Opposition Brief — Town of Rye v. Skinner

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TOWN OF RYE, NEw YORK, ET AL., PETITIONERS

Vv,

SAMUEL K. SKINNER,

SECRETARY OF TRANSPORTATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicitor General

GzorGE W. VAN CLEVE

Acting Assistant Attorney General

Peter R.STEENLAND ~

ANNE S. ALMY

VICKI L. PLAUT

Attorneys

Department of Justice

Washington, D.C. 20580

(202) 514-2217

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QUESTION PRESENTED

Whether the National Environmental Policy Ac} of

1969, 42 U.S.C. 4832, et seqg., requires an agency to

subject its proposed decision, and the bases for the

decision, to public comment before issuing a finding

of no significant environmental impact.

(I)

Opinion below .......................---- woe

SMTIBIIOION ...................-....---

Statement

Argument

REI GP a ee eee

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970)

Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87 (1988)........

Bowman Transp., Inc. Vv. Arkansas-Best Freight

ae, fee Bee Ue, ee Ce4) ......................-

Essex County Preservation Ass’n v. Campbell, 399

F. Supp. 208 (D. Mass. 1975), aff’d, 536 F.2d

966 (ist Cir. 1976) .........................

Independent U.S. Tanker Owners Comm. Vv. Lewis,

690 F.2d 908 (D.C. Cir. 1982) 200000220.

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ...........

Lujan VY. National Wildlife Fed’n, 110 S. Ct. 3177

= RECRCASRE Ced: Bees

National Wildlife Fed’n v. Burford, 835 F.2d 305

sR Se ee ee

Pension Benefit Guar. Corp. v. LTV Corp., 110

S. Ct. 2668 (1990) -...............

Robertson v. Methow Valley Citizens’ Council, 109

S. Ct. 1885 (1989)

Rogers Vv. Lodge, 458 U.S. 613 (1982) ........00000 0.

United States Lines, Inc. v. Federal Maritime

Comm’n, 584 F.2d 519 (D.C. Cir. 1978) -............

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 485 U.S. 519

(1978) .... a eke

Constitution, statutes and regulations:

U.S. Const. Amend. V (Due Process Clause).............

(III)

17

11

14

16

16

11

15

15

14, 15

10-11

17

16

IV

Statutes and regulations—Continued: Page

Administrative Procedure Act:

ch. 5:

5 U.S.C. 554 Faiclicenscailededomsokostndeiigihibeticdaiia 14

ES tn ENTER PT ai 15

DR IG nissan cccseccccciccscinemenbon 14

ch. 7:

7 U.S.C. 701 et seq. 14

National Environmental Policy Act of 1969, 42

ck 5 SEAS ene Pee 2

42 U.S.C. 4832 (C) _....... 11

State Environmental Quality Review Act, art. 8,

N.Y. Envtl. Conserv. Law §§ 8-0101 to 8-0117

(McKinney 1984 & Supp. 1990) 4

40 C.F.R.:

FY Se OE Ee Bee 12

Oe 12

IID oot 12

Section 1501.4 (e) (2) 0.0.02... eee 12

Pt. 1502:

Section 1502.9(b) ......... tat 13

Pt. 1508 :

Section 1508.1 (a) (1)-(4) ee 13

Pt. 1507:

NN i 3

FAA Order 1050.1D (1983) ........... siciiieaclasdickaaaniael 2, 12,13

FAA Order 5050.4A (1985) 22000... 2,12, 13

| ee ee 3

Lo. J = woueptinensifpeiinicamsainitin 4

SER RN RR EIR. 13

aaa a a a st 12, 13

§ 49 (b) 12

ASO RY REET NTL eA Se 12

EES HIT RLY BES BOY 13

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-520

TOWN OF RYE, NEW YORK, ET AL., PETITIONERS

Vv.

SAMUEL K. SKINNER,

SECRETARY OF TRANSPORTATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A6), which was issued on consolidated direct review

of the agency decisions, see Federal Aviation Act of

19&8, 49 U.S.C. App. 1486, is reported at 907 F.2d

23.

JURISDICTION

The judgment of the court of appeals was entered

on June 25, 1990. The petition for a writ of certio-

rari was filed on September 24, 1990 (a Monday).

