Petition for Writ of Certiorari — Communities, Inc. v. Busey

Supreme Court brief1992

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| > Ay 231 3 [ Ruprome Cour, US

FILED

No. baat

; —_ | VE 35 1 Ba?

IN THE | De

SUPREME COURT OF THE UNITED $PATES: | |

October Term, 1992 ie il

COMMUNITIES, INC.;

DULWORTH & RIVES, INC. PETITIONERS

JAMES B. BUSEY, Administrator,

Federal Aviation Administration;

FEDERAL AVIATION ADMINISTRATION RESPONDENTS

AND

COMMUNITIES, INC. PETITIONER

SAMUEL K. SKINNER, Secretary of the

United States, Department of

Transportation; UNITED STATES

DEPARTMENT OF TRANSPORTATION RESPONDENTS

REGIONAL AIRPORT AUTHORITY OF

LOUISVILLE AND JEFFERSON

COUNTY, KENTUCKY INTERVENOR-RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

*W. Henry Graddy IV

Robert E. Reeves

Todd Evan Leatherman

REEVES & GRADDY

110 North Court Street

P. O. Box 88

Versailles, KY 40383

*Counsel of (606) 873-1340

Record

ATTORNEYS FOR PETITIONERS

QUESTIONS PRESENTED

2 Does Section 4(f) of the Department

of Transportation Act as interpreted by the

Supreme Court permit a court to affirm FAA

approval of a transportation project that

destroys certain park and historic resources

and constructively uses others, where the

record indicates there are one or more

alternatives that meet transportation needs,

cost less, disrupt the community less and

destroy no 4(f) resources?

as Does Section 4(f) of the Department

of Transportation Act as interpreted by the

Supreme Court permit the secretary of the

Department of Transportation to reject the

"no-build" alternative without determining

whether not building the project will be

"imprudent"? Supreme Court review is

requested to resolve a conflict in the

Circuit Courts of Appeal. -

: Was the FAA arbitrary and

Capricious not to Supplement its FEIS

following the Kentucky Supreme Court decision

in Prestonia and following agreement with EPA

to do single event noise analysis?

4. Does the record before this Court

reflect sufficient factual basis for the

agency conclusions to satisfy the "hard look"

requirement of NEPA as enunciated in

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989)?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED <i.sss4anb6 80s 1

TABLE OF CONTENIS +4¢s<cs0a tues ee eee ii

TABLE OF AUTHORITIES .ccsesssaeeaes eG

OPINION BELOW .:sisi060 040 666 Ree 2

JURISDICTION 2088504066545 00 8 5 Oe 2

CONSTITUTIONAL PROVISIONS,

STATUTES, ORDINANCES, OR

REGULATIONS INVOLVED. .cseseneeasues 3

STATEMENT OF THE CASE..cstesssee0 6s 3

REASONS FOR GRANTING THE WRIT...... 3

CONCLUSION w.cscnesseueteeee ee eee 62

APPENDIX Separate Volume

TABLE OF AUTHORITIES

Cases

Allison v. Department of

Transp.,

poe ream ace6 €0.C. Cir. 1990) ...6e6% 35-37

Andrus v. Sierra Club,

Da cs SET LAPP ORK Cee ee ee ce eee enses 49,ua;sof

Baltimore Gas & Electric Co. v.

Natural Resources Defense

Counei). Inc.,

OURO cake eae esbesee 51,53,58

Bowen v. American Hosp. Ass’‘n.,

Petes UWE LEMOS cosa eeseneseansee ss a2

Cannon v. University of Chicago,

ts. ee TaPe Ph eos eeeusens ens wees 15

Citizen Advocates for Responsible

Expansion, Inc. (I-CARE) v. Dole,

740 £F,aG 423 (Sth Cir. BOGOR) 606 a ee 34,32

Citizens Against Burlington, Inc.

v. Busey,

Soe wim aoe (D.C. Cir. 1991)... e0% 39

Citizens to Preserve Overton Park,

Inc. v. Volpe,

OR Pee Be ky ere a Passim

Druid Hills Civic Ass’n v.

Federal Highway Admin.,

772 F.2d 700, 713 (11th Cir. 1985)...34,42-44

Hickory Neighborhood Defense Leaque

v. Skinner,

910 F.2d 159 (4th Cir. i ee 42

lii

Historic Preservation Guild of

Bay View v. Burnley,

896 F.2d 985 (6th Cir. 1989)......... 55,56

Industrial Union Dep’t,

AFL-CIO v. American Petroleum

Inst. (Benzene),

O40 Uses COF CEPSG) 05k se cee he kee ewe 22

Lake Hefner Open Space Alliance

v. Dole,

$7 F.26- 943° OOtK Civ s 4O86) oo kik eke 42,44

Louisiana Envtl. Soc’y Inc.

v. Coleman (LES ITI),

oo? Fuad t9, S464 (SEH Civ. 1976) x.< 20% 20,42-43

Marsh v. Orégqon Natural Resources

Council,

S30 Uilax SER CADRS) 6-0 6 6064 heen bee 47-52,57-59

Metropolitan Edison Co. v. People

Against Nuclear Energy,

SGU Vee FOO CAPO S 6k cee keene ee enes as 51

Miles v. Apey Marine Corp.,

UsBe > ahh Sr ESa Jaks,

Se CE a oe oe Ee Ke Re 15

Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co.

Ti? Fae Wl” oD eee 54

Prestonia Area Neighborhood

Ass’n_v. Abramson,

Ky., 797 S.W.2d 708 (1990)........0.. 10

Ringsred v. Dole,

See FsaG £900 (SCH Civ. 2987) ci caccac 42,44

Robertson v. Methow Valley

Citizens Council, 9,45-48,

ge eS ak ee ee 51,58,61

Sierra Club v. United States

Dep’t of Transp.,

783 F.2d 126 (0.¢. Cie. 1985) .....<2- 37

Stop H-3 Ass’n v. Dole,

740 F.2d 1442, 1461

(9th Cir. 1984) cert. denied, 30,32

693: 0.5 3008 (ae eee 40,43-44

TVA v. Hill,

437 Ui. 553 EPR IO) sn ak owt 49,57

Vermont Yankee Nuclear Power

Corp. v. National Resources

Defense Council, Inc.,

£35... 8-688 fee ie eee 11,60

Statutes, Rules and Regulations:

Administrative Procedural Act,

S Usbu aw. BIOS 4 4040s be RRO Eee 51-52

Airport and Airway Development

Act of 1970,

e9 0.8.C. 61761, oh. eee... 14

Airport and Airway Improvement

Act ("AAIA") of 1982,

49 U.S.C. $2266 (BD) (5) ccccccassasans 14,15

Department of Transportation Act,

Section 4(f),

49 UscSul. SIOZ) vcct vcecsenecseece Passim

49 U.8.C. 65653181 ....3 13

Federal-Aid Highway Act,

23 UsSs0e BSE e ci nnaneexcen es baa eee is

Kentucky Constitution,

SOC LON 2s cscs 0s 6a ka 4 See 10

National Environmental Policy Act,

42 U.S.C se GAS0hs 0 be cea ee eee ees Passim

Other Authority:

Federal Aviation Administration,

Oraer 5050.4A Airport Environmental

Hangmoeot | 6&3 (OCG. 8, 2PGol kee eee ess 14

Federai Aviation Administration,

Order 5200.5 FAA Guidance Concerning

Sanitary Landfills On or Near

Airports 9 3, 5 (G66 16, 2974) «tcces 26,28

Harvard Environmental Law Review,

Vadume Iz, NUDOr 2. 2eels sss ke bee 52

Volume 16, NUMDOF 1, 1992.56 senna 'ss 50

Trial Magazine

OSTODOr, PLIPhsc cst ws oh ete eee ee 62

20 Environmental Law 551 (1990)...... 51

£40 CFR $1502. 3{C) 0 ccuc cee suse base 49,59

Vil

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

COMMUNITIES, INC.;

