Opposition Brief — Town of Rye v. Skinner

PELE Rot A a ae

SEE ir One he

No. shied

IN THE

Pact Court of the Hnited State

Ocroser Term, 1990

iy

TOWN OF RYE, NEW YORK; TOWN OF NORTH CASTLE,

NEW YORK; CITY OF RYE, NEW YORK; TOWNVILLAGE OF

HARRISON, NEW YORK; TOWN OF NEW CASTLE, NEW

YORK; TOWN OF MT. PLEASANT, NEW YORK; TOWN OF

GREENWICH, CONNECTICUT; AIR CONSERVATION

TRUST, INC.; AIRPORT CONCERN TEAM, INC.; WESTCHES-

TER COALITION TO LIMIT AIRPORT EXPANSION, INC.,

Petitioners,

— against —

SAMUEL K. SKINNER, Secretary of Tyansportation; JAMES B.

BUSEY, Administrator, Federal Aviation Administration; THE

FEDERAL AVIATION ADMINISTRATION; DANIEL J. PETER-

SON, Regional Administrator, Federal Aviation Administration;

WILLIAM HANDEL, Manager Airports Division, Federal

Aviation Administration, COUNTY OF WESTCHESTER, NEW

YORK; ANDREW P. O'ROURKE, County Executive for the

County of Westchester, New York; WESTCHESTER COUNTY

BOARD OF LEGISLATORS; WESTCHESTER COUNTY

DEPARTMENT OF TRANSPORTATION,

Respondents.

BRIEF OF WESTCHESTER COUNTY

RESPONDENTS IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

MarILyNn |. SLAATTEN

Westchester County Attorney

Attorney for Westchester County

Respondents

600 Michaelian Office Building

Caro. L. Van Scoyoc 148 Martine Avenue

Deputy County Attorney White Plains, New York 10601

Counsel of Record (914) 285-2673

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BEST AVAILABLE COPY ™

SOSEPH F F. SPANIOL, JR,

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QUESTIONS PRESENTED

1. Whether the Federal Aviation

Administration (FAA) procedurally

complied with the National

Environmental Policy Act (NEPA), 42

U.S.C. §4321 et seg, the Regulations

of the Council on Environmental

Quality (CEQ regs), 40 C.F.R. Part

1500 and FAA Order No. 5050.4A (5050)

concerning public involvement, before

issuing the Record of Decision (ROD),

Finding of No Significant Impact

(FONSI) and Airport Layout Plan (ALP)

regarding the proposed fourteen (14)

items of improvement for the

Westchester County Airport, when the

FAA and Westchester County conducted

public hearings and received written

comments on every draft environmental

assessment (EA); the FAA circulated

for comment its Preliminary Analysis

ii

(PA) of the EA; and the FAA's further

independent analysis of October 1989

pertaining to terminal capacity/use

itself was done in direct response to

each of the previous comments

generated by the Petitioners?

2. Whether the FAA's issuance of

the FONSI based on the EA of the

Westchester County Airport project

improvements was arbitrary and

Capricious?

iii

TABLE OF CONTENTS

PAGE

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_ as eg (Pre Vv

CITATION OF OPINION BELOW........... Vvli

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nn or ME. «ccc seeesses evens 12

ARGUMENT

THE PETITION FOR A

WRIT OF CERTIORARI

CE 13

A. The Petition does not

present special or important

reasons warranting review........ 13

B. No violation of the general

principle of fundamental fairness

by the FAA was specifically raised

er BUERCEOMOES BBLOW. . ccc ccccses 15

C. There is no conflict

between the Court of Appeals

decision below and decisions of

CS Ee a 18

iv

CONCLUSION..........

GLOSSARY OF ACRONYMS

PAGE

A. CASES

281 (1974) aC] ER Ae eg? ee ee 16,18

EY Se i UU eee ee eee 17

Department of Transportation, 715 F.2d

732 (2d Cir. 1983) cert denied and app

dismd, 465 U.S. 1055 (1984).......... 14

, 471 F.2d 823 (2d

Hanly v. Kleindienst

Cir. 1972) cert denied, 412 U.S. 908

Be) rrr SS Te TTT TEEPE Lee 14

PS Oe re ae ee tae es wows i9

Rogers v. Lodge, 458 U.S. 613 (1982),

reh den, 459 U.S. 899 (1982)......... 17

Town of Orangetown v,. Gorsuch, 718

F.2d 29 (2d Cir. 1983) cert denied,

— ee ee Be ear 14

Town of Rye v. Skinner, 907 F.2d 23

9. RR ere Terr ee 9,15

vi

PAGE

B. STATUTES

Administrative Procedure Act, 5 U.S.C.

