Village of Indian Creek, Florida v. FAA

USCA11 Case: 20-14656 Date Filed: 09/02/2022 Page: 1 of 36

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14656

____________________

CITY OF NORTH MIAMI,

Petitioner,

versus

FEDERAL AVIATION ADMINISTRATION,

STEPHEN M. DICKSON,

in his official capacity as Administrator, Federal Aviation Admin-

istration,

Respondents.

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. FONSI / ROD

____________________

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2 Opinion of the Court 20-14656

____________________

No. 20-14662

____________________

VILLAGE OF INDIAN CREEK, FL,

TOWN OF SURFSIDE, FL,

CHARLES W. BURKETT,

Petitioners,

versus

FEDERAL AVIATION ADMINISTRATION,

STEPHEN M. DICKSON,

in his official capacity as Administrator,

Federal Aviation Administration,

Respondents.

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. FONSI / ROD

____________________

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20-14656 Opinion of the Court 3

____________________

No. 20-14674

____________________

VILLAGE OF BISCAYNE PARK, FL,

a Florida municipal corporation,

Petitioner,

versus

STEPHEN DICKSON,

Administrator, United States of America

Federal Aviation Administration,

Respondent.

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. FONSI / ROD

____________________

____________________

No. 20-14677

____________________

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4 Opinion of the Court 20-14656

CITY OF NORTH MIAMI BEACH,

VILLAGE OF NORTH BAY VILLAGE,

FRIENDS OF BISCAYNE BAY,

MAUREEN HARTWITZ,

Petitioners,

versus

FEDERAL AVIATION ADMINISTRATION,

STEPHEN M. DICKSON,

in his official capacity as Administrator, Federal Aviation Admin-

istration,

Respondents.

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. FONSI / ROD

____________________

____________________

No. 20-14689

____________________

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20-14656 Opinion of the Court 5

TOWN OF BAY HARBOR ISLANDS,

Petitioner,

versus

FEDERAL AVIATION ADMINISTRATION,

ADMINISTRATOR, FAA,

STEPHEN M. DICKSON,

in his official capacity as Administrator,

Federal Aviation Administration,

Respondents.

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. FONSI / ROD

____________________

Before NEWSOM, MARCUS, Circuit Judges, and MIDDLEBROOKS, ∗

District Judge.

MARCUS, Circuit Judge:

∗ Honorable Donald M. Middlebrooks, United States District Judge for the

Southern District of Florida, sitting by designation.

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6 Opinion of the Court 20-14656

Just as it did in many other metro areas around the country,

the Federal Aviation Administration (“FAA”) recently designed and

implemented new navigation procedures for flights taking off from

and landing in the South-Central Florida Metroplex, whose major

airports include Miami International, Ft. Lauderdale-Hollywood

International, Palm Beach International, Tampa International, and

Orlando International. These new procedures (referred to as “the

Project”) made it possible for more planes to safely use the limited

airspace and simplified air traffic control procedures.

Petitioners, a group comprised of municipalities, individu-

als, and a nonprofit organization all based in South Florida, filed

this petition for review, claiming that the FAA violated the Na-

tional Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et

seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Department of

Transportation Act, 49 U.S.C. § 101 et seq.; and the U.S. Constitu-

tion’s Due Process Clause. Among other things, Petitioners say the

FAA’s Purpose and Need Statement was seriously deficient in vio-

lation of NEPA; its Cumulative Impact Assessment was improper

and violated NEPA; it relied on a presumption of conformity for

air quality analysis in violation of the Clean Air Act and NEPA; it

violated Section 4(f) of the Department of Transportation Act by

failing to consult with all relevant state and local officials regarding

the impact of its Project on certain resources; and, finally, it vio-

lated the Fifth Amendment by infringing upon an alleged right to

sleep without due process.

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20-14656 Opinion of the Court 7

As we see it, none of the Petitioners’ claims have merit. The

FAA scrupulously adhered to the requirements of the relevant stat-

utes and afforded the public numerous opportunities to comment

on the proposed changes. Accordingly, we DENY the petition for

review.

I.

The FAA is tasked by Congress with ensuring safe air travel

throughout the United States. 49 U.S.C. § 40101 et seq. Under this

authority, the FAA publishes air traffic control procedures, includ-

ing where to turn, what direction to fly, when and where to ascend

or descend, and at what speeds. In 2003, Congress passed the Vi-

sion 100 – Century of Aviation Reauthorization Act of 2003 (“Vi-

sion 100 Act”), Pub. L. No. 108-176, 117 Stat. 2490 (2003), which

directed the FAA to implement the Next Generation Air Transpor-

tation System (“NextGen”). One aspect of this modernization ef-

fort involves transitioning from ground-based radar navigation sys-

tems to satellite-based navigation systems in order to make flight

paths more efficient, remedy airspace congestion, and simplify air

traffic control procedures. FAA, South-Central Florida Metroplex,

http://www.faa.gov/newsroom/south-central-florida-metroplex

(last accessed July 11, 2022).

Congress has mandated the expeditious implementation of

NextGen and required its implementation at thirty-five of the na-

tion’s busiest airports -- including several of the airports at issue

here -- within four and a half years. See, e.g., FAA Modernization

and Reform Act of 2012, Pub. L. No. 112-95, § 213(a)(1)(A), (2), 126

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8 Opinion of the Court 20-14656

Stat. 11, 46–48 (2012). The FAA was required to design and imple-

ment new “Area Navigation” procedures, or “RNAV” procedures,

for South-Central Florida and 10 other metroplexes. See FAA,

South-Central Florida Metroplex. Each of the other RNAV mod-

ernization projects that were challenged in federal courts of appeals

has survived judicial review. See, e.g., Lyons v. FAA, 671 F. App’x

674, 674 (Mem.) (9th Cir. 2016) (rejecting challenge to Northern

California Metroplex on the merits); Vaughn v. FAA, 756 F. App’x

8, 11 (D.C. Cir. 2018) (rejecting challenge to Southern California

Metroplex on the merits); Citizens Ass’n of Georgetown v. FAA,

896 F.3d 425, 436 (D.C. Cir. 2018) (dismissing Washington, D.C.

Metroplex challenge as an untimely filing); Arapahoe Cnty. Pub.

