complexity of controller

operations, increased delays, and introduced greater potential

for operational errors.

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While Sectors 38, 39, and 43 were overloaded, Sector 45

was underutilized. In fact, the overloading and complexity of

Sectors 38, 39, and 43 – and thus, of the Phoenix TRACON

airspace as well – were due in part to the underutilization of

Sector 45.

B. The Northwest 2000 Plan

The inefficiencies, workload imbalances and safety concerns

at PHX led the FAA to study potential solutions. Then,

based on its own assessment of the problems facing U.S. air

travel, Congress passed the NAR mandate in 2000. NAR

required the FAA to ‘‘conduct a comprehensive redesign of

the national airspace system’’ and prepare and submit a

report to Congress setting forth ‘‘projected milestones for

completion of the redesign and TTT a date for completion.’’

49 U.S.C. § 40103 (notes). The FAA developed the North-

west 2000 Plan in response to both the studies and the NAR.

The Northwest 2000 Plan addressed the aforecited safety

and efficiency concerns by modifying some of the arrival and

departure routes. The Plan eliminated airspace conflicts

within Sector 43 by moving an arrival procedure east and

establishing a new departure procedure. It also addressed

the complexity within Sector 38 and the underutilization of

Sector 45 by modifying the boundary of Sector 45 to accom-

modate a new departure route which would receive all traffic

previously routed on the Sector 38 EAGUL DP. The Plan

also changed Sector 39’s boundaries and replaced the old

FOSSL STAR with two new arrival procedures, which served

to eliminate the conflicts created by some of the old holding

patterns. The Plan also included development of advanced

satellite navigation systems which would further alleviate

operational complexity and increase controller flexibility.

These changes began in 1999 and 2000, when the FAA

executed a series of ‘‘categorical exclusion determinations,’’

‘‘preliminary environmental review checklists,’’ and ‘‘noise

screening’’ memoranda designed to authorize the changing of

numerous flight departure and arrival paths. The FAA

authorized the implementation of five new arrival procedures

and six departure procedures.

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C. Environmental Review of the Project

The FAA began its evaluation of the potential impacts of

the Northwest 2000 Plan by conducting preliminary environ-

mental reviews for each proposed airspace redesign. The

preliminary review processes included application of FAA’s

Air Traffic Noise Screen Model, which indicated that imple-

mentation of the Northwest 2000 Plan would not cause any

significant noise or other environmental impacts. Nonethe-

less, the FAA decided to prepare an EA because it was

anticipated that some communities would oppose the pro-

posed changes, and also because the modified routes would

overfly two Indian reservations.

The FAA first introduced the Plan to the Phoenix Airspace

Users Workgroup in March 2000. In January 2001, the

agency issued a Notice of Proposed Action and began prepa-

ration of an EA for the Plan. The FAA solicited comments

from the general public and federal, state, and local agencies

to determine any issues of concern, and thereafter published

a Draft Environmental Assessment (‘‘DEA’’). In April 2001,

the FAA circulated the DEA for public comment and held

four public workshops to explain the project, answer ques-

tions, and accept written comments on the DEA.

The FAA had initially developed two alternative models for

implementation of the Northwest 2000 Plan. After additional

analysis and consideration of responses submitted during the

DEA process, the FAA determined that it would prepare a

supplemental EA in order to develop a third alternative that

covered the public’s major concerns. In June 2001, the FAA

issued a Supplemental Draft EA that presented and analyzed

this new alternative. After the agency received extensive

public comment and held numerous meetings on the DEA and

Supplemental Draft EA, the FAA issued a Final EA and

FONSI in December 2001. On the basis of these documents,

the FAA determined that it did not need to prepare an EIS

because the Northwest 2000 Plan would not significantly

affect the environment.

In evaluating the Plan’s environmental consequences, the

FAA utilized the FAA Integrated Noise Model (‘‘INM’’)

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version 6.0B to assess noise levels at locations surrounding

PHX and the seven satellite airports. The noise modeling

analysis took into account, inter alia, the number of flights,

time of day, aircraft type, altitude, and geographic dispersion

of flights. The INM produced a series of sound level con-

tours connecting thousands of grid points of equal Day Night

Noise Levels (‘‘DNL’’).

