Cite as: 17 F.2d 1502
U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CITY OF GRAPEVINE, TEXAS, et al., Petitioners,
DEPARTMENT OF TRANSPORTATION, et al., Respondents
Dallas/Fort Worth International Airport Board, Intervenor
Petition for Review of an Order of the Department of Transportation.
Argued Oct. 1, 1993
Decided March 18, 1994
Rehearing Denied May 9, 1994
Eliot R. Cutler, argued the cause for petitioners. With him on the briefs was Perry M. Rosen. Peter J. Kirsch, Robert H. Power, and Christopher Caso entered an appearance for petitioners in No. 92-1151. Peter J. Kirsch and James W. Deatherage entered an appearance for petitioner in No. 92-1158. John Longstreth entered an appearance for petitioners in No. 92-1247.
Albert M. Ferlo, Jr., Attorney, United States Department of Justice, argued the cause for respondents. With him on the brief was Peter R. Steenland, Jr., Acting Deputy Assistant Attorney General, United States Department of Justice.
Michael Schneiderman argued the cause for intervenor Dallas/Fort Worth International Airport Board. With him on the brief were Kevin E. Cox and Michael M. Conway.
On the brief for amici curiae The Church in Dallas, The Church in Irving, and the Living Stream Ministry was Rangely Wallace.
On the brief for amicus curiae Natural Resources Defense Council was S. Jacob Scherr.
On the brief for amicus curiae National Trust for Historic Preservation in the United States was Elizabeth S. Merritt. Paul W. Edmondson and Andrea C. Ferster entered an appearance.
Before MIKVA, Chief Judge, BUCKLEY, and GINSBURG, Circuit Judges.
GINSBURG, Circuit Judge:
Various individuals and political subdivisions of the State of Texas petition for review of the Federal Aviation Administration's decision approving a plan to expand the Dallas/Fort Worth International Airport and declaring portions of the expansion project eligible for federal funding. The petitioners contend that: (1) the FAA's categorical exclusion of some elements of the expansion project from consideration in its Final Environmental Impact Statement (FEIS) renders that document inadequate under the FAA's regulations implementing the National Environmental Policy Act, 42 U.S.C. s 4321 et seq.; (2) the FAA failed to consider the environmental impact of all reasonable and feasible alternatives to the project, in violation of Council on Environmental Quality (CEQ) regulations implementing the NEPA; (3) the FAA erred in determining that the airport project would not "use" historic properties within the meaning of s 4(f) of the Department of Transportation (DOT) Act, 49 U.S.C. s 303(c); and (4) the FAA violated the National Historic Preservation Act (NHPA), 16 U.S.C. s 470 et seq., by issuing its Record of Decision before review under the NHPA was complete. For the reasons set forth below, we deny the petitions for review in all respects.
In 1988, the DFW Airport Board proposed to expand the airport and asked the FAA to fund eligible portions of the project. The Board's proposed Airport Layout Plan (ALP) contemplated the addition of two runways, two terminals, and more than 400 acres of parking, as well as cargo, hangar, maintenance, and other support facilities. Existing runways would also be expanded, while some terminals would be razed.
Under the NEPA, the FAA was required