# Opposition Brief — Town of Rye v. Skinner

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2884%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1024

## Text

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

nn a nr a a er re

BEST AVAILABLE COPY ™

SOSEPH F F. SPANIOL, JR,

Bhs, >

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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
Ce a PPCM ccccececececeseocese i
er Cs ce ecccceccesesseeee iii
_ as eg (Pre Vv
CITATION OF OPINION BELOW........... Vvli
nn Tr BO COG eee e eee eee eee ses 1
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2884%3A2. Public record. Not legal advice.