OPENING BRIEF OF PETITIONER THE CITY OF BRIDGETON, MISSOURI

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

______________

NOS. 98-3506; 98-3774; 98-3925

CITY OF BRIDGETON, MISSOURI, CITY OF ST. CHARLES, MISSOURI
AND ST. CHARLES COUNTY, MISSOURI,

Petitioners,

v.

RODNEY E. SLATER, in his official capacity as Secretary of Transportation;
DEPARTMENT OF TRANSPORTATION; JANE F. GARVEY,
in her official capacity as Administrator, Federal Aviation Administration;
JOHN F. TURNER, in his official capacity as Regional Administrator,
Federal Aviation Administration; FEDERAL AVIATION ADMINISTRATION,

Respondents.

 

______________

ON PETITION FOR REVIEW OF RECORD OF DECISION FOR
LAMBERT-ST. LOUIS INTERNATIONAL AIRPORT

______________

 

Eliot R. Cutler
Sheila D. Jones
W. Eric Pilsk
Cutler & Stanfield, L.L.P.
700 Fourteenth Street, N.W.
Tenth Floor
Washington, D.C. 20005

Telephone: (202) 624-8400
Facsimile: (202) 624-8410

William A. Richter
Michael D. Hart
Blackwell Sanders Peper Martin LLP
720 Olive Street
Twenty-Fourth Floor
St. Louis, MO 63101

Telephone: (314) 421-3850
Facsimile: (314) 621-4834

Attorneys for Petitioner

CITY OF BRIDGETON, MISSOURI

 

SUMMARY AND REQUEST FOR ORAL ARGUMENT

Petitioner City of Bridgeton, Missouri ("Bridgeton") challenges the Federal Aviation Administration’s ("FAA") September 30, 1998 Record of Decision approving the City of St. Louis’s ("St. Louis") plan to expand Lambert-St. Louis International Airport ("Lambert"). This plan, known as Alternative W-1W ("W-1W"), would locate a new, 9,000-foot runway in a residential neighborhood of Bridgeton.

Bridgeton challenges FAA’s ROD on three grounds. First, FAA violated the National Environmental Policy Act, 42 U.S.C. 4321 et seq. ("NEPA") by failing to evaluate the environmental consequences of all reasonable alternatives to W-1W. Second, FAA violated 4(f) of the Department of Transportation Act, 49 U.S.C. 303 ("4(f)") by failing to determine if any prudent and feasible avoidance alternative to W-1W exist and, if such alternative exists, by failing to select the alternative that will cause the least harm to 4(f) resources. Third, FAA violated the Airport and Airway Improvement Act, 49 U.S.C. 47106(a)(1) by approving W-1W even though W-1W is inconsistent with the plans of Bridgeton, the agency authorized by Missouri to plan for the area where W-1W will be located.

Oral argument is required because of the complexity of the legal issues, the unique factual background of the case and the number of parties. Bridgeton will require at least 30 minutes for oral argument.

 

TABLE OF CONTENTS

TABLE OF AUTHORITIES
JURISDICTIONAL STATEMENT
ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE AND STATEMENT OF FACTS

I. THE PROPOSED EXPANSION OF LAMBERT
II. NEPA ANALYSIS
III. SECTION 4(F) ANALYSIS
IV. CERTIFICATION UNDER THE AIRPORT AND AIRWAY IMPROVEMENT ACT
SUMMARY OF ARGUMENT
ARGUMENT
I. INTRODUCTION
II. STATUTORY BACKGROUND
A. Administrative Procedure Act
B. National Environmental Policy Act
C. Section 4(f)

1. Relationship Between Section 106 of the National Historic Preservation Act and Section 4(f)
2. Judicial Review of 4(f) Determinations

III. FAA VIOLATED NEPA BY FAILING TO RIGOROUSLY ANALYZE THE ENVIRONMENTAL IMPACTS OF ALL REASONABLE ALTERNATIVES TO W-1W

A. FAA Arbitrarily and Capriciously Rejected the Entire Northern Family of Reasonable Alternatives to W-1W
B. The Decision to Reject N-1 Violated NEPA
C. The Decision to Reject NE-1 was Arbitrary and Capricious
D. The Decision to Reject NE-1a was Arbitrary and Capricious

1. The Statement of Purpose and Need Was Unduly Restrictive
2. FAA Arbitrarily and Capriciously Rejected NE-1a Based on Computer Estimates of Capacity and Delay
a. The MPSS RCAD Analysis
b. The 1988 RCAD Analysis