§500 et 1-1 Sc 18,19

National Environmental Policy Act, 42

U.S.C. §4321 et seg........ i,2,8,10,12,

13,14,19

New York State Environmental Quality

Review Act, Environmental Conservation

Ow SeO-OlGl GE OOM. cccccccccceseccess 3

QD UiG.C. BESS. ccccccccsvessesssccces 8

ORDERS

Federal Aviation Administrative Order

NO. SOSO.GA. ccc cccccvecvvevecsveseser 4,25

REGULATIONS

Regulations of the Council on

Environmental Quality, 40 C.F.R. Part

i PP rrrerrT Te TT Terr Tere TTT TeT ee 4,23

State Environmental Quality Review Act

Regulations of the Department of

Environmental Conservation, 6 New York

Code Rules and Regulations

Sere mememicies BOS Barber cevecececsens 3

vii

CITATIONS OF OPINION BELOW

Westchester County Respondents

accept the Petitioners’ citation of

the opinion below which is reproduced

in the Appendix to the Petition for

Certiorari.

The unreported administrative

opinions of the FAA, the Record of

Decision (ROD) dated November 30,

1989, the Finding of No Significant

Impact (FONSI) dated November 30, 1989

and the Airport Layout Plan (ALP)

Gated February 28, 1990 are reproduced

in the Appendix to the Petition for

Certiorari.

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STATEMENT OF THE CASE

Westchester County Airport,

located in Westchester County, New

York, was constructed under the

auspices of the Federal government in

the early 1940's as an air defense

satellite base for New York City and

was turned over to the County in

1943. Throughout the years, the

Airport has developed into primarily a

general aviation facility; there is a

limited amount of air carrier and

commuter activity, serving mainly

residents and business travelers in

Westchester and Fairfield, Connecticut

counties. The present passenger

t2rminal, a surplus military shed, a

Quonset hut brought from Guam in 1946,

has a total floor area of 10,000

square feet which serves air carriers,

commuter airlines and is undisputably

in dire need of replacement.

Since the 1970's, the County of

Westchester has undertaken comprehen-

sive studies to increase the safety,

efficiency and utility of the the

Airport. In 1980, a proposed Master

Plan study for the Airport was

published; the emphasis of the plan

was improving facilities for existing

users, including the construction of a

new terminal. Following its publica-

tion, the County began a study of the

environmental impact of the proposed

items of improvement, and at the

request of the FAA, commenced an EA

pursuant to NEPA on the ALP; the

County voluntarily expanded the NEPA

EA to fulfill the requirements of a

Generic Environmental Impact Statement

(GEIS) under New York State law's more

stringent standards set forth in the

New York State Environmental Quality

Act, (SEQRA), Environmental Conserva-

tion Law §§8-0101 et seg and its

regulations contained in 6 New York

Code Rules and Regulations

(N.Y.C.R.R.) Part 617.

After a series of self-imposed

contractual constraints instituted by

the County from 1983-85, including the

Midway Case Stipulation, the later

Terminal Capacity Agreement, and the

Statement of Airport Policy by the

Westchester County Board of

Legislators, limiting the amount of

passengers at the terminal to 240

Passengers each half hour, work

commenced on an update of the ALP and

Master Plan.

In October 1986, a Draft Master

Plan Update report and detailed Draft

EA/EIS were published and circulated

setting forth the proposed action of

14 items of improvement for the

Airport, including a new passenger

terminal parking facilities, and

airport perimeter road and their

associated environmental effects were

analyzed. The documents were the

subject of intensive public scrutiny

and evaluation, including a public

hearing and extended comment period.

In February 1988, the final

EA/GEIS of the Airport was issued and

distributed to all interested agencies,

entities and persons under State and

Federal law. The County also agreed

to conduct a project site specific

environmental review of the Terminal

Project, as a supplement to the

EA/GEIS. Subsequently, a Draft EA/EIS

was issued and distributed in August

1988, containing more specific detail

on the passenger terminal, associated

parking structure, relocated access

roads and rental car facilities. A

public hearing was conducted on the

Draft EA/EIS and an extensive public

comment period was afforded to all who

wished to participate.

Consequently, a supplemental

EA/FEIS was completed and circulated

to State and County officials and all

other interested agencies, entities

and persons for comment in November

1988. In the EA, notwithstanding the

County's firm commitment to limiting

the capacity of the Terminal to 480

passengers per hour, additional

analysis was conducted without those

constraints using a “worst case”

scenario.

Furthermore, the FAA issued in

March 1989 a detailed and thorough

Preliminary Analysis (PA) of the

County's EA and voluntarily provided a

30 day period for public comment as an

extra step in the review process.