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

This case arises from a proposal by Westchester

County to repiace the terminal and associated facili-

ties at Westchester County Airport (the Airport),

which the County owns and operates. Petitioners

challenged the procedures used by the FAA in ap-

proving the project under the National Environmen-

tal Policy Act of 1969 (NEPA), 42 U.S.C. 4332 et

seq., and associated FAA regulations, Federal Avia-

tion Orders 5050.4A (1985) and 1050.1D (1983).'

The case originated in the court of appeals on direct

petition for review of two FAA orders: the Record

of Decision (ROD) approving, inter alia, the replace-

ment of the terminal and improvement of parking

facilities, and the approval of the Airport Layout

Plan (ALP), a map (C.A. App. A374) reflecting the

proposed new projects. The two petitions, which

raised identical legal issues under NEPA, were con-

solidated below.

The proposal that is the subject of the FAA’s re-

view is the replacement of the current 10,000 square

foot terminal at the Airport—a World War II quon-

set hut moved to the site in 1946 (EA Vol. I at 1-1)?

—with a 43,000 square foot modern ternvinal.* Due

_ 4FAA orders cited herein are contained in a separate

addendum of statutes and regulations in the court of apneals.

2 The five volumes of the Environmental Assessment are

not consecutively paginated. Each volume is divided into

chapters and the page numbers begin anew at the start of

each chapter. Thus, “EA Vol. I at 1-2” refers to Chapter 1,

page 2, (not to pages 1 and 2). Multiple pages are cited, for

example, as “EA Vol. I at 1-2 through 1-4” or “1-2 and 1-4”).

*The Environmental Assessment contains a consultant’s

description of the need for the proposed project. EA Vol. I

at 1-14:

The usual comments made by the air traveler about [the

existing] facilities at Westchester County Airport should

3

to the limited space and short runways, the Boeing

737 is the largest aircraft the Airport can regularly

accommodate, but there is no proposal to increase the

length or number of runways at the airport or to in-

crease gates at the terminal. See id. at 1-13. The

current caps on aircraft size, which the proposed

improvements will not change, limit not only the

number of passengers, but the destinations that can

be reached from Westchester.

1. a. Westchester County submitted a proposed

terminal replacement project to the FAA, which was

required to review the proposal for its environmental

impacts under NEPA.* Normally, the FAA is not

required to conduct a formal environmental assess-

ment for passenger handling facilities. See FAA

Order 5050.4A (23).° Because of the interest in the

not be repeated in polite society and shall not be stated in

this professional document. One need only visit the air-

port once as a traveler to immediately share the “experi-

ence” of all who have gone before.

The passenger terminal building is often quaintly de-

scribed as a quonset hut; indeed, it is just that, having

been brought to its present site from Guam in 1946. The

hut is hardly quaint; it is dysfunctional as a passenger

processing facility, providing scarcely any essentials and

none of the amenities expected by a civilized society.

4 Approval by the FAA is required for changes in a fed-

erally-obligated airport that might affect the safety, efficiency,

or utility of the airport. FAA approval is reflected on the

Airport’s ALP, or Airport Layout Plan, a map of the airport

showing the current or approved facilities.

5In the NEPA «omtext, a “categorical exclusion” is a dis-

crete class of actions identified by the agency as not normally

causing significant environmental effects. Agencies are re-

quired by the Council on Environmental Quality (CEQ) regu-

lations, 40 C.F.R. 1507.3, to promulgate regulations, subject

aa eee al

4

project in the surrounding communities, however, the

FAA chose to prepare an assessment of the potential

environmental effects of the proposed terminal proj-

ect and the ancillary projects. See FAA Order

5050.4A (24(b) ).

The County, as the sponsoring agency, produced

for the FAA’s use a joint federal environmenta! as-

sessment and New York State environmental impact

statement. The County circulated this document to

the States of New York and Connecticut, to all of the

affected towns (including petitioner towns), and to

local libraries and interested organizations and indi-

viduals. EA Vol. VI, Doc. 1 (transmittal letter).

In total, the County prepared three major studies

of the Airport improvement project for public com-

ment: a February 1987 Master Plan Update Study /

Environmental Assessment/Final Generic Environ-

mental Impact Statement (EA Vol. V); an August

1988 Draft Environmental Assessment and Environ-

mental Impact Statement (EA Vol. IV); and a No-

vember 1988 Environmental Assessment and Final

Environmental Impact Statement on the Terminal

Facilities Modernization Project (EA Vols. I-III).

b. Formal public participation began in August

1986, when the County’s consultant notified 28 state,

local, and federal agencies of the proposal to prepare

an environmental assessment/environmental impact

to full notice and comment, listing their categorically ex-

cluded actions. Actions that fall within a categorical exclu-

sion are generally entirely exempt from NEPA analysis.

