II. STATUTORY BACKGROUND

A. Administrative Procedure Act

Under the APA, the Court must set aside agency decisions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §706(2)(A); Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803 (8th Cir. 1998). The application of this standard requires courts to undertake a "searching and careful" inquiry. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). Under the arbitrary and capricious standard, an agency’s decision should be upheld only if the decision was based on a consideration of relevant factors and made on a rational basis. See, e.g., Olmsted Citizens for a Better Community v. United States, 793 F.2d 201(8th Cir. 1986).

B. National Environmental Policy Act

The National Environmental Policy Act ("NEPA"), 42 U.S.C. §4321 et seq., establishes a national policy of encouraging the protection of the environment. NEPA’s dominant purpose is to ensure that federal agencies consider the environmental consequences of their proposed actions before approving those actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). NEPA embodies substantive goals but imposes only procedural constraints on federal agencies. Olmsted Citizens, 793 F.2d at 204.

To ensure that federal decisionmakers give appropriate consideration to environmental factors, NEPA requires that federal agencies prepare an EIS for major actions that will significantly affect the quality of the human environment. 42 U.S.C. §4332(2)(C). An EIS includes a description of: 1) the environmental impact of the proposed action, 2) any adverse environmental effects which cannot be avoided, 3) alternatives to the proposed action, 4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and 5) any irreversible and irretrievable commitments of resources. 42 U.S.C. §4332.

The regulations implementing NEPA, establish the alternatives analysis as

the heart of the environmental impact statement. Based on the information and analysis presented in the sections on the Affected Environment ([40 C.F.R.] §1502.15) and the Environmental Consequences ([40 C.F.R.] §1502.16), it should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public.

40 C.F.R. §1502.14. Thus, an EIS must

[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

Id. at §1502.14(a).

"It is ‘absolutely essential to the NEPA process that the decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives, a requirement we have characterized as "the linchpin of the entire impact statement."’" Dubois v. U.S. Dep’t of Agriculture, 102 F.3d 1273, 1286 (1st Cir. 1996), cert. denied, 117 S. Ct. 2510 (1997) (quoting NRDC v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975)).

That fact that NEPA is a procedural statute does not minimize the importance of adhering to those procedures on the misguided assumption that the substantive result is all that matters. As courts have observed "[t]he agency must ‘squarely turn[]’ all ‘procedural corners’ in its EIS." Dubois, 102 F.3d at 1287 (quoting Citizens Awareness Network, Inc. v. Nuclear Regulatory Comm’n, 59 F.3d 284, 290 (1st Cir. 1995). The failure to consider the environmental impacts of a reasonable alternative "renders an environmental impact statement inadequate." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992) (quoting Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985)).

C. Section 4(f)

Congress has determined that a "special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites." 49 U.S.C. §303(a). Accordingly, §4(f) of the Department of Transportation Act, 49 U.S.C. §303 provides:

[t]he Secretary may approve a transportation program or project . . . requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance only if – (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

49 U.S.C. §303(c).

Thus, §4(f) requires FAA to: 1) determine if any 4(f) resource would be used by the project, and 2) determine if a prudent and feasible alternative that avoids the expected use exists. If a prudent and feasible avoidance alternative exists, FAA may not implement any alternative that will result in a use. Druid Hills Civic Ass’n v. Federal Highway Administration, 772 F.2d 700, 716 (11th Cir 1985); Louisiana Environmental Soc’y, Inc. ("LES") v. Coleman, 537 F.2d 79, 82 (5th Cir. 1976). If no such alternative exists, FAA must identify and evaluate measures to minimize harm to the 4(f) resources. 49 U.S.C. §303(c). Evaluation of harm minimization measures includes re-evaluation of the prudent and feasible alternatives to determine which has the least impact on 4(f) resources. LES at 86. If there is a "less harm" alternative which is feasible and prudent, FAA must mitigate harm to the 4(f) resource(s) by selecting that alternative. If there is no "less harm" alternative which is prudent and feasible, FAA must mitigate the harm to the 4(f) resource(s) by designing the preferred alternative in a manner to minimize the harm to 4(f) resources, e.g., landscaping to eliminate or minimize visual impacts. Coalition on Sensible Transportation v. Dole, 826 F.2d 60, 65 (D.C. Cir. 1987). Simply put, §4(f) provides "a plain and explicit bar" to the use of a 4(f) resource in all but the most unusual circumstances. Citizens to Preserve Overton Park v Volpe, 401 U.S. 402, 411-13 (1971).

