Petition for Writ of Certiorari — Federal Aviation Administration v. City of Alameda
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Jn the Supreme Court of the Cited States
FEDERAL AVIATION ADMINISTRATION, PETITIONER
Uv.
CITY OF ALAMEDA, CITIZENS LEAGUE FOR AIRPORT
SAFETY AND SERENITY, BERKELEY KEEPJETS OVER
THE BAY, PORT OF OAKLAND, AND COMMISSIONERS,
PORT OF OAKLAND
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
THEODORE B. OLSON
Solicitor General
KIRK K. VAN TINE Counsel of Record
General Counsel THOMAS L. SANSONETTI
JAMES W. WHITLOW Assistant Attorney General
Deputy Chief Counsel EDWIN S. KNEEDLER
Federal Aviation Deputy Solicitor General
Administration
BARBARA MCDOWELL
Assistant to the Solicitor
General
JEFFREY BOSSERT CLARK
RONALD M. SPRITZER
Attorneys
Department of Transportation
Washington, D.C. 20590
Department of Justice
Washington, D.C. 20580
(202) 514-2217
QUESTION PRESENTED
Under 49 U.S.C. 46110(a), “a person disclosing a sub-
stantial interest in an order issued by * * * the
Administrator of the Federal Aviation Administration
* * * under this part,” i.e., Part A of Subtitle VII of
Title 49, “may apply for review of the order by filing a
petition for review in the United States Court of
Appeals.” The question presented is:
Whether 49 U.S.C. 46110(a) vests the courts of
appeals with jurisdiction to review an order issued by
the Federal Aviation Administration (FAA) pursuant
to its authority under both Part A and other Parts of
Subtitle VII, when the petitioner challenges only the
— order’s determinations under statutory provisions out-
side Part A.
(I)
. A &M. A itemM@mi@gehn. Te Hh mt h 4 Mm 2&2 @ G&A
TABLE OF CONTENTS
Page
A TITTTT TITIIIIIIT - dansosevsssinsnshninsvindtesiveniehitschtiveianniasinonemnenewinessiineessanties 1
REECE Ti OFC Oa elie 2
Statutory provisions involved ...........scsecsscssesesseseseseseseeseseseseesenees 2
Statement vislienniahbdadaiiciiatinisbeiiehaancennemnnnneinenenntees 2
Reasons for granting the petition ...........ccsccssssssssseseeseesesseeseeseees 6
IIIT illness snadcanniaaotiheinnnsennnsnaie 14
TTT: Usdieddieitbaaiiehnadlanesdebhdibbadienseihtteldinesennottiasnensenninnuneiniens la
ESE a ee ee a 6a
IIIa Will iiscacisenlesinabinaieinenatnnialealbdeinnsinaehanindonintsenenneninneness 4la
UNIT TT Sas siccteicbctchanstetiinhieenlocsipcanhiinahittcinensianereneeiinnnnsssantinn 42a
TABLE OF AUTHORITIES
Cases:
City of Alexandria v. Helms, 728 F.2d 6438 (4th
Sars IIIT nleh ated daechiarbcnisohaibligiemeninahaesieannnenesaenenennonsen 10
City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir
SIT disieeibsilinaniniineinbiniedainiesebaianeceensbesaenanensonasbasnenetstnnenee 10, 11, 12
Florida Power & Light Co. v. Lorion, 470 U.S.
729 (1985) icinlpnetaeniiaheeenintasineiininainaianiiniianberlaninwmnees 12
Illinois Dep’t of Transp. v. Hinson, 122 F.3d 370
ITI: IIIT rssipssssecesisnsteshintaphiissusieinneinenibitnaensctesasinatansenssnsnesen 7
Kodiak Airways, Inc. v. CAB, “447 F.2d 341 (D.C.
Inn TT aashidhidctensibaniniedeeapsichinanpnbeniisenbindnisnphendebineansinionsebeeness q7
Media Access Project v. FCC, 883 F.2d 1063 (D.C.
SEA IITTITTET sii iebiiiahecelapiedtnasnienienitnnapaeinnndhieetonnibiswmnenaniiieton 10
National Parks & Conservation Ass’ nm v. FAA,
998 F.2d 1523 (10th Cir. 1998) ..........ccccossscesssssssesssssecsscees 9, 10
Suburban O’Hare Comm’n v. Dole, 787 F.2d 186
(7th Cir.), cert. denied, 479 U.S. 847 (1986) ........ 10, 11, 12
Sutton v. United States Dep’t of Transp., 38 F.3d
RE EN SMES UTED sxncessestiznnsvnsnnasshenstotnemnuniateneteeassetoess 9, 10, 12
(III)
IV
Cases—Continued: Page
Trans World Airlines, Inc. v. CAB, 339 F.2d 56
(2d Cir. 1964), cert. denied, 382 U.S. 842 (1965) ..........++ 7
United States v. Munsingwear, Inc., 340 U.S. 36
(1950) ... 14
Statutes:
Act of July 5, 1994, Pub. L. No. 103-272, 108 Stat. 745:
Preamble, 108 Stat. 745 10
§ 1(a), 108 Stat. 745 + 10
§ 1(e), 108 Stat. 1230 10
Federal Aviation Act of 1958, Pub. L. No. 85-726,
§ 1006(a), 72 Stat. 795 (49 U.S.C. 1486(a)(1958)) ......... 9,10
National Environmental Policy Act of 1969,
42 U.S.C. 4382 4
28 U.S.C. 2401(a) 3
49 U.S.C. 40103(b) 3
49 U.S.C. 46110 3, 10, 11
49 U.S.C. 46110(a) | 2,3, 4, 5, 6, 7, 10, 11, 12
49 U.S.C. 46110(c) 3, 7, 11
49 U.S.C. 47106(d)(3) 3
49 U.S.C. 47107(a)(16) 4
49 U.S.C. 47111(d)(3) 3
49 U.S.C.'47129(6)(5) .....scecececeesesscseeee 3
49 U.S.C. 47532 3
Miscellaneous:
H.R. Rep. No. 180, 103d Cong., Ist Sess. (1993) ..........s000+ 10
To Create a Civil Aeronautics Authority: Hearings
Before the House Comm. on Interstate and Foreign
Commerce, 75th Cong., 3d Sess. (1938) 11
In the Supreme Court of the Gnited States
No.
FEDERAL AVIATION ADMINISTRATION, PETITIONER
Vv.
CITY OF ALAMEDA, CITIZENS LEAGUE FOR AIRPORT
SAFETY AND SERENITY, BERKELEY KEEP JETS OVER
THE BAY, PORT OF OAKLAND, AND COMMISSIONERS,
PORT OF OAKLAND
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Federal Avia-
tion Administration, respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.
OPINION BELOW
The opinion of the court of appeals (App., infra, 1la-
5a) is reported at 285 F.3d 1143.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
April 4, 2002. A petition for rehearing was denied on
July 11, 2002 (App., infra, 41a). On September 27, 2002,
Justice O’Connor extended the time within which to file
a petition for a writ of certiorari to and including
November 8, 2002, and, on October 29, 2002, Justice
O’Connor extended that time to and including Decem-
ber 6, 2002. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 46110 of Title 49 of the United States Code is
reproduced at App., infra, 42a-48a.
STATEMENT
This case concerns the scope of the courts of appeals’
jurisdiction under 49 U.S.C. 46110(a) to review orders
of the Federal Aviation Administration (FAA).
1. Subtitle VII of Title 49, the “Aviation Programs”
subtitle, is divided into five parts. Part A is designated
“Air Commerce and Safety.” The remaining Parts are
designated “Airport Development and Noise” (Part B);
“Financing” (Part C); “Public Airports,” specifically
those in the Washington, D.C., area (Part D); and “Mis-
cellaneous” (Part E).
Part A contains its own provision governing judicial
review, which states, in relevant part:
[A] person disclosing a substantial interest in an
order issued by * * * the Administrator of the
Federal Aviation Administration * * * under this
part may apply for review of the order by filing a
petition for review in the United States Court of
Appeals. * * * The petition must be filed not later
than 60 days after the order is issued [unless] there
3
are reasonable grounds for not filing by the 60th
day. ,
49 U.S.C. 46110(a). In such a case, the court of appeals
has “exclusive jurisdiction” to review “any part of the
order.” 49 U.S.C. 46110(c).
No analogous provision vests the courts of appeals
with exclusive jurisdiction to review all FAA orders
issued under Parts B through E.’ Consequently, the
district courts retain federal-question jurisdiction to
review most orders issued exclusively under those
Parts for compliance with the Administrative Proce-
dure Act (APA). Such actions are subject to the six-
year limitations period generally applicable to actions
against the United States. See 28 U.S.C. 2401(a).
2. In December 2000, the FAA issued a Finding of
No Significant Impact and Record of Decision (Order),
which approved an airport development program for
the Oakland International Airport in California. The
Order recites that it is issued “pursuant to 49 U.S.C.
40101 [contained in Part A] and 49 U.S.C. 47101 [con-
tained in Part B],” and is “subject to review by the
Courts of Appeals” under 49 U.S.C. 46110. App., infra,
40a. The Order contains determinations under Part A,
including determinations regarding air commerce and
air safety. In particular, in the exercise of its airspace
management authority under 49 U.S.C. 40103(b), a pro-
vision of Part A, the FAA approved the airport layout
plan (which depicts the various components of the air-
port development program for the Airport), determin-
1 Part B contains several provisions conferring jurisdiction on
the courts of appeals to review specific types of FAA orders
arising under that Part. See 49 U.S.C. 47106(d)(3), 47111(d)(3),
47129(c)(5), 47532. None of those provisions would apply to the
Order at issue here.
4
ing that the plan would involve a safe and efficient use
of navigable airspace. App., infra, 38a-39a. The Order
also contains analyses of issues under statutory provi-
sions other than those in Part A. Thus, the FAA also
approved the airport layout plan under 49 U.S.C.
47107(a)(16), a provision of Part B. App., infra, 39a.
And as relevant here, the FAA prepared an environ-
mental assessment, as required under the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4332, to determine whether a full environmental impact
statement was required for the airport development
program for the Airport. The FAA determined that
the program would not have a significant impact on the
environment, thereby relieving the FAA of the obliga-
tion to prepare an environmental impact statement.
App., infra, 40a.
The City of Alameda, a California municipality, and
two private associations challenged the Order by filing
a petition for review, pursuant to 49 U.S.C. 46110(a), in
the United States Court of Appeals for the Ninth Cir-
cuit. The petition did not indicate the nature of the
challenge.