Airport Auth. v. FAA, 850 F. App’x 9, 10 (Mem.) (D.C. Cir. 2021)

(dismissing Denver Metroplex challenge for lack of standing).

The FAA conducted an extensive public outreach program

for the Project. Thus, in April and May 2019, the FAA held public

workshops to solicit input on potential designs for the Project, in-

cluding four in-person workshops and one virtual workshop in the

Miami area. Further, in July 2019, the FAA sent a letter announcing

its plans for the Project to 590 federal, state, regional, and local

agencies, elected officials, and tribes, and the FAA published a legal

notice in English and Spanish in six newspapers.

The FAA also prepared a draft environmental assessment

evaluating the Project’s potential impact under NEPA, distributed

the draft widely, and solicited public comments on the draft from

May 2020 to July 2020. In June 2020, the FAA hosted twelve virtual

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20-14656 Opinion of the Court 9

workshops to give the public opportunities to learn about the Pro-

ject and to ask the FAA questions about the Project and the draft

environmental assessment. Finally, in October 2020, the FAA is-

sued its Final Environmental Assessment, Finding of No Significant

Impact, and final decision adopting new flight procedures. Admin.

Rec. (“AR”) 3 at 1, 5, 17.

Petitioners timely filed five petitions for review challenging

the Florida Metroplex Project, and we consolidated them. 1

II.

We start with some general principles. We review the

FAA’s final decision under the Administrative Procedure Act,

5 U.S.C. § 500 et seq. “Specifically, the standard is whether the

[agency action] is arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” Miccosukee Tribe of Indi-

ans of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)

(quoting 5 U.S.C. § 706(2)(A)) (quotation marks omitted); see also

1 Several petitions for review are consolidated here. The first set of Petition-

ers, the “Consolidated Petitioners,” are comprised of five municipalities in the

South Florida area (the City of North Miami, the Village of Indian Creek, the

Town of Surfside, the Village of Biscayne Park, and the Town of Bay Harbor

Islands) and Charles Burkett, an individual. The second set of Petitioners, the

“North Miami Beach Petitioners,” are two municipalities in South Florida (the

City of North Miami Beach and the Village of North Bay Village), a nonprofit,

and a local resident, Maureen Harwitz. The Consolidated Petitioners have

adopted all of the arguments made by the North Miami Beach Petitioners, and

the North Miami Beach Petitioners, in turn, have adopted all of the arguments

made by the Consolidated Petitioners, except their constitutional sleep claim.

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10 Opinion of the Court 20-14656

City of Oxford v. FAA, 428 F.3d 1346, 1351 (11th Cir. 2005) (citing

Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 375–76

(1989)) (“[F]ederal courts apply the ‘arbitrary and capricious’ stand-

ard, as opposed to the ‘reasonableness’ standard, when reviewing

final agency decisions under the Administrative Procedure Act.”).

This standard of review is “exceedingly deferential” and provides

the reviewing court with limited discretion to reverse an agency’s

decision. Miccosukee Tribe of Indians, 566 F.3d at 1264 (quotation

marks omitted). The reviewing court may not substitute its own

judgment for that of the agency but must, instead, generally defer

to the agency’s technical expertise. North Buckhead Civic Ass’n v.

Skinner, 903 F.2d 1533, 1539 (11th Cir. 1990).

We may, however, find an agency action arbitrary and ca-

pricious where

the agency has relied on factors which Congress has

not intended it to consider, entirely failed to consider

an important aspect of the problem, offered an expla-

nation for its decision that runs counter to the evi-

dence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the

product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983).

A.

We begin with Petitioners’ claim that the FAA’s Purpose

and Need Statement was impermissibly narrow. Specifically, they

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20-14656 Opinion of the Court 11

say the Purpose and Need of the Project was defined “so narrowly

that only one alternative -- the proposed flight procedures -- could

fill that purpose.” Appellants’ Consol. Br. at 45.

NEPA’s only requirement regarding the Pur-

pose and Need Statement is that it “briefly specify the underly-

ing purpose and need to which the agency is responding in propos-

ing the alternatives including the proposed action.” Citizens for

Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1212

(11th Cir. 2012) (quoting 40 C.F.R. § 1502.13) (quotation marks

omitted). Congress explained the aims of the NextGen Air Trans-

portation System, the project at issue here, in the Vision 100 Act:

(c) Goals.-- The Next Generation Air Transportation

System shall—

(1) improve the level of safety, security, efficiency,

quality, and affordability of the National Airspace Sys-

tem and aviation services;

(2) take advantage of data from emerging ground-

based and space-based communications, navigation,

and surveillance technologies;

(3) integrate data streams from multiple agencies and

sources to enable situational awareness and seamless

global operations for all appropriate users of the sys-

tem, including users responsible for civil aviation,

homeland security, and national security;

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12 Opinion of the Court 20-14656

(4) leverage investments in civil aviation, homeland

security, and national security and build upon current

air traffic management and infrastructure initiatives

to meet system performance requirements for all sys-

tem users;

(5) be scalable to accommodate and encourage sub-

stantial growth in domestic and international trans-

portation and anticipate and accommodate continu-

ing technology upgrades and advances;

(6) accommodate a wide range of aircraft operations,

including airlines, air taxis, helicopters, general avia-

tion, and unmanned aerial vehicles; and

(7) take into consideration, to the greatest extent prac-

ticable, design of airport approach and departure

flight paths to reduce exposure of noise and emissions

pollution on affected residents.

