John S. Lowman, IV v. Federal Aviation Administration

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14476

____________________

JOHN S. LOWMAN, IV,

HOLLY LOWMAN,

RICK BRIAN STEVENS,

MARYANNE STEVENS,

JABIN BONNETT,

Petitioners,

versus

FEDERAL AVIATION ADMINISTRATION,

FEDERAL AVIATION ADMINISTRATOR,

Respondents,

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2 Opinion of the Court 21-14476

CITY OF LAKELAND, FLORIDA,

Intervenor-Respondent.

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. FAA: FONSI/ROD

____________________

Before ROSENBAUM, BRANCH, and BRASHER, Circuit Judges.

BRANCH, Circuit Judge:

The City of Lakeland, Florida, (“City”) owns and operates

the Lakeland Linder International Airport (“Airport”). To improve

the Airport’s financial performance and boost economic

development, the City invested in projects—approved by the

Federal Aviation Administration (“FAA”)—to enhance the Airport.

The City’s plan worked; it landed a deal to lease the Airport’s

newly-constructed air cargo area to Amazon.com Services, Inc.

(“Amazon”).

Then, to further accommodate Amazon, the City sought

FAA approval of a second set of expansion projects (“Phase II”).

The FAA reviewed an Environmental Assessment and issued a

Finding of No Significant Impact/Record of Decision, which

greenlighted Phase II.

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Petitioners, a group of five individuals, filed this petition for

review, claiming that the FAA violated the National Environmental

Policy Act (“NEPA”) during its Phase II approval process.

Petitioners assert that the FAA violated NEPA by (1) segmenting its

review of a single Airport development project into multiple,

smaller projects to make the project’s environmental effect appear

less significant, (2) failing to consider the project’s cumulative

effects, and (3) failing to analyze all air quality impacts. The FAA

responds that, as an initial matter, Petitioners cannot bring this

petition for review because they lack standing and did not exhaust

their administrative remedies. Alternatively, the FAA contends that

it did not violate NEPA, and the petition for review should be

denied.

After careful review, and with the benefit of oral argument,

we conclude that Petitioners have standing and did not fail to

exhaust their administrative remedies. Thus, we must consider the

merits of their petition for review. Petitioners, however, fall short

on the merits because it is clear that the FAA satisfied NEPA’s

requirements. Accordingly, we deny the petition for review.

I. Background

A. NEPA Overview

We start with an overview of NEPA to provide context for

Petitioners’ arguments.

NEPA, one of the nation’s first large-scale environmental

statutes, was passed in part to “declare a national policy which will

encourage productive and enjoyable harmony between man and

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his environment,” “prevent or eliminate damage to the

environment,” and “enrich the understanding of the ecological

systems and natural resources important to the Nation.” 42 U.S.C.

§ 4321 (quotation omitted). In broad strokes, NEPA requires

federal agencies to assess the environmental effects of certain

proposed actions. Id. § 4332. And, to ensure that NEPA was

implemented properly, the statute created the Council on

Environmental Quality (“CEQ”). Id. § 4344.

NEPA is not results-oriented; rather, its procedural

mechanisms were designed such that agencies must “follow a

certain [decision-making] process” when evaluating proposed

actions. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1361 (11th Cir.

2008). CEQ’s regulations direct federal agencies to evaluate

different proposed actions through different processes. 1

First, for proposed actions “likely to have significant effects”

on the “quality of the human environment,” an agency must

prepare an Environmental Impact Statement (“EIS”). 42 U.S.C.

§ 4332(2)(C); 40 C.F.R. § 1501.3(a)(3). EISs “shall provide full and

fair discussion of significant environmental impacts and shall

1

While the FAA was reviewing Phase II, CEQ amended its NEPA regulations.

See Update to the Regulations Implementing the Procedural Provisions of the

National Environmental Policy Acy, 85 Fed. Reg. 43304-01 (July 16, 2020).

Under 40 C.F.R. § 1506.13, the amended regulations apply to NEPA processes

initiated “after September 14, 2020.” For ongoing reviews, agencies have

discretion to apply the new regulations or those previously in effect. Here,

the FAA “decided to apply the regulations in effect” in February 2020 when it

initiated the NEPA process in this case.

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inform decision makers and the public of reasonable alternatives

that would avoid or minimize adverse impacts or enhance the

quality of the human environment.” 40 C.F.R. § 1502.1. EISs must

go through a public comment period. See, e.g., id. § 1506.11(d)

(“[A]gencies shall allow at least 45 days for comments on draft

[EISs].”).

Second, for proposed actions that are “not likely to have

significant effects or [for which] the significance of the effects is

unknown,” an Environmental Assessment (“EA”) should be

prepared rather than an EIS. Id. § 1501.5. EAs essentially serve an

intermediary function—requiring that the agency “[b]riefly

provide sufficient evidence and analysis for determining whether

to prepare an [EIS] or a finding of no significant impact

[(“FONSI”)] . . . .” Id. § 1501.5(c)(1). In other words, EAs inform

an agency as to whether a more in-depth analysis is needed because

the proposed action will have significant effects—leading to an

EIS—or whether no further study is needed because the proposed

action will not have significant effects—leading to a FONSI. 2 Id.;

see also id. § 1501.6(a)–(c) (“An agency shall prepare a [FONSI] if the

agency determines, based on the [EA], not to prepare an [EIS]

because the proposed action will not have significant effects.”).

Irrespective of its role in the NEPA decision tree, each EA must

“[b]riefly discuss the purpose and need for the proposed action,

2

When an agency makes its decision, it is required to “prepare and timely

publish” a Record of Decision (“ROD”). 40 CFR § 1505.2(a). Here, the Phase

II FONSI and ROD were published together.

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alternatives [to the proposed action] . . . and the environmental

impacts of the proposed action and alternatives . . . .” Id.

§ 1501.5(c)(2). EAs are not strictly required to go through public

comment like EISs. Id. § 1501.5(e) (“Agencies shall involve the

public . . . to the extent practicable in preparing [EAs].”); see also

FAA Order 1050.1F § 6-2.2(g) (“Circulation of a draft EA for public

comment should be considered but is optional at the discretion of

the responsible FAA official.”).

Third, and finally, a small subset of proposed actions that

“normally do not have a significant effect” are categorically

excluded from NEPA review. 40 C.F.R. §§ 1501.3(a)(1), 1501.4. In

simpler terms, federal agencies determine “categories of actions”

that normally do not have significant environmental impacts, and

if a proposed action falls within such a category, then the action is

allowed to proceed without being analyzed through a more

onerous environmental review (such as an EIS or EA). Id.

§ 1501.4(a); see also FAA Order 1050.1F § 5-6 (listing actions that the

FAA has categorically excluded from fuller environmental review).

With this general NEPA review framework in mind, we turn

to the relevant procedural history in this case.

