Petition for Writ of Certiorari — Citizens Against Burlington, Inc. v. Busey

FILED

Ble SOG | SEP 9 iggy

DEFIE GF THE CLE

No. : a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

CITIZENS AGAINST BURLINGTON, INC.,

WILLIAM REUTER, DANIEL KASCH, CAROL

VAUGHAN, AND RICHARD VA*) LANDINGHAM III,

Petitioners,

Vv.

JAMES B. BUSEY IV, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

TOLEDO-LUCAS COUNTY PORT AUTHORITY

AND BURLINGTON AIR EXPRESS, INC.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JAMES M. HECKER

(Counsel of Record)

1625 Massachusetts Ave., N.W. # 100

Washington, D.C. 20036

(202) 797-8600

Attorney for Petitioners Citizens

Against Burlington, Inc., et al.

QUESTIONS PRESENTED

1. Did the D.C. Circuit err in rejecting Seventh Circuit

precedent and holding that the Federal Aviation Administra-

tion has the- authority under the National Environmental

Policy Act and the Airport and Airway Improvement Act to

allow non-federal applicants to define and control the

alternatives analyzed in the agency’s environmental impact

statement?

2. When a federal statute imposes a substantive environ-

mental obligauon on a federal agency to ensure that mitiga-

tion measures "have been taken" before a project is ap-

proved, does the agency have the authority to approve a

project and allow it to operate for years based only on a

belief that mitigation measures may be analyzed, funded and

carried out at some indefinite point in the future?

PARTIES TO THE PROCEEDING

The petitioners in the court of appeals and in this Court

are Citizens Against Burlington, Inc., William Reuter, Daniel

Kasch, Carol Vaughan, and Richard Van Landingham III.

Citizens Against Burlington, Inc. has no parent or subsidiary

company.

The respondent in the court of appeals was James B.

Busey IV, Administrator of the Federal Aviation Administra-

tion. The intervenors supporting respondent in the court of

appeals were the Toledo-Lucas County Port Authority and

Burlington Air Express, Inc.

TABLE OF CONTENTS

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Reasons for Granting the Writ ..........cccscccssccssescccczess 12

I. The D.C. Circuit Erroneously Rejected Seventh

Circuit Precedent and Severely Undermined NEPA

and the AAIA By Holding that Non-Federal Appli-

cants Can Define and Control the Alternatives

Analyzed in a Federal Agency’s EIS ................... 12

II. Since the AAIA Imposes a Substantive Envi-

ronmental Obligation on the FAA to Ensure that

Mitigation Measures "Have Ben Taken" Before

the FAA Approves an Airport Project, the FAA

Cannot Approve Such a Project and Allow It to

Operate for Years Based on a Belief that Mitiga-

tion Measures May Be Analyzed, Funded and

Carried Out at Some Indefinite Point in the

icc UsiesesuGgsbhesecetyeseciocedecssesscceces 20

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APPENDIX

A. Opinion of the U.S. Court of Appeals for the

District of Columbia Circuit (June 14, 1991)..... la

B. Judgment of the U.S. Court of Appeals for the

District of Columbia Circuit (June 14, 1991)..... 47a

C. Record of Decision of the Federal Aviation

Administration (July 12, 1990)..................2008. 49a

D. Attachment III to the Record of Decision of

the Federal Aviation Administration, Detailed Res-

ponse to Comments (July 12, 1990)(excerpts).... 117a

E. Letter dated May 2, 1990 from David L. Mar-

shall, Chairman, Burlington Air Express, to James

A. Koslosky, Director, Fort Wayne-Allen County

STE bien cckcchcdiiscrseentbescucbivicies 135a

iV

TABLE OF AUTHORITIES

Cases: Page

Andrus v. Sierra Club, 442 U.S.

I hah eer Ae Se ee y ale 16

City of New York v. U.S. Department

of Transporation, 715 F.2d 732 (2d

Or ee ae 13

Coalition for Canyon Preservation v.

Bowers, 632 F.2d 774 (9th Cir.

es ae a io aiwes b sb owe 0 cs 1]

Consumer Product Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980)........ 23

Kleppe v. Sierra Club, 427 U.S. 390

i ee so oe. 655 yas 17

Robertson v. Methow Valley Citizens

Council, 490 U.S. 332 (1989) ........ 20, 24

Strycxer’s Bay Neighborhood Council,

Inc. v. Karlen, 444 U.S. 223 (1980) ....... 19

Trinity Episcopal School Corp. v.

Romney, 523 F.2d 88 (2d Cir. 1975)........ 15

Van Abbema v. Fornell, 807 F.2d

Ce eee 13, 14

Vermom Yankee Nuclear Power Corp. v.

pa ei re 20

Statutes:

SA ae aera 2

ee ie ON hos kos a 6s 6 eee 6

eR ee Cf & ee 4, 6, 12, 17

BUS. ROR. Goats GOOG. ww wees 4

49 U.S.C. Ame. § Z20IGN)) «we ee cee. 18

49 U.3.C. App. § ZZDIGNI)): 2. kee ee eee 18

49 U.S.C. App. § 2208(b)(5) ....... 4, 6, 12, 21

EC. 5. 6 % pace S20 h. 62o<6-o~e ee 4

Regulations:

NE EI ag <6 55556 sé ote ace 6 oe 8 9

EE eer re 12, 16

ee ae 17

CEQ Guidance Regarding NEPA Regula-

tions, 48 Fed. Reg. 34263

ee yee cc et 16

Forty Most Asked Questions Concerning

CEQ’s National Environmental Policy

Act Regulations, 46 Fed. Reg.

SUee MD AP, OUED cw oe ee ce cee. 16

vi

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

CITIZENS AGAINST BURLINGTON, INC.,

WILLIAM REUTER, DANIEL KASCH, CAROL

VAUGHAN, AND RICHARD VAN LANDINGHAM ITI,

Petitioners,

Vv.

JAMES B. BUSEY IV, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

TOLEDO-LUCAS COUNTY PORT AUTHORITY

AND BURLINGTON AIR EXPRESS, INC.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT:OF COLUMBIA CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals is reported at 938

F.2d 190 (D.C. Cir. 1991) and appears in the appendix to

this petition at App. la-46a. The record of decision and

order issued by the Federal Aviation Administration are not

reported and appear at App. 49a-116a.

JURISDICTION

The judgment of the court of appeals was entered on

June 14, 1991. App. 47a. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 102(2)(C) of the National Environmental Policy

Act (NEPA), 42 U.S.C. § 4332(2), provides:

The Congress authorizes and directs that, to the fullest

extent possible: * * * (2) all agencies of the Federal

Government shall--

(C) include in every recommendation or report on

proposals for legislation and other major Federal

actions significantly affecting the quality of the

human environment, a detailed statement by the

responsible official on--

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and maintenance

and enhancement of long-term productivity,

and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved

in the proposed action should it be implemen-

ted.

Section 509(b)(5) of the Airport and Airway Improve-

ment Act (AAIA), 49 U.S.C. App. § 2208(b)(5), provides:

It is declared to be national policy that airport develop-

ment projects authorized pursuant to this chapter shall

provide for the protection and enhancement of the

natural resources and the quality of the environment of

the Nation. In implementing this policy, the Secretary

shall consult with the Secretary of the Interior and the

Administrator of the Environmental Protection Agency

with regard to any project included in a project grant

application involving airport location, a major runway

extension, or runway location which may have a

significant impact on natural resources including, but

not limited to, fish and wildlife, natural, scenic, and

recreation assets, water and air quality, and other

factors affecting the environment, and shal! authorize no

such project found to have significant adverse effect

unless the Secretary shall render a finding, in writing,

following a full and complete review, which shall be a

matter of public record, that no feasible and prudent

alternative exists and that all reasonable steps have been

taken to minimize such adverse effect.

STATEMENT OF THE CASE

1. Parties. Burlington Air Express (Burlington) is an

air Cargo express company which uses jet aircraft in a “hub

and spoke" delivery system. The Toledo-Lucas County Port

Authority (the Port Authority) operates the Toledo Express

Airport in Toledo; Ohio. The Federal Aviation Administra-

tion (FAA) réviews and approves Airport Layout Plans under

the Airport.and Airway Improvement Act (AAIA), 49

U.S.C. App. $22 1, et seq. Petitioners are Citizens Against

Burlington, Inc. , which has over 700 members, and several

individuals (hefeafter referred to collectively as "CAB").

Most of these persons reside near the Toledo Express

Airport. |

2. Summary of Proceedings. Burlington asked the Port

Authority to help it relocate its hub from Fort Wayne,

Indiana to Toledo Express Airport. The Port Authority

asked the FAA to approve a revised Airport Layout Plan and

provide federal funding to accommodate Burlington’s hub

operations, which would occur primarily between midnight

- and 6:00 a.m. In May 1990, the FAA issued a final EIS

(FEIS) under the National Environmental Policy Act (NEPA)

analyzing this proposal. On July 12, 1990, the FAA issued

a Record of Decision (ROD) and order which approved the

proposal under several federal statutes, including NEPA and

the AATA.

CAB, which will be adversely affected by increased

nighttime noise when Burlington’s operations begin, filed a

petition for review five days later with the Court of Appeals

for the District of Columbia Circuit. CAB contended that

the FAA’s decision violated Section 102(2)(C) of NEPA, 42

U.S.C. § 4332(2)(C), Section 4(f) of the Department of

Transportation Act (DOT Act), 49 U.S.C. § 303(c), and

Section 509(b)(5) of the AAIA, 49 U.S.C. App. §

2208(b)(5). CAB sought an order declaring the FAA’s

decision to be invalid and enjoining federal funding, con-

struction activities and flight operations to carry out Toledo’s

revised Airport Layout Plan until the FAA’s statutory

violations were corrected.

On August 1, 1990, the court of appeals denied CAB’s

request for an immediate stay of the FAA’s order. On June

14, 1991, the court of appeals affirmed the FAA’s decision

in all but one respect! and declined to grant injunctive relief.

~ CAB now seeks review by this Court of two claims decided

against it by the court of appeals: (1) the FAA’s failure to

analyze Fort Wayne as an alternative site for Burlington’s

operations, and (2) the FAA’s failure to require the Port

Authority to complete a noise impact study, to obtain funding

for noise mitigation, and to complete the mitigation program

before Burlington begins its nighttime cargo flights or by any

firm timetable.

3. Burlington’s Decision to Relocate. From 1985 to

the present, Burlington has operated an air cargo hub at Baer

Field in Fort Wayne, Indiana. ROD, p. 1 (App. 50a). Fort

Wayne spent $33.67 million on airport improvements to

accommodate Burlington’s operations. The FAA found in

1987 that those operations had insignificant environmental

effects on the Fort Wayne area.

In May 1988, Burlington began discussions with Fort

Wayne to establish a permanent hub in Fort Wayne. FEIS,

pp. B-93, E-28. However, Fort Wayne did not agree to

' The exception is that the court held that the FAA had violated the

regulations of the Council on Environmental Quality by failing to select

the consultant that prepared the EIS and by failing to require that

consultant to complete a form showing that it had no financial or other

interest in the outcome of the project. App. 24a-27a. To remedy this

violation, the court ordered the FAA to have the consultant execute a

disclosure statement and, if the FAA finds that a conflict exists, to decide

on further measures. App. 27a.

Burlington’s request to provide financial assistance for

improvements at the airport. Jd. at B-93.

As a result, Burlington began to look for alternative

sites for its operations. FEIS, p. 1-2. It selected the Toledo

Express Airport in Toledo, Ohio, which is only about 80

miles northeast of Fort Wayne. Burlington did not select

Toledo because there was a demand or need for air cargo

services in that city. The hub will serve the same customers

regardless of whether it is located in Fort Wayne or Toledo.

Burlington selected Toledo primarily because Toledo

offered it millions of dollars in local, state and federal funds

to locate its hub there. ROD, Att. III, p. 19-20 (App. 123a-

124a). These financial incentives’ were the "important

reasons driving this proposal” and were “the one major

reason" for Burlington’s decision to relocate. Jd. at 18, 20

(App. 121a, 124a).

4. The FAA’s Refusal to Analyze the Fort Wayne

Alternative. NEPA and the AAIA each establish a national

policy to protect and enhance the nation’s environmental

quality. 42 U.S.C. § 4331; 49 U.S.C. App. § 2208(b)(5).

To carry out this policy, these statutes provide that the FAA

must consider the environmental consequences of its actions,

including alternatives. 42 U.S.C. § 4332(2)(C); 49 U.S.C.

§ 2208(b)(5).

In its FEIS and Record of Decision, the FAA refused to

consider Baer Field in Fort Wayne as a reasonable alternative

to Toledo for Burlington’s air cargo hub. FEIS, p. 2-15;

ROD, pp. 7-8 (App. 58a-59a). The FAA analyzed only two

alternatives in the FEIS: (1) building a new hub in Toledo

and (2) no action. FEIS, p. 2-17; ROD, p. 8 (App. 61a).

The FAA also admitted that the FEIS "did not contrast the

environmental impacts of continued operations by Burlington

at [Fort Wayne] with those of the proposed action." ROD,

Att. I, pp. 20-21 (App. 125a).

There are numerous indications that, in making its

decision, the FAA blindly accepted Burlington’s "Toledo-or-

bust" position. The FAA stated that it gave "substantial

deference to Burlington’s preference to establish a permanent

air cargo hub’ in the Toledo area." FEIS, p. 2-1. Burling-

ton’s confidential report on seventeen potential sites for its

air cargo hub, including Fort Wayne, was neither given to

the FAA nor included in the administrative record. FEIS,

pp. E-62 to E-64; ROD, Att. II, p. 22 (App. 128a). In-

stead, the FEIS simply declares that "Burlington officials

have indicated that Fort Wayne is not a — alterna-

tive." FEIS, p. 2-15.

CAB repeatedly urged the FAA in its public comments

to analyze the Fort Wayne alternative. For example, CAB

cited a lengthy April 25, 1990 letter from Fort Wayne’s

airport director to Burlington which described the feasibility

of locating a permanent hub in that city. AR 1173, 993.

The FAA admitted in the FEIS that “other sites may be

feasible,” but refused to investigate them. FEIS, p. C-16.

The administrative record does not contain a single communi-

cation from the FAA to Fort Wayne requesting information

concerning its possible use as an alternative airport.

Instead of investigating the issue, the FAA merely asked

Burlington to clarify its position. ROD, p. 30 (App. 95a).

In response, Burlington claimed in a June 27, 1990 letter that

it had no “existing viable alternative” to Toledo. Jd. at 31

(App. 95a). In its Record of Decision, the FAA accepted

this statement at face value: "Base[d] on this reconfirmation

of the findings in the FEIS, the FEIS need not be revised or

supplemented to consider Fort Wayne as a reasonable

alternative." Id.

After the Record of Decision was issued and CAB

learned of Burlington’s "“reconfirmation” letter, CAB

obtained a copy of a May 2, 1990 letter’ from Burlington’s

chief executive officer in which he told Fort Wayne that "*

* * T will look to Fort Wayne for support and solutions as

and if our Toledo commitment is altered by any of the risks

or uncertainties that lie ahead" and that "I am able to bank

your support and you, in turn, can bank on Burlington’s

responsiveness as and if we find that our circumstances in

Toledo change." App. 135a-136a. In short, by Burlington’s

own admission, Fort Wayne was its backup alternative if its

plans for Toledo fell through.

5. Noise Impacts in the Toledo Area. In contrast to

the minimal impact Burlington’s flights have had in the Fort

Wayne area, the project will cause a major change in the

noise environment around the Toledo airport. FEIS, p. C-

23. The area of significant noise will increase by a factor of

four and over 2,000 people in residential areas, nursing

homes and a park campground will be affected. Id. at 4-22,

4-32, 4-50, C-23, S-4.

? The FAA did not disclose Burlington’s June 27 letter to petitioners

prior to its July 12 decision. If the FAA can rely on Burlington’s self-

serving June 27 letter concerning Toledo, petitioners are equally entitled

to submit Burlington’s undisclosed May 2 letter concerning Ft. Wayne.

In addition, the court of appeals did not grant intervenors’ request to

exclude the May 2 letter from the record. See App. 41a-42a.

8

More significantly, the increase in noise will occur

almost entirely during nighttime hours. Nighttime flights by

large jet aircraft will increase from about 400 to over 11,700

flights per year, with 46 new takeoffs and landings five

nights a week between midnight and 7 a.m. FEIS, pp. 2-2,

4-4, 4-5, 4-11; ROD, p. 5 (App. 55a). Sleep disturbance is

likely to be the most common complaint. FEIS, p. 4-16.

The FAA expects the Port Authority to mitigate some

of this noise. The Port Authority plans to buy some homes

in the most severely impacted areas. ROD, p. 13 (App.

68a). It also plans to install sound insulation for, or make

cash payments to, some homeowners in less severely

impacted areas. ROD, p. 13 (App. 69a); FEIS, p. 4-33.

However, at the time of the FAA’s decision, the FAA

knew that the mitigation program had serious deficiencies.

First, the specifics of the program were largely undefined

and were to be the subject of a later "Part 150” study.’ The

FAA did not require the Port Authority to complete this

study before it approved the project. ROD, p. 14 (App. 69a-

70a).

Second, no one knew where the $36 million (or more)

to carry out the mitigation programs would come from. The

Port Authority wanted to use federal funds, but the FAA

stated that "it does not appear that the project could expect

to obtain a high enough priority to make it competitive for

the limited primary discretionary funds that would be

needed.” AR 737, p. 2. The Port Authority’s only financial

> Part 150 refers to 14 C.F.R. Part 150, which requires airports to

identify a program of noise reduction measures and land use controls that

will reduce the noise impacts of the airport on surrounding areas.