FAA followed its well-established guidelines, which provide

that any noise-sensitive area exposed to a noise level increase

of 1.5 dB of DNL or more within the 65 DNL contour is

considered to be significantly affected, while increases of 3 dB

within the 60-65 DNL contour or 5 dB within the 45-60 DNL

contour are reportable increases. Courts have long accepted

the FAA’s DNL standard as the appropriate methodology for

assessing the impact of aircraft noise. See, e.g., Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 200-01 (D.C.

Cir. 1991); Sierra Club v. DOT, 753 F.2d 120, 128 (D.C. Cir.

1985); C.A.R.E. NOW, Inc. v. FAA, 844 F.2d 1569, 1573 (11th

Cir. 1988); Suburban O’Hare Comm’n v. Dole, 787 F.2d 186,

189, 197 (7th Cir. 1986). The INM projected that the highest

noise level for the Plan would be 48.7 DNL. For both the

second and third proposed alternatives, the FAA determined

that there would be no significant or reportable noise impacts.

The FAA also supplemented its INM noise modeling in two

ways. First, the agency chose specific grid point locations

under the flight paths and measured noise impacts and any

changes stemming from the no-action or alternatives 2 and 3.

The FAA determined that, although noise levels would in-

crease for some points, each point would remain below the

threshold of significance. Second, to evaluate the Plan’s

impact on total noise levels, the FAA also conducted measure-

ments of average ambient noise levels (‘‘Leq’’) for seven

representative locations. The FAA placed one site (Site 1) in

Carefree under the proposed SILOW DP. Measurements at

Site 1 revealed that the existing ambient noise level, which

consists of all background noise – including aircraft and non-

aircraft noise – was 44.1 Leq during the day and 37.1 Leq at

night. The FAA examined the relative change in aircraft

noise caused by the Plan, then evaluated the overall impact of

8

the change in aircraft noise by performing a logarithmic

calculation to account for the actual impact of the project as

added to the existing ambient noise levels.

For alternatives 2 and 3, the FAA determined that, al-

though aircraft noise levels would increase at some locations,

the overall ambient noise level would not increase at any of

the seven monitor locations. For the Cave Creek/Care-

free/Spur Cross area, the FAA determined that, although the

Plan would increase aircraft noise slightly at Site 1 (by 4.2

dB), when summed logarithmically, the existing ambient level

of 44.1 daytime and 37.1 nighttime would not materially

change. Accordingly, the FAA concluded that the highest

noise level from the project would be 48.7 DNL, and that

there would be no significant increase in noise levels in the 65

DNL contour and no reportable increase within the 45-60

DNL contour. Thus, the FAA found that there would be no

significant noise impacts for any of the alternatives.

D. Overflights of Cave Creek, Carefree, and Spur Cross

Ranch

Cave Creek, Carefree, and Spur Cross Ranch – the areas

with respect to which petitioners claim that the FAA did not

give adequate consideration to the Northwest 2000 Plan’s

noise effects – are located approximately 30 miles northeast

of PHX. For decades, during east flow at PHX, portions of

Cave Creek and Carefree were located directly below the

DRAKE DP. Thus, in east flow, 58 daily departures on that

DP overflew Cave Creek, Carefree, and Spur Cross Ranch:

From PHX traffic alone, these areas have been located

beneath 21,170 annual aircraft operations for decades.

With the implementation of the Northwest 2000 Plan, the

21,170 annual operations from the old DRAKE DP would no

longer fly over Cave Creek, Carefree, and Spur Cross. After

Northwest 2000, one new procedure – the SILOW DP (in

west flow) – will fly over portions of Cave Creek and Care-

free. Because SILOW is located further northeast than the

old DRAKE DP, the SILOW DP does not overfly Spur Cross

Ranch. Thus, the annual flights directly over Spur Cross

Ranch decreased by 21,170 with the implementation of the

9

Northwest 2000 Plan, while overflights of Cave Creek and

Carefree increased by 7,300 to a total of 28,400. Also,

because the Northwest 2000 Plan raises the average mini-

mum altitude for overflights of Cave Creek, Carefree, and

Spur Cross from 15,000 to 17,000 feet, and because new

airspace design will allow departures to use unrestricted

climbs, areas under the proposed DPs will experience reduced

noise levels.