B. The FAA’s Review of Phase I

There is more groundwork to be laid. Petitioners challenge

the FAA’s Phase II FONSI/ROD, but the FAA’s previous

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consideration of other Airport enhancements (i.e., the “Phase I”

developments) is an important part of their larger argument. 3

In 2015, the City commissioned an Intermodal Feasibility

Study to assess development opportunities for the Airport. The

feasibility study indicated that the Airport was “ideally suited to

undertake air cargo activity” because of its location, runway

length, and logistics capabilities, among other advantages. The

study opined that the Airport “could become a secondary

international air cargo hub for one or more of the air cargo carriers

serving [Miami International Airport].” But, for the Airport to

attract this industry, the study indicated that it would have to

construct air cargo facilities and invest in other improvements.

Accordingly, the City proposed a new Airport Layout Plan

(“ALP”) to the FAA. 4 The Phase I EA described the project as

3

We note from the outset that the parties refer to the construction projects at

the Airport as Phase I and Phase II. These terms were not used when the FAA

was making its so-called Phase I determination. That is, when the FAA

analyzed the City’s initial 2016 proposal that we refer to as Phase I, the FAA

did not view that project as the first part of a larger build-out. Rather, it viewed

the proposal as a regular project in the normal course. The FAA was only

informed of the City’s “need for [Phase II] during construction of the initial

[Phase I] air cargo facility.” Nevertheless, for ease of reference, we also refer

to the projects as Phase I and Phase II.

4

ALPs are regulatory documents that reflect “the agreement between the FAA

and the [City] regarding the proposed allocation of airport areas to specific

operational and support functions.” Airport Compliance Manual, FAA Order

5190.6B, Change 2, § 7.18 (Dec. 9, 2022); see also 49 U.S.C. § 47107(a)(16). A

“sponsor,” in this case the City, that is seeking to develop or make changes to

an airport is required to complete an ALP that “depict[s] the airport’s

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“consist[ing] of constructing and operating up to three aircraft

maintenance, repair and overhaul [] facilities and one air cargo

facility[.]” The construction of these four buildings was projected

to “total approximately 223,000 square feet.” Other major project

elements included constructing “approximately 78,400 yards of

aircraft parking apron, apron taxilanes, and a connector taxiway”

as well as “[c]onstruction of on-airport roads.” 5 These

boundaries, including all facilities, and to identify plans for future

development on its ALP.” Id. As the FAA indicated in the Phase I EA, its

unconditional approval of an ALP is a “federal action” subject to NEPA

review: “The specific federal actions under consideration [in Phase I]

include . . . [u]nconditional approval of the portion of the [ALP] that depicts

the components of the Proposed Project and its connected actions pursuant to

49 U.S.C. Sections 40103(b), 44718, and 47107(a)(16), and Title 14 CFR Parts

77, 157, and 139.”

5

Additionally, the Phase I EA’s “Related Project Elements” section included:

• Site preparation, including demolition of existing

pavement, clearing and grubbing, excavation and

embankment, and grading.

• Install new taxiway edge lights and airfield directional

signs on the new connector taxiway.

• Construction [of] an aircraft staging apron and wash rack

(with oil/water separator).

• Install exterior pole-mounted and building-mounted

lighting for the new aircraft maintenance hangars, air

cargo building, access roads, vehicle parking lots, and

portions of aircraft parking aprons.

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developments were projected to result in 820 additional “air cargo

aircraft operations” per year by 2023.

After a draft EA for Phase I was made available for public

review and comment, the FAA created a final EA and issued the

Phase I FONSI/ROD approving the proposed Airport

developments. The FONSI/ROD laid out the project’s component

parts, purpose, time frame, and potential alternatives to the

proposed development, including that the proposed projects would

not be developed at all (also known as the “No Action

Alternative.”). In pertinent part, the FONSI stated that “[n]o

significant air quality, noise, or traffic impacts would occur” as a

result of the proposed action, that there were no substantial

cumulative effects associated with the development, and that,

despite being available for public review and comment, “[n]o public

comments were received on the Draft EA.” In sum, the FAA

determined that “the proposed Federal action [was] consistent with

existing national environmental policies and objectives as set forth

• Extend utilities to the development sites, including

electric, natural gas, water, sanitary sewer, and

communications, and other related infrastructure.

• Construct stormwater management system

improvements (e.g., inlets, swales, pipes, berms) and

modify existing stormwater management system

conveyances.

• Install security fencing and controlled access vehicle gates

and pedestrian gates.

• Install landscaping[.]

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in section 101 of [NEPA] and other applicable environmental

requirements and [would] not significantly affect the quality of the

human environment or otherwise include any condition requiring

consultation pursuant to [NEPA].”

C. The FAA’s Revalidation of Phase I

During the pendency of the FAA’s NEPA review of Phase I,

the City was engaged in preliminary talks with Amazon about

bringing Amazon’s air cargo operations to the Airport. After Phase

I was approved but before construction commenced, however,

Amazon notified the City that it would require a different

orientation of the air cargo facility and it anticipated a greater

number of incoming and outgoing flights. The City notified the

FAA of these two changes via letter in 2018. As to the site’s

orientation, the City stated: “Discussions with possible tenants

ha[ve] determined that it would be more advantageous to their

operations to orient the cargo building the opposite direction on

the site.” 6 And it changed its projections for the number of flights

that would be conducted by 2023—increasing total “air cargo

aircraft operations” from 820 for the year to 5,840 for the year. In

the end, the City submitted that even with the revised site

orientation and increased flight estimate, the Phase I EA remained

accurate, and no formal reevaluation was necessary.

6

The City continued: “This revision to the site plan reduces the project

footprint slightly and also reduces the building size while allowing the site to

be used more efficiently by the proposed tenant operator(s).”

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The FAA agreed. In a letter to the City, the FAA stated:

The revised development plan would construct and

operate the same types of facilities within the same

study area evaluated in the [Phase I] EA and approved

in the [Phase I] FONSI/ROD. Other than an increase

in cargo aircraft operations, the revised development

plan did not identify any impacts that would be

materially different than those identified and

disclosed in the [Phase I] EA. . . . [T]here appears to

be no changes to the action, or new circumstances or

information, which would trigger the need for a

Supplemental EA or an [EIS].

As such, the FAA approved the changes without going through a

formal reauthorization process.

After the FAA’s revalidation of Phase I, the City

Commission unanimously approved a “Ground Lease Agreement

with [Amazon]” for air cargo operations. Construction of the air

cargo facility was completed in July 2020 and Amazon commenced

its air cargo operations. In January 2020, before Phase I

construction was completed, Amazon exercised its option to

expand the air cargo facility, which required the City to seek FAA

approval for “the expansion of the air cargo facility and related

improvements” (i.e., “Phase II”). The so-called Phase II

developments included the expansion of the existing sort facility

and office building; construction of a paved truck court, paved

vehicle lot, concrete aircraft parking apron, pavement for aircraft

ground support equipment, and a new airport access road;

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extension of Taxiway A; installation of security fencing, gates,

security checkpoints, aboveground fuel storage tanks and a fuel

farm, and airfield lighting/signage; and modification of the

Airport’s stormwater management system. 7

D. The FAA’s Review of Phase II

The FAA issued a FONSI/ROD approving Phase II after

analyzing an EA for Phase II prepared by the Airport Sponsor,

considering public comments made to the draft EA for Phase II, 8

and determining that Phase II would not have significant

environmental effects. In relevant part, as to the environmental

effect categories of air quality, noise, and cumulative impacts, 9 the

7

Not all of these projects required FAA approval, see, e.g., FAA

Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186, § 163

(codified at 49 U.S.C. § 47101) (limiting the types of airport projects that

require FAA approval), but even those projects “depend[ed] on the portions

of the project [that did] requir[e] FAA approval in order to be constructed or

operated as planned.”

