# Petition for Writ of Certiorari — Friends of Richards-Gebaur Airport v. Federal Aviation Administration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0969%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 535 U.S. 927 ## Text Wpreme Count, US (\ FILED OL 94y UC 1 6 2003 No. _QFFICE OF THE CLERK t In The Supreme Court of the United States + FRIENDS OF RICHARDS-GEBAUR AIRPORT, Petitioner, Vs. FEDERAL AVIATION ADMINISTRATION, JANE GARVEY, ADMINISTRATOR; CITY OF KANSAS CITY, MISSOURI; THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondents. + On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit 2. Vv PETITION FOR WRIT OF CERTIORARI + James E. Ramsey Counsel of Record Coo.tinc & Hersers, P.C. 2400 City Center Square 1100 Main Street Kansas City, MO 64105 (816) 474-0777 Attorney for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 2er QUESTIONS PRESENTED 1. Under the National Environmental Protection Act and supporting regulations and orders, the Federal Avia- tion Administration (“FAA”) could not release Kansas City from its aeronautical obligations on Richards-Gebaur Memorial Airport for construction of a major rail-truck intermodal facility at the airport without an environmen- tal assessment or impact statement, unless it found that the project was categorically excluded. Under environ- mental laws and the FAA’s own published procedures, a categorical exclusion cannot be granted if there is one or more specified extraordinary circumstances present. Peti- tioners identified several extraordinary circumstances present in the Richards-Gebaur project, any one of which would have precluded a categorical exclusion. Was the FAA’s decision granting a categorical exclusion ny and capricious? 2. Was the FAA required to follow its own pub- lished standard procedures for granting categorical exclu- sions? 3. May an agency such as the FAA disregard the cumulative environmental impacts of a project when granting a categorical exclusion? 4. May an agency such as the FAA disregard the NEPA requirements to utilize an interdisciplinary approach when granting a categorical exclusion? li PARTIES TO THE PROCEEDING The parties to the proceeding are Friends of Rich- ards-Gebaur Airport, Petitioner herein and Petitioner below; City of Grandview, Missouri, a municipal corpora- tion, and a petitioner below; Federal Aviation Adminis- tration, Jane Garvey Administrator, Respondent herein and below; City of Kansas City, Missouri, an Intervenor on Appeal below; The Kansas City Southern Railway Company, an Intervenor on Appeal below; and the Air- craft Owners and Pilots Association, which filed an Amicus Brief on behalf of Petitioner in the Court of Appeals. Additionally, a companion case, Aircraft Owners and Pilots Association, Petitioner v. Federal Aviation Administra- tion, Jane Garvey, Administrator, United States Department of Transportation, Rodney E. Slater, Secretary, Respondent, The Kansas City Southern Railway Company; and the City of Kansas City, Missouri, Intervenors on Appeal, Case No. 00-1974, was consolidated with Friends of Richards-Gebaur Airport, et al. v. Federal Aviation Administration, et al., in the case below. Petitioner, Friends of Richards-Gebaur Airport, is a not-for-profit corporation made up of members affected by the FAA’s actions. There is no parent or publicly held company owning 10% or more of the corporation’s stock. iil TABLE OF CONTENTS Page QUESTIONS PRESENTED .......-----e+eeeeeeeeee: i PARTIES TO THE PROCEEDING .........---+++++ ii TABLE OF CONTENTS........---e ee ceeeeeeeceeees iii TABLE OF AUTHORITIES ..........--02seeeeeeeees iv I ccc ccbetcsesvevcestsavereeseeseveceens vi PETITION FOR WRIT OF CERTIORARI.........--. 1 OPINIONS BELOW...........::eseece creer eeeeeees 1 JURISDICTION ......... 0: cece eee eee eee ees Evens 1 STATUTES, REGULATIONS AND ADMINISTRA- J, 2o oy |. eee ro 2 STATEMENT OF THE CASE........----eeeeeeeeees 7 SST EET ET OTT ET ETE TTT gauge oF Statutory And Regulatory Background ........... 10 Factual Background.........-..seeeee rere eee eeees 11 Decision of the Court of Appeals..........---+-- 12 TOMI 5 onc ccvccceccsvccceveceveccccccccvees 13 Deference to be Given to FAA Orders 1050.1D and er eee eh eens eased pease ne ree se © 13 Cumulative Effects and Interdisciplinary Approach ty ae er eee eee te et Seer ee iv TABLE OF AUTHORITIES Page Cases CITED: Chevron U.S.A., Inc. v. Natural Resources Defense Council, tnc., 767 US. $73 (1998)... cc scccccscwese 9, 17 Christensen v. Harris County, 529 U.S. 576 (2000) ...8, 17 Rhodes v. Johnson, 153 F.3d 785 (7th Cir. WO Sivan Cas buceeessceiccvisenesieee 9, 16, 18, 19 I oid cc cemensccekcownsee akeusaeeas 9, 16, 17, 18 STATUTES CITED: | Bik * fs . BER er er re reer rary 2 Ge WG. B Gide dcc fesiiecevivsiea 2, 9, 30, 18, Zi, ZZ OE TE, Be ikk iv cd cakieveveccuksctastieaen 2, 10 gif mee Fe BF PPC TST TTT Tree TTT Tere 1 ke FO, Se er rere rey ror rr rr ye 1, 8 OP Ten Ue as hb hbk 60 evieseades sends dercnsneuers 1 FEDERAL REGULATIONS CITED: OO Ee eee 4, 20 OO 0 OS, oii ccdsas cities Heise 20 OCU CONS. BE 21 OU OG i iii isi ignnts 2, 10, 20, 21 we! eS er ree re eee 3, 10, 13, 14, 18 Vv TABLE OF AUTHORITIES - Continued Page 40 C.ER. § 1507.3........cecceeccececccccnecceeceees 10 40 C.ER. § 1508.4.........c cece ee eee ee eceecees 4, 10, 20 40 C.BR. § 1508.7.......0ccececcecereeececcees 4, 20, 21 FAA Orpers CITED: tks renner rere rr err ert rer rer. passim Order 1050.1D ] 32(f) .......cccccvccccscccsccccsese 15 Order 5050.4A (Airport Environmental Hand- oki Sacre keeeedeserecveusasterauereasen passim Order 5050.4A | 24f(2) ..... cc ccccccecceccccccevess 15 Order SOSOAA 9 DANO . 5-6. 050s is ieericseescesienes 15 MissouRI STATE REGULATIONS CITED: 10 C.S.R. 10 — 6.020(2)(A).....- ce cccccccrccececs 11. 10 C.S.R. 10 — 6.020(3)(A) Table 1 De Minimis ee ere eres re 7; 4-50 vi APPENDIX Appendix A - Opinion dated June 11, 2001 on Petitions for Review of an Order of the Federal Aviation Administration ...............+-06- App. 1 Appendix B - Judgment dated June 11, 2001 on Petitions for Review of an Order of the Federal . Aviation Administration ..................45: App. 34 Appendix C — Categorical Exclusion Evaluation and Determination for the Federal release of the City of Kansas City, Missouri, from its Obliga- tions to Maintain Aeronautical Use of Approxi- mately 497 Acres of the Existing Richards- Gebaur Airport, Kansas City, Missouri dated SRUOGE Tay. RHEE vis siovcenssveesnesevavins App. 36 Appendix D - Order Denying Petition for Rehear- ing and for Rehearing En Banc dated September es er erry re App. 51 Appendix E - Declaration of Ed Melisky dated SOE ZA, TOES x vce ccscescasincvesesccens App. 52 PETITION FOR WRIT OF CERTIORARI Petitioner, Friends of Richards-Gebaur Airport, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. e OPINIONS. BELOW The Federal Aviation Administration Order that is the subject of this matter, was issued December 23, 1999, and is entitled: Categorical Exclusion Evaluation and Deter- mination for the. Federal Release of the City of Kansas City, Missouri, from its obligations to maintain aeronautical use of approximately 497 acres of the existing Richards-Gebaur Air- port, Kansas City, Missouri, and is reprinted in the Appen- dix to this Petition. Pet.App. at 36. The Eighth Circuit decision upholding the FAA Order granting the categorical exclusion is reported at 251 F.3d 1178 (8th Cir. 2001) and is reprinted in Pet.App. at 1. JURISDICTION The Federal Aviation Administration (FAA) issued the Orders which are the subject of this Petition on December 23, 1999, pursuant to 49 U.S.C. § 40101 et seq. and 49 U.S.C. § 47101. These Orders were subject to review by the Court of Appeals of the United States in accordance with 49 U.S.C. § 46110. Petitioners timely filed their Petition for Review on March 6, 2000. On June 11, 2000, the Court of Appeals affirmed the Federal Aviation Administration Orders. On July 25, 2001, Petitioners filed a Petition for Rehearing and Rehearing en banc, which was denied on September 19, 2001. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). Since the United States is a party, this petition is timely filed pur- suant to Supreme Court Rule 13(1). ¢ STATUTES, REGULATIONS AND ADMINISTRATIVE ORDERS 42 U.S.C. § 4332. § 4332. Cooperation of agencies: . . . The Congress authorizes and directs that, to the fullest extent possible: . . . (2) all agencies of the Federal Government shall —- (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environ- mental design arts in planning and in decision- making which may have an impact on man’s environment. 42 U.S.C. § 4342 There is created in the Executive Office of the President a Council on Environmental Qual- ity... . , 40 C.R.R. § 1507.2 § 1507.2 Agency capability to comply. . . . Agencies shall: (a) Fulfill the requirements of sec. 102(2)(A) of the Act to utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environ- mental design arts in planning and in decision- making which may have an impact on the human environment. § 1507.3 Agency procedures (a). ... each agency shall consult with the Coun- cil while developing its procedures and before publishing them in the Federal Register for com- ment. .. . The procedures shall be adopted only after an opportunity for public review and after review by the Council for conformity with the Act and these regulations... . (b) Agency procedures shall comply with these regulations except where compliance would be inconsistent with statutory requirements and shall include: (2) Specific criteria for and identification of those typical classes of action: (i) Which normally do require environmental impact statements. (ii) Which normally do not require either an environmental impact statement or an environ- mental assessment (categorical exclusions. (§ 1508.4)). (iii) Which normally require environmental assessments but not necessarily environmental impact statements. 40 C.FR. § 1508.4 § 1508.4 Categorical exclusion. “Categorical Exclusion” means a category of ° actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by the Federal agency in implementa- tion of these regulations . . . and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. .. . Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect. 40 C.FR. § 1508.7 § 1508.7 Cumulative impact. “Cumulative impact” is the impact on the envi- ronment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 49 C.FR. § 1105.6, Title 49 - Transportation (a) Environmental Impact Statements will nor- mally be prepared for rail construction pro- posals other than those described in paragraph (b)(1) of this section; (b) Environmental Assessments will normally be prepared for the following proposed actions; (1) Construction of connecting track within exis- ting rail rights-of-way, or on land owned by the connecting railroads; FAA Order 1050.1D. 4.. f.... the Office of Airport Planning and Pro- gramming has its own environmental handbook, Order 5050.A, which is consistent with Federal environmental procedures contained in this order. . . 32. EXTRAORDINARY CIRCUMSTANCES. Pro- posed Federal actions, normally categorically excluded, which have any of the following char- acteristics shall be the subject of an environmen- tal assessment. b. An action that is likely to be highly controver- . sial on environmental grounds. f. An action that is likely to: (2) Have a significant impact on air quality or violate the local, state, or Federal standards for air quality. (4) Be inconsistent with any Federal, State, or local law or administrative determination relat- ing to the environment. —_=—___. | FAA Order 5050.4A. 24. Extraordinary Circumstances. Proposed Fed- eral actions which are normally categorically excluded but which have any of the following characteristics shall be the subject of an environ- mental assessment. b. An action that is likely to be highly controver- sial on environmental grounds. A proposed Fed- eral action is considered highly controversial when the action is opposed on environmental grounds by a Federal, state, or local government agency... f. An action that is likely to: (2) Have a significant impact on air quality or violate the local, state, or Federal standards for air quality. (4) Be inconsistent with any Federal, state, or local law, or administrative determination relat- ing to the environment. 10 Mo.Code State Regs. (C.S.R.). 