It became evident during briefing that the peti-
tioners (respondents here) were challenging the Order
solely on the ground that the FAA had allegedly failed
to comply with NEPA by, among other things, not
preparing a full environmental impact statement, not
disclosing significant environmental effects, and not
examining sufficient alternatives to the proposed devel-
opment. App., infra, 4a-5a n.3. As relief, the petitioners
_ asked the court of appeals to hold that the Order
violated NEPA and to suspend the FAA’s approval of
the airport layout plan (except its airport roadway
component) until the FAA prepared an environmental
5
impact statement that complied with NEPA. City of
Alameda, et al., C.A. Br. 66.
3. The court of appeals held, sua sponte, that it
lacked appellate jurisdiction under 49 U.S.C. 46110(a)
and directed that the case be transferred to the district
court. App., infra, la-5a.
The court of appeals recognized that the FAA had
issued the Order “pursuant to both sections [i.e., Parts]
A and B of Title 49 Subtitle VII.” App., infra, 4a. The
court concluded, however, that the fact that the FAA
had acted, in part, under Part A was insufficient to
establish jurisdiction under Section 46110(a). Ibid. The
court observed that “(t]he FAA actions challenged by
petitioners * * * voncern themselves with matters
covered by Part B, Airport Development and Noise,
rather than Part A, that concerns Air Commerce and
Safety.” Ibid. Accordiigly, the court concluded that
those petitioners had “fail[ed] to disclose a ‘substantial
interest’ in an order issued under Part A,” as required
by Section 46110(a). Ibid.
The court of appeals denied the FAA’s petition for
rehearing en banc. App., infra, 41a.’
2 Subsequently, the other parties to this case (as well as a
related case in state court) entered into a settlement agreement.
Neither the FAA nor any other component of the United States
government is a party to the agreement or participated in its ne-
gotiation.
Under the agreement, the other parties to this case are
required to seek the entry of an order dismissing the case with
prejudice in the district court to which it was transferred. (They
are also required to seek entry of a stipulated judgment in the
state court case.) As of the date of the printing of this certiorari
petition, those parties had not sought such an order in the district
-—— court. Entry of such an order would conclude all of the pending
claims against the FAA concerning the Order challenged in this
case. See also p. 14, n.5, infra.
TE on
6
REASONS FOR GRANTING THE PETITION
The FAA issues orders approving airport develop-
ment projects that contain determinations both under
Part A of Subtitle VII of Title 49 with respect to “Air
Commerce and Safety,” and under other Parts of Sub-
title VII. In issuing such orders, the FAA, among
other tasks, reviews the project under NEPA and
prepares either an environmental assessment or a full
environmental impact statement. The court of appeals
held that such orders are reviewable under 49 U.S.C.
46110(a)—the judicial review provision applicable to
FAA orders issued “under” Part A—only if the peti-
ioner seeks review of the FAA’s exercise of authority
specifically under Part A. The court of appeals thereby
departed from the most sensible construction of Section
46110(a) as providing for review of all aspects of orders
issued, in whole or in part, under Part A, regardless of
the particular portion of the order that is challenged or
the particular ground on which the order is challenged.
Its decision conflicts with the decisions of two other
circuits applying the statutory predecessor of Section
46110(a), and threatens to complicate and prolong the
review of time-sensitive orders approving airport de-
velopment projects. This Court’s review is, therefore,
warranted.
1. Section 46110(a) authorizes “a person disclosing a
substantial interest in an order issued by * * * the
Administrator of the Federal Aviation Administration
* * * under this part,” z.e., Part A of Subtitle VII,
to seek review of the order in the court of appeals.
49 U.S.C. 46110(a). The statutory text is most naturally
read as providing for review in the court of appeals
whenever the challenged order is, to some extent, a
product of the FAA’s exercise of its authority under
7
Part A and the petitioner asserts “a substantial inter-
est” in any aspect of the order. Nothing in the statu-
tory text requires that the petitioner’s challenge relate
to the particular portions of the order that are the
product of the FAA’s exercise of authority under Part
A, or that the challenge be based on the order’s claimed
noncompliance with a provision of Part A rather than,
for example, with NEPA.
The court of appeals appears to have misunderstood
the scope of the “substantial interest” requirement of
Section 46110(a). As other courts of appeals have
recognized, the requirement that a petitioner identify a
“substantial interest” in an FAA order is simply a
standing requirement, which assures that the petitioner
is sufficiently aggrieved by the issuance of the order to
be an appropriate party to challenge it. See Illinois —
Dep't of Transp. v. Hinson, 122 F.3d 370, 371 (7th Cir.
1997); see also Kodiak Airways, Inc. v. CAB, 447 F.2d
341, 344 (D.C. Cir. 1971) (construing “substantial inter-
est” requirement in predecessor provision); Trans
World Airlines, Inc. v. CAB, 339 F.2d 56, 63 (2d Cir.
1964) (same), cert. denied, 382 U.S. 842 (1965). It has
not been understood to distinguish among such ag-
grieved persons depending on the portion of the order
at which their challenge is directed or the provision of
law on which the challenge is based.
That understanding is reinforced by Section 46110(c),
which states that the court of appeals has “exclusive
jurisdiction to affirm, amend, modify, or set aside any
part of the order.” 49 U.S.C. 46110(c) (emphases
added). Section 46110(c) confirms that the court of
appeals is not confined to reviewing only those portions
of the order that represent an exercise of authority
under Part A or to setting aside the order only for
noncompliance with a provision of Part A. The court
8
may instead review all, or any portion, of the order,
including a portion issued under a source of authority
other than Part A, and may do so to ensure compliance
with any provision of law (such as NEPA) on which the
validity of the order may depend.
The conclusion that the court of appeals had exclu-
sive jurisdiction to review the Order in this case is
especially compelling, because the petitioners in that
court sought, as relief, a determination that the FAA’s
Order approving the airport development program
violated NEPA, without limiting that request to par-
ticular portions of the Order. City of Alameda, et al.,
C.A. Br. 66. They also asked the court to “suspend the
FAA’s approval of the amended Airport Layout Plan,”
except for its airport roadway component, pending the
completion of an environmental impact statement that
complied with NEPA. I/bid. In its Order, the FAA had
approved the airport layout plan “pursuant to 49 U.S.C.
47107(a)(16) [a provision of Part B] and 40103(b) [a
provision of Part A].” App., infra, 39a (emphasis
added); see id. at 14a (observing that the FAA had
reviewed the airport layout plan for conformity with
FAA design criteria, including “[dJetermination of
effects upon the safe and efficient utilization of
navigable airspace pursuant to 14 CFR Parts 77 and
157,” both of which implement statutory provisions in
Part A). Thus, the petitioners below directly chal-
lenged a portion of the Order (the approval of the
airport layout plan) that was expressly based on Part A
as well as Part B.
2. The Second and Tenth Circuits have held, con-
trary to the Ninth Circuit here, that exclusive jurisdic-
tion lies in the courts of appeals to review an order that
is the product of the FAA’s exercise of authority under
both Part A and other Parts of Subtitle VII, even when
9
the petitioner challenges only the FAA’s exercise of
authority under those other Parts and even when the
petitioner challenges the order only on NEPA grounds
and other grounds outside Part A. See Sutton v.
United States Dep’t of Transp., 38 F.3d 621, 624-625 (2d
Cir. 1994); National Parks & Conservation Ass’n v.
FAA, 998 F.2d 1528, 1526-1528 (10th Cir. 1993). Those
cases arose under a predecessor provision that stated,
in relevant part, that “[a]ny order, affirmative or
negative, issued by the [FAA] under [Chapter 20 of
Title 49] * * * shall be subject to review by the courts
of appeals * * * upon petition, filed within sixty-days
after the entry of such order, by any person disclosing a
substantial interest in such order.” Federal Aviation
Act of 1958, Pub. L. No. 85-726, § 1006(a), 72 Stat. 795
(49 U.S.C. App. 1486(a)(1958)). Chapter 20 of Title 49
contained the “Air Commerce and Safety” provisions
that now are contained in Part A of Subtitle VII of Title
49,
In those cases, the FAA issued orders approving
airport development projects under what is now Part A
(and was then Chapter 20 of Title 49) and under what is
now Part B, accompanied by review and approval in
accordance with NEPA. The orders were challenged
solely based on NEPA and on provisions of Title 49
outside Chapter 20. The courts of appeals held that
they had exclusive jurisdiction under Section 1486(a),
because the FAA had issued the orders, in part, under
Chapter 20, although the challenges were not based on
the statutory provisions in Chapter 20. As the Second
Circuit put it, appellate jurisdiction under Section
1486(a) turned on whether the FAA acted, in sub-
stantial part, under Chapter 20 in issuing the order, not
on “the substantive claim[s] alleged in the complaint.”
10
Sutton, 38 F.3d at 625; accord National Parks, 998 F.2d
at 1528.
Section 46110(a), the judicial-review provision in-
voked here, and Section 1486(a), the judicial-review
provision invoked in Sutton and National Parks, are
substantively identical. Both provisions authorize
review in the court of appeals of an FAA order issued
“under” the “Air Commerce and Safety” provisions of
Title 49 on the petition of a “person disclosing a sub-
stantial interest in [that] order.” Accordingly, the
Ninth Circuit’s decision in this case squarely conflicts
with the decisions of the Second and Tenth Circuits in
those earlier cases.
The Ninth Circuit’s decision is also in tension with
decisions of other circuits, which have held that, when a
party challenges an FAA order on both Part A grounds
and non-Part A grounds, review lies exclusively in the
court of appeals. See Suburban O’Hare Comm’n v.
Dole, 787 F.2d 186, 192-193 (7th Cir.), cert. denied, 479
U.S. 847 (1986); City of Alexandria v. Helms, 728 F.2d
643, 645 & n.2, 646 (4th Cir. 1984); City of Rochester v.
Bond, 603 F.2d 927, 931 & nn. 11-18, 934-938 (D.C. Cir.
1979); cf. Media Access Project v. FCC, 883 F.2d 1063,
1067 (D.C. Cir. 1989) (discussing those cases). As the
Seventh Circuit explained, “[w]Jhen an agency decision
has two distinct bases, one of which provides for
8 The judicial-review provision previously found at 49 U.S.C.
App. 1486 was codified at 49 U.S.C. 46110 as part of the 1994
codification of Title 49. See Act of July 5, 1994, Pub. L. No. 103-
272, § 1(a), (e), 108 Stat. 745, 1230. Congress stated in the pream-
ble to the Act that its intent was to “revise, codify, and enact
without substantive change certain general and permanent laws,
related to transportation.” Jd. Preamble, 108 Stat. 745 (emphasis
added); accord H.R. Rep. No. 180, 103d Cong., Ist Sess. 5 (1993);
see id. at 378-379 (discussing linguistic changes in Section 46110).