E. The Decision to Accept W-1W as Reasonable was Arbitrary and Capricious

1. In Practice W-1W Will Not Permit Independent Simultaneous IFR Operations
2. It was Arbitrary and Capricious to Select W-1W Without Performing A real-Time Simulation

F. Conclusion

IV. FAA HAS VIOLATED SECTION 4(F)

A. FAA’s Section 4(f) Analysis is Unreasonable

1. FAA’s Determination that Certain Parks are Resources is Arbitrary and Capricious
2. Even if FAA’s Determination that Certain Parks are 4(f) Resources is Reasonable, FAA’s Decision to Select W-1W is Unreasonable
3. FAA’s 4(f) Decision is Arbitrary Because It Did Not Evaluate All Known Alternatives to Determine If They Are Prudent and Feasible

a. FAA’s NEPA Alternatives Analysis is Not a Substitute for the Alternatives Analysis Required by 4(f) 56
b. There is No Support for the Conclusion That Other Alternatives are Imprudent

V. FAA VIOLATED THE AIRPORT AND AIRWAY IMPROVEMENT ACT

CONCLUSION

 

TABLE OF AUTHORITIES

FEDERAL CASES

Airport Neighbors Alliance, Inc. v. U.S., 90 F.3d 426 (10th Cir. 1996)

Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir.), cert. denied, 502 U.S. 994 (1991)

Citizen Advocates for Responsible Expansion (I-CARE) v. Dole, 770 F.2d 423 (5th Cir. 1985)

Citizens to Preserve Overton Park, Inc. v Volpe, 401 U.S. 402 (1971)

City of Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 1984)

City of Cleveland v. City of Brook Park, 893 F. Supp. 742 (N.D Ohio 1995)

Coalition on Sensible Transportation v. Dole, 826 F.2d 60 (D.C. Cir. 1987)

Condor Corp. v. City of St. Paul, 912 F.2d 215 (8th Cir. 1990), vacated and remanded on other grounds, 943 F.2d 860 (8th Cir. 1991)

D.C. Federation of Civic Ass’ns v. Volpe, 459 F.2d 1231 (D.C. Cir. 1972)

Druid Hills Civic Assoc. v. FHWA, 772 F.2d 700 (11th Cir 1985)

Dubois v. U.S. Dep’t of Agriculture, 102 F.3d 1273 (1st Cir. 1996),

cert. denied, 117 S. Ct. 2510 (1997)

Eagle Found., Inc. v. Dole, 813 F.2d 798 (7th Cir. 1987)

Greater Orlando Aviation Auth. v. FAA, 939 F.2d 954 (11th Cir. 1991)

Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir.) cert. denied, 519 U.S. 823 (1996) 64

Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992)

Louisiana Environmental Soc’y, Inc. v . Coleman, 537 F.2d 79 (5th Cir. 1976)

Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989)

Named Individual Members of San Antonio Conservation Soc’y v.

Texas Highway Dep’t, 446 F.2d 1013, (5th Cir. 1971),

cert. denied, 406 U.S. 933 (1972)

Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803 (8th Cir. 1998)

North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533 (11th Cir. 1990)

NRDC v. Callaway, 524 F.2d 79 (2nd Cir. 1975)

Olmstead Citizens for a Better Community v. U.S., 793 F.2d 201 (8th Cir. 1986)

Ringsred v. Dole, 828 F.2d 1300 (8th Cir. 1987) 16

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)

Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997)

Stop H-3 Ass’n v. Coleman, 533 F.2d 434 (9th Cir. 1976), cert. denied, 429 U.S. 999 (1976)

Stop H-3 Ass’n v. Dole, 740 F.2d 1442 (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985)

, 989 F. Supp. 1309 (S.D. Cal. 1998), appeal docketed, No. 98-55362 (9th Cir. March 5, 1998)

Wade v. Lewis, 561 F. Supp. 913 (N.D. Ill. 1983)


FEDERAL STATUTES AND REGULATIONS

5 U.S.C. 706(2)(A)

Section 106 of the National Historic Preservation Act, 16 U.S.C. 470-470w-6 (1994)

16 U.S.C. 470a(a)(1)(A)

16 U.S.C. 470i

National Environmental Policy Act, 42 U.S.C. 4321 et seq.

42 U.S.C. 4332(2)(C)

Federal Aviation Act, 49 U.S.C. 40101, et seq.