10-6.020. Definitions and Common Reference Tables. (1) Application. This rule shall apply through- out Missouri defining terms and expressions used in all Title 10. Division 10 — Air Conserva- tion Commission rules. (2) Definitions. (10) Significant - A net emissions increase or potential to emit at a rate equal to or exceed- ing the de minimis levels . . . (3) Common Reference Tables. (A) Table 1 —- De minimis Emissions Levels. Air Contaminant Emission Rate Carbon monoxide 100.0 Note: All rates are in tons per year. + STATEMENT OF THE CASE Introduction The United States transferred to Kansas City, Mis- souri its interest in Richards-Gebaur Memorial Airport. Kansas City was obligated to use the airport property for aeronautical purposes unless released from those obliga- tions by the Federal Aviation Administration. Kansas City sought to use the property for a truck and rail intermodal facility to be built by Kansas City Southern Railroad. Based upon environmental documents provided by the intermodal project proponent Kansas City Southern Rail- road, the Federal Aviation Administration released Kan- sas City from its aeronautical obligations in December 1999, finding that the release for the intermodal project was categorically excluded from an environmental assess- ment or an environmental impact statement. In making this release, the Federal Aviation Administration relied upon its “Airport Environmental Handbook” (FAA Order 5050.4A) published in support of and in compliance with Policies and Procedures for Considering Environmental Impacts, FAA Order 1010.1D. The Federal Aviation Administration found that there were no extraordinary circumstances present that would preclude the granting of a categorical exclusion. Petitioner identified several factors that constituted extraordinary circumstances under the FAA Orders 1050.1D and 5050.4A, any one of which alone would preclude the granting of a categorical exclusion under the Federal Aviation’s orders. Pursuant to 49 U.S.C. § 46110, Petitioner sought review in the United States Court of Appeals for the Eighth Circuit. In the initial brief, Peti- tioner, through its expert witness, identified an error in the environmental reports, underestimating the air pollu- tion effects of the truck and rail intermodal project by a factor of over 300 times. Respondent FAA was permitted to correct this error during the pendency of the proceed- ing below. The corrected air pollution effects still exceed the State of Missouri’s level required for significance. Nevertheless, the FAA still maintained that the effects would not be significant. In upholding the FAA’s grant of the categorical exclu- sion, the Eighth Circuit Court of Appeals’ decision, citing Christensen v. Harris County, 529 U.S. 576 (2000), held that the FAA Order 5050.4A was not binding upon the Agency, because the order did not contain agency rulings from adjudicatory proceedings or formal rule making and that it was only to be accorded respect by the Court to the extent the orders had power to persuade. This decision by the Eighth Circuit conflicts with the Seventh Circuit Court of Appeals decision in Rhodes v. Johnson, 153 F.3d 785 (7th Cir. 1998), wherein the court found that an agency was bound by the provisions of its Environmental Handbook. After the Eighth Circuit’s decision, this Court issued its decision in United States v. Mead Corporation, 533 U.S. 218 (2001), that expressed a more expansive view of which agency orders are entitled to Chevron deference. See: Chevron U.S.A., Inc. v. Natural Resources Defense Coun- cil, Inc., 767 U.S. 873 (1998). The Petitioner then sought rehearing from the Eighth Circuit. The Petition for Rehearing was denied. - When the FAA granted the categorical exclusion, it also failed to properly consider the cumulative impacts of the project and to use an interdisciplinary approach. This is contrary to 42 U.S.C. § 4332 and regulations of the Council for Environmental Quality. If these provisions had been followed, a categorical exclusion could not have been granted. It is a major question of Federal environmental law whether or not agencies must use an interdisciplinary approach and consider cumulative impacts when consid- ering categorical exclusions. Such agencies should not be free to ignore or evade the statutory and regulatory requirements relating to cumulative effects and an inter- disciplinary approach in finding projects categorically excluded. 10 Statutory And Regulatory Background Under the National Environmental Policy Act (NEPA), all agencies of the federal government are required to use a systematic interdisciplinary approach in planning and decisionmaking. 42 U.S.C. § 4332. NEPA created the Council for Environmental Quality (CEQ), which promulgates regulations implementing NEPA. 42 U.S.C. § 4342. These regulations require all federal agen- cies to adopt implementing procedures, 40 C.F.R. § 1507.3, and to use a systematic interdisciplinary approach. 40 C.F.R. § 1507.2. These regulations also require the agencies to set forth provisions for categorical exclusions for actions that individually or cumulatively do not have a significant effect on the environment, and extraordinary circumstances in those instances when a normally excluded action may have a significant environ- mental effect. Id. at 40 C.F.R. § 1508.4. CEQ required each agency to develop procedures that were to be published in the Federal Register for comment. 40 C.F.R. § 1507.3(a). CEQ further required that these procedures include provisions for categorical exclu- sions. Id. at (b). The Federal Aviation Administration issued Order 1050.1D to establish “Federal Aviation Administration (FAA) policies and procedures for the preparation of Environmental Impact Statements (EISs) and Findings of No Significant Impact (FONSIs) and for preparing and processing environmental assessments of FAA actions. Order 1050.1D also set forth categorical exclusions and extraordinary circumstances in Chapter 3, {J 31-32. FAA Order 1050.1D. FAA Order 5050.4 is the Environmental 11 Handbook of the Federal Aviation Office of Airport Plan- ning and Programming and “is consistent with Federal Environmental Procedures contained in [Order 1050.1D].” See 1050.1D at I 4.f. Order 5050.4A contains the same categorical exclusions and extraordinary circumstances as does Order 1050.1D. Changes to Order 1050.1 are pub- lished in the Federal Register for public comment and review. Missouri Regulation 10 C.S.R. 6.020(2) states that a net emissions increase or potential to emit at a rate equal to or exceeding the de minimis levels is significant. 10 C.S.R. 10-6.020(2). Table 1 of 10 C.S.R. 10-6.20(3)(A) sets the de minimis levels for carbon monoxide at 10€ tons per year. Factual Background On August 21, 1985, under the Surplus Property Act of 1944, the United States of America released and trans- ferred to the City of Kansas City, its interest in Richards- Gebaur Memorial Airport. By accepting the Richards- Gebaur Airport and Federal funds over the years, Kansas City assumed obligations to use the airport for aeronauti- cal purposes. See Pet. App. at 3. Kansas City requested release from its federal obliga- tions on Richards-Gebaur Airport so it could transfer the airport to the Kansas City Southern Railroad Company for construction and operation of a truck-rail intermodal facility by Kansas City Southern Railroad Company. On October 22, 1999, Kansas City submitted an environmen- tal document prepared by the Railroad’s contractor, TranSystems, for the FAA to document a categorical 12 exclusion. On December 3, 1999, Kansas City submitted additional documentation requested by the FAA. On December 20, 1999, the FAA was advised by e-mail that the neighboring cities of Belton and Grand- view objected to the intermodal project on environmental grounds. On December 21, 1999, the Kansas City Aviation Department submitted a letter to the FAA requesting immediate release of its obligations on the Richards-Geb- aur Memorial Airport property. By a letter dated Decem- ber 22, 1999, City of Grandview Mayor Wilson notified the FAA of Grandview’s continuing environmental objec- tions to the intermodal facility. The FAA Order finding a categorical exclusion and releasing Kansas City from its aeronautical obligations was issued on December 23, 1999. Decision of the Court of Appeals The Court of Appeals found that, although the FAA had, consistent with CEQ regulations, promulgated a list of categorical exclusions and characteristics amounting to extraordinary circumstances consistent with CEQ regula- tions, in the form of FAA Order 5050.4A, the Order did not contain agency rulings resulting from adjudicatory adversary proceedings or formal rule making. Therefore, according to the Court, the FAA order was not entitled to Chevron-style deference. The court then went on to find that there were no extraordinary circumstances, in spite of several instances when extraordinary circumstances were clearly present under the plain language of FAA Order 5050.4A. | iia 13 In addition, although the truck-rail intermodal pro- ject will involve the construction of four railroad tracks within the airport property, as well as up to nine addi- tional future tracks, the Court of Appeals found that the FAA did not categorically exclude the construction of railroad tracks, and that the issue relating to the construc- tion of railroad track was not properly before the Court. This is in direct contravention to the NEPA statute and regulations which require that cumulative impacts be considered when granting categorical exclusions and that the agencies use interdisciplinary approaches in making environmental decisions. ARGUMENT Deference To Be Given to FAA Orders 1050.1D and 5050.4 The improper use of categorical exclusions permits a major agency decision, that might affect the environment in a significant manner, to escape proper review. In response to CEQ regulations, agencies have set up their own internal regulatory provisions to permit the granting of categorical exclusions, together with a safeguard to identify those projects which involve extraordinary cir- cumstances, and which would preclude the granting of a categorical exclusion. 40 C.F.R. § 1507.3. The-existence of these pre-existing procedures helps to ensure that federal projects affecting the environment do not escape proper review. The application of these pre-established adminis- trative procedures by each of the agencies is necessary to 14 ensure consistency in the application of NEPA and pre- vent arbitrary decision making by agencies. The Federal Aviation Administration procedures established pursuant to 40 C.F.R. § 1507.3 include the categorical exclusions and are contained in FAA Order 1050.1D and FAA Order 5050.4. In this instance at bar, there were obvious specific factors constituting extraordinary circumstances, militat- ing against use of the categorical exclusion. The most significant examples were air quality and local govern- ment opposition, which were essentially ignored by the FAA and by the United States Court of Appeals for Eighth Circuit. Both found that there was not a significant impact on the environment on these matters, although such findings clearly violated the terms of FAA Orders 1050.1D and 5050.4. Had the FAA and the Eighth Circuit Court of Appeals followed the Federal Aviation Adminis- tration Environmental Handbook and Orders, the cate- gorical exclusion would not have been granted, since there would have been a finding of an extraordinary circumstance with respect to air quality, and local contro- versy. Air Quality On April 10, 2000, after Petitioner had filed the Peti- tion for Review, the FAA supplemented its documenta- tion relating to air pollution to correct a mathematical miscalculation in its original analysis. The FAA learned of this initial error, which underestimated the pollution by a factor of 300, from an expert witness for Petitioner who had identified the error. After this error was corrected, 15 the FAA still acknowledged that carbon monoxide (CO) resulting from the proposed intermodal facility in the year 2018 would be 129 tons per year. See Declaration of Ed Melisky. Petition App. at 52. This level by definition violates state standards for air quality, whereby any CO emissions over 100 tons per year are significant. This undisputed fact alone constitutes an extraordinary cir- cumstance precluding a categorical exclusion. Pursuant to FAA Order 1050.1D ¥ 32.(f)2 and Order 5050.4A { 24f(2), federal actions normally categorically excluded which have a significant impact on air quality or violate local, state or federal standards for air quality shall be the subject of an environmental assessment. It is also an extraordinary circumstance precluding a categorical exclusion if the proposed action is “inconsistent with any Federal, State, or Local law or administrative determina- tion relating to the environment.” Order 1050.1D { 32(f)4; and Order 5050.4A at { 24f(4). Missouri Regulation 10 C.S.R. 10-6.020(2) states that an emission equal to or exceeding the de minimis level, 100 tons per year for CO (Table 1, 10 C.S.R. 10.6.020(3)) is significant. The CO level accepted by the FAA is 129% of this level. The Eighth Circuit did not even address this issue, other than to repeat the FAA’s assertion that the air quality effects do not rise to a significant level. That is directly contrary to Missouri regulations which, under Orders 1050.1D and 5050.4A, must be considered. If the FAA environmental Orders 1050.1D and 5050.4A, had been followed by the FAA, this extraordinary circum- stance would have been properly identified and a cate- gorical exclusion would not have been granted. Similarly, had the Court of Appeals given the FAA environmental 16 orders the deference to which they were entitled by Mead, the FAA’s finding of a categorical exclusion would not have been upheld. Objection by Grandview The FAA ignored a letter by the Mayor of the City of Grandview challenging the action on environmental grounds. The Court of Appeals also rejected this letter from Grandview as being “too little and far too late”. Pet. App. at 13. Under the FAA Environmental Handbook, Order 5050.4A, a categorical exclusion cannot be granted when the action opposed on environmental grounds is likely to be highly controversial. “A proposed Federal action is considered highly controversial when the action is opposed on environmental grounds by a. . . local government agency.” FAA Order 5050.4 { 24b. The FAA Order does not specify a time limit in which the objection by the local government must be put forth. The FAA was aware of Grandview’s objection before it issued the cate- gorical exclusion. Thus, under the plain language of the FAA Order, a categorical exclusion cannot be granted. See: Rhodes v. Johnson, 153 F.3d 785, 790 (7th Cir. 1998). Furthermore, in asserting that Grandview’s objection was too late, the Eighth Circuit noted that a public pro- ceeding had been ongoing for approximately two years. Pet. App. at 13. This proceeding, however, was not an officially noticed proceeding. Any hearings that were held were ad hoc meetings held by the project proponents and their attorneys. Pet. App. at 40-41. The environmen- tal reports used to support the airport transfer and inter- modal project were not submitted until October 22, 1999. 