II. ANALYSIS

We recently explained the applicable standard of review in

cases in which an agency has determined that an EIS is

unnecessary:

[The National Environmental Policy Act, 42

U.S.C. §§ 4321-4370f (‘‘NEPA’’)] requires federal

agencies to prepare an environmental impact state-

ment TTT for ‘‘every TTT major Federal action[ ]

significantly affecting the quality of the human envi-

ronment.’’ 42 U.S.C. § 4332(2)(C). An environmen-

tal assessment TTT is made for the purpose of deter-

mining whether an EIS is required. See 40 C.F.R.

§ 1508.9. ‘‘If any ‘significant’ environmental im-

pacts might result from the proposed agency action

then an EIS must be prepared before agency action

is taken.’’ Sierra Club v. Peterson, 230 U.S. App.

D.C. 352, 717 F.2d 1409, 1415 (D.C. Cir. 1983)TTTT

An agency decision that an EIS is not required

may be overturned ‘‘only if it was arbitrary, capri-

cious or an abuse of discretion.’’ Sierra Club v.

United States Dep’t of Transportation, 243 U.S.

App. D.C. 302, 753 F.2d 120, 126 (D.C. Cir.

1985)TTTT Under the long-established standard in

this circuit, the court reviews an agency’s finding of

no significant impact to determine whether:

First, the agency [has] accurately identified the

relevant environmental concern. Second, once

the agency has identified the problem it must

have taken a ‘hard look’ at the problem in

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preparing the EA. Third, if a finding of no

significant impact is made, the agency must be

able to make a convincing case for its finding.

Last, if the agency does find an impact of true

significance, preparation of an EIS can be

avoided only if the agency finds that the

changes or safeguards in the project sufficiently

reduce the impact to a minimum.

753 F.2d at 125; see also Maryland-Nat’l Capital

Park and Planning Comm’n v. U.S. Postal Serv.,

159 U.S. App. D.C. 158, 487 F.2d 1029, 1040 (D.C.

Cir. 1973).

Grand Canyon Trust v. FAA, 290 F.3d 339, 340-41 (D.C. Cir.

2002).

Petitioners argue that the FAA’s actions in this case fail

the third step of the Sierra Club standard. In particular,

petitioners contend that the FAA should be required to

prepare an EIS because it failed to make a convincing case

for its finding of no significant impact. They argue that the

FAA did not make a convincing case, because it failed to

consider adequately a number of factors agencies must weigh

in determining whether a proposed action will significantly

affect the environment. See 40 C.F.R. § 1508.8; id.

§ 1508.27(b). Petitioners claim the agency failed to consider

adequately the unique characteristics of the affected geo-

graphical areas; the cumulative impacts of the Plan; the

controversy generated by the environmental impacts of the

Plan; the precedent that the plan creates; and the fact that

Spur Cross Ranch may be protected by § 4(f) of the Depart-

ment of Transportation Act, 49 U.S.C. § 303(c). Petitioners’

challenge as related to Cave Creek and Carefree differs

somewhat from the challenge it mounts to the agency’s

consideration of the environmental impact on Spur Cross.

Thus, we address the distinct challenges in turn.

A. Cave Creek and Carefree

For Cave Creek and Carefree, the EA and FONSI used

well-established methodology which petitioners only nominal-

ly challenge. Petitioners do not challenge the guidelines that

11

the FAA used to evaluate the noise impacts of the Plan, which

the agency has employed since 1980 to satisfy its NEPA

obligations. See 14 C.F.R., pt. 150 app. A. Under these

guidelines, FAA actions that do not result in noise level

increases of 1.5 dB or more within the 65-or-more DNL

contour are, by definition, insignificant under NEPA, because

all land use activities at issue here are compatible with noise

levels below 65 DNL. See, e.g., City of Bridgeton v. Slater,

212 F.3d 448, 459 (8th Cir. 2000) (noting that ‘‘aircraft noise

level is considered compatible with all land uses’’ outside the

65 DNL contour). Courts have long accepted the FAA’s

DNL standard as the appropriate methodology for evaluating

the impacts from aircraft noise. See supra Part I.C.

The FAA properly applied its regulations to determine

whether the Plan’s noise impacts would be significant, and the

agency determined that there would be neither significant

increases within the 65 DNL contour nor reportable increases

within the 60-65 or 45-60 DNL contours. Petitioners attempt

to deflect focus from the strength of the agency’s findings by

arguing that the FAA failed to consider adequately a number

of factors relevant to whether the Plan will significantly affect

the environment. Their contentions do not carry the day.

