The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 24, 2003 Decided January 30, 2004
No. 02-1267
COMMUNITIES AGAINST RUNWAY EXPANSION, INC., ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
MASSACHUSETTS PORT AUTHORITY AND
CITY OF BOSTON,
INTERVENORS
On Petition for Review of an Order of the
Federal Aviation Administration
Peter L. Koff argued the cause and filed the briefs for
petitioners.
Stephen M. Leonard argued the cause and filed the briefs
for intervenor City of Boston in support of petitioner.
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.
2
Todd S. Aagaard, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Ellen J. Durkee and Lisa E. Jones, Attorneys. Andrew C.
Mergen and Mary A. Thurston, Attorneys, entered appear-
ances.
Roscoe Trimmier, Jr. argued the cause for intervenor
Massachusetts Port Authority in support of respondent.
With him on the brief were Richard J. Lettieri, John P.
Bueker, Mark W. Pearlstein and Steven W. Kasten.
Before: GINSBURG, Chief Judge, and EDWARDS and ROGERS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: This case involves a final order of
the Federal Aviation Administration (‘‘FAA’’) approving
changes to the layout plan for Boston’s Logan International
Airport (including the construction of a new runway and
improvement of existing taxiways) and making certain deter-
minations necessary for the project to be eligible for federal
funding under the Airport and Airway Improvement Act, 49
U.S.C. §§ 47101 et seq. (‘‘AAIA’’). The order was based, in
part, on an environmental impact statement (‘‘EIS’’) prepared
pursuant to the National Environmental Policy Act of 1969,
42 U.S.C. §§ 4321-4347 (‘‘NEPA’’).
Petitioners Communities Against Runway Expansion and
several trustees of the South Shore Jet Pollution Council
Charitable Trust (collectively ‘‘CARE’’) seek review of the
FAA order and the EIS. CARE claims that the order
violates NEPA and is arbitrary and capricious, because the
FAA did not properly select and supervise the contractor who
prepared the EIS and failed to make public certain informa-
tion relevant to the environmental review. CARE further
asserts that the order violates the AAIA by failing to certify
that the communities in which the project is located were
notified of their right to petition the Secretary of Transporta-
tion. Finally, CARE contends that the order improperly
certifies for AAIA purposes that the project is consistent with
local plans and that fair consideration was given to local
3
interests. Intervenor City of Boston claims, in addition, that
the ‘‘environmental justice’’ analysis included in the EIS was
based on an unreasonable methodology and should be set
aside as arbitrary and capricious.
Even assuming that the FAA erred in selecting the EIS
contractor, we find no grounds for relief. There is no indica-
tion that this putative error compromised the objectivity and
integrity of the NEPA review process. CARE’s and Boston’s
remaining claims are meritless. We therefore deny the peti-
tion for review.
I. BACKGROUND
A. Statutory Context
The AAIA authorizes the FAA to provide federal funding
for airport improvement projects and establishes detailed
requirements that must be satisfied in order for a project to
be eligible for such funding. See 49 U.S.C. §§ 47104-47107
(2000). Airports that seek AAIA funding or have received
such funding in the past must, inter alia, maintain a current
FAA-approved airport layout plan. 49 U.S.C. § 47107(a)(16).
Where FAA approval of funding for an airport improve-
ment project constitutes a ‘‘major Federal action[ ] signifi-
cantly affecting the quality of the human environment’’ for
purposes of NEPA, the FAA must prepare an EIS analyzing
the proposed project’s environmental consequences and evalu-
ating reasonable alternatives. See 42 U.S.C. § 4332(C)
(2000); see also Robertson v. Methow Valley Citizens Coun-
cil, 490 U.S. 332, 348-51 (1989) (explaining NEPA process
pursuant to which federal agencies must evaluate environ-
mental effects). The FAA’s review under NEPA is governed
in part by guidelines promulgated by the Council on Environ-
mental Quality (‘‘CEQ’’), which are binding on federal agen-
cies. See Found. on Econ. Trends v. Lyng, 817 F.2d 882, 884
n.6 (D.C. Cir. 1987). The project at issue in the instant case
is also subject to the Massachusetts Environmental Policy Act
(‘‘MEPA’’), a state-law analog of NEPA that requires Massa-
chusetts state agencies sponsoring qualifying projects to pre-
4
pare an environmental impact report (‘‘EIR’’). See MASS.