11
exclusive jurisdiction in the courts of appeals, the entire
decision is reviewable exclusively in the appellate
court.” Suburban O’Hare, 787 F.2d at 192-193. That
rationale encompasses cases, such as this one, in which
an FAA order is challenged solely on grounds outside
Part A. Cf. City of Rochester, 603 F.2d at 937 (noting
“the irrelevance of the specific substantive ground” on
which an FAA order is challenged for purposes of the
judicial-review provision). |
3. The court of appeals’ decision undermines Con-
gress’s purpose in Section 46110 of expediting judicial
review of orders issued by the FAA under Part A.‘
That purpose is reflected in Congress’s choice to make
such orders reviewable, in the first instance, exclu-
sively in the court of appeals, see 49 U.S.C. 46110(c),
and to require parties to seek review of such orders
within 60 days of their issuance, see 49 U.S.C. 46110(a).
See To Create a Civil Aeronautics Authority: Hear-
ings Before the House Comm. on Interstate and For-
eign Commerce, 75th Cong., 3d Sess. 46 (1938) (state-
ment of Clinton M. Hester, Assistant General Counsel,
Department of the Treasury) (observing that the
predecessor to Section 46110 was designed “to elimi-
nate the expense and delay of conducting litigation in
the District Courts dealing with judicial review of
administrative orders”); City of Rochester, 603 F.2d at
935 (observing that Section 46110(a)’s “timeliness re-
quirement reflects a deliberate congressional choice to
impose statutory finality on agency orders”).
4 Section 46110 also applies to orders issued by the Secretary of
Transportation and, with respect to aviation security matters, the
Under Secretary of Transportation for Security. 49 U.S.C.
46110(a). Such orders involve determinations under Part A and
may also raise issues under statutory provisions outside Part A.
12
If certain challenges to an FAA order issued, in part,
under Part A could be initiated only in district court
under the judicial-review provisions of the APA (be-
cause the FAA’s exercise of authority under Part A is
not contested), those challenges would not be subject to
the 60-day limitation period of Section 46110(a). That
would, as the D.C. Circuit has observed, “completely
undo [the] act’s requirement of a timely petition for
review.” City of Rochester, 603 F.2d at 935. It would
also subject portions of the order to an additional level
of judicial scrutiny, thereby “requiring duplication of
the identical task in the district court and in the court of
appeals,” Florida Power & Light Co. v. Lorion, 470 U.S.
729, 744 (1985), and potentially delaying the date on
which the order as a whole would become final. More-
over, if one party challenged the order as inconsistent
with the requirements of Part A, while another party
challenged the order as inconsistent with the require-
ments of Part B or NEPA, the court of appeals and the
district court could simultaneously be adjudicating the
validity of the same order, producing “[(t}he likelihood of
duplication and inconsistency.” City of Rochester, 603
F.2d at 986. As other circuits have recognized, “[t]he
rationale for statutory review is that coherence and
economy are best served if all suits pertaining to
designated agency decisions are segregated in particu-
lar courts.” Sutton, 38 F.3d at 625 (quoting City of
Rochester, 603 F.2d at 936); accord Suburban O’Hare,
787 F.2d at 192; cf. Florida Power, 470 U.S. at 742
(noting the “seeming[] irrational[ity]” of a “bifurcated
system” in which “some final orders in licensing pro-
ceedings receiv[e] two layers of judicial review and
some receiv[e] only one”).
The court of appeals’ decision creates other inefficien-
cies as well with regard to the review of FAA orders.
13
Under the court of appeals’ approach, jurisdiction
would be determined not from the face of the order (7.e.,
whether the order was issued, in part, under Part A),
but from the arguments advanced by the petitioners in
their briefs on the merits. (Typically, as here, the initial
petition for review does not identify the particular
portions of the order being challenged or the particular
grounds of the challenge.) It thus might not be
ascertained until after the briefing, or perhaps even the
oral argument, whether the case belonged in the dis-
trict court or the court of appeals.
In sum, the court of appeals’ decision threatens to
inject prolonged uncertainty into orders involving air-
port development and safety, with the prospect of
increased cost, delay, and inconvenience to the public.
The size of the Ninth Circuit in both area and popula-
tion, with the consequent demand for commercial air-
port construction and expansion, renders the decision
here particularly problematic. For these reasons, and
because the court of appeals’ jurisdictional ruling con-
flicts with decisions of other courts of appeals, review
by this Court is warranted.
14
CONCLUSION
The petition for a writ of certiorari should be
granted.”
Respectfully submitted.
KIRK K. VAN TINE
General Counsel
JAMES W. WHITLOW
Deputy Chief Counsel
Federal Aviation
Administration
Department of Transportation
DECEMBER 2002
THEODORE B. OLSON
Solicitor General
THOMAS L. SANSONETTI
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
JEFFREY BOSSERT CLARK
RONALD M. SPRITZER
Attorneys
5 As noted above (at 5 n.2), as a result of a settlement entered
into among the other parties to this case, the underlying case may
soon be dismissed with prejudice, leaving no live controversy
among the parties. In that event, the FAA expects to move this
Court to vacate the judgment of the court of appeals, so that its
jurisdictional ruling, which would then be unreviewable by this
Court, would not affect future challenges to similar FAA orders.
See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950).
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 01-70169
CITY OF ALAMEDA; CITIZENS LEAGUE FOR AIRPORT
SAFETY AND SERENITY; BERKELEY KEEP JETS OVER
THE BAY, AN UNINCORPORATED ASSOCIATION,
PETITIONERS
\
Vv.
FEDERAL AVIATION ADMINISTRATION; PORT OF
OAKLAND; COMMISSIONERS, PORT OF OAKLAND,
RESPONDENTS
Filed Apr. 4, 2002
ORDER
Before: Chief Judge SCHROEDER, Judges B.
FLETCHER and KOZINSKI, Circuit Judges.
We conclude that we lack appellate jurisdiction under
49 U.S.C. § 46110(a). We direct that the appeal be
removed from the argument calendar and that it be
transferred to the United States District Court for
(la)
2a
the Northern District of California, pursuant to 28
US.C.§ 1631."
We grant the Airports Council International-North
America’s motion for leave to file as amicus a response
to our March 18, 2002 order. The brief submitted is or-
dered filed.
Petitioners appeal directly from the Federal Aviation
Administration’s (“FAA’s”) “Finding of No Significant
Impact and Record of Decision,” (“ROD”) issued De-
cember 21, 2000, containing a number of orders authori-
zing the proposed airport development plan to proceed.
The ROD constituted a final decision of the Federal
Aviation Administration. Both petitioners and respon-
dents cortend that the FAA’s final decision is subject to
direct review by the Court of Appeals pursuant to 49
U.S.C. § 46110(a). We disagree.
In the recently decided case, City of Los Angeles v.
F.A.A., 239 F.3d 1033, 1034 (9th Cir. 2001), petitioners,
City of Los Angeles et al., challenged a “Final Policy
. issued by the [FAA].” The court stated that “(t]he
principal issue is whether we have jurisdiction to hear
this case as a direct appeal of the agency’s action or
whether the case must first be instituted in district
court.” Id. at 1034. The court, after examining the
structure and language of the statute, determined that
it lacked appellate jurisdiction, and transferred the case
to district court. Id.
As the court discussed, Subtitle VII (“Aviation Pro-
grams”) of Title 49, is divided into four “Parts”: Part
A—Air Commerce and Safety; Part B—Airport De-
1 Petitioners have requested that if we conclude we lack juris-
diction that we transfer to the district court rather than dismiss
the action.
3a
velopment and Noise; Part C—Financing; and Part
D—Miscellaneous. 49 U.S.C. § 49101, et seg. As peti-
tioners here, petitioners in City of Los Angeles relied
upon the jurisdictional provision of § 46110(a), located
in Part A—Air Commerce and Safety, that provides for
direct review by the courts of appeals. Jd., 239 F.3d at
1035. Under Part A, “a person disclosing a substantial
interest in an order issued . . . under this part may
apply for review of the order by filing a petition for
review in the . . . court of appeals.” § 46110(a).
In City of Los Angeles, petitioners challenged a Final
Policy of the FAA involving the receipt of federal Air-
port Improvement Program grants by various locali-
ties. In sum, the FAA in that case imposed a tighter re-
striction on the already established policy that all re-
cipients must assure the Department of Transportation
“that airport revenues would not be diverted to non-
airport uses.” Jd. Petitioners sought review in our
court of the regulatory action.
As the court discussed, though the jurisdictional
provision relied upon by the petitioners, § 46110(a), was
located in Part A, the revenue-use restrictions chal-
lenged by the petitioners were located in Part B, spe-
cifically at 49 U.S.C. $§ 47107(b) and 47133. Therefore,
the court held, “ § 46110(a) does not cover the Final
Policy because it is not an order under Part A.” Id.,
239 F.3d at 1035 n.3. Further, “[e]very court of appeals
case that could be found exercising jurisdiction under
§ 46110(a) involved airline commerce and safety or a
specific provision under Part A.” Jd., 239 F.3d at 1036
(citing cases). Cases affirming the exclusive juris-
2 The court noted that Part B contains its own judicial review
provisions, none of which applied in that case. /d.
4a
diction of the courts of appeals “indicate[ ] that
§ 46110(a) encompasses orders relating to air safety.”
Id. (citing, e.g., Foster v. Skinner, 70 F.3d 1084, 1087
(9th Cir. 1995) (holding that claims regarding revoca-
tion of appellant’s flight privileges for violating safety
regulations were subject to court of appeals jurisdic-
tion)).
Petitioners contend that City of Los Angeles is inap-
posite because the petitioners in that case challenged an
FAA action wholly within Part B of Title 49 Subtitle
VII, whereas in the case at bar the FAA’s actions were
taken pursuant-to both sections A and B of Title 49
Subtitle VII. The FAA actions challenged by petition-
ers here, however, concern themselves with matters
covered by Part B, Airport Development and Noise,
rather than Part A, that concerns Air Commerce and
Safety. Petitioners fail to disclose a “substantial inter-
est” in an order issued under Part A. Unlike the cases
relied upon by the parties in their submissions in
response to our March 18, 2002 order, petitioners on
appeal allege only violations of the National Environ-
mental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq.