8

Petitioners provided public comment to the draft EA. The Lowmans, for

example, requested in part that “the FAA [] do whatever possible to abate the

flight noise” from “Amazon flights.” Another set of Petitioners, the Stevenses,

noted a similar concern: “My appeal to each of you is be certain that this air

traffic growth is carefully measured and controlled before any further

expansion of jets flying in and out of [the Airport] is approved.” Finally,

Petitioner Bonnett expressed a concern that the increased flights and the lower

altitude at which they were required to fly would increase the risk of a

“collision between an airplane and a bird.”

9 “Cumulative impacts are those that result from the incremental impact of

the action when added to other past, present, and reasonably foreseeable

future actions, whether Federal or non-Federal. If the proposed action would

cause significant incremental additions to cumulative impacts, an EIS is

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final Phase II EA and FONSI/ROD included the following

information and analysis.

To start, after laying out the alternatives to Phase II

(including the No-Action alternative), the FAA considered the

environmental effects that Phase II would have across 15 different

categories. 10 One section dealt with cumulative impacts for which

the FONSI noted that “[t]he impacts associated with [Phase II],

when considered in addition to other cumulative projects, are not

expected to exceed thresholds that would indicate a significant

impact.” The associated cumulative effects section of the EA was

more detailed, as depicted by its table that studied the impact risk

of 40 different sub-projects in Phase II across 14 different target

categories, including air quality, noise, and hazardous materials,

and its related “cumulative impacts summary” that offered a deeper

dive on the aggregated effect in each category.

As to noise, the FAA noted that the increased air traffic

would tangibly affect the sound generated over nearby land parcels.

required.” Environmental Impacts: Policies & Procedures, FAA Order

1050.1F § 2-3.2(b)(1) (July 16, 2015).

10

Those categories included: Air Quality; Biological Resources; Climate;

Coastal Resources; DOT Act, Section 4(f) Resources; Farmlands; Hazardous

Materials, Solid Waste, and Pollution Prevention; Historical, Architectural,

Archeological, and Cultural Resources; Land Use; Natural Resources and

Energy Supply; Noise and Noise-Compatible Land Use; Socioeconomics,

Environmental Justice, and Children’s Environmental Health and Safety

Risks; Visual Effects Including Light Emissions; Water Resources (including

Wetlands, Floodplains, Surface Waters, Groundwater, and Wild and Scenic

Rivers); and Cumulative Impacts.

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But, the FAA noted that by 2027 there would only be three

additional residences within the designated noise sensitive area (the

FAA focuses its noise analysis on the “DNL 65 contour,” which

stands for a “Day-Night Average Sound Level” of 65 decibels, which

is the threshold for significant noise). Those three residences

“would not experience an increase [in sound] of 1.5 dB or greater.”

In other words, while there would be noise-related effects, those

effects would not be significant.

Finally, as to air quality, the FAA noted that “[t]he additional

aircraft operations and vehicle/truck trips associated with [Phase

II] would increase air emissions at [the Airport]; however, the

increase in emissions would not constitute a significant impact.”

And, in more technical terms, the Airport was in an attainment

area for all National Ambient Air Quality Standards (“NAAQS”),

which meant that there was no State Implementation Plan

(required for non-attainment areas) that would have presented an

additional hurdle to navigate. Stated simply, the air quality in the

Airport’s county was good, and any air quality affects from Phase

II would not be significant enough to alter that status.

E. Additional Airport Projects

In addition to the Phase I and Phase II developments, the

FAA also approved at least two related Airport projects via

categorical exclusion. The first project was to strengthen and

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rehabilitate certain runways in late 2016. The second was to

“upgrade [] the instrument landing system” in early 2021.

* * *

Petitioners brought this petition for review of the FAA’s

Phase II FONSI/ROD alleging that the FAA’s decision-making

process violated NEPA in various ways.

II. Standard of Review

“We review an agency’s final decision to determine whether

it is arbitrary and capricious.” City of Oxford v. FAA, 428 F.3d 1346,

1351 (11th Cir. 2005) (citing 5 U.S.C. § 706). “In the NEPA context,

the reviewing court must ensure that the agency took a ‘hard look’

at the environmental consequences of the project.” Id. (citing

Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.

2002)). “The agency need not have reached the same conclusion

that the reviewing court would reach” because the agency’s

decision must only have a “rational basis.” Id.; see also Van Antwerp,

526 F.3d at 1360 (“[A]n agency’s NEPA decisions are only reviewed

under the [Administrative Procedure Act’s] highly deferential

standard.”). Accordingly, the reviewing court may only overturn

the agency’s decision if:

(1) the decision does not rely on factors that Congress

intended the agency to consider; (2) the agency failed

entirely to consider an important aspect of the

problem; (3) the agency offers an explanation which

runs counter to the evidence; or (4) the decision is so

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implausible that it cannot be the result of differing

viewpoints or the result of agency expertise.

U.S. Army Corps, 295 F.3d at 1216 (citing Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

Finally, “we do not review an agency’s compliance with NEPA by

asking whether it made optimal choices; NEPA does not require

perfection.” Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669

F.3d 1203, 1215 (11th Cir. 2012) (holding that, because of this

deferential standard, “[a]ppellees’ compliance with NEPA may not

have been perfect, but it was sufficient”).

III. Discussion

In the petition for review, Petitioners argue that the FAA’s

Phase II review process was fatally flawed. Specifically, Petitioners

argue that the FAA violated NEPA in three ways: (1) improperly

segmenting the larger Airport overhaul into multiple, smaller

projects so that the overall environmental effect appeared lesser, (2)

failing to properly consider “cumulative impacts,” and (3) failing to

analyze all air quality effects from the project. The FAA responds

that Petitioners’ challenge must be dismissed because they lack

standing or, alternatively, did not exhaust their administrative

remedies. As to the merits, the FAA argues that its processes were

more than adequate to satisfy NEPA’s requirements, and, therefore,

the petition for review must be denied. We address each argument

in turn, starting with the procedural arguments (standing and

administrative exhaustion) before turning to the merits of

Petitioners’ NEPA challenge.

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A. Procedural Arguments

i. Standing

The FAA argues that Petitioners do not have Article III

standing to bring this petition because they cannot show that (1)

they have suffered a concrete and actual or imminent injury, (2) the

complained-of injury was caused by the FAA’s approval of Phase II,

or (3) the complained-of injury would be redressed by a favorable

decision. Petitioners disagree in all respects.