17 They were only made available to the Petitioners as a result of a Freedom of Information Act request. There- fore, Grandview did not delay in submitting its objection in December, 1999. As with the air quality issue, had the FAA environmental orders been given proper deference, a categorical exclusion would not have applied. Pet. App. at 5. In finding that air quality and this objection by the City of Grandview were not extraordinary circumstances and that they did not have a significant effect, the Eighth Circuit stated that the FAA Environmental Handbook, Order 5050.401A was not entitled to Chevron deference, but was only entitled to respect from the Court to the extent it had the power to persuade. Pet. App. at 29. In reaching this conclusion, the Eighth Circuit relied upon this Court’s decision in Christensen v. Harris County, 529 U.S. 576 (2000). The Eighth Circuit found that, since the Order did not contain agency rulings as the result of adjudicatory adversary proceedings or formal rule mak- ing, it was not entitled to Chevron-style deference. Pet. App. at 10. After the decision in this matter by the Eighth Cir- cuit, but before denial of Petitioner’s Petition for Rehear- ing, this Court entered its decision in United States v. Mead Corporation, 533 U.S. 218, 121 S.Ct. 2164 (2001). In Mead, this Court held that: [A]dministrative implementation of a particular statutory provision qualifies for Chevron defer- ence when it appears that Congress delegated authority to the agency generally to make isles carrying the force of law, and that the agy icy 18 interpretation claiming deference was promul- gated in the exercise of that authority. Delega- tion of such authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice and comment rule mak- ing or by some other indication of comparable congressional intent. Id. at __, 2171. In this instance, Congress required that federal agen- cies develop procedures and methods in consultation with CEQ to implement the congressional plan under NEPA, 42 U.S.C. § 4332. Further, CEQ regulations require each agency to consult with CEQ in developing its pro- cedures, and to publish its procedures for public com- ment in the Federal Register. 40 C.F.R. § 15.07.3(a). Clearly, in this instance, the criteria enunciated in Mead for Chevron deference are present. Thus, pursuant to this Court’s pronouncements in Mead, the FAA’s Environmen- tal Orders 5050.4A and 1050.1D are to be given Chevron deference. Had these Orders been properly followed by the FAA and by the Court of Appeals, by applying Chevron defer- ence, a categorical exclusion would not have been per- missible in this matter. The Seventh Circuit was faced with a similar situa- tion involving the U.S. Forest Services Environmental Handbook in Rhodes v. Johnson, 153 F.3d 785 (7th Cir. 1998). In Rhodes, there were two extraordinary circum- stances present that might have had a significant environ- mental effect. Under the Forest Service’s interpretation, once it had concluded, after an internal review, that the extraordinary circumstance would not have a significant impact on the environment, it contended that it did not 19 have to prepare any further environmental studies. Id. at 789. In ruling against the Forest Service, the Rhodes court stated: We conclude that the presence of an extraordin- ary circumstance requires the Forest Service to prepare an environmental assessment. This is compelled by the plain language of the Environmen- tal Handbook. The flow chart unambiguously sets out two possible paths when a categorical exclu- sion applies: Either the proposed actions ‘has no extraordinary circumstances’ and so no further analysis is required, or it has extraordinary cir- cumstances in which an environmental assess- ment is required. Id. at 789. [emphasis added]. It is not enough that the Forest Service has conducted an internal review to determine whether the extraordinary circumstance will cause the proposed action to have a significant impact on the environment. An environmental assessment is a process required to make that interpretation. Id. at 789. Had the Eighth Circuit ruled consistently with the Seventh Circuit, the FAA’s granting of a categorical exclu- sion would have been reversed. If the agencies are permitted to deviate from their environmental orders that were published under the requirements of NEPA and CEQ regulations, then the integrity of the NEPA procedures will be lost. Further, meaningful judicial review would be impossible. Once the agencies publish their orders with their procedures, they must be followed until properly amended. 20 Otherwise, categorical exclusions could make NEPA pro- grams ineffective. Cumulative Effects and Interdisciplinary Approach Although an agency is required to consider cumula- tive effects of a proposed action, and to use an inter- disciplinary approach, the FAA did not consider the effect of the railroad’s participation, and the FAA did not address or consider the appropriate regulations requiring consideration of cumulative effects and use of an inter- disciplinary approach which it was required to consider. 40 C.FR. §§ 1507.2, 1508.4, and 1508.7, and 49 C.FR. § 1105.6. Had these regulations been properly applied, a categorical exclusion could not have been granted. The intermodal project will involve the construction of four (4) intermodal tracks within the airport property, as well as up to nine (9) additional future tracks. Also, an automobile loading facility with its own separate tracks was to be constructed. There was also a proposed realign- ment of main track that would take it outside of the railroad’s right of way and onto the airport property. Passing and siding tracks are also proposed. The purpose of all this track was to serve an area which has not previously been served by the railroad. Before now, there was only one track in which the railroad passed through the area. Since additional track will be added within the airport land area, which is not within the existing railroad right of ways, a full environmental impact statement is required. 49 C.F.R. § 1105.6(a)(b). The FAA contended that it did not categorically exclude the construction of the railroad track. The court 21 agreed with the FAA that the issue relating to the railroad track construction was not a question properly before the Court of Appeals at this time. Pet. App. at 25. The cumulative effects of the railroad construction should have been considered using the regulations applicable to railroad projects. If they had, the project would not have been categorically excluded. This position taken by the FAA and the Court of Appeals is directly contrary to the requirements of 42 U.S.C. § 4332(a) and CEQ regulations 40 C.FR. § 1508.7, 40 C.F.R. § 1507.2(a). The definition of categorical exclu- sion is a “category of action which do not individually or cumulatively have a significant effect on the human envi- ronment.” 40 C.F.R. § 15.04. [emphasis added]. The approach taken by the FAA and the Court is a classic case of segmentation contrary to NEPA. Congress instructed agencies not to selectively ignore the cumulative effects of a project based on agency jurisdiction. This is directly contrary to 42 U.S.C. § 4332. ¢ NEED FOR WRIT OF CERTIORARI In reaching this decision in the underlying case, the United States Court of Appeals for the Eighth Circuit entered a decision directly in conflict with the United States Court of Appeals for the Seventh Circuit, with respect to the deference to be given to agency procedures established pursuant to NEPA. This is an important mat- ter which directly affects the proper and effective admin- istration of national environmental policy and executive implementation of congressional intent. This issue also 22 affects the general application of many administration orders and procedures. The United States Court of Appeals for the Eighth Circuit has also effectively decided that when reviewing and granting categorical exclusions, the agency need not consider cumulative impacts or use an interdisciplinary approach. This is contrary to 42 U.S.C. § 4332 and CEQ regulations. It is an important matter of federal law which should be decided by this Court. 4 CONCLUSION For the foregoing reasons, Petitioner respectfully submits that this Petition for Writ of Certiorari should be granted. Respectfully submitted, ’ James E. RAMsEy Counsel of Record Coo.tinGc & Hersers, P.C. 2400 City Center Square 1100 Main Street Kansas City, MO 64105 (816) 474-0777 Attorney for Petitioner App. 1 United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 00-1050 Petitions for Review of an Order of the Federal Aviation Administration. Friends of Richards- Gebaur Airport; City of Grandview, Missouri, a Municipal corporation, Petitioners, Vz. Federal Aviation Administration, Jane Garvey, Administrator, Respondent. City of Kansas City, Missouri; The Kansas Southern Railway Company, Intervenors on Appeal. Aircraft Owners and Pilots Association, Amicus on Behalf of Petitioner. * £* &® &©* © & & & HH © HF HF HF HF HF HF HF HF HF FF HF HF HF F App. 2 No. 00-1974 Aircraft Owners and Pilots Association, Petitioner, Vv. Federal Aviation Administration, Jane Garvey, Administrator; United States Department of Transportation, Rodney E. Slater, Secretary, Respondents. The Kansas City Southern Railway Company; City of Kansas City, Missouri, Intervenors on Appeal. + &£+ & + $F HH HF HF HF HH HH Hh HF Hh HH F Submitted: June 13, 2000 Filed: June 11, 2001 Before LOKEN, BRIGHT, and HANSEN, Circuit Judges. HANSEN, Circuit Judge. The Friends of Richards-Gebaur Airport (Friends) and the City of Grandview, Missouri (Grandview), filed a Se ee ee a App. 3. petition for judicial review of an order of the Federal Aviation Administration (FAA) releasing airport prop- erty, challenging the order on environmental grounds. Consolidated with their petition is the separate petition of the Aircraft Owners and Pilots Association, challeng- ing the FAA’s statutory authority to make the release. After carefully considering the administrative record, we deny both petitions for review and affirm the order of the FAA. I. The Richards-Gebaur Airport was built in 1941 on land owned by the City of Kansas City, Missouri (city). In 1955, the city deeded the property free of charge to the United States Air Force for use as a permanent military base. The Air Force deactivated the base in 1976, declar- ing approximately 1,362 acres as surplus property. Since then, it has been a public use general aviation airport primarily serving small privately owned aircraft. In August 1985, the United States conveyed the property back to Kansas City, pursuant to the Surplus Property Act, see 49 U.S.C. § 47151 (1994). This conveyance required the city to use the property as a public use airport. Between 1986 and 1994, the city had accepted approximately $12.2 million in federal Airport Improve- ment Program funds for airport development, and each grant required the city to give written assurances that the airport would be available to the public for aeronautical use. For several years, the Richards-Gebaur Airport had consistently lost money. Between 1983 and 1997, losses App. 4 exceeded $18 million and were subsidized by the city’s two commercial airports. The airport’s losses were pro- jected to continue at more than $1.5 million annually. In 1997, in an effort to pursue an opportunity to redevelop the land into a new intermodal rail-truck freight distribu- tion center,1 Kansas City submitted an application to the FAA requesting permission to close the airport and seek- ing to be released from its federal obligations and assur- ances to maintain the property for public aeronautical use under the Surplus Property Act and the Airport Improve- ment Program. The FAA and Kansas City negotiated a memorandum agreement dated July 1998, in which the FAA concluded that the terms it attached to the release and closure of the airport would result in a net benefit to aviation. The FAA found that although the facility was maintaining opera- tion as a general aviation airport, it was able to do so only at substantial losses which were heavily subsidized by Kansas City’s other commercial airports, draining funds otherwise available to those facilities. The FAA found that this financial burden was not necessary in a metro- politan area served by several other airports that remain available to general aviation. The memorandum agree- ment required Kansas City to deposit $5 million into an escrow account to be dispersed by the FAA for federally 1 “It is a goal of the United States to develop a national intermodal transportation system that transports passengers - and property in an efficient manner.” 49 U.S.C. § 47101(b) (1994). “A national intermodal transportation system is a coordinated, flexible network of diverse but complementary forms of transportation that transports passengers and property in the most efficient manner.” Id. § 47101(b)(3). App. 5 eligible aviation improvement projects in the Kansas City area.? The city also agreed that for 20 years, it would deposit all net proceeds from the projected lease of the property into its aviation account for use solely for speci- fied and general aviation projects. It agreed to notify the FAA of each disbursement from the net proceeds account and to permit the FAA to audit the account. On February 22, 1999, the Kansas City City Council by ordinance approved a 50-year lease for development of the facility by the Kansas City Southern Railway Com- pany (KCSR). The voters of Kansas City approved the ordinance in a referendum vote on August 3, 1999. On October 22, 1999, Kansas City submitted an Environmen- tal Documentation Report, supported by exhibits, demon- strating that the development does not present any extraordinary circumstances that would require further environmental assessment. In a letter dated December 23, 1999, the FAA released Kansas City from its federal obligations to maintain the property as an airport, allowing the city to close the airport and maintain the property as nonaeronautical, 2 An amended memorandum of agreement was negotiated on March 20, 2000, to respond to the possibility that Kansas City would build (within five years) a replacement general aviation airport on the site. Other provisions of the agreement, however, remain identical to the first negotiated agreement, except that the release was modified to release initially only two parcels of land totaling 497 acres of the entire 1,362- acre property from the obligation to continue to use them for airport use. Those two parcels consisted of the existing airfield itself and related property which would, in turn, be used for the planned intermodal facility. App. 6 revenue-producing property of the Kansas City Aviation Department consistent with the memorandum of agree- ment. The FAA prepared no formal environmental anal- ysis of this proposed action but considered several pertinent environmental factors before concluding that the closure was categorically excluded from the require- ment of preparing an environmental assessment. The FAA issued its categorical exclusion evaluation on the same date as the letter releasing the airport property. The record indicates that the public had an oppor- tunity to participate in and comment on the proposed redevelopment throughout the more than two years in which the application was pending before the FAA. Thirty-five public meetings were held in a variety of locations in addition to open public meetings before the Kansas City City Council. Four of the public meetings were held in the neighboring City of Grandview, and there was substantial media coverage of the proposed redevelopment. A small number of citizens wrote letters opposing the project on a variety of grounds, and a group of pilots formed the opposition group known as the Friends of Richards-Gebaur Airport. On the very after- noon that the FAA issued its release, the FAA received a faxed letter from the Mayor of Grandview expressing opposition to the release on environmental grounds, but this was the only opposition from any governmental agency throughout the two-year application process. Pursuant to 49 U.S.C. § 46110 (1994), the Friends and Grandview filed in this court a petition for judicial review of the FAA’s action, challenging the FAA’s deci- sion to categorically exclude the closure of this airport from the requirement of preparing an environmental liam App. 7 assessment. The Aircraft Owners and Pilots Association also petitioned for judicial review, asserting that the FAA failed to satisfy the standards of the Surplus Property Act and lacked authority to release Kansas City from its fed- eral obligations. We consolidated these petitions for pur- poses of briefing and argument, and permitted Kansas City and the Kansas City Southern Railway Company to intervene in support of the FAA’s decision. Il. A court of appeals reviewing a petition for judicial review of an order of the FAA “has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order.” 