GEN. LAWS ch. 30, §§ 62A, 62B.
B. Factual Background
Logan International Airport is owned and operated by the
Massachusetts Port Authority (‘‘Massport’’), a Massachusetts
state agency for MEPA purposes. The airport is located
near the center of downtown Boston and is surrounded on
three sides by densely populated residential neighborhoods.
Logan is one of the Nation’s busiest airports, ranking 18th in
volume of passenger traffic and 11th in number of aircraft
operations during the year 2000. It is also one of the most
delay-prone: In 2000, Logan was the sixth worst airport in
the country in arrival and departure delays, and it was second
worst in arrival delays.
In 1993, Massport and the FAA began to study options for
addressing flight delays at Logan Airport. Various options
were considered, including the construction of a new east-
west runway designated ‘‘Runway 14/32,’’ construction of a
new ‘‘Centerfield Taxiway,’’ and improvement of several exist-
ing taxiways. In 1995, the FAA and Massport initiated the
environmental review process required under federal and
state laws to assess the impacts of different options. Because
the FAA’s obligations under NEPA were similar to those of
Massport under MEPA, the two agencies agreed to prepare a
joint EIS/EIR. See 40 C.F.R. § 1506.2(c) (2003) (authorizing
joint federal-state environmental review). In July of 1996,
Massport contracted with the consulting firm of Simat, Hel-
liesen & Eichner, Inc. (‘‘SH&E’’) to prepare the EIS/EIR.
In February 1999, the FAA and Massport issued a draft
EIS/EIR for public review and comment. In response to
public concerns, the FAA opted to prepare a Supplemental
Draft EIS (‘‘SDEIS’’) to address certain issues, and the FAA
and Massport jointly published the SDEIS/Final EIR in
March 2001. The SDEIS grouped the options under consid-
eration into five alternatives, including a ‘‘No Action’’ alterna-
tive, and endorsed the ‘‘Preferred Alternative,’’ which called
for construction of Runway 14/32 and the Centerfield Taxi-
way, as well as improvements to certain existing taxiways.
5
See Final Envt’l Impact Statement, Logan Airside Improve-
ments Planning Project, Boston Logan Int’l Airport (June
2002) (‘‘FEIS’’), at 1-31, reprinted in Joint Appendix (‘‘J.A.’’)
672.
As part of its review of the SDEIS, the FAA contracted
with the MITRE Corporation’s Center for Advanced Aviation
System Development (‘‘MITRE’’) to conduct an independent
analysis of predicted runway utilization and capacity and
delay modeling in the SDEIS. MITRE’s final report gener-
ally confirmed the reasonableness of the SDEIS’s assump-
tions and predictions, but concluded that the predicted delay
savings attributable to Runway 14/32 were overstated. How-
ever, MITRE concluded that ‘‘the savings are still substantial
under almost any reasonable long term traffic forecast.’’
FEIS Appendix J at 4, J.A. 1110.
In June of 2002, the FAA issued the Final EIS for the
project. The FEIS summarized and incorporated informa-
tion from the SDEIS and endorsed the Preferred Alternative.
See FEIS at 1-32, J.A. 673. Taking account of the MITRE
report, the FEIS concluded that construction of Runway
14/32 would reduce predicted future delays by 21% to 28% in
comparison with the No Action alternative. Id. at 1-38 - 1-42,
J.A. 679-83. The FEIS predicted that the Preferred Alterna-
tive would reduce the number of people exposed to the
highest levels of noise relative to the No Action alternative,
but would slightly increase the number of people exposed to
significant noise levels under one potential scenario. Noise
impacts would be more evenly distributed among surrounding
neighborhoods and nighttime noise would be reduced. Id. at
2-13 - 2-19, J.A. 696-700. The FEIS also included an ‘‘envi-
ronmental justice’’ analysis, which concluded that any in-
crease in significant noise exposure would not be dispropor-
tionately borne by low-income or minority populations. Id. at
3-66, J.A. 791.