“We review issues of standing de novo.” See Black Warrior

Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 833 F.3d 1274, 1279 (11th

Cir. 2016).

[T]o satisfy Article III’s standing requirements, a

plaintiff must show (1) it 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 speculative, that the injury will be redressed

by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.

167, 180–81 (2000) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992)). When, as here, an individual seeks to enforce a

procedural right, “such as the right to challenge agency action

unlawfully withheld,” the standing analysis is simplified, and the

individual does not have to meet “all the normal standards for

redressability and immediacy.” Cahaba Riverkeeper v. U.S. Env’t Prot.

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Agency, 938 F.3d 1157, 1162 (11th Cir. 2019) (quotations omitted);

see also Dep’t of Educ. v. Brown, 600 U.S. 551, __ (2023) (“We have

found . . . that when a statute affords a litigant a procedural right to

protect his concrete interests, the litigant may establish Article III

jurisdiction without meeting the usual standards for redressability

and immediacy.” (quotations omitted)). Rather, in this situation,

the individual has standing “if there is some possibility that the

requested relief will prompt the injury-causing party to reconsider

the decision that allegedly harmed the litigant.” Cahaba Riverkeeper,

938 F.3d at 1162 (quotations omitted).

“To show a cognizable injury in fact in a procedural injury

case, a plaintiff must allege that the agency violated certain

procedural rules, that these rules protect a plaintiff’s concrete

interests and that it is reasonably probable that the challenged

action will threaten these concrete interests.” Ouachita Watch

League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006). For example,

we held that an allegation that the National Forest Service

“shirked” its duties under NEPA “easily” satisfied the injury

requirement because “[i]t is well settled that, in a NEPA suit, ‘a

cognizable procedural injury exists when a plaintiff alleges that a

proper EIS has not been prepared . . . when the plaintiff also alleges

a concrete interest—such as an aesthetic or recreational interest—

that is threatened by the proposed actions.’” Id. at 1169–71

(quoting Sierra Club v. Johnson, 436 F.3d 1269, 1278–79 (11th Cir.

2006)).

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“Once . . . a plaintiff has established injury in fact under

NEPA, the causation and redressability requirements are generally

more relaxed.” Id. at 1172. Causation is simplified because

Petitioners “must demonstrate only that it is reasonably probable

that the challenged actions will threaten [their] concrete interests.”

Id. And redressability is simplified because this Court “has the

power to order the agency to comply” if we determine that the

FAA has failed to adhere to NEPA’s requirements. Id. at 1173.

As discussed previously, “NEPA establishes procedures that

a federal agency must follow before taking any action.” Van

Antwerp, 526 F.3d at 1360. Petitioners allege that the FAA failed to

adhere to NEPA in three distinct ways—i.e., they assert a

procedural injury. Petitioners also allege a concrete interest that is

threatened by the FAA’s action. Specifically, the Lowmans, for

example, individually declared that they reside and own property

near the Airport. They further declared that due to the

implementation of the Phase II project, the area has experienced,

and will continue to experience, increased air and truck traffic,

resulting in “increased noise impact and environmental harm” that

has “negatively impacted [their] qualify of life and health,” and

“damaged the value of [their] home and property.” Petitioner

Bonnett, who rents a residential home near the Airport, lodged

similar complaints but focused on increased truck and air traffic,

the noise related to that increased traffic, and the effect on

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petitioner’s “quality of life and health.” 11 Thus, they have satisfied

the injury in fact requirement. See Ouachita Watch League, 463 F.3d

at 1170 (“To show a cognizable injury in fact in a procedural injury

case, a plaintiff must allege that the agency violated certain

procedural rules, that these rules protect a plaintiff’s concrete

interests and that it is reasonably probable that the challenged

action will threaten these concrete interests.”).

Because it is “reasonably probable” that Phase II will affect

their “concrete interest” in the air quality, noise, and traffic in their

area and property values, Petitioners have satisfied the causation

and redressability requirements as well. Ouachita Watch, 463 F.3d

at 1172. And, because we can require the FAA to redo their NEPA

analysis if we determine that it is incomplete or otherwise

insufficient, this harm is redressable. See 5 U.S.C. § 706 (providing,

in pertinent part, that reviewing courts shall “compel agency action

unlawfully withheld . . . .”).

In sum, Petitioners have satisfied the constitutional standing

requirements for procedural injuries. 12 See Cahaba Riverkeeper, 938

11 The Stevenses did not provide an individual declaration detailing their

injuries. Because the Lowmans and petitioner Bonnett have proven standing

through their declarations and comments, however, we proceed to analyze

the petition at issue. See generally Town of Chester v. Laroe Ests., Inc., 581 U.S.

433, 439 (2017) (“At least one plaintiff must have standing to seek each form

of relief requested in the complaint.”).

12 The FAA does not challenge whether Petitioners have a valid cause of action

to bring this petition for review. Accordingly, we simply note that (a) NEPA

challenges are brought under the Administrative Procedure Act (“APA”), (b)

the APA requires only a “final agency action” that adversely affects Petitioners

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F.3d at 1162 (“[W]hen a litigant is vested with a procedural right,

that litigant has standing if there is some possibility that the

requested relief will prompt the injury-causing party to reconsider

the decision that allegedly harmed the litigant.” (quotations

omitted)).

ii. Administrative Exhaustion

The FAA also argues that Petitioners’ challenge must be

dismissed because they “did not raise any of the issues presented in

[their] opening brief during the administrative process” (i.e., the

public comment period). Petitioners counter by pointing to two

exceptions to the general rule that Petitioners must exhaust their

administrative remedies by raising relevant objections during the

agency’s public comment period. According to petitioners, those

two exceptions are that “commenters need not point out an

environmental assessment’s flaw if it is obvious” and “a

commenter does not waive an issue if it is otherwise brought to the

agency’s attention.”

As an initial matter, the FAA is correct that the general rule

is that NEPA petitioners must exhaust their administrative

to show standing, and (c) “[i]t is well settled that a final [environmental

analysis] or the record of decision issued thereon constitute[s] final agency

action.” Ouachita Watch, 463 F.3d at 1173 (quotations omitted); see also Newton

v. Duke Energy Florida, LLC, 895 F.3d 1270, 1274 n.6 (2018) (“Under [Lexmark

International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)], the

[standing] question is whether [Petitioners] have a valid cause of action . . . .”).

Petitioners easily satisfy these requirements.