49 U.S.C. § 46110(c). In reviewing an order under this section, the court may consider only those objections made in the agency proceeding, unless there was a rea- sonable basis for not making the objection earlier. See id. § 46110(d). The statute mandates that the agency’s find- ings of fact are conclusive as long as they are supported by substantial evidence. See id. § 46110(c). Because § 46110 does not specifically enunciate a standard for reviewing the FAA’s nonfactual determinations, we turn to the Administrative Procedure Act (APA) for the appro- priate standard. See 5 U.S.C. § 706. The APA prescribes that an agency action is unlawful and may be set aside if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). In sum, while our factual inquiry on the record must be “searching and careful,” our scope of review is quite narrow; we are “not empowered to substitute [our own] judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). We App. 8 “a determine merely “ ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Downer v. U.S. by and Through U.S. Dep’t of Agric. and Soil Conservation, 97 F.3d 999, 1002 (8th Cir. 1996) (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)). The petitioners essentially challenge two agency decisions. First, they challenge the FAA’s decision to cate- gorically exclude the proposal to close the airport from the requirement of preparing an environmental assess- ment under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d (1994). Second, they challenge the FAA’s decision to grant Kansas City a release from its federal obligations to maintain the prop- erty as an airport. A. Categorical Exclusion We begin with the environmental challenge. The Friends and Grandview contend that the FAA abused its discretion by not taking a hard look at the environmental impact of its decision as required by NEPA. See 42 U.S.C. § 4332(2). NEPA requires federal agencies taking major federal actions that significantly affect the quality of the human environment to prepare a detailed environmental impact statement considering the effects of and alterna- tives to the proposed action. See id. § 4332(2)(C). The environmental impact statement requirement ensures that agencies “take a ‘hard look’ at the environmental conse- quences of a project before taking a major action.” Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115 (8th Cir. 1999) (internal quotations omitted). App. 9 NEPA’s Council on Environmental Quality (CEQ) has promulgated regulations to provide federal agencies with guidance for complying with NEPA’s requirements. See 40 C.F.R. §§ 1500-1517. The regulations encourage agencies to document an environmental assessment, briefly pro- viding the agency with sufficient evidence to determine whether the proposed agency action has no significant impact on the environment or whether the action has a significant impact that requires the preparation of a detailed environmental impact statement under NEPA. See 40 C.F.R. § 1508.9. The regulations also provide that agencies may categorically exclude certain types of fed- eral activities from this case-by-case environmental assessment review. See id. § 1500.4(p) (requiring agencies to reduce paperwork in part by using categorical exclu- sions to define categories of actions that do not have a significant impact on the environment and are therefore exempt from NEPA’s requirement to prepare an environ- mental impact statement); § 1507.3(b)(2)(ii) (requiring agencies to develop specific criteria for identifying cate- gorical exclusions). The CEQ regulations define categorical exclusions as “a category of actions which do not individually or cumulatively have a significant effect on the human envi- ronment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations.” Id. § 1508.4. For actions falling within a categorical exclusion, neither an environmental assessment nor an environmental impact statement is required. See id. The regulations require that an agency must also consider exceptions to the categori- cal exclusions by listing “extraordinary circumstances in App. 10 which a normally excluded action may have a significant environmental effect,” thus requiring the preparation of an environmental assessment. Id. Consistent with these CEQ regulations, the FAA pro- mulgated a list of categorical exclusions and characteris- tics amounting to extraordinary circumstances, which are set forth in the Airport Environmental Handbook, FAA Order 5050.4A. (See Petitioners’ App. at 900-903.) The federal release of airport land is listed in the Handbook as an action that is categorically excluded from the requirement of preparing a formal environmental assess- ment. (See id. at 901; FAA Order 5050.4A, J 23(10).) Rele- vant factors listed as extraordinary circumstances include any action that is likely to (1) have an effect on property protected under the Historic Preservation Act, (2) be highly controversial on environmental grounds, (3) be highly controversial with respect to the availability of relocation housing, (4) cause a significant increase in surface congestion, or (5) have a significant impact on noise levels or air quality. (Petitioners’ App. at 902; FAA Order 5050.4A, J 24.) FAA Order 5050.4A is an interpre- tive agency order. Because it does not contain agency rulings reached as a result of adjudicatory adversary proceedings or formal rule making, it is not entitled to Chevron-type deference, but the order is nevertheless accorded respect by the courts to the extent it has the power to persuade. See Christensen v. Harris County, 120 S.Ct. 1655, 1662-63 (2000); Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944); see also Drake v. Honeywell, Inc., 797 F.2d 603, 607 (8th Cir. 1986) (stating that interpretive rules provide guidance to parties and “carry no more weight on judicial review than their inherent persuasiveness App. 11 commands”) (internal quotations omitted). The FAA’s Airport Environmental Handbook, “while not controlling upon the courts by reason of [its] authority, do[es] consti- tute a body of experience and informed judgment to which courts and litigants may properly resort for guid- ance.” Skidmore, 323 U.S. at 140. The petitioners do not argue that the federal release of airport land is an action that cannot be categorically excluded from the environmental assessment require- ment, and we have no reason to doubt the agency’s informed decision in this matter. Instead, they contend that the FAA failed to adequately consider all of the relevant extraordinary circumstances that would prevent the use of the categorical exclusion in this particular case. The FAA documented its categorical exclusion eval- uation in this case in which it considered and discussed the relevant extraordinary circumstances listed in FAA Order 5050.4A. Specifically, the FAA considered the effect of the proposed action on property subject to the National Historic Preservation Act, the potential noise, air quality, and water quality consequences of the action, its effect on farmlands, whether the action was highly controversial on environmental grounds, its effect on the natural environment, the availability of relocation hous- ing, the potential community disruption, the cumulative impact of the action (including the project's effect on air quality and surface traffic congestion), and other relevant aspects likely to be at issue with this project” The FAA concluded that based upon its evaluation of the likely impacts of the proposed action, no extraordinary circum- stances existed to preclude a categorical exclusion of this “ App. 12 action from the environmental assessment requirement. (See Petitioners’ App. at 31.) We review an agency’s determination that an action falls within a categorical exclusion under the arbitrary and capricious standard. See Alaska Ctr. for the Env’t v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999). The Friends and Grandview contend that the FAA acted arbitrarily and capriciously in determining the categori- cal exclusion applied, asserting that several extraordinary circumstances required the FAA to take a closer look by ‘completing an environmental assessment. We consider each challenged extraordinary circumstance in turn.3 1. Highly Controversial on Environmental Grounds The petitioners assert that the release of airport prop- erty was highly controversial on environmental grounds. The FAA’s order states that a proposed action is highly controversial on environmental grounds (thus requiring the preparation of an environmental assessment) when the action is opposed on environmental grounds by a 3 We do not reach the petitioners’ allegations that the FAA’s decision to release the property was preordained and the outcome predetermined. Our review of the extra-record affidavits relied on by the petitioners in an attempt to prove bad faith or improper motives on the part of the FAA convinces us that they do not rise to the level of the ” ‘strong showing of bad faith or improper behavior’ ” which would permit us to look behind the decision and overcome the presumption of regularity accorded agency action. Newton County Wildlife Ass'n v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998) (quoting Overton Park, 401 U.S. at 420). App. 13 government agency or a substantial number of the per- sons affected by the action. (See Petitioners’ App. at 902; FAA Order 5050.4A, ¥ 24(b).) The FAA found no signifi- cant environmental opposition. The petitioners assert that the FAA completely ignored the faxed letter from the Mayor of Grandview challenging the action on environmental grounds. The FAA received no governmental environmental opposition until it received the mayor’s letter on the very day it issued its decision and its supporting extraordinary cir- cumstances evaluation. Regardless of any dispute over the timing of when FAA officials actually received the letter during that day, we consider this one letter of governmental opposition to be too little, and far too late in a public proceeding that had been ongoing for approxi- mately two years. Thus, the FAA did not act arbitrarily or capriciously by concluding that there was no govern- mental opposition to the action. Concerning citizen opposition, the FAA noted that it received 65 citizen letters opposing the project, of which only approximately 20 expressed environmental con- cerns. Even considering all of the opposing letters, how- ever, the FAA concluded that this number was insufficient to constitute substantial opposition on envi- ronmental grounds where the population of the area most affected (the communities of Belton and Grandview) exceeds 40,000. The agency determination that 65 letters opposing the project (most of which did not voice envi- ronmental concerns) did not constitute a substantial con- troversy on environmental grounds is not arbitrary on this record. App. 14 The petitioners argue the FAA ignored evidence that, although the residents of Kansas City as a whole voted by referendum to pass an ordinance authorizing the city to proceed with the project, the majority of voters in wards closest to the airport voted “no,” and the citizens of Belton and Grandview, the areas most affected, had no vote. The petitioners assert that these circumstances reflect a concern that the project was highly controversial on environmental grounds. We disagree. Although the citizens of Belton and Grandview have no vote on ordi- nances affecting property within the City of Kansas City, four of the thirty-five public meetings were held in Grandview in an effort to give its citizens an opportunity to voice their concerns about the project, yet no substan- tial environmental opposition arose. Also, those Kansas City residents who voted “no” for the project did not provide any reasons explaining their vote and evidently did not write letters to the FAA informing it of any environmental concerns. Thus, the FAA did not act arbi- trarily by ignoring the evidence of “no” votes in wards closest to the affected area and the citizens of Belton and Grandview certainly were not isolated from the proceed- ings. 2. Community Disruption and Surface Traffic The petitioners contend that the FAA