9

commitment was a vague one-sentence assurance that it "will

take appropriate actions within its powers to implement, with

or without federal funds," the mitigation programs. FEIS,

p. E-39.

Third, the FAA did not require mitigation to be accom-

plished before Burlington’s flights begin or by any firm

timetable. FEIS, pp. S-7, 4-37. In their comments, both the

U.S. Environmental Protection Agency and CAB objected

that this would mean people could be exposed to significant

. nighttime noise for years. FEIS, pp. E-53; ROD, Att. III,

pp. 30-33 (App. 129a-134a). In response, the FAA merely

Stated that "it is not reasonable to require substantial comple-

tion of the noise mitigation commitments before operations

begin.” ROD, Att. III, p. 31 (App. 131a).

6. The Court of Appeals’ Decision. In its decision, a

majority of the court rejected CAB’s claim that the FAA

violated NEPA by failing to analyze Fort Wayne as an

alternative site for Burlington’s air cargo hub.* The majori-

ty agreed that the FAA had not analyzed Fort Wayne. App.

4a-Sa. However, the majority held that the FAA complied

with NEPA because a federal agency has no duty to analyze

any alternatives to a proposal by a private applicant. App.

19a. Dissenting from this holding, Judge Buckley stated that

the majority’s decision permitted non-federal parties "to

define the limits of the EIS inquiry and thus to frustrate one

of the principal safeguards of the NEPA process, the

* The majority opinion suggests that CAB advocated building an air

cargo hub in Peoria or other cities besides Fort Wayne. App. 17a-18a,

n. 7. In fact, CAB contended in the court of appeals that Fort Wayne

was the only alternative location that the FAA should have analyzed in its

EIS.

10

mandatory consideration of alternatives." App. 42a-43a.

The court also rejected CAB’s claim that the FAA

violated its substantive obligation under the AAIA not to

approve an airport project unless it first determines that "all

reasonable steps have been taken” to mitigate the adverse

environmental impacts of the project. The court agreed that

this was a substantive requirement, but held that it did not

mean that the FAA had to draft or carry out a noise-control

plan before Burlington’s nighttime flights begin. App. 36a.

Instead, it was enough that the FAA required the Port

Authority to continue its study uf the issue and had "grounds

to believe that the plan will be implemented" at an unspeci-

fied time in the future.* Jd.

* The court also rejected CAB’s claims that the FAA violated NEPA

because the EIS inadequately discussed the nighttime noise impacts of the

project (App. 20a-24a) and that the FAA violated the DOT Act and the

AAIA because it approved a project without adequately evaluating

“feasible and prudent” alternatives to, and measures to mitigate adverse

impacts of, the project (App. 27a-37a). CAB is only raising these claims

on this appeal to the extent that an unexamined but viable alternative

which renders an EIS inadequate can also create a violation of Section

4(f) of the DOT Act and Section 2208(b)(5) of the AAIA, which prohibit

the FAA from approving a project unless no “feasible and prudent”

alternative exists. See Coalition for Canyon Preservation v. Bowers, 632

F.2d 774, 784-785 (9th Cir. 1980).

11

REASONS FOR GRANTING THE WRIT

I. The D.C. Circuit Erroneously Rejected Seventh

Circuit Precedent and Severely Undermined NEPA

and the AAIA By Holding that Non-Federal

Applicants Can Define and Control the Alternatives

Analyzed in a Federal Agency’s EIS

The decision below severely undermines the central

requirement of the NEPA process--the consideration of

alternatives. NEPA requires federal agencies to analyze

"alternatives to the proposed action” before they approve

major federal actions significantly affecting the environment.

42 U.S.C. § 4332(2)(C). The AAIA, the FAA’s organic

legislation, is even stronger. It provides that the FAA cannot

approve an airport project that has significant environmental

effects unless it issues "a finding * * * that no feasible and

prudent alternative exists." 49 U.S.C. App. § 2208(b)(5).

According to the CEQ regulations implementing NEPA,

the consideration of alternatives forms "the heart of the

environmental impact statement.” 40 C.F.R. § 1502.14. It

is supposed to “present the environmental impacts of the

proposal and the alternatives in comparative form, thus

sharply defining the issues and providing a clear basis for

choice among options by the decisionmaker." Id.

The D.C. Circuit held that a federal agency "cannot

redefine” the applicant’s goals and therefore need only

consider two alternatives: the applicant’s proposal and no

action. App. 19a. As Judge Buckley correctly stated in his

dissent, this decision improperly “allows a non-federal party

to sort out alternatives based entirely on economic consider-

ations, and then to present its preferred alternative as a take-

12

it-or-leave-it proposition.” App. 45a. As a result, the EIS’

discussion of reasonable alternatives becomes an "empty

exercise.” App. 46a.

The majority’s decision was based on a fundamental

error in defining the goal of the agency’s proposed action.

The scope of alternatives to be considered is a direct function

of how broadly or narrowly that goal is defined. City of

New York v. U.S. Department of Transportation, 715 F.2d

732, 743 (2d Cir. 1983). According to the majority opinion,

the FAA "defined the goal for its action as helping to launch

a new cargo hub in Toledo and thereby helping to fuel

Toledo’s economy." App. 17a (emphasis added). As a

result, airports outside Toledo need not be considered

because “[nJone * * * would serve the purpose of the

agency’s action.” Jd.

This definition of the goal violates the majority’s own

principle that "an agency may not define the objectives of its

action in terms so unreasonably narrow that only one

alternative * * * would accomplish the goals of the agency’s

action * * *." App. 12a. The FAA defined its goal and the

applicant’s preference as synonymous. If the agency’s goal

is the same as the applicant’s preference, the only alterna-

tives will invariably be the applicant’s preference and no

action. In these circumstances, the EIS is a "foreordained

formality” (id.) or, in the dissent’s words, "a vermiform

appendix” (App. 38a).

This decision is in direct conflict with a decision by the

Seventh Circuit. The Seventh Circuit stated in Van Abbema

v. Fornell, 807 F.2d 633, 638 (1986):

[T}he evaluation of “alternatives” mandated by

13

NEPA is to be an evaluation of alternative means

to accomplish the general goal of an action; it is

not an evaluation of the alternative means by

which a particular applicant can reach his goals.

[emphasis in original]

The D.C. Circuit explicitly rejected this interpretation of

NEPA by the Seventh Circuit. App. 19a-20a.

In Van Abbema, the applicant proposed to construct a

facility "to transload coal from trucks to barges on the

Mississippi River." 807 F.2d at 635. The court framed the

suggested alternatives in terms of their comparative suitabili-

ty to achieve "the general goal [which] is to deliver coal

from mine to utility." Jd. at 638. In the past, the applicant

had trucked coal from its mine to a “temporary” facility in

Quincy, Illinois, transferred the coal to barges, and towed

the barges upriver to a power plant. Jd. at 640. It proposed

to build a new facility for "transloading" coal from trucks to

barges at Warsaw, Illinois, farther upriver from Quincy. Jd.

at 640-641.

The Seventh Circuit found that the EIS failed to analyze

adequately the use of the "temporary" Quincy facility as an

alternative site. 807 F.2d at 640. The Army Corps of

Engineers accepted “nearly verbatim” the applicant’s claims

that the Quincy facility had higher truck and barge costs and

was therefore infeasible. Id. at 641. The Seventh Circuit

found that the Corps "does not appear to have conducted any

substantial investigation of alternatives on its own" (id. at

642) and instead attempted to "finesse any serious economic

analysis by finding merely that ’the economic viability of this

proposed project must be ultimately determined in the free

market’" (id. at 639).

14

The facts in this case are strikingly similar to the facts

in the Toledo case. In both, the federal agency did not

objectively investigate the alternative of the "temporary" site

already used by the applicant and did not objectively compare

the relative environmental costs of the applicant’s "tempo-

rary" and preferred sites. Thus, under the Seventh Circuit’s

standard, the FAA was required to analyze the Fort Wayne

alternative.

Nevertheless, the D.C. Circuit saw "two critical flaws"

in the Seventh Circuit’s decision and declined to follow it.

App. 19a. First, the court said that the Seventh Circuit

"misconstrued the language of NEPA" in holding that the

Corps had to consider any alternative ways that the applicant

could accomplish "the general goal [of] deliver[ing] coal

from mine to utility." Id. (quoting 807 F.2d at 638). The

D.C. Circuit said that because NEPA only speaks of a duty

to analyze alternatives to proposed "Federal actions,” NEPA

does not require federal agencies to consider any alternatives

to proposals by non-federal applicants. App. 19a. Second,

the D.C. Circuit criticized the Seventh Circuit for implying

that the reviewing court is the body responsible for defining

the purpose of the agency action. Jd. at 19a-20a.

The Seventh Circuit did not hold that the reviewing

court has the duty to define a project’s goals. The Seventh

Circuit correctly held that Congress placed this duty on

federal agencies. "[T]he federal agency must determine for

itself what is reasonably available." Trinity Episcopal School

Corp. v. Romney, 523 F.2d 88, 94 (2d Cir. 1975). The

D.C. Circuit improperly placed this duty entirely on the

applicant.

The D.C. Circuit’s analysis is directly inconsistent with

15

the interpretation of NEPA by the Council on Environmental

Quality (CEQ). This Court has stated that "CEQ’s interpre-

tation of NEPA is entitled to substantial deference." Andrus

v. Sierra Club, 442 U.S. 347, 358 (1979).

CEQ has stated that agencies must examine all alterna-

tives "that are practical or feasible from the technical and

econoinic standpoint and using common sense rather than

simply desirable from the standpoint of the applicant." Forty

Most Asked Questions Concerning CEQ’s National Environ-

mental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,027

(March 23, 1981). Furthermore, the CEQ has stated that, in

defining which alternatives are feasible, "[nJeither NEPA nor

the CEQ regulations make a distinction between actions

initiated by a Federal agency and by applicants." CEQ

Guidance Regarding NEPA Regulations, 48 Fed. Reg.

34263, 34266 (July 28, 1983). The D.C. Circuit is the

first court to create a distinction between pure and hybrid

federal actions. If it is allowed to stand, it will create a new

subclass of EISs for hybrid federal actions in which federal

agencies need not "[r]igorously explore and objectively

evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14.

The D.C. Circuit’s decision has enormous significance

for the NEPA process. Federal agencies frequently prepare

* CEQ has recognized the importance of this issue. After issuing its

1981 interpretation, it received "numerous comments” and “requests for

further clarification of this question." CEQ Guidance Regarding NEPA

Regulations, supra, 48 Fed. Reg. at 34266-34267. However, while CEQ

stated that an agency should consider an applicant’s purposes and needs

when the agency defines project goals, CEQ reaffirmed its earlier

interpretation that applicants can not completely define and control those

goals and that all feasible and reasonable alternatives should be consid-

ered. Id.

16

EISs which evaluate proposed actions by applicants for

federal permits and licenses.’ Under the D.C. Circuit’s

decision, "the purpose of an agency’s action” must achieve

both: (1) the substantive goal (e.g., a particular transporta-

tion, energy, or housing project); and (2) the applicant’s

preference (e.g., money, jobs, conv nience). This formula-

tion allows the applicant to control the- NEPA process. Once

the applicant states its preferred alternative, the feasibility of

other possible alternatives becomes irrelevant. An alternative

like Fort Wayne can be rejected simply because the applicant

(the Port Authority) believes that it will not create enough

jobs and the beneficiary of the applicant’s proposal (Burling-

ton) believes that it is not accompanied by a sufficient

government subsidy.

The D.C. Circuit’s decision seriously undermines the

NEPA requirement that federal agencies take a "hard look’

at environmental consequences” of their actions. Kleppe v.

Sierra Club, 427 U.S. 390, 410, n. 21 (1976). He.e, the

hybrid federal action would result in the relocation of a

private company from its existing, environmentally-benign

location where $33 million had already been invested in

airport improvements to a new, environmentally-harmful

7 Section 102 of NEPA directs that "to the fullest extent possible,"

federal agencies must prepare EISs before they approve “major Federal

actions significantly affecting the quality of the human environment." 42

U.S.C. § 4332(2)(C). Under the CEQ regulations, “major Federal

actions” include actions which are proposed by private applicants if those

actions have major effects and "are potentially subject to Federal control

and responsibility." 40 C.F.R. § 1508.18. Here, the FAA prepared an

EIS because the proposed nighttime air cargo hub will have major effects

and because the FAA had the power to approve or deny the Port Author-

ity’s revised Airport Layout Plan and federal funding to carry out that

plan. FEIS, pp. 1-3 to 1-4.

17

location where over $90 million must be invested for similar

airport improvements and environmental mitigation costs.

ROD, Att. I, p. 19 (App. 124a). In considering its action,

the FAA failed to take the requisite “hard look" at an

alternative which appears to be far preferable on environmen-

tal grounds.

The AAIA makes the D.C. Circuit’s distinction between

pure and hybrid federal actions even more untenable. That

Statute explicitly refers to "project grant application[s]"

involving non-federal applicants and, in the same sentence,

requires the FAA to determine that "no feasible and prudent

alternative exists." 49 U.S.C. App. § 2208(b)(5). Thus,

Congress directed the FAA to consider all feasible and

prudent alternatives, not just those suggested to the FAA by

private companies.

The D.C. Circuit’s theory of goal-definition under

NEPA has serious consequences for the ability of federal

agencies to fulfull their statutory missions. In this case, the

substantive goal is transportation and, more particularly, an

air cargo hub. The AAIA was designed to facilitate the

movement of cargo traffic throughout the entire United

States, “thereby increasing safety and efficiency and reducing

delays." 49 U.S.C. App. § 2201(a)(7), (11). The AAIA

was not intended to spur growth in economically depressed

communities. As Judge Buckley stated in his dissent, it is

not “an urban welfare statute.” App. 44a.

Under the majority’s theory, both the nation’s transpor-

tation needs and environmental policies take a back seat to

Toledo’s job needs. Toledo has no transportation need for

an air cargo hub. Either Toledo or Fort Wayne can satisfy

Burlington’s transportation needs if certain airport improve- ~

18

ments are made. The majority opinion itself recognized that

"the FAA never quite specified with ideal coherence the

transportation goals of the project at Toledo Express." App.

30a. However, it failed to follow its own dictum that, in

defining project goals, "an agency should consider the views

of Congress, expressed, to the extent that the agency can

determine them, in the agency’s statutory authorization to act

** *" App. 12a. As a result, the majority’s theory is

likely to encourage federal agencies to tailor their statutory

directives to local, rather than national, interests.

The FAA and the majority opinion claim that, under the

Airline Deregulation Act, "Congress has * * * said that the

free market * * * should determine the siting of the nation’s

airports." App. 15a. However, as the FAA admitted in its

Record of Decision, "[w]Jhile the FAA is not in a position to

control or direct the actions and decisions of Burlington or of

[T]oledo, the FAA does have the ability to support or with-

hold approval for the proposed federal actions * * *." ROD,

p. 9 (App. 63a). If the FAA refused approval or funding,

Burlington would then be free to decide where it wants to

locate its hub.

The decision below eviscerates the duty of federal

agencies to consider alternatives to projects proposed by non-

federal applicants. If it is allowed to stand, federal agencies

can merely sit back and allow an applicant to sort out the

alternatives and present its preferred alternative to the agency

as a take-it-or-leave-it proposition. This is in direct conflict

with the decision of the Seventh Circuit in Van Abbema,

flatly inconsistent with CEQ’s NEPA regulations, and in

violation of this Court’s teachings that the court’s role under

NEPA is “to insure that the agency has considered the

environmental consequences" (Strycker’s Bay Neighborhood

19

Council, Inc: v. Karlen, 444 U.S. 223, 227 (1980)), and has

made a “fully informed” decision (Vermont Yankee Nuclear

Power Corp. v. NRDC, 435 U.S. 519, 558 (1978)). This

Court should therefore grant certiorari to resolve a conflict

in the circuits and adopt the Seventh Circuit’s view that

federal agencies have a duty under NEPA to independently

investigate and objectively evaluate reasonable alternatives to

a federal action which involves non-federal applicants.

II. Since the AAIA Imposes a Substantive Environ-

mental Obligation on the FAA to Ensure that Mitiga-

tion Measures "Have Been Taken" Before the FAA

Approves an Airport Project, the FAA Cannot Ap-

prove Such a Project and Aliow It to Operate for

Years Based on a Belief that Mitigation Measures

May Be Analyzed, Funded and Carried Out at Some

Indefinite Point in the Future

In Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 352 (1989), this Court explained that NEPA

requires that "mitigation be discussed in sufficient detail to

ensure that environmental consequences have been fairly

evaluated.” The Court also stated that NEPA does not

contain "a substantive requirement that a complete mitigation

plan be actually formulated and adopted.” Jd. However, in

reaching this conclusion, the Court noted that "[o]ther

statutes may impose substantive environmental obligations on

federal agencies * * *." Jd. at 351.

This case presents the question left open by this Court

in Methow Valley, namely, when a federal statute does

contain a substantive mitigation requirement, what steps must

be taken before the federal action is approved and carried

out? The decision below holds, in effect, that "substantive"

20

mitigation requirements are no different from "procedural"

ones and therefore robs substantive requirements of their

action-forcing character.

The court below recognized that Section 509(b)(5) of

the AAIA imposes a substantive environmental obligation.