Airport and Airway Improvement Act, 49 U.S.C. 47106(a)(1)

Section 4(f) of the Transportation Act, 49 U.S.C. 303

36 C.F.R. 60.4

36 C.F.R 800

40 C.F.R. 1502.14

40 C.F.R. 1507.3

40 C.F.R. 1.45(4)

 

STATE STATUTES

Missouri Revised Statutes 251.160 62

Missouri Revised Statutes 251.300 62

Missouri Revised Statutes 251.350 62

Missouri Revised Statutes 251.370 62

 

DOCKETED CASES

City of Bridgeton v. City of St. Louis, No. 98-01840 (Mo. Cir. Ct.)


JURISDICTIONAL STATEMENT

Bridgeton challenges FAA’s September 30, 1998 Record of Decision ("ROD") approving an Airport Layout Plan ("ALP") and funding for W-1W. A true and correct copy of the ROD is attached at Volume 5, Tab 26 of Bridgeton’s Appendix.

The ROD constitutes a Final Order of FAA, subject to review by this Court pursuant to 49 U.S.C. 46110. In addition, the Administrative Procedure Act ("APA"), 5 U.S.C. 704, authorizes judicial review of final agency action for which there is no other remedy at law. Neither the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act nor the Airport and Airway Improvement Act provides a private right of action. Thus, FAA’s decisionmaking pursuant to these statutes is subject to review by this Court under APA 704. Bridgeton filed a timely Petition for Review on October 5, 1998.


ISSUES PRESENTED FOR REVIEW

Did FAA violate the National Environmental Policy Act, 42 U.S.C. 4321 et seq. ("NEPA"), by failing to evaluate the environmental impacts of the northern family of alternatives, any of which would have substantially less environmental impact than W-1W, when St. Louis had concluded that those alternatives would meet its purpose and need and were constructible? 40 C.F.R.  1502.14; North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1542 (11th Cir. 1990); Simmons v. U.S. Army Corps of Engineers, 120 F.3d 644 (7th Cir. 1997).

Did FAA violate Section 4(f) of the Department of Transportation Act, 49 U.S.C. 303 ("4(f)") which prohibits FAA from approving W-1W if it will use 4(f) resources when a prudent and feasible avoidance alternative exists, by failing to determine if any of the northern family of alternatives or C-1 is an avoidance alternative? 49 U.S.C. 303; Citizens to Preserve Overton Park, Inc. v Volpe, 401 U.S. 402, 411-13 (1971); Druid Hills Civic Assoc. v. FHWA, 772 F.2d 700 (11th Cir 1985).

Did FAA violate 4(f) when it selected W-1W as the alternative that will cause the least harm to 4(f) resources? 49 U.S.C. 303; Citizens to Preserve Overton Park, Inc. v Volpe, 401 U.S. 402, 411-13 (1971); Druid Hills Civic Assoc. v. FHWA, 772 F.2d 700 (11th Cir 1985).

Did FAA violate Section 509(b)(1)(A) of the Airport and Airway Improvement Act of 1982, 49 U.S.C. 47106(a)(1) ("AAIA"), which prohibits FAA from approving an airport development project that is inconsistent with the plans of jurisdictions with land use authority over the project area, when FAA acknowledges that W-1W is inconsistent with Bridgeton’s plans and zoning? 49 U.S.C. 47106(a)(1).

 

STATEMENT OF THE CASE AND STATEMENT OF FACTS

I. THE PROPOSED EXPANSION OF LAMBERT

This case arises from FAA’s approval of a plan to enlarge Lambert by constructing W-1W, which comprises a new 9,000 foot runway southwest of the existing airfield, associated taxiways and ramps, and a number of smaller improvements. Bridgeton’s Appendix ("B.App.") 5:1542-43. W-1W would be located almost entirely in a stable, mature residential neighborhood in Bridgeton. B.App. 2:396; 389.

St. Louis requested that FAA approve W-1W under the Federal Aviation Act, 49 U.S.C. 40101, et seq. and the Airport and Airway Improvement Act, 49 U.S.C. 47106 et seq. ("AAIA"). Accordingly, FAA prepared an Environmental Impact Statement ("EIS") pursuant to National Environmental Policy Act, 42 U.S.C. 4321 et seq. ("NEPA"), the final version of which was certified on December 19, 1997 ("FEIS"). B.App. 5:1527. On September 30, 1999, FAA issued its ROD approving W-1W. B.App. 5:1654

 

II. NEPA ANALYSIS

NEPA requires FAA to "rigorously explore and objectively evaluate all reasonable alternatives" to the proposed project. 40 C.F.R. 1502.14(a). FAA failed to examine the environmental consequences of all reasonable alternatives to W-1W. Instead, FAA only examined the environmental impact of S-1 and the No-Action Alternative.