ignored or improperly discounted evidence indicating that a sub- stantial community disruption was likely and that the action would cause a significant increase in surface traffic congestion. This contention lacks merit. The FAA’s cate- gorical exclusion evaluation did consider the potential for App. 15 community disruption and added surface traffic, con- cluding in relevant part that the project will not adversely affect local traffic movement and that planned highway improvements will more than adequately handle the traf- fic generated by the intermodal facility. The FAA found that the Missouri Department of Transportation (MDOT) has considered the proposed intermodal facility in its design for improving Route 150, Route 58, and the interchanges of I-435, I-470, and Route 71. MDOT reported by letter that the planned roadway and interchange improvements will accommodate the additional truck traffic from the facility, even at its “full build out.” (Petitioners’ App. at 55.) The Environmental Documentation Report submitted by Kansas City, and considered by the FAA, notes that using railcars to carry more than one truck container actually results in fewer trucks on the roadways. (See id. at 615.) This report notes that “[bJased on traffic studies to date, the intermodal facility will contribute less than 1% increase in traffic” to the area. (Id. at 616.) The report concluded that even in the worst case scenario, the adverse traffic effects of increased truck and rail traffic would be offset by new highway construction and improved intersections. An agency may rely “on mitigating measures to be under- taken by a third party” in making its finding of no significant impact. Audubon Soc’y of Cent. Ark. v. Dailey, 977 F.2d 428, 435-36 (8th Cir. 1992). Additionally, the FAA found that no additional train traffic would occur for five years, after which the train traffic could be expected to increase 16% over the next twenty years. The Kansas City Southern Railway Com- pany indicated that even assuming a 10% growth rate per App. 16 year, no additional trains would be required in the first five years of operation because the present trains are currently running under capacity. (See Petitioners’ App. at 649.) Based upon these studies and the opinions of expert consultants, the FAA found that the anticipated increase in train and truck traffic will not significantly affect the movement of local traffic or alter any planned development. The record supports this finding. The petitioners argue that the FAA acted arbitrarily by relying on documents that underestimate the capacity of the facility, which is measured in “lifts per year.”* The petitioners argue that the FAA estimated only 120,000 lifts per year, yet plans to develop the facility show that up to about 500,000 lifts per year will be performed, which represents only about 70% of the facility’s capacity. The ‘petitioners assert that 100% growth is reasonably foreseeable and should be assumed. We are not in a position to question the veracity of the growth estimate. The Environmental Documentation Report and its supporting exhibits indicate an initial esti- mation of 120,000 lifts per year, but the report also assumes a twenty-year growth pattern, stating that “Kan- sas City Southern is hoping to grow the facility to about 500,000 lifts a year.” (Petitioners’ App. at 641.) In the next sentence, the report states that “[t]he goal factor is about 10% a year.” All of this information was contained in the 4 A lift is accomplished by an overhead crane that either takes a truck trailer off the ground and places it on the rail car or vice versa. (See Petitioners’ App. at 642.) Lifts are the means by which revenue is generated for the facility. ! innate ia aa App. 17 Environmental Documentation Report, which was prop- erly before the agency. The FAA’s findings are supported by this documentation, and the FAA has articulated a rational connection between the facts and the conclusions it made. The FAA was entitled to rely on expert docu- mentation provided in the record, and we cannot say that the agency’s findings on this point lack substantial evi- dence to support them. The petitioners argue that the FAA’s reliance on the Environmental Documentation Report, which concludes that there is no significant impact from the proposal, is arbitrary and capricious because it was provided by Kan- sas City, a proponent of the project. They also question the source of information underlying the MDOT’s projec- tions of intermodal traffic. The FAA urges that it indepen- dently reviewed the environmental consultants’ analysis and concurred with the conclusions reached. The FAA also asserts that it is allowed to rely on the opinion of a state government agency. We agree with the FAA. Our duty is merely to ensure that the agency considered the proper factors and made no clear error of judgment. See Marsh, 490 U.S. at 378. “Once the agency considers the proper factors and makes a factual determination on whether the impacts are significant or not, that decision implicates substantial agency expertise and is entitled to deference.” Alaska Ctr. for the Env’t, 189 F.3d at 859. “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 378. We conclude that the FAA was entitled to rely on expert consultants, including the opinions of 0 EEE ee ee App. 18 other governmental agencies, especially where the evi- dence deals with scientific judgments. See United States v. Grand Labs., Inc., 174 F.3d 960, 964 (8th Cir. 1999). 3. Noise Pollution The FAA found “that most of the DNL 65 dB noise contour resulting from the intermodal facility’s train and truck traffic will remain well within the facility’s bound- aries.” (Petitioners’ App. at 32.) The symbol DNL (or Ldn) represents the “[d]ay-night average sound level,” which is a decibel measurement of the average sound level for a 24-hour period. 14 C.F.R. § 150.7. The FAA has determined that all land uses are considered to be com- patible with noise levels that are less than DNL 65 dB. Id. § A150.101(d). Airports are required to develop noise exposure maps showing contour lines of DNL 65, 70, and 75 dB. In areas where the noise level is DNL 65 dB or greater, land uses must be identified and their compati- bility determined. To this end, the FAA has developed a table indicating appropriate noise levels that can be tolerated for different land uses. The noise sensitive area nearest to the pro- posed facility is the Belton Community Golf Course, which is 800 feet away from the noise source. The land use table indicates that a golf course can tolerate noise levels of DNL 65-70 dB. See 14 C.FR. Pt. 150, App. A, Table 1-Land Use Compatibility. The study indicates that the nearest point of the golf course is within the 65-70 dB contour lines of the facility. The nearest residence is located over 2000 feet away, which is well away from the DNL 65 dB contour line even under the full build-out App. 19 scenario. Accordingly, the FAA concluded that the project will not significantly increase noise in any noise sensitive areas, and therefore no further analysis was necessary. The petitioners contend that the use of an unreason- ably low number of expected lifts adversely affected the noise study. We disagree. The record indicates that the noise study includes full calculations for a full build-out scenario, as well as calculations based on the 120,000 lift estimation. The Environmental Documentation Report specifically took into account the full build-out scenario, providing full calculations for a full build-out of the facility. The study indicated that resulting noise levels were well below acceptable levels. The full build-out calculations indicate a DNL 70 dB in the worst-case sce- nario. Additionally, the study indicates that “the intermo- dal facility only generates noise in a localized and limited area (300 to 700 feet) adjacent to the facility, while the airport generates noise patterns extending over 5,000 feet away.” (Petitioners’ App. at 810.) There is no indication that the FAA ignored evidence relevant to the noise impact of the facility. The petitioners also assert that the FAA ignored the possibility of continued airport use of the facility. To the contrary, the FAA addressed the potential noise impact from continued use of the facility as an airport as a cumulative impact but concluded that while there is a possibility of future airport development at this site, there is no proposal reasonably foreseeable at this time. Furthermore, any future airport plans would be subject to appropriate environmental review when proposed. Thus, this possibility is an insufficient basis on which to find that the FAA’s action at this time was arbitrary. App. 20 The petitioners’ remaining contentions are based in large part on the opinion of their own expert, which was not made a part of the administrative record. Through a motion to this court, petitioners sought to supplement the record with letters and expert opinions that were not before the agency, in order to show that the agency over- looked substantial environmental issues and relevant fac- tors. We are not in a position to substitute our own judgment for that of the agency by considering expert testimony that was not made a part of the administrative record. “[W]Jhen a litigant challenges an agency deter- mination on grounds that, in essence, allege that the agency’s expert review was incomplete, inconclusive, or inaccurate, the greater degree of deference expressed by the arbitrary and capricious standard is appropriate.” Greenpeace Action v. Franklin, 14 F.3d 1324, 1331 (9th Cir. 1992) (alterations, quotations, and citations omitted). Once we determine that an agency’s discretion is truly informed, we must defer to that informed discretion. See Marsh, 490 U.S. at 377; Greenpeace, 14 F.3d at 1332; see also Newton County Wildlife Ass'n v. Rogers, 141 F.3d 803, 808 (8th Cir. 1998) (noting that our inquiry ends when we are satisfied that the agency considered all of the information available at the time of its decision). Our review of the record indicates that the FAA considered all relevant factors and available evidence relating to the noise impact of the facility. The FAA’s conclusions are based on substantial scientific data, and not on mere speculation. NEPA does not require courts to resolve disagreements among experts. See Greenpeace, 14 F.3d at 1333. “[T]he record in this case reveals no com- plete failure to consider crucial factors.” Id. Accordingly, App. 21 we deny the petitioners’ motion to supplement the record. In a noise-related argument, the petitioners contend that the noise impact of the facility on the nearby Belton Community Golf Course will interfere with enjoyment of the golf course so as to amount to a “use” of the property. Section 4(f) of the Department of Transportation Act pro- vides in relevant part that the “use” of publicly owned land or a public park may be approved only if there is no feasible alternative and the project includes all possible planning to minimize the resulting harm. See 49 U.S.C. § 303(c). The FAA’s Environmental Handbook provides that an action that is likely to use Section 4(f) lands is an extraordinary circumstance requiring an environmental assessment. (See Petitioners’ App. at 902; FAA Order 5050.4A, | 24(a).) As already noted, the FAA found that the nearest part of the golf course lies about 800 feet from the boundary of the proposed facility. The full build-out worst-case scenario shows a DNL 70 dB contour line encompassing property within 700 feet of the noise source and a DNL 65 dB contour line encompassing prop- erty within 700 to 1400 feet from the noise source. (Peti- tioners’ App. at 834.) The FAA determined that the golf course is a compatible land use with the facility’s DNL 65-70 dB level of noise. The record supports the FAA’s finding that the proposed action will not physically take or “use” Section 4(f) property. 4. Air Quality FAA Order 5050.4A, paragraph 24 (f), states that an extraordinary circumstance exists where a government App. 22 action has a significant impact on air quality. (See Peti- tioners’ App. at 902.) The FAA considered the intermodal facility’s potential effect on the air and determined that the resulting air quality impacts are not significant. Since its initial determination, however, the FAA has identified a mathematical miscalculation in its original analysis, which resulted in an underestimate of the air quality impacts. We permitted the FAA to correct the record calculations based upon accurate information. The new calculations provided by the FAA continue to indicate that the air quality effects of the new facility do not rise to a significant level. The petitioners contend that the FAA overlooked a significant impact on air quality because the study was based on underestimated traffic assumptions. We con- cluded earlier that the traffic analysis was not seriously underestimated. The petitioners also point to the opinion of their own expert for their assertion that the FAA’s air quality analysis is flawed. We have denied their attempt to supplement the record with this expert opinion. Also, there is no merit to the contention that an EIS must be prepared whenever qualified experts disagree. See Green- peace, 14 F.3d at 1335. We refuse to engage in a de novo review of scientific data and opinions that are within the expertise of the agency. 5. Historical Property The Friends assert that the facility will have an adverse effect on a historical property. Although one building on the property is potentially eligible for protec- tion under the National Register of Historic Places, the App. 23 FAA determined that it is outside of the area of potential effect because it is not within the boundary of the lease, and any impacts on historical property resulting from the project will not extend beyond the lease line boundaries. We see nothing arbitrary in this decision. Also, the FAA considered the fact that the airport was named after two local pilots killed during World War I and the Korean War, but it concluded that this does not make the airport eligible for protection as a historic site. The FAA consid- ered the relevant factors, and we will not disturb its finding of no significant impact. 