App. 36a. That section provides that the FAA shall not

authorize a project which involves a major runway extension

or runway location and which has a significant adverse

environmental effect unless it first finds, in part, that “all

reasonable steps have been taken to minimize such adverse

effect.” 49 U.S.C. App. § 2208(b)(5).

By relying on a future uncompleted Part 150 study, the

FAA determined that it is a reasonable step to minimize the

adverse noise effects of the project. However, that study is

not a step which “ha[s] been taken" before the project was

approved. It is only a step which may or will be taken in the

future. The FAA only states that the study will be completed

"in an expeditious manner as closely as possible to the target

date of the Fall of 1990," months after the FAA’s July 1990

decision. ROD, p. 14 (App. 70a). At the time this petition

is being filed, the study is still not completed.*

* EPA strongly criticized the FAA for relying on a future Part 150

study. FEIS, pp. D-21, D-26. In a meeting between EPA, FAA, and

the Justice Department, “[t]here was general agreement by FAA that

[EPA’s] position was correct and they were telling their Regional Offices

not to use the 150 process in this manner.” AR 969, Att. 3. EPA later

withdrew its objection, but only as part of a deal in which the FAA

agreed to conduct a more extensive noise study at seven airports--not

including Toledo--which were scheduled to be the subject of EISs over

the next year. AR 1024, p. 3. It appears that EPA and FAA excluded

Toledo from this study requirement only to avoid delaying the project.

21

Furthermore, it is a reasonable step to require assurance

that the mitigation measures recommended in the Part 150

study will be carried out before air cargo operations begin

or, at the very least, by a firm, enforceable and expeditious

timetable. Otherwise, as EPA stated in its comments,

"people could be exposed to significant noise impacts for a

number of years." FEIS, p. E-53. Tunis is especially true

where mitigation measures will cost $36 million or more

(FEIS, pp. 4-32 to 4-33), relocation measures will take 3

years to complete (ROD, p. 13 (App. 68a-69a)) and sound-

proofing measures may take even longer (id. at 13-14 (App.

69a)). However, the FAA did not require the Port Authority

to show it has or can obtain funds to pay for all mitigation

measures or to complete mitigation before the air cargo

flights begin. There is not even a firm timetable for the

completion of mitigation after flights begin. As a result, the

reasonable step of requiring the Port Authority to demon-

Strate that it will fund and complete all recommended

mitigation measures is not one which "“ha[s] been taken"

before the project was approved.

In sum, the FAA’s decision has jeopardized the welfare

of thousands of Toledo residents by approving the project

without requiring the Port Authority to complete its noise

study, to obtain funding for noise mitigation, to require

completion of mitigation, or even to set a firm mitigation

program timetable. There is a substantial risk that mitigation

will never be fully funded and will never be completed. If

it is not, and the FAA’s decision is not reversed by this

Court, the FAA will be powerless to prevent environmental

harm to petitioners since it has already approved the project

and allowed flight operations to begin.

The court of appeals rejected CAB’s arguments on this

22

issue. It stated that Section 509(b)(5) "does not require

agencies to take all steps to lessen environmental trauma, just

all reasonable ones.". App. 36a (emphasis in original). The

court then held that the FAA had met its obligation under

this section because the "Part 150 study will be detailed” and

"the FAA reasonably concluded that a detailed mitigation

plan, coupled with grounds to believe that the plan will be

implemented, is enough of a reasonable step." Jd. (emphases

added).

It is well settled that "the starting point for interpreting

a statute is the language of the statute itself." Consumer

Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.

102, 108 (1980). In reaching its decision, the court of

appeals ignored the plain language of the statute. Section

509(b)(5) requires the FAA to find that all reasonable

mitigation steps "have been taken" before it approves an

airport project. Congress did not say that the FAA could

approve the project so long as it believes that the mitigation

plan “will be detailed" and that a plan "will be implemented"

some indefinite time in the future after the project is ap-

proved and after airport operations begin.

The D.C. Circuit’s opinion makes a procedure (i.e., a

document expressing a belief that action may take place in

the future) equivalent to substance (i.e., concrete steps to

Carry out mitigation commitments on a timely basis). In

doing so, it effectively eliminates the distinction in this

Court’s decision in Methow Valley between procedural and

substantive mitigation requirements in federal environmental

Statutes.

This decision will affect not only future airport projects

by the FAA, but all projects taken under federal environmen-

23

tal statutes containing substantive mitigation requirements.’

Because the decision below seriously undermines those

requirements and potentially affects a large category of

federal actions, this Court’s review is warranted.

CONCLUSION

For these reasons, the petition for a writ of certiorari to

review the judgment of the Court of Appeals for the District

of Columbia Circuit should be granted.

Respectfully submitted,

JAMES M. HECKER

(Counsel of Record)

1625 Massachusetts Ave., N.W.

Suite 100

Washington, D.C. 20036

(202) 797-8600

Attorney for Petitioners Citizens

Against Burlington, Inc., et al.

September 1991

* In addition to the AAIA, this Court recognized in Methow Valley

that the Endangered Species Act and the DOT Act also contain substan-

tive environmental obligations. 490 U.S. at 351, n. 14. Both of these

Statutes apply to a wide range of federal actions, including federal

licenses and permits for highways, oil leasing, housing, timber, and land

management.

24

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 1990 Decided June 14, 1991

No. 90-1373

CITIZENS AGAINST BURLINGTON, INC., ET AL.,

PETITIONERS

v.

JAMES B. BUSEY IV, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION,

RESPONDENT

TOLEDO-LUCAS COUNTY PORT AUTHORITY AND

BURLINGTON AIR EXPRESS, INC.,

INTERVENORS

Petition for Review of an Order

of the Federal Aviation Administration

Before BUCKLEY, WILLIAMS, and THOMAS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge THOMAS.

Opinion dissenting in part filed by Circuit Judge

BUCKLEY.

CLARENCE THOMAS, Circuit Judge: The city of Toledo

decided to expand one of its airports, and the Federal

Aviation Administration decided to approve the city’s plan.

In this petition for review of the FAA’s order, an alliance of

people who live near the airport contends that the FAA has

violated several environmental statutes and regulations. We

hold that the FAA has complied with all of the statutes and

all but one of the regulations.

I.

The Toledo Express Airport, object of the controversy

in this case, lies about twenty-five miles to the west of

downtown Toledo. Half a mile to the southwest of the

airport, surrounded by four highways and intersected by

three more, lies the Oak Openings Preserve Metropark, used

by joggers, skiers, and birders, and site of one of the world’s

twelve communities of oak savannas. Within Oak Openings

lies the Springbrook Group Camp, site of a primitive (tents

only) campground, and used by hikers and campers, includ-

ing Richard Van Landingham III, one of the petitioners in

this lawsuit. Near the airport live Daniel Kasch, Carol

Vaughan, and Professor William Reuter, three of the other

petitioners. The Toledo-Lucas County Port Authority, one

of the intervenors, wants to make the city of Toledo a cargo

hub. Burlington Air Express, Inc., the other intervenor,

wants to move its operations to Toledo. Kasch, Vaughan,

Reuter, Van Landingham, and others have formed Citizens

Against Burlington, Inc. to stop them.

Citizens Against Burlington first materialized about a

year after the Port Authority first commissioned an "Airport

Noise Compatibility Planning” study (known as a "Part 150

study,” see generally 14 C.F.R. pt. 150 & apps. A & B) and

began to consider the possibility of the airport’s expansion.

2a

The Port Authority soon heard from Burlington Air Express,

which had been flying its planes out of an old World War II

hangar at Baer Field, an Air National Guard airport in Fort

Wayne. After looking at seventeen sites in four midwestern

states, Burlington chose the Toledo Express Airport. Among

Burlington’s reasons were the quality of Toledo’s work force

and the airport’s prior operating record, zoning advantages,

and location (near major highways and close to Detroit and

Chicago). For its part, the Port Authority expects the new

hub to create one thousand new jobs in metropolitan Toledo

and to contribute almost $68 million per year to the local

economy after three years of the hub’s operation. The Port

Authority plans to pay for the new hub with both private and

public funds. Much of the money, however, will come from

user fees and lease agreements, and more than half will come

from local bonds issued to private investors. Grants from the

city of Toledo and the state of Ohio will make up another,

much smaller portion of the costs. The Port Authority has

applied for some federal funds as well, but the FAA has

reacted coolly to the Port Authority’s feelers.

The Port Authority agreed to let Burlington move to

Toledo when Burlington’s lease at Baer Field expired, in

October 1990. Burlington later extended its lease in Fort

Wayne, and the Port Authority now expects Burlington to

move to Toledo Express in January 1992. First, though, the

Port Authority has to accommodate Burlington’s operations.

In the first stage of the airport’s expansion, the Port Authori-

ty plans to build a concrete ramp for cargo planes, a ware-

house for sorting freight, lighting for the warehouse and the

area around it, a road to the warehouse, a fuel farm, a

maintenance building, taxiway connections to one of the

airport’s runways and lighting for the new taxiways, an

overrun area attached to one of the runways, new power

3a

outlets for parked airplanes, and storage areas for de-icing

equipment. In the second stage of expansion, planned for the

five years after Burlington’s move, the Port Authority wants

to extend one of the airport’s primary runways, install a

landing system nearby, and build a new taxiway parallel to

the extended runway.

The Port Authority submitted its proposal to the FAA

on February 2, 1989 and promptly hired Coffman Associ-

ates, Inc., a consulting firm, to preparéyan environmental

assessment, see 40 C.F.R. §§ 1501.3, 1508.9, and then to

convert the environmental assessment into an environmental

impact statement (EIS), see id. § 1501.4; 42 U.S.C. §

4332(2)(C). In December 1989, the FAA sent a draft of the

EIS to the Environmental Protection Agency and several state

and local agencies. See id. § 7609; 40 C.F.R. §§ 1503.1,

1503.2. Early the next month, the FAA made the draft

public and held a public hearing. See id. § 1502.19. Over

the following six weeks, Citizens Against Burlington sent the

FAA twenty-five letters, commenting on virtually every

aspect of the EIS. Individuals sent over three hundred more.

On May 11, 1990, the FAA published a final environ-

mental impact statement. The first chapter of the statement

explained that the Port Authority needed the FAA’s approval

for its plan to expand the Toledo Express Airport and

described the role in that process that Congress meant for the

agency to play. The second chapter of the EIS reviewed the

particulars of the Port Authority’s plan, listed the fourteen

separate federal statutes and regulations that applied to the

Port Authority’s proposal, briefly described some alternatives

to acting on the Port Authority’s plan, and explained why the

agency had decided not to discuss those possibilities more

fully. The FAA then concluded that it had to consider in

4a

« 2 ee a ci lees oil lt tha eT ss

depth the environmental impacts of only two alternatives:

the approval of the Port Authority’s plan to expand the

airport, and no action. The third chapter of the EIS de-

scribed the environment affected by the proposal, and the

fourth chapter detailed the environmental consequences of the

two alternatives. After summarizing the environmental

impacts in the fifth chapter, the agency listed in the sixth

chapter the statement’s preparers. Appendices to the

statement collected scientific data and relevant inter-agency

correspondence. In the second volume of the statement, the

FAA compiled copies of the hundreds of letters concerning

the draft EIS, a transcript of the public hearing, and written

comments submitted after the hearing had ended.

Having approved the final EIS, the agency faced a final

choice: whether to endorse the Port Authority’s plan, which

the agency preferred, or not to endorse the plan. In a record

of decision dated July 12, 1990, the FAA approved the plan

to expand the Toledo Express Airport. See 49 U.S.C. app.

§§ 1349(a), 2208(b). Five days later, Citizens petitioned this

court for review of the FAA’s order and for a stay of the

order pending our decision. See id. app. § 1486(a), (d). On

August 1, we denied the latter request.

Citizens continues to press for wide-ranging declaratory

and injunctive relief, asking this court to vacate the FAA’s

decision, to force the agency to prepare a new EIS, to enjoin

the agency from approving the Port Authority’s current plan,

and to enjoin any further construction at Toledo Express until

the FAA complies with the applicable laws. Citizens

contends that the FAA has violated the National Environmen-

tal Policy Act, regulations promulgated by the Council on

Environmental Quality, the Department of Transportation

Act, and the Airport and Airway Improvement Act. We

5a

consider these arguments in turn.

Il.

A.

In the National Environmental Policy Act of 1969

(NEPA), Pub. L. No. 91-1909, 83 Stat. 852 (1970) (codified

as amended at 42 U.S.C. §§ 4321-4370b), Congress resolved

"to create and maintain conditions under which man and

nature can exist in productive harmony, and fulfill the social,

economic, and other requirements of present and future

generations of Americans." NEPA § 101(a), 42 U.S.C. §

4331(a).' These sweeping policy goals have inspired some

commentators to call NEPA an environmentalist Magna

Carta. See, e.g., D. Mandelkere, NEPA Law and Litigation

§ 1:01, at 1 (1990); cf. 40 C.F.R. § 1500.1(a) ("[NEPA] is

our basic national charter for protection of the environ-

ment."). But instead of ordering, say, that deforested land

be reforested, Congress chose to make NEPA procedural.

NEPA commands agencies to imbue their decisionmaking,

through the use of certain procedures, with our country’s

commitment to environmental salubrity. See Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 348 (1989);

see also 40 C.F.R. § 1502.1. NEPA does not mandate

‘See also NEPA § 2, 42 U.S.C. § 4321:

The purposes of [NEPA] are: To declare a national policy

which will encourage productive and enjoyable harmony

between man and his environment; to promote efforts which

will prevent or eliminate damage to the environment and

biosphere and stimulate the health and welfare of man; [and]

to enrich the understanding of the ecological systems and

natural resources important to the Nation .. .

6a

Te ee a ees Ee Ce

particular consequences.

Just as NEPA is not a green Magna Carta, federal

judges are not the barons at Runnymede. Because the statute

directs agencies not only to look hard at the environmental

effects of their decisions, and not to take one type of action

or another, federal judges correspondingly enforce the statute

by ensuring that agencies comply with NEPA’s procedures,

and not by trying to coax agency decisionmakers to reach

certain results. See Baltimore Gas & Elec. Co. v. Natural

. Resources Defense Council, Inc. , 462 U.S. 87, 97-98 (1983).

As the Supreme Court has warned, "once an agency has

made a decision.to subject to NEPA’s procedural require-

ments, the only role for a court is to insure that the agency

has considered the environmental consequences; it cannot

"*interject itself within the area of discretion of the executive

as to the choice of the action to be taken."’" Strycker’s Bay

Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28

(1980) (per curiam) (citation omitted); see Kleppe v. Sierra

Club, 427 U.S. 390, 410 n.21 (1976) ("Neither [NEPA] nor

its legislative history contemplates that a court should

substitute its judgment for that of the agency as to the

environmental consequences of its actions.").

In short, the obligations that NEPA levies on agencies

determine the role of the courts in the statute’s enforcement.

This case concerns the most important responsibility thai

NEPA demands -- that an agency reviewing proposals for

action prepare an environmental impact statement, and, more

specifically, that the agency discuss in its statement alterna-

tives to the action proposed. We consider here whether the

FAA has complied with NEPA in publishing an envircnmen-

tal impact statement that discussed in depth two alternatives:

approving the expansion of the Toledo Express Airport, and

7a

ale itn

not approving the expansion of the Toledo Express Airport.

(1)

Federal agencies must prepare environmental impact

Statements when they contemplate “major Federal actions

significantly affecting the quality of the human environment."

NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).? An EIS must

?The Congress authorizes and directs that, to the fullest extent

possible: . . . (2) all agencies of the Federal Government shall --

(C) include in every major recommendation or report on proposals

for legislation and other major Federal actions significantly

affecting the

quality of the human environment, a detailed statement by the

responsible official on --

(i) the environmental impact of the proposed

action,

(u) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in

the proposed action should it be implemented.

NEPA § 102, 42 U.S.C. § 4332; see also 40 C.F.R. § 1508.12 (defining

8a

Nitin Car ernare, ailtatatitinbe ae

discuss, among other things, "alternatives to the proposed

action,” NEPA § 102(2)(C)(iii), 42 U.S.C. § 4332(2)(C)(iii),

and the discussion of alternative forms “the heart of the

environmental impact statement." 40 C.F.R. § 1502.14; see

Alaska v. Andrus, 580 F.2d 465, 474 (D.C. Cir.), vacated

in part as moot sub. nom. Western Oil & Gas Ass’n Vv.

Alaska, 439 U.S. 922 (1978).

The problem for agencies is that "the term ’alternatives’

is not self-defining.” Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, Inc., 435 U.S. 519,

551 (1978). Suppose, for example, that a utility applies for

permission to build a nuclear reactor in Vernon, Vermont.

Free-floating “alternatives” to the proposal for federal action

might conceivably include everything from licensing a

reactor in Pecos, Texas to promoting imports of hydropower

from Quebec. If the Nuclear Regulatory Commission had to

discuss these and other imaginable courses of action, its

statement would wither into “frivolous boilerplate," id., if

indeed the agency were to prepare an EJS~at all and not

instead just deny the utility a permit. If, therefore, the

consideration of alternatives is to inform both the public and

the agency decisionmaker,’ the discussion must be moored

to "some notion of feasibility." Vermont Yankee, 435 U.S.

at 551; see id. ("Common sense also teaches us that the

"federal agency”); id. § 1508.18 ("major federal action"); id. § 1508.27

("significantly"); id. § 1508.3 ("affecting"); id. § 1508.14 (“human

environment”).