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22 Opinion of the Court 21-14476

remedies before petitioning this Court. Under 49 U.S.C. § 46110(d),

we have jurisdiction to “consider an objection to an order of

the . . . Administrator of the [FAA] only if the objection was made

in the proceeding conducted by the . . . [FAA].” Further, “[u]nder

ordinary principles of administrative law, a reviewing court will not

consider arguments that a party failed to raise in timely fashion

before the administrative agency.” Vidiksis v. EPA, 612 F.3d 1150,

1158 (11th Cir. 2010); see also Zukas v. Hinson, 124 F.3d 1407, 1410

n.6 (11th Cir. 1997) (noting that “[b]ecause [petitioner] failed to

raise [two specific] objections before the [administrative law judge]

or [National Transportation Safety Board], we need not address

them”); Bradshaw v. Fed. Aviation Admin., 8 F.4th 1215, 1222 (11th

Cir. 2021) (“Because Bradshaw failed to raise [his argument that the

FAA followed improper procedures in terminating his designation]

before the FAA appeal panel, we cannot consider it.”). But there is

an exception if “there was a reasonable ground for not making the

objection in the proceeding.” 49 U.S.C. § 46110(d). “[T]he agency

bears the primary responsibility to ensure that it complies with

NEPA, and an EA’s or an EIS’[s] flaws might be so obvious that

there is no need for a commentator to point them out specifically

in order to preserve its ability to challenge a proposed action.”

Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 765 (2004) (dicta)

(internal citation omitted).

During the public comment period for the Phase II draft EA,

Petitioners participated in the administrative process by providing

comments expressing general concern over the additional Airport

expansion. The Lowmans primarily expressed concern about the

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21-14476 Opinion of the Court 23

increase in flight noise and Bonnett focused on the risk that the

increase in flights posed to the bird population. These comments,

however, touched on generalized issues that are not the subject of

this petition. Thus, we must analyze the discrepancy between

Petitioners’ generalized comments during the public review period

and their more specific arguments as part of this petition to

determine whether there was a “reasonable ground” for Petitioners

not to raise the arguments they currently make because the FAA

committed an “obvious” mistake in its NEPA review. 49 U.S.C. §

46110(d); Public Citizen, 541 U.S. at 765.

Under NEPA, the FAA is required to conduct certain

reviews, 42 U.S.C. § 4332(2)(C), and it has regulations mandating

that it consider the issues that Petitioners raise in this petition.

Specifically, on segmentation, the FAA’s regulations provide that

“[a] proposed action cannot be segmented by breaking it down into

small component parts to attempt to reduce impacts.” FAA Order

1050.1F § 2-3.2(b)(1). Similar requirements exist for analyzing

cumulative impacts, id. § 2-3.2(b)(2) (providing that “[c]umulative

actions [that] when viewed with other proposed actions, have

cumulatively significant impacts” “should be discussed in the same

EIS [as one another]”), and the effect on air quality, id. § 4-3.3

(exhibit 4-1) (describing the significant threshold for air quality as

when an “action would cause pollutant concentrations to exceed

one or more of the National Ambient Air Quality Standards”).

Thus, because the FAA—according to its own regulations—was

supposed to have analyzed Phase II’s cumulative impacts and effect

on air quality as well as refrain from segmenting the Airport

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24 Opinion of the Court 21-14476

projects, the Petitioners were not obligated to point out obvious

flaws in the FAA’s NEPA analysis on these issues. Accordingly, we

conclude that Petitioners had “reasonable grounds” for not raising

their instant arguments previously. 13 49 U.S.C. § 46110.

B. Merits Arguments

Having concluded that Petitioners have standing and having

addressed the exhaustion issue, we now consider Petitioners’ main

argument that the FAA failed to adhere to NEPA’s requirements in

issuing its FONSI/ROD which greenlighted Phase II. Petitioners

look back in time to argue that the FAA improperly segmented the

various Airport projects and conducted an inadequate cumulative

impacts analysis. They also argue that the FAA failed to properly

analyze Phase II’s potential effect on air quality. We address each

argument in turn.

i. Segmentation

In simple terms, Petitioners argue that the Airport

renovations were improperly considered as separate projects rather

13

We note as well that this conclusion is consistent with the general purpose

of administrative exhaustion—notice. See, e.g., Chandler v. Crosby, 379 F.3d

1278, 1287 (11th Cir. 2004) (“[T]he purpose of administrative exhaustion, . . .

is ‘to put the [administrative authority] on notice of all issues in contention

and to allow the [authority] an opportunity to investigate those issues.’”

(alterations in original) (quoting Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir.

1985)). Here, the FAA was required to consider segmentation, cumulative

impacts, and air quality and, therefore, was on notice of those predominant

issues even if Petitioners never raised those arguments during the public

comment period.

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than one larger Airport build-out (i.e., Phase I, Phase II, and the

other projects in-between were really just subcomponents of one

larger Airport project that the FAA should have analyzed together

to determine the true environmental impact). But Petitioners’

argument lacks evidence and boils down to an untimely challenge

against the FAA’s previous decisions.

The FAA directs its officials to consider “connected actions

and other proposed actions or parts of proposed actions that are

related to each other closely enough to be, in effect, a single course

of action” in “the same EA or EIS.” FAA Order 10501.F § 2-3.2(b)(1)

(citing 40 C.F.R. §§ 1502.4(a), 1508.25(a)(1)); see also Kleppe v. Sierra

Club, 427 U.S. 390, 410 (1976) (explaining that “[a] comprehensive

impact statement may be necessary” in some cases,

including “when several [proposed actions] that will have

cumulative or synergistic environmental impact upon a region are

pending concurrently before an agency”). Relatedly, “[a] proposed

action cannot be segmented by breaking it down into small

component parts to attempt to reduce [environmental] impacts.”

FAA Order 10501.F § 2-3.2(b)(1) (citing 40 C.F.R. § 1508.27(b)(7));

see also Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps

of Eng’rs., 87 F.3d 1242, 1247 (11th Cir. 1996) (noting that “the

[Army Corps of Engineers] cannot ‘evade [its] responsibilities’

under [NEPA] by ‘artificially dividing a major federal action into

smaller components, each without a “significant” impact’” (citing

Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987)));

see also Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C.

Cir. 1987) (“The rule against segmentation was developed to

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26 Opinion of the Court 21-14476

[e]nsure that interrelated projects the overall effect of which is

environmentally significant, not be fractionalized into smaller, less

significant actions.”).

We have also recognized, however, that “just because [a]

project at issue connects existing highways does not mean that it

must be considered as part of a larger highway project; all roads

must begin and end somewhere.” Pres. Endangered Areas of Cobb’s

History, Inc., 87 F.3d at 1247. In other words, the simple fact that

two projects are related does not mean that those projects must

necessarily be considered as part of one larger project. Similarly,

proving that a project was segmented requires more than merely

showing that a series of related projects were approved

sequentially—after all, EA’s and EIS’s are “forward-looking

instrument[s]” designed “to assist in evaluating proposals for major

federal action,” and we must remain mindful that we, of course,

are reviewing them with the added benefit of hindsight. See Aertsen

v. Landrieu, 637 F.2d 12, 19 (1st Cir. 1980) (quotation omitted); see

generally Churchill Cnty. v. Norton, 276 F.3d 1060, 1082 (9th Cir. 2001)

(rejecting a segmentation claim because “[p]laintiffs [did] not show

that the [agency] acted arbitrarily or capriciously”). Indeed, for an

agency to segment a larger project into component parts, the

agency would necessarily have to know about the entire proposal

on the front end. See City of Oxford, 428 F.3d at 1356 (recognizing

this timing disparity in a similar context and determining that

because there was “no concrete plan to consider” and little

indication that the sponsor planned to construct a new building,

“investigators and researchers would be forced to analyze the

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21-14476 Opinion of the Court 27

environmental impact of a project, the parameters and specifics of

which would be a mere guess”).