Before selecting S-1 for further evaluation, FAA considered eight "airfield alignment alternatives" that provide additional capacity by constructing one or more new runways on and/or adjacent to Lambert’s existing airfield. B.App. 2:374-83. These alternatives fall into four general groups based on the location of the new runway. The northern options, which include alternatives N-1, NE-1 and NE-1a, would place the new runway approximately 1,200 feet north of the existing northern runway but in differing east-west alignments. B.App. 2:374-76. N-1 and NE-1 would also place a new runway approximately 1,000 feet south of the existing southern runway and would replace the existing passenger terminal with a new terminal between the two new runways. Id.

The western alternatives, which include alternatives W-1W, W-1E and W-2, would locate a new runway southwest of the existing airfield, but in differing east-west alignments. B.App. 2:376-81. The southern alternative, S-1, would locate a new runway approximately 5,500 feet south of the existing southern runway. Id. Finally, the canted alternative, C-1, would reconstruct the entire airfield, adding a third runway, with the new runways rotated 10 degrees in a clockwise direction from their current alignment. B.App. 2:383. St. Louis concluded that all eight of these alternatives met its purpose and need and were constructible. B.App. 1:116.

In the FEIS, FAA employed a "tiering system" to screen alternatives to W-1W in order to select the alternatives for which a detailed environmental analysis would be performed. B.App. 2:346-48. Only alternatives that passed through all three tiers were retained for detailed environmental analysis. B.App. 2:349.

At Tier 1, FAA considered whether each alternative met the purpose and need of the project, which FAA defined as the ability to "relieve existing and forecast runway capacity problems and reduce aircraft delay times at Lambert." Id. In order to satisfy this goal, FAA required alternatives to:

Increase runway capacity to levels that will accommodate the 2015 operations forecast;

Allow for dual independent simultaneous IFR arrival operations;

Substantially reduce projected aircraft delay times;

Enhance and benefit the national aviation system by increasing capacity; and

Maintain a hub at Lambert and meet other St. Louis regional goals. B.App. 2:349-50.

At Tier 2, FAA screened alternatives to determine whether (1) the alternative is "buildable without an overwhelming amount of potential of construction concerns or interference with the ability to maintain hubbing activities at Lambert," and (2) the savings in aircraft operating costs (compared to the No-Action Alternative) exceeded the construction costs of the project. B.App. 2:350.

At Tier 3, FAA evaluated the remaining alternatives to select the "best representative in each family of alternatives." B.App. 2:348. This involved comparing the relative costs, environmental impacts and other factors to determine the most reasonable among each family of alternatives. B.App. 2:351-53.

In evaluating the eight alternatives, FAA determined that NE-1a failed to meet Tier 1 criterion because it would not provide independent simultaneous IFR operation capability and had certain operational disadvantages in comparison to NE-1. B.App. 2:375. FAA did recognize, however, that NE-1a would provide substantial additional capacity and reduced delays when compared to the No-Action Alternative. B.App. 2:380.

FAA determined that NE-1 did not meet Tier 2 criterion because the construction of the new runway and terminal might create a major interference with hubbing operations. B.App. 2:375. FAA determined that N-1 did not meet Tier 2 criterion for similar reasons, and also because the cost of N-1 purportedly exceeds its benefits. Id. FAA also rejected C-1 at Tier 2 because "operations at Lambert would be severely impaired" during construction. B.App. 2:383.

FAA determined that W-1W, W-1E and W-2 all met Tier 1 and Tier 2 criteria, but selected W-1W as "best in family" because of the higher construction costs and environmental impacts of W-1E and W-2. B.App. 2:377-81.

FAA determined that S-1 met the criteria of all three tiers and, thus, would be subject to a thorough environmental analysis and comparison to W-1W. B.App. 2:386.

 

III. SECTION 4(f) ANALYSIS

Section 4(f) of the Transportation Act, 49 U.S.C. 303 ("4(f)") prohibits FAA from approving a project that will use parks, historic properties and other specified resources if there is a prudent and feasible alternative that avoids the use. In conducting its 4(f) analysis, FAA started with the premise that only W-1W and S-1 were potential prudent and feasible avoidance alternatives because S-1 and W-1W were the only alternatives that survived FAA’s 3-tiered NEPA alternatives analysis. B.App. 4:954-55.