>See Methow Valley, 490 U.S. at 349; see also 40 C.F.R. § 1502.14

("This section . . . should present the environmental impacts of the

proposal and the alternatives in comparative form, thus sharply defining

the issues and providing a clear basis for choice among options by the

decisionmaker and the public.”).

9a

a any a i i eal BM

*detailed statement of alternatives’ cannot be found wanting

simply because the agency failed to include every device and

thought conceivable by the mind of man.").

Recognizing the harm that an unbounded understanding

of alternatives might cause, see id. at 549-55, CEQ regula-

tions oblige. agencies to discuss only alternatives that are

feasible, or (much the same thing) reasonable. 40 C.F.R. §§

1502.14(a)-(c), 1508.25(6)(2); see Forty Most Asked

Questions Concerning CEQ’s NEPA Regulations, 46 Fed.

Reg. 18,026, 18,026 (1981) [hereinafter Forty Questions].

But the adjective “reasonable” is no more self-defining than

the noun that it modifies. Consider two possible alternatives

to our nuclear reactor in Vernon. Funding research in cold

fusion might be an unreasonable alternative by virtue of the

theory’s scientific implausibility. But licensing a reactor in

Lake Placid, New York might also be unreasonable, even

though it passes some objective test of scientific worth. In

either case, the proposed alternative is reasonable only if it

will bring about the ends of federal action -- only if it will do

what the licensing of the reactor in Vernon is meant to do.

See City of New York v. Department of Transp., 715 F.2d

732, 742-43 (2d Cir. 1983) construing NEPA § 102(2)(B),

42 U.S.C. § 4332(2)(B), (discussion of alternatives in

environmental assessments)), cert. denied, 465 U.S. 1055

(1984); see also City of Angoon v. Hodel, 803 F.2d 1016,

1021 (9th Cir. 1986) (per curiam) ("When the purpose is to

accomplish one thing, it makes no sense to consider the

alternative ways by which another thing might be

achieved."), cert. denied, 484 U.S. 870 (1987).‘ If licens-

“Cf. 115 Cong. Rec. 40,420 (Dec. 20, 1969) (remarks of Sen.

Jackson) (“alternatives" means “[tJhe alternative ways of accomplishing

the objectives of the proposed action and the results of not accomplishing

10a

ORB ir a bk whee KAR Dak ake

ing the Vernon reactor is meant to help supply energy to

New England, licensing a reactor in northern New York

might make equal sense. If licensing the Vernon reactor is

meant as well to stimulate the Vernon job market, licensing

a reactor in Lake Placid would be far less effective. The

goals of an action delimit the universe of the action’s

reasonable alternatives.

We have held before that an agency bears the responsi-

bility for deciding which alternatives to consider in an

environmental impact statement. See North Slope Borough

v. Andrus, 642 F.2d 589, 601 (D.C. Cir. 1980). We have

also held that an agency need follow only a "rule of reason"

in preparing an EIS, see Natural Resources Defense Council,

Inc. v. Morton, 458 F.2d 827, 834, 837 (D.C. Cir. 1972),

and that this rule of reason governs “both which alternatives

the agency must discuss, and the extent to which it must

discuss them," Alaska v. Andrus, 580 F.2d at 475; see

Allison v. Department of Transp., 908 F.2d 1024, 1031

(D.C. Cir. 1990). It follows that the agency thus bears the

responsibility for defining at the outset the objectives of an

action. See City of Angoon v. Hodel, 803 F.2d at 1021; cf.

40 C.F.R. § 1502.13. As the phrase "rule of reason"

suggests, we review an agency’s compliance with NEPA’s

requirements deferentially. We uphold an agency’s definition

of objectives so long as the objectives that the agency

chooses are reasonable, and we uphold its discussion of

alternatives so long as the alternatives are reasonable and the

agency discusses them in reasonable detail.

We realize, as we stated before, that the word "reason-

able” is not self-defining. Deference, however, does not

the proposed action”).

lia

mean dormancy, and the rule of reason does not give

agencies license to fulfill their own prophecies, whatever the

parochial impulses that drive them. Environmental impact

Statements take time and cost money. Yet an agency muy

not define the objectives of its action in terms so unreason-

ably narrow that only one alternative from among the

environmentally benign ones in the agency’s power would

accomplish the goals of the agency’s action, and the EIS

would become a foreordained formality. See City of New

York v. Department of Transp., 715 F.2d at 743. Nor may

an agency frame its goals in terms so unreasonably broad

that an infinite number of alternatives would accomplish

those goals and the project would collapse under the weight

of the possibilities.

Instead, agencies must look hard at the factors relevant

to the definition of purposes. When an agency is asked to

sanction a specific plan, see 40 C.F.R. § 1508.18(b)(4), the

agency should take into account the needs and goals of the

parties involved in the application. See, e.g., Louisiana

Wildlife Fed’n v. York, 761 F.2d 1044, 1048 (Sth Cir. 1985)

(per curiam); Roosevelt Campobello Int’l Park Comm’n vy.

EPA, 684 F.2d 1041, 1046-47 (1st Cir. 1982). Perhaps

more importantly, an agency should always consider the

views of Congress, expressed, to the extent that the agency

can determine them, in the agency’s statutory authorization

to act, as weli as in other congressional directives. See City

of New York v. Department of Transp., 715 F.2d at 743-45

(Congress instructed the Department of Transportation to

create safety regulations for carrying nuclear fuel by inter-

state highway; the Department was not required to discuss

the unreasonable alternative of carrying nuclear fuel around

New York City by barge); cf Izaak Walton League of Am.

v. Marsh, 655 F.2d 346, 372 (D.C. Cir.) ("When Congress

12a

has enacted legislation approving a specific project, the

implementing agency’s obligation to discuss alternatives in its

[EIS] is relatively narrow."), cert. denied, 454 U.S. 1092

(1981). |

Once an agency has considered the relevant factors, it

must define goals for its action that fall somewhere within

the range of reasonable choices. We review that choice, like

all agency decisions to which we owe deference, on the

grounds that the agency itself has advanced. See SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947).

(2)

In the first chapter of its environmental impact state-

ment, the FAA begins by noting that the Port Authority had

requested the agency’s approval of the plan to develop

Toledo Express. The agency then explains that "[t]he

purpose and need for this action lies in [the] FAA’s responsi-

bility to review the airport design and runway configuration

with respect to its safety, efficiency and utility within the

national airspace system and its environmental impact on the

surrounding area.” After surveying the engineering reasons

that justify an extended runway and new facilities, the FAA

concludes by stating that the agency "has a statutory mandate

to facilitate the establishment of air cargo hubs under Section

502(a)(7) [of the Airport and Airway Improvement Act of

1982 (AAIA), 49 U.S.C. app. § 2201(a)(7)] and to undertake

capacity enhancement projects under Section 502(a)(11) [of

the AAJA, 49 U.S.C. app. § 2201(a)(11)].”

In the second chapter of the environmental impact

statement, the FAA begins by stating:

13a

The scope of alternatives considered by the sponsoring

Federal agency, where the Federal government acts as

a proprietor, is wide ranging and comprehensive.

Where the Federal governments acts, not as a propri-

etor, but to approve and support a project being spon-

sored by a local government or private applicant, the

Federal agency is necessarily more limited. In the

latter instance, the Federal government’s consideration

of alternatives may accord substantial weight to the

preferences of the applicant and/or sponsor in the siting

and design of the project.

The agency goes on to explain:

In the present system of federalism, the FAA does not

determine where to build and develop civilian airports,

as an owner/operator. Rather, the FAA facilitates

airport development by providing Federal financial

assistance, and reviews and approves or disapproves

revisions to Airport Layout Plans at Federally funded

airports .... Similarly, under the Airline Deregula-

tion Act of 1978, the FAA does not regulate rates,

routes, and services of air carriers or cargo operators.

Airline managements are free to decide which cities to

serve based on market forces.

The EIS then describes five alternatives: approving the Port

Authority’s plan for expanding Toledo Express, approving

other geometric configurations for expanding Toledo Ex-

press, approving other ways of channelling airplane traffic at

Toledo Express, no action by the agency at all, and approv-

ing plans for other airports both in the Toledo metropolitan

area and out of it, including Baer Field in Fort Wayne.

Finally, the EIS briefly explains why the agency eliminated

l4a

all the alternatives but the first and the fourth. See 40

C.F.R. § 1502.14(a).

The FAA’s reasoning fully supports its decision to

evaluate only the preferred and do-nothing alternatives. The

agency first examined Congress’s views on how this country

is to build its civilian airports. As the agency explained,

Congress has told the FAA to nurture aspiring cargo hubs.

See AAIA § 502(a)(7), (11), 49 U.S.C. app. § 2201(a)(7),

(11).° At the same time, however, Congress has also said

that the free market, not an ersatz Gosplan for aviation,

should determine the siting of the nation’s airports. See

Airline Deregulation Act of 1978, Pub. L. No., 95-504, 92

Stat. 1705; see also 14 Weekly Comp. Pres. Doc. 1837,

1837-38 (Oct. 24, 1978) (remarks of Pres. Carter); Suburban

O’Hare Comm’n v. Dole, 787 F.2d 186, 196 (7th Cir.)

("The decision to make O’ Hare, or any other airport, a hub’

‘The Congress hereby finds and declares that -

(7) cargo hub airports play a critical role in the movement of

commerce through the airport and airway system and

appropriate provisions should be made to facilitate the

development of and enhancement of such airports;

(11) airport construction and improvement projects which

increase the capacity of facilities to accommodate passenger

and cargo traffic, thereby increasing safety and efficiency

and reducing delays, should be undertaken to the maximum

feasible extent....

AAIA § 502(a), 49 U.S.C. app. § 2201(a).

15a

on

airport belongs to the airlines and not to the government."),

cert. denied, 479 U.S. 847 (1986): Congress has expressed

its intent by statute, and the FAA took both of Congress’s

messages seriously.°

The FAA also took into account the Port Authority’s

reasons for wanting a cargo hub in Toledo. In recent years,

more than fifty major companies have left the Toledo

metropolitan area, and with them, over seven thousand jobs.

The Port Authority expects the cargo hub at Toledo Express

to create immediately more than two hundred permanent and

six hundred part-time jobs with a total payroll value of more

than $10 million. After three years, according to the Port

Authority, the hub should create directly more than one

thousand permanent jobs at the airport and one hundred and

fifty other, airport-related jobs. The University of Toledo

estimates that the new Toledo Express will contribute at least

$42 million to the local economy after one full year of

operation and nearly $68 million per year after three. In

addition, the Port Authority expects the expanded airport,

and Burlington’s presence there, to attract other companies

to Toledo. All of those factors, the Port Authority hopes,

will lead to a renaissance in the Toledo metropolitan region.

Having thought hard about these appropriate factors, the

*Citizens’ view would require the FAA to canvass the business

choices that Burlington faced when it considered leaving Fort Wayne.

But the agency has neither the expertise nor the proper incentive structure

to do so (it has no shareholders who would suffer from mistaken

judgments). And while Congress clearly wanted NEPA to extend federal

agencies’ range of vision to environmental concerns, it did not, so far as

we can tell, aim at agencies’ acquiring skills of successful entrepreneurs.

NEPA is supposed to make agencies more sensitive — but only, by

definition, to matters environmental.

l6a

FAA defined the goal for its action as helping launch a new

cargo hub in Toledo and thereby helping to fuel the Toledo

economy. The agency then eliminated from detailed discus-

sion the alternatives that would not accomplish this goal.

Each of the different geometric configurations would mean

technological problems and extravagant costs. So would

plans to route traffic differently at Toledo Express, or to

build a hub at one of the other airports in the city of Toledo.

None of the airports outside of the Toledo area would serve

the purpose of the agency’s action. The FAA thus evaluated

the environmental impacts of the only proposal that might

reasonably accomplish that goal -- approving the construction

and operation of a cargo hub at Toledo Express. It did so

with the thoroughness required by law. See 40 C.F.R. § 1502.16.’

"Judge Buckley maintains that the FAA, having decided to discuss the

socioeconomic impacts of inaction in Toledo on Toledo was obliged then

in its "No Action" section to discuss the socioeconomic impacts of

inaction in Toledo on Fort Wayne. See post at 6-7. As Judge Buckley’s

dissent reveals, see id., information concerning Fort Wayne’s economy

is already available for consumption elsewhere in the EIS. See Tongass

Conservation Soc’y v. Cheney, 924 F.2d 1137, 1142-43 & n.5 (D.C. Cir.

1991). In any event, the FAA also discussed the (beneficial) environmen-

tal effects of inaction in Toledo on Toledo, so one can infer that it should

have discussed the (presumably negative) environmental effects of

inaction in Toledo on Fort Wayne. Because Toledo’s loss is many other

cities’ potential gain, moreover, there would be no reason to limit the

FAA’s discussion to Fort Wayne: Indeed, one can infer that the FAA

should have discussed the socioeconomic and environmental impacts of

inaction in Toledo on Peoria, Akron, Detroit, and every other site

assessed by Burlington’s consultant. Cf. post at 2-7.

The EIS demonstrates that the discussion of the socioeconomic and

environmental impacts of inaction is the flip side of the discussion of the

impacts of action. If, for example, the FAA were to approve the Port

Authority’s application, Toledo would lose environmentally but gain

socioeconomically, and Peoria and Fort Wayne and the other cities would

17a

We conclude that the FAA acted reasonably in defining

the purpose of its action in eliminating alternatives that

would not achieve it, and in discussing (with the required do-

nothing option) the proposal would. The agency has there-

fore complied with NEPA.

(3)

Citizens agrees that the FAA need only discuss reason-

able, not all, alternatives to Toledo Express. Relying on Van

Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986), however,

Citizens argues that "the evaluation of ’alternatives’ mandat-

ed by NEPA is to be an evaluation of alternative means to

accomplish the general goal of an action; it is not an evalua-

tion of the alternative means by which a particular applicant

can reach his goals." Jd. at 638 (construing NEPA §

102(2)(E), 42 U.S.C. § 4332(2)(E)). According to Citizens,

the "general goal" of the Port Authority’s proposal is to build

a permanent cargo hub for Burlington. Since, in Citizens’

view, Fort Wayne (and perhaps Peoria) will accomplish this

general goal just as well as Toledo, if not better, Baer Field

lose socioeconomically but gain environmentally. If the FAA were to

reject the Port Authority’s application, Toledo would remain somewhat

quieter but lose some jobs, and either Peoria (or another city) might gain

noise along with jobs or Fort Wayne might regain some of both. But the

FAA was not obliged to discuss the environmental or socioeconomic

impacts of approving airport expansions in Peoria or Fort Wayne or any

of the other cities: None, as we have explained, would have fulfilled the

goal of the agency’s action, and all were therefore unreasonable and

beyond the scope of the FAA’s responsibilities. The upshot of Judge

Buckley’s approach, it seems to us, would be to force an agency to

discuss the socioeconomic and environmental impacts of even unreason-

able alternatives -- to do the very thing in the section on the do-nothing

alternative that the agency need not do in the statement’s main body.

18a

% ~ a eg re er ee ee eet

is a reasonable alternative to Toledo Express, and the FAA

should have discussed it in depth. Since it did not, this court

should force the FAA to prepare .a new (or supplemental)

environmental impact statement.

We see two critical flaws in Van Abbema, and therefore

in Citizens’ argument. The first is that the Van Abbema

court misconstrued the language of NEPA. Van Abbema

involved a private businessman who had applied to the Army

Corps of Engineers for permission to build a place to

“transload" coal from trucks to barges. See 807 F.2d at 635.

The panel decided that the Corps had to survey "feasible

alternatives ... to the applicant’s proposal," or alternative

ways of accomplishing "the general goal [of] deliver[ing]

coal from mine to utility." Jd. at 638; see also Trout

Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974).

In commanding agencies to discuss “alternatives to the

proposed action," however, NEPA plainly refers to alterna-

tives to the "major Federal actions significantly to affecting

the quality of the human environment," and not to alterna-

tives to the applicant’s proposal. NEPA § 102(2)(C), 42

U.S.C. § 4332(2)(C) (emphasis added). An agency cannot

redefine the goals of the proposal that arouses the call for

action; it must evaluate alternative ways of achieving its

goals, shaped by the application at issue and by the function

that the agency plays in the decisional process. Congress did

not expect agencies to consider an applicant’s wants when the

agency formulates the goals of its own proposed action.

Congress did not expect agencies to determine for the

applicant what the goals of the applicant’s proposal should

be.

The second problem with Van Abbema lies in the

court’s assertion that an agency must evaluate "alternative

19a

means to accomplish the general goal of an action," 807 F.2d

at 638 (emphasis deleted) -- a statement that troubles us even

if we assume that the panel was alluding to the general goals

of the private proposal. Left unanswered in Van Abbema and

Citizens’ brief (and at oral argument) is why and how to

distinguish general goals from specific ones and just who

does the distinguishing. Someone has to define the purpose

of the agency action. Implicit in Van Abbema is that the

body responsible is the reviewing court. As we explained,

however, NEPA and binding case law provide otherwise.

(4)

In chiding this court for having overreached in constru-

ing NEPA, a unanimous Supreme Court once wrote that

Congress enacted NEPA "to ensure a fully informed and

well-considered decision, not necessarily a decision the

judges of the Court of Appeals or of this Court would have

reached had they been members of the decisionmaking unit

of the agency.” Vermont Yankee, 435 U.S. at 558. We are

forbidden from taking sides in the debate over the merits of

developing the Toledo Express Airport; we are required

instead only to confirm that the FAA has fulfilled its statuto-

ry obligations. Events may someday vindicate Citizens’

belief that the FAA’s judgment was unwise. See id. at 557-

58. All that this court decides today is that the judgment was

not uninformed. See Methow Valley, 490 U.S. at 351.

