Ninth Circuit Calls FAA to Task on Environmental Impacts of New Runway

In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration's ("FAA") long held position that "aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not," Barnes, at 16285, and the Federal Court's traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998). In Barnes, petitioners challenge the FAA's environmental review of the proposed addition of a runway at Hillsboro Airport ("HIO"), a general aviation reliever airport for Portland International Airport ("PDX"), operated by the Port of Portland, and located in the adjacent City of Hillsboro, Oregon ("Project"). Specifically, petitioners challenged, among other things, the FAA's decision to prepare only an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI") not a full Environmental Impact Statement ("EIS"), which petitioners claim was necessary due to the potential environmental impacts of increased demand for HIO resulting from the addition of the runway. First, expressing a view in contradiction with that a number of other Circuits, the court took issue with FAA's consistent argument that "[T]he project will not have growth inducing effects on aviation activity." Barnes, at 16285. The court pointed to the absence of any analysis in the EA of the new runway's growth-inducing impacts. "The agencies are unable to point to anything in the record showing that they in fact considered the possibility that expanding HIO would lead to increased demand and increased airport operations," Barnes, at 16281. The court, therefore, relied on FAA's statement in the administrative record that "a new runway is 'the most effective capacity enhancing feature an airfield can provide.'" Barnes, at 16281. In the absence of hard analysis establishing the lack of growth inducing impact, the court declined to take FAA's "word for it and not question their conclusory assertion in the EA that a new runway would not increase demand." Barnes, at 16285. Second, the court declined to grant the "significant deference that courts give aviation activity forecasts actually performed by the FAA." Barnes, at 16285-86. While the court agreed that "when it comes to airport runways, it is not necessarily true that 'if you build it they will come,'" Barnes, at 16286, quoting National Parks and Conservation Association v. United States Department of Transportation, 222 F.3d 677, 680 (9th Cir. 2000), it would not grant deference because FAA "failed to conduct a demand forecast based on three, rather than two, runways." Barnes, at 16287. The court, apparently realizing the groundbreaking nature of its decision, then proceeded to narrow the decision's scope. It reconciled seemingly contradictory opinions in Seattle Community Federation v. FAA, 961 F.2d 829, 835 (9th Cir. 1992) ["[R]emand to the FAA was unnecessary although the FAA did not consider the impacts of an expected increase in air traffic after changes in flight patterns were implemented," Barnes, at 16288], and Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 580 (9th Cir. 1998), ["[T]he FAA did not have to consider the impacts of an increase in air traffic resulting from a new flight arrival path because 'the project was implemented in order to deal with existing problems . . .'", Barnes, at 16288]. The court rationalized that unlike the flight patterns and flight arrival path at issue in Morongo and Seattle Community Council Federation, "this case involves a major ground capacity expansion project." Barnes, at 16288. The court then went on to further narrow the definition of "major ground capacity expansion project" and, thus, its ruling, by excluding "terminal improvement project[s]," City of Los Angeles, supra, 138 F.3d at 808; taxiway construction, Town of Winthrop v. FAA, 535 F.3d 1, 5 (1st Cir. 2008); and "improvements to an existing runway," City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 272 (D.C. Cir. 2002). In summary, the Ninth Circuit has carved out a new, exclusive niche for projects that include construction of additional runways, because "our cases have consistently noted that a new runway has a unique potential to spur demand which sets it apart from other airport improvements like changing flight paths, improving a terminal or adding a taxiway . . ." Barnes, at 16288. Therefore, in the case of a runway addition, "[E]ven if the stated purpose of the project is to increase safety and efficiency, the agencies must analyze the impacts of the increased demand attributable to the additional runway as growth inducing effects . . ." Barnes, at 16289. While we believe the court may have drawn a bright line demarcation between types of "major ground capacity expansion projects" where none exists in reality, Barnes constitutes a significant step toward recognition of the full complement of airport expansion impacts often ignored in FAA's environmental analyses.

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