A "use" within the meaning of §4(f) includes more than actual acquisition or intrusion. Transportation projects often have impacts that extend beyond the land area that has been physically occupied. Those impacts include noise, air pollution, and visual intrusions. A constructive use results when the project "impair[s] substantially the value of the site in terms of its environmental, ecological, or historical significance." Citizen Advocates for Responsible Expansion (I-CARE) v. Dole, 770 F.2d 423, 441 (5th Cir. 1985).

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

In contrast to the strict preservation requirements of §4(f), the National Historic Preservation Act, 16 U.S.C. §§470-470w-6 (1994) ("NHPA"), expresses a national policy of encouraging the preservation of historic properties through the identification of historic properties eligible for listing on the National Register of Historic Places ("National Register") and the development of measures to avoid or mitigate adverse effects of projects on historic resources. Pursuant to NHPA, the Secretary of the Interior maintains the National Register, which is "composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." 16 U.S.C. §470a(a)(1)(A). The Keeper of the National Register determines the eligibility of properties for listing in the National Register using criteria and procedures established by agency regulations. See 36 C.F.R. §60.4. All properties eligible for listing or listed in the National Register have national, State, or local significance, and, therefore, qualify as 4(f) historic resources as well as NHPA §106 historic properties.

NHPA also provides for the establishment of the Advisory Council on Historic Preservation ("Advisory Council") which, among other things, implements NHPA §106. In this capacity, the Advisory Council has promulgated regulations at 36 C.F.R §800. The NHPA regulations establish a procedure for identifying historic resources and mitigating the adverse effects of federal activities on historic resources.

2. Judicial Review of §4(f) Determinations

In Overton Park, 401 U.S 402, the Supreme Court enunciated the standard that courts must apply when reviewing FAA’s exercise of its discretion under §4(f). See also Ringsred v. Dole, 828 F.2d 1300, 1302 (8th Cir. 1987) (citing the three-part analysis enunciated in Overton Park). Notwithstanding the presumption of regularity applied to FAA’s decision, a court’s review must be thorough, probing, and in-depth. Overton Park, at 415. This review involves a "substantial inquiry" into FAA’s actions and requires three distinct determinations. Id.

First, the Court must determine whether FAA properly construed its authority "as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems." Id. at 416. The Court will uphold a decision to use a 4(f) resource only if FAA could have "reasonably believed" that there are no feasible alternatives to the use of the 4(f) resource or that the alternatives to the use of the 4(f) resource involve unique problems — i.e., the avoidance alternative is not prudent. Id.

Second, the Court must determine whether FAA’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. The Supreme Court has articulated this inquiry as a determination of whether the decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. See also Citizens Against Burlington v. Busey, 938 F.2d 190, 203 (D.C. Cir. 1991), cert. denied, 502 U.S. 994 (1991); Stop H-3 Ass’n v. Coleman, 533 F.2d 434, 445 (9th Cir. 1976), cert. denied, 429 U.S. 999 (1976); Eagle Found., Inc. v. Dole, 813 F.2d 798, 803 (7th Cir. 1987); D.C. Federation of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1237 (D.C. Cir. 1972), cert. denied, 405 U.S. 1030 (1972).

Finally, the Court must determine whether FAA followed the proper procedural requirements. Overton Park at 416. Courts implicitly have recognized that the structure of an agency’s decision-making process can in some cases effectively preclude compliance with §4(f). See Named Individual Members of San Antonio Conservation Society. v. Texas Highway Dep’t, 446 F.2d 1013, 1023 (5th Cir. 1971), cert. denied, 406 U.S. 933 (1972).

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

FAA has approved a project – W-1W – that will occupy a large part of Bridgeton, replacing residential neighborhoods and parkland with a 9,000 foot runway, taxiways and, eventually, a new terminal complex. B.App. 2:389-92. Before approving a project with such profound environmental impacts, NEPA requires FAA to rigorously examine the environmental impacts of all reasonable alternatives to W-1W.