B.

The regulations of the Council on Environmental

Quality provide that an environmental impact statement "shall

[contain] a full and fair discussion of significant environmen-

tal impacts” and that "[i]mpacts shall be discussed in propor-

20a

tion to their significance." 40 C.F.R. §§ 1502.1, 1502.2(b);

see NEPA § 102(2)(C)(i), (ii), 42 U.S.C. § 4332(2)(C)(i),

(ii). The EIS in this case discusses more than twenty impacts

that the expanded Toledo Express would have on the envi-

ronment, including the airport’s effects on people’s homes

and neighborhoods; on the quality of the air, the water, and

the earth, on architectural, archeological, and cultural

resources; on sewage disposal; on traffic patterns; on

swamps, marshes, bogs and rivers; and on bats, butterflies,

grass flowers, and trees.’ The EIS also states flatly that

"(ajircraft sound emissions" --noise, in a word-- are “often

the most noticeable environmental effect[s] an airport will

produce on the surrounding community.” In all, the FAA

devotes about half of its discussion on environmental conse-

quences to the effects of an increase in noise. Although

Citizens does not argue that the FAA failed to discuss the

impacts of noise in rough proportion to the effects’ impor-

tance, it does argue that the discussion is incomplete and

unfair. We disagree.

The FAA begins its discussion in the EIS by describing

how it assesses the effects of more noise. Using the same

methods that the EPA and the Department of Housing and

Urban Development use, the FAA measures in decibels the

average day-night sound levels (Ldn) produced at particular

sites during each twenty-four hour period, then corrects its

measurement for variations in airplane speed and formation

"Interestingly enough, birds and deer show no signs of being affected

by the noise or exhaust fumes at the Toledo Express Airport, and officials

of the Ohio Department of Natural Resources have also seen there some

endangered animals, such as the spotted turtle (Clemmys guttata). State

officials report that endangered plants, such as the cross-leaved milkwort

(Polygala cruciata) and twisted yellow-eyed grass (Xyris torta), are even

thriving right beside the main runways.

2la

ig aa st a Nn i cote abhi aetas ids

and the like, adds a ten-decibel penalty for planes that fly at

night, and, under certain circumstances, modifies the result

depending on the number of people affected. See 14 C.F.R.

§ 150.7; id. app. A § A150.205 (describing methodology).

In response to the EPA’s commeats on the draft statement,

the FAA applied a second method of study, analyzing the

effects on noise levels of exposure at twenty-six places to a

single event. The EIS thoroughly explains the social,

psychological, physical, and structural impacts of noise from

Toledo Express. The EIS also explains the resulting Ldn and

the single-event analysis in both mathematical equations and

readable English and illustrates the text and data in graphs,

maps, charts, and tables.

Citizens concedes, if oniy implicitly, that the rule of

reason guiding the FAA necessarily covers the agency’s

discussion of particular environmental impacts. See Natural

Resources Defense Council v. Morton, 458 F.2d at 834.

Relying on Davison v. Department of Defense, 560 F. Supp.

1019 (S.D. Ohio 1982), however, Citizens contends that in

discussing the impacts of noise, a reasonable agency, would

at least estimate the number of people whom an expanded

airport would keep awake. Citizens points out, moreover,

that the EPA criticized the FAA’s original choice of meth-

ods, and that in response to the EPA’s comments the FAA

agreed to modify its analysis in future cases. For these

reasons, Citizens argues, we should find that the FAA’s

discussion was inadequate.

We think that Davison provides only weak support for

Citizens’ argument. In Davison, the Air Force decided to

sell part on an old base to a firm that planned to use it for a

cargo hub. Reviewing the adequacy of the resulting EIS, the

court held that the Air Force had unreasonably failed to

22a .

quantify with some precision the people whom tte hub

activity would keep up at night, had unreasonably neglected

to discuss whether local residents would become accustomed

to the noise, and had unreasonably overlooked the physiolog-

ical effects of long-term sleep disturbance. See 560 F. Supp.

at 1036-37. Here, in contrast, the FAA did all but the first.

On remand in Davison, moreover, the Air Force then stated

in a supplement to the final EIS that "from one hundred to

one thousand people may be awakened from sleep, possibly

repeatedly, for up to four hours per night, approximately 250

nights per year." To the extent that the logic of Davison

would impose a similar requirement on the FAA -- and the

Air Force’s estimate in Davison was not quite the paradigm

of precision that Citizens demands here -- we think it

inconsistent with circuit precedent.

In examining the impacts of noise on the environment,

the FAA relies on wisdom and experience peculiar to the

agency and alien to the judges on this court. We have thus

held consistently that the rule of reason guides every aspect

of the FAA’s approach, including its choice of scientific

method. See, e.g., Sierra Club v. Department of Transp.,

753 F.2d 120, 128 (D.C. Cir. 1985); see also Valley Citizens

for a Safe Environment v. Aldridge, 886 F.2d 458, 469 (1st

Cir. 1989). Employing here a method that we have previ-

ously endorsed, see Sierra Club v. Department of Transp..,

753 F.2d at 128, the FAA proceeded to mold a body of data,

dissect it, and display it in comprehensible forms. The

agency’s choice of method was obviously not capricious.

Nor were the factual conclusions that followed. See Marsh

v. Oregon Natural Resources Council, 490 U.S. 360, 377

(1989) ("Because analysis of the relevant documents ’requires

a high level of technical expertise,’ we must defer to ’the

informed discretion of the responsible federal agencies.’"

23a

(citations omitted)); Valley Citizens, 886 F.2d at 467-69.

The EPA’s criticisms of the FAA, and the agencies’

subsequent deal, do not change our view of the FAA’s

findings. Congress wants the EPA to participate when other

agencies prepare environmental impact statements. See 42

U.S.C. § 7609(a). The EPA participated here. But the

FAA, not the EPA, bore the ultimate statutory responsible

for actually preparing the environmental impact statement,

and under the rule of reason, a lead agency does not have to

follow the EPA’s comments slavishly-- it just has to take

them seriously. See Alaska v. Andrus, 580 F.2d at 474.

The FAA considered the EPA’s criticisms in this case and

decided that enough had been done. That the FAA sensibly ~

resolved to avoid any interagency disputes in the future does

not make its decision in this case unreasonable. We uphold

the FAA’s discussion of the impacts of increased noise.

sha whatnot nt thd wnat nt a el santa

S.

| The regulations of the Council on Environmental

Quality require that an environmental impact statement "be

prepared directly by or by a contractor selected by the lead

agency." 40 C.F.R. § 1506.5(c).: If the agency decides to

contract out the work on the EIS, the agency must choose the

contractor “to avoid a conflict of interest," and the contractor

must “execute a disclosure statement prepared by the lead

agency ... specifying that [it has] no financial or other

interest in the outcome of the project." Jd. Citizens argues

| that the FAA violated the regulations by publishing an EIS

| prepared for the most part by a contractor (Coffman Associ-

ates) that the agency did not itself select and that did not in

any event fill out the necessary disclosure forms. The FAA

maintains that it (the FAA), and not Coffman, prepared the

24a

:

j

:

;

EIS, that even if Coffman did prepare the EIS, it (the FAA),

and not the Port Authority, selected Coffman, and that even

though Coffman did not fill out the disclosure statement, its

(Coffman’s) failure to do so was harmless error.

We reject each of the FAA’s contentions. Offered the

choice of preparing the environmental impacts statement in-

house, the FAA chose the other permissible option and hired

consultants, including Coffman. The FAA then wrote the

consultants’ names and qualifications, including Coffman’s

in a chapter of the EIS entitled “List of Preparers,” see id.

§ 1502.17, a gesture that undermines the agency’s current

litigating position--that Coffman did not prepare the EIS, but

that the FAA did instead, mostly by commenting actively on

Coffman’s drafts. Ultimately, however, the agency’s theory

founders on the plain meaning of the regulations. Although

the CEQ regulations do not define the word "prepare," the

dictionary does; in context, it means here "to put into written

form: draw up...<directed the commission to prepare

proposals.... >." Webster’s Third New Int’l Dictionary 1790

(unabridged ed. 1981); see Sierra Club v. Marsh, 714

F.Supp. 539, 550-51 (D. Me. 1989). That is just what

Coffman did, as the agency freely admits. We need not

decide whether the FAA’s active editing of Coffman’s drafts

-- behavior consistent with the agency’s obligation to "furnish

guidance” to consultants and "participate in the preparation

[of] and...independently evaluate the statement prior to its

approval,” 40 C.F.R. § 1506.5(c) -- made it, too, a preparer

of the EIS. We are certain, however, that Coffman’s initial

drafts and responses to the FAA’s comments made Coffman

‘more than the agency’s amanuensis.

Once the FAA decided not to prepare the environmental

impact statement directly, it was obliged to pick a contractor

25a

itself, and not to delegate the responsibility. See id. The

EIS states that the Port Authority, not the agency, chose

Coffman to work on the environmental assessment, and later,

on the environmental impact statement. The EIS also states

that the agency “concurred” in Coffman’s selection. The

FAA argues that its concurrence in the Port Authority’s

choice satisfied its duty under the regulations. We need not

page through the dictionary at length to decide that concur-

ring in someone else’s choice of consultant is not the same

as choosing a consultant of one’s own.

By failing to select the consultant that prepared the

environmental impact statement, the FAA violated CEQ

regulations. Citizens urges us to remedy this breach by

invalidating the EIS. We see no reason to do so, however,

at least not solely on the ground that the FAA neglected to

search on its own for a competent contractor. This particular

error did not compromise the "objectivity and integrity of the

NEPA process.” Forty Questions, 46 Fed. Reg. at 18,031;

see Sierra Club v. Sigler, 695 F.2d 957, 963 n.3 (5th Cir.

1983) (CEQ Regulations are "’designed...to minimize the

conflict of interest inherent in the situation of those outside

the government coming to the government for money, leases

or permits while attempting impartially to analyze the

environmental consequences of their getting it.’" (quoting 43

Fed. Reg. 55,987 (1978))); of. 40 C.F.R. § 1500.3 ("[I]t is

the [CEQ’s] intention that any trivial violation of these

regulations not give rise to any independent cause of ac-

tion.").

The more serious infraction, in our view, was

Coffman’s failure to fill out the disclosure form exacted of

consultants that prepare environmental impact statements.

See id. § 1506,5(c). Citizens points out that Coffman (in

26a

co tn tat eh SR tices A Seine" et

addition to having prepared the EIS) has started to prepare

the Port Authority’s Part 150 study, and that the scope of the

study will vary directly with the status of the airport (since

the Port Authority is relying on the study to fine tune its

mitigation plans). The FAA argues that Coffman had no

reason to know while preparing the EIS that the agency

would want it to expand the Part 150 study. The FAA may

well be correct, but neither the petitioners nor this court can

know for certain in the absence of a completed disclosure

form. Moreover, the CEQ regulations prohibit broadly any

"financial or other interest in the outcome of the project.”

Id. (emphasis added); see Forty Questions, 46 Fed. Reg. at

18,031 (interpreting “conflict of interest" to mean "any

known benefits other than general enhancement of profes-

sional reputation"). The FAA promised the petitioners in a

letter that "Coffman does not have an undisclosed stake in

the project that would potentially disqualify it.” That ipse

dixit does not reassure us. We therefore order the FAA to

have Coffman execute an appropriate disclosure statement,

see 40 C.F.R. § 1506.5(c), and, should the agency find that

a conflict exists, to decide -- promptly -- on the measures to

take in response.

Il.

Under section 4(f) of the Department of Transportation

Act of 1966, the Secretary of Transportation may not

approve a project requiring the use of a park unless he

determines, first, that there is no “prudent and feasible

alternative” to using the land, and second, that the project

includes "all possible planning to minimize harm to the park

... resulting from the use.” Transportation Act § 4(f), 49

27a

U.S.C. § 303(c).? The FAA (which is part of the Depart-

ment Transportation, see 49 U.S.C. § 106(a)) acknowledged

that the proposed expansion of Toledo Express would

constructively "use" the Springbrook campground since

flights from the airport would subject the camp to nighttime

noise of up to Ldn 75 decibels, about 10 to 15 decibels more

than now. Cf. Allison v. Department of Transp., 908 F.2d

1024, 1030 (D.C. Cir. 1990) (no section 4(f) use when park

is subjected to only minor increases in airplane noise). The

agency nonetheless decided that while there might be a

feasible alternative to using the campground, cf. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411

(1971) (alternative is "feasible" unless "as a matter of sound

engineering” it should not be built), there existed no prudent

one, and that the project would ease the harm to Springbrook

by moving it elsewhere inside the park, but outside the reach

of Ldn 65 decibels. Citizens argues that a feasible and

prudent alternative to using the campground did exist:

leaving the airport in Toledo alone and expanding the airport

in Fort Wayne instead. Citizens also argues that the project

does not adequately diminish the harm to Springbrook

°The Secretary [of Transportation] may approve a transportation

program or project ... requiring the use of publicly owned land of a

public park, recreation area, or wildlife and waterfowl refuge of national,

State, or local significance ... only if--

(1) there is no prudent and feasible alternative to using that land;

and

(2) the program or project includes all possible planning to

minimize harm to the park, recreation area, wildlife and

waterfowl refuge, or historic site resulting from the use.

Transportation Act § 4(f), 49 U.S.C. § 303(c).

28a

i

;

5

'

$

3

|

3

:

4

:

because the FAA did not consider, among other ideas, fining

the owners of planes that are noisy, and because the FAA

has not said where exactly in Oak Openings it plans to put

the new campground.

Overton Park instructs courts to undertake "a thorough,

probing, in-depth review" of decisions under section 4(f),

401 U.S. at 415, and to canvass the facts of section 4(f)

cases “searching[ly] and careful[ly]," id. at 416. Our

ultimate standard of review is nonetheless deferential. See

id.; Eagle Found., Ind. v. Dole, 813 F.2d 798, 804 (7th Cir.

1987). We are entrusted with ensuring that the agency

looked hard at the pertinent facts and thought hard about the

relevant factors. See id. at 803. We are required to repudi-

ate agency caprice. Once we determine that the agency’s

decision was reasonable, however, we are not entitled to

displace its decision with our own or with anyone else’s. See

Overton Park, 401 U.S. at 416.

Reasoning by analogy to NEPA, the FAA argues that an

alternative must be imprudent under section 4(f)(1) if it fails

to accomplish a proposal’s objectives. According to the

FAA, since a hub in Fort Wayne would do nothing for

Toledo, and since the health of the Toledo economy was a

primary reason for the Port Authority’s application, Fort

Wayne was an imprudent alternative and the FAA did not act

arbitrarily in approving the use of Springbrook. In effect,

the FAA’s argument would mean that anytime an alternative

is unreasonable under NEPA (and thus would not have to be

discussed in detail in the environmental impact statement),

the alternative would also be imprudent within the meaning

of section 4(f)(1) of the Transportation Act (and thus wouid

not block approval of transportation project).

29a

Although an agency’s analysis under NEPA and the

Transportation Act might proceed in similar tracks, the two

Statutes are not precisely the same. The Transportation Act

differs from NEPA in at least two ways. First, the Trans-

portation Act requires the agency to evaluate “prudent ...

alternatives to using th[e] land" -- alternatives to the project,

that is -- not alternatives to the federal action. Second,

contrary to the FAA’s argument, the case law uniformly

holds that an alternative is imprudent under section 4(f)(1) if

it does not meet the transportation needs a project. See

Hickory Neighborhood Defense League v. Skinner, 910 F.2d

159 164 (4th Cir. 1990); Druid Hills Civic Ass’n v. Federal

Highway Admin., 772 F.2d 700, 715 (11th Cir. 1985);

Arizona Past & Future Found. v. Dole, 722 F.2d 1423,

1428-29 (9th Cir. 1983). The Transportation Act is similar

to NEPA in that the agency bears the responsibility for

defining at the outset the transportation goals for a project

and for determining which alternatives would reasonably

fulfill those goals.

Having focused on the statutes’ apparent similarities,

and disregarded their differences, the FAA never quite

specified with ideal coherence the transportation goals of the

project at Toledo Express. In future cases, the agency

should bear in mind the differences between NEPA and the

Transportation Act, and the agency’s section 4(f) documenta-

tion package should reflect the concerns specific to the latter

statute. Still, in approving in this case the use of the park in

Toledo, the FAA reasonably defined the transportation goals

of the project as providing the Toledo area with a modern,

effective cargo hub. Given this definition of the project’s

aims, the FAA need not have examined in detail the relative

flaws of Baer Field, including its antiquated condition, its

distance from Burlington’s main markets (Detroit and

30a

A. sai antes towne elbieecaeatill

Chicago), Fort Wayne’s limited pool of labor, and the city’s

failure to come up with the necessary financing. It was

enough for the agency to find that a hub in Baer Field would

not fulfill the transportation goals of the project at Toledo

Express and that Fort Wayne was therefore less than a

prudent alternative to using Toledo. Because its conclusion

was reasonable, the FAA did not violate section 4(f)(1).