® The ‘County chose voluntarily to comply with the environ-

mental impact statement requirements under the State Envi-

ronmental Quality Review Act (SEQRA), art. 8, N.Y. Envtl.

Conserv. Law, §§ 8-0101 to 8-0117 (McKinney 1984 & Supp.

1990).

5

statement for improvements to the Airport. EA Vol.

V, App. C. On November 13, 1986, the County held

a public hearing, attended by more than 300 people

(including some of the petitioners), to discuss the

draft of the Master Plan Update Study (ultimately

released in February 1987). See Supplementary Ma-

terial. id. at 6-1 through 6-2. The County accepted

written comments on the draft for two weeks there-

after. Ibid.

In August 1988, the County prepared and circu-

lated the Draft Environmental Assessment/Envir-

mental Impact Statement to an expanded mailing

list, including petitioners. See EA Vol. VI, Doc. 1

(transmittal letter from Westchester County dated

August 25, 1988, with attached list of addressees).

On October 4, 1988, the County held another public

hearing (attended by more than 200 people). EA

Vol. II at 6-1. Among the commentators (at both

hearings) were some of the petitioners, represented

by counsel and their own elected representatives.

The County also announced that it would accept ad-

ditional written comments on this draft for two weeks

thereafter. Jbid. In November 1988, the County is-

sued the Final Environmental Assessment/Environ-

mental Impact Statement, including all the prior com-

ments submitted on the draft, and responses to them.

EA Vols. I-III.

Although not required to do so by the regulations,

the agency also prepared a “Preliminary Analysis”

of the Environmental Assessment in order to provide

the public with an additional opportunity for com-

ment before the decision was made whether or not

to prepare a full-fledged environmental impact state-

ment. The Preliminary Analysis used the informa-

tion in the environmental assessment, an FAA com-

6

missioned noise analysis, and various comments re-

ceived by the County on the draft to reanalyze the

possibility of significant impact of the project. See

C.A. App. A123-A144. The Preliminary Analysis

was circulated for comments to a total of 111 inter-

ested persons, agencies, and municipalities, including

many, if not all, of the petitioners, as well as to the

public libraries in the towns nearby the airport. See

Distribution List for Preliminary Analysis, EA Vol.

VI, Doe. 2.

The FAA received a large number of comments or

the Preliminary Analysis, including extensive com-

ments from petitioners’ counsel on their behalf. Those

comments raised before the federal agency for the

first time certain issues concerning the methodology

used to forecast the airport’s likely traffic with and

without the terminal. C.A. App. A145-A168. As a

result, the agency prepared a traffic forecast using

methods suggested by commentators.’ On May 15,

1989, the agency notified many of the commentators,

including petitioners, that “some issues raised do de-

serve further analysis and that analysis has begun.

If the analysis shows that our preliminary findings

are invalid or otherwise require change, we will not

hesitate to make those adjustnfents for our final

findings.” EA Vol. VI, Doc. 3.

7 As requested by petitioners in their comments, the agency

conducted an analysis based on market penetration, see C.A.

App. A158-A160, and shorter turnaround times at the gates,

see id. at A154-A156. The only significant comment rejected

by the agency in analyzing Airport traffic was the suggestion

to ignore the number of gates available at the Airport on the

theory that aircraft could be loaded and unloaded on the

tarmac by walking passengers some distance to and from

waiting aircraft. Id. at A153-A154.

T

ec. On November 30, 1989, the FAA rendered its

final decision in two documents—the Record of De-

cision (ROD) (Pet. App. A7-A14) and the Finding

of No Significant Impact (FONSI) (id. at A15-A45),

which were the subject of petitioners’ first petition

for review. Both documents attached a copy of the

FAA’s “Demand, Capacity and Operational Analysis

of Westchester County Airport Terminal Facilities

Modernization Project Environmental Assessment.”

