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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 953

## Text

| > 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

Ws

JAMES B. BUSEY, Administrator,
Federal Aviation Administration;
FEDERAL AVIATION ADMINISTRATION RESPONDENTS

AND
COMMUNITIES, INC. PETITIONER
V.

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 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
lv

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),

dt

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

Ww

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

9

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.

10

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

11

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

12

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

13

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.

14

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
16

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.

18

.

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

i9

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,

20

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."

21

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

22

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.

24

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.

25

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,

26

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

27

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.

28

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

30

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.

31

we

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

32

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

33

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

34

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

35

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

36

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.

38

——<=<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

39

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.

40

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,

41

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

42

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

44

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

45

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.’"

46

eS

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

47

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."

48

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,

442 U.S. 347, 299 ©6€6S.. Ct. 2335 (1979) as
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

49

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).

50

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.

51

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.

52

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,

54

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

55

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

56

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

57

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

58

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

59

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.

60

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

1© Robertson, Supra at 1846. ".. prs
will discuss the extent to which adverse
effects can be avoided."

61

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

62

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

63

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1094%3A1. Public record. Not legal advice.