Nor did the FAA violate section 4(f)(2), which requires

that the "project include[] all possible planning to minimize

harm to the park.” Light from the expanded Toledo Express

airport might temporarily blind amateur astrophotographers,

and planes, in addition to stars, might appear in their

pictures. More noise would make camping at Springbrook

less enjoyable. The FAA thus plans to install shielded, low-

pressure sodium lights in the airport’s parking lots and to

move the campground somewhere else in the park, out of the

range of the Ldn 65 decibels. Citizens accepts the measures

meant to save astrophotography, but it (and the EPA) would

rather the FAA try other tactics to save the present camp-

ground, such as fining the owners of noisy planes or requir-

ing the use of noise barriers. If Springbrook is to be moved,

moreover, Citizens wants to know exactly where.

The deference we pay to decisions under section 4(f)(1),

however, see Eagle Found., 813 F.2d at 803-08, applies as

well to decisions under section 4(f)(2), see Coalition on

Sensible Transp., Inc. v. Dole, 826 F.2d 60, 65-66 (D.C.

Cir. 1987). Congress wanted the agencies, not the courts, to

evaluate plans to reduce environmental damage. The FAA

thoroughly examined the impacts that the airport’s expansion

would have on protected parkland and proposed various

tactics to mitigate them. The FAA then decided (with the

support of the-Department of the Interior) to move the

ae

3la

campground to the half of Oak Openings that falls outside the

range of Ldn 65 decibels. Citizens, dissatisfied, wants us to

force the FAA to pinpoint the new campground’s geographic

‘coordinates. But federal courts are neither empowered nor

competent to micromanage strategies for Saving the nation’s

parklands. See id. at 66. Because the FAA’s decision in

this case does not reflect "a clear error of judgment," we are

constrained to let it stand. Overton Park, 401 U.S. at 416.

IV.

Under section 509(b)(5) of the Airport and Airway

Improvement Act of 1982 (AAIA), the FAA may not

approve a project that harms .the environment unless the

agency first determines that there is no "feasible and prudent

alternative” and that "all reasonable steps have been taken to

minimize [the] adverse effect." AAIA § 509(b)(5), 49

U.S.C. app. § 2208(b)(5).'° Citizens argues that any time

the FAA violates section 4(f)(1) of the Transportation Act,

the agency automatically violates section 509(b)(5) of the

AAIA as well. We recognize that some of section 509(b)(5)

‘The Secretary [of Transportation] shall consult with the Secretary

of the Interior and the Administrator of the [EPA] with regard to

any project included in a project grant application involving airport

location, a major runway extension, or runway location which may

have a significant impact on natural resources including, but not

limited to, fish and wildlife, natural, scenic, and recreation assets,

water and air quality, and other factors affecting the environment,

and shall authorize no such project found to have significant

adverse effect unless the Secretary shall render a finding...that no

feasible and prudent alternative exists and that all reasonable steps

have been taken to minimize such adverse effect.

AAIA § 509(b)(5S), 49 U.S.C. app. § 2208(b)(5).

32a

parrots some of section 4(f)(1). An agency that fails to

choose a "prudent and feasible alternative," AAIA §

509(b)(5), 49 U.S.C. app. § 2208(b)(5), obviously fails at

the same time to choose a "feasible and prudent alternative,"

Transportation Act § 4(f)(1), 49 U.S.C. § 303(c)(1). The

agency can violate or observe two statutes synchronously.

But we have already determined that the FAA did not violate

section 4(f)(1): Fort Wayne was an impudent, if feasible,

alternative to Toledo. Therefore, although we agree in

principle with this aspect of Citizens’ theory, we have little

trouble deciding under section 509(b)(5) that while Fort

Wayne may have been a feasible alternative to Toledo, it was

also an imprudent one.

We have also upheld in this case the informal finding

required by section 4(f)(2) of the Transportation Act, that the

Toledo Express project includes “all possible planning to

minimize harm" to Oak Openings. Transportation Act §

4(f)(2), 49 U.S.C. § 303(c)(2) (emphasis added). Section

509(b)(5) of the AAIA, though roughly congruous, com-

mands agencies to find that "all reasonable steps have been

taken to minimize such adverse effect." AAIA § 509(b)(5),

49 U.S.C. app. § 2208(b)(5) (emphasis added). We do not

decide whether and under what circumstances a mitigation

plan that is unreasonable would still be possible -- that is,

whether the FAA might have to implement plans under

section 509(b)(5)."" We do decide, however, that all plans

"Of, AAIA § 509(c), 49 U.S.C. app. § 2208(c):

Nothing in this subsection shall affect or discharge any

responsibility or obligation of the Secretary under any other

federal law, including ... the National Environmental Policy

Act of 1969 [or] section 303 of this title [section 4 of the

Transportation Act] ....

33a

that are impossible are necessarily unreasonable -- that is,

that when the FAA does not have to implement a particular

plan under section 4(f)(2) of the Transportation Act, it is also

spared from having to implement that plan under section

509(b)(5) of the AAIA. The FAA has done all that it could

have for Oak Openings. It has therefore done all that it

should have. With respect to Oak Openings, the FAA has

not violated section 509(b)(5).

Section 509(b)(5), however, does cover more than just

parks and historic landmarks. The statute applies to virtually

everything environmental. Compare AAIA § 509(b)(5), 49

U.S.C. app. § 2208(b)(5) ("natural resources including, but

not limited to, fish and wildlife, natural, scenic, and recre-

ation assets, water and air quality, and other factors affecting

the environment") with Transportation Act § 4(f), 49 U.S.C.

§ 303(c) ("publicly owned land of a public park, recreation

area, or wildlife and waterfowl refuge of national, State, or

local significance, or land of an historic site of national,

State, or local significance"). Citizens thus argues further

that whatever the FAA has planned for Oak Openings, the

agency has violated Section 509(b)(5) with respect to other

areas of the environment affected by the proposed expansion.

Again, we disagree.

The EIS in this case states that the Port Authority has

promised to take several steps to blunt the impact of the

increased noise: those measures include buying out the

owners of every private house and nursing home within

range of more than L,, 75 decibels, insulating doors and

windows in homes subjected to noise between L,, 70 and 75

decibels, and buying easements from the owners of homes

within the reach of L,, 65 to 70 decibels. The EIS estimates

how much the mitigation plans will cost. The EIS explains

34a

that the Part 150 study (which requires that the FAA consid-

er certain minimum noise-controi alternatives) will help flesh

out the details of the mitigation plans.'* The EIS also notes

that the FAA will impose conditions on its grants designed

to ensure that the Port Authority delivers. Citizens, dissatis-

fied, wants the specifics now: It demands that the FAA finish

its Part 150 study before the agency be allowed to approve

the Toledo proposal. Citizens demands further that the FAA

actually execute its mitigation strategy before Burlington

starts flying out of Toledo. In Citizens’ view, the latter is

required by section 509(b)(5) and the former is required both

by section 509(b)(5) and by the Supreme Court’s interpreta-

tion of NEPA in Robertson v. Methow Valley Citizens

Council, 490 U.S. 332 (1989).

'2Under the FAA’s regulations, the operator of an airport must report

on:

(1) Acquisition of land and interests therein, including ... air rights,

easements, and development rights, to ensure the use of property

for purposes which are compatible with airport operations.

(2) The construction of barriers in acoustical shielding, including

~ the soundproofing of public buildings.

(3) The implementation of a preferential runway system.

(4) The use of flight procedures (including the modification of

flight tracks) to control the operation of aircraft to reduce exposure

of individuals (or specific noise sensitive areas) to noise in the area

around the airport.

(5) The implementation of any restriction on the use of [the] airport

by any type or class of aircraft based on the noise characteristics

of those aircraft ....

14 C.F.R. app. B § B150.7(b).

35a

We think that Citizens reads too much into both Methow

Valley and section 509(b)(5). Neither one prescribes specific

form or content for environmental impact statements.

Instead, as the Supreme Court noted in passing, both the

CEQ regulations and NEPA itself compel only "a reasonably

complete discussion of possible mitigation measures." 490

U.S. at 352; see id. at 351-52 (interpreting NEPA §

102(2)(C)(ii), 42 U.S.C. § 4332(2)(C)(ii), and 40 C.F.R. §§

1508.25(b), 1502.14(f), 1502.16(h), 1502.2(c)); Forty

Questions, 46 Fed. Reg. at 18,031-32. The EIS in this case

may not be flawless, but it certainly is reasonably complete.

The same is true of the Port Authority’s mitigation

plans. NEPA not only does not require agencies to discuss

any particular mitigation plans that they might put in place,

it does not require agencies -- or third parties -- to effect

any. See Methow Valley, 490 U.S. at 353 & n.16. Section

509(b)(5), in contrast, does "impose substantive environmen-

tal obligations on federal agencies." Jd. at 351. But section

509(b)(5) does not order agencies to take all steps to lessen

environmental trauma, just all reasonable ones. Congress

has entrusted the FAA with the statute’s administration, and

in interpreting section 509(b)(5)’s ambiguous language the

FAA reasonably concluded that a detailed mitigation plan,

coupled with grounds to believe that the plan will be imple-

mented, is enough of a “reasonable step." We do not mean

to suggest that the agency’s program is perfect; indeed, the

FAA acknowledges that the Part 150 study by itself would

not nearly be enough to satisfy the statute. But the Port

Authority’s Part 150 study will be detailed, as the law

requires, and we do not think that the agency committed a

“clear error of judgment" in deciding to use the study to

perfect the timing of an otherwise concrete proposal.

Overton Park, 401 U.S. at 416. The FAA has therefore met

36a

its obligations under the statute.

V.

We hold that the FAA has fulfilled the requirements of

NEPA, the Transportation Act, the AAIA, and all the CEQ

regulations but one. We therefore grant the petition for

review and remand to the agency so that it may comply with

40 C.F.R. § 1506.5(c). We affirm the FAA’s decision in all

other respects. Given the limited nature of what remains for

the agency to do, we decline to enjoin the continuing

development of Toledo Express or to grant any other of the

equitable relief that the petitioners have asked for. See

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 541-

46 (1987); see also Weinberger v. Romero-Barcelo, 456 U.S.

305, 313 (1982) ("[A] federal judge sitting as chancellor is

not mechanically obligated to grant an injunction for every

violation of law.").

It is so ordered.

BUCKLEY, Circuit Judge, dissenting in part: Burlington

Air Express and the Federal Aviation Administration might

be right: On substantial economic and environmental balance,

Toledo Express Airport may well be the only suitable site of

Burlington’s air cargo hub. The public cannot know for

certain, however, and neither can the FAA. By refusing to

inquire into the feasibility of sites rejected by Burlington, the

agency sidestepped its obligation to prepare “a detailed

Statement ... on ... alternatives to the proposed action." 42

_ U.S.C. § 4332(2)(C) (1988). The majority endorses this

evasion. I cannot, and therefore I dissent from part II(A) of

the majority opinion. While "the concept of ’alternatives’ is

an evolving one,” Vermont Yankee Nuclear Power Corp. v.

37a

eee I (ann Ss Nae a

NRDC, 435 U.S. 519, 552 (1978), judicial evolution may not

reduce it to a vermiform appendix.

I.

In a narrow sense, the only federal action that is

involved when a non-federa: applicant seeks federal approval

or funding is the agency’s decision to grant or deny the

applicant’s request. No one disputes, however, that the

agency’s environmental impact statement ("EIS") must

inquire into reasonable alternatives to the applicant’s propos-

al. The only controversy is over the nature of the alterna-

tives that the EIS should consider. See, e.g., Friends of the

River v. FERC, 720 F.2d 93, 104-05 (D.C. Cir. 1983)

(permit to operate hydroelectric plant; alternative of purchas-

ing power from other producers); Mason County Med. Ass’n

v. Knebel, 563 F.2d 256, 262-63 (6th Cir. 1977) (permit to

build coal-fired steam electric generator; alternatives of

nuclear, geothermal, conservation, purchased power, and

others); North Carolina v. FPC, 533 F.2d 702, 707 (D.C.

Cir.) (permit to build hydroelectric plant; alternative of

conservation), vacated on other grounds, 429 U.S. 891

(1976).

The majority would limit the consideration of alterna-

tives to those available to the Toledo-Lucas County Port

Authority. As the majority sees it, the FAA "defined the

goal for its action as helping to launch a new cargo hub in

Toledo and thereby helping to fuel the Toledo economy."

As a consequence, airports outside the Toledo area were not

. to be considered because "[nJone ... would serve the purpose

of the agency’s action.” Maj. op. at 15. I read the EIS

differently. Recognizing that Burlington is an essential party

to the Port Authority’s application, the FAA understands that

38a

the EIS must consider any reasonable alternative to Toledo

Express Airport that might be available to Burlington,

whether it lies within the Toledo area or outside it.

Thus, while the EIS begins by reviewing the proposed

construction and expansion of the Taledo Express Airport.

EIS at 1-1, it pays particular attention to Burlington. The

"Background" section recounts Burlington’s existing opera-

tions at Fort Wayne, Burlington’s unsuccessful negotiation

for the expanded facilities required for a permanent hub at

Fort Wayne, Burlington’s decision to look elsewhere,

Burlington’s analysis of seventeen sites, and Burlington’s

ultimate section of Toledo. Jd. at 1-2. The "Alternatives"

section rejects the other four airports in the Toledo area in

part because their expansion would take longer, and "Burlin-

gton officials have indicated they cannot accommodate an

extended time period.” Jd. at 2-15. “Burlington officials

have indicated that Fort Wayne is not a permanent alterna-

tive,” and that other airports surveyed by Burlington’s

consultants were rejected “because of the advantages of the

Toledo Express Airport.” Jd. at 2-15, 2-16. The "Benefits

of Proposed Project" section acknowledges the economic

advantages that will flow to Toledo, but links them to

Burlington’s decision to locate there. "The Proposed Project,

while serving a demand that is being created by Burlington

Air Express’s decision to locate in Toledo, will provide

economic benefits and employment opportunities to the

community.” Jd. at 1-4. Burlington makes the demands that

define the project; Toledo enjoys the benefits that result.

The FAA takes a broader view of its responsibilities

Secause it acknowledges that the proposed project is intended

to serve several purposes. Toledo seeks the substantial

economic benefits that will accrue from the establishment of

39a

an air cargo hub in its metropolitan area. Burlington seeks

a home for its air cargo operations, one that will be tailored

to its specifications. For its part, the FAA is conscious of its

mandate, under the Airport and Airway Improvement Act

("AAIA"), 49 U.S.C. app. § 2201(a)(7) (1988), to encourage

the development of a national system of air cargo hubs. See

EIS at S-1 to S-2.

I cannot fault the FAA for the attention given

Burlington and its preferences. While both Toledo and

Burlington are indispensable to the enterprise, Burlington is

plainly the dominant partner; its requirements and desires

shaped the project from the start. As the agency points out

in its Record of Decision ("ROD"), "[t]he demand for this

project is clearly based on a business decision by Burlington

Air Express and the interest of a local airport sponsor, the

Toledo-Lucas County Port Authority, in accommodating and

facilitating this decision." ROD at 29.

I do fault the agency for failing to attend to its own

business, which is to examine all alternatives “that are

practical or feasible from the technical and economic stand-

point ... rather than simply desirable from the standpoint of

the applicant." Forty Most Asked Questions Concerning

CEQ’s National Environmental Policy Act Regulations

("Forty Questions”), 46 Fed. Reg. 18,026, 18,027 (1981)

(emphasis omitted). As far as I can tell, the FAA never

questioned Burlington’s assertions that of the ones consid-

ered, Toledo Express is the only airport suitable to its

purposes. Instead, the agency simply accepted Burlington’s

"Toledo-or-bust" position. Thus, the EIS notes that Burling-

ton hired consultants to help it choose a new hub site, and

that the consultants prepared a confidential report. EIS at 2-

1 to 2-2. The impact statement fails to summarize the

40a

report; indeed, it does not say whether Burlington made the

document available to the FAA. The EIS reports that a letter

from the consultants demonstrates that Burlington’s Toledo

decision rests on "legitimate business interests.” Jd. at 2-2.

Of Burlington’s decision to leave Fort Wayne, the FAA’s

Record of Decision similarly declares: "This is a business

decision on the part of Burlington, in which the FAA has not

been involved.” ROD at 10. The FAA thus accepts at face

value Burlington’s assertion that it had no second choice.

See EIS at 2-16; ROD at 30-31.

Burlington’s stance may have been at least partly

tactical. The consultants told the FAA that their “overall

business judgement ... was to recommend Toledo"; they

made no claim that Toledo was the only feasible site among

the seventeen examined. EIS app. at E-64. In its comments

on the EIS, Burlington conceded that it "would obviously

have preferred to remain at Fort Wayne.” Jd. app. at E-28.

A principal obstacle was money: "Fort Wayne was unable

to compose a competitive funding package and development

plan for a permanent hub,” id., whereas Toledo “worked

diligently” to produce a "creative" funding package, id. app.

at E-27.

Nevertheless, Fort Wayne kept trying; in an April 1990

letter, the Fort Wayne-Allen County Airport Authority

assured Burlington that "it is totally feasible to expect to

structure a financial package for Fort Wayne similar to that

currently under consideration at Toledo.” Joint Appendix

266. Replying in early May 1990 -- the same month the

final EIS was issued -- Burlington expressed appreciation for

‘the "cooperative and constructive tone of your letter" and the

"really outstanding character of the Airport Authority,” and

said that it would “look to Fort Wayne for support and

4la

solutions as and if our Toledo commitment is altered by any

of the risks or uncertainties that lie ahead." Id. at 268.