Id. at A49-A62. On the basis, in significant part, of

the factors recommended by petitioners, this analy-

sis concluded that the proposed new terminal would

not result in a significant increase in airport traffic

because (1) traffic is a function of demand and phys-

ical constraints on airport use (runways, gates) (id.

at A50-A52); (2) demand varies according to flight

availability and destinations, not terminal comfort

or aesthetics (id. at A7-A8); and (3) as a physical

matter, the old terminal, though uncomfortable and

less safe, could accommodate the projected demand.

Id. at A60. This last conclusion is based on the

agency’s knowledge, from its experience with over-

crowded airports, that peaks in traffic can, and will

be, accommodated by “peak spreading”—that is, the

movement of flights from high demand time periods

into adjacent time periods.

Shortly thereafter, on February 28, 1990, the FAA

issued its approval of the Airport Layout Plan for

the terminal modification projects, C.A. App. A335-

A337, A374,*° which petitioner challenged in its sec-

® The approval noted that the FAA would be required to

conduct additional environmental review should certain steps

be taken or proposed that could increase the airport’s air

traffic capacity, including “longer/stronger runways; addi-

tional aircraft gate position[s]; increased terminal ramp

ond petition for review.°

2. In the court of appeals, petitioners challenged

the lawfulness of the procedures used by the FAA

in issuing the Record of Decision and the Finding of

No Significant Impact and in approving the Airport

Layout Plan.” Specifically, petitioners contended that

the FAA had violated procedures required by NEPA

and FAA regulations by failing to circulate the “De-

mand, Capacity and Operational Analysis” prepared

in response to petitioners’ comments on the FAA’s

Preliminary Analysis, and that the FAA had failed

to follow its own regulations requiring state and

local review of certain proposed projects. Pet. C.A.

Br. 22-29. Petitioners further argued that the FAA’s

determination that the proposed project would not

strength and capacity; or a deviation from FAA dimensional

standards, that has the potential for increasing the capability

to accommodate more or larger aircraft.” C.A. App. A336.

See Pet. App. A8.

®On November 7, 1990, a County referendum resulted in

voter approval for a bond issue to finance a 41,000 square foot

terminal. It is our understanding that the County now pro-

poses to build this somewhat smaller terminal.

Other improvements submitted for approval as part of the

Airport improvement project include: a new indoor parking

facility and rental car offices; a new perimeter road system

to prevent vehicles from having to cross active runways;

replacement of existing crash-fire-rescue facilities ; a new run-

way lighting system; and clearance of obstructions on prop-

erty adjacent to the airport at the end of the runways. None

of these ancillary projects has been challenged by petitioners.

10 Before the court of appeals, petitioners also argued that

the challenged FAA actions were not ripe for review because

no funding for the Airport project had actually been ap-

proved. The court of appeals rejected this argument, and

petitioners do not renew it in this Court.

9

create any significant environmental impacts was at-

bitrary and capricious. Jd. at 29-45."

In a per curiam opinion, the court held that peti-

tioners’ “claim that the FAA violated the National

Environmental Policy Act * * * by failing to circu-

late for public comments its independent analysis of

the likelihood that a new terminal will result in in-

creased Airport use” is “without merit” because the

agency “more than complied” with all statutory and

regulatory requirements. Pet. App. A4. As the court

explained (ibid.) :

the FAA and Westchester County conducted pub-

lic hearings and received written comments on

every draft environmental assessment; the FAA

circulated for comment its Preliminary Analysis

of the environmental assessment; and the FAA’s

independent analysis itself was done in response

to comments of petitioners. NEPA requires no

more.

The court also held that the record did not support

petitioners’ claim that the required “state and local

review process” did not take place. The FAA’s obli-

gations in this area were satisfied by sending the

11 Petitioners faulted the agency’s assessment of the envi-

ronmental impact of the project on the »»ounds that (1) the

FAA failed adequately to account for potential cumulative

effects of an independent Postal Service facility that the

government was tentatively planning to build on adjoining

land; (2) a finding of no significant impact under federal law

was, by definition, inconsistent with the County’s determina-

tion that an environmental impact statement was necessary

under New York State law; (3) “simple logic” dictated a

finding of significant potential impacts; (4) public contro-

versy concerning the project required a finding of significant

impact; and (5) the Environmental Assessment’s discussion

of alternatives was inadequate.

10

draft environmental assessment to the designated

New York “single point of contact” for state and

local review purposes, and by obtaining comments

from local governments and concerned citizens at sev-

eral points in the review process. Pet. App. at A4-A5.