FAA then evaluated W-1W and S-1 to determine if either would use 4(f) resources. FAA next purported to determine how many 4(f) resources W-1W and S-1 each would use. Id. FAA concluded that S-1 would use more 4(f) resources than would W-1W. Id. Based on its comparison of the number of purported 4(f) resources each alternative would use, FAA concluded that W-1W was preferable to S-1 because it would use fewer 4(f) resources. Id.


IV. CERTIFICATION UNDER THE AIRPORT AND AIRWAY IMPROVEMENT ACT

The AAIA prohibits the Secretary of Transportation from approving a grant application for airport development unless he is satisfied the proposed project is consistent with the plans of jurisdictions authorized by the State to plan for the area in which the proposed project would be located. 49 U.S.C. 47106(a)(1). Notwithstanding the fact that W-1W is inconsistent with Bridgeton’s plan and zoning, FAA certified that W-1W is consistent with the plans of state and local agencies. B.App. 6:1641.

 

SUMMARY OF ARGUMENT

NEPA. FAA violated NEPA by failing to study the environmental impacts of all reasonable alternatives to W-1W, in particular the northern family of alternatives. FAA was required to conduct a complete analysis of the northern options, all of which St. Louis determined met its purpose and need, because they meet all or some of FAA’s purpose and need and have fewer environmental impacts than W-1W.

Moreover, FAA acted arbitrarily and capriciously in rejecting each of the northern alternatives. First, FAA rejected N-1, even though it would provide better capacity and delay performance than W-1W, because of comparative disadvantages, such as increased cost and potential difficulties with construction. These relative disadvantages are insufficient under NEPA to label N-1 an "unreasonable" alternative.

Second, FAA rejected NE-1, which also would provide better capacity and delay performance than W-1W, due to speculation that construction would interfere unduly with airfield operations, even though St. Louis did not raise that issue in its evaluation of NE-1 and there is no evidence in the Record to support FAA’s speculation.

Third, FAA labeled NE-1a "unreasonable," while accepting W-1W, through inconsistent, arbitrary and capricious analysis of the two alternatives. Specifically, FAA rejected NE-1a because it could not provide simultaneous independent IFR arrival capability even though W-1W will not, in practice, provide that capability. Similarly, FAA concluded that NE-1a could not provide sufficient capacity and acceptable delays without ever defining what levels of capacity and delay were acceptable and while ignoring FAA’s own computer modeling demonstrating that W-1W and NE-1a have comparable capacity and delay levels.

Fourth, FAA accepted W-1W without conducting the real-time simulation necessary to validate certain key assumptions about the unique and unprecedented way W-1W will operate. Without that empirical analysis, FAA’s estimate of W-1W’s capacity and delay performance rests on untested assumptions and is tantamount to speculation.

Section 4(f). FAA violated 4(f) of the Transportation Act by (1) failing to determine if any of the northern alternatives or C-1 is a prudent and feasible avoidance alternative, and (2) arbitrarily and capriciously treating neighborhood parks as 4(f) resources, thereby making it appear that alternative S-1 used more acres of 4(f) resources than W-1W.

AAIA. FAA also violated 49 U.S.C. 47106(a)(1) by approving W-1W even though W-1W is inconsistent with the plans and zoning laws ofBridgeton.

ARGUMENT

I. INTRODUCTION

FAA has approved a massive expansion of Lambert that will locate a noisy, noxious runway in the middle of Bridgeton. This project, known as W-1W, will cost billions of dollars and will transform large parts of Bridgeton from stable residential neighborhoods into an international airport, with devastating effects on all of Bridgeton. Although Bridgeton has always supported the expansion of Lambert, Bridgeton would like to be assured that no alternatives with fewer impacts have gone unexplored before it faces such a fate.

Unfortunately, FAA has demanded that Bridgeton accept W-1W without having considered seriously the northern family of alternatives that would impose fewer impacts on any community than W-1W would impose on Bridgeton. Moreover, although the air traffic controllers who will operate W-1W and the TWA pilots who must use W-1W have raised serious questions about whether W-1W can meet the goals of expansion, FAA has refused to perform the tests necessary to answer those questions.

The result is that FAA and St. Louis are about to commit over $2 billion to construct a runway that will destroy Bridgeton without any certainty that the project will achieve its purpose and without having given proper consideration to a family of alternatives that even St. Louis concluded could meet its expansion goals and that would not destroy Bridgeton or any other community. FAA arrived at this result through a series of arbitrary and capricious decisions that cannot withstand judicial scrutiny.


Continued in Part Two