Although this exchange was not part of the record at the

time the EIS was prepared, parties commenting on the EIS

inquired about newspaper reports of reopened negotiations

between Burlington and Fort Wayne, and the FAA asked the

company to clarify its position. Jn a letter dated June 27,

1990, its Chief Executive Officer stated "for the record that

Burlington does not have any existing viable alternative to

the proposed new hub project at Toledo.” ROD at 30-31.

Once again, the FAA took Burlington at its word: "Base [sic]

! on this reconfirmation of the findings in the FEIS [Final

| EIS], the FEIS need not be revised or supplemented to

| consider Fort Wayne as a reasonable alternative." Jd. at 31.

I do not suggest that Burlington is untrustworthy, only

that the FAA had the duty under NEPA to exercise a degree

of skepticism in dealing with self-serving statements from a

prime beneficiary of the project. It may well be that none of

the sixteen other alternatives examined by Burlington and its

consultants could be converted into a viable air cargo hub at

acceptable cost. That, however, was something that the

FAA should have determined for itself instead of accepting

as a given. Under NEPA, "the federal agency must itself

determine what is reasonably available." Trinity Episcopal

School Corp. v. Romney, 523 F.2d 88, 94 (2d Cir. 1975);

see Van Abbema v. Fornell, 807 F.2d 633, 642 (7th Cir.

1986) (condemning agency’s "blind reliance on material

prepared by the applicant"). By allowing the FAA to

abandon this requirement, the majority establishes a prece-

| dent that will permit an applicant and a third-party beneficia-

ry of federal action to define the limits of the EIS inquiry

and thus to frustrate one of the principal safeguards of the

| 42a

)

NEPA process, the mandatory consideration of reasonable

alternatives.

The majority and the FAA respond to any suggestions

that Fort Wayne might be a feasible alternative by emphasiz-

ing that the federal government can no longer tell carriers

where to place hub airports. Maj. op. at 13-14; EIS app. at

C-16. They miss the point. While the agency cannot tell

Burlington where to go, it can refuse to approve the Toledo

project, or to provide any funding for it. The agency’s

Record of Decision acknowledges as much: "While the FAA

is not in a position to control or direct the actions and

decisions of Burlington or of ["Toledo"], the FAA does have

the ability to support or withhold approval for the pruposed

federal actions ... .". ROD at 9. It is the exercise of that

discretion that the EIS is supposed to inform.

Had the FAA rejected the proposal on the ground that

Fort Wayne is a feasible, environmentally preferable alterna-

tive, it would not have been ordering Burlington "to establish

hubbing operations at a specific airport." EIS app. at C-16.

Burlington would still have been free to seek out another

location, as it insisted it would should the Toledo application

be denied. Rather, the agency would simply have exercised

its statutory responsibility to base its decision on a "compari-

son of the net balance for the proposed project with the

environmental risks presented by alternative courses of

action." NRDC v. Morton, 458 F.2d 827, 833 (D.C. Cir.

1972).

Il.

Even if the FAA had correctly concluded that the only

reasonable alternative was "No Action,” its EIS would still

43a

be flawed. By viewing the no-action alternative exclusively

through Toledo’s eyes, it failed to appreciate that that city’s

gains must necessarily be Fort Wayne’s losses. Thus the EIS

informs us that whereas the proposed project would produce

750 new jobs and $17 million for the Toledo economy during

the first full year of operation, EIS at 1-4, "the no-action

alternative would mean foregoing ... [these] economic

benefits.” Jd. at 2-13.

This analysis suggests that the jobs and dollars will arise

spontaneously from the Toledo soil. In reality, Toledo’s

gains will come at Fort Wayne’s expense. Burlington’s

Forty Wayne payroll is $8 million, id. app. at B-92; its

Toledo payroll will begin at $9 million, id. at 1-4. If the

project were canceled, Toledo would forego "substantial

economic benefits," id. at 2-13; but, unless Burlington were

to shut down entirely, which it has asserted it will not,

Toledo’s loss would be offset by jobs and economic activity

in Fort Wayne, or whatever other city ultimately served as

Burlington’s permanent hub.

More broadly, by emphasizing the economic conse-

quences to Toledo, the FAA and the majority seem to view

the Airports and Airways Improvement Act as an urban

welfare statute. As the EIS notes, the AAIA merely directs

the FAA "to facilitate the establishment of air cargo hubs" in

the United States. Jd. at 1-3. While a city will inevitably

benef »vonomically from proximity to a major airport, this

is no more than a by-product of federal funding under the

AIAA. From a national perspective, it is of little conse-

quence whether the beneficiary of this federal activity is

Toledo or some other community.

The FAA was probably free to disregard economic

44a

effects in the EIS. See CEQ Regulations, 40 C.F.R. §

1508.14 (1990) (requiring discussion of economic effects

only if they are "interrelated with natural environmental

effects). Once it undertook to discuss them, however, it was

obliged to be impartial; an EIS "must be objectively prepared

and not slanted to support the choice of the agency’s pre-

ferred alternative.” Forty Questions, 46 Fed. Reg. at

18,027. Because the FAA’s no-action analysis failed to

recognize the impact on the Fort Wayne ecoromy, it failed

to meet the standard of objectivity required by NEPA.

Il.

The EIS requirement "seeks to ensure that each agency

decision maker has before him and takes into proper account

all possible approaches to a particular project ... which

would alter the environmental impact and the cost-benefit

balance.” Calvert Cliffs’ Coordinating Comm. Inc. v. AEC,

449 F.2d 1109, 1114 (D.C. Cir. 1971). With its uncritical

dismissal of alternatives and its myopic view of economic

consequences, the EIS here fell short of this objective. As

a result, we cannot be confident that in approving Toledo’s

applications, the FAA took the pertinent environmental as

well as economic and technical considerations into the

balance. And that, of course, is the purpose of the Nationa!

Environmental Policy Act.

By sanctioning the FAA’s approach, the majority in

effect allows a non-federal party to sort out alternatives based

entirely on economic considerations, and then to present its

preferred alternative as a take-it-or-leave-it proposition. If

allowed to stand, today’s decision will undermine the NEPA

aim of "inject[ing] environmental considerations into the

federal agency’s decisionmaking process." Weinberger v.

45a

Catholic Action of Hawaii/Peace Educ. Proj. , 454 U.S. 139,

143 (1981). The discussion of reasonable alternatives -- "the

heart of the environmental impact statement," 40 C.F.R. §

1502.14 -- becomes an empty exercise when the only

alternatives addressed are the proposed project and inaction.

In our first encounter with NEPA twenty years ago, we

spoke of the duty to ensure that "important legislative

purposes, heralded in the halls of Congress, are not lost or

misdirected in the vast hallways of the federal bureaucracy.”

Calvert Cliffs’, 449 F.2d at 1111. Because I believe that the

court today shirks that duty, I respectfully dissent.

46a

APPENDIX B

UNITED STATES COURT OF APPEALS _

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 90-1373 September Term, 1990

Citizens Against Burlington, Inc., et al.,

Petitioners

v.

James B. Busey IV. Administrator,

Federal Aviation Administration,

Respondent

Petition for Review of an Order of the

Federal Aviation Administration

Filed: June 14, 1991

Before Buckley, Williams, and Thomas, Circuit Judges.

LUDG NT

This cause came on to be heard on the petition for

review of an order of the Federal Aviation Administration

and was argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED, by the Court, that the

petition for review is granted in part and denied in part, and

that the case is. remanded for further proceedings, all in

accordance with the Opinion for the Court filed herein this

date.

47a

Per Curiam

FOR THE COURT:

/s/

CONSTANCE L. DUPRE, CLERK

Date: June 14, 1991

Opinion for the Court filed by Circuit Judge Thomas

Opinion dissenting in part filed by Circuit Judge Buckley

48a

APPENDIX C

U.S. DF?ARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

GREAT LAKES REGION

RECORD OF DECISION

FOR

TOLEDO EXPRESS AIRPORT

TOLEDO, OHIO

JULY 12, 1990

I. Introduction and Background

Toledo Express Airport encompasses approximately 1,500

acres of land and is located 25 miles west of downtown

Toledo, within Swanton and Monclova Townships, Lucas

County, Ohio. The airport is owned by the City of Toledo

and operated by the Toledo-Lucas County Port Authority (T-

LCPA). The airport serves the Toledo Metropolitan area

which includes portions of southeastern Michigan and

northwestern Ohio. The Toledo Express Airport is classified

as an air carrier/general aviation airport, and is used for both

military and civilian operations. The 180th Tactical Fighter

Wing of the Ohio Air National Guard is based on the field.

In April 1988, T-LPCA initiated a Master Plan Update Study

for Toledo Express Airport that was financed in part with

Federal funds issued under the Airport and Airway Improve-

ment Act of 1982. Simultaneous with the conduct of the

Master Plan Study, T-LCPA undertook a Federal Aviation

Regulations (FAR) Part 150 Noise Compatibility Planning

49a

Study. As part of the Master Study, an Airport Layout Plan

was developed which shows the existing and proposed

facilities that T-LCPA considers necessary for the operation

and continued development of. the airport.

Subsequent to the initiation of the master plan update, T-

LCPA was approached by an air cargo operator, Burlington

Air Express, which was seeking to establish a permanent air

cargo hub after operating at Fort Wayne, Indiana since 1985.

Burlington Air Express had at that time entered into a five-

year agreement with the Ft. Wayne-Allen County Airport

Authority to establish a temporary air cargo hub at Baer

Field, Ft. Wayne, Indiana. In order to establish a permanent

hub at Baer Field, a new sorting building, a ramp, and

additional airport improvements needed to be built for

Burlington to use. Unable to reach an agreement for the

improvements needed to stay in Ft. Wayne, Burlington began

looking for alternative sites in 1987. After examining

seventeen (17) airports in four Midwestern states, Burlington

determined that the best location for a new permanent hub

would be in Toledo, Ohio at the Toledo Express Airport.

This site selection process is described in the FEIS on pages

2-1 through 2-2.

Burlington negotiated an agreement with the T-LCPA to

commence operations at Toledo Express Airport in October,

1990 as Burlington was originally scheduled to depart Ft.

Wayne by that date. Burlington recently negotiated a lease

extension at Ft. Wayne to January 1, 1992 to allow sufficient

time for construction of new facilities.

As a result of the agreement between T-LCPA and Burling-

ton, many of the improvements shown on the updated

Airport Layout Plan are to support the development of a

50a

Lv, laden

national air cargo hub. However, the T-LCPA is continuing

the preparation of its Master Plan for the airport to evaluate

existing conditions and facilities and to provide direction for

future development. The FAR Part 150 Noise Compatibility

Study, also under preparation, is to specifically evaluate

noise and land use compatibility issues associated with

existing and future airport operations.

On February 2, 1989,’ T-LCPA submitted to the Federal

Aviation Administration (FAA) its first Airport Layout Plan

revisions for approval. Aeronautical studies of this Airport

Layout Plan revisions and others to follow were conducted

by the FAA from June 1989 to June 1990, to determine their

acceptability from an airspace utilization standpoint. Ap-

proval of the Airport Layout Plan signifies FAA’s concur-

rence with design of proposed improvements from the

standpoint of safety, utility, and efficiency.

The FAA completed a Final Environmental Impact Statement

(FEIS) evaluating the Airport Layout Plan revisions submit-

ted in 1989 and 1990, and other Federal actions described in

this Record of Decision. The FAA approved the FEIS on

May 11, 1990.

Il. Federal Actions Required to Implement the Preferred

Alternative

The first federal action to be undertaken consists of the

approval of a revision to the Airport Layout Pian for the

airport to facilitate T-LCPA’s construction of facilities at the

airport for an air cargo hub. The purpose and need for this

action lies in FAA’s responsibility to review the airport

‘Subsequent revisions have been submitted to the FAA for review.

S5la

design and runway configuration with respect to its safety,

efficiency and utility within the national airspace system and

its environmental impact on the surrounding area.

Chapter One of the Final Environmental Impact Statement

(FEIS) describes the airport development items which will

require Federal approval on the Airport Layout Plan. These

are also identified in the following section of this Record of

Decision.

An Airport Layout Plan showing the proposed improvements

has been processed by the FAA to determine conformance

with FAA design criteria and implications for federal grant

agreements (refer to Federal Aviation Regulations Parts 77,

152, and 157). The FAA has performed airspace reviews of

| the proposed development and has ensured that the improve-

ments and procedures proposed for development at Toledo

Express Airport, which are described in the FEIS, are

generally compatible with existing airspace alignment and

| procedures (see Attachment I to this Record of Decision

| ROD)). In conjunction with federal processing of the

| Airport Layout Plan, an application for federal financial

| assistance will be made by the T-LCPA for various items in

the project which are depicted on the plan.

The Preferred Alternative will require FAA action in the

| establishment of air traffic control and flight operating

| procedures for use in conjunction with the proposed develop-

| ment. The FAA will develop additional air traffic control and

| airspace management procedures designed to effect the safe

and efficient movement of air traffic to and from the airport

| as described in the FEIS and depicted on the Airport Layout

Plan. With respect to the close-in terminal air traffic and

airspace environment used for the final phase of landing and

j 52a

initial phases of take-off, the FAA will design and establish

appropriate standardized flight operating procedures, within

the contours set forth within the FEIS, for use with the

runway extension and Category II ILS.

FAA action also could include the installation/relocation and

operations of various ground based air navigation facilities

located on or off the airport depicted on the Airport Layout

Plan and described in the FEIS and Attachment I to this

ROD. These navigational aids are associated with the

extended runwz2y and Category II ILS.

In conjunction with future CAT II ILS, if the air cargo

operations will require CAT II ILS capability, the air cargo

aircraft operators must obtain authorization by means of

changes in their operations specifications through the a

ble FAA Principal Operations Inspector.

Finally, implementation of the Proposed Project will require

action by another Federal agency, the U. S. Army Corps of

Engineers, in regard to the issuance of a dredge and fill

permit for the runway extension under Section 404 of the

Federal Clean Water Act.

Il. Airport Development Proposed on the Airport Layout

Plan

The Preferred Alternative involves the construction of

facilities related to establishing an air cargo" hub at Toledo

Express Airport and the introduction of air cargo operations.

The overall development is shown on the Airport Layout

Plan and is assessed in the FEIS. Two distinct phases are

assessed in the FEIS:

53a

Oo

Oo

Phase 1 (To be Completed Before Operations Begin)

40-acre Concrete Ramp for Air Cargo Aircraft

279,000 Square Foot Air Cargo Sortation

Warehouse

Fuel Farm

Access Road

Maintenance Building

Taxiway Connections to Runway 7/25

Taxiway Edge Lighting

Overlay Existing 1,000-foot Overrun Area on

Runway 7 to Meet stopway Criteria on an Interim

Basis until Longer Term Development Actions are

Complete

In-Slab Power Outlets at Aircraft Parking Stations

Exterior Lighting Associated with Sortation

De-icing Facilities

Infrastructure, including but not limited to utilities,

sewer lines and retention basin.

Phase 2 (To be Completed After Operations have Begun)

o Extension of Primary Runway 7-25 and its North

Parallel Taxiway

o Category II Instrument Landing System

o Construction of South Parallel Taxiway

The site of the ramp and sortation warehouse would encom-

pass approximately 65 acres of land and would be construct-

ed entirely on airport property. Most of the site of the

proposed project is located south of the main east-west

runway 7-25 and west of the north-south runway 16-34

(Exhibit B of the FEIS). However, some of the proposed

development will occur on the west side of the airport,

associated with the runway extension, and on the east side of

the airport, associated with proposed drainage improvements.

Exhibit C of the FEIS shows the airport layout plan, high-

lighting proposed improvements. Exhibit D of the FEIS

shows the proposed cargo apron layout. Each of these plans

have been submitted to FAA for airspace review (Airspace

Case Nos. 89-AGL-935 and 89-AGL-938 NRA). Subsequent

to the initial review, a revised apron layout was submitted to

FAA for airspace review. The revised apron layout is

reflected in Exhibit D of the FEIS.

Use of the facilities to be constructed as part of the Preferred

Alternative would result in an increase in total airport

operations and would modify the overall aircraft fleet mix.

The air cargo hub operation would generate in the first year,

approximately 13,832 additional operations at the airport.

These operations are estimated to consist of 23 nighttime

arrivals between 12:00 midnight and 2:00 a.m. (Tuesday

through Saturday mornings) and 23 nighttime departures

between 4:30 a.m. and 7:00 a.m. (Tuesday through Saturday

55a

mornings). There would also be four daytime flights

(Monday through Friday) generally arriving between 1:00

p.m. and 3:00 p.m. and departing between 4:00 p.m. and

5:00 p.m. On the weekends, two flights arrive at midnight

(Saturday) and depart at 3:00 a.m. (Sunday). No appreciable

change in annual operations or fleet mix is anticipated for the

five-year period (1991-1995) after initial start-up of hub

operations. This is attributable to excess capacity in the

aircraft and truck fleet which will accommodate a 10%

growth rate in overnight traffic over the five-year period

because existing capacity is currently underutilized, because

densification of cargo within containers is occurring through

mechanization of sorting, because second day cargo can be

off loaded onto trucks, and finally, because significant

amounts of cargo that is shipped between locations on the

west coast can be handled by direct movement and the same

is likely to occur on the east coast. The existing fleet of 23

aircraft utilized by Burlington Air Express consists predomi-

nantly of 707-300, DC-8-63, 61, and 54 series, 727-100F

and Convair aircraft with specific mix of aircraft varying

slightly from time to time with changes in lift capacity

requirements on given routes.