The fact that the ROD refers to matters of Airport
Safety and Commerce is of no import here, since peti-
tioners challenge actions unrelated to either of those
matters.® For that reason, as in City of Los Angeles,
3 Petitioners, on appeal, allege that the FAA violated NEPA by
(1) failing to prepare an environmental impact statement,
(2) failing to disclose significant environmental effects, (3) relying
on unspecified mitigation measures in reaching its conclusions on
environmental impact, and (4) failing to examine a reasonable
range of alternatives to the proposed development. Petitioners do
not contend that their concerns reach the areas of air commerce
and safety—only that the FAA’s “Finding. of No Significant Im-
5a
petitioners must bring their claims pursuant ” some
other statute.‘
Because Congress chose to cabin the availability of
direct appeal to the courts of appeals, limiting the scope
of 49 U.S.C. § 46110(a), dividing Subtitle VII into four
parts, and lodging this jurisdictional provision within
Part A alone, it would contravene clear Congressional
intent to allow petitioners to bring claims concerning
Airport Development and Noise, regulated under Part
B, under the jurisdictional provisions of Part A. As we
noted in City of Los Angeles, the clear language and
structure of 46110(a) “trumps any alleged contradictory
understanding” of Congressional intent when it enacted
the statute. Jd., 239 F.3d at 1036.
Appeal transferred to the district court.
pact and Record of Decision” relies in part on the statutory
provisions of Part A related to those matters.
4 Such as NEPA, or the Administrative Procedures Act, 5<-—~
U.S.C. § 701 et seq., for example. By transferring this appeal, we
do not purport to rule on the district court’s jurisdiction. That is
an issue for it to determine.
6a
APPENDIX B
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WESTERN-PACIFIC REGION
HAWTHORNE, CALIFORNIA
FINDING OF NO SIGNIFICANT IMPACT
AND RECORD OF DECISION
PROPOSED AIRPORT DEVELOPMENT PROGRAM
OAKLAND INTERNATIONAL AIRPORT
Oakland, California
December 21, 2000
Ta
TABLE OF CONTENTS
Section Page
I Introduction [8a]
II Purpose and Need of the Proposed
Project [10a]
III The Proposed Agency Actions [12a]
IV Alternatives Analysis [14a]
V__ Environmental Consequences and |
Mitigation [18a]
VI Agency Findings [34a]
VII Decisions and Orders [37a]
8a
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FINDING OF NO SIGNIFICANT IMPACT
AND RECORD OF DECISION
PROPOSED AIRPORT DEVELOPMENT PROGRAM
OAKLAND INTERNATIONAL AIRPORT
OAKLAND, CALIFORNIA
I. INTRODUCTION
This document serves as a Finding of No Significant
Impact and Record of the Decision of the Federal
Aviation Administration (FAA) to approve the Airport
Layout Plan depicting the various components of the
Port of Oakland’s proposed Airport Development Pro-
gram (ADP) which includes the proposed Airport
Roadway Project (ARP) at Oakland International
Airport. This Finding of No Significant Impact
(FONSI) and Record of the Decision (ROD) will describe
the purpose and need of the project, the actions to be
taken by the FAA, the alternatives examined in the
Final Environmental Assessment (FEA), the environ-
mental effects of the preferred alternative, committed
mitigation, satisfaction of assurances and the decision
action. The nature and extent of the decision is clearly
stated in this FONSI/ROD, which is a decision
document.
Oakland International Airport is an air carrier airport
owned and operated by the Port of Oakland, California.
The airport is located in the southwest corner of the
city of Oakland in unincorporated Alameda County on
the eastern side of San Francisco Bay. The airport is
divided into two basic components (North Airport and
South Airport). The Northern portion has three run-
9a
ways, each with a parallel taxiway system. The
Southern portion contains the main runway for the
airport that also has a parallel and connecting taxiway
system. The airport provides facilities that accommo-
date international and domestic commercial airlines,
commuter airlines, airline support/maintenance, air
freight, and general aviation facilities.
On December 29, 1992, FAA issued a Notice of Intent
to prepare an Environmental Impact Statement (EIS),
in the Federal Register. This action was performed
pursuant Section 1501.7 and 1508.22 of the President’s
Council on Environmental Quality (CEQ) Regulations
(Title £9, Code of Federal Regulations [CFR] Part 1500-
1508), ihe implementing regulations of the National
Environmental Policy Act of 1969, (NEPA). The EIS
would address the potential environmental impacts of
the proposed ADP. The Port of Oakland also issued a
Notice of Preparation pursuant to the California
Environmental Quality Act of 1970 (CEQA) to prepare
an Environmental Impact Report (EIR) for the ADP.
Both documents included the Airport Roadway Project
in the proposed ADP development.
In accordance with CEQ Section 1506.2, the FAA, as the
lead federal agency and the Port of Oakland, as the lead
state agency, prepared a joint Draft EIS/EIR to reduce
unnecessary duplication of federal and state environ-
mental disclosure procedures. A joint Draft EIS/EIR
was made available to the public on September 10, 1996.
The U.S. Army Corps of Engineers is a cooperating
agency in the preparation of the joint Draft EIS/EIR
pursuant to CEQ Section 1501.6(a)(1). Public hearings
were conducted on the joint draft document.
Subsequent to the public hearing, the Port of Oakland
determined that it needed to complete the CEQA
portion of the joint document to meet the environ-
10a
mental documentation needs of the Port of Oakland.
Subsequent to the certification of the EIR portion of the
document, the EIR was challenged in state court. The
state court required that the Port of Oakland prepare
supplemental CEQA analysis to support the EIR.
In September 1999, pursuant to paragraph 102 of FAA
Order 5050.4A, Airport Environmental Handbook, the
FAA prepared a Revised Draft EIS that updated,
where appropriate, information in the 1996 Draft EIS.
The FAA issued the Revised Draft EIS in September
2000. Both written and verbal comments were received
during the public review period. The analysis of the
various environmental impact categories required by
FAA Order 5050.4A, revealed that the proposed action
would not exceed the federal thresholds of significance,
as defined in the Order. Therefore, considering the
various consultation and document coordination efforts
on the part of the FAA; the type and extent of the
comments received from all parties including federal,
state, and local governmental agencies, groups and
interested citizens; and the analysis of impacts
presented in the Revised Draft EIS; the FAA has
determined that the appropriate level of federal
environmental disclosure document for this project is
an Environmental Assessment (EA). The FAA’s
determination that an EA is the appropriate federal
environmental disclosure action is made by this FONSI
and ROD. 58
II. PURPOSE AND NEED OF THE PROPOSED
PROJECT
The purpose and need for the proposed improvements
are documented in Chapter 2 of the FEA. The overall
purpose and need of the proposed development is to
safely and efficiently accommodate future growth in
lla
aviation demand within the Oakland International
Airport service area.
The purpose and need for the terminal improvements is
to provide an adequate level of service to accommodate
the existing and forecast increase in domestic and
international passengers using Oakland International
Airport. The existing facility is not adequate to main-
tain an acceptable level of service.
The project is described in detail in Section 2.1, ADP
Alternative of the FEA. The federal action requiring
review pursuant to the National Environmental Policy
Act of 1969 (NEPA) is unconditional approval of the
Airport Layout Plan (ALP) to depict the proposed
projects to be implemented under the ADP [49 USC
47107(a)(16)]. The various projects to be implemented
under the ADP are depicted on Figure 1.3 from the
approved FEA, and are included on the following page.
The following is a list of these various projects:
+ Expand Passenger Terminal Facilities including
12 additional aircraft parking positions and
passenger loading gates, new concourse, passen-
ger hold rooms and baggage facilities.
* Construct the Airport Roadway Project (ARP),
automobile parking garage, improvements to
Airport Drive including double deck roadway of
the Terminal Loop, and a crossover taxiway over
the ARP.
© Relocate and expand existing automobile park-
ing and rental car facilities.
‘ Expand the Airline Flight Kitchen facilities, and
relocation of ground vehicle service facilities into
a single site.
e Relocate jet fuel dispensing facilities.
12a
* Expand the existing United Airlines main-
tenance base.
“ Expand Air Cargo facilities including aircraft
parking aprons and Multi-tenant cargo facility
for sorting, offices and aircraft parking.
* Construct New North Airport cargo facilities
including aircraft parking aprons, automobile/
truck parking and a connecting infield roadway.
. Relocate existing T-hangars displaced by the
proposed infield roadway.
. Construct up to 17 new remote aircraft parking
positions (including replacement of aircraft park-
ing positions eliminated by terminal expansion
and cargo projects) in an area between Taxiway
W and Taxiway T.
® Widen Taxiway W
« Widen Taxiway U to provide dual taxilanes.
[Illustration omitted]
III. THE PROPOSED AGENCY ACTIONS
The FAA's major Federal actions include the uncon-
ditional approval of an Airport Layout Plan (ALP)
submitted by the Port of Oakland for Oakland Inter-
national Airport that depicts the projects listed in
Section II above.
The ALP, which depicts the various development items
included in the Port of Oakland’s ADP has been
reviewed by the FAA to determine conformance with
FAA design criteria and Federal grant agreements
(refer to 14 CFR Parts 77 and 157). The FAA has re-
viewed the proposed development at Oakland Inter-
13a
national Airport and has determined it is compatible
with existing airspace utilization and procedures.
The specific FAA decisions and other actions involving
the development proposed by the Port of Oakland at
Oakland International Airport include the following:
1. Environmental approval of the project and the
Final EA pursuant to 42 U.S.C. 4321 et. seq. and 40 CFR
1500 et. seq.
2. Unconditional approval of the ALP pursuant to
Title 49, U.S.C. Section 47107(a)(16) for those projects
in the Port of Oakland’s ADP.
8. Eligibility of the projects for funding under the
Federal grant-in-aid program authorized by the Airport
and Airway Improvement Act of 1982, as amended
(recodified at Title 49 U.S.C. Section 47107) and/or
eligibility of the project for Passenger Facility Charges.
4. Prior to any funding decision, a determination must
be made under 49 U.S.C. 44502(b) of reasonable
necessity for use in air commerce or in the interests of
national defense.
5. Approval of the appropriate amendments to the
airport certification manual pursuant to Title 14, Code
of Federal Regulations (CFR), Part 139 and modifi-
cation, as required, to the airport security plan pur-
suant to 14 CFR Part 107 (49 U.S.C. 44706).
6. Continued close coordination with the Port of
Oakland and appropriate FAA program offices, as re-
quired, to maintain safety during construction pursuant
to 14 CFR Part 139 (49 U.S.C. 44706).
14a
7. Determination of effects upon the safe and efficient
utilization of navigable airspace pursuant to 14 CFR
Parts 77 and 157.