Prior to issuing the ROD and FONSI

on November 30, 1989, the FAA further

reviewed and considered each comment

posed by the public of its PA and

provided further independent analysis

regerding terminal capacity/use, the

October 1989 Analysis (OA), which the

FAA incorporated in the FONSI.

In addition to fully and

meticulously addressing terminal

Capacity/use, the FONSI thoroughly

reviewed and summarized each of the

project areas of concern -- including

noise, compatibility and use,

vehicular traffic, terminal size and

location, terminal ramp area, airport

Capacity, air and water quality,

social/economic impacts public hearing/

comments and mitigation measures.

By letter dated February 28, 1990

addressed to Westchester County

Executive Andrew P. O'Rourke, the FAA

issued an approval of the Westchester

County Airport Layout Plan (ALP), a

map reflecting the proposed projects.

=r § the s 1 Circuit

On January 24, 1990 and March 19,

1990, respectively, the Petitioners,

municipalities and citizens groups in

the vicinity of the Airport, filed

petitions for review pursuant to 49

U.S.C. §1486 of two orders of the FAA,

the ROD and FONSI issued on November

30, 1989 and the Airport Layout Plan

(ALP) approval issued on February 28,

1990.

The Petitioners raised the

following contentions on appeal to the

United States Court of Appeals for the

Second Circuit: (1) the issues before

the Court were not ripe for review;

(2) the FAA violated NEPA by failing

to circulate for public comment its

independent analysis of the likelihood

that a new terminal will result in

increased Airport use; (3) the

required State and local review

process never took place; (4) the FAA

acted arbitrarily and capriciously in

issuing the FONSI and ROD by not

requiring a full environmental impact

statement (EIS); (5) the FAA failed to

give adequate consideration to the

cumulative impact of the Airport

project; and (6) the public

controversy surrounding it and (7)

available alternatives.

The Court of Appeals for the

Second Circuit denied the petitions

for review. Town of Rye v. Skinner,

907 F.2d 23 (2d.Cir.1990). In so

ruling, the Court of Appeals rejected

each of the claims and contentions

specifically raised by Petitioners in

10

their appeal. In particular, the

Court found to be without merit,

Petitioners' claim that the FAA

violated NEPA by failing to circulate

for public comment its independent

analysis of the likelihood that a new

terminal will result in increased

Airport use. To the contrary, the

Second Circuit concluded that "[Wjhile

NEPA and the regulations promulgated

under it encourage public involvement

in the preparation of environmental

assessments, the FAA more than .

complied with this requirement," by

conducting public hearing and

receiving comments on every draft

environmental assessment and

circulating for comments its PA of the

EA. Moreover, the Second Circuit

further acknowledged that FAA's

independent analysis of October 1989

~~ ae

ll

itself was done in response to

comments of the Petitioners.

ink es 4 es Sse ns eNO

12

This case is not of special

importance and the United States Court

of Appeals' decision conflicts neither

with decisions of this Court nor other

Circuits.

Essentially unraised below,

Petitioners may not argue an illusory

theory of the principles of fundamental

fairness concerning public involvement

in the NEPA process in this Court.

Moreover, Petitioners' contentions

with respect to requiring more

stringent standards for Federal

Aviation Administration (FAA)

regulations governing public

participation in environmental reviews

of Airport Projects are best addressed

to Congress.

13

ARGUMENT

THE PETITION FOR A

WRIT OF CERTIORARI

_SHOULD BE DENIED _

A. The Petition does not present

special or important reasons

Warranting review

Petitioners assert that the United

States Court of Appeals for the Second

Circuit erroneously rejected its claim

that the FAA's failure to circulate

the October 1989 Analysis for public

comment violated NEPA.

This Court, however, has never

regarded its function as simply

correcting a legal error perceived by

disappointed litigants in a lower

Court decision. To the extent

Petitioners seek clarification or a

Change of Federal statutory law or

Federal agency regulations or rules,

that role is best left to Congress.

14

As recognized by the Second

Circuit's opinion, Petitioners here

asserted public participation

requirements for environmental review

which are beyond the purview of NEPA.

The Second Circuit drew upon previous

opinions in Hanly v. Kleindienst, 471

F.2d 823 (2d Cir.1972) cert denied,

412 U.S. 908 (1973), Town of

Orangetown v. Gorsuch, 718 F.2d 29(2d

Cir.1983) cert denied, 465 U.S. 1099

(1984) and City of New York v. United

States Department of Transportation,

715 F.2d 732 (2d Cir. 1983) cert

denied and app dismd, 465 U.S. 1055

(1984) in support of its analysis.