FAA failed to consider in detail the environmental consequences of the northern family of alternatives (N-1, NE-1 and NE-1a). All of these alternatives meet the purpose and need for the project, and were among St. Louis’s "finalists" in the MPSS process. B.App. 1:116. Moreover, each of these alternatives would have fewer environmental impacts on any community than W-1W will have on Bridgeton. Yet FAA concluded, through a series of arbitrary and capricious decisions, that each of these alternatives was "unreasonable" and did not need to be considered in any detail.

In making this determination FAA has fundamentally misapprehended the nature of a "reasonable" alternative for NEPA purposes. The purpose of selecting reasonable alternatives is to enable agencies to compare the environmental consequences of the proposal with the environmental consequences of alternative courses of action. 40 C.F.R. §1502.14. "The EIS thus ‘helps insure the integrity of the process of decision,’ providing a basis for comparing the environmental problems raised by the proposed project with the difficulties involved in the alternatives." Dubois, 102 F.3d at 1286 (quoting Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973)).

It is clear that a reasonable alternative does not have to be as good as the preferred alternative:

. . . if the agency unreasonably failed to include a viable alternative among its list of finalists, its alternatives analysis would be inadequate even if the selected site was clearly superior. While this juxtaposition may appear irrational at first, it reflects NEPA’s role as a procedural statute. NEPA’s primary purpose is to ensure that agencies incorporate environmental values as part of their decisionmaking. When finalist alternatives are subjected to rigorous environmental analysis, an agency becomes educated about the environmental effects of a project, and is then presumed to be able to make a reasoned and informed decision based ultimately upon the agency’s expertise in its own field.

Surfrider Found. v. Dalton, 989 F. Supp. 1309, 1326 (S.D. Cal. 1998), appeal docketed, No. 98-55362 (9th Cir. March 5, 1998). An alternative must be able to satisfy, at least in part, the project’s purpose and need. Olmstead Citizens, 793 F.2d at 209. If it does, however, it is considered reasonable unless it is infeasible in the sense that it is "‘virtually impossible’ to implement." Airport Neighbors Alliance, Inc. v. U.S., 90 F.3d 426, 432 n.6 (10th Cir. 1996). Failure to fulfill every element of purpose and need does not necessarily make an alternative unreasonable because:

a discussion of alternatives that would only partly meet the goals of the project may allow the decision maker to conclude that meeting part of the goal with less environmental impact may be worth the tradeoff with a preferred alternative that has greater environmental impact.

North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1542 (11th Cir. 1990).

Thus selecting reasonable alternatives is not as nuanced a task as making a final decision as to which alternative will ultimately be built. The goal is to eliminate the plainly unacceptable alternatives, but conduct a detailed environmental analysis of alternatives that could reasonably be built.

A. FAA Arbitrarily and Capriciously Rejected the Entire Northern Family

The northern alternatives plainly are reasonable alternatives to W-1W. First, after evaluating approximately 30 expansion alternatives, St. Louis

Selected the northern alternatives as three of eight "finalist" alternatives;

Determined they met its purpose and need; and

Determined them to be constructible (B.App. 1:116).

Second, the northern alternatives are facially reasonable. They are all logical alternative locations for a new runway. FAA did not identify any particular feature of terrain that would make any alternative impossible to build. There may be problems with each of these alternatives – as indeed there are with W-1W – but the fact that none of these alternatives are perfect does not mean that any of them are unreasonable. In short, if one’s goal was to expand Lambert, these would be among the logical alternatives to consider.

Third, because the northern alternatives would impose the fewest environmental impacts of any of the expansion alternatives, B.App. 1:115-16, FAA had an obligation to retain them for detailed environmental analysis. North Buckhead, 903 F.2d at 1542. Indeed, NEPA requires that environmentally preferable alternatives be retained even if they do not satisfy every element of purpose and need so that an agency can evaluate the tradeoff between fewer environmental impacts and reduced capabilities. Id.