Finally, the court of appeals rejected each of peti-

tioners’ attacks on the merits of the FAA’s decision

of no significant environmental impact, holding that

(1) the FAA examined “in some detail” the poten-

tial cumulative impacts of the Postal Service facility,

which, in any event, might never be built; (2) the

FAA considered public controversy by subjecting this

proposal to an environmental assessment not strictly

required by NEPA or FAA regulations; and (3) the

consideration of alternatives in the Environmental

Assessment was adequate, given the agency’s valid

finding of no significant impact. Pet. App. A5-A6.

ARGUMENT

This case does not warrant the Court’s review for

two reasons. First, there is no merit to petitioners’

argument that the procedures followed by the agency

in approving the Westchester Airport project vio-

lated a supposed “rule of fundamental fairness.” Pet.

24-34. Second, petitioners’ “fundamental fairness”’

argument was neither presented to, nor considered

by, the court of appeals, and is made for the first

time before this Court.

1. In a long line of cases interpreting the obliga-

tions of agencies under NEPA, this Court has con-

sistently held that “the only procedural requirements

imposed by NEPA are those stated in the plain lan-

guage of the Act.” Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, Inc.,

435 U.S. 519, 548 (1978); Robertson v. Methow Val-

11

ley Citizens’ Council, 109 S. Ct. 1835, 1847 (1989)

(“NEPA does not require agencies to adopt any par-

ticular internal decisionmaking structure,” quoting

Baltimore Gas & Elec. Co. v. Natural Resources De-

fense Council, Inc. 462 U.S. 87, 100 (1983) ) ; Kleppe

v. Sierra Club, 427 U.S. 390, 406 (1976) (“The pro-

cedural duty imposed upon agencies * * * is quite

precise, and the role of the courts in enforcing that

duty is similarly precise.”’).

Petitioners challenge the procedures followed by

the FAA in this case in preparing an Environmental

Assessment. But, an Environmental Assessment is

not a document required by the terms of NEPA.

These assessments are purely creatures of agency

regulations designed to help the agency decide

whether the triggering event for NEPA—the exist-

ence of a proposal for “major Federal action[]

significantly affecting the quality of the human

environment”—has occurred. Only if a project is

found to have a significant expected environmental

impact does NEPA require the agency to prepare and

circulate for public comment a “detailed statement”

on the environmental effects of the proposal and rea-

sonable alternatives to it. 42 U.S.C. 4332(C). The

“detailed statement,” known as an environmental im-

pact statement, or EIS, must be circulated in draft

for public comment before issuance in final form. See

ibid.

The FAA did not prepare an EIS here. It prepared

an “environmental assessment” for the sole purpose

of evaluating whether the effects of the proposed Air-

port project would be sufficient to warrant the prep-

aration of an EIS. The FAA concluded that the

effects would not be significant, and issued a Finding

of No Significant Impact and a Record of Decision

reflecting its approval of the project for further

12

processing in accordance with the FAA’s statutory

mandate.

Although NEPA is silent on the procedures that

must accompany preparation of an environmental

assessment, the FAA’s obligations at this stage are

spelled out with specificity in the Council] on Environ-

mental Quality’s (CEQ) regulations (see 40 C.F.R.

1500 et seq.), supplemented by the FAA’s own regu-

lations (contained in FAA Orders 5050.4A and

1050.1D). Nowhere do any of these regulations +:-

quire the federal agency to circulate an environmen-

tal assessment—or any part of it—for public com-

ment before finalizing the assessment, nor do they re-

quire the agency to circulate the draft or final assess-

ment for public comment before making a decision

whether to prepare an EIS or to issue a finding of no

significant impact. 40 C.F.R. Pt. 1501. At most,

the regulations direct the agency to “involve environ-

mental agencies, applicants, and the public, to the

extent practicable, in preparing assessments.” 40

C.F.R. 1501.4(b). The FAA’s regulations are con-

sistent with this directive, holding that the agency

retains discretion to schedule public hearings during

the preparation of an environmental assessment, if

“appropriate” under CEQ regulations (see FAA

Order 5050.4A §49(b) and (e)), and requiring

“state and local review” at appropriate times during °

the planning process (see id. § 48).

In contrast, the CEQ regulations specifically direct

the agency to invite comments following the comple-

12In certain circumstances, not relevant here, the regula-

tions require the agency to circulate the Finding of No Sig-

nificant Impact for 30 days before making its final determina-

tion concerning the significance of any impacts. 40 C.F.R.