The Airport Development Project (ADP), including the
Airport Roadway Project, airfield improvements, ex-
panded terminal buildings, air cargo facilities and
associated automobile parking facilities are necessary
to provide an adequate level of service. This project is
part of the National Plan of Integrated Airport Sys-
tems (NPIAS) which is planned to provide public airport
facilities conforming to minimum design standards.
IV. ALTERNATIVES ANALYSIS
The Alternatives Analysis in Chapter 3 of the FEA
identifies the reasonable range of alternatives to the
proposed project, as required by Title 40 CFR 1502.14.
The overall alternatives analysis consisted of a two
level analysis. The first level evaluated a wide range of
general alternatives. The second level of analysis more
closely evaluated those alternatives, including the No
Action Alternative. These alternatives were deter-
mined under the first level to have the potential to be a
feasible and prudent solution to the problem of severe
congestion in the passenger terminal complex including
automobile parking and ground access (Airport Road-
way Project). The first level of analysis evaluates each
alternative in terms of its ability to satisfy the purpose
and need of the proposed project and the alternative’s
potential for significant environmental impacts. In the
FEA, the FAA analyzed 12 alternatives including both
on-airport and off-airport alternatives and the No
Action Alternative, as required by Title 40 CFR
1502.14(d) and FAA Order 5050.4A, Airport Environ-
mental Handbook. The FEA contains a detailed
15a
discussion of each of these alternatives in Chapter 3,
Alternatives. The 12 alternatives are:
1. Regional Alternative-Additional Air Carrier Run-
way in the Bay at Oakland International Airport.
New Bay Area Air Carrier Airport Site.
Civilian Reuse or Shared use of Military Airfields.
Alternative Technologies.
- f- FF
High Speed Rail Service in the California Cor-
ridor.
6. Other Modes of Transport.
7. Civilian Tiltrotor and Vertiports.
8. Telecommunications and Telecommuting.
9. City of Alameda Proposed Settlement Agreement.
10. Reduced Intensity Development Alternative.
11. The Airport Development Program.
12. No Action Alternative.
Through the alternatives analysis, the first ten alterna-
tives were eliminated from further consideration. The
text of the FEA that describes why these alternatives
were eliminated is contained in Section 3.1 and 3.2. For
various reasons, as described in the FEA, these alterna-
tives did not meet the purpose and need. The primary
need is to reduce existing congestion by expanding the
passenger terminal facilities, automobile parking,
l6a
airport access (Airport Roadway Project), and air cargo
facilities. Section 3.2 of the FEA describes both
alternatives that were retained by the FAA for further
consideration in the second level of analysis. The FAA
determined that the Proposed Action - The Port of
Oakland’s ADP, was the only alternative that would
reasonably fulfill the purpose and need for the proposed
action.
Section 3.2.1 of the FEA clearly identifies the Port of
Oakland’s ADP as their preferred alternative. The FAA
has determined, in this FONSI and ROD, that the ADP
is the FAA’s preferred alternative. The No Action
Alternative would not fulfill the purpose and need for
the proposed actions. This alternative would also
create negative environmental impacts since the airport
efficiency would not be improved consequently, on-
airport delays and roadway congestion would continue
to increase.
The following is a brief description of the general pro-
ject alternatives that was retained for further con-
sideration:
Port of Oakland’s Proposed ADP Alternative: This
alternative consists of implementing the Port of Oak-
land’s proposed ADP that includes the Airport Road-
way Project. This alternative includes demolition, con-
struction and replacement of various facilities in the
vicinity of the existing passenger terminal complex.
The primary feature of this alternative is the con-
struction of up to 17 new aircraft parking positions and
gates at the terminal building, construction of auto-
mobile parking improvements, construction of ad-
ditional air cargo facilities, construction of various
taxiway and aircraft parking apron improvements. The
ADP alternative does not include any changes to the
17a
existing runway system. The Port of Oakland has
clearly stated to the FAA that they have no:plans to
construct a new runway until sometime after the year
2010 (see Section 3.0 of the FEA). Therefore, the
existing system with the same runway usage patterns
was evaluated for both the ADP and No-Action alter-
natives.
No Action Alternative: This alternative consists of not
implementing any of the ADP development including
the Airport Roadway Project. No new development
items identified in the ADP including the Airport Road-
way Project would be constructed or implemented.
CONCLUSION
Based on the information disclosed through the 1996
joint Draft EIS/EIR, the 2000 Revised Draft EIS and
the 2000 FEA, the FAA has determined that the
proposed ADP Alternative demonstrated the best
ability to meet the purpose and need of the project with
the least adverse environmental impact. The ADP, with
mitigation, results in no significant adverse impacts,
whereas the No Action alternative would have
potentially significant adverse impacts in several
categories, including noise and air quality. See, Table
1.2 of the EA. Therefore, the ADP Alternative, which
includes the Airport Roadway Project, has been
determined by the FAA, in this FONSI and ROD, to be
the FAA's environmentally preferred alternative as
well as the FAA’s preferred alternative. This alterna-
tive directly supports the essential and most urgent
facility needs at Oakland International Airport with the
least adverse environmental effects. In arriving at this
decision, the FAA considered all pertinent factors
including the environmental impact as well as the FAA
statutory charter in the Federal Aviation Act of 1958,
OO
18a
as amended to assure safe and efficient use of navig-
able airspace (49 U.S.C. 40103). Based on the informa-
tion disclosed in the FEA, the FAA has determined that
the Proposed ADP Alternative demonstrated the best
ability to meet both the purpose and need of relieving
the existing congestion in and around the passenger
terminal including automobile access, and limited air
cargo facilities, while continuing to accommodate air
carrier and air cargo activity and create the least
adverse environmental impacts.
V. ENVIRONMENTAL CONSEQUENCES AND MITI-
GATION
The impacts of the ADP and the No Action Alternative
are summarized below. Detailed discussions for each
environmental impact category are contained in the
FEA in Section 4. In this FONSI and ROD each impact
category studied is listed with a brief discussion of the
results of the impact analysis, and, if necessary, any
mitigation measures. Cumulative impacts are ad-
dressed in Section 4.24 of the FEA.
The FAA will monitor the implementation of mitigation
actions, as necessary, to assure that representations
made in the FEA and this FONSI and ROD are carried
out in accordance with the FAA’s statutory authority.
Practical means to avoid or minimize environmental
harm are summarized below in each environmental
impact category, as appropriate.
The FEA was. prepared as a federal document. In 1992,
the Port of Oakland prepared an Environmental Impact
Report pursuant to the California Environmental
Quality Act of 1970 (CEQA). The FEA has satisfied the
FAA guidelines identified in FAA Order 5050.4A,
Airport Environmental Handbook, and FAA Order
1050.1D, Policies and Procedures for Considering E'n-
19a
vironmental Impacts, for the preparation of an En-
vironmental Assessment. The FEA has been.indepen-
dently reviewed by the FAA and found to be adequate
for the purpose of the proposed Federal action. The
following is a summary of the various environmental
impact categories required by FAA Order 5050.4A.
NOISE. The FEA documents the ADP improvement's
impact on the surrounding community in Section 4.1.
As stated in Section IV of this FONSI and ROD, the
ADP alternative does not include any changes to the
existing runway system. Therefore, the existing
system with the same runway usage patterns was
evaluated for both the ADP and No-Action alternative.
Both the ADP Alternative and the No Action Alterna-
tive result in noise contours that are smaller in size
than the existing condition. The reduction of the
overall size of the noise contours is due largely to the
completion of the phase out of the noisier Stage 2
aircraft weighing over 75,000 pounds that occurred at
the end of 1999. This phase out was required by the
Airport Noise and Capacity Act of 1990 and is
implemented by Federal Aviation Regulation Part 91,
Subpart I. The noise contours for the future year 2010
are virtually identical for both alternatives. Noise
levels would not exceed FAA's threshold of significance
of 1.5 CNEL increase over noise sensitive land uses
within the 65-CNEL noise contour. The FEA notes that
there are a number of noise sensitive land uses located
within the 65 CNEL noise contour. The Port of Oakland
holds avigation easements on 65 of the 97 homes that
would be located within the 65 CNEL contour for the
year 2005. As stated in Section 4.1.2 of the FEA, these
homes are located on Bay Farm Island immediately
adjacent to the airport.
The FEA notes that the noise abatement and mitigation
measures developed in the Port of Oakland’s Noise
20a
Compatibility Program are expected to mitigate
existing and future noise impacts from airport opera-
tions in the area. The Noise Compatibility Program
was prepared pursuant to 14 CFR Part 150, the
implementing regulations for the Airport Safety and
Noise Abatement Act of 1979, as amended. The FAA
approved the Port of Oakland’s Noise Compatibility
Program on May 21, 1991. These measures have been
incorporated into the ADP Alternative.
COMPATIBLE LAND USE. The ADP improvements
including the new international passenger terminal
project are consistent with the various local and re-
gional plans of the surrounding communities as
described in Sections 4.2 of the FEA. The Port of
Oakland provided the required land use assurance
letter to the FAA, which is included in Appendix D of
the FEA. No mitigation for this environmental impact
is necessary.
SOCIAL IMPACTS. The principal social impact antici-
pated by the ADP concerns surface traffic patterns.
The ADP includes the construction of an Airport
Roadway Project that will provide additional surface
access to Bay Farm Island through the central portion
of the airport. The associated roadways connecting the
Airport Roadway Project to I-880 will help to alleviate
existing congestion and further reduce congestion
resulting from forecast passenger levels.
Section 4.3.2 of the FEA anticipates that the Airport
Roadway Project will displace two residential units and
require relocation of eight individuals. It would also
require relocation of two businesses and compensation
for structures belonging to another business. All
relocations shall be accomplished in accordance with the
Uniform Relocation and Assistance and Real Property
Acquisition Policies Act of 1970 (The Uniform Act).
2la
According to FEA, one of the residences is already
owned by the City and the two occupants have been
relocated. However, the FAA is in possession of cur-
rent information from the Port that both households,
identified in the FEA as subject to relocation as a result
of the ADP, have been relocated per the Port’s
mitigation program, which incorporates all applicable
legal requirements and supports the assurances re-
quired by Order 5050.4A. Under the No Action Al-
ternative the ADP, improvements would not be imple-
mented. Consequently, the Level of Service (LOS) of
the various roadways would continue to deteriorate as
the demand for airport services at Oakland Inter-
national Airport increases.
This topic also evaluates Environmental Justice as
prescribed by Executive Order 12898. Federal
agencies must identify and address disproportionately
high and adverse effects of their programs, policies, and
other actions on minority or low-income populations.