Here, FAA rejected each of the northern alternatives based on the failure to meet some particular element of the tiering analysis. B.App. 2:374-76. Yet it is clear that each northern alternative met a substantial portion of purpose and need. N-1 and NE-1 provide better capacity and delay performance than W-1W. B.App. 2:380. NE-1a provides substantial improvement in capacity and delay performance compared to no-action. Id.

Without subjecting the northern alternatives to detailed environmental review, the environmental analysis of W-1W is incomplete because FAA did not compare the impacts of W-1W to the impacts of alternatives with fewer environmental impacts. FAA thus precluded itself from balancing environmental advantages against operational disadvantages as NEPA demands. As a result, the EIS is skewed in favor of W-1W, by comparing it only to S-1, which is environmentally more damaging than W-1W.

It is apparent, as detailed below, that FAA found each of the northern alternatives to be unreasonable based on relatively modest distinctions between alternatives, rather than on the broader criterion of reasonableness mandated by NEPA. Therefore, FAA’s EIS is fatally flawed and must be rejected.

B. The Decision to Reject N-1 Violated NEPA

Although it met purpose and need, N-1 was rejected at Tier 2 because of potential disruption to hubbing operations during construction. B.App. 2:374-75. N-1 was also rejected at Tier 2 because FAA believed that the cost of construction and land acquisition exceeded the savings in delay reductions. Id. Because FAA concedes that N-1 provides better capacity and delay performance than W-1W, these incremental disadvantages of N-1 do not mean that it cannot provide substantial advantages compared to taking no action. B.App. 2:380. Moreover, N-1’s operational advantages over W-1W, combined with fewer environmental impacts, may cause FAA to conclude that those advantages outweigh the additional costs and potential logistical issues N-1 poses. Therefore, elimination of N-1 from detailed analysis violated NEPA by depriving FAA of the opportunity to compare W-1W to an environmentally preferable alternative.

C. The Decision to Reject NE-1 was Arbitrary and Capricious

Although FAA concluded that NE-1 provides better capacity and delay performance than W-1W, NE-1 was dismissed at Tier 2 because the construction of NE-1 "would be disruptive to the operations of the airport to such a degree that it could create a major interference with hubbing operations for several years, perhaps even to the extent that airlines would move to another hub location." B.App. 2:375; 380. FAA’s decision was arbitrary and capricious.

First, even assuming that construction of NE-1 would interfere with hubbing, that "interference" does not make NE-1 unreasonable. Other cases involving airport expansion plans establish that a proposed runway is considered unreasonable only when it cannot be constructed. In Airport Neighbors, 90 F.3d at 432 & n.6, the issue was whether FAA considered all reasonable alternatives to a plan to upgrade and extend existing runways at Albuquerque International Airport. Plaintiffs argued that FAA had improperly failed to give detailed environmental consideration to a proposal to construct a new runway located farther from residential neighborhoods than the existing runways. In its preliminary analysis of that alternative, FAA concluded that it would be "‘virtually impossible’ to implement" because the new runway would "be located off the edge of the mesa and require as much as 150 feet of fill over seventy to eighty percent of the runway length." Id. See also City of Aurora v. Hunt, 749 F.2d 1457, 1467 (10th Cir. 1984).

Here, in contrast, FAA did not and could not conclude definitively that NE-1 is "virtually impossible to implement." Indeed, FAA could not even state with certainty that there would be any significant disruption of hubbing activities. B.App. 2:375. The possibility the construction of NE-1 would disrupt hubbing operations may be an important factor in deciding whether to select NE-1 as the preferred alternative given all other relevant factors. But it does not disqualify NE-1 from detailed analysis.

Second, even assuming that disruption of operations during construction could render NE-1 unreasonable, FAA has failed utterly to make that case. It is axiomatic that decisions must be supported by substantial evidence in the record, not "mere assertions" by the agency. Dubois, 102 F.3d at 1287 ("one aspect of [the discussion of alternatives] is whether the agency has gone ‘beyond mere assertions and indicated its basis for them.’") (quoting Silva v. Lynn, 482 F.2d at 1287)).

Here, nothing in the Record supports FAA’s speculation regarding NE-1. There is no study of whether, or to what extent, hub operations would be infeasible during construction. There is no study analyzing the phasing of construction. There is no expression of concern from TWA, the hub carrier at Lambert, regarding the effects on its operations of constructing NE-1. There are not even minutes of any meeting at which the topic was discussed.