1. Cumulative Impacts

Regulations require the agency to consider the cumulative

environmental impacts of any proposed action. 40 C.F.R.

§ 1508.8. Although petitioners’ challenge to the agency’s

evaluation of the Plan’s cumulative impacts is petitioners’

most factually intensive argument, it is ultimately unpersua-

sive – especially considering that the agency’s methodology is

well established and that its ambient noise measurements

take into account most of the problems that petitioners raise.

For example, the ambient noise measurements answer

petitioners’ claim that the FAA only considered the Plan’s

‘‘incremental’’ impacts, rather than adding the incremental

impact to the environmental baseline. Petitioners’ challenge

clearly misconstrues the agency’s actual methodology, as the

FAA’s ambient measurements do take into account the envi-

ronmental baseline. After measuring the environmental

baseline, the FAA then calculated the ‘‘aircraft portion’’ of

12

this ambient level and used the INM to calculate the ‘‘aircraft

only’’ noise for each alternative. Thereafter, the FAA evalu-

ated the relative change in noise level attributable to aircraft

noise. It then logarithmically calculated how the projected

aircraft noise from the project, when added to the ambient

baseline, would change the baseline ambient noise levels.

This process indisputably examines both the incremental

impact of the project as well as the environmental baseline.

This case is thus unlike Grand Canyon Trust, 290 F.3d 339,

to which petitioners attempt to compare it. Unlike the

present case, in Grand Canyon Trust the FAA failed to

conduct ambient monitoring. Petitioners’ argument that the

FAA did not account for local aircraft operations excluded

from the INM is likewise unpersuasive because the ambient

measurements considered the local operations’ noise impact.

Petitioners next argue that the FAA did not consider the

‘‘ceiling effect’’ that the Northwest 2000 Plan’s procedures

have on aircraft operations from satellite airports in the

Phoenix area. Although the ceiling effect was not specifically

discussed in the record, its omission does not render the

FAA’s decision arbitrary and capricious. Respondents ade-

quately explain the ceiling effect’s exclusion from the EA and

FONSI:

Before NW2000, controllers routinely descended

satellite arrivals beneath PHX traffic when neces-

sary. For over a decade, these arrivals would then

be radar vectored over and near Cave Creek/Care-

freeTTTT Post-NW 2000, [they] are similarly de-

scended beneath PHX traffic when necessary. They

are then radar vectored over the Cave Creek and

Carefree area at the same frequency and altitudes

previously on the FERER [an arrival procedure

from the north of PHX]TTTT The new JCOBS

procedure routes the same number of arrivals as did

the FERER and does not lead to any increased

overflights of the areaTTTT

After NW2000, fewer satellite departures fly over

or near Cave Creek/Carefree/Spur Cross Ranch

than before the Plan. This is so because some

satellite departures are now radar vectored directly

13

to the west and thus depart in the opposite direction

of Cave Creek/Carefree/Spur Cross Ranch. The

remaining departures, which at times may be de-

scended below PHX arrivals on the BRUSR [the

arrival procedure that replaced the old KARLO

STAR], are held there no longer than the pre-

NW2000 satellite arrivals were held below DRAKE

departuresTTTT

Thus, there is no such thing as a ‘‘ceiling effect,’’

rather – just as before NW2000 – at times satellite

arrivals or departures will need to be held or se-

quenced to avoid PHX arrivals or departures. Also,

as FAA found, the altitude of satellite operations

would be the same over Cave Creek/Carefree/Spur

Cross with the NW2000 Plan than they were under

the old flight pathsTTTT

Furthermore, Petitioners’ suggestion that the so-

called ‘‘ceiling effect’’ impacted FAA’s analysis of

aircraft altitude for noise purposes is wrong. FAA

uses actual flight tracks to develop the INM model

runs. Thus, to the extent a satellite operation must

descend beneath a PHX operation, the altitude of

the satellite aircraft and duration of the descent are

factors captured by FAA’s analysis of flight track

data for use within the INM.

INM modeling accounts for impacts from altitudes

of aircraft within flight paths. In its noise analysis,

FAA explained that the INM is able to ‘‘define

descent profiles representative of the proposed pro-

cedures’’ and ‘‘also takes into account terrain data to

calculate the altitude of aircraft above the ground.’’

Br. of Respondents at 47-49.