On August 2, 2002, the FAA issued a final order in the
form of a Record of Decision for the Logan Airside Improve-
ments Planning Project. Record of Decision, Airside Im-
provements Planning Project, Logan Int’l Airport, Boston,
6
Mass. (Aug. 2, 2002) (‘‘ROD’’), reprinted in J.A. 1419-98. The
Record of Decision reviewed the conclusions of the EIS and
approved a revised airport layout plan for Logan, including
Runway 14/32 and improvements to existing taxiways. ROD
at 1, J.A. 1420. In addition, the Record of Decision included
several determinations necessary for the project to be eligible
for federal funding under the AAIA. The FAA determined in
relevant part that the project was reasonably consistent with
local land-use plans, as required under 49 U.S.C.
§ 47106(a)(1), and that fair consideration had been given to
the interests of local communities, as required under 49
U.S.C. § 47106(b)(2). ROD at 29, J.A. 1448. CARE filed a
timely petition for review in this court. Boston subsequently
intervened in support of CARE, and Massport intervened in
support of the FAA.
II. ANALYSIS
A. Jurisdictional Issues
1. Subject Matter Jurisdiction
CARE’s petition for review seeks to invoke the court’s
jurisdiction under 49 U.S.C. § 46110(a). Section 46110(a)
states, in relevant part, that ‘‘a person disclosing a substantial
interest in an order issued by the TTT Administrator of the
Federal Aviation Administration with respect to aviation safe-
ty duties and powers designated to be carried out by the
Administrator[ ] under [Part A of Subtitle VII],’’ may petition
this court for direct review of the order. 49 U.S.C.
§ 46110(a) (2000). None of the parties doubts that the court
has subject matter jurisdiction under § 46110(a) to address
the claims raised by CARE. Nonetheless, in light of the
recent decisions of the Second and Ninth Circuits construing
49 U.S.C. § 46110(a), see Comm. to Stop Airport Expansion
v. FAA, 320 F.3d 285 (2d Cir. 2003) (finding no jurisdiction to
review directly an FAA order approving an airport layout
plan); City of Alameda v. FAA, 285 F.3d 1143 (9th Cir. 2002),
cert. denied, 123 S. Ct. 1899 (2003) (same), the parties were
instructed to brief the issue. Having reviewed the applicable
7
case law and the parties’ arguments, we agree that subject
matter jurisdiction exists in this court.
The FAA order at issue here was promulgated pursuant to
Parts A and B of Subtitle VII, which relate to ‘‘Air Commerce
and Safety’’ and ‘‘Airport Development and Noise,’’ respec-
tively. ROD at 31, J.A. 1450. Petitioners’ claims concededly
are concerned in part with ‘‘airport development’’ and ‘‘noise’’
(matters covered by Part B), but this does not defeat jurisdic-
tion in this court. Rather, the important fact here is that the
FAA’s order rests on both Parts A and B. See Comm. to Stop
Airport Expansion v. FAA, 320 F.3d at 290 (‘‘[T]here may be
FAA orders that involve the exercise of authority deriving
from both Parts A and B, and [we] note that we would have
jurisdiction to review such an order.’’); Suburban O’Hare
Comm’n v. Dole, 787 F.2d 186, 192-93 (7th Cir.), cert. denied,
479 U.S. 847 (1986) (‘‘When an agency decision has two
distinct bases, one of which provides for exclusive jurisdiction
in the courts of appeals, the entire decision is reviewable
exclusively in the appellate court.’’); Gen. Elec. Uranium
Mgmt. Corp. v. United States Dep’t of Energy, 764 F.2d 896,
903 (D.C. Cir. 1985) (‘‘[I]n administrative appeals, ‘where it is
unclear whether jurisdiction is in the district court or the
court of appeals the ambiguity is resolved in favor of the
latter.’ ’’ (footnote and citation omitted)); City of Rochester v.