6. Relocation Housing The FAA’s Airport Environmental Handbook states that an extraordinary circumstance exists if the action is “likely to be highly controversial with respect to the availability of adequate relocation housing.” (Petitioners’ App. at 902; FAA Order 5050.4A, ¥ 24(d).) The FAA found that the intermodal facility project is not controversial with respect to the availability of relocation housing because it does not involve any housing issues and will not require the relocation of any residents. The FAA also considered that the action will require the closure of the fixed base operation and the hangar facilities at the air- port. The FAA found that sufficient general aviation facil- ities are available in the area, although the hangar space is inadequate. In spite of the inadequacy of available hangar space, the FAA did not alter its finding that the action is not highly controversial on the issue of reloca- tion housing. App. 24 The Friends contend that the FAA defined adequate relocation housing too narrowly by ignoring the inade- quacy of available hangar space for aircraft that will need to be relocated. They cite 42 U.S.C. § 4601(6)(A) (1994), of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, which defines “displaced person” as “any person who moves from real property, or moves his personal property from real property” as a direct result of an agency action. The Friends contend that the agency’s interpretation of the statute as involving only housing issues, and not also displacement of per- sonal property, reads the statute too narrowly. In the context presented here, we disagree. The FAA’s order is specifically concerned with the environmental impact of agency actions that relocate people or busi- nesses. We do not believe the FAA purports to implement the Uniform Relocation Assistance and Real Property Acquisition Policies Act in its handbook. Instead, the FAA is implementing the policies of NEPA and has dis- cretion in doing so to decide that the displacement of people from their housing has a significant impact on the human environment, while the relocation of airplanes does not. Nothing in the handbook prevents the pilots from obtaining any federal assistance to which they may be entitled under the Uniform Relocation Assistance and Real Property Acquisition Policies Act due to the reloca- tion of their personal property. The FAA was not arbi- trary in deciding that any difficulty experienced in obtaining hangars for relocated airplanes does not create an environmental concern requiring the preparation of an environmental assessment in this case. App. 25 7. Railroad Construction The Friends also contend that although the agency may properly categorically exclude the release of airport property, it may not categorically exclude the construc- tion of a railroad track. However, the FAA did not cate- gorically exclude the construction of a railroad track. The FAA properly considered the potential environmental impact that might result from the proposed facility. Whether the construction of track is considered a railroad line subject to the jurisdiction of the Surface Transporta- tion Board (STB), see 49 U.S.C. § 10501(b) (Supp. IV 1998), or an industrial, team, switching, or side track that is not within the STB’s jurisdiction, see 49 U.S.C. § 10906 (Supp. IV 1998), is a matter to be considered in the first instance by the STB. We agree with the FAA that this question is not properly before us at this time. It is enough that the FAA considered the relevant resulting environmental fac- tors and determined them to have no significant impact on the environment. . B. The Decision to Release the Federal Obligations The Aircraft Owners and Pilots Association (AOPA) challenges the FAA’s authority to grant a release from the federal obligations that were imposed upon Kansas City by reason of the Surplus Property Act and the Airport Improvement Act. Because AOPA did not make this chal- lenge before the agency and has not proffered any reason- able basis for not making the objection at that time, we will not consider the argument here. See 49 U.S.C. § 46110(d) (stating that the court reviewing an FAA order may consider only those objections made in the agency App. 26 proceeding, unless there was a reasonable basis for not making the objection earlier); see also Northwest Airlines, Inc. v. FAA, 14 F.3d 64, 73 (D.C. Cir. 1994) (noting that even objections challenging the agency’s authority to act must be raised before the agency in the first instance). AOPA also challenges the decision to release the federal obligations as arbitrary, capricious, and contrary to law. In this case, Kansas City sought release from its federal obligations to make the airport available to the public for aeronautical use. The FAA granted the request, finding in its amended and restated memorandum of agreement that “the City has subsidized the Airport with revenue from the other airports owned and operated by the City” and that “the City has identified an alternative use for the Property that will generate additional revenue for the regional aviation system and permit aviation funds now used to subsidize Richards-Gebaur to be used for future improvements” at Kansas City’s other airports. (Petitioners’ App. at 879.) Additionally, the memorandum specifically finds: [I]n consideration of the number of public-use genera] aviation airports in the Kansas City area; the fact that at least three of these airports are within convenient driving distance of the areas served by Richards-Gebaur; the fact that the sponsor of Richards-Gebaur Airport, Kansas City, operates two other airports serving the Kansas City area; the fact that the remaining value of Airport Improvement Program (AIP) investments in Richards-Gebaur recovered from the City may be reinvested in other general aviation capacity projects in the Kansas City area; the fact that the proposed redevelopment App. 27 of the Property will produce substantial revenue for aviation development in the Kansas City airport system; and the fact that a significant part of this revenue stream will be committed to general aviation projects in the Kansas City air- port system; the FAA finds that highly unusual circumstances exist that would support a find- ing that the release and closure of the Richards- Gebaur Airport would result in a net benefit to aviation... . ” (Petitioners’ App. at 880.) The statute provides that the Secretary of Transporta- tion “may waive” the conditions of a surplus property gift if the Secretary decides (1) that “the property no longer serves the purpose for which it was given,” or (2) that “the waiver will not prevent carrying out the pur- pose for which the gift was made and is necessary to advance the civil aviation interests of the United States.” 49 U.S.C. § 47153(a)(1). The Secretary also “shall waive a term under paragraph (1) of this subsection on terms the Secretary considers necessary to protect or advance the civil aviation interests of the United States.” Id. § 47153(a)(2); see also 14 C.E.R. § 155.3(a)(1), (2) (restating the statutory grounds that may be the basis for a release). AOPA contends that the FAA failed to satisfy the stan- dards of the Surplus Property Act because nowhere in its findings did the FAA state that the waiver was “neces- sary,” as required by the language of the statute. See 49 U.S.C. § 47153(a)(1)(B). We initially reject the FAA’s assertion that AOPA did not raise this plain language objection before the agency. The argument may not have been made as thoroughly as App. 28 it is in the petition for review, but AOPA specifically quoted the language of the statute in a letter to the FAA dated September 21, 1998, complaining that the mem- orandum of agreement “does not conclude or explain how the release ‘is NECESSARY to advance the civil aviation interests of the United States.’” (Respondents’ App. at 75 (quoting 49 U.S.C. § 47153(a)(1)(B), emphasis in original)). We conclude that this complaint to the agency sufficiently preserved the plain language argu- ment asserted here. Thus, we move on to consider whether the agency’s interpretation of the statute in mak- ing the release was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As AOPA complains, nowhere in the memorandum of agreement or in the actual letter releasing the property does the FAA specifically state that the release of the Richards-Gebaur Airport property is “necessary to advance the civil aviation interests of the United States,” as it is worded in the statute. Instead, the memorandum of agreement lists all of the reasons why a release is beneficial and after considering them, concludes, in the language of an FAA order, that the release “would result in a net benefit to aviation.” (Petitioners’ App. at 880.) For the following reasons, we do not believe this to be fatal to the FAA’s decision. The regulation implementing the statute quotes the statutory language in large part without specifically interpreting how the FAA will determine when a release is “necessary” to protect or advance aviation interests. See 14 C.F.R. § 155.3(a)(2). In the FAA’s interpretive order, App. 29 Order 5190.6A entitled Airport Compliance Require- ments, the FAA states that “[a] total release, permitting the sale and disposal of real property acquired for airport purposes under the Surplus Property Act, shall not be granted unless it can clearly be shown that the sale of such property will benefit civil aviation.” (Petitioners’ App. at 1040.) The FAA’s general policy regarding the release of surplus property allows property to “be released for sale or disposal upon a demonstration that such disposal will produce an equal or greater benefit (to the airport or another public airport) than the continued retention of the land.” (Id. at 1040-41.) The FAA deter- mined that such a release effectively authorizes “the con- version of a real property asset into another form of asset (cash or physical improvements) which better serves the purpose for which the real property was initially con- veyed.” (Id. at 1041.) The FAA’s order states that an airport owner requesting a release must justify the request, and could do so by “showing that the expected net proceeds from the sale of the property at its current market value will be required to finance items of airport development and improvement; the need for which is concurred in by the FAA.” (Id.) Once again we must consider the persuasive force of an FAA order which is not the product of formal adjudi- cation and not a regulation entitled to Chevron deference. See Christensen, 120 S.Ct. at 1662-63. Such decisions are “ “entitled to respect,’” but only to the extent that they have the “ ‘power to persuade.’” Id. at 1663 (quoting Skidmore, 323 U.S. at 140). AOPA argues that the FAA’s order is not persuasive because it is contrary to the plain language of the statute. We respectfully disagree. segs App. 30 We maintain our long-standing opinion that “[a] stat- ute is the command of the sovereign,” and an agency implementing a statute may not ignore, or provide its own substitute for, a standard articulated in the statute. See Sokol v. Kennedy, 210 F.3d 876, 880 (8th Cir. 2000). We conclude, however, that the FAA has neither ignored nor provided a substitute for the articulated statutory stan- dard in this case. Instead, the agency has properly exer- cised its discretion to add objective criteria to aid in its application of the statutory standard. Both the statutory and regulatory language states that a release must be “necessary to protect or advance the civil aviation inter- ests of the United States.” 49 U.S.C. § 47153(a)(2); 14 C.F.R. § 155.3(a). The FAA’s interpretive order provides some guidance for the agency’s determination of what is “necessary” to this purpose. It is within the FAA’s discre- tion to determine the criteria for assessing when a release is necessary to protect or advance civil aviation interests within the language of the statute. The FAA’s order interprets the statutory and regula- tory standard as satisfied so long as the release of the property “can clearly be shown .. . [to] benefit civil aviation.” (Petitioners’ App. at 1040.) As earlier noted, this policy allows a release when the conversion of the real property into another asset better serves the purpose for which the real property was initially conveyed. A contrary interpretation would require the continued use of airport property in a manner that does not best serve the purpose of the original gift. We conclude that it was reasonable for the FAA to determine that a release pro- viding a net benefit to aviation is “necessary” to advance App. 31 and protect civil aviation within the meaning of the stat- ute. AOPA does not challenge the factual record showing that the closure of the airport will result in a net benefit but challenges the FAA’s failure to use the exact statutory language in its memorandum of agreement. The FAA counters that it was not required to use the exact statu- tory language in its findings, citing Ethyl Corp. v. EPA, 541 F.2d 1, 12 n. 15 (D.C. Cir.) (stating, “[i]t is well established that ultimate findings do not have to be expressed at all, let alone be expressed in the language of the statute”), cert. denied, 426 U.S. 946 (1976). We agree with the FAA that in this instance, where the agency expressed its findings in the language of its interpretive order, which we have concluded reasonably interprets the statute, the FAA was not required to quote the exact statutory lan- guage in its findings. Despite the FAA’s failure to couch its findings in the language of the statute, the record persuades us that the airport closure in this instance will result in an otherwise unavailable and significant benefit to aviation and therefore is necessary to advance and protect the aviation interests of the United States. Thus, the FAA’s decision is not arbitrary, capricious, or contrary to law. Il. Accordingly, we deny the petitions for review and affirm the order of the FAA releasing Kansas City from its federal obligations to maintain the property for App. 32 aeronautical use. All pending motions to supplement the record are denied. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. App. 33 United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 00-1050 Friends of Richards-Gebaur Airport; City of Grandview, Missouri, a Municipal corporation, Petitions for Review of an Order of the Federal Aviation Administration. Petitioners, V. Federal Aviation Administration, Jane Garvey, Administrator, City of Kansas City, Missouri; The Kansas Southern Railway Company, Intervenors on Appeal. Aircraft Owners and Pilots Association, Amicus on Behalf of Petitioner. ie + * — aa ” * = - +. Respondent. * * ca 7 * * - * of * * - * App. 34 No. 00-1974 Aircraft Owners and Pilots Association, Petitioner, V. Federal Aviation Administration, Jane Garvey, Administrator; United States Department of Transportation, Rodney E. Slater, Secretary, Respondents. The Kansas City Southern Railway Company; City of Kansas City, Missouri, Intervenors on Appeal. JUDGMENT This cause was submitted on petition for review of an order of the Federal Aviation Administration, on the orig- inal record, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the Federal Aviation Administration is affirmed, order in accordance with the opinion of this Court. App. 35 (5272-010199) June 11, 2001 A true copy. ATTEST: /s/ Michael E. Gans App. 36 [LOGO] Memorandum U.S. Department of Transportation Federal Aviation Administration Date: December 23, 1999 Subject: ACTION: Categorical Exclusion Evaluation and Determination for the Federal Release of the City of Kansas City, Missouri, from its obliga- tions to maintain aeronautical use of approxi- mately 497 acres of the existing Richards- Gebaur Airport, Kansas City, Missouri. From: Assistant Manager, Community and Environ- mental Needs Division, APP-600 To: Files Reply to Attn. of: E. Melisky / 202-267-5869 The City of Kansas City, Missouri, is seeking Federal approval to release approximately 497 acres of the 1,362 +/- acres comprising Richards-Gebaur Airport. The Kansas City Southern Railroad is proposing to establish an intermodal cargo facility solely served by truck and train traffic. As a result, the released land will no longer be used for aeronautical pur- poses. Since the released land contains the airport’s only runway, the agreement to release will result in closure of the Richards-Gebaur Air- port. Once closure of the airport occurs, FAA will issue an airspace determination per Order 7400.2D. The National Flight Data Center of FAA’s Air Traffic Service will then publish this App. 37 information in the National Flight Data Digest. The Digest notifies the National Oceanic and Atmospheric Administration of the airport abandonment and results in removal of the air- port from the Airport Facility Directory. According to paragraph 23.a.(10) of the Federal Aviation Administration’s (FAA) “Airport Envi- ronmental Handbook” (Order 5050.4A), the proposed Federal release of airport land is nor- mally categorically excluded from the require- ment to prepare an environmental assessment (EA), unless certain extraordinary circum- stances, noted in paragraph 24 of Order 5050.4A, indicate that an EA must be prepared. To determine the potential applicability of these circumstances, FAA has carefully evaluated the environmental information the City of Kansas City provided to FAA in support of this land release. Our analysis is presented in the attached Categorical Exclusion Evaluation. In addition, the evaluation also addresses environ- mental concerns noted in correspondence that various individuals have sent to FAA regarding this project. Based on the attached information, we have determined that the proposed release of airport land does not involve any extraordinary cir- cumstances, and the action should be cate- gorically excluded. /s/ Ralph Thompson _ 12/23/99 Assistant Manager, Date Community and Environmental Needs Division, APP-600 App. 38 These decisions are taken pursuant to 49 U.S.C. 40101 et seq. and 49 U.S.C. 47101 et seq., and constitute orders of the Administrator which are subject to review by the Courts of Appeals of the United States in accordance with the provisions of Section 1006 of the Federal Aviation Act of 1958, as amended, 49 U.S.C. Section 46110. CATEGORICAL EXCLUSION EVALUATION 1. National Historic Preservation Act of 1966 (NHPA) and Archeological and Historic Preservation Act of 1974 (AHPA). Cite: Reference 1, Section 5.0, and Reference 2, Chapter 3.4.6. The FAA has determined that the Area of Potential Effect (APE) for the proposed release consists of the Kansas City Railroad (KCS) Lease Line Boundary shown on Reference 1, Attachment 7. FAA has determined that impacts result- ing from the proposed land release and intermodal facil- ity will not extend beyond the Lease Line boundaries (i.e., APE). (We note that Attachment 7 incorrectly identi- fies the APE as the area within the U.S. Air Force Air Base Boundary). After evaluating Reference 1, section 5, and Reference 2, Appendix K-1, FAA has determined that there are no properties on or eligible for listing on the National Register of Historic Places within the FAA’s APE. Therefore, the requirements of Section 106 of the NHPA and the AHPA have been met. No further analysis is required by Order 5050.4A. A commenter noted that the Richards-Gebaur Air Force Base (now Richards-Gebaur Airport) was named in honor of two local pilots killed during World War I and the Korean War; therefore, Section 106 of the NHPA applies to the proposed undertaking. Although the airport was App. 39 named in honor of Lt. John Richards and Lt. Col. Arthur Gebaur, respectively, that action alone does not make the airport a property eligible for inclusion in the National Register of Historic Places (National Register). For dis- closure purposes, FAA notes that Building 602, the only property in the airport area potentially eligible for inclu- sion in the National Register (Reference 2, Appendix K-1), is located well outside of FAA’s APE. 2. Noise. Cite: Reference 3, Section 3.5. Review of Reference 3, Exhibit 13, shows that most of the DNL 65-dB noise contour resulting from the intermodal facility’s train and truck traffic will remain well within the facility’s boundaries. The contour segment north of Highway 150 lying outside the facility’s northern bound- ary encompasses undeveloped farmland (Exhibit 13). The Belton Community Golf Course, located approximately 800 feet east of the intermodal facility’s eastern boundary (Reference 1, Attachment 7) lies well beyond the facility’s noise contour. As a result, the project will not signifi- cantly increase noise in any noise sensitive areas. No further analysis is required by Order 5050.4A. 3. Air Quality. Cites, Reference 1, Section 2 and Refer- ence 3, Section 3.4. Kansas City is an ozone maintenance area. Based on the intermodal facility air quality analysis, the potential emissions of NOx and VOC’s are shown to be below the de minimis levels specified in 40 CFR Part 51.853, EPA regulations for determining conformity of federal actions with State Implementation Plans (SIP’s). Therefore, the proposed intermodal facility project would conform to the state air quality plan (i.e., SIP). In addition, the Mid- App. 40 America Regional Council, the Kansas City Metropolitan Planning Agency, has noted that the proposed intermodal facility has been found to be consistent with assumptions used in the region’s Long-Range Transportation Plan (TIP) and that the facility would not significantly increase regional emission levels, nor would the emissions associ- ated with the facility trigger federal general conformity requirements. Emissions would fall within allowable growth in emissions projected in the regions air quality plans. As a result, FAA finds the project to be consistent with regional plans for maintaining the National Ambient Air Quality Standards. No further air quality analysis is required by Order 5050.4A. 4. Farmlands. No farmlands are to acquired or will be affected. There- fore, no further analysis is required by Order 5050.4A. 5. Environmental Controversy. Cite: Reference 7. The FAA has received 67 letters on the proposal - two letters favorable towards the proposal, and the remainder unfavorable. Of the unfavorable letters, 53 (about 80%) were form letters signed by pilots objecting to the closure of the airport. The FAA reviewed all letters to consider the objections raised in them. The primary objection (58 letters, including the 53 form letters) was that there was not sufficient public involvement in the decision. The records show (personnel communication, Ralph Thompson, FAA, and Robert Cohn, Shaw-Pittman, Dec. 17, 1999) that Kansas City officials held numerous meet- ings with local public officials, and interested organiza- tions, that were also open to the public. Kansas City also Teeieesnenirsesiennsinaieniiiiiilsiiimaiiiihiaaiiiiiaaiiaaiiiaiiuaiiaidiiiiiaiiiiad App. 41 held a public hearing at Hillcrest Community Center that was attended by approximately 200 people. It should be noted that the City of Kansas City conducted a referen- dum in August 1998 to allow its residents to decide whether to authorize the City to participate in a 50-year lease with the Port of Kansas City for the intermodal facility (personnel communication, Ralph Thompson, FAA, and Robert Cohn, Shaw-Pittman, Dec. 17, 1999). The referendum did not include communities such as Belton and Grandview, Missouri, which are located outside the boundaries of Kansas City. The Kansas City electorate approved the referendum. The next two objections most frequently cited in letters submitted to the FAA (54-55 Letters, including the 53 form letters) were that jobs would be lost and an affluent community would be adversely affected. In addition to the above issues, Mr. McDermott, has noted concerns regarding potential air quality impacts, traffic congestion, golf course impacts (including air quality, noise, and visual impacts), historic property impacts, planned com- munity disruption, and cumulative impacts. There were 4 other comments regarding potential traffic congestion and air quality impacts (1); the golf course (1); and light- ing effects (2). The FAA has carefully considered these comments and determined that there are no extraordinary circumstances warranting the preparation of an Environmental Assess- ment (EA). Based on the 1990 Census data for the com- munities closest to the proposed facility (Belton 18,145) and Grandview (24,973), the FAA has also determined that the 67 letters it received on the proposal do not constitute substantial opposition on environmental App. 42 grounds. In addition, no Federal, State, or local govern- ments or agencies opposed the action on environmental grounds. As a result, this proposal is not considered highly controversial on environmental grounds. 6. Natural Environment. Cite: Reference 1, Section 6.0, Reference 3, Section 3.6, and Reference 4. Federally-listed endangered and threatened species do not occur in the project area (Reference 4). Regarding the possibility of introducing invasive biotic species, the pro- posed intermodal facility will not be a Port of Entry. Instead, Port of Entry controls will be maintained at the existing U.S. border during the facility’s first five years of operation. Any future changes in the facility’s Port of Entry status will be coordinated with the U.S. Customs Service and other appropriate Federal agencies and will be subject to appropriate environmental review (Refer- ence 1, Section 6). Therefore, no further analysis is required by Order 5050.4A. 7. Relocation Housing. Cite: Reference 5 and Refer- ence 6, The action does not involve the acquisition of any hous- ing er relocation of residents. Therefore, this is not an action that is likely to be highly controversial with respect to the availability of relocation housing and war- ranting an EA. FAA, however, received several comments regarding the relocation of aircraft or businesses. Closure of the airport and construction of the proposed intermodal facility will Lmemmeeemcsenmssitiiiiitiieiiihitaiitiiiaiitaiiliiaaa iad App. 43 require closure of a fixed base operator (FBO) and aircraft operations to move. The City of Kansas City is presently negotiating with the FBO regarding the termination of its lease for space at the airport. Adequate general aviation airport facilities are available in the metropolitan Kansas City area to accommodate displaced aircraft (Reference 6), but hangar space may not be sufficient. 