DULWORTH & RIVES, INC. PETITIONERS

JAMES B. BUSEY, Administrator,

Federal Aviation Administration;

FEDERAL AVIATION ADMINISTRATION RESPONDENTS

AND

COMMUNITIES, INC. PETITIONER

SAMUEL K. SKINNER, Secretary of the

United States, Department of

Transportation; UNITED STATES

DEPARTMENT OF TRANSPORTATION RESPONDENTS

REGIONAL AIRPORT AUTHORITY OF

LOUISVILLE AND JEFFERSON

COUNTY, KENTUCKY INTERVENOR-RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Communities, Inc. and Dulworth & Rives,

Inc. Petition for Writ of Certiorari to

review the judgment of the United States

Court of Appeals for the Sixth Circuit,

affirming the approval by the Secretary of

Transportation of the Louisville Airport

Improvement Plan ("LAIP").

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Sixth Circuit is reported

as Communities, Inc., et al. v. James B.

Busey, Admin., et al., 1992 U.S.App. 6210

(6th Cir. 1992).

JURISDICTION

Judgment and the opinion of the court

were entered February 13, 1992. The Court of

Appeals denied Petitioners’ Petition for

Rehearing by Order entered April 3, 1992.

Petitioners filed a petition pursuant to

Supreme Court Rule 13.06 for extension of

time within which to file this petition,

which extension was granted by Order of the

Supreme Court on July 1, 1992. Jurisdiction

is sought under 28 U.8.¢. 1254(1).

Jurisdiction in the Court of Appeals was

based on 49 U.S.C. §1486 and 28 U.S.C. §1631.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

e The National Environmental Policy Act of

1969, Section 102, 42 U.&.C. $4332, in

relevant part.

e Title 49 U.S.C. §303, in relevant part.

e The Airport and Airway Improvement Act,

49 U.S.C. §2208, in relevant part.

e United States Department of

Transportation, Federal Aviation

Administration, Order 5050.4A Airport

Environmental Handbook 4 83 (Oct. 83, 1985),

in relevant part.

The pertinent text of these provisions

is contained in the Appendix, A-39 through A-

43.

STATEMENT OF THE CASE

This litigation presents the Supreme

Court with a dispute between an agency of the

federal government (Federal Aviation

Administration, hereinafter "FAA") supported

by a local quasi-governmental agency

(Regional Airport Authority of Louisville and

Jefferson County, Kentucky, hereinafter

"RAA") on the one hand, and citizens,

businesses and property owners (including two

small municipalities) who have been and will

be affected by the governmental decisions cn

the other hand. The project giving rise to

this conflict is the proposed expansion of

Standiford Field (SDF) in Louisville,

Kentucky. Like all such conflicts, there is

the potential for parochial self-interest on

the part of the citizens, and there is also

the potential for arbitrary and capricious

action on behalf of the wovernment, meaning

here the manipulation of data and reliance on

conclusory analysis to justify a preordained

course of action, and the lack of good faith,

both in affording fair process and an

opportunity to be heard, and in consideration

of the information of record.

There is also the potential that the

governmental agencies acted in good faith

based on the best information available to

them at the time of their decision, but that

they ended their analysis too soon because

they perceived a need to prevent an airline

passenger capacity crisis before it happened.

And, there is also the potential that those

citizens and businesses who have not yet been

displaced and those historic and park

resources not yet demolished as well as those

citizens and businesses who now anticipate

new significant noise impacts and those

currently unaffected parks, historic

resources and wildlife resources that today

anticipate significant adverse noise impacts

may be spared such demolition and such

impacts.

The proposed expansion of Standiford

Field was originally touted as necessary to

meet projected airline passenger needs based

on a consultant’s analysis of passenger

enplanements for three years - 1985, 1986,

and 1987, which the consultant used to

justify projecting increased passenger growth

at the rate of eight percent per year,

projecting passenger enplanements in 1990 to

reach 1,370,000 and capacity sine ie for the

year 1992 based on projections of 274

arrivals and 274 departures each day. In

fact, passenger enplanements have remained

flat in Louisville for a twenty-year period

with 1990 enplanements actually being

1,041,784, less than the 1987 passenger

enplanements. The U.S. Court of Appeals for

the Sixth Circuit recognized that the project

was no longer touted as an airline passenger

project. At the time of oral argument in

September, 1991, its proponents conceded the

project to be simply an airline cargo

project. Communities, Inc. v. Busey, Opinion

at 2.

However, even the record of airline

cargo operations, when subjected to the

required "hard look" does not support the FAA

conclusion that the expansion is needed. The

most current evidence of record shows that

air cargo operations peaked in 1985 at 36,260

and dropped to 31,400 in 1987. It is very

intriguing that this data is not presented in

the final environmental impact statement

(EIS) published in 1990. Instead, the EIS

"estimated" that 1987 cargo operations would

be 37,450.?

Petitioners’ brief to the Court of

Appeals cited the most recent data of total

aircraft operations which revealed that in

January-February 1991, operations were

averaging 230 arrivals and 230 departures

each day. Petitioners’ Court of Appeals

Brief, Addendum, B-4. Petitioners attach

hereto at Appendix A-45 the most recent data

as of this date, which reveals that in April-

May 1992 the total operations, including air

cargo, averaged 215 arrivals and 215

departures each day.

It is one thing for municipal boosters

1 Petitioners’ Court of Appeals Reply

Brief Addendum R-1.

to "puff" up the community pride with rosy

projections about future growth. However,

when these projections become a tool to

destroy people’s homes, businesses, churches

and schools, as well as parks and historic

resources, the judicial process must

intervene to help distill real community

needs from puffing. The Court of Appeals

helped this distillation but did not complete

the "careful and searching" inquiry.

An even more egregious manipulation of

data cccurred in the agency evaluation of

social, economic, land use and cultural

resource effects of the LAIP. When the RAA

consultant began to evaluate alternatives,

the early analysis revealed that Alternative

5C (which became the LAIP) would destroy

1,420 homes, relocating 3,450 residents. In

comparison, Alternative 3E would destroy 289

dwellings, relocating 795 residents’) and

Alternative 4 would destroy 332 dwellings,

relocating 1000 residents. Only Alternative

5C would demolish 16 existing churches. see

Appendix A-47.

Under the "hard look" mandate of

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989), the public and the FAA

should have carefully evaluated "irreversible

and irretrievable commitments of resources

which would be involved in the proposed

action...." 42 U.S.C. §4332(C) (iv).

Instead, the FAA accepted the RAA

suggestion to categorize the "Dislocation of

1,440 +/- dwelling units, 3,500 +/- persons,

15 churches and 60+ businesses as part of the

"No Action Alternative" in the EIS because

this would result from the City’s use of its

"urban renewal" authority. As a result the

"additional" dislocations caused by the LAIP

artificially appeared to be minimal, a mere

150 homes, one more church and 40+

businesses. EIS, Table 1-1.°

2 Note that Table 1-1 continues to refer

to the urban renewal program even though the

Kentucky Supreme Court had earlier decided in

Petitioners requested the FAA to supplement

the final Environmental Impact Statement once

the "urban renewal" sham was reversed by the

Kentucky Supreme Court in Prestonia Area

Neighborhood Association v. Abramson, Ky

ile

797 S.W.2d 708 (1990). The Court found in

Prestonia that the City of Louisville’s

declaration that three neighborhoods slated

for demolition to make room for the airport

expansion as "blighted" was unsupported by

substantial evidence, and an arbitrary use of

governmental authority in violation of

Kentucky Constitution § 2.