Nor does the plain language of the

regulations, rules and orders of the

FAA support Petitioners' arguments.

15

Regulations of the Council on

Environmental Quality (CEQ regs), 40

C.F.R. Part 1500; FAA Order No.

S050.4A.

Moreover, as the Second Circuit

observed, the FAA's consideration of

public controversy was apparent since

the Airport project is categorically

excluded from environmental review

(see FAA Order 5050.4A §§20(b),

23(a)(4)). Notwithstanding the

exclusion, the FAA had nevertheless,

decided to prepare an environmental

assessment in recognition of community

opposition to the project. Town of

Rye v. Skinner, 907 F.2d at 25.

B. No violation of the general

principle of fundamental fairness

by the FAA was specifically raised

by Petitioners below

aie

16

In a belated attempt to introduce

a new theory for challenging the

Second Circuit's decision denying

their petitions for review,

Petitioners for the first time now

raise the purported claim that the FAA

violated general principles of

fundamental fairness set forth by the

dictum of Bowman Transportation, Inc.

v. Arkansas-Best Freight System, 419

U.S. 281, 288, n.4 (1974) by failing

to circulate for further public

comment its independent analysis of

the likelihood that a new terminal

will result in increased Airport use.

No such legal claim or theory prem-

ised on this Court's dictum in Bowman

was specifically asserted by the Peti-

tioners below and thus was not address-

ed by the Court of Appeal'’s decision.

17

This Court has held that it will

not address a contention or theory not

raised in the Court of Appeals and not

addressed by that court. Rogers v.

Lodge, 458 U.S. 613 (1982) reh den,

459 U.S. 899 (1982). Nor will this

Court consider the merits of a claim

or theory upon which the Court of

Appeals, in view of the disposition of

the case, did not pass. Calmar S.S.

Corp. v. United States, 345 U.S. 446

(1953).

Accordingly, since Petitioners did

not raise or rely upon the general

principles of fundamental fairness

theory below and the Second Circuit

consequently had no opportunity to

pass upon the applicability of such a

theory, any such contention is now

foreclosed as untimely for assertion

in this Court.

18

C. There is no conflict between the

Court of Appeals decision below

Even assuming arguendo, this Court

should somehow entertain Petitioners’

newly raised fundamental fairness

principles contention, contrary to

Petitioners’ suggestions, there is no

conflict between the decision of the

Court of Appeals for the Second

Circuit and the dictum of this Court

in Bowman Transportation, Inc.v.

Arkansas-Best Freight System, Inc.,

419 U.S. 218 (1974).

Bowman is clearly inapposite as

that case concerned the due process

rights of parties to a formal

adjudication by the Interstate

Commerce Commission, pursuant to the

trial-type procedures set forth in the

Administrative Procedure Act, 5 U.S.C.

19

§§554, 556-557, a situation not

presented here.

Nor is there obviously any

conflict between the Second Circuit's

disposition and Pension Benefit

Guaranty v. LTV Corp., _U.S._, 110

S.Ct. 2668 (1990) and Vermont Yankee

Nuclear Power Corp. v. Natural

Resources Defense Council, Inc,., 435

U.S. 519 (1978). In each of these

cases, this Court has held that unless

the Administrative Procedure Act, the

plain language of agency statutes or

regulations, or constitutional due

process provides otherwise, courts may

not impose additional procedures on

agencies, notwithstanding the

principles of fundamental fairness.

20

The FAA here, as the Second

Circuit concluded, more than complied

with NEPA, the regulations promulgated

under it and the FAA's own order, in

terms of encouraging public

involvement in environmental

assessments.

21

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari

shouid be denied.

Respectfully submitted,

MARILYN J. SLAATTEN

Westchester County Attorney

Attorney for Westchester

County Respondents

600 Michaelian Office Building

White Plains, New York 10601

(914)285-2673

By ,

CAROL L.

Deputy County Attorn

Counsel of Record

White Plains, New York

October 24, 1990

22

GLOSSARY OF ACRONYMS

ALP - Airport Layout Plan

CEQ - Council on Environmental

Quality

EA - Environmental Assessment

EIS - Environmental Impact Statement

EPA - Environmental Protection Agency

FAA - Federal Aviation Administration

FEIS - Final Environmental Impact

Statement

FONSI - Finding of No Significant

Impact

GEIS - Generic Environmental Impact

Statement

NEPA - National Environmental Policy

Act

OA - October 1989 Analysis-Demand,

Capacity and Operational

Analysis of Westchester County

Airport:

PA - Preliminary Analysis

ROD - Record of Decision

SEQRA - State Environmental Quality

Review Act

Se