Vision 100 Act, § 709(c).

In its Final Environmental Assessment, the FAA described

the Purpose and Need of the Project this way: “to provide for the

efficient use of airspace, to develop plans and policy for the use of

the navigable airspace, and to assign by regulation or order the use

of the airspace necessary to ensure the safety of aircraft and the ef-

ficient use of airspace.” AR 5 at 2-1–2-2. The FAA also underscored

the importance of safety and integrating the latest technologies,

such as RNAV-based design. Id.

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20-14656 Opinion of the Court 13

Petitioners fault the FAA for failing to include the reduction

of noise and emissions, to the greatest extent practicable, in its Pur-

pose and Need Statement, even though these considerations are

listed among the seven goals of the NextGen program. Vision 100

Act, § 709(c)(7).

We’ve said that “agencies must look hard at the factors rel-

evant to the definition of purpose.” Citizens for Smart Growth, 669

F.3d at 1212 (cleaned up) (quoting Citizens Against Burlington, Inc.

v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991)). Relatedly, “an agency

should always consider the views of Congress, expressed, to the

extent that the agency can determine them, in the agency’s statu-

tory authorization to act, as well as in other congressional direc-

tives.” Citizens Against Burlington, Inc., 938 F.2d at 196. But other

than appealing to the general rule that agencies must consider the

views of Congress, as expressed in the agency’s statutory authori-

zation, Petitioners identify no law or precedent that would compel

the FAA, in its statement of Purpose and Need, to account for each

and every one of Congress’s goals for the NextGen project.

To the contrary, our courts afford agencies deference in de-

fining the aims of their projects. Nat’l Parks Conservation Ass’n v.

United States, 177 F. Supp. 3d 1, 14–15 (D.D.C. 2016). “That is, as

long as the agency ‘look[s] hard at the factors relevant to the defi-

nition of purpose,’ we generally defer to the agency’s reasonable

definition of objectives.” Theodore Roosevelt Conservation P’ship

v. Salazar, 661 F.3d 66, 73 (D.C. Cir. 2011) (alteration in original)

(citation omitted); see also Citizens for Smart Growth v. Peters, 716

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14 Opinion of the Court 20-14656

F. Supp. 2d 1215, 1223 (S.D. Fla. 2010), aff’d, 669 F.3d 1203 (11th

Cir. 2012) (quoting City of Alexandria v. Slater, 198 F.3d 862, 867

(D.C. Cir. 1999)) (“Courts evaluate the reasonableness of an agency

objective ‘with considerable deference to the agency’s expertise

and policy-making role.’”).

The FAA’s decision to list most, but not all, of Congress’s

objectives in its Purpose and Need statement was not arbitrary or

capricious in violation of NEPA. Congress’s complex web of stat-

utes regulating noise and emissions expresses broad goals, but none

of those statutes compels the FAA to prioritize noise and emission

reduction in all of its projects. Indeed, it is within the sound discre-

tion of the agency to determine which of Congress’s goals this par-

ticular project should accomplish. See Mass. v. EPA, 549 U.S. 497,

527 (2007) (“As we have repeated time and again, an agency has

broad discretion to choose how best to marshal its limited re-

sources and personnel to carry out its delegated responsibilities.”).

It bears repeating that Congress outlined broadly seven goals in the

Vision 100 Act, and at least the following five were mentioned in

the FAA’s Purpose and Need Statement: improving efficiency, har-

nessing new technologies, supporting the growth of transporta-

tion, reducing operational errors, and leveraging additional data to

ease air traffic controllers’ workload. AR 5 at 2-1–2-2.

Petitioners’ follow-on argument that, because the Purpose

and Need Statement omits mentioning noise and emission reduc-

tion, the selection of a particular outcome was a preordained con-

clusion necessarily fails. The FAA considered two options here --

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20-14656 Opinion of the Court 15

the Project and no action at all. Petitioners’ claim that the FAA

failed to consider alternatives that accomplished noise and emis-

sion reduction presupposes that we hold that the FAA must have

mentioned those objectives in its Purpose and Need Statement.

See Theodore Roosevelt Conservation P’ship, 661 F.3d at 73 (cita-

tion omitted) (“[W]e will reject an ‘unreasonably narrow’ defini-

tion of objectives that compels the selection of a particular alterna-

tive.”). But we conclude that the FAA need not have mentioned

noise and emission reduction in its Purpose and Need Statement.

Further, the FAA did all that NEPA requires. As we noted

in Citizens for Smart Growth, “NEPA does not impose any mini-

mum number of alternatives that must be evaluated.” 669 F.3d at

1212. And in North Buckhead Civic Association, we found that an

environmental impact statement with only two alternatives stud-

ied in detail was sufficient. See N. Buckhead Civic Ass’n v. Skinner,

903 F.2d at 1541–43. Of course, the FAA could have studied more

alternatives, but they quickly rejected those that didn’t meet para-

mount criteria, such as safety. AR 20 at 29, 32.

Finally, as discussed at length below, see infra Part II.B–D.,

the FAA considered noise and emissions reduction in detail, and in

conformity with the stated Congressional goals.

B.

Second, Petitioners argue that the FAA also violated NEPA

by incorrectly calculating the cumulative impact of its actions on

the environment. In assessing the marginal change in noise from

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16 Opinion of the Court 20-14656

implementing the NextGen system in the South-Central Florida

Metroplex, the FAA used the 2017–2018 period as its baseline. Pe-

titioners say this undercounted the effects of the FAA’s pre-2017

actions, and that the FAA should have instead used the 2006 noise

levels as a baseline.