Petitioners also requested the FAA to

supplement the EIS after single event noise

data was revealed for the first time in the

final EIS and the FAA declined. This data,

included at EPA’s insistence, showed dramatic

noise increases in previously relatively

Prestonia Area Neighborhood Association v.

Abramson, Ky., 797 S.W.2d 708 (1990), that

urban renewal authority could not be used for

the demolition of these neighborhoods.

guiet areas including several historic

residential districts.

The Petitioners have vigorously

questioned the need for and purpose of the

airport expansion to alert the FAA of their

concerns as required by Vermont Yankee

Nuclear Power Corp. v. National Resources

Defense Council, Inc., 435 U.S. 519, 98 S.Ct.

1197, 55 L.Ed.2d 460 (1978). However,

Petitioners have never had the opportunity to

judicially "test" the claims of the RAA as

accepted by the FAA. Petitioners have

challenged the agency evaluation of

alternatives, but have not had the

opportunity to question the RAA consultant’s

evaluation of these alternatives.

Petitioners sought to proceed against

the Secretary of Transportation in U.S.

District Court in order to be able to

introduce evidence and to cross-examine

("test") the evidence relied upon by the FAA.

But this action was dismissed for lack of

Jurisdiction.

Petitioners’ only hearing to date has

been the original action before the U.S.

Court of Appeals for the Sixth Circuit. That

court accepted Petitioners’ argument that the

expansion of the atrport could not _ be

justified based on passenger enplanements but

rejected Petitioners’ argument that’ the

evidence of air cargo operations was also

inadequate to justify expansion of the

airport at this time. Petitioners now seek

a "careful and searching" inquiry into the

evidence of need for additional capacity, a

determination by this Court that serious

questions of Department of Transportation Act

Section 4(f) and National Environmental

Policy Act ("NEPA") compliance have been

raised justifying consideration by’ the

Supreme Court. Petitioners seek a

determination by this Court that the FAA

should reopen the NEPA and 4(f) inquiry to

re-examine the alternatives in order to meet

the real airline needs for Louisville without

unnecessary impact on citizens, businesses,

parks, historic resources, and wildlife

resources that are proximate to Standiford

Field.

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT OF

APPEALS CANNOT BE RECONCILED WITH

THE REQUIREMENTS OF SECTION 4(f) OF

THE DEPARTMENT OF TRANSPORTATION

ACT AS INTERPRETED BY THE U.S.

SUPREME COURT IN CITIZENS TO

PRESERVE OVERTON PARK v. VOLPE.

In 1966, Congress adopted the Department

of Transportation Act which contained at

Section 4(f) a congressional mandate

concerning the protection of public parks,

recreational areas, wildlife or waterfowl

refuges and historic sites of national, state

or local significance, which mandate has

become known as the Section 4(f) mandate. 82

Stat. 824, 49 U.S.C. Section 1653(f). In

1968, Congress enacted the Federal-Aid

Highway Act of 1968, 82 Stat. 823, 23 U.S.C.

Section 138, which Act contained at Section

18(a) language virtually identical to the

Section 4(f) language referenced above.

These two sections, Section 4(f) of the

Department of Transportation Act of 1966 and

Section 18(a) of the Federal-Aid Highway Act

of 1968 were interpreted in Citizens to

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

(1971).

The law governing airport expansion

appears in the Airport and Airway Improvement

Act of 1982. This Act was originally enacted

as the Airport and Airway Development Act of

1970. When Congress reenacted the law in

1982, Congress provided at Section 10(d) a

requirement of "no feasible and prudent

alternative" that closely parallels the

Original Section 4(f) requirement and that

has been interpreted by the FAA to require an

equivalent analysis. FAA Order 5050.4A

836, ¢c, @. This requirement appears at 49

U.S.C. Section 2208(b)(5) in the Airport and

Airway Improvement Act of 1982.

Congress has spoken concerning limits to

the discretion of the Secretary of

Transportation acting through the FAA to

approve airport expansion plans. This

directive has been interpreted by the United

States Supreme Court and Congress’ has

subsequently reaffirmed the original

directive given to the - agency. The

Congressional reaffirmation of the statutory

requirements as enunciated by this Court in

the Overton Park decision must therefore

guide the public, governmental agencies and

this court’s interpretation of the legal

Significance of facts presented to determine

compliance with these referenced statutes.

Miles v. Apey Marine Corp., __ U.S. » Bas

S.Ct. 317, 325 (1990); Cannon v. University

of Chicago, 441 U.S. 677 (1979).

Section 4(f) of the Department of

Transportation Act provides "clear and

specific directives" to the Secretary of

Transportation, in this case acting through

the FAA. Overton Park, 401 U.S. at 411. The

Secretary’s decision will be set aside if the

court determines that it ae arbitrary,

Capricious or an abuse of discretion. 401

0.8. <et- 416. To determine whether the

Secretary has abused his discretion, a

reviewing court must make three

determinations:

Whether the Secretary acted within

the scope of his authority and "whether on

the facts the Secretary’s decision can

reasonably be said to be within that range."

Id. at 415-16.

rs Because Section 4(f) prohibits the

"use" of park land or historic resources if

feasible and prudent alternatives are

available, "the reviewing court must be able

to find that the Secretary could have

reasonably believed that...there are no

feasible alternatives or that alternatives do

involve unique problems." Id. at 416.

3. If the Secretary acted within his

scope of authority, the reviewing court must

consider whether the Secretary’s decision

"was based on a consideration of the relevant

factors and whether there has been a clear

error of judgment." Id.

The factual inquiry by the reviewing

court is to be "searching and careful"

although the standard of review is "narrow."

Id.

Although the Secretary acknowledged that

his authority to approve the use of 4(f)

properties was prohibited if feasible and

prudent alternatives were available,

Petitioners maintain that the Secretary’s

finding that no such alternatives exist was

unreasonable and was an abuse of his

discretion. The decision reflects a failure

to consider all relevant factors in the

record before the agency and is a clear error

of judgment.

In the EIS and Record of Decision (ROD)

the FAA concedes that the proposed action

would use protected 4(f) resources: (1) The

James Lowell Elementary School will be

demolished; (2) Grove Park will be taken and

Highland Park Community Center will be

demolished; (3) The historic residence at

2111 South Park Road and 20 buildings on the

University of Louisville Belknap Campus

located within the 65 Ldn noise contour will

be used; (4) 11 other unnamed potential

historic sites also located within the 65 Ldn

contour will be used. EIS 1-19, JA 3549.°

The FAA considered other runway

3 petitioners have maintained that the

above list of 4(f) properties omits a

substantial number of additional 4(f)

protected resources including’ the 1760

properties located within the Old Louisville

Historic District and Central Park that will

be constructively "used" by noise (50 flights

a day and 11 flights a night greater than 80

db - comparable to a diesel truck at 50 feet)

generated by the LAIP. Petitioners have

maintained that the record evidence that

noise levels at the Falls of the Ohio

Wildlife Refuge will double also constituted

constructive "use" of this resource.

However, the FAA’s exclusion of these

additional properties does not effect the

answer to the first 4(f) inquiry.

configurations but made no finding that the

other configurations would use 4(f) protected

resources, nor made a record from which such

a finding may be inferred. The record

identifies no 4(f) resources which will be

used by any of the structural alternatives.

