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October 5, 2011

Federal Aviation Administration Failed to Take NEPA’s Requisite “Hard Look” at Whether a New Runway Had Indirect Effects Due to Increased Demand for Airport Operations

Federal Aviation Administration Failed to Take NEPA’s Requisite “Hard Look” at Whether a New Runway Had Indirect Effects Due to Increased Demand for Airport Operations

Barnes v. United States Department of Transportation [9th Cir. No. 10-70718; filed 8/25/11]

By Andrea A. Matarazzo

Petitioners challenged an order of the Federal Aviation Administration (“FAA”) approving construction of a new runway at Hillsboro Airport by the Port of Portland, without first preparing an environmental impact statement (“EIS”).  The FAA instead prepared an Environmental Assessment (“EA”) and issued a Finding of No Significant Impact (“FONSI”).  The project challengers argued that the FAA violated NEPA because its environmental document failed to consider the environmental impacts of any increased demand for airport facilities resulting from the additional runway.

In making their primary argument regarding indirect effects of increased airport demand, Petitioners emphasized that NEPA requires an EIS if “substantial questions are raised as to whether a project . . . may cause significant degradation of some human environmental factor.”  To trigger the need for an EIS, a project challenger need not show that significant effects will occur; “raising substantial questions” as to such effects – including indirect as well as direct effects – is sufficient.  Indirect effects include growth-inducing effects, which were implicated in this case by a major ground capacity expansion project.  “in the words of the FAA itself, a new runway is ‘the most effective capacity-enhancing feature an airfield can provide.’”  In finding the FAA’s NEPA review inadequate, the court highlighted the unique potential of a new runway to spur demand, “which sets it apart from other airport improvements, like changing flight patterns, improving a terminal, or adding a taxiway.”

While the FAA defended its analysis by asserting that aviation activity at the airport would increase regardless of whether a new runway was built or not, the court found no documents in the record that actually discussed the impact of the new runway on demand at the airport.  “Tellingly,” the court said, “the Aviation Demand Forecasts chapter . . . does not even mention the number of runways in its almost 50 pages, although it recognizes that aviation demand is affected, among other factors, by ‘the nature of available facilities.’”  In the court’s view, “the agencies would like this court to take their word for it and not question their conclusory assertions in the EA that a new runway would not increase demand.  Their word, however, is not entitled to the significant deference that courts give aviation activity forecasts actually performed by the FAA.”  The court recognized that, “[w]hen it comes to airport runways, it is not necessarily true that ‘if you build it, they will come’”; however, “whether that is true or not here, we do not know,” because the FAA failed to take the “hard look” – in this case, by conducting a demand forecast based on three airport runways rather than two – that NEPA requires.

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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