Two provisions -- one statutory, one regulatory -- guide our

analysis here. First, the National Environmental Policy Act, which

is largely a procedural statute. 42 U.S.C. § 4321 et seq. It directs all

of the agencies of the federal government to, among other things:

(A) utilize a systematic, interdisciplinary approach

which will insure the integrated use of the natural and

social sciences and the environmental design arts in

planning and in decisionmaking which may have an

impact on man’s environment;

(B) identify and develop methods and procedures, in

consultation with the Council on Environmental

Quality established by subchapter II of this chapter,

which will insure that presently unquantified envi-

ronmental amenities and values may be given appro-

priate consideration in decisionmaking along with

economic and technical considerations;

(C) include in every recommendation or report on

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

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20-14656 Opinion of the Court 17

(i) the environmental impact of the proposed

action . . . .

42 U.S.C. § 4332. And one of NEPA’s implementing regulations

obligates an agency to consider cumulative impact, rather than

merely the impact of the action at hand. 40 C.F.R. § 1508.7. Sec-

tion 1508.7 of the NEPA regulations define “cumulative impact” as

the impact on the environment which results from

the incremental impact of the action when added to

other past, present, and reasonably foreseeable future

actions regardless of what agency (Federal or non-

Federal) or person undertakes such other actions. Cu-

mulative impacts can result from individually minor

but collectively significant actions taking place over a

period of time.

Id. 2

Second, FAA Order 1050.1F § 4-2(d)(3) echoes this regula-

tion and adds, “[i]f the proposed action would cause significant in-

cremental additions to cumulative impacts, an EIS [environmental

2 The Council on Environmental Quality recently updated the NEPA regula-

tions at 40 C.F.R. Parts 1500–1508. See 85 Fed. Reg. 43,304 (July 16, 2020).

Because the FAA’s NEPA process started before September 2020, see, e.g., AR

30 (draft environmental assessment, dated May 11, 2020), the agency chose to

apply the prior regulations, and we cite the prior regulations applicable to the

FAA’s order. See 40 C.F.R. § 1506.13 (explaining that the revised regulations

apply “to any NEPA process begun after September 14, 2020,” but that “[a]n

agency may apply the regulations in this subchapter to ongoing activities and

environmental documents begun before September 14, 2020”).

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18 Opinion of the Court 20-14656

impact statement] is required.” “This requirement prevents a pro-

ponent from breaking a proposal into small pieces that, when

viewed individually, appear insignificant but that are significant

when viewed as a whole.” City of Oxford, 428 F.3d at 1353.

Here, the FAA established a noise baseline using 1,741,841

flights in the South-Central Florida Metroplex region from June 1,

2017 to May 30, 2018 (which were all the flights that the FAA’s ra-

dar detected in that timeframe). The FAA then modeled noise for

both alternative plans (action and no-action) in 2021 and 2026.

Based on this modeling, the FAA concluded that the Project will

not have a significant noise impact. FAA Order 1050.1F defines a

significant impact from the Proposed Action as an increase of Day-

Night Level (“DNL”) noise by 1.5 decibels at noise-sensitive land

use locations (e.g., residences, schools, etc.) that are exposed to air-

craft noise of DNL 65 decibels or higher. Further, the Final EA

concluded that no population would experience an increase in “re-

portable noise,” even when looking at areas with noise exposure

levels between DNL 60 to 65 and DNL 45 to 60.

But Petitioners say that starting from 2017–2018 is the

wrong baseline because it ignores FAA actions in 2006, 2015, and

2018 and therefore creates the false impression that the cumulative

impact of the FAA’s actions will not significantly increase noise in

the South Florida area.

A cumulative impact analysis must identify

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20-14656 Opinion of the Court 19

(i) the area in which the effects of the proposed pro-

ject will be felt; (ii) the impact expected in that area;

(iii) those other actions -- past, present, and proposed,

and reasonably foreseeable that have had or will have

impact in the same area; (iv) the effects of those other

impacts; and (v) the overall impact that can be ex-

pected if the individual impacts are allowed to accu-

mulate.

Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir. 2016) (cleaned up)

(emphasis added). Because the 2006, 2015, and 2018 actions had no

legally significant impact on noise levels, the FAA argues it did not

need to incorporate them in its baseline measurement. We agree.

The first action Petitioners want included in the FAA’s base-

line came in 2006, when the FAA replaced certain existing flight

procedures with satellite-based navigation procedures. But the sat-

ellite routes were overlaid on top of the existing flight procedures,

and Section 331g of Order 1050.1E contains a categorical exclusion

for the establishment of RNAV systems that “use overlay of exist-

ing procedures.” See FAA Order 1050.1E § 311g. 3

Next, in 2015, the FAA added maximum altitudes to flight

charts at the request of air traffic control, without changing any

flight procedures. Petitioners make no effort to explain how this

3 The previous version of Order 1050.1F was Order 1050.1E, and it was in

place from 2006 through 2015. See FAA, Order 1050.1E, Chg. 1,

http://www.faa.gov/documentLibrary/media/Order/1050.1E.pdf (last ac-

cessed July 15, 2022).

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20 Opinion of the Court 20-14656

change had any on-the-ground effects or “will have impact[s] in the

same area” as the Metroplex project. Sierra Club, 827 F.3d at 49.

Last, in 2018, the FAA established sixteen high-altitude flight

procedures over land, modified seven high-altitude procedures

over land, created forty-two high-altitude procedures over the

ocean, and amended two high-altitude procedures over the ocean.

See Establishment and Modification of Area Navigation Routes,

Florida Metroplex Project, 83 Fed. Reg. 54,864 (Nov. 1, 2018); AR

1024 at 19–20. In the Federal Register, the FAA noted that “this

action . . . in support of the Florida Metroplex Project qualifies for

categorical exclusion under the National Environmental Policy

Act” because it involves “new or revised air traffic control proce-

dures conducted at 3,000 feet or more above ground level.” Id. at

54,866. Petitioners seem to acknowledge this fact, saying that,

“[a]lthough these did not include approaches and departures, they

had an indirect effect on approaches and departures.” Appellants’

Consol. Br. at 49. But they offer no additional detail about how

this “indirect effect” affected noise levels.