However, the record clearly reflects that the

LAIP will displace park land and demolish

historic buildings.

The Court of Appeals accepted the

conclusion that Alternative 4 would "result

in almost all flights passing over noise

sensitive areas immediately east and west of

the airfield." Residential properties are

noise sensitive. The airport is surrounded

by residential properties so any

configuration will ultimately fly over noise

sensitive areas.?

4 However, a careful review of

Alternative 4 superimposed over an aerial

photograph in "Working Paper #1" at JA 814

reveals that there are no- residential

properties immediately to the east or west of

the proposed runway. On the east is the

cloverleaf of I-65 and the Outer Loop highway

Frankly, it appears that the Court of

Appeals erroneously equated the term "noise

sensitive areas" with "4(f) resources". See

Opinion at page 12, where the Court after

discussing "noise sensitive areas" states:

"Thus Petitioners fall far short of

suggesting a feasible alternative that would

not use 4(f) resources." In fact, the two

terms and their legal significance are very

different. With noise sensitive use, such as

residential use, one option is acquisition of

the property and relocation of the residents

to another quieter location. But with 4(f)

resources such as park lands or historic

resources, acquisition and relocation are not

appropriate remedies. With 4(f) resources

the project is required to be designed to

avoid or minimize the use.” Critical to any

and on the west are industrial properties

including the CSX observation house in the

middie of a railyard.

9 See Louisiana Environmental Society

Inc. v. Coleman (LES II), 537 F.2d 79, 84

(Sth Cir. 1976), “If there is another way,

aa sassacssssssssstssassmmmcsml

court’s analysis of agency compliance with

4(f) obligations is the analysis of the

impact of alternatives on the protected 4(f)

resources. THERE IS NO EVIDENCE IN THE

RECORD BEFORE THIS COURT THAT ALTERNATIVE 3E

OR ALTERNATIVE 4 WILL USE ANY 4(f) PROTECTED

RESOURCES.

As to "feasibility", the Secretary

concluded that some of the alternatives

imposed “severe engineering requirements,"

however, no alternative was found to be

incapable of being built as a matter of sound

engineering, and the _ severe engineering

requirements involved (relocation of

industrial buildings) are also necessary to

the construction of the LAIP. The other

requirements mentioned, relocation or

overpass construction for rail tracks and

drainage ditches, are regularly employed in

major constructions projects. The best

indicator of engineering feasibility is cost.

take it."

The record reflects cost was estimated using

standard engineering cost estimate

techniques. The cost of Alternate 4 is one-

half of the LAIP and the cost of Alternate 3E

is within 3% of the LAIP.

Although the record contains no evidence

of "infeasibility", no evidence that any of

the alternatives would use 4(f) resources,

and no evidence that any of the alternatives

involve disruptions of the community of the

magnitude of the LAIP, the Court of Appeals’

decision in this case concluded that there

waS a basis for the FAA finding that some

alternatives were infeasible, and that some

alternatives were imprudent, generally

lumping all of the reasons together and

referring to "the enormous record evidence on

feasibility" which the Court of Appeals

stated Petitioners ignored. Court of Appeals

Decision, page 17.

Petitioners attached to their Petition

for Rehearing the complete text of the

evaluation of Alternatives 3E and 4 in

Technical Report 2 (JA 614 to 710) to

demonstrate that no such “enormous record on

feasibility" exists. In fact, the record

completely lacks any hard evidence upon which

the Secretary could have reasonably relied to

support his conclusion that the alternatives

are either infeasible, imprudent or result in

the “use" of 4(f) resources.

In Overton Park the Supreme Court stated

that Section 4(f)’s language "is a plain and

explicit bar to the use of federal funds for

construction of highways through parks - only

the most unusual situations are exempted."

Id. at 411.

The FAA was not presented with an

unusual situation. The problems involved in

implementing Alternatives 3E and 4 are

typical of major construction.

Overton Park requires that 4(f£)

protected resources not "be lost unless there

are truly unusual factors present in a

particular case or the cost or community

disruption resulting from alternative routes

reaches extraordinary magnitudes". Id. at

413.

The Court of Appeals’ specific

consideration of alternatives appears

beginning at page 11 of the Opinion. The

Court erroneously stated that the Petitioners

failed to propose an alternative that would

not use 4(f) resources. In fact, the

Alternatives 1, 2A, 3E and 4 all é=4are

described as not displacing park resources.

The LAIP, Alternative 5C, is the only

alternative that the RAA studies indicate

Will displace or demolish 4(f) protected

resources.

The Court of Appeals accepted the FAA

conclusion that Alternative 4 is "extremely

inefficient". What facts support this

conclusion? Using the record described above

as a reference, Alternative 4 cannot

reasonably be rejected as imprudent.

Alternative 4 and the LAIP would generate

equal increases in hourly capacity (to 108

maximum VFR operations, and 104 maximum IFR

operations), equal annual service volume

(313,000 aircraft operations), and identical

aircraft delay numbers. Alternative 4 is

identified as having no impacts on Section

4(f) properties (parks and archeological

sites), as costing approximately $141

million, and as requiring the relocation of

332 residences, 1,000 persons, no churches,

and 48 businesses. °©

In contrast,

Alternative 5C (the LAIP alternative), is

described as affecting several Section 4(f)

properties, as costing $284 million, and as

requiring the relocation of 1,420 residences,

3,420 persons, 16 churches and 102

businesses. Id. Further, Alternative 4

would utilize property which is already

6 Technical Report No. 3 at Table S-1l,

"Effects of Alternatives: Second-Level

Screening." Court of Appeals Joint Appendix

000786.

generally zoned for industrial use, whereas

Alternative 5C requires the rezoning of a

Significant amount of property from

residential to industrial uses. Id.

Based on these comparisons alone,

Alternative 4 has all of the benefits of

Alternative 5C, with much less of an impact

on sensitive resources and half of the cost.

However, the EIS inexplicably and cavalierly

rejects Alternative 4 with a brief two

sentence paragraph: "Alternative 4 would be

extremely inefficient and require closure of

the Outer Loop landfill, which’ serves

Jefferson County and five surrounding

counties. Therefore, it was rejected."

The reasoning of this paragraph is

grossly inadequate as a basis for rejecting

an alternative. The closing of a landfill

required for Alternative 4 is a reason to

prefer, not to reject the alternative. FAA

Guidance encourages the closing of landfills

near airports. FAA Order 5200.5 (Oct. 16,

1974), provides as follows:

"Various studies and observations

have resulted in the conclusion

that sanitary landfills are

artificial attractants to birds.

Accordingly, landfills located in

the vicinity of an airport may be

incompatible with safe flight

operations. Those conditions that

are not compatible must be

eliminated, to the extent

practicable.

x & &

Sanitary landfills will be

considered as an incompatible use

if located within areas established

for the airport through the

application of the following

criteria:

a. Landfills located within

10,000 feet of any runway

used or planned to be used by

turbojet aircraft.

xk & &

d. Any landfill located such

that it places the runways

and/or approach and departure

patterns of an airport

between bird feeding, water

or roosting areas.