Bond, 603 F.2d 927, 937 (D.C. Cir. 1979) (noting ‘‘the irrele-
vance of the specific substantive ground’’ on which an FAA
order is challenged for purposes of determining jurisdiction
under the judicial review provision). Because the disputed
order in this case clearly implicates and was issued in part
pursuant to Part A, jurisdiction is proper in this court under
§ 46110(a).
2. Standing
In order for an association to have representational stand-
ing under Article III of the Constitution, at least one of its
members must have standing to bring the petition in his or
her own right, the interests the association seeks to protect
must be germane to its purpose, and the claim asserted and
the relief sought must not require the individual member or
8
members to participate directly in the suit. See Hunt v.
Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343
(1977). Massport argues that CARE does not satisfy the first
of these requirements. To do so, CARE must demonstrate
that at least one of its members ‘‘(1) TTT has suffered an
‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely specula-
tive, that the injury will be redressed by a favorable deci-
sion.’’ Friends of the Earth, Inc. v. Laidlaw Envt’l Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000).
Under Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002), a
petitioner whose standing is not self-evident is required to
demonstrate entitlement to review by means of record or
supplemental evidence ‘‘at the first appropriate point in the
review proceeding.’’ Id. at 900. CARE’s initial submissions
in support of standing – the declarations of two members
living near Logan Airport – did not allege facts sufficient to
support a finding that the declarants would be exposed to a
concrete and particularized ‘‘injury in fact’’ as a result of the
contested project. See City of Olmstead Falls v. FAA, 292
F.3d 261, 267 (D.C. Cir. 2002) (‘‘[G]eographic proximity does
not, in and of itself, confer standing on any entity under
NEPA or any other statute.’’). In response to Massport’s
challenge to the adequacy of its submissions, CARE submit-
ted supplemental declarations of two other members with its
reply brief. These supplemental declarations clearly demon-
strate that there is a substantial probability that the declar-
ants will be subjected to increased noise from aircraft opera-
tions at Logan as a result of the project.
The Declaration of Roberta Horn, a CARE member and a
resident of East Boston, cites the FEIS’s prediction that the
block on which she lives will be exposed to increased noise as
a result of the project under the ‘‘29 million-passenger low
fleet’’ scenario. Horn Decl. ¶ ¶ 5-6 (citing FEIS at 2-8 (Fig.
2.1-2), J.A. 692), reprinted in Petitioners’ Reply Br. Add. 1 at
2-3. The Declaration of Libby Arsenault, a CARE member
and resident of the Eagle Hill neighborhood of East Boston,
9
cites the FEIS’s prediction that her neighborhood will be
exposed to increased noise due to the project under the ‘‘37.5
million-passenger high regional jet fleet’’ scenario. Arsenault
Decl. at ¶ ¶ 5-7 (citing FEIS 3-120 (Fig. 3.8-17), J.A. 838),
reprinted in Petitioners’ Reply Br. Add. 2 at 2-4. These
Declarations, if otherwise admissible, confirm CARE’s stand-
ing.
There is a question, however, as to whether the Declara-
tions are timely, because they were not submitted until
CARE filed its reply brief. While we generally require a
petitioner whose standing is not self-evident to provide ade-
quate factual support for its standing in its opening brief,
Sierra Club, 292 F.3d at 900, we hold here that CARE’s
belated submission may be excused in this case. The supple-
mental declarations make it patently obvious that, based on
information in the FEIS, at least one of CARE’s members
will suffer a cognizable ‘‘injury in fact’’ as a result of the
disputed order. Because this conclusion is irrefutable, Mass-
port was not prejudiced by its inability to respond to the
supplemental declarations. See id. at 901 (‘‘[A]ll too often the
petitioner does not submit evidence [supporting its standing]
with its opening brief and the respondent is therefore left to
flail at the unknown in an attempt to prove the nega-
tiveTTTT’’).
The anticipated injuries to CARE’s members are fairly
traceable to the FAA’s order approving the project, and these
injuries would be redressed by a decision setting aside that
order. We therefore conclude that CARE has standing to
challenge the FAA order and the supporting EIS. We
hasten to add that future petitioners will be well-advised to
adhere carefully to the requirements of Sierra Club, as it will
not always be possible to cure a defective initial submission so
conclusively.