Petitioners also contend that the FAA did not adequately

consider the cumulative effects of the Northwest 2000 Plan

because the agency failed to account properly for the location

of aircraft. In other words, the agency did not analyze

vector-related noise impacts as a cumulative impact of the

Plan. Again, respondents adequately explain the agency’s

use of radar vectors:

Petitioners err in criticizing FAA for not analyzing

vector-related noise impacts as a ‘‘cumulative im-

14

pact’’ of the NW2000 Plan. But because classic

procedures which include radar vectoring were de-

veloped and implemented in the NW2000 Plan, to

the extent such procedures cause any impacts, such

impacts are direct impacts of the project and should

be evaluated as FAA did here.

The EA makes clear that the NW2000 route modi-

fications involve both ‘‘classic’’ flight routes, which

use radar vectoring procedures, as well as RNAV

routes, which do not. Likewise, within its noise

analysis, FAA explained that the arrival and depar-

ture routes implemented as part of the NW2000

Plan, and evaluated for noise purposes, ‘‘are both

classic and area navigation (RNAV) procedures.’’

All arrival and departure procedures within the

Plan were developed (and implemented) as classic

procedures where aircraft fly dispersed routes with-

in ‘‘courses that are approximately one to eight miles

in width * * *.’’ For classic procedures, ‘‘dispersion

[within the 8-mile corridor] reflects the anticipated

vectoring assigned to aircraft as they move through

the airspace between enroute fixes.’’ FAA disclosed

that radar vectoring procedures are part and parcel

of the classic routes developed for the NW2000 Plan.

Impacts related to aircraft dispersion due to radar

vectoring, therefore, are not cumulative impacts but

are direct impacts of the project.

FAA evaluated vector-related dispersion as a di-

rect impact of the project by accounting for any such

vectoring within its noise modeling. Contrary to

Petitioners’ suggestions, FAA used the INM model

and adequately evaluated noise impacts of aircraft

dispersion related to radar vectoring procedures. In

fact, FAA’s development of its comparative flight

paths for the INM model expressly accounted for

the existing and projected radar vectoring within

classic procedures.

For the No-Action alternative, FAA dispersed the

standard arrival and departure definitions published

15

by PHX and each satellite airport, through radar

data depicting the actual locations (including alti-

tudes) flown by aircraft to and from the airports.

For Alternatives 2 and 3, FAA developed flight

tracks by defining the proposed STAR and DP

procedures and dispersing such routes ‘‘to reflect

corridor widths comparable to those associated with

current [classic] procedures.’’

The EA evaluated noise impacts resulting from

use of both RNAV procedures and the classic proce-

dures developed for the NW2000 Plan. For classic

procedures, FAA accounted for dispersion impact

from use of classic, radar vector procedures by

assuming that: (1) 25 percent of the active jet fleet

would use classic procedures; and (2) classic proce-

dures and associated vectoring would follow courses

between approximately one to eight miles wide.

Aircraft dispersion within the eight-mile corridor

‘‘reflects the anticipated vectoring assigned to air-

craft as they move through the airspace between

enroute fixes.’’

To accurately predict impacts from aircraft noise

in the proposed routes, included in the INM was

information regarding the traffic distribution pat-

terns and runway usage at PHX and the other

airports. FAA utilized actual radar data to accu-

rately depict and model the existing and proposed

route utilization and runway usage for noise model-

ing purposes. Thus, the INM modeling adequately

accounted for all aspects of radar vector-related

dispersion of aircraft throughout a classic corridor.

Based on the results of its noise modeling, FAA

reasonably found radar vectoring within the

NW2000 classic procedures would cause no signifi-

cant impacts.

Br. of Respondents at 51-54 (citations omitted).

Finally, petitioners contend that the FAA did not adequate-

ly consider the Plan’s cumulative impacts, because the model-

16

ing does not take into account future effects of the Plan’s

changes. They point out that ‘‘sometime between 2010 and

2015, the FAA expects air traffic using Phoenix Airport to

increase by 37 percent, compared to today’s level of opera-

tions.’’ Br. of Petitioners at 38. Thus, petitioners argue that

the FAA erred by only modeling the environmental effects of

airplane noise through 2005: They argue that the agency

should have modeled at least through 2010, and perhaps

through 2015. This argument lacks merit. The FAA’s deci-

sion to model the noise effects for five years into the future

was sufficient. It becomes more difficult – as well as increas-

ingly inaccurate – to make projections that stretch even

further into the future. For example, we do not know what

noise levels planes will produce in the future; they are likely

to become less, rather than more, noisy. Because of the

difficulties and uncertainties involved in modeling noise levels

further than the agency did, modeling through 2005 was

perfectly reasonable. Moreover, the present noise levels are

so far below the 65 DNL curve that even if airplane-related

noise were hypothetically to triple between 2005 and 2010 –

something that petitioners could not in good faith claim – the

resulting noise levels would still be consistent with all exist-

ing land uses.