7 U.S. Dep’t of Transp., Fed. Aviation

Admin., Order 5200.5, FAA Guidance Concerning

Sanitary Landfills On or Near Airports 4@ 3,

5 (Oct. 16, 1974). At oral argument, in

response to a question from Judge Jones,

counsel for the RAA for the first time

The second basis for rejecting

Alternative 4, as described in the EIS, is

that the alternative would be "extremely

inefficient". Without more description, one

may assume that the inefficiency inherent in

Alternative 4 is that it would fail to

satisfy fully the purpose of the proposed

project. The purpose of the project, as

articulated in this working paper (i.e. to

provide improved passenger capacity at

Standiford Field) is entirely different from

the purpose of the project as articulated in

the EIS and announced at oral argument, "This

is a cargo project." Since UPS facilities

are located at the south end of the airport

property and since inefficiency for cargo

operations has different parameters’ than

passenger traffic inefficiency, it is obvious

acknowledged that the life of the Outer Loop

landfill may be as short as six years. This

fact, which does not appear elsewhere in the

record, is highly relevant to the feasibility

of Alternative 4, but was revealed only after

questioning from the court.

that the FAA did not examine the efficiency

of Alternative 4. Alternative 4 is not

imprudent when compared to the LAIP Since it

would aid in separating cargo and passenger

operations, would aid in reducing operational

costs for UPS, would reduce capital costs for

the airport, and would likely allow

operational flexibility which the _ LAIP

precludes by removing the landfill hazard.

In conclusion, the reasons provided in the

EIS for rejecting Alternative 4 do not rise

to the level of making it not practicable or

infeasible or imprudent. See map at Appendix

A-48 with LAIP, Alternative 3E and

Alternative 4 displayed to illustrate.

Regarding the "prudence" of the

alternatives, the Court of Appeals concluded

by simply accepting the FAA assertion that

unique problems exist, but the Court failed

to identify what the unique problems are.

The court stated that the alternatives "would

not accomplish the goal of increasing

capacity at SDF". Opinion at page 17. But

this conclusion 1S not supported by the

evidence. All of the structural

configurations increased Capacity and

Alternative 4 equals the capacity of the

LAIP.

Petitioners have questioned the claims

that the operations at SDF are growing at

such a rate that the airport will exceed

Capacity by 1992. See discussion above at

pages 5-8.

Where the evidence of need for

additional capacity iS aS unpersuaSive as

presented here, the FAA cannot reasonably

find the "no-build" alternative (or the "no-

build until needed" alternative) to be an

imprudent alternative to the use of 4(f)

protected resources. In Stop H-3 Association

v. Dole, 740 F.2d 1442 (9th Cir. 1984), the

court required the Secretary to reanalyze the

no-build alternative where population growth

predicted in the EIS as justification for a

highway did not occur.

The "clear and specific" directives of

Section 4(f) as enunciated by the Court in

Overton Park requires the following:

WH"RE THERE IS AN ALTERNATIVE AIRPORT

CONFIGURATION THAT PROVIDES THE

TRANSPORTATION CAPACITY THE FAA DEEMS AS

NEEDED AND IT COSTS MUCH LESS AND DISRUPTS A

MUCH SMALLER PORTION OF THE COMMUNITY AND

THAT ALTERNATIVE WILL USE NO 4(f) PROPERTIES,

THE FAA IS FLATLY PROHIBITED AS A MATTER OF

LAW FROM APPROVING AND SPENDING FEDERAL

MONIES ON A PROJECT THAT USES 4(f)

PROPERTIES. This is the mandate of the law

as described in Overton Park and this mandate

cannot be reconciled with the decision of the

Court of Appeals in this proceeding.

The Sixth Circuit’s 4(f) analysis in

this case stands in clear contrast to the

detailed analysis required by Overton Park as

evidenced by the numerous decisions by other

Circuit: courts.

In Stop H--3 Association v. Dole, sSupra.,

the Ninth Circuit reviewed a highway project

that would use two park lands. The court

exhaustively reviewed two alternatives, a

realignment and the no-build alternative, Id.

at 1450-1458. Applying the "stringent"

Overton Park standards, the court rejected

DOT’s claims that the alternatives were

infeasible or imprudent. Id. at 1455. The

court’s eight page analysis reflects the

probing, in-depth review of the DOT’s 4(f)

statement that Overton Park mandates. Of

particular note is the court’s rejection of

DOT’s finding that the no-build alternative

was imprudent. The court accepted that there

was a "need" for the project, but dismissed

the agency’s claim that the no-build

alternative would result in disruptions of

such a magnitude that the 4(f) resources

should be sacrificed.

In Citizen Advocates for Responsible

Expansion, Inc. (I-CARE) v. Dole, 770 F.2d

423 (5th Cir. 1985) (involving the widening

of a highway in Ft. Worth), the Fifth Circuit

reiterated that the court was required to

conduct “a thorough, probing, in depth

review." Id. at 441, citing Overton Park,

401 U.S. at 415. In that case, the court’s

focus was on the agency’s claim that the

project would not use the 4(f) resource. In

finding the record in that case inadequate,

the court stated:

While the administrative record

supporting the Negative Dec laration

need not possess the same detail or

clarity as an EIS and may, in part,

be informal, mere perfunctory or

conclusory language will not be

deemed to constitute an adequate

record and cannot serve to support

the agency’s decision not to

prepare an EIS.

The record in this case, like the record in

I-CARE, contains no analysis that supports

the conclusion that Alternative 3E and

Alternative 4 cannot be built as a matter of

sound engineering or that the cost or

community disruption of implementing either

would reach extraordinary magnitudes. In

comparison to the LAIP they are far less»

disruptive. The Court of Appeals opinion to

the contrary, page 11, Petitioners argued

below that both Alternative 3E and the no-

build alternative, as well as Alternative 4,

were prudent and feasible alternatives on the

record before the agency. The Court of

Appeals opinion completely omits specific

reference to these alternatives.

In Druid Hills Civic Ass’n vy. Federal

Highway Admin., 772 F.2d 700 (11th Cir.

1985), the Eleventh Circuit rejected the

FHA’s 4(f) analysis of alternatives after it

reviewed the record and found that there was

no meaningful assessment of the impacts on

4(f) properties associated with each

alternative. Id. at 717.

Like that case, the record before this

Court does not provide the "predicate facts

on which to make a reasonable judgment" in

that there is no record evidence that

Alternative 3E, Alternative 4 and no-build

alternative will use 4(f) resources.

The recent airport cases also reflect a

careful, in depth analysis of effects on 4(f)

properties comparing the proposed action with

alternatives. In Citizens Against

Burlinaton, Inc. v. Busey, et al., 938 F.2d

190 (D.C. oh Sm 1991), Justice Thomas

discussed the meaning of the "prudent"

requirement in 4(f) analysis, noting that,

"second, contrary to the FAA’s argument, the

case law uniformly holds that an alternative

is imprudent under Section 4(f)(1) if it does

not meet the transportation needs of a

project." ia. at 203. (Emphasis in

original). The focus suggested by Justice

Thomas on transportation needs as a measure

of the prudence of an alternative is lacking

in this Court’s Opinion. Both Alternative 3E

and Alternative 4 increase operational

capacity at comparable costs. Both must be

determined "prudent".

In Allison Vv. Department of

Transportation, 908 F.2d 1024 (D.C. Cir.

1990) involving the new Denver airport, the

court conducted a probing review of the

airport’s impact on Barr Lake State Park, a

wildlife refuge, and rejected the agency’s

use of noise guidelines designated to measure

the impact on humans in assessing whether the

park’s "natural attributes" would be

Significantly impaired by noise from the new

airport. Id. at 1028-1029. The court

declined to find a "use" because noise from

the proposed airport actually decreased when

compared to existing airport noise impacts,

but its review of the impacts on the natural

attributes of the 4(f) resource indicate a

proper application of the Overton Park

standard of review. More importantly, there

the record permitted the court to compare

4(f) impacts.