B. Standard of Review
In reviewing the FAA’s compliance with NEPA, our role
‘‘is simply to ensure that the agency has adequately consid-
ered and disclosed the environmental impact of its actions and
that its decision is not arbitrary or capricious.’’ City of
10
Olmstead Falls, 292 F.3d at 269 (quoting Baltimore Gas &
Elec. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98
(1983)). We review the EIS to ‘‘ensure that the agency took
a ‘hard look’ at the environmental consequences of its decision
to go forward with the project,’’ City of Grapevine v. Dep’t of
Transp., 17 F.3d 1502,1503-04 (D.C. Cir.), cert. denied, 513
U.S. 1043 (1994), but in so doing we are mindful that ‘‘it is
now well settled that NEPA itself does not mandate particu-
lar results, but simply prescribes the necessary process,’’
Robertson, 490 U.S. at 350.
We review both the Record of Decision and the EIS under
the Administrative Procedure Act (‘‘APA’’) to determine
whether the FAA’s actions are ‘‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’’
5 U.S.C. § 706(2)(A) (2000).
The scope of review under the ‘‘arbitrary and capri-
cious’’ standard is narrow and a court is not to
substitute its judgment for that of the agency. Nev-
ertheless, the agency must examine the relevant
data and articulate a satisfactory explanation for its
action including ‘‘a rational connection between the
facts found and the decision made.’’ In reviewing
that explanation, we must ‘‘consider whether the
decision was based on a consideration of the relevant
factors and whether there has been a clear error in
judgment.’’
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (internal citations omitted).
C. Selection and Supervision of the EIS Contractor
CEQ’s NEPA guidelines permit an EIS to be prepared by
a contractor if (1) the lead federal agency, or the lead agency
‘‘in cooperation with cooperating agencies,’’ selects the con-
tractor; (2) the contractor executes a disclosure statement
specifying that it has ‘‘no financial or other interest in the
outcome of the project’’; and (3) the responsible federal
officials furnish guidance and participate in the preparation of
the EIS, evaluate the EIS prior to its approval, and take
11
responsibility for its scope and contents. 40 C.F.R.
§ 1506.5(c) (2003); see also 40 C.F.R. § 1501.6 (2003) (defin-
ing a ‘‘cooperating agency’’ as a qualified federal agency). In
addition, the FAA has issued an internal third-party contract-
ing guidance addressing the preparation of an EIS by a
contractor selected by the FAA and engaged by an airport
sponsor. See EIS Preparation Guidance – Third Party Con-
tracting (July 24, 1995), http://www1.faa.gov/arp/app600/
5054a/3rdpty.htm.
CARE asserts that the FAA violated the CEQ regulation
and the third-party contracting guidance by failing properly
to select SH&E as the contractor, allowing SH&E to be
selected despite a potential conflict of interest, and abdicating
its responsibility to oversee the preparation of the EIS.
Contrary to the FAA’s assertion, petitioners did not waive
these claims by failing to raise them during the EIS process.
Under 49 U.S.C. § 46110(d), we may consider objections not
raised during the administrative proceeding if there was a
‘‘reasonable ground’’ for the omission. CARE plausibly as-
serts that it had no reason during the EIS process to suspect
the alleged defects in the selection and supervision of SH&E,
and we agree that this excuses CARE’s failure to raise the
claims below. This is no great help to CARE, however, as we
hold that its claims either lack merit or do not entitle it to
relief.
There is no evidence showing that the FAA itself selected
SH&E as the contractor for the EIS, nor, on the other hand,
is there any conclusive evidence that the FAA failed to do so.
In December 1993, the FAA selected Cortell Associates to be
the prime contractor for the EIS, and SH&E later became a
member of the ‘‘consultant team’’ for the initial feasibility
study. FAA official John Silva’s notes from an October 1996
meeting indicate that Massport official Betty Desrosiers ‘‘an-
nounced SH&E as the new prime contractor.’’ J.A. 56.