Due to comments received as a result of circulating the

DEIS, Burlington Air Express was consulted to obtain a

forecast of its expected fleet for the year 2000. BAX

anticipates it will be operating a fleet of 26 aircraft. DC-8-

63/73 aircraft will remain in the fleet mix; however, 727-

200/100 will replace 707 aircraft. Of the 26 aircraft in the

mix, 18 are anticipated to be 727 and 8 DC-8-63/73. Total

operations by BAX in the year 2000 have been projected at

15,600.

IV. Alternatives

56a

A variety of alternatives were examined in the FEIS to

determine which were appropriate for detailed consideration

by the FAA decision maker. They included:

1) CONSTRUCTION AND OPERATION OF AIR

CARGO HUB AT TOLEDO EXPRESS AIRPORT

(PREFERRED ALTERNATIVE)

The Preferred Alternative is described in detail on pages

2-2 through 2-5 of the FEIS and summarized in Section

Ii Airport Development Proposed on the Airport

Layout Plan found in this Record of Decision.

2) ALTERNATIVE AIRPORT GEOMETRIC CON-

SIDERATIONS

These alternatives ranged form the physical siting of the

facility by utilizing the secondary runway during the

nighttime hours for parking of air cargo aircraft to

altered runway configurations to accommodate the

facility with the least impact on the environment and

existing/proposed navigation aids.

The alternative of utilizing the secondary runway for a

ramp is described on page 2-7 of the FEIS. With this

alternative, the secondary runway would be unavailable

for use during the hours of operation of the air cargo

hub. This alternative would present operational diffi-

culties for other airport users and the sponsor, as well

as the air cargo operator. In all likelihood, this alterna-

tive could only be considered as a temporary measure.

The other geometric alternatives consisted of runway

57a

configurations and sitings that included the extension of

existing Runway 16/34 to 12,000 feet, construction of

a new 12,000-foot parallel Runway 7R/25L with a

4,300-foot separation from the existing Runway 7/25,

construction of a new 12,000-foot Open-"V" runway,

and extension of the existing Runway 7/25 to 12,000

feet. These are described on pages 2-8 and 2-9 of the

FEIS, along with the conclusions. The alternate

runway configurations were reviewed under the follow-

ing criteria: operational demands, wind conditions

(coverage), environmental impact, and cost. No

configurations were found to be reasonable alternatives

to the preferred configuration.

3) ALTERNATIVE DISTRIBUTION OF BAX

_ TRAFFIC

Several alternatives were considered specifically to

reduce noise over Oak Openings Preserve Metropark

| and Louis W. Campbell Nature Preserve. They are de-

| scribed on pages 2-10 through 2-13 of the FEIS. The

a alternatives consisted of adjustments to departure flight

tracks and changes in runway use. None of the distri-

bution alternatives identified would substantially remove

noise from either Oak Openings Preserve or Louis W.

Campbell Nature Preserve, and some distribution

alternatives would increase noise over residential areas.

For these reasons, flight track adjustment and preferen-

tial runway use were not considered to be reasonable

alternatives and were not evaluated further in Chapter

Four of the FEIS.

4) ALTERNATE AIRPORTS

58a

Four alternative airports in the Toledo area were examined:

Toledo Suburban, Metcalf Field, Wood County Airport,

and Fulton County Airport. The discussion of these

alternatives is on FEIS pages 2-14 and 2-15. These

nearby airports can currently accommodate only small

aircraft weighing less than 12,500 pounds. The costs,

environmental impacts, and time that would be required

to develop them into an air cargo facility ruled them out

as reasonable alternatives.

Alternative airport locations outside the Toledo area are

discussed on pages 2-15 and 2-16 of the FEIS. These

include Baer Field in Fort Wayne, Indiana (Burlington’s

present hub), Rickenbacker Airport in Columbus, Ohio,

and a general category of "other locations".

Baer Field was not considered to be a reasonable

permanent hub alternative to the Toledo Express Airport

because of Fort Wayne’s lack of a competitive funding

package and development plans for a permanent hub,

the additional ground travel time to Burlington’s auto-

motive markets, the absence of a major highway

connection to the airport, and a limited available labor

pool. Additional discussion of the Baer Field alterna-

tive is found in Section VII of the Record of Decision

under Issues.

Rickenbacker was not considered to be a reasonable

alternative because it would entail significant additional

cost to develop and operate it as a hub, would be less

efficient than a new facility at the Toledo Express

Airport, would result in a deterioration of service to

Burlington’s key markets, and has a history of environ-

mental problems.

59a

No other specific alternative locations outside the

Toledo area have surfaced during the planning and

environmental review process. In its earlier permanent

hub search, Burlington had considered seventeen

different airports in for Mid-West states. All were

rejected in favor of Toledo because of Toledo’s advan-

tages. Without an expression of interest by Burlington

in another location or the proposal of another candidate

hub by an airport sponsor or the identification of

another location as a desirable alternative during the

planning process, the FAA is not reasonably able to

identify other locations as reasonable alternatives to the

Toledo Express Airport. It would be speculative for the

FAA simply to pick other airports in the Midwest to

evaluate and would generate unnecessary evaluation and

paperwork without contributing value to the decision

making process.

5) ALTERNATIVE OF NO ACTION

The No-Action alternative would result in Toledo

Express Airport remaining largely as it is today. An air

cargo hub would not be sited at the Airport. In the

short term, Burlington’s operations would remain at

Fort Wayne, Indiana. Burlington would presumably

renew its evaluation of various airports for purposes of

establishing a permanent hub, and at some point request

FAA approvals would be subject to appropriate environ-

mental evaluation.

The No-Action alternative would avoid the introduction

of new significant environmental impacts at the Toledo

Express Airport that would accompany the Burlington

cargo hub operation. This alternative would avoid the

60a

increased noise levels over the residences surrounding—

Toledo Express Airport and over Louis W. Campbell

Nature Preserve and Oak Openings Preserve Metropark.

However, the No-Action alternative would not provide

substantial economic benefits for the Toledo Metropoli-

tan Area, which according to 1989 statistics, has been

the urban area of lowest economic growth when com-

~ pared to all other major urban areas in the state of

Ohio. The no-action alternative would mean foregoing

a variety of economic benefits described on pages 2-13

and 2-14 of the FEIS.

The No Action alternative was considered a viable

alternative by the FAA in the FEIS. It was the baseline

environmental condition against which the environmen-

tal impacts in Chapter Four of the FEIS were evaluated.

Based on reasons discussed on Chapter 2 of the FEIS and

summarized above, the FAA has concluded that there are

only two reasonable alternatives relative to its decision

making process in this situation. These alternatives are: (1)

the Preferred Alternative of constructing and operating an air

cargo hub at the Toledo Express Airport and (2) the alterna-

tive of No Action. Chapter Four of the FEIS analyzes the

impacts of the Proposed Project and the No-Action Alterna-

tive.

The No Action alternative is environmentally preferable

because it would avoid the introduction of new significant

environmental impacts at Toledo Express Airport that would

accompany the Burlington air cargo hub operation. The

Preferred Alternative will result in some significant environ-

mental impacts, particularly with respect to aircraft noise.

6la

The affected environment in the vicinity of Toledo Express

Airport and the environmental impacts of primary concern

with respect to the establishment and operation of an air

cargo hub are summarized in the next two sections of the

Record of Decision.

The Preferred Alternative will provide an advantageous air

cargo hub location for Burlington Air Express for reasons

described in Chapter One of the FEIS. These reasons

include financial arrangements, geographic location, airport

facilities, ground transportation network, and local work

force. For Toledo, the Preferred Alternative is desirable

because of the economic benefits and employment opportuni-

ties which will be created by an air cargo hub.

The preferred alternative also permits the FAA to fulfill its

mission of encouraging the establishment of cargo hubs and

projects which increase airport capacity. The FAA has a

statutory mission to support the development of air cargo

hubs. Title I of the Airport and Airway Improvement Act

(AAIA) Amendments states, "...cargo hub airports play a

critical role in the movement of commerce through the

airport and airway system and appropriate provisions should

be made to facilitate the development and enhancement of

such airports." and "...airport construction and improvement

projects which increase the capacity of facilities to accommo-

date passenger and cargo traffic, thereby increasing the safety

and efficiency and reducing delays, should be undertaken to

the maximum feasible extent."

In fulfilling this mission, the FAA acts in cooperation with

airport sponsors and air carriers. The FAA cannot direct or

control the actions of either. Under the Airline Deregulation

Act of 1978, no federal agency can direct Burlington to

62a

establish its permanent hub at any particular airport.

Similarly, under federal law, the FAA lacks authority to

direct any airport to initiate development to accommodate a

specific airline or air cargo operator.

While the FAA is not in a position to control or direct the

actions and decisions of Burlington or of the T-LCPA, the

FAA does have the ability to support or withhold approval

for the proposed federal actions, including revision of the

Airport Layout Plan and other federal actions discussed in

this Record of Decision. The FAA’s decision to support or

not support this project is governed by considerations of the

above stated statutory missions: the additional FAA statutory

responsibility derived from the AAIA to review Airport

Layout Plans for safety, efficiency, and utility; duties set

forth in the Federal Aviation Act of 1958 concerning flight

safety; the policy of supporting local airport operators’

development plans and programs, to the extent consistent

with Federal responsibilities; and the FAA’s statutory

environmental responsibilities under the National Environ-

mental Policy Act of 1969 and other applicable environmen-

tal legislation.

Burlington Air Express has made the case to the FAA that its

present air cargo hub operation at Baer Field in Fort Wayne,

Indiana is inadequate and that development of a hub at the

Toledo Express Airport would provide an enhanced cargo

operation, for reasons previously cited, beyond that which

would be achievable at Baer Field. This is a business

decision on the part of Burlington, in which the FAA has not

been involved. The airport operator, T-LCPA, is fully

supportive of Burlington’s decision because of the previously

cited economic advantages which would accrue to community

and has undertaken extensive airport development planning

63a

and environmental evaluation to support the airport develop-

ment and other FAA approvals which are necessary to enable

the establishment and operation of this new hub.

The FAA is inclined to support Burlington’s and the airport

operator’s plans for an enhanced air cargo hub at the Toledo

Express Airport unless there are overriding safety, environ-

mental, or technical reasons why the FAA should not do so.

The FAA has completed appropriate aviation technical

reviews and has concluded that the air cargo hub proposal

can be implemented at the Toledo Express Airport consistent

with consideration of safety, efficiency, and utility. The

FAA has also completed appropriate environmental reviews

in the FEIS and summarized in this Record of Decision -- the

impact of primary concern being the introduction of substan-

tial noise from nighttime air cargo operations. However, the

FEIS and this Record of Decision also include substantial

mitigation commitments which would be carried out to

minimize the impacts to the extent practicable. Given the

projected scope and magnitude of the environmental impacts

and the environmental mitigation commitments the FAA has

found no overriding environmental reason to deny this air

cargo hub proposal. The No Action alternative was neither

so clearly superior to that proposed by the T-LCPA, nor

were the environmental impacts of the proposed action so

severe, as to warrant disapproval of the federal actions

discussed here. Based on all of the above considerations, the

FAA has decided to support the proposed project as the

preferred alternative.

V. Affected Environment

Toledo Express Airport is located within Swanton and

Monclova Townships, Lucas County, Ohio. The selected

64a

study area incorporates portions of two counties, Lucas and

Fulton. The Lucas County portion consist of all of portions

of six unincorporated townships: Harding, Monclova,

Spencer, Springfield, Swanton and Waterville Townships.

Also, included in the Lucas County portion of the study area

are the Villages of Holland and Whitehouse. In Fulton

County, the study area includes portions of Swan Creek

Township and the Village of Swanton.

¢

The area of Lucas County surrounding Toledo Express

Airport has experienced a net population gain of over 60%

since 1960. Large net gains occurred in Monclova, Spring-

field and Waterville Townships, and in the Village of

Whitehouse. Significant losses have occurred in Harding and

Spencer Townships, while Swanton Township and the Village

of Holland have remained relatively constant. In Fulton

County, west of the airport Swan Creek Township, exclusive

of the Village of Swanton have increase over 112% since

1960, while the Village of Swanton has increase over 80%.

The current land use map shows most of the study area is

currently undeveloped for urban uses. Vacant area, agricul-

ture, and woodlands constitute about 75% of the study area.

Agriculture is the dominant use in the Fulton County portion,

and woodland and agriculture are the dominant uses in the

Lucas County portion.

Residential development comprises 4-5% of the study area,

almost exclusively along the county highways in a square

mile grid. This forms a lattice work of strip development

throughout the study area. Large tracts of interior properties

potentially could be developed for residential subdivision

with the development of access streets off existing county

roads. However, this is not likely in the near future in the

65a

immediate vicinity of the airport, particularly southeast and

southwest of the airport, because of the continued availability

of land along the county roads that already have access.

Also lacking, are sewer and water, and the demand for

subdivided land that attract most developers to establish

subdivisions requiring upfront money for development of

access roads.

Commercial and industrial lands, most of which includes the

airport, comprise 4-5% of the study area. Some commercial

and industrial development is concentrated in Holland and

Swanton, located northeast and west of the airport, respec-

tively. An industrial park is located directly north of the

airport. Other commercial development is located along

S.R.2 and at intersections of county roads. Most of the rural

commercial and industrial development consists of agricultur-

al services and auto parts and salvaging.

Open-space and recreation category lands make up about 9%

of the study area. The vast bulk of these lands are com-

prised of the Oak Openings Park and Maumee State Forest

lands situated southwest of Toledo Express Airport. These

lands also include the Louis W. Campbell Nature Preserve,

just east of the airport.

Transportation and utility rights-of-way constitute an addi-

tional 8% of the study area. The most prominent transporta-

tion feature in the area is the east-west corridor containing

the Ohio Turnpike, S.R.2, the Conrail main line, and the

Holland and Swanton local street systems.

VI. Environ | Consideration | Mitigati

This section summarizes the environmental impacts of

66a

primary concern and the mitigation commitments. All

environmental impacts are thoroughly analyzed in Chapter

Four of the FEIS.

In accordance with 40 CFR 1503.3, the FAA will take

appropriate steps, through grant assurances and conditions,

property releases, airport layout plan approvals and contract

plans and specifications, to ensure that following mitigation

actions are implemented during project development, and

shall monitor the implementation of these mitigation actions

as necessary to assure that representations made in the FEIS

with respect to mitigation are carried out. Mitigation

commitments made by the T-LCPA must be carried out, with

or without Federal funding.

The FEIS includes a summary of mitigation actions starting

on page 5-2. Practical means to avoid or minimize environ-

mental harm and where applicable, identification of adopted

monitoring and enforcement programs are summarized

below:

a. Noise and Land Use Impacts.

Significantly increased noise at night will be experienced by

residential areas and two nursing homes in the area. A total

of 2,184 additional people are impacted by noise with the

start-up of the proposed project. Sixty percent of these are

within the 65-70 Ldn range, 22% are within the 70 -75 Ldn

range, and 18% are in the area exceeding 75 Ldn. The

runway extension will create an increase of 286 persons

exposed to 65-70 Ldn levels, a decline of 16 persons in the

70-75 Ldn range and 16 fewer persons impacted at levels

exceeding 75 Ldn. An additional nursing home and portions

of a mobile home park will also fall within the 65-70 Ldn

67a

level after the runway is extended, but both are already

impacted by ambient noise from the Ohio Turnpike equalling

or exceeding the noise impacts from proposed aircraft

operations. Schools and churches affected by increased Ldn

noise levels are not considered to be significantly impacted

since they are not in use during the hours of most of the

cargo hub operations.

Miticati

(1) A property acquisition and relocation plan will be

implemented for all properties falling within the 75 Ldn

noise level, and a few properties in the 70-75 Ldn area.

A total of approximately 100 homes are expected to be

involved. Two nursing homes fall inside the 75 Ldn

area and these will also be acquired and the residents

relocated. This latter action is discussed in more detail

under b. Social Impacts.

Acquisition of property will begin with those properties

needed for construction for development of a permanent

new access road to the sortation facility site. At the

same time, the noise-impacted properties within the 75

Ldn noise contour and those properties in close proxim-

ity to the 75 Ldn line will be acquired. The Port

Authority has assured FAA that it will acquire those

properties identified above, and will purchase the

properties of owners who wish to be relocated, on a

priority bases by demonstrated need. The other proper-

ties slated for acquisition, including those necessary for

Phase 2 development (runway extension), will be

acquired as soon as possible thereafter. As indicated on

page 4-39 of the FEIS T-LCPA has advised FAA that

it intends to accomplish the proposed acquisition and

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relocation of the area in a period of three years. If

funding is available, it can be accomplished in an even

shorter period because there is adequate replacement

housing available.

(2) The T-LCPA also commits to implement a sound

attenuation program or noise and avigation easement

purchase for dwellings within the 65-75 Ldn contour

areas. The sound attenuation or easement acquisition

program will be staged to move outward from the areas

of highest noise exposure down to the 65 Ldn contour.

The sound attenuation program is recommended for

potentially 796 homes: 172 in the Ldn 70-75 contour

range and 624 in the Ldn 65-70 range, under the worst-

case scenario presented in the FEIS for the 1991-1995

period. Further information in this regard is found on

pages 4-33 through 4-35 of the FEIS, with cost esti-

mates in Table 4-13 on page 4-35.

The recommendation of the Part 150 Study will provide

valuable input on timing and priorities in this program

and may reduce the total number of homes which

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