1501.4 (e) (2).

a

13

tion of every draft EIS.“ There is no counterpart

to the EIS comment procedure for environmental as-

sessments under CEQ regulations or, for that matter,

under the supplemental FAA regulations, and peti-

tioners cite to none. Moreover, petitioners do not

dispute in this Court that the FAA complied with the

letter of the regulations that apply to environmental

assessments. ™*

18 The agency must invite comments on the final draft EIS

from affected state, local, and Indian interests, the applicant

(if there is one), and the public. 40 C.F.R. 1503.1(a) (1)-

(4). The agency must consider those comments, and respond

to them in the final statement. 40 C.F.R. 1502.9(b).

FAA regulations elaborate on CEQ’s requirements. Like

its CEQ counterpart, FAA’s “Airport Environmental Hand-

book” (FAA Order 5050.4A) contemplates a full opportunity

for written public comments on every draft environmental

impact statement (§§ 90-93), but does not require circulation

and comment opportunity following preparation of envi-

ronmental assessments. See FAA Order 5050.4A §§ 43-52.

FAA’s “Policies and Procedures for Considering Environ-

mental Impacts” (FAA Order 1050.1D) also contemplates

full notice and public comment on draft impact statements,

but not environmental assessments. FAA Order 1050.1D.

Compare Chart 1 of Attachment 1 (EA processing does not

require public comment) to Chart 3 of Attachment 1 (EIS

processing requires opportunity for review and comment by

public).

14 Nor could they. The record demonstrates that the state

and local review process mandated by FAA regulation (FAA

Order 5050.4A § 48), plus two public hearings, did take place.

Westchester County circulated the February 1987 draft

of the environmental assessment to the State Clearinghouse,

as well as to dozens of other interested individuals, groups,

agencies and municipalities, including petitioners. EA Vol.

VI, Doc. 1. The County received, responded to, and trans-

mitted to the FAA all of the comments received in this proc-

ess. See, e.g., EA Vol. I, ch. 5.

14

Under this Court’s decisions, agencies may not be

required to follow procedures over and above those

mandated by NEPA or its implementing regulations.

Similarly, in construing the Administrative Proce-

dure Act, 5 U.S.C. 701 et seg., this Court has specifi-

cally disapproved the notion that agencies must com-

ply with procedures required neither by the Due

Process Clause of the Constitution nor by statutes

or regulations. |

As recently as last Term, in Pension Benefit Guar.

Corp. v. LTV Corp. (PBGC), 110 S. Ct. 2668 (1990),

this Court reaffirmed that principle. In PBGC, re-

spondents challenged the failure of the Pension Ben-

efit Guaranty Corporation to provide interested par-

ties an opportunity to comment on the materials on

which PBGC relied in reimposing pension plan obli-

gations on respondent LTV Corporation following its

reorganization. Like petitioners here (Pet. 24-25),

some of the respondents in that case relied on Bow-

man Transp., Inc. v. Arkansas-Best Freight Sys.,

Inc., 419 U.S. 281, 288 n.4 (1974), to argue that the

procedures followed by the PBGC were unfair.

This Court rejected that contention and distin-

guished Bowman, which involved a failure to permit

comment in the context of a formal adjudication pur-

suant to the trial-type procedures of the APA under

5 U.S.C. 554, 556-557." PBGC v. LTV, 110 S. Ct. at

2680-2681. The Court held that for informal agency

adjudications, the only procedural requirements are

1% As this Court noted, those sections of the APA “include

requirements that parties be given notice of ‘the matters of

fact and law asserted,’ § 554(b) (3), an opportunity for ‘the

submission and consideration of facts [and] arguments,’

§ 554(c) (1), and an opportunity to submit ‘proposed findings

and conclusions’ or ‘exceptions,’ 557(c) (1), (2).” 1108S. Ct.

at 2681.

15

those set forth in 5 U.S.C. 555. A failure to follow

more elaborate procedures, where “the Due Process

Clause itself does not require them * * * is therefore

not unlawful.” 110 S. Ct. at 2681.