In sum, none of the prior actions had a legal impact on noise

levels in the area because they were either subject to categorical

exclusions or did not change flight procedures. The FAA’s 1050.1F

Desk Reference on Cumulative Impact Analysis notes that “FAA

has discretion to determine whether, and to what extent, infor-

mation about the specific nature, design, or present impacts of a

past action are useful for the analysis of the impacts of the proposed

action and alternative(s).” FAA 1050.1F Desk Reference (V2), at

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20-14656 Opinion of the Court 21

15-1 (Feb. 2020). We cannot say the FAA’s exercise of that discre-

tion was arbitrary or capricious.

C.

Third, Petitioners charge that the FAA violated the Clean

Air Act and NEPA when it failed to evaluate the Project’s true air

quality impact. The FAA relied on a complex regulatory frame-

work in the process of determining that the effects of the project

were entitled to a “presumption of conformity” with environmen-

tal laws, but Petitioners claim the FAA wasn’t entitled to any such

presumption. See Federal Presumed to Conform Actions Under

General Conformity, 72 Fed. Reg. 41,565, 41,566 (July 30, 2007).

By way of background, the Clean Air Act includes a program

to control the nation’s air pollution by setting national ambient air

quality standards (“NAAQS”). 42 U.S.C. § 7409(a)(1)(A). Under the

Act, the Environmental Protection Agency (“EPA”) must establish

NAAQS for certain pollutants. Id. Each state must adopt and sub-

mit to EPA for approval a state implementation plan (“SIP”) that

provides for the implementation, maintenance, and enforcement

of the NAAQS in a designated air quality region. Id. § 7410(a)(1).

Moreover, federal agencies may not “approve[] any activity which

does not conform to [a SIP] after it has been approved or promul-

gated . . . .” 42 U.S.C. § 7506(c)(1). “Conformity” to a SIP generally

means that the anticipated emissions from a proposed activity will

not frustrate a SIP’s purpose of attaining the NAAQS. Id. §

7506(c)(1).

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22 Opinion of the Court 20-14656

The EPA has promulgated regulations to help federal agen-

cies determine whether their actions conform with SIPs. See 40

C.F.R. § 93.150 et seq. However, the FAA need not perform a con-

formity analysis on certain exempt actions that result in no emis-

sions increases or increases that are clearly de minimis. Id.

§ 93.153(c)(2); see also Federal Presumed to Conform Actions Un-

der General Conformity, 72 Fed. Reg. at 41,566.

Here, the FAA made use of two presumptions: (1) for mod-

ifications to flight routes and procedures at or above 3,000 feet

above ground level, and (2) for changes to flight paths below 3,000

feet when those changes are designed to improve operational effi-

ciency. As for the first presumption, Petitioners claim “the Final

EA provides no factual support for the conclusion that the opera-

tional changes associated with the proposed action will occur ex-

clusively, or even preponderantly, at or above 3,000 feet AGL.”

Appellants’ Consol. Br. at 55. They say this is so because the Final

EA notes that the Project would “change air traffic flows during

departures, descents, and approaches of flights.” Id.

We are not persuaded. The FAA concluded that the opera-

tional changes likely to result in a change in emissions will occur at

or above 3,000 feet. Where the emissions will occur is relevant be-

cause the FAA’s presumption is based on the determination that

“aircraft emissions released into the atmosphere above” 3,000 feet

“do not have an effect on pollution concentrations at ground

level.” Federal Presumed to Conform Actions Under General Con-

formity, 72 Fed. Reg. at 41,578. So, although the Project may result

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20-14656 Opinion of the Court 23

in some changes to on-the-ground procedures, the FAA permissi-

bly found that the changes in emissions -- the relevant metric -- will

occur at or above 3,000 feet above ground level and warranted a

presumption of conformity.

Petitioners also challenge the FAA’s use of the second pre-

sumption for changes below 3,000 feet when those changes “to

routes and procedures are designed to enhance operational effi-

ciency (i.e., to reduce delay), increase fuel efficiency, or reduce

community noise impacts by means of engine thrust reductions.”

Id. They say this presumption should not apply “because FAA is

attempting to apply the Presumption of Conformity to a Project

that will increase fuel burn, and, consequently, decrease effi-

ciency.” Appellants’ Consol. Br. at 58 (emphases removed). Alt-

hough the FAA concedes fuel burn will increase (by less than half a

percent), see AR 20 at 15, Petitioners’ argument defines “efficiency”

too narrowly, and is therefore misplaced.

As the FAA explains,

in determining that air traffic control activities have

negligible air quality impacts, FAA defined efficiency

more broadly as “reducing congestion, balancing con-

troller workload, and improving coordination be-

tween controllers handling existing air traffic.” 72

Fed. Reg. at 41,578. . . . [T]he Project falls squarely

within that definition because it decreases the fre-

quency of controller-pilot communication, reduces

controller and pilot workload by decreasing the com-

plexity of flight procedures, reduces the need for

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24 Opinion of the Court 20-14656

flight path adjustments, and creates more predictable

traffic flows. E.g., AR 5 at 2-16, AR 20 at 4. The slight

increase in fuel burn does not negate or outweigh the

substantial improvements in efficiency that the Pro-

ject brings to the Florida airspace.

Appellee’s Br. at 40. Petitioners have offered no response to the

FAA’s broader definition of efficiency in their reply brief. They

merely repeat that fuel burn will increase. That is factually accu-

rate, but legally insufficient. Because the changes occurring below

3,000 feet above ground level are designed to increase operational

efficiency, their effects on the environment are entitled to a pre-

sumption of conformity with SIPs.