In contrast, the Court of Appeals in

this proceeding failed to assess the impacts

of Alternatives 3E and 4 on 4(f) properties

correctly. It appeared to equate all “noise

sensitive areas" with 4(f) properties and

failed to address the FAA’S improper analysis

of the noise impact on the Falls of the Ohio

Wildlife Refuge using the same guidelines

rejected by the D.C. Circuit in Allison.

Nowhere in the record does the FAA state that

Alternatives 3E and 4 will result in the

"use" of 4(f) resources. The cCourt’s

conclusion to the contrary 1S not supported

in the record.

The court in Sierra Club Vv. United

States Department of Transportation, 753 F.2d

120 (D.C. Cir. 1985) also conducted the

appropriate inquiry into the impact of

transportation projects on 4(f) resources in

the context of increased noise. The D.C.

Circuit assessed the increase in noise within

the 4(f) resource (Grand Teton National

Park), and found that the increase in noise

in the park to be so marginal (1 dB on

average) that no "use" occurred. On the

record before it, that Court was able to

compare the noise impact on the protected

4(f) resource from the proposed activity to

the alternative.

In contrast, the record before the

Supreme Court does not permit such comparison

because there is no noise analysis of the

alternative configurations.

In conclusion, the level of review

afforded by the Court of Appeals falls far

short of the probing, in depth review of the

FAA’s conclusions required by Section 4(f)

under Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971). Certiorari

should be granted to obtain the proper

implementation of Department of

Transportation Act Section 4(f) requirements

in a manner consistent among the circuits and

in conformity with the express requirements

‘=

of Overton Park.

——<=<x t—‘zO

II. THE CCURT SHOULD GRANT THE PETITION

FOR WRIT OF CERTIORARI TO RESOLVE

A CONFLICT WITHIN THE CIRCUITS.

Petitioners maintain that the

Secretary’s decision to approve the

construction of the LAIP violates Section

4(f) because the Secretary could not have

reasonably believed that there were no

prudent and feasible alternatives. The EIS

contains a description of five alternative

configurations, the LAIP (Alternative 5c) and

four others. However, only the LAIP and the

"no build" alternative are analyzed in the

EIS in terms of their effect on the

environment.

The Secretary rejected as not feasible

or imprudent two alternatives, the no-build

alternative and Alternative 3E, primarily for

the stated reason that these alternatives

would not meet the transportation goals of

the project - increasing airside capacity at

SDF.®

The Court of Appeals upheld this

determination that alternatives which do not

fulfill the agency’s stated purpose or goal

are ipso facto "imprudent" under Section

4(f). Opinion, page 17.

This holding is in conflict with Overton

Park as explained in the decision of the

Ninth Circuit Court of Appeals in Stop H-3

Association v. Dole, 740 F.2d 1442 (9th Cir.

1984) which requires that the no-build

alternative may not automatically be rejected

aS imprudent simply by claiming that it will

not fulfill the transportation goals of the

project. In that case the Court of Appeals

remanded the decision back to the Secretary

to determine whether the no-build alternative

was imprudent. The court rejected the

Secretary’s conclusions that the additional

8 See discussion above concerning actual

operational data and questionable need for

additional capacity at pages 5-8.

cost, increased congestion, or projected

commuter delays would cause "unique problems"

or result in costs of an "extraordinary

magnitude" making the alternative "imprudent"

under §4(f).- The Ninth Circuit gave no

indication that a mere showing of need for

the project was sufficient justification for

concluding that not to build the project

would be imprudent. To equate "need" with

prudence weakens the protection which

Congress intended to provide 4(f) resources.

As this Court recognized in Overton Park,

more is required for an alternative to be

rejected as imprudent than a showing of need.

eit is obvious that in most cases

consideration of cost, directness of route,

and community disruption will indicate that

park land should be used for highway

construction whenever possible." Id. at 4ii-

412.

Other circuits taking the opposite

position include the Fourth, Fifth, Eighth,

Tenth and Eleventh Circuits. See Hickory

Neighborhood Defense League v. Skinner, 910

F.2d 159 (4th Cir. 1990) ; Louisiana

Environmental Society, Inc. v. Coleman (LES

II), 537 F.2d 79 (5th Cir. 1976); Ringsred v.

Dole, 828 F.2d 1300 (8th Cir. 1987); Lake

Hefner Open Space Alliance v. Dole, 871 F.2d

943 (10th Cir. i989); Druid Hills Civic

Ass’n. v. Federal Highway Admin., 772 F.2d

700 (lith Cir. 1985).

The first case taking the position that

a highway project not meeting the

"transportation goals" of the project was the

old Fifth Circuit’s decision in Louisiana

Environmental Society, ree. Vv. Coleman,

supra, involving the construction of a bridge

across Cross Lake as part of a

circumferential highway project. Without

explanation, the court accepted the agency’s

conclusion that alternatives including the

no-build alternative were imprudent "because

they failed to fulfill the needed purpose of

a circumferential highway route." 537 F.2d

at 85.

Following the Stop H-3 decision, the

issue of the Secretary’s obligation to

consider the prudence of the no-build

alternative was next considered by the

Fleventh Circuit in Druid Hills Civic Ass’n

v. Federal Highway. Admin., supra. The

Eleventh Circuit noted the conflict between

the Stop H-3 decision ana the Fifth Circuit’s

LES II decision but declined to. join the

Ninth Circuit in recognizing the Secretary’s

obligation to consider the prudence of no-

build, citing the binding precedent of LES

Il. "Pyen were we to agree that Stop H-3

offers a view more consistent with Overton

Park, we would still be bound by our decision

in BES ii.” 795 F.26 at 7iG, Ne 19%

Other circuits considering the

application of the "prudence" test to

alternatives that don’t expressly meet the

transportation goals of a project have simply

concluded without discussion that such

alternatives are imprudent per se. Ringsred

v. Dole; Lake Hefner. Of the circuits

considering the issue, only the Ninth

Circuit’s Stop H-3 decision can fairly be

read as a true attempt to determine whether

there is a requirement under Section 4(f) to

apply the Overton Park "prudence" test to the

no-build alternative or an alternative which

does not meet the transportation goals of the

agency. The other circuits have simply

followed the Druid Hills decision without

addressing the issue. Supreme Court guidance

is needed to reaffirm this requirement and to

bring these other circuits into line with the

correct interpretation as announced in Stop

Bes.

III. THE FAA FAILED TO PERFORM ITS

PROCEDURAL AND SUBSTANTIVE

OBLIGATIONS UNDER NEPA, IN LIGHT OF

RECENT SUPREME COURT INTERPRETATION

OF THAT LAW.

The past decisions of this Court issued

for the purpose of restraint of judicial

activism and in furtherance of the goal of

appropriate deference to agency expertise

must not be allowed to be misconstrued into

a "blank check" approval of anything that the

agency offers so long as lip service is given

to the required legal conclusions.

The Supreme Court in Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 109

S.Ct. 1835 (1989) was asked to review a

decision by the Ninth Circuit Court of

Appeals that concluded that NEPA imposed a

substantive duty on agencies to mitigate

adverse environmental effects and a duty to

prepare a worst case analysis. The Supreme

Court disagreed with the reasoning of the

Ninth Circuit, reaffirming the procedural and

investigatory nature of NEPA and the courts’

reliance on agency deference on matters that

are highly technical. The Robertson Court

declined to require a worst case analysis

where the record reflected agency reliance

upon computer projections that were believed

to be appropriately conservative. Having

reached these conclusions the Supreme Court

restated the fundamental purpose of NEPA:

"The statutory requirement that a

federal agency contemplating a

major action prepare such = an

environmental impact statement

serves NEPA’s ‘action forcing’

purpose in two important ways...It

ensures that the agency, in

reaching its decision, will have

available and will carefully

consider detailed information

concerning Significant

environmental impacts; it also

guarantees that the relevant

information will be made available

to the larger audience that may

also play a role in both the

decisionmaking process andthe

implementation of that decision.