To achieve this, Executive Order 12898 directs each
federal agency to make achieving environmental justice
part of its mission. To that end, U.S. Department of
Transportation Order 5610.2, Actions to Address
Environmental Justice in Minority Populations and
Low-Income Populations, was used to prepare the
analysis in this portion of the FEA. The displacement
of two residences has involved eight individuals in a
minority community as described above. Segments 5
and 6 of the Airport Roadway Project are located
within a minority community that is composed of more
than a 50 percent minority population. In addition, the
proposed Airport Roadway Project includes the in-
stallation of a noise barrier to reduce the impacts of
roadway noise on the community. As relocation has
been accomplished in accordance with the Uniform Act
and a roadway noise barrier will be constructed to
22a
avoid potentially significant noise increases in the
affected communities, the FAA has determined that the
proposed ADP including the Airport Roadway Project
will not have disproportionately high and adverse
human health and environmental effects on minority
and low-income populations.
INDUCED SOCIOECONOMIC IMPACTS. Since the
majority of the ADP Alternative, (with the exception of
portions of the Airport Roadway Project), is contained
within the existing boundaries of the airport, the
proposal is not expected to alter the patterns of
population movement and growth. Neither the ADP
Alternative nor the No Action Alternative is expected
to have or create significant impacts regarding noise,
land use and the need for various social services such as
~ hospitals, schools, etc. No mitigation for this impact
category is necessary.
AIR QUALITY. Section 4.5 of the FEA states that the
air emissions associated with the airport are expected
to increase due to the forecast increase in aircraft
operations for either the ADP Alternative or the No
Action Alternative. Implementation of the ADP Alter-
native would cause construction emissions to occur that
would not be present in the No Action Alternative.
Emissions will also be reduced by the incorporation of
central power and preconditioned air at all concourse
aircraft gates at the airport.
Section 4.5.3 of the FEA describes the air quality
impacts including the need for an air quality conformity
determination pursuant to Section 176(c) of the Clean
Air Act Amendments of 1990. The analysis presented
in Section 4.5.3 and Tables 4.5-7, and 4.5-15, of the FEA
clearly shows that air emissions associated with
construction and operation of the ADP Alternative are
23a
below the de minimis levels. Pursuant to 40 CFR
Section 51.853, project emissions that have been
demonstrated to be below de minimis levels are
presumed to conform to the State Implementation Plan.
The roadway portions of the ADP, including the Airport
Roadway Project, are included in the Metropolitan
Transportation Commission’s 1999 Transportation
Improvement Program (TIP). The Regional TIP was
found in conformance with the State Implementation
Plan. Consequently, a conformity determination pur-
suant to Section 176(c) of the Clean Air Act is not
required.
Since the ADP Alternative does not include construc-
tion of a new runway or major runway extension, a
certification of reasonable assurance for air quality
impacts from the California Air Resources Board pur-
suant to the Airport and Airway Improvement Act of
1982, as amended (49 U.S.C. 47106) is not required.
WATER QUALITY. The ADP project is not expected to
have a significant impact on water quality in the area.
Section 4.6.2 of the FEA describes the potential impacts
to water quality by the No-Action Alternative and the
ADP Alternative. Increased surface water runoff is
expected due to construction of additional pavement.
The Port of Oakland maintains a Regional Stormwater
Pollution Prevention Plan in compliance with their
General National Pollution Discharge Elimination
System. Waste water from airport terminals and air-
craft washing are treated through a sanitary sewer
system.
Since the project does not include construction of a new
airport, new runway, or major runway extension, a
water quality certification letter from the California
Regional Water Quality Control Board, pursuant to the
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Airport and Airway Improvement Act of 1982, as
amended (49 U.S.C. 47106) is not required.
DEPARTMENT OF TRANSPORTATION, SECTION 4(F)
LANDS. Section 4.7.2 of the FEA states that no lands
protected by Section 4(f) of the Department of Trans-
portation Act of 1966, as amended, would be physically
used by the ADP projects at Oakland International
Airport. The FEA notes that any increase in noise
exposure levels at all properties protected under
Section 4(f) will not exceed 1.5 dB CNEL. Therefore,
neither the ADP improvements nor the No-Action
Alternative would result in constructive use of Section
4(f) properties. Consequently, no direct use or con-
structive use of these properties would occur. No
mitigation measures for this environmental impact
category are necessary. As stated above in the dis-
cussion about airport noise, the Port of Oakland will
continue to implement the FAA approved noise miti-
gation and abatement program prepared pursuant to
Federal Aviation Regulation Part 150.
HISTORIC AND ARCHAEOLOGICAL RESOURCES.
Section 4.8 of the FEA states that no structures located
within the Area of Potential Effect which are listed or
are eligible for listing on the National Register of
Historic Places. The FAA conducted consultation with
the State Historic Preservation Officer (SHPO) pur-
suant to Section 106 of the National Historic Pre-
servation Act of 1966. The FAA determined that there
are no properties listed or eligible for listing on the
National Register of Historic Places. The ADP Project
will not affect any properties listed or eligible for listing
on the Register within the Area of Potential Effect
pursuant to 36 CFR Part 800. No specific mitigation for
this environmental impact category is necessary. The
SHPO has concurred with the FAA’s determination of
|
25a
no effect by letter dated October 30, 1995. See
Appendix J of the FEA.
BIOTIC COMMUNITIES. The FEA states in Section
4.9, that the proposed ADP improvements would
increase the paved areas of the airport by up to 189
acres. Increased aircraft operations under both the No
Action Alternative and the ADP Alternative have the
potential for increased bird strikes. The primary im-
pact to biotic communities is the impact to common
wildlife. The proposed widening of the San Leandro
Bridge at 98th Avenue will involve streambed excava-
tion and backfilling in the San Leandro Creek. This
creek historically supported a population of Central
California coast steelhead trout, a federally listed
endangered species. However, the historic run of the
steelhead is landlocked upstream by the Lake Chabot
dam. Mitigation to minimize the potential impacts to
any steelhead at the San Leandro Bridge is described in
Section 4.9.2 of the FEA. The principal mitigation is to
avoid impacts to the steelhead by conducting
construction activities between June 1 and October 31.
The other species of concern is the state-listed bur-
rowing owl. The FEA notes that burrowing owls have
been observed on Oakland International Airport in both
the North and South Airports. Section 4.9.2 of the FEA
also includes detailed mitigation measures to minimize
the adverse impacts to the burrowing owls. The
burrowing owl is not federally listed as threatened or
endangered.
ENDANGERED AND THREATENED SPECIES OF
FLORA AND FAUNA. Section 4.9 of the FEA includes a
detailed listing of the various special-status species and
common species that are present or likely to be present
at Oakland International Airport and whether or not
the proposed ADP and the No Action Alternative would
26a
affect these species. A biological assessment was
prepared by a qualified biologist for Oakland Inter-
national Airport in 1995. Under the no-action alterna-
tive, no construction or site modification actions would
occur. The FAA has determined that the proposed ADP
will not affect any federally listed threatened or en-
dangered species of flora and fauna. The U.S. Fish and
Wildlife Service (USFWS) has concurred with the
FAA’s determination, dated June 30, 1997 (See Ap-
pendix D of the FEA). The FAA also conducted con-
sultation with the National Marine Fisheries Service
pursuant to Section 7 of the Endangered Species Act of
1973 for the proposed ADP.
The USFWS reaffirmed its position regarding the
impacts to federally listed species to the FAA in a letter
dated December 8, 2000.
WETLANDS. The impacts to wetlands and/or waters of
the United States are described in Section 4.11 of the
FEA. Under the No-Action Alternative, no construc-
tion activities would occur. Consequently, no direct
effects to wetlands would occur. The ADP Alternative
will impact 7.76 acres of wetlands and other waters of
the U.S. that would be filled to accommodate the
proposed ADP. Section 4.11.2 of the FEA indicates that
the proposed ADP will also affect approximately 63
acres regulated by Section 10 Rivers and Harbors Act.
The FEA notes that most of the Section 10 areas are
internal to the dikes that protect the airport and are
now functionally ruderal lowland habitats with no
wetland features. Table 4.11.2 in the FEA identifies the
acreage of wetlands and waters of the U.S. affected by
the proposed ADP. The bulk of the wetland acreage
affected by the proposed action is caused by the Airport
Roadway Project. The FEA identifies that the Port of
Oakland has committed to recreate approximately 19.94
eee .0
27a
acres of wetlands as mitigation for those wetlands lost
to the proposed project.
The wetlands replacement is to be accomplished at a
ratio of 2.34 to 1. To ensure that airport safety will be
maintained, no new wetlands will be constructed in the
Runway Protection Zones. The FEA notes that three
sites have been identified for suitable wetlands
restoration. One site is located at Oro Loma Marsh,
approximately two miles from the airport. The second
site is located at the end of Edgewater Drive, south of
Damon Slough, northeast of the airport. The third site
is located on North Airport adjacent to Fan Marsh,
which was diked and drained in 1933.
The U.S. Army Corps of Engineers, as a cooperating
agency has issued its own Finding of No Significant
Impact for the proposed project (ADP) as it relates to
their regulation of impacts to waters of the United
States.
FLOODPLAINS. Figure 4.12.2 in Section 4.12 of the
FEA illustrates the location of the 100-year floodplain
and Flood Hazard Zones on Oakland International
Airport. The majority of the ADP improvements are
located at the passenger terminal building area, outside
of the 100-year floodplain. Several minor projects of
the ADP are located within the 100-year floodplain on
the northern portion of the airport. These encroach-
ments occur as a result of the construction of Segment 6
of the Airport Roadway Project and the widening of the
existing bridge over San Leandro Creek at 98th
Avenue. Subsequent to the joint Draft EIS/EIR, pre-
liminary designs and specifications for the proposed
bridge expansion were discussed by the Port of
Oakland with the Alameda County Flood Control
District. The FEA concludes that the bridge expansion
ee
28a
would not substantially reduce or otherwise impair
floodplain storage capacity, flood conveyance or other
natural and beneficial floodplain resource values. The
FEA notes that these projects are considered to be
encroachments to the floodplain.
However, in accordance with paragraph 47(e)(12)(e) of
FAA Order 5050.4A, Airport Environmental Hand-
book, the FAA has determined that this encroachment
does not meet the definition of a “significant encroach-
ment” described in U.S. Department of Transportation
Order 5650.2, Floodplain Management and Protection.