To review, a simplified timeline of the project approvals at

issue in this case is as follows. Phase I was approved in 2016. After

two years of inaction, Phase I—including the changes to the

orientation of the air cargo facility and increase in flight traffic—

was revalidated in 2018. The FAA also approved a runway

rehabilitation project via categorical exclusion in 2019. The

projects approved in Phase I, such as the air cargo facility, became

operational in 2020. The FAA approved another project—the

upgrade of the instrument landing system—via categorical

exclusion in early 2021. Finally, Phase II was approved in late

2021. 14

We note that Petitioners’ challenge, in many ways, boils

down to an untimely objection to the FAA’s approval of Phase I

(and/or the other Airport projects that were previously approved

via categorical exclusion). That is, Petitioners’ arguments are

focused on the past, not the actual processes of Phase II, which is

the only action we are empowered to review. See 49 U.S.C.

§ 46110(a) (limiting the time period for filing a petition for review

of the FAA’s orders to “no[] later than 60 days after the order is

issued”). Thus, to the extent that Petitioners are actually

challenging Phase I or other previous approvals, such challenges

are untimely and inappropriate. See, e.g., Clayton Cnty. v. FAA, 887

14

Petitioners also reference the construction of a fuel farm. That project,

however, is already included as part of Phase II’s ALP and the EA.

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28 Opinion of the Court 21-14476

F.3d 1262, 1267 n.3 (2018) (“Petitioners do not challenge the FAA’s

[two-year old] policy clarification, likely because such a challenge

would be untimely.” (citing 49 U.S.C. § 46110(a)).

Turning to Phase II itself, the ultimate analysis of the

segmentation claim proves simple. Petitioners’ claim fails because

they offer no evidence that the FAA broke Phase I, Phase II, and the

other Airport-related projects apart to avoid a more onerous

environmental review. To start, Petitioners’ argument that the

Airport projects are connected actions that lack independent utility

(and thus should have been considered together rather than as

separate projects) is entirely conclusory. While the projects were

proposed and approved sequentially, that fact alone is not enough

for us to conclude that the FAA improperly segmented these

projects. Rather, looking to the record, it is clear Phase II was not

pending before the FAA (or seriously contemplated) when it

approved Phase I. See Kleppe, 427 U.S. at 410 (focusing on the need

for a “comprehensive impact statement” when multiple related

actions are “pending concurrently before an agency”). Indeed, the

only reference to future Airport projects at the time was the

observation in the Phase I EA that future projects could be

undertaken “as demand dictate[d].” For obvious reasons, this one-

off observation about an entirely speculative, not-yet-proposed

future development is insufficient to prove that the FAA arbitrarily

and capriciously violated NEPA’s mandate against segmentation.

See City of Oxford, 428 F.3d at 1356 (guarding against holdings that

would require “investigators and researchers” to “analyze the

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21-14476 Opinion of the Court 29

environmental impact of a project, the parameters and specifics of

which would be a mere guess” (emphasis added)).

The deficiencies of Petitioners’ challenge are even clearer

when compared to the facts of a case they cite repeatedly—

Delaware Riverkeeper Network v. Federal Energy Regulatory

Commission, 753 F.3d 1304 (D.C. Cir. 2014). In Delaware Riverkeeper,

Tennessee Gas Pipeline Company, L.L.C., submitted four separate

project proposals to the Federal Energy Regulatory Commission

(“FERC”) for upgrade work on one section of pipeline. Id. at 1308.

FERC’s approval of one project (the “third upgrade project,” to use

the D.C. Circuit’s terminology) was challenged on segmentation

grounds. Id. The D.C. Circuit held, in part, that FERC improperly

segmented the proposed actions in part because “the first upgrade

project was under construction” and “the applications for the

second and fourth upgrade projects were pending before FERC”

when it approved the project at issue. Id. at 1308, 1318.

Whereas FERC considered the pipeline projects separately

despite the fact that they were pending at the same time, there is

no evidence in the instant case that the FAA manipulated its

processes in a similar way. Phase I was approved in 2016 and Phase

II was not even proposed until 2020 when the construction of

Phase I was well underway. 15 While Delaware Riverkeeper may be a

15

And while there were other projects that were approved via categorial

exclusion, the consideration of those projects did not temporally overlap with

the FAA’s consideration of Phase II (or were otherwise properly treated as

categorical exclusions) and did not need to be considered as part of Phase II.

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30 Opinion of the Court 21-14476

prime example of segmentation, it is clear that the FAA’s actions in

the instant case in no way resemble FERC’s violative processes in

that case.

Further, to the extent that Petitioners’ segmentation

arguments capitalize on hindsight (i.e., looking back at the Airport

developments since 2016 to make it appear like the FAA pushed the

Airport projects through in piecemeal fashion), we first

reemphasize that NEPA’s environmental assessments are forward-

looking and created to provide agency actors with up-to-date

information to aid their decision-making. Landrieu, 637 F.2d at 19;

see also Nat’l Wildlife Fed. v. Appalachian Reg. Comm’n, 677 F.2d 883,

890 (D.C. Cir. 1981) (“Where, for instance, substantial construction

of a project has already been realized, the ‘forward-looking’

criterion suggest that where new construction is necessary to finish

off work already done, the new work does not trigger an obligatory

EIS evaluating program-wide effects.”). And second, to reiterate,

the fact that a series of projects have been approved over a set

period of time is not enough—without other evidence—to prove

that an agency was improperly segmenting its review process in

contravention of NEPA. Here, Petitioners have presented no such

evidence.

Petitioners offer two additional arguments on segmentation.

First, Petitioners rely on Western North Carolina Alliance v.

North Carolina Department of Transportation, 312 F. Supp. 2d 765

(E.D.N.C. 2003), to argue that the Phase I and Phase II projects

were impermissibly segmented because “[t]he lease agreement

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21-14476 Opinion of the Court 31

between Amazon and the City made the expansion of the facility

inevitable,” thereby effectively eliminating all viable alternatives to

the project. Petitioners essentially argue that—if (a) the approval

of Action 1 would (b) also require Action 2 to be undertaken, then

(c) there is no true “alternative” to Action 2, so that (d) Action 1

and Action 2 should be considered together and not segmented

from one another. In other words, because the lease to the air

cargo facilities gave Amazon a right of expansion, and if Amazon

exercised that right, the City could not refuse the expansion, the

FAA was required to analyze Phase I and Phase II together.