SH&E certified in its disclosure statement that it was select-
ed ‘‘on the basis of a competitive selection process,’’ but the
statement gives no indication as to who made the selection.
J.A. 59.
12
We need not determine the FAA’s precise role in SH&E’s
selection, however, because even assuming that the FAA did
not properly discharge its obligations, petitioners would not
be entitled to relief. We find, as in Citizens Against Burling-
ton, Inc. v. Busey, 938 F.2d 190 (D.C. Cir.), cert. denied, 502
U.S. 994 (1991), that there is no cause to invalidate the EIS,
because any error in the selection of the contractor ‘‘did not
compromise the ‘objectivity and integrity of the [NEPA]
process.’ ’’ Id. at 202 (quoting Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy Act Regu-
lations, 46 Fed. Reg. 18,026, 18,031 (Mar. 23, 1981)). CARE
has not alleged any substantive flaws in the FEIS itself, such
as a failure to discuss significant impacts or to consider
reasonable alternatives, and there is no indication in the
record before us that the manner in which SH&E was chosen
prejudiced the FAA’s review of the project.
As required under 40 C.F.R. § 1506.5(c), SH&E executed a
disclosure statement specifying that it had no financial or
other interest in the outcome of the project. The statement
certified that Massport had engaged SH&E for four other
clearly identified projects, but that this would not influence
SH&E’s ability to participate objectively in the preparation of
the EIS. J.A. 59. CARE has identified no conflict of inter-
est that would disqualify SH&E from preparing the EIS, nor
is any evident in the record before us.
CARE’s claims that the FAA abdicated its responsibility to
oversee the preparation of the EIS, and that SH&E improp-
erly acted as an advocate for Massport in the environmental
review process, likewise lack merit. The record confirms that
the FAA consistently exercised control over the scope, con-
tent, and development of the EIS. Contrary to CARE’s
assertions, there was nothing improper in Massport’s partic-
ipation in joint meetings and its review of and comment on
draft documents during the EIS process. As a cooperating
state agency in a joint federal-state environmental review,
Massport had a significant official role to play in jointly
overseeing the preparation of the EIS. See 40 C.F.R.
§ 1506.2(c) (requiring federal agencies to ‘‘cooperate with
State and local agencies to the fullest extent possible’’ includ-
13
ing in the preparation of joint environmental impact state-
ments). As proprietor and operator of Logan, moreover,
Massport was in a unique position to provide valuable infor-
mation about the project; its exclusion from the environmen-
tal review process would have been counterproductive, to say
the least.
D. Disclosure of EIS-Related Information
One of the principal purposes of NEPA is to ensure public
disclosure of information relevant to federal decisions signifi-
cantly affecting the environment. See Robertson, 490 U.S. at
349; 40 C.F.R. § 1502.1 (2003). CARE claims that the FAA
violated this central objective of the statute and acted arbi-
trarily and capriciously by failing to make public (1) informa-
tion regarding the status and nature of federal funding
approvals being sought by Massport from the FAA; (2) the
cost-benefit methodology that an applicant for federal funding
must use to quantify the delay savings benefits of proposed
airport improvements; and (3) MITRE’s draft work product,
which allegedly contained strong criticisms of the EIS’s delay
savings predictions. We find no merit in these claims.
Massport had made no funding requests at the time the
FAA completed the FEIS and issued its Record of Decision,
so there was no information to be disclosed in this regard. In
any case, the manner in which the project is funded has no
bearing on its environmental impacts. As to the second
claim, it is undisputed that the FAA was not required to
undertake a formal cost-benefit analysis as part of the EIS.
See Suburban O’Hare Comm’n, 787 F.2d at 191 n.8. CARE
correctly notes that the FAA requires a cost-benefit analysis
in order to approve a grant from its ‘‘discretionary fund’’
under the AAIA and prescribes a methodology for calculating
the benefits of delay reductions. See 49 U.S.C. § 47115(d)(2);
Federal Aviation Administration Policy and Final Guidance
Regarding Benefit Cost Analysis (BCA) on Airport Capacity
Projects for FAA Decisions on Airport Improvement Pro-
gram (AIP) Discretionary Grants and Letters of Intent
(LOI), 64 Fed. Reg. 70,107 (Dec. 15, 1999). But this has no
bearing on the FAA’s environmental review under NEPA,
14
and there is no merit to the suggestion that the FAA had an
obligation to disclose the methodology in question as part of
that review.