8. Community Disruption. Cite: Reference 1, Section 3.0. The Missouri Department of Transportation (MDOT) has considered the proposed Richards-Gebaur intermodal facility in its design for Route 150. MDOT reports that these improvements will accommodate additional truck traffic associated with the proposed intermodal facility. Since the facility will not have an access off of Route 150, it is expected that little if any facility-related truck traffic would use Route 58, favoring instead the more direct and truck friendly Route 150 (Reference 1, Attachment 3). No additional train traffic will occur at the two grade crossings in the City of Grandview during first five years of operation. After that period, train traffic is expected to increase an average of 16% over the next twenty years. This increase will cause only 3 percent of the local traffic to experience delays up to 150 seconds Reference 1, Attachment 5). As a result, the proposed facility’s rail traffic will not adversely affect local vehicular movement, nor will it alter any planned development. No further analysis is required by Order 5050.4A. App. 44 9. Section 4(f) of DOT Act. Cite: Reference 1, Section 7.0. The City of Belton’s Community Golf Course, which is leased from the City of Kansas City, is located in the vicinity of the proposed intermodal facility. Review of Reference 1, Attachment 7 shows that the fairway and green closest to the proposed intermodal facility lies about 800 feet from the facility’s boundary. Examination of the proposed facility’s noise impacts (Reference 3, Exhibit 13) shows that the course lies well beyond the facility’s DNL 65-dB noise contour. It should be noted that golf courses are considered a compatible land use with these levels of noise (14 CFR Part 150, Appendix A, * Table 1) After reviewing information provided by the proponent and letters from the Mid-American Regional Council (Reference 1, Attachment 1, and Reference 3, Attachment 12), FAA has determined that the project will not signifi- cantly increase noise or degrade air quality in the project area, including the golf course. Therefore, FAA has deter- mined that the proposed action will not physically take or constructively use any 4(f) property. No further analysis is required by Order 5050.4A. 10. Water Quality and Wetlands. Reference 3, Chapter 3.6. The proposed intermodal facility’s seven road crossings will affect isolated waters and unnamed tributaries to Mill Creek and Little Blue River. Based on information the proponent submitted to the Corps of Engineers (Corps) regarding these crossings, the Corps has autho- rized these crossings under Nationwide Permit No. 14. RE ME TL LT eT NR TO Te OT App. 45 The Missouri Department of Natural Resources certified that the project will not violate any water quality stan- dards (Reference 3, Appendix E, letter dated March 15, 1999). No further analysis is required by Order 5050.4A. 11. Consistency. Cite: Reference 3. The proposed project is consistent with applicable Fed- eral, State, and local laws relating to the environment. No further analysis is required by Order 5050.4A. 12. Hazardous material. Cite: Reference 1, Section 4 and Reference 3, Section 3.3. Building 1010 and its adjacent land appears to be the only contaminated site located within the area where project- related subsurface disturbance will occur. The City of Kansas City has hired a consultant to investigate the building and adjacent septic system field for potential hazards and to determine the need for potential cleanup. The City has committed to conducting whatever cleanup is necessary for this site before commencing construction thereon. (personnel communication, Ralph Thompson, FAA, and Robert Cohn, Shaw-Pittman, Dec. 17, 1999). There are a few other sites within the boundary of the proposed intermodal facility that are know [sic] to con- tain hazardous materials, but these sites will not be affected by project related subsurface disturbance. For these particular sites cleanup is either underway or com- pleted. The Army Corps of Engineers (Corps) is the reme- diation agency involved with cleanup efforts associated with the West Burn Pit (ibid.). The Burn Pit site is we App. 46 scheduled to be clean and clear before execution of the land use agreement. In addition, the Air Force and Corps are currently working to remediate six underground stor- age tanks/lines; remediation is schedule for completion by March 1, 2000 (ibid.). Building 1011 has been surveyed and remediation completed (ibid). No further analysis is required by Order 5050.4A. 13. Cumulative Impacts Consideration: Reference Sec- tion 3.3 of Volume I of the Environmental Documenta- tion Report and Section 4.0 of the Supplemental Information. Regulations implementing the NEPA require Federal agencies to consider “cumulative actions, which when viewed with other proposed actions, have cumulatively significant impacts and should therefore be discussed in the same impact statement” (40 CFR, 1508.25(a)(2)). An agency must analyze the incremental impact of the action, “when added to other reasonably foreseeable actions, regardless of what agency (Federal or non- Federal) or person undertakes such other actions” (40 CFR, 1508.7). During its environmental analysis for the proposed action, FAA has examined relevant past and reasonably foreseeable future roadway and aviation projects. As noted later in this section, the only reasonably foreseeable actions involve the following proposed roadway activ- ities: a. Improvements to Route 150; b. Improvements to Route 58; and App. 47 ¢. Interchange improvements for I-435, I-470, and Route 71 (Grandview Interchange). Environmental findings for proposed roadway activities: The Federal Highway Administration (FHWA) is plan- ning a number of roadway improvements to accommo- date future traffic demands in the Kansas City area that are unrelated to the proposed intermodal facility. FHWA recently completed NEPA documents for these actions. On January 11, 1996, FHWA issued a Finding of No Significant Impact (FONSI) for Route 150 improvements (Reference 3, Exhibit 8). On August 17, 1999, FHWA concurred with MDOT’s Categorical Exclusion deter- mination for Route 58 improvements (Reference 3, Exhibit 8). On July 7, 1999, FHWA updated a June 9, 1998, Categorical Exclusion for the Grandview Interchange after assessing proposed design changes to that proposal (personal communication, Ken Ornes, FAA, Central Region, with Steven Harmoni, MDOT, Kansas City Dis- trict Office, Dec. 17, 1999). MDOT notes that it considered the intermodal facility’s truck traffic during the design of the proposed road improvements and that these improve- ments will more than adequately handle the intermodal traffic (Reference 1, Attachment 3). Information on aviation-related activities: The proposed Amended and Restated Memorandum of Agreement (MOA) that is part of this proceeding (Refer- ence 6) notes that the Kansas City Council passed a resolution expressing the City’s intent to maintain a gen- eral aviation (GA) airport on the Richards-Gebaur Air- port and directed the Kansas City Airport Authority (KCA) to prepare a Master Plan for general aviation at App. 48 Richards-Gebaur Airport. In October 1999, KCA selected a contractor to prepare the Plan and issued a Notice to Proceed. In addition, the MOA states that: (1) KCA agreed to undertake significant general aviation (GA) airport improvements with local funds; and (2) FAA has identified other currently unfunded GA airport projects in the metropolitan Kansas City area that will be funded in accordance with the MOA if a relocated airport is not built. Although the Master Plan is underway, KCA has not yet determined if there is a need for a new GA airport or if other general aviation projects will be pursued. Since sclutions to the metropolitan area’s GA demands are not reasonably foreseeable, it is not necessary to include future, unknown GA facilities in the cumulative analysis for the proposed release of Richards-Gebaur Air- port. If KCA requests FAA approval of Airport Layout Plans and Airport Improvement Program funding for any future GA facilities that an acceptable Master Plan identi- fies or when other sponsors do so, FAA will complete appropriate environmental review and coordination for [sic] with those facilities. Cumulative impacts of these activities. Turning to cumulative impacts and natural resources in light of other activities in the project area, FAA identified air quality and traffic congestion as key areas of concern, since reasonably foreseeable projects (highway develop- ment) would affect these resources. FAA’s analyses, in conjunction with information from the Mid-America Regional Council, the Missouri Department App. 49 of Transportation, and a Special TranSystem report on vehicular and rail interactions, show that the proposed airport release will not cause significant cumulative air quality or traffic congestion impacts for the following reasons. Air quality: The FAA’s analysis of air quality data in Reference 1, Section 2, Reference 3, Section 3.4 and Appendix C, and the analysis of the Mid-America Regional Council (Reference 1, Attachment 1), show the Proposed facility will not significantly increase regional air emission levels. Therefore, FAA’s action and other reasonably foreseeable actions in the area will not cause cumulative air quality impacts (see section 9 of this eval- uation). Surface traffic congestion: The MDOT has considered plans for the proposed Richards-Gebaur intermodal facil- ity in its design changes to planned, area roadway improvements to the Grandview Triangle (the inter- change for I-435, I-470 and Route 71) and Routes 58 and 150 (Reference 1, Attachment 3). That department has found that the, “current designs can more than handle the additional truck traffic that would be generated by the intermodal facility.” The FAA concurs with this finding. The FAA’s assessment of the Proposed intermodal facil- ity’s train traffic on community vehicular traffic shows that rail activity will not adversely affect local vehicular traffic (see section 7 of this evaluation). Therefore, local roadways will remain at acceptable Levels of Service as train traffic increases during the upcoming years. App. 50 Based on its evaluation of impacts, the FAA has deter- mined that the proposed action will not cause significant cumulative impacts or traffic congestion. References: 1. Addendum Environmental Documentation Report, December 2, 1999 Environmental Documentation Report. Proposed Richards-Gebaur International Freight Gateway Vol- ume II of II (Final Environmental Impact Statement, July 1994, Disposal and Reuse of Richards-Gebaur Air Force Base, Missouri Environmental Documentation Report. Proposed Richards-Gebaur International Freight Gateway Vol- ume I of II. Memo to File, Richards-Gebaur Airport, Ed Melisky, November 15, 1999. Robert Cohn memorandum to David Bennett, Decem- ber 14, 1999. Draft Amended and Restated Memorandum of Agree- ment, December 16, 1999. App. 51 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 00-1050/1974 Friends of Richards- Gebaur Airport, et al., Order Denying Petition for Rehearing and for Rehearing En Banc Petitioners, vs. Federal Aviation Administration, et al., * = &#* 8 & * & & & Respondents. The petitions for rehearing en banc are denied. The petitions for rehearing by the panel are also denied. (5128-010199) September 19, 2001 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit App. 52 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT FRIENDS OF RICHARDS-GEBAUR AIRPORT, AND CITY OF GRANDVIEW, MISSOURI, Petitioners, v. Case No. 00-1050 FEDERAL AVIATION ADMINISTRATION; JANE GARVEY, Respondents, and CITY OF KANSAS CITY, MISSOURI; KANSAS CITY SOUTHERN RAILROAD, Intervenors-Respondents. DECLARATION OF ED MELISKY 1. I am an Environmental Specialist in the Community and Environmental Needs Division of the Office of Airports in the Federal Aviation Administration. I have been employed in this office since October 1990. My duties include reviewing environmental docu- ments for technical sufficiency, including air quality analyses. 2. I graduated from University of Pittsburgh, Pitts- burgh, Pennsylvania with Bachelor of Science degree in Biology in 1974. I obtained a Master of Science in Fisheries Biology from Frostburg State College, Frost- burg, Maryland in 1980. 3. Following my review of the affidavit of James A. Case dated February 29, 2000 filed by petitioners in the above-referenced matter, I have determined that the App. 53 estimate of emissions in the air quality analysis sub- mitted by Kansas City to the FAA in support of a categorical exclusion (Appendix C of Volume I of the Environmental Documentation Report, Petitioners’ Appendix APP 796-809) contained a mathematical error. The calculations in Attachment C to Appendix C for carbon monoxide (CO) emissions (Petitioners’ Appen- dix APP 806) assumed that the number of vehicles (cars) projected to travel to the facility in the year 2000 was 389. This is incorrect. Based upon the Daily Traffic Projections for M-150 West of U.S. 71 in Appendix A, Volume 1 of the Environmental Docu- mentation Report, Traffic Study for Richards-Gebaur Intermodal Facility dated June 1998, Petitioners’ Appendix APP 696, 389 cars are projected to travel to the facility each day. Assuming that there is a 251-day work year in the year 2000, I recalculated the potential emissions of hydrocarbon (HC) (used to estimate volatile organic compounds), nitrogen oxides (NOx), and CO using the formula in Attachment C, Appendix C. The assumption of a 251 day work year in the year 2000 is consistent with the 250 day work year assumption made by Kansas City’s consultant in preparing the noise analysis for the intermodal facility (Appendix D of Volume 1 of Environmental Documentation Report, Huff & Huff Calculation Sheet, Assumptions, Peti- tioners’ Appendix APP 836). I used the worst-case emission factors (EF) set forth in Attachment B, Appendix C (Mobile5 output) to pro- ject emissions. Petitioners’ Appendix APP 803-804. According to Attachment C, among other things, these emission factors are based upon the assumption 10. App. 54 that vehicles travel 10 mph for 2.184 miles, the dis- tance from the center of the intermodal facility to U.S. 71. For cars, which are designated light duty gas vehi- cles, or LDGV, the worst-case emission factors in the year 2000 are: HC-14.14, NOx-2.24, and CO-113.61. For trucks, which are designated heavy-duty diesel vehicles, or HDDV, the emission factors are: HC-3.34, NOx-13.84, and CO-20.80. (Petitioners’ Appendix 803). For example, hydrocarbon emissions for cars in the year 2000 were calculated as follows: EF (14.14) x distance traveled (2.184) x number of vehicles (389 x 251) = (30.9) x (97,639) = 3,017,045.1 grams per year. Grams were converted into tons by dividing the total grams per year by 454, the number of grams in a pound, and then tons were determined by dividing the number of pounds by 2000, the number of pounds in a ton. 3,017,045.1 grams per year/454 grams/ pound = 6,645 pounds/year. 6,645 pounds/yr/2000 = 3.3 tons. For the year 2018, I calculated emissions by assuming that there would be a 365-day work year. The worst- case emission factors in the year 2018 for cars, or light duty gas vehicles, are: HC-11.44, NOx-1.97, and CO-83.32. The worst-case emission factors for trucks, or heavy duty diesel vehicles, are: HC-3.14, NOx-8.51, and CO-20.07. (Petitioners’ Appendix APP 804). The following tables set forth the recalculated emis- sion estimates: App. 55 Year 2000 Emissions HC (VOC) tons/yr. NOx tons/yr. CO tons/yr. Cars 3.3 0.5 26.7 Trucks 1.1 4.6 6.9 Year 2018 Emissions HC (VOC) tons/yr. NOx tons/yr. CO tons/ yr. Cars 13.7 2.4 99.9 Trucks 4.6 12.3 29.1 I declare under the penalty of perjury under the laws of the United State [sic] of America that the foregoing is true and correct. /s/ Ed Melisky Ed Melisky Executed on April 10, 2000 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0969%3A1. Public record. Not legal advice.