Petitioners’ argument fails. The only legal support they cite

is an out-of-circuit, district court case that carries no precedential

value. See W. N.C. Alliance, 312 F. Supp. 2d 765. Regardless, that

case is distinguishable. In Western North Carolina Alliance, the North

Carolina Department of Transportation addressed interconnected

road projects such that “[i]f I-4400 [was] expanded to six lanes

[Action 1], then I-4700 . . . [would] have to be expanded as well

[Action 2].” Id. In other words, there was no real alternative to

Action 2 because the outcome was predetermined. In the instant

case, however, the City’s contract with Amazon in no way required

the FAA to approve Phase II. That is, while the City may have been

contractually obligated to go along with the expansion, the FAA

was free to fully consider each alternative and, ultimately, deny

Phase II if it determined that the project’s environmental effects

were too significant.

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32 Opinion of the Court 21-14476

Second, Petitioners argue that the FAA should have prepared

a “supplemental [EA for Phase I], not a separate [EA for Phase II].”

Supplemental environmental assessments for a project are required

if: “(1) there are substantial changes to the proposed action that are

relevant to environmental concerns, or (2) there are significant new

circumstances or information relevant to environmental concerns

and bearing on the proposed action or its impacts.” See FAA Order

1050.1F, § 9-3; Van Antwerp, 526 F.3d at 1360 (“In some cases, after

an agency publishes a FONSI or an EIS, but before any action is

taken, the proposed action changes . . . [so] the agency must make

an additional NEPA determination” and may have to prepare a

supplemental environmental analysis). The instant case, however,

was never a candidate for a supplemental analysis because the

Phase II project was not an addition to a pending proposed action

but rather an all-new proposal—indeed the Phase I project had

already been implemented. Thus, a supplemental EA to Phase I

was not required. And, to the extent that Petitioners take issue

with Phase I, we have explained that such a challenge is untimely.

For all these reasons, Petitioners’ segmentation argument

fails.

ii. Cumulative Impacts

Next, Petitioners argue that the FAA failed to “take into

consideration the cumulative impact of its past actions.” They

argue that the FAA failed to follow NEPA because the FAA’s Phase

II analysis did not adequately account for the cumulative impacts

of (a) Phase I, (b) the other Airport development projects it

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approved via categorical exclusion, and (c) Phase II. Within their

larger cumulative impacts argument, Petitioners advance four sub-

arguments: (1) the FAA’s cumulative impact analysis is inadequate,

(2) the FAA did not consider the cumulative impact of its past

actions, (3) the FAA’s use of the DNL 65 dB corridor is unduly

restrictive, and (4) the FAA’s use of the “no action” alternative is the

wrong noise baseline. We address each argument in turn.

The FAA’s regulations provide: “Cumulative impacts are

those that result from the incremental impact of the action when

added to other past, present, and reasonably foreseeable future

actions, whether Federal or non-Federal. If the proposed action

would cause significant incremental additions to cumulative

impacts, an EIS is required.” FAA Order 1050.1F § 4-2(d)(3). 16

While the regulations clearly require a cumulative impacts analysis,

they do not detail the required form of such analysis. Id.

Nevertheless, we have identified certain considerations that “[a]

cumulative impact analysis must identify,” including:

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

project 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

16

This definition of cumulative impacts is consistent with CEQ’s definition of

“cumulative impacts” that was in effect at the time of the FAA’s decision in

2020. See 40 C.F.R. § 1508.7 (2020). We note that, in 2022, CEQ’s regulations

were amended, and the term “cumulative impacts” was changed to

“cumulative effects,” and the definition (which remained the same except for

the change in terminology) was recodified in § 1508.1(g)(3) (2022).

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34 Opinion of the Court 21-14476

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

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

expected if the individual impacts are allowed to

accumulate.

City of N. Miami v. Fed. Aviation Admin., 47 F.4th 1257, 1270 (11th

Cir. 2022) (quoting Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir.

2016) (emphasis in original)). While the analysis must identify

certain considerations, the “determination of the extent and effect

of [the cumulative impact] factors, . . . is a task assigned to the

special competency of the appropriate agencies.” Kleppe, 427 U.S.

at 414. Finally, the cumulative effects must be directly correlated

with the project at issue—otherwise they are not properly

considered as part of that project’s environmental analysis. See

C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1575 (11th Cir. 1988)

(“[C]umulative impacts include only the indirect and direct effects

caused by a project” and do not include “speculation” (emphasis

omitted)).

Petitioners’ first two sub-arguments—that the FAA’s

cumulative impact analysis was inadequate and the FAA did not

consider the cumulative impact of its past actions—are so closely

related that they are properly considered together. Turning to the

cumulative impacts section of the Phase II EA, it is clear that the

FAA’s analysis was rigorous and detailed, and covered all of the

factors that we have identified as necessary to include. Specifically,

in its final Phase II EA, the FAA assessed the cumulative impacts of

40 different actions—past, present, and future—across 14 different

fields (air quality; biological resources; climate; coastal resources;

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hazardous materials; cultural resources; land use; natural

resources/energy; noise; socio-economics/environmental justice;

light emissions/visual; wetlands; floodplains; and water resources)

and determined the extent of the environmental effect on each of

these fields. Then, after conducting this analysis, the FAA

aggregated the effects to complete the cumulative effects analysis.

Accordingly, we conclude that Petitioners’ contentions that the

cumulative impacts analysis was inadequate is without merit.

Resisting this conclusion, Petitioners argue that the Phase II

EA was “unduly restrictive” because the FAA, in its analysis of noise

impacts, limited its study to the 65 DNL contour although it “knew

that the Phase II expansion would have impacts on noise levels far

beyond the boundaries of the 65 DNL contours.” Critically,

however, the FAA’s regulations provide that “[a]n airport environs

study area must be large enough to include the area within the

DNL 65 decibels (dB) contour, and may be larger.” FAA Order

1050.1F, App’x B., § B-1.3 (emphasis added). Thus, while

Petitioners may have hoped the study would span a larger area, the

FAA did exactly what it was required to do in its EA (study the area

within the DNL 65 contour).

Finally, Petitioners argue that “[the] FAA’s use of ‘no action’

conditions for its noise baseline fails to capture the impacts of noise

from [the] FAA’s actions prior to the project.” Essentially, their

argument is that the “no action” baseline (i.e., if Phase II were not

undertaken) is an insufficient comparator because it does not take

into consideration the cumulative impacts that will result from the

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36 Opinion of the Court 21-14476

previous airport projects. But, as we recognized in City of North

Miami, the FAA’s Desk Reference on Cumulative Impact Analysis

provides that “[the] FAA has discretion to determine whether, and

to what extent, information 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).” City of N.

Miami, 47 F.4th at 1271. 17 Here, as we have described, the FAA’s

cumulative effects analysis was robust, and it clears this low bar. 18

17 Petitioners rely on Grand Canyon Trust v. Federal Aviation Administration, 290

F.3d 339 (D.C. Cir. 2002). In addition to being out-of-circuit precedent, it is

distinguishable from the instant case. In Grand Canyon Trust, the FAA

conducted an EA concerning how a proposal to move an airport would affect

noise levels at a nearby park. Id. at 340. The EA concluded that the

incremental difference in air traffic noise between the two locations was

insignificant. Id. The D.C. Circuit held that the EA was arbitrary and

capricious because the EA considered only the change in noise related to flight

traffic at the different locations, without considering how the increased air

traffic noise tied in with other existing noises at the park. Id. at 345–47. But

unlike the EA in Grand Canyon Trust, the EA here accurately considered the

existing soundscape and aggregated the total noise.