2. Uniqueness

While regulations require agencies to consider ‘‘[u]nique

characteristics of the geographic area such as proximity to

historical or cultural resources, park lands, TTT or ecologically

critical areas’’ when determining whether to prepare an EIS,

40 C.F.R. § 1508.27(b)(3), there is nothing unique about Cave

Creek or Carefree. Petitioners concede that they are resi-

dential areas.

3. Controversy

Petitioners next argue that an EIS was required because

the agency did not adequately consider ‘‘[t]he degree to which

the effects on the quality of the human environment are likely

to be highly controversial.’’ 40 C.F.R. § 1508.27(b)(4). ‘‘The

term ‘controversial’ refers to cases where a substantial dis-

pute exists as to the size, nature, or effect of the major federal

17

action rather than to the existence of opposition to a use.’’

Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681

F.2d 1172, 1182 (9th Cir. 1982) (emphasis in original; internal

quotations omitted). Petitioners’ contention that complaints

regarding the FAA’s modeling of the altitude of overflights

constitutes a ‘‘controversy’’ lacks merit because petitioners’

evidence is simply insufficient to question the agency’s analy-

sis of the ‘‘size, nature, or effect’’ of the proposed action.

This case is quite different from both Blue Mountains

Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th

Cir. 1998), where the court found that ‘‘[t]he EA contains

virtually no references to any material in support of or in

opposition to its conclusions,’’ and National Parks & Conser-

vation Association v. Babbitt, 241 F.3d 722, 736-37 (9th Cir.

2001), where the court found a substantial controversy be-

cause 85% of the 450 comments ‘‘urged that the EA’s analysis

was incomplete and the mitigation uncertain.’’ In this case,

petitioners claim that a substantial controversy existed be-

cause the FAA received a request to use the Noise Integrated

Routing System (‘‘NIRS’’) Model to evaluate the noise effects

of the Plan. We reject the notion that this request presents a

substantial controversy, largely because it does little to un-

dercut the FAA’s INM model. Petitioners have pointed to

nothing casting serious doubt on INM, which, as FAA’s

preferred model, has been consistently employed as provided

in 14 C.F.R. pt. 150 app. A. Even if the NIRS Model were

somewhat preferable to the INM in this case – a conclusion

we do not embrace – there is no indication that INM’s

projections are off-base, and no indication that NIRS would

find significant or even reportable noise increases in the

challenged areas. See Citizens Against Burlington, 938 F.2d

at 201 (holding that the agency’s choice of scientific method to

measure noise levels was ‘‘obviously not capricious’’); Sierra

Club v. DOT, 753 F.2d at 128 (‘‘It is clearly within the

expertise and discretion of the agency to determine proper

testing methods.’’).

4. Future Precedent

Finally, petitioners argue that the FAA failed to consider

adequately ‘‘[t]he degree to which the action may establish a

18

precedent for future actions with significant effects or repre-

sents a decision in principle about a future consideration.’’ 40

C.F.R. § 1508.27(b)(6). They argue that this action creates a

clear precedent for other NAR projects not to use EISs in

the future.

This argument is completely without merit. The FAA’s

approval of the Northwest 2000 Plan creates no binding

precedent which will control the FAA’s future use of EISs for

NAR projects. The airspace redesign plans in this case were

developed to address the particular circumstances and prob-

lems encountered in and around PHX.

B. Spur Cross Ranch

Petitioners make two additional sets of arguments directed

at the FAA’s evaluation of Spur Cross Ranch. These argu-

ments are based on the fact that no noise measurements were

taken directly over Spur Cross Ranch, and the contention

that Spur Cross Ranch is a uniquely quiet environment that

may be a protected resource under § 4(f) of the Department

of Transportation Act, 49 U.S.C. § 303(c). Neither of these

arguments persuades us that the EA and FONSI are arbi-

trary and capricious.