Petitioners here make exactly the arguments the

Court rejected in PBGC. Petitioners seek to bring

themselves within the “fundamental fairness prin-

ciples found in Bowman and elsewhere” (Pet. 33) by

relying on the Court’s statement in that case that

“[a] party is entitled * * * to know the issues on

which decision will turn and to be apprised of the

factual material on which the agency relies.” As

the Court in PBGC held, that statement applies only

in the context of “formal adjudication * * * pursuant

to trial-type procedures set forth in §$ 5, 7 and 8 of

the APA,” which contain specific requirements for

notice and opportunity for comment that go far be-

yond those imposed by NEPA or the regulations ap-

plicable in this case. 110 S. Ct. at 2680-2681. And, as

with PBGC, this is not a case where the Due Process

Clause requires additional procedures, and petitioners

do not suggest that it is. Nor, as we have explained,

is it a case in which any statute or regulation re-

quires the procedures petitioners demand here.” For

16 Petitioners cite a number of court of appeals and district

court cases (Pet. 28-32) for the proposition that courts, in

the name of “fundamental fairness,” have required proce-

dures in addition to those undertaken by the FAA. Their

citations are widely off the mark. National Wildlife Fed’n v.

Burford, 835 F.2d 305 (D.C. Cir. 1987), see Pet. 29, was an

appeal from a grant of a preliminary injunction, not a deci-

sion on the merits, and was, in any event, reversed last Term

by this Court in Lujan v. National Wildlife Federation, 110

S. Ct. 3177 (1990). In Lujan, this Court held that the plain-

tiff in that case lacked standing to sue. Petitioners therefore

16

these reasons, petitioners’ arguments are without

merit, and there is no warrant for further review by

this Court.

2. This Court should also decline to review this

case because petitioners’ arguments were not fairly

err in suggesting that the court of appeals’ decision in that

case remains good law.

Petitioners also err in relying on a number of lower court

NEPA decisions, including Essex County Preservation Ass’n

v. Campbell, 399 F. Supp. 208 (D. Mass. 1975), aff’d, 536

F.2d 956 (1st Cir. 1976). All of those cases involve the

public participation requirements for the preparation of an

environmental impact statement, not an environmental assess-

ment. As we have explained, the procedures required for an

EIS are far more elaborate than for an EA.

Also inapposite is Independent U.S. Tanker Owners Comm.

v. Lewis, 690 F.2d 908 (D.C. Cir. 1982). See Pet. 28. In that

case, the court found that the United States Maritime Ad-

ministration unlawfully failed to disclose a report containing

the facts and reasoning on which it based an informal adjudi-

catory approval of certain maritime applications. Here, in

contrast, the FAA fully complied with any applicable require-

ment that it circulate its decision, with reasons, and identify

the material on which it was based. The Demand, Capacity

and Operational Analysis (Pet. App. A49-A62), which spells

out the agency’s assessment of the effects of the project and

is the focus of petitioners’ challenge, was attached both to the

agency’s lengthy FONSI (id. at A15-A48), and to its ROD

(id. at A7-A14). Both of the latter documents are public

documents that were widely circulated.

Finally, petitioners cite (Pet. 25-27) United States Lines,

Inc. V. Federal Maritime Comm’n, 584 F.2d 519, 534 (D.C.

Cir. 1978), and cases cited there, for the unremarkable propo-

sition that, in informal adjudication and rulemaking, agencies

may not rely on information in their files without informing

interested parties of the data they have utilized. That case

says nothing to suggest, as petitioners contend, that agencies

must, in informal contexts, circulate the data on which they

ultimately rely for public comment before reaching their

decision.

eet ets

17

raised below. Petitioners articulated two substantive

issues for the court of appeals to review, neither of

which alleged any violation of a “rule of fundamental

fairness.” Nor did their briefs present this issue in

any form: in 72 pages of briefing, the words “fun-

damental fairness” never appear. Instead, petition-

ers urged that the FAA’s actions violated NEPA and

the agency’s own regulations, and it was on the basis

of these arguments that the court of appeals ruled.

Petitioners may not now seek this Court’s review of

issues they did not properly raise below. Rogers v.

Lodge, 458 U.S. 618, 628 n.10 (1982); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfuily submitted.

KENNETH W. STARR

Solicitor General

GEORGE W. VAN CLEVE

Acting Assistant Attorney General

PETER R. STEENLAND

ANNE S. ALMY

Vick! L. PLAUT

Attorneys

NOVEMBER 1990

W ov. &. GOVERNMENT PRINTING OFFicE, 1990 282061 20222