In contrast, FAA relied on studies concerning a replacement airport and the use of a multiple airport system to justify its decision to reject those alternatives without detailed environmental analysis. B.App. 2:358; 368. Just as it was incumbent on FAA to undertake those studies to justify its ultimate decision to reject those alternatives, so it was incumbent on FAA to undertake a similar study to support its decision to eliminate NE-1 from consideration. In the absence of any evidence in the Record, FAA’s decision to reject NE-1 is arbitrary and capricious.

Moreover, St. Louis concluded that NE-1 met all regional and airport needs and was constructible without any mention of potential interference with hubbing during construction, even though other alternatives were considered constructible "with difficulty." B.App. 1:116. The fact that St. Louis would consider NE-1 more constructible than S-1, but FAA would reject NE-1 as unconstructible without noting any constructability concerns with S-1 demonstrates the arbitrary and capricious nature of the decision to reject NE-1.

D. The Decision to Reject NE-1a was Arbitrary and Capricious

The "decisive" factor in FAA’s decision to reject NE-1a at Tier 1 was FAA’s determination that NE-1a lacked the capability for independent simultaneous IFR operations. B.App. 2:375; 5:1609. This conclusion is flawed in several respects.

1. The Statement of Purpose and Need Was Unduly Restrictive

By including in its purpose and need statement the requirement that an alternative must provide independent simultaneous IFR operation capability, FAA imposed an improperly narrow definition of purpose and need by requiring alternatives to employ a particular method of achieving the general purpose of increasing capacity and reducing delays. Courts have determined that an EIS based on an unduly restrictive statement of purpose and need is fatally flawed because it improperly excludes from consideration reasonable alternatives.

For example, in Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997), the Corps reviewed an application to fill wetlands in order to permit the construction of a dam and reservoir to supply water to Marion, Illinois. The Corps considered only "single source" options to address the general goal of providing an adequate water supply. In rejecting the EIS, the court held that even though the single source solution may prove to be the best option, the idea of multiple sources of water was not so facially implausible that the Corps could ignore it. Thus, although an alternative need not be considered if it does not meet the purpose and need of the project, it is not permissible to define the purpose and need of a project in such narrow terms as to exclude otherwise reasonable alternatives. Id.

Here, FAA’s use of independent simultaneous IFR operations capability had precisely that result. NE-1a unquestionably increases capacity and reduces delay, increasing capacity from 97 average weighted operations per hour to 119 average weighted operations per hour and saving $248 million in total aircraft operating costs. B.App. 2:380. Thus NE-1a meets the primary purpose and need by increasing capacity and reducing delays.

In response to comments, both FAA and St. Louis have conceded that independent simultaneous IFR operation capability is not a necessary element of the statement of purpose and need. In response to a comment from the City of St. Charles criticizing the use of independent simultaneous IFR operation capability as "confusing the means and the end," FAA "agree[d] that the objective [of expanding Lambert] is to obtain sufficient capacity to reduce delays." B.App. 4:878. St. Louis, in response to a similar comment from Bridgeton, conceded that "what ultimately matters is not how W-1W or its alternatives would be operated, but how much capacity each alternative would provide." (emphasis in original). B.App. 6:2150.

Exactly. Independent simultaneous IFR operation capability is not necessary and reliance on the shibboleth of independent simultaneous IFR operation capability has resulted in the improper elimination of a reasonable alternative to W-1W.

Ultimately, FAA relies on the fact that W-1W provides more capacity with less delay to justify the rejection of NE-1a. Yet this observation obscures the more fundamental issue of whether NE-1a provides sufficient capacity to handle anticipated traffic levels with acceptable delays. The fact that W-1W may be "better" does not mean that NE-1a is unreasonable for NEPA purposes. Surfrider Found., 989 F. Supp. at 1326. Moreover, FAA never states what minimum capacity is needed, or what the maximum delay level is. In the absence of such standards, the decision to reject NE-1a is arbitrary and capricious. It is clear that NE-1a was rejected because it was not as "good" as W-1W, not because it was unreasonable.