A significant encroachment involves the following three
criteria: (1) A considerable probability of loss of human
life; (2) Likely future damage associated with the
encroachment that could be substantial in cost or extent
including the interruption of service on or loss of a vital
transportation facility; and (3) A notable adverse
impact on natural and beneficial floodplain values. The
proposed ADP includes projects such as the Airport
Roadway Project. The ADP Alternative includes the
creation of additional impervious surfaces and is not
likely to raise the 100-year floodplain. The airport is
adjacent to a highly urbanized locale. It was con-
structed in an area that was formerly open bay waters
and regularly inundated mud flats. No mitigation for
this environmental impact category is necessary.
COASTAL ZONE MANAGEMENT AND COASTAL
BARRIERS. The Bay Conservation and Development
Commission (BCDC) is the agency responsible for
implementing the provision of the Coastal Zone Man-
agement Act for the State of California. BCDC juris-
diction in the proposed project area extends along San
Francisco Bay to the line of mean high tide and over a
100-foot shoreline band inland from the mean high tide.
The BCDC has issued a letter to the Port of Oakland,
29a
dated March 12, 2000, indicating that the proposed pro-
ject is consistent with the Coastal Zone Management
Plan. This letter is shown on Page D-48 of Appendix D
of the FEA.
The Coastal Barriers Resources Act refers to un-
developed coastal barriers along the Atlantic and Gulf
Coasts. The proposed project does not create an impact
to this geographic area resource. No mitigation for this
environmental impact category is necessary.
WILD AND SCENIC RIVERS. There are no rivers or
segments of rivers or streams that are categorized as
wild and scenic that would be affected by the proposed
project as described in the FEA in Section 4.14. The
nearest “wild and scenic” river is a segment of the
American River located approximately 60 miles north-
east of the airport. No mitigation for this environ-
mental impact category is necessary.
FARMLAND. Section 4.15 of the FEA states that con-
struction of Segment 6 of the Airport Roadway Project,
as part of the widening of 98th Avenue would eliminate
approximately 0.3 acres of farmland now in active
cultivation. As stated in Section 4.15.1 of the FEA, this
farmland is not prime farmland. Further, this land is
committed to urban development as shown on Figure
4.2.4 of the Final EA. Therefore, this land is not pro-
tected by the Farmland Protection Policy Act. Con-
sequently, the proposed project will not result in a loss
of active production farmland protected by the
Farmland Protection Policy Act. No mitigation for this
environmental impact category is necessary.
ENERGY SUPPLY AND NATURAL RESOURCES. Both
alternatives would result in increased use of fuel and
energy due to increased demand for air transportation
30a
services. The use of central power and preconditioned
air at all of the aircraft gates at the airport will reduce
the overall amount of jet fuel needed by reducing the
time needed for on-board and stand alone auxiliary
power units. No specific mitigation for this environ-
mental impact category is necessary. However, Section
4.16 of the FEA states that the Port of Oakland will
take the appropriate steps to integrate energy efficient
measures such as advanced heating, ventilation and air
conditioning systems to meet current Federal and State
energy codes.
LIGHT EMISSIONS. The Section 4.18 of the FEA states
both the No Action Alternative and the ADP Alterna-
tive will introduce additional lighting emissions at the
airport. This will consist of additional stationary
lighting for the interior and exterior of proposed
structures, security, parking lots, and the aircraft
parking apron. The ADP Alternative would result in
some additional lighting emissions that would not occur
under the No Action Alternative due to new or ex-
panded buildings and lighting along the Airport Road-
way Project. These additional light emissions from the
ADP Alternative are not considered significant. While
the additional light emissions do not create a significant
impact, as stated in the FEA, the Port of Oakland has
included a variety of mitigation measures to reduce any
light emission impacts on light sensitive uses in the
vicinity of the airport.
SOLID WASTE IMPACT. The No Action Alternative
and Proposed ADP Alternative would generate solid
waste at the Airport. Construction activities would
result in a temporary increase in construction related
solid waste. Solid waste from the airport is disposed of
at a landfill in Fremont, California and at the Alta-
mount Landfill located approximately 35 miles south-
3la
east of the airport. Section 4.19.1 of the FEA states
that for the purposes of solid waste, the Oakland
International Airport, is considered part of the city of
Oakland. Therefore, the airport is subject to the pro-
visions of California Assembly Bill 939 which requires
that California communities divert 50 percent of all
solid waste from landfills by the year 2000. Section
4.19.2 of the FEA indicates that no additional specific
mitigation measures are necessary for this impact
category since the Altamount Landfill operating period
extends to the year 2028.
CONSTRUCTION IMPACTS. Construction related
impacts are short term and include the increased
potential for soil erosion and fugitive dust emissions.
The majority of construction impacts relate to the air
quality emissions due to construction activities involv-
ing earth moving. Construction related impacts also
include the increased potential for soil erosion, in-
creased air emissions, water quality degradation, and
noise disturbance. These impacts would be temporary
and intermittent in nature, and are minimized through
environmental controls.
All on-site construction activities would be conducted
according to FAA Advisory Circular 150/5370-10A
“Standards for Specifying Construction of Airports”
and use of Best Management Practices. Use of these
measures would prevent or minimize any significant
construction-related impacts to the environment and
surrounding community.
Section 4.5 of the FEA describes the various mitigation
measures to be used for the proposed ADP Alternative
that will reduce fugitive dust emissions into the
atmosphere. The No Action Alternative would not re-
32a
sult in any construction related activities as described
in the Port of Oakland’s ADP.
HAZARDOUS MATERIALS. While not specifically re-
quired as an environmental impact category by FAA
Order 5050.4A for an EA or an EIS, this topic has been
included as part of the FEA in response to scoping
comments on the Joint Draft EIS/EIR. Several areas on
the Airport are known, or have the potential, to contain
hazardous wastes, primarily petroleum products.
With increased aviation activity, the storage and
handling of relatively small quantities of hazardous
materials, not including aviation fuel, and the genera-
tion of small quantities of hazardous waste will in-
crease. Given that the projected increases in large
aircraft operations would be equivalent under the
Proposed ADP and the No Action Alternative, it is rea-
sonable to expect that the number of accidental spills
during refueling operations would also increase. The
continuing implementation of existing preventative fuel
handling procedures and spill response procedures
ensure that this impact would not pose a hazard nor be
significant at the airport.
Several project components of the Proposed ADP
Alternative would increase use and storage of hazard-
ous materials other than aviation fuels, such as
materials typical of facility maintenance: paints,
solvents, oils and others. There also would be an
indirect increase in the amount of hazardous waste
generated at the Airport resulting from paint thinner
and solvents primarily associated with expanded
airport facilities. Waste would continue to be handled
in accordance with methods currently used at the
airport. An increase in the quantity of waste generated
under the Proposed ADP and the No Action Alterna-
33a
tive would not alter these conditions and, therefore,
would not constitute a significant impact.
DESIGN, ART, AND ARCHITECTURE: This topic is
normally included in a federal EIS prepared pursuant
to FAA Order 5050.4A. In order to ensure continuity
between documents, this topic was presented in the
Revised Draft EIS and in the FEA. The Proposed ADP
includes passenger terminal facility expansion including
the terminal building and construction of increased
automobile parking facilities. The proposed expansion
and associated new structures would be designed to be
compatible with the existing facilities and airport
environs. Under the No Action Alternative, no
terminal building expansion would occur, and effects
related to design would not require consideration.
Under the Proposed ADP, the construction of any ad-
ditions to the terminal building and associated struc-
tures would be in accordance with local design codes
and regulations, and the architectural integrity of the
facilities would be designed to compliment existing
Airport facilities. Therefore, no significant design im-
pacts would occur for the Proposed ADP.
OTHER ENVIRONMENTAL IMPACT CATEGORIES.
The FEA includes several environmental impact cate-
gories that are normally topics discussed in Environ-
mental Impact Reports prepared pursuant to the
California Environmental Quality Act of 1970 (CEQA).
Information from the following topics of Transportation
and Circulation, Geology and Seismology, and Public
Services and Utilities were carried over from the joint
Draft EIS/EIR, the Revised Draft EIS into the FEA.
This was done for the purposes of continuity of review
by persons who had previously reviewed the draft
documents. While not normally included in federal
environmental documents prepared by the FAA these
34a
specific topics were retained in order to disclose the
information that had been included.
VI. AGENCY FINDINGS
In accordance with the guidelines described in Para-
graph 94 of FAA Order 5050.4A, Airport Environ-
mental Handbook, the FAA has made the following
determinations for the proposed project based upon
appropriate evidence set forth in the administrative
record required by the Airport and Airway Improve-
ment Act of 1982, as amended.
A. Reasons for the Determination that the Proposed
Action will have No Significant Impacts.
The Environmental Assessment referenced herein exa-
mines each of the potential impact areas. The proposed
development described as the ADP including the ex-
panded terminal buildings would not involve any
impacts which would exceed the threshold of signifi-
cance in FAA Order 5050.4A, Airport Environmental
Handbook.
B. The project is reasonably consistent with existing
plans of public agencies for development of the area
[49 U.S.C. 47106]. The proposed project has been
developed in coordination with various public agencies.
Appropriate action has been or will be taken to re-
strict, to the extent possible, the use of land in the
vicinity of the airport to purposes compatible with
airport operations. The Port of Oakland, during the
preparation of the EA expressed its intent to diligently
pursue the compatibility of land uses around the
airport. The Port of Oakland has also provided the
required written land use assurance letter to the FAA
that is included in Volume 2, Appendix K of the FEA.
35a
C. Fair consideration has been given to the interests
of communities in or near the project location [49
U.S.C. 47106(b)(2)}. Throughout the planning process
many individuals, officials, agencies and organizations
have been consulted, or have participated in activities
that have contributed to the preparation of the FEA. A
discussion of public involvement in this process is
contained in Chapter 7 of the FEA.
D. Appropriate air and water quality certificates have
been or will be secured for projects involving airport
location, runway location, or a major runway extension
[49 U.S.C. 47106]. The various projects that make up
the ADP do not require certification from the
Governor's office since they do not involve construction
of a new airport, new runway or major runway ex-
tension pursuant to the Airport and Airway Improve-
ment Act of 1982, as amended. The Port of Oakland has
secured and maintains a National Pollution Discharge
Elimination System (NPDES) permit through the State
of California for storm water runoff.
E. The proposed action does not involve the use of
lands subject to Section 4(f) of the Department of
Transportation Act. There are no lands subject to pro-
tection by DOT Act, Section 4(f) that would be used,
either actually and physically or constructively, by the
ADP development at Oakland International Airport.
F. Any actions that involve the displacement and re-
location of people. The ADP improvements, specifi-
cally the Airport Roadway Project, requires the
acquisition and subsequent relocation of two residences.