We likewise reject CARE’s claim that the FAA was obli-
gated to disclose MITRE’s draft work product. As an initial
matter, CARE cites no provision of NEPA or its implement-
ing regulations, the APA, or any FAA regulation requiring
the disclosure of an EIS contractor’s draft work product. In
any case, there is nothing in the record before us to suggest
that MITRE’s preliminary analysis fatally undermined the
FAA’s conclusions as to the benefits of the project, or that
the FAA improperly sought to influence or suppress MI-
TRE’s conclusions. The FEIS included MITRE’s final analy-
sis of the technical questions it was asked to review. MITRE
determined, in relevant part, that the SDEIS’s predictions
regarding delay savings were overstated, but that, ‘‘neverthe-
less, the savings are still substantial under almost any reason-
able long term traffic forecast.’’ FEIS Appendix J at 4, J.A.
1110. Both the FEIS and the Record of Decision took
account of MITRE’s conclusions in this regard. See FEIS at
3-69 - 3-71, J.A. 794-96; ROD at 12, J.A. 1431. There is no
evidence that the differences between MITRE’s draft work
product – some of which ultimately was released pursuant to
CARE’s request under the Freedom of Information Act, 5
U.S.C. § 552 – and its final report reflect anything other than
the development of MITRE’s thinking in response to feed-
back from parties with relevant information, including the
FAA, Massport, and SH&E.
E. Environmental Justice Review
As noted above, the FAA included in the FEIS an ‘‘envi-
ronmental justice’’ analysis, intended to evaluate whether the
project would have disproportionately high and adverse hu-
man health or environmental effects on low-income or minori-
ty populations. In order to assess the project’s impact on
minority populations, the FEIS compared the demographics
of the area expected to be exposed to significant noise im-
pacts (the ‘‘actually affected area’’) with the demographics of
the ‘‘potentially affected area.’’ The potentially affected area
15
was defined as the whole of the cities and towns in which the
actually affected area is located, encompassing all of Suffolk
County. FEIS at 3-49, J.A. 776. The FEIS concluded that
significant noise impacts from the project would not fall
disproportionately on minorities. Minorities constitute 34%
of the population expected to be exposed to significant noise
impacts as a result of the project, whereas they constitute
48% of the population of the potentially affected area. Id. at
3-66, J.A. 791. In addition, minorities would constitute 34%
of the population exposed to significant airport noise under
either the Preferred Alternative or the No Action alternative.
Id. at 3-58, J.A. 784.
Boston claims that the FAA’s environmental justice analy-
sis is arbitrary and capricious, because its choice of the
‘‘comparison population’’ – i.e., the population of the ‘‘poten-
tially affected area’’ – is unreasonable. Boston argues that
using Suffolk County as the basis for comparison improperly
biased the analysis, and that the FAA should instead have
used the greater Boston metropolitan area – Logan’s ‘‘core
service area.’’ Massport responds that Boston is precluded
from raising this claim because the FAA’s environmental
justice analysis was undertaken pursuant to Executive Order
12,898 and a 1997 Department of Transportation order, both
of which expressly state that they do not create a private
right to judicial review. See Exec. Order No. 12,898, Federal
Actions To Address Environmental Justice in Minority Popu-
lations and Low-Income Populations, 59 Fed. Reg. 7,629,
7,632-33 (Feb. 11, 1994) (§ 6-609); Department of Transpor-
tation (DOT) Order To Address Minority Populations and
Low-Income Populations, 62 Fed. Reg. 18,377, 18,379 (Apr.
15, 1997).
We conclude, in agreement with the FAA, that Boston’s
claim is properly before this court because it arises under
NEPA and the APA, rather than the two orders cited above.