Finally, Petitioners say that, even if we assume that the Pro-

ject complies with SIPs and does not violate the Clean Air Act,

NEPA requires the FAA to determine whether the action “[i]s not

likely to have significant effects or the significance of the effects is

unknown and is therefore appropriate for an environmental assess-

ment.” 40 C.F.R. § 1501.3(a)(2). But the FAA defines a “significant”

air quality impact under NEPA as one that “would cause pollutant

concentrations to exceed one or more of the National Ambient Air

Quality Standards (NAAQS), as established by the Environmental

Protection Agency under the Clean Air Act.” Order 1050.1F at 4-

4. Here, the Project would not likely do so. Therefore, the FAA’s

Clean Air Act analysis showing that the Project would have only a

de minimis impact on air quality satisfies NEPA, too.

D.

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20-14656 Opinion of the Court 25

Petitioners also allege that the FAA violated Section 4(f) of

the Department of Transportation Act by (1) failing to consider the

impact of its Project on all public parks, recreation areas, and wild-

life refuges in and around Biscayne Bay, and (2) failing to consult

with all local, state, and federal officials with jurisdiction over the

affected areas.

Section 4(f) of the Department of Transportation Act pro-

hibits “use” of certain public lands, like Biscayne Bay, unless the

agency finds that two conditions are met -- (1) that there is no “pru-

dent and feasible alternative” to use of the land, and (2) that the

project minimizes any resulting harm to the resource. 49 U.S.C.

§ 303(c). Here, the FAA’s “use” of Biscayne Bay is a non-physical

one -- specifically, the production of noise -- which can be consid-

ered a “constructive use” if it substantially impairs the resource.

See Order 1050.1F at 4-6, B-11. The significance threshold for noise

under Section 4(f) is the same as the threshold under NEPA. An

action is significant enough to constitute a “use” if it “would in-

crease noise by DNL 1.5 dB or more for a noise sensitive area that

is exposed to noise at or above the DNL 65 dB noise exposure level,

or that will be exposed at or above the DNL 65 dB level due to a

DNL 1.5 dB or greater increase, when compared to the no action

alternative for the same timeframe.” Order 1050.1F at 4-8.

The FAA also examined potential impact in more noise-sen-

sitive areas. It categorizes an increase of DNL 3.0dB or more as

significant when it occurs in an area with a noise exposure level

between DNL 60 and 65 dB. After a thorough analysis, the FAA

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26 Opinion of the Court 20-14656

concluded the Project would not cause a significant increase in

noise at any of the areas it examined.

Petitioners lob a number of objections at the FAA’s analysis.

First, they say the Section 4(f) analysis “did not address all public

parks, recreation areas, and wildlife refuges in and around Biscayne

Bay.” Specifically, they claim the “Biscayne Bay Aquatic Preserve”

was omitted. The Florida Department of Environmental Protec-

tion defines that Preserve as “run[ning] the length of Biscayne Bay

proper, from the headwaters of the Oleta River down to Card

Sound near Key Largo.” Fla. Dep’t of Env’t Pres., Biscayne Bay

Aquatic Preserves, http://www.floridadep.gov/BiscayneBayAP

(last accessed July 15, 2022).

The entire length of Biscayne Bay is surely covered by the

FAA’s other, extensive analysis. The FAA generated grid points

spaced every 0.5 nautical miles for all Project areas where planes

would be flying under 18,000 feet. Then, the FAA modeled the

noise at the grid points pre-Project (the baseline) and post-Project

(after implementing the Project’s flight route changes) for two sep-

arate years, 2021 and 2026. It found that the Project would not

cause a significant increase in noise at any of the more than 94,000

Section 4(f) resource points or at any of the 0.5 nautical mile grid

points. So, even if the FAA did not specifically enumerate the Bis-

cayne Bay Aquatic Preserve, it nonetheless ensured the Preserve

would not suffer a significant increase in noise. Absent a showing

by Petitioners that the FAA has violated its regulations in some

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20-14656 Opinion of the Court 27

way, their claim is insufficient to establish that the FAA’s 4(f) anal-

ysis was arbitrary and capricious.

Next, Petitioners say the FAA’s assessment of potential use

was flawed because “there is no evidence the agency properly con-

sidered whether” the protected areas “might be ‘substantially im-

paired’ by the Project.” This is not accurate. There is ample record

evidence of the methodology the FAA used to map the areas that

may be affected under Section 4(f) and to conclude that there

would be no significant increase in noise. See generally AR 19.

The Petitioners also complain that the FAA only used Day-

Night Level to evaluate noise levels and that, under the FAA’s Sec-

tion 4(f) procedures, “general thresholds are not sufficient to deter-

mine noise compatibility for noise-sensitive Section 4(f) resources.”

In support of this argument, Petitioners cite to the FAA’s 1050.1F

Desk Reference’s discussion of Section 4(f). There, the FAA writes

that

The FAA may use the part 150 land use compatibility

table as a guideline to determine the significance of

noise impacts on Section 4(f) properties to the extent

that the land uses specified bear relevance to the

value, significance, and enjoyment of the lands in

question. However, the part 150 guidelines may not

be sufficient for all historic sites as described above,

and the part 150 guidelines do not adequately address

the impacts of noise on the expectations and purposes

of people visiting areas within a national park or na-

tional wildlife refuge where other noise is very low

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28 Opinion of the Court 20-14656

and a quiet setting is a generally recognized purpose

and attribute.

AR 1541 at 5-7 (emphasis added). Even under a Petitioner-friendly

interpretation of this provision, the FAA could choose to apply the

standard noise thresholds to noise-sensitive areas if it determined

that it was appropriate to do so. See id. (“The FAA may use the

part 150 land use compatibility table as a guideline . . . .”).