The FAA is in possession of current information from
the Port that both households identified in the FEA as
subject to relocation as a result of the ADP, rather than
one household as stated in the Final EA, have been
relocated per the Port’s mitigation program, which
36a
incorporates all applicable legal requirements and sup-
ports the assurances required by Order 5050.4A. The
relocation of the [sic] these residents and the various
businesses on the airport has been accomplished in
accordance with the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970. Ade-
quate relocation housing within the financial means of
these individuals was available.
G. Any actions that involve new construction affect- .-
ing wetlands. Approximately 7.76 acres of wetlands
and waters of the U.S. will be affecteu oy the proposed
ADP improvements. The Port of Oakland will obtain
the necessary permits from the U.S. Army Corps of
Engineers. The U.S. Army Corps of Engineers is a
cooperating agency in the preparation of this FEA. The
Corps has issued their own separate Finding of No
Significant Impact for the proposed ADP as it relates to
impacts to wetlands and waters of the United States.
H. Any actions that encroach on a floodplain. The
FEA identified that a portion of the ADP improve-
ments, located along the Airport Roadway Project will
create an encroachment into the 100-year floodplain.
However, in accordance with paragraph 47(e)(12)(e) of
FAA Order 5050.4A, Airport Environmental Hand-
book, the FAA has determined that this encroachment
does not meet the definition of a “significant encroach-
ment” described in Department of Transportation
Order 5650.2, Floodplain Management and Protection.
A significant encroachment involves the following three
criteria: (1) a considerable probability of loss of human
life; (2) Likely future damage associated with the en-
croachment that could be substantial in cost or extent
including the interruption of service on or loss of a vital
transportation facility; and (3) A notable adverse im-
pact on natural and beneficial floodplain values.
37a
I. The FAA has given this proposal the independent
and objective evaluation required by the Council on
Environmental Quality [40 CFR 1506.5]. As described
in the FEA, the ADP and the No Action Alternatives
were studied extensively to determine the potential
assessed impacts and the environmentally preferred
project.
J. The air emissions resulting from the proposed
project have been determined by the FAA to be “de
minimis” and is therefore, presumed to conform with
the State Implementation Plan for air quality pursuant
to Section 176 (c) (1)(a) and (b) of the Federal Clean
Air Act as amended in 1990. As described in the FEA,
neither the ADP Alternative nor the No Action
Alternative will induce additional aircraft activity to
occur at Oakland International Airport. The air
emissions related to this project have been analyzed
and have been determined to be below the de minimis
levels described in 40 CFR Part 51.853 and Part 93.153
and are presumed to conform with the State Imple-
mentation Plan.
Vil. DECISIONS AND ORDERS
In the FEA and this FONSI and ROD, the FAA has
identified the ADP as the FAA’s “preferred alterna-
tive.” FAA must now select one of the following
choices:
“ Approve agency actions necessary to implement
the proposed project, or
“ Disapprove agency actions to implement the
proposed project.
Approval would signify that applicable federal require-
ments relating to airport development and planning
have been met. Approval would also permit the Port of
Oakland to implement the proposed eligible develop-
38a
ment using federal funds. Not approving these agency
actions would prevent the Port of Oakland from pro-
ceeding with implementation of the ADP with federal
assistance in the form of Airport Improvement Pro-
gram funds and/or a Passenger Facility Charge. It is
important to note that as of the date of this FONSI and
ROD, the Port of Oakland has not applied for federal
financial assistance or a Passenger Facility Charge to
implement the ADP, the preferred alternative.
Decision: I have carefully considered the FAA's goals
and objectives in relation to the various aeronautical
aspects of the proposed ADP improvements at Oakland
International Airport as discussed in the FEA. The
review included the purpose and needs to be served by
this project. The review included alternative means of
achieving the purpose and need, the environmental
impacts of these alternatives, the mitigation necessary
to preserve and enhance the human environment, and
the costs and benefits of achieving these purposes and
needs. In addition, the review also considered the pro-
posed ADP in terms of an effective and fiscally re-
sponsible expenditure of local funds, and for eligible
projects, federal funds, at such time as the Port of
Oakland applies for federal grant-in-aid assistance or
for use of Passenger Facility Charge funds.
Under the authority delegated to me by the Admini-
strator of the Federal Aviation Administration, I find
that the project is reasonably supported. Approval of
the ALP is based on determinations through aeronauti-
cal studies conducted regarding potential obstructions
to navigable airspace, and that the airport development
proposal is acceptable from an airspace perspective. I,
therefore, direct that action be taken to carry out the
following agency actions discussed more fully in the
Purpose and Need section of this FONSI/ROD:
39a
A. Environmental approval of the project pursuant
to 42 U.S.C. 4321 et. seg. and 40 CFR 1500 et. seq.
B. Unconditional approval, pursuant to 49 U.S.C.
47107(a)(16) and 40103(b), of the Airport Layout Plan,
submitted by the Port of Oakland for the Oakland
International Airport depicting the proposed develop-
ment in the ADP.
C. Approval to proceed with processing funds for
those eligible airport development projects described as
the Proposed Project, under the 49 U.S.C, Part B
(formerly the Airport and Airway Improvement Act of
1982) described within the FEA and this FONSI and
ROD. The FEA will satisfy the environmental docu-
mentation needs for the collection and use of a Pas-
senger Facility Charge application, at such time as an
application is submitted by the Port of Oakland and
processed pursuant to Federal Aviation Regulation
Part 158 for those eligible projects identified in the
FEA. Prior to any funding decision concerning the pro-
posed development, a determination must be made
under 49 U.S.C. 44502(b) that the airport development
is reasonably necessary for use in air commerce or in
the interests of national defense pursuant to 49 U.S.C.
44502(b).
D. Continued close coordination with the Port of
Oakland and appropriate FAA program offices, as re-
quired, for safety during construction. (FAR Part 139)
(49 U.S.C. 44706).
E. Approval of the appropriate amendments to the
Oakland International Airport Certification Manual,
pursuant to 14 CFR Part 139; and to the Airport Secur-
ity Plan pursuant to 14 CFR Part 107 (49 U.S.C. 44706).
40a
F. Appropriate amendments to air carrier operations
specifications pursuant to 49 U.S.C. 44705.
After careful and thorough consideration of the facts
contained herein, the undersigned finds that the pro-
posed Federal action is consistent with existing
national environmental policies and objectives as set
forth in section 101(a) of the National Environmental
Policy Act of 1969 (NEPA) and that-it will not signifi-
cantly affect the quality of the human environment or
otherwise include any condition requiring consultation
pursuant to section 102(2)(C) of NEPA.
/s/ WILLIAM C. WITH YCOMBE I Se ae
WILLIAM C. WITHYCOMBE, Regional Administrator
Western-Pacific Region, Federal Aviation
Administration
Dec 21, 2000
Date
These decisions, including any subsequent actions approving a
grant of Federal funds to the Port of Oakland, are taken pursuant
to 49 U.S.C. 40101 et seq. and 49 U.S.C. 47101 et seq., and consti-
tute orders of the Administrator which are subject to review by
the Courts of Appeals of the United States in accordance with the
provisions of Section 1006 of the Federal Aviation Act of 1958, as
amended, 49 U.S.C. Section 46110.
4la
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 01-70169
CITY OF ALAMEDA; CITIZENS LEAGUE FOR AIRPORT
SAFETY AND SERENITY; BERKELEY KEEP JETS OVER
THE BAY, AN UNINCORPORATED ASSOCIATION,
PETITIONERS
Vv.
FEDERAL AVIATION ADMINISTRATION; PORT OF
OAKLAND; COMMISSIONERS, PORT OF OAKLAND,
RESPONDENTS
[Filed: July 11, 2002]
ORDER
Before: SCHROEDER, Chief Judge B. FLETCHER and
KOZINSKI, Circuit Judges.
The panel has unanimously voted to deny the petition
for rehearing. Chief Judge Schroeder and Judge
Kozinski voted to deny the petition for rehearing en
banc and Judge B. Fletcher so recommended.
The full court has been advised of the petition for
rehearing en banc and no active judge has requested a
vote on whether to rehear the matter en banc. Fed. R.
App. P. 35.
The petition for rehearing is denied and the petition
for rehearing en banc is rejected.
42a
APPENDIX D
STATUORY PROVISION
1. Section 46110, of Title 49, U.S.C., provides:
§ 46110. Judicial review
(a) FILING AND VENUE.—Except for an order re-
lated to a foreign air carrier subject to disapproval by
the President under section 41307 or 41509(f) of this
title, a person disclosing a substantial interest in an
order issued by the Secretary of Transportation (or the
Under Secretary of Transportation for Security with
respect to security duties and powers designated to be
carried out by the Under Secretary or the Administra-
tor of the Federal Aviation Administration with respect
to aviation safety duties and powers designated to be
carried out by the Administrator) under this part may
apply for review of the order by filing a petition for
review in the United States Court of Appeals for the
District of Columbia Circuit or in the court of appeals of
the United States for the circuit in which the person
resides or has its principal place of business. The peti-
tion must be filed not later than 60 days after the order
is issued. The court may allow the petition to be filed
after the 60th day only if there are reasonable grounds
for not filing by the 60th day.
(b) JUDICIAL PROCEDURES.—When a petition is
filed under subsection (a) of this section, the clerk of the
court immediately shall send a copy of the petition to
the Secretary, Under Secretary, or Administrator, as
appropriate. The Secretary, Under Secretary, or Ad-
ministrator shall file with the court a record of any
proceeding in which the order was issued, as provided
in section 2112 of title 28.
43a
(c) AUTHORITY OF COURT.—When the petition is
sent to the Secretary, Under Secretary, or Administra-
tor, the court has exclusive jurisdiction to affirm,
amend, modify, or set aside any part of the order and
may order the Secretary, Under Secretary, or Adminis-
trator to conduct further proceedings. After reasonable
notice to the Secretary, Under Secretary, or Adminis-
trator, the court may grant interim relief by staying the
order or taking other appropriate action when good
cause for its action exists. Findings of fact by the
Secretary, Under Secretary, or Administrator, if sup-
ported by substantial evidence, are conclusive.
(d) REQUIREMENT FOR PRIOR OBJECTION.—In re-
viewing an order under this section, the court may con-
sider an objection to an order of the Secretary, Under
Secretary, or Administrator only if the objection was
made in the proceeding conducted by the Secretary,
Under Secretary, or Administrator or if there was a
reasonable ground for not making the objection in the
proceeding.
(e) SUPREME COURT REVIEW.—A decision by a
court under this section may be reviewed only by the
Supreme Court under section 1254 of title 28.
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.