The FAA exercised its discretion to include the environmental
justice analysis in its NEPA evaluation, and that analysis
therefore is properly subject to ‘‘arbitrary and capricious’’
review under the APA. See City of Olmstead Falls, 292 F.3d
at 269 (holding that the ‘‘arbitrary and capricious’’ standard is
16
applied to determine the adequacy of an EIS). Boston’s
claim, in any event, clearly fails on the merits. The FAA’s
methodology was reasonable and adequately explained: The
FEIS sought to compare the demographics of the population
predicted to be affected by any increased noise resulting from
the project to the demographics of the population that other-
wise might conceivably be affected by noise from the airport.
A comparison population based on a larger geographic area
could reasonably be rejected because significant noise impacts
are limited to the vicinity of the airport. The FAA’s choice
among reasonable analytical methodologies is entitled to def-
erence from this court. See Citizens Against Burlington, 938
F.2d at 200-01 (‘‘We have TTT held consistently that the rule
of reason guides every aspect of the FAA’s approach, includ-
ing its choice of scientific method.’’). In any case, the FAA
reasonably concluded that the minority proportion of the
population exposed to significant noise impacts as a result of
the project would be no greater than if no action were taken.
FEIS at 3-58, J.A. 784.
F. AAIA-Related Claims
In order for the FAA to approve funding for the project
under the AAIA, Massport must certify to the Secretary of
Transportation that the communities in which the project is
located have been advised that they have the right to petition
the Secretary about the project. See 49 U.S.C.
§ 47106(c)(1)(A)(ii). CARE’s claim that the FAA violated
this requirement by failing to include this certification as part
of the Record of Decision is not yet ripe for review. The
Record of Decision did not approve funding or determine the
project’s eligibility for funding, and the FAA consequently
had no obligation to include the certification.
The Record of Decision does include several other determi-
nations necessary in order for the project to be eligible for
AAIA funding, including that the project is ‘‘reasonably con-
sistent with existing plans of public agencies for the develop-
ment of the area,’’ as required under 49 U.S.C. § 47106(a)(1),
and that ‘‘[f]air consideration has been given to the interest of
communities in or near the project location,’’ as required
17
under 49 U.S.C. § 47106(b)(2). ROD at 29, J.A. 1448.
CARE claims that these determinations were arbitrary and
capricious. While the effects of the determinations will be
manifest only if and when federal funding for the project is
approved, the determinations are final and all parties agree
that CARE’s challenge to them is ripe for review. CARE’s
claims ‘‘present[ ] a concrete legal dispute; no further factual
development is essential to clarify the issues TTT [and] noth-
ing would be gained by postponing [their] resolution.’’ Payne
Enters., Inc. v. United States, 837 F.2d 486, 492 (D.C. Cir.
1988). We resolve these claims without hesitation in favor of
the FAA.
CARE argues that the FAA’s plan-consistency determina-
tion was arbitrary and capricious because the FEIS consid-
ered only the project’s consistency with zoning requirements
in East Boston and failed adequately to address Boston’s
comments during the EIS process that increased noise might
negatively affect developments planned for South Boston and
East Boston. The FAA responded to these comments by
explaining that the project would not significantly alter over-
all patterns of runway use at Logan, J.A. 1283-84, and
concluded that the project will in fact reduce noise impacts on
most of the area near the airport, including South Boston and
East Boston, see FEIS at 3-101 - 3-104, 3-113, J.A. 822-25, 832.
We find, on this basis, that the FAA’s determination is
adequately supported by the record and satisfies the require-
ments of the AAIA. See Town of Stratford v. FAA, 285 F.3d
84, 90 (D.C. Cir. 2002) (finding that local permitting require-
ments would be sufficient to meet the AAIA’s requirement
that the project be ‘‘reasonably consistent’’ with local plans).
Finally, the extensive participation of local communities in
the environmental review process, which is documented in the
FEIS, see FEIS at 5-2, J.A. 908, amply supports the FAA’s
determination that fair consideration was given to local inter-
ests. See Town of Stratford, 285 F.3d at 90 (finding that the
town’s extensive involvement in the decision making process
satisfied the ‘‘fair consideration’’ requirement).
18
III. CONCLUSION
For the reasons set forth above, we deny the petition for
review.