What’s more, the FAA did in fact use different thresholds for

noise-sensitive areas, rather than just applying the part 150 guide-

lines referenced in the Desk Reference to all areas. Instead of look-

ing for increases of 1.5 dB or more at overall DNL levels at or above

65 dB, it looked for DNL increases of 3.0 dB at the 60–65 dB level

and a DNL increase of 5.0 dB at the 45–60 dB level. AR 3 at 8–9;

AR 5 at 5-6; AR 1541 at 11-9. Petitioners’ vague argument that

“something more than a mechanistic review” of DNL estimates is

necessary, without specifying what that something more might be,

in noise-sensitive areas both fails as a matter of law and ignores the

record.

Petitioners’ last Section 4(f) argument is that the FAA failed

to adequately consult with all state and local agencies about poten-

tial noise impact on Section 4(f) resources. Section 4(f) itself says

nothing about consultation with local officials. Instead, the FAA’s

implementing regulation, Order 1050.1F, provides that the “re-

sponsible FAA official must consult all appropriate Federal, state,

and local officials having jurisdiction over the affected Section 4(f)

properties when determining whether project-related impacts

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20-14656 Opinion of the Court 29

would substantially impair the resources.” Order 1050.1F at B-11.

Order 1050.1F does not prescribe any particular process or manner

in which the FAA must conduct this consultation, however.

The FAA sent notice to all the local government Petitioners

in this case; it followed general notice-and-comment procedures;

and it conducted twelve public workshops. But the Petitioners say

this is insufficient. They claim that the FAA did not consult specif-

ically with the Florida Department of Environmental Protection

about the Biscayne Bay Aquatic Preserve. Further, they say that

general consultation is not enough -- the FAA needed to seek the

input of state and local officials on the topic of Section 4(f).

Petitioners’ arguments fail, both as a matter of fact and of

law. First, the FAA did indeed reach out to the Florida Department

of Environmental Protection. AR 11 at 77. Both the Secretary of

the Florida Department of Environmental Protection, Noah Va-

lenstein, and the Director of the Office of Resilience and Coastal

Protection at the Florida Department of Environmental Protec-

tion, Kevin Claridge, were on the FAA’s mailing list for its Notices

of Availability of its draft environmental assessment. Id. These

Notices alerted their recipients to the workshops the FAA was host-

ing on the draft environmental assessment for the South-Central

Florida Metroplex Project. Id. The letters sent to the Florida De-

partment of Environmental Protection listed twelve total work-

shops that were open to the public, three of which focused on the

Miami area -- where the Biscayne Bay Aquatic Preserve is located.

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30 Opinion of the Court 20-14656

Petitioners say this is still not enough. They argue Section

4(f)’s consultation “mandate requires specific participants to ex-

change views on a specific subject at a specific time.” North Miami

Beach Reply Br. at 6. No case law supports this onerous require-

ment, and neither does the text of Order 1050.1F. The FAA cannot

drag all stakeholders to the proverbial consulting table -- it can only

set the table and send the invitations.

Petitioners’ appeal to City of Phoenix v. Huerta, 869 F.3d

963 (D.C. Cir. 2017), is unavailing. There, the FAA changed satel-

lite-based flight routes, and the City argued the FAA failed to fulfill

its consultation obligations under Section 4(f) when it consulted a

low-level employee in the City’s aviation department who lacked

the authority to speak for the City. Id. at 966, 971. The D.C. Cir-

cuit held that the City’s failure to consult other local officials was

arbitrary because

it was unreasonable for the agency simply to assume

that low-level Aviation Department employees had

jurisdiction over the historic sites and public parks

protected by section 4(f), much less that these em-

ployees (along with the State Historic Preservation

Officer) represented all the local officials with such ju-

risdiction, as the agency’s consultation duties re-

quired.

Id. at 973–74. Here, by contrast, the FAA did not attempt to consult

with low-level employees; rather, it invited the views of the

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20-14656 Opinion of the Court 31

Secretary and of the Director of the Office of Resilience and Coastal

Protection of the Florida Department of Environmental Protec-

tion.

Nor is this a case where the FAA offered “no evidence that

[it] ever consulted with the Cities regarding the affected section 4(f)

properties the FAA identified.” City of Los Angeles v. Dickson, No.

19-71581, 2021 WL 2850586, at *2 (9th Cir. July 8, 2021). The FAA’s

extensive outreach efforts satisfy Section 4(f)’s consultation provi-

sion. It provided advance notice of its intent to prepare a draft en-

vironmental assessment, and it distributed the notice to more than

200 state and local public officials throughout South Florida, in-

cluding all the local government Petitioners, along with many fed-

eral officials. AR 36 at A-1 to A-16; AR 36 at A-14 (the City of North

Miami, Mayor Joseph Smith; id. at A-13 (the Village of Indian

Creek, Mayor Bernard Klepach; id. at A-15 (the Town of Surfside,

Mayor Daniel Dietch; id. at A-12 (the Village of Biscayne Park,

Mayor Tracy Truppman); id. at A-14 (the City of North Miami

Beach, Mayor Anthony Defillipo); id. at A-14 (the Village of North

Bay Village, Mayor Brent Latham; id. at A-15 (the Town of Bay

Harbor Islands, Mayor Stephanie Bruder); see also AR 11 at A-1 to

A-16 (sending notice of revised project scope); AR 11 at A-27 to A-

38 (sending clarification about the Project’s scope).

The Petitioners have not identified -- and we have not found

-- any other case where a court has granted a petition for review

based on the FAA’s failure to fulfill its consultation duties under

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32 Opinion of the Court 20-14656

Order 1050.1F. We think the FAA complied with all of Section

4(f)’s requirements.

E.