1. FAA’s Measurements

As it did for Cave Creek and Carefree, the FAA correctly

applied a well-established methodology in evaluating the

Plan’s effect on noise levels in Spur Cross Ranch. Although

petitioners argue that the FAA erred by failing to measure

noise levels directly over Spur Cross, the FAA’s methodology

was actually applied in a manner that was favorable to

petitioners. After implementation of the Northwest 2000

Plan, annual flights over Spur Cross Ranch decreased by

21,170. Rather than taking noise measurements in Spur

Cross Ranch – which no longer has any direct overflights –

the FAA took noise measurements in close proximity to the

airplane flight paths. Thus, its methodology may actually

overstate the Plan’s cumulative noise effects. At worst, any

noise increase falls within acceptable levels, because the

19

increased noise level will not be greater than the FAA’s

measurements indicated.

2. Context and Setting of Spur Cross Ranch

Spur Cross Ranch is a relatively quiet environment that

may qualify as a ‘‘public park, recreation area, or wildlife TTT

refuge of national, State, or local significance’’ under § 4(f).

Because of this, petitioners argue that the FAA failed to

adequately consider both the ‘‘[u]nique characteristics of the

geographic area,’’ 40 C.F.R. § 1508.27(b)(3), and whether the

proposed action violates ‘‘Federal, State or local law or re-

quirements imposed for the protection of the environment.’’

40 C.F.R. § 1508.27(b)(10). We reject petitioners’ arguments

because the noise levels in Spur Cross Ranch after the Plan’s

implementation are insignificant.

Because the post-Plan noise levels are insignificant, they

will not compromise the activities that take place in Spur

Cross Ranch. See Morongo Band of Mission Indians v.

FAA, 161 F.3d 569, 578 (9th Cir. 1998) (upholding application

of the 65 DNL threshold of significance as applied to an

Indian reservation which, like Spur Cross Ranch, was located

in the desert). Moreover, petitioners are simply wrong in

their assertion that the EA does not discuss the visual impact

of the flights on Spur Cross Ranch. The EA specifically

states:

Under Alternative 3, no adverse impacts would re-

sult and no mitigation measures are required. The

impact that would potentially occur (visual presence

of aircraft) does not linger in the area and is not

permanent TTT, but the potential disruption could

have a diminishing effect on a person’s expectations

of a natural area.

Northwest 2000 Environmental Assessment, Joint Appendix

(‘‘J.A.’’) 926; see also id., J.A. 1001 (responding to a comment

addressing this precise issue). This discussion adequately

addresses the Plan’s visual impact.

Finally, while Spur Cross is a potential § 4(f) resource, the

FAA did not err in failing to discuss it as such because the

20

Plan will not constitute a ‘‘use’’ of Spur Cross. Compliance

with § 4(f) proceeds in three stages. First, the FAA must

identify which resources are protected. Second, the FAA

must determine whether a proposed project will ‘‘use’’ the

lands identified. Third, if the project uses the challenged

area, the FAA may proceed with the project only if there is

‘‘no prudent and feasible alternative’’ and the agency under-

takes ‘‘all possible planning to minimize harm.’’ 49 U.S.C.

§ 303(c). Although ‘‘noise that is inconsistent with a parcel of

land’s continuing to serve its recreational, refuge, or historical

purpose is a ‘use’ of that land,’’ City of Grapevine v. U.S.

Dep’t of Transp., 17 F.3d 1502, 1507 (D.C. Cir. 1994), petition-

ers have not made a serious argument that the FAA’s plan

will have a ‘‘significant adverse’’ impact on the Ranch’s exist-

ing uses. Allison v. Dep’t of Transp., 908 F.2d 1024, 1028

(D.C. Cir. 1990). We have already discussed how noise level

changes expected in Spur Cross will be insignificant and will

not exceed regulatory thresholds for recreational public parks

like Spur Cross Ranch. Thus, the Northwest 2000 Plan does

not constitute a ‘‘use’’ of the area, and the FAA should not be

required to prepare an EIS on these grounds. See City of

Grapevine, 17 F.3d at 1507-08; Communities Inc. v. Busey,

956 F.2d 619, 624 (6th Cir. 1992).

III. CONCLUSION

For the reasons given above, the petition for review is

hereby denied.