18

Petitioners also invoke NEPA’s purpose to argue that the FAA’s analysis did

not provide useful information to the public. For one, the public information

component is only part of NEPA’s purpose. See Black Warrior Riverkeeper, 833

F.3d at 1278–79 (“NEPA serves the dual purpose of informing agency

decisionmakers of the environmental effects of proposed federal actions and

ensuring that relevant information is made available to the public . . . .”). And,

for two, the tables as well as the FAA’s written descriptions of the cumulative

effects do, in fact, provide extensive information to the public.

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iii. Air Quality

Petitioners’ last argument is that the “FAA violated NEPA by

failing to analyze all air quality impacts,” meaning that the FAA

should have conducted additional air quality analyses. Once again,

Petitioners’ argument is multi-faceted. We address each part of

their argument in turn.

Starting with their broadest argument, Petitioners argue

that the FAA’s air quality analysis was too limited because it did not

extend to “all air quality impacts.” Petitioners, however, lose sight

of the role of the environmental analyses under NEPA.

Specifically, an EA is intended to gauge whether there are

“significant” impacts so that (a) if there are “significant” impacts an

EIS can be created, and (b) if there are not “significant” impacts a

FONSI can be issued so that the project can proceed. See Sierra

Club, 295 F.3d at 1215 (“The EA should provide enough evidence

and analysis to guide the agency to one of two conclusions: (1) a

finding that the project will have a significant effect [which would

require the preparation of an EIS], or (2) a finding of significant

impact (‘FONSI’).”).

To bring this broader point into focus, we look to the FAA’s

regulations. For air quality, the FAA describes the “significance”

threshold in the following way: “The action would cause pollutant

concentrations to exceed one or more of the National Ambient Air

Quality Standards (NAAQS) . . . [or] increase the frequency or

severity of any such existing violations.” The FAA studied exactly

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38 Opinion of the Court 21-14476

this standard by focusing on the significance threshold to

determine if it would be surpassed:

Air Quality – Polk County is located in an attainment

area for all National Ambient Air Quality Standards

(NAAQS) for criteria air pollutants and is not subject

to the requirements of a State Implementation Plan.

Construction activities would generate temporary air

emissions at [the Airport] from equipment and

vehicle exhaust, as well as, fugitive dust during

excavation and grading activities. The EA notes

typical measures that can be taken by contractors to

reduce air emissions during construction.

Operational emissions associated with the No-Action

Alternative and the Proposed Development Project

were computed for study years 2022 and 2027 using

FAA’s Aviation Environmental Design Tool (AEDT).

The emissions inventories in Section 5.2.1.2 of the EA

compares emissions from the No-Action Alternative

and Proposed Development Project. The additional

aircraft operations and vehicle/truck trips associated

with the Proposed Development Project would

increase area emissions at [the Airport]; however, the

increase in emissions would not constitute a

significant impact.

The Proposed Development Project occurs in an area

classified as Attainment for all criteria air pollutants,

and there is no State Implementation Plan or numeric

significance threshold applicable to the Proposed

Development Project. However, the EA

demonstrated that even if stringent de minimis

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21-14476 Opinion of the Court 39

thresholds were in place for Polk County, the

anticipated air emissions would not exceed thresholds

indicating a significant impact.

The FAA, after studying the issue determined that a FONSI/ROD

was proper because Phase II would not have a significant impact.

Thus, the FAA did what it was required to do under NEPA and its

regulations interpreting NEPA. Petitioners’ contention that the

FAA should have done more is merely the expression of a policy

preference.

Petitioners do not stop there. They also cite to a passage in

FAA Order 1050.1F that provides that additional air quality analyses

are required in “extraordinary circumstances.” FAA Order 1050.1F

§ 5-2(b)(8). 19 The problem for Petitioners is that this excerpt comes

from Chapter 5, which is about Categorial Exclusions—and the

Phase II project was not a categorical exclusion. Indeed, even if this

section applied, if there was an “extraordinary circumstance,” the

proper response would be for the FAA to conduct “further analysis

in an EA or an EIS.” Thus, even if Petitioners were correct, they

would not gain anything as the FAA already prepared an EA that

did not reveal any significant air quality impacts.

19 This section of FAA Order 1050.1F provides that “[e]xtraordinary

circumstances are factors or circumstances in which a normally categorially

excluded action may have a significant environmental impact that then

requires further analysis in an EA or an EIS.” FAA Order 1050.1F § 5-2(a). It

continues to list circumstances that qualify as “extraordinary,” including: “[a]n

impact on air quality or violation of Federal, state, tribal, or local air quality

standards under the Clean Air Act . . . .” Id. § 5-2(b)(8).

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40 Opinion of the Court 21-14476

Finally, Petitioners also argue that the FAA acted arbitrarily

or capriciously in failing to discuss hazardous air pollutants

(“HAPs”) in the Phase II EA, when there were several potential

sources for HAPs in the Phase II project. Simply put, such an

analysis is outside of the FAA’s air quality requirements and was

not required for this project. 20

Accordingly, Petitioners’ arguments fail because the FAA

properly analyzed air quality according to its regulations

interpreting NEPA. 21

IV. Conclusion

Petitioners are unhappy that the FAA greenlighted Phase II

(as well as the Airport developments preceding Phase II). But we

do not vacate agency decisions over mere policy disagreements.

Upon close inspection, we deny Petitioners’ petition for review

because the record is clear that the FAA followed its regulations

20

Petitioners point us to a 2009 guidance document (Guidance for Quantifying

Speciated Organic Emissions from Airport Sources) that is not in the record.

FAA, Office of Env’t & Energy, Guidance for Quantifying Speciated Organic

Gas Emissions from Airport Sources (Sept. 2009), at 14–15. Even if we were

to consider the guidance document, we would conclude that the FAA was not

required to conduct a HAPs analysis for Phase II. The guidance provides types

of “major” projects (requiring a HAPs analysis) that are dissimilar to Phase II.

Additionally, Phase II is not located in the type of area where the guidance

document indicates that such analyses would be required (e.g., nonattainment

areas).

21

Because we agree with the FAA that Petitioners’ arguments lack merit, we

do not reach the FAA’s final argument that we “should deny [Petitioners’]

requested relief because [they] have not established that vacatur is warranted.”

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21-14476 Opinion of the Court 41

interpreting NEPA and did not improperly segment the Airport

development projects, fail to consider cumulative impacts

adequately, or neglect its air quality analysis. In other words, the

FAA did what it was supposed to do, and its review processes were

not arbitrary and capricious.

Petition DENIED.