Finally, Petitioners make the long-shot argument that the

FAA has deprived them of a constitutionally protected right to

sleep. They locate such a right in the Due Process Clause as a sub-

stantive “liberty” interest, and they say that the increase in noise

will deprive them of that liberty without constitutionally sufficient

process. The claim fails for myriad reasons.

To start, the FAA argues that Petitioner Charles Burkett and

the Petitioner Towns do not have standing to bring this claim. The

three prerequisites for Article III standing are that:

(1) the plaintiff has suffered an “injury in fact” -- an

invasion of a judicially cognizable interest, which is

(a) concrete and particularized, and (b) actual or im-

minent, not conjectural or hypothetical; (2) there be

a causal connection between that injury and the con-

duct complained of -- the injury must be fairly tracea-

ble to the challenged action of the defendant, and not

the result of the independent action of some third

party not before the court; and (3) it be likely, not

merely speculative, that the injury will be redressed

by a favorable decision.

Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019)

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). The

FAA highlights that the petition for review and Burkett’s

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20-14656 Opinion of the Court 33

declaration never mention sleep. They never allege that the FAA’s

project has disturbed their sleep, and therefore do not allege an in-

jury in fact -- at least not one that could give rise to a constitutional

sleep claim.

In response, Petitioners point to Burkett’s declaration stat-

ing that the Project has “negatively impacted [his] quality of life and

health.” Appellants’ Consol. Br., Ex. B ¶ 4. On its own, that might

be insufficient, but Petitioner Burkett also points to his public com-

ments during the notice-and-comment period. He said, “Surfside

has already experienced a noticeable increase in overhead aircraft

traffic in the last few years. This traffic has impacted our quality of

life and even has made it difficult to sleep at times. Please do not

increase the noise level or traffic level over Surfside, Florida.” Final

EA, Appendix J-2, p.185. Although this comment is found in the

administrative record, rather than in the petition for review or at-

tached declarations, we have held, in a case involving a petition for

review, that “if we have been presented with ‘facts beyond the four

corners’ of the pleading that are relevant to the question of stand-

ing, we may consider them.” Corbett, 930 F.3d at 1228 (citation

omitted). Burkett’s public comment that air traffic has made it “dif-

ficult to sleep” is a concrete, particularized injury, fairly traceable

to the FAA, and redressable by a favorable decision from this

Court. Reading the petition for review together with Burkett’s

public comments, we think Burkett has said just enough to show

Article III standing.

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34 Opinion of the Court 20-14656

The municipality Petitioners, however, cannot establish

standing. Their theory of standing is premised on the alleged harm

to their residents. By invoking the interests of their residents, the

municipalities are attempting to sue the FAA under a parens patriae

theory. The problem for the municipalities is that “[a] State does

not have standing as parens patriae to bring an action against the

Federal Government.” Alfred L. Snapp & Son, Inc. v. Puerto Rico,

ex rel., Barez, 458 U.S. 592, 610 n.16 (1982). And “[a]s municipali-

ties derive their existence from the state and function as political

subdivisions of the state, presumably they too cannot sue the fed-

eral government under the doctrine of parens patriae.” City of

Olmsted Falls v. FAA, 292 F.3d 261, 268 (D.C. Cir. 2002). See Ap-

pellants’ Consol. Br., Ex. A at 101 ¶ 3, 104 ¶ 3, 107 ¶ 3, 110 ¶ 3, 113

¶ 3 (explaining that each municipality’s authority comes from Flor-

ida’s Constitution and state laws). Only Burkett has standing to

pursue the lack of sleep claim.

But Burkett’s claim fails on its merits. He brings a proce-

dural due process claim under the Fourteenth Amendment (which,

as he admits in his reply brief, should be the Fifth Amendment be-

cause the FAA is an agency of the federal government) alleging that

the government has deprived him of a constitutionally protected

liberty -- the right to sleep. Putting aside, for the moment, the

threshold problem that the federal courts have not recognized a

right to sleep in the Due Process Clause, Burkett is entitled to no

additional procedural due process here. The FAA’s Metroplex Pro-

ject is clearly legislative, not adjudicative in nature, and “if

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20-14656 Opinion of the Court 35

government action is viewed as legislative in nature, property own-

ers generally are not entitled to procedural due process.” 75 Acres,

LLC v. Miami-Dade Cnty., 338 F.3d 1288, 1294 (11th Cir. 2003); see

also Jones v. Governor of Fla., 975 F.3d 1016, 1048 (11th Cir. 2020)

(emphasis in original) (explaining that when the State deprives per-

sons of liberty through the legislative process, “the affected persons

are not entitled to any process beyond that provided by the legisla-

tive process”).

We have described legislative action as “general laws that

apply to more than a few people,” whereas we have described ad-

judicative action as concerning “a relatively small number of per-

sons who are exceptionally affected, in each case upon individual

grounds, by the state action.” Id. (citation and quotation marks

omitted). The Metroplex Project plainly is not an adjudication.

The FAA acted pursuant to statutory authorization, planned for a

prospective project, and affected the “rights” of tens of millions of

people. Thus, Burkett’s procedural due process claim fails. But

even if Burkett were otherwise entitled to procedural due process

about this matter, the only place we have found any reference to a

right to sleep is in the Eighth Amendment. See, e.g., Walker v.

Schult, 717 F.3d 119, 126 (2d Cir. 2013); Harper v. Showers, 174

F.3d 716, 720 (5th Cir. 1999). The Petitioners point to no case --

and have we found none -- locating a constitutional right to sleep

in substantive due process.

***

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36 Opinion of the Court 20-14656

The FAA engaged in exhaustive study of the South-Central

Florida Metroplex Project’s impact on the environment and noise

levels in the affected area, and it found no significant impact. It also

provided ample opportunity for the various stakeholders to learn

about and comment on the project, and complied with all proce-

dural requirements.

Accordingly, we DENY the consolidated petition for review.