Simply by focusing the

agency’s attention on the

environmental consequences of a

proposed project, NEPA ensures that

important effects will not. be

overlooked or underestimated only

to be discovered after resources

have been committed or the dye

otherwise casted." Id. at 1845.

The Robertson court recognized that

NEPA, when it is properly implemented, serves

to provide the public "assurance that the

agency ‘has indeed considered environmental

concerns in its decisionmaking process.’"

Id. at 1845.

The Robertson court also recognized

that, “Implicit in NEPA’S demand...isS an

understanding that the EIS will discuss the

extent to which adverse effects can be

avoided." Id. at 1846.

In a companion case decided with

Robertson, Marsh v. Oregon Natural Resources

Council, 490 U.S. 360, 109 S.Ct. 1851 (1989)

the Supreme Court reviewed another decision

of the Ninth Circuit Court of Appeals

regarding the obligation of an agency to

prepare a supplemental EIS. The Supreme

Court reversed the Court of Appeals and found

that a supplemental EIS was not necessary,

clarifying that the standard for review would

be whether or not the agency decision to

prepare a supplemental EIS was arbitrary and

Capricious. The Supreme Court again

determined that the factual questions

presented involved disputed scientific

issues, an area within the expertise of the

agency and exercised its discretion not to

substitute its judgment for that of the

agency.

However, the Marsh opinion does

recognize an obligation to prepare

Supplemental environmental impact statements

even though the Court observed that such

requirement is not expressly provided within

the law. Id. at 1857. The Court cited legal

writers to the effect that such supplemental

statements may at times be necessary to

satisfy the Act’s "action-forcing" purpose.

The Marsh court cited language closely

paralleling the language in the Robertson

decision as follows:

"Rather, NEPA promotes its sweeping

commitment to ’prevent or eliminate

damage to the environment and

biosphere’ by focusing government

and public attention on the

environmental effects of the

proposed agency action. 42 U.S.C.

Section 4321. By so focusing

agency attention, NEPA ensures that

the agency will not act = on

incomplete information, only to

regret its decision after it is too

late to correct."

SS UlUlUlUmlmlmlmlmlmlmm—“—OSOSOSNNCNCN

The court cited its earlier decision TVA v.

Hill, 437 U.S. 153 (1978) as authority which

recognizes that at some point NEPA becomes

inapplicable but that up to that point in

time, "NEPA cases have generally required

agencies to file environmental impact

statements when the remaining governmental

action would be environmentally

‘significant’". The Marsh decision cited

with approval the regulations of the Counsel

on Environmental Quality at 40 CFR §

1502.9(c) and cited Andrus v. Sierra Club,

imposing a duty on all federal agencies to

prepare supplements to either draft or final

Environmental Impact Statements if there "are

Significant new circumstances or information

relevant to environmental concerns and

bearing on the proposed action or its

impacts." The Marsh decision supports both

the "rule of reason" concerning the decision

of the agency to supplement and the NEPA

requirement that agencies take a "hard look"

at the environmental effects of their planned

action even after a proposal has received

initial approval. Id. at 1859.

The Marsh court applied the Overton Park

standard of review restating that’ the

reviewing courts inquiry must be "searching

and careful." The court seemed to recognize

that an agency decision not to supplement

based on the agency interest in finality must

trigger a careful review of the record, or

judicial review will be rendered meaningless.

Id. at 1861.

Some commentators have observed that

when NEPA gets to the Supreme Court, the

environmentalists always lose.? See David

Cc. Shilton "Is the Supreme Court Hostile To

NEPA? Some Possible Explanations for a 12-0

? See Philip Michael Ferester,

"Revitalizing the National Environmental

Policy Act: Substantive Law Adaptations From

NEPA’s Progeny", The Harvard Environmental

Law Review, Volume 16, Number 1, p. 207

(1992).

Record.", 20 Environmental Law 551 (1990).

After raising the possibility that the

Supreme Court is "hostile" to the Act this

writer concludes that such interpretation is

not correct. The writer notes that the

decisions of Marsh and Robertson, discussed

above, as well as the decision of

Metropolitan Edison v. People Against Nuclear

Energy, 460 U.S. 766 (1983), Baltimore Gas 5&

Electric Co. v. NRDC, 462 U.S. 87 (1983) and

other prior decisions should more accurately

be interpreted as reflecting this Court’s

intention that NEPA accomplish its stated

purpose but that its purpose not be expanded

from procedural and investigative into

Substantive obligations, that its focus on

actual environmental effects be maintained?°

and that it be interpreted in a manner

consistent with the Administrative Procedure

10 Rejecting invitations to extend NEPA

to appropriation decisions, Andrus, supra, or

to psychological health damage, Metropolitan,

supra.

Act (APA). Marsh, supra, at 1860 citing APA

5 ¥.S.¢. 37a Nevertheless, this writer’s

premise raises issues of concern. The 12-0

record of the government before the Supreme

Court may tend to self-fulfilling or

inadequate agency analysis based on the

belief by the agency that it will not be

required to provide the factual justification

for its conclusions.+? Based on this risk,

it is critical that the Supreme Court look

again at this law. In those cases where the

Supreme Court has recognized the need for the

courts to take a "searching and careful"

inquiry into the facts offered in support of

11 See Andrew D. Siegel, "The Aftermath

of Baltimore Gas & Electric Co. v. NRDC: A

Broader Notion of Judicial Deference to

Agency Expertise" The Harvard Environmental

Law Review, Volume II, Number 2, 1987. This

writer predicts that, "If the Federal courts

continue to follow Baltimore Gas and defer

mechanically to the technical decisions of

expert agencies, the agencies will recognize

this trend and pattern their decisionmaking

accordingly, characterizing important and

controversial factual and policy

determinations as predictions laden with

scientific uncertainty." Id. at page 380.

the agency NEPA conclusions, such discussion

occurs as dicta. It is now time for the

Supreme Court to provide agency instruction

that a "hard look" means exactly that.

Petitioners do not seek substitution of

@ judicial determination in place of an

agency determination of technical questions

such as the proper method of noise

measurement or the safety of airport

configurations. Baltimore Gas & Electric Co.

Vv. NRDC, 462 U.S. 87 (1983).

Petitioners seek a Judicial

determination whether the underlying facts of

record provide adequate Support for the

agency conclusions. See Industrial Union

Department, AFL-CIO vy. American Petroleum

Institute (Benzene), 448 U.S. 607 (1980)

holding that the OSHA conclusion to lower

standard for airborne’ concentrations of

benzene from 10 ppm to 1 ppm was not

Supported by appropriate findings. See Bowen

v. American Hospital Association, 476 U.S.

610 (1986) holding that Health and Human

Services regulations regarding health care

for handicapped children were not supported

with adequate agency rationale and factual

basis to withstand hospital challenge. See

Motor Vehicle Mfrs. Assn. v. State Farm Mut.,

463 U.S. 29 (1983), holding that Secretary of

Transportation rescission of passive

restraint requirement was arbitrary and

capricious where agency failed to provide an

adequate basis and explanation for rescinding

the requirement.

In the following areas, Petitioners

believe that a "searching and careful"

inquiry into the factual basis of the FAA

decision will require the Supreme Court to

conclude that the agency reached a decision

that is arbitrary and capricious.

A. The "Urban Renewal" Sham.

The FAA analysis of major environmental

impacts from the airport expansion is

fundamentally skewed in assessing land use,

social, Socio-economic, water quality, other

cultural resources and solid waste impacts

because of the FAA’s continued embrace of the

"urban renewal" sham depiction of the

destruction of the Highland Park and

Standiford neighborhoods as resulting from

the "no action" alternative. See EIS, Table

1-1. The Court of Appeals’ rejected

Petitioners’ argument, reasoning that the FAA

had performed an environmental analysis of

these land acquisitions and even if the FAA

did not perform such analysis, such land

acquisitions had independent utility citing

Historic Preservation Guild of Bay View v.

Burnley, 896 F.2d 985 (6th Cir, 1989). The

Court of Appeals has misapplied the

requirements of NEPA. Doing an environmental

analysis (assuming one was done) that the

agency mischaracterizes as resulting from "no

action" does not help the agency or the

public take a "hard look" at tne consequences

of the proposed action. Such

mischaracterization actually disguises the

real effect of the proposed agency action.

As such, the essential purpose of NEPA is

defeated by such mischaracterization.

The Court of Appeals reliance upon

Historic Preservation Guild of Bay View v.

Burnley is likewise misplaced. See Footnote

36 in Petitioners’ Brief to the Court of

Appeals, enumerating repeated descriptions of

the "urban renewal" project as part of the

proposal to build Alternative 5C, the LAIP.

There is no evidence in the record of this

action that a land acquisition program of

this magnitude would be necessary for any

other structural alternative. This record

does not support application of the

"independent utility" exception of Burnley.

The proper question is not whether the

project has independent utility but~ whether

it was appropriately labeled part of the no

action alternative.

The Court of Appeals declined to

consider the standing issue that could be

raised upon withdrawal of the Prestonia,

Highland Park and Standiford Neighborhood

Associations’ as Petitioners. Opinion,

footnote 1 and footnote 2. However,

settlement by these entities does not end the

need to complete a Proper NEPA analysis of

the land use, Social, socio-economic and

cultural resources that remain today but are

likely to be affected by the airport

expansion. Through this date, there is

ongoing litigation by the businesses

Louisville Forge and Gear, Louisville Glove

and 42 other entities including the Highland

Park Business’ and Enterprise Association

Opposing the RAA efforts to condemn their

properties. See Petitioners Supplement to

Record dated July 30, 1992, Marsh, Supra,

TVA ov. Hill, Supra, and Andrus, supra,

require remand to the FAA with instructions

to supplement the EIS with the destruction of

the Highland Park and Standiford

neighborhoods and the elimination of

businesses including Louisville Forge and

Gear and Louisville Glove properly evaluated

as resulting from the LAIP expansion

proposal.

Be Single Event Noise

Petitioners concede that the measurement

of noise impacts is the type of technical

evaluation that requires courts defer to

agency expertise. Baltimore Gas, supra,

Robertson, supra, and Marsh, supra. However,

in this case there are two agencies with

expertise, the FAA and the Environmental

Protection Agency (EPA), and they have

disagreed concerning the proper method to

evaluate the environmental impacts of noise.

The Court of Appeals noted this disagreement

which resulted in the Toledo agreement that

the FAA would do additional single event

noise analysis for certain airports including

Louisville. Opinion, page 8. The FAA

subsequently added single event noise data in

the final EIS but did no Sleep and speech

disturbance analysis as requested by EPA and

failed to provide an Opportunity for public

comment on this new data. The FAA failure to

reopen for comment resulted in an EPA letter

Submitted post-EIs expressing its continued

dissatisfaction with the FAA conclusions. /2

Petitioners do not ask the Supreme Court

to resolve the disagreement between the FAA

and EPA. Petitioners do urge, based on the

reasoning in Marsh, supra, and upon proper

application of the CEQ regulations,?}2 that

the FAA treat this Single event noise data as

new significant information that requires a

Supplemental EIs.}4

i2 See EPA letter January 8, 1991 at

Petitioners Court of Appeals Brief Addendun,

B-71 to B-78.

13 40 CFR §1502.9(c).

14 Perhaps the best indicator that the

FAA abused its discretion by limiting noise

impacts on humans to the 65 Ldn was revealed

at oral argument when Judge Rosen questioned

FAA council concerning single event noise

with reference to a sonic. boom. She

answered, "A sonic boom may be something that

Cc. The Alternatives Analysis.

See the above discussion in Argument I

concerning the evidence of record that

alternatives exist that would meet’ the

apparent transportation needs at _ costs

equivalent to or less than the cost of the

LAIP which do not destroy 4(f) protected

resources. 42 U.6.C. $4332(C) (iii). This

analysis also reveals a failure to meet the

requirements under NEPA that the agency

conduct a reasonably complete investigation

of the environmental consequences of

alternatives.?°

D. The Needs Analysis.

See the discussion above in Statement of

Case and in Argument I concerning the

evidence of record on the need for an airport

one person finds terribly intrusive and

another doesn’t."

15 Consideration of the environmental

impacts of the other structural alternatives

and the "no-build" alternative is clearly

within the “bounded by some notions of

feasibility" requirement. See Vermont

Yankee, supra, at page 519.

expansion at Standiford Field at this time.

The analysis of need for a project is an

important part of both the 4(f) analysis ana

the NEPA analysis. Therefore the defects

complained of above apply with equal weight

in this Court’s review of the adequacy of the

agency’s "hard look" at the major

environmental impacts from the proposed

action and the Opportunities to mitigate or

avoid such impacts, /6

E. Transportation Analysis.

On page 14, the Court of Appeals

approved the EIS discussion of transportation

impacts by concluding that it was appropriate

for the FAA to treat the Crittenden Drive as

closed. In fact, the EIS does not analyze

the Crittenden Drive as ciosed but postpones

an analysis of the relocation of that road

until a ten year period has elapsed. Only

during subsequent briefing did the RAA

will discuss the extent to which adverse

effects can be avoided."

Suggest that in fact this road may be

permanently closed. The impacts of that

decision have never been analyzed as required

by NEPA.

CONCLUSION

Utah Supreme Court Justice Daniel

Stewart recently wrote concerning the Bill of

Rights after 200 years as providing an

effective barrier against a tyranny of the

majority. The Supreme Court is the last

resort for purposes of implementation of the

Bill of Rights in order to provide protection

against such tyranny. See Utah Bar Journal

(June/July 1991) reprinted in Trial Magazine,

October 1991.

Likewise, this Supreme Court is the

court of last resort to make government

account for its conclusions when it proposes

to demolish homes, churches, businesses,

neighborhoods, as well as parks and historic

resources, or to engage in other activities

that appear to propose significant adverse

hts Wilma

impacts on those resources, all based on the

government’s conclusion concerning the

"greater good."

If NEPA and 4(f) can help the parties to

this dispute to find a less destructive way

to meet the rea] Public needs, then the

community of Louisville is far better off and

the current perception of tyranny by

government will be, in part, remedied. Based

on the foregoing, Petitioners respectfully

petition for writ of certiorari to issue.

Respectfully Submitted,

REEVES & GRADDY

110 North Court Street

P. O. Box 88

or aaa KY//40383 \

(606) ip |

BY at

1 "Saacy bas IV

“Robert FE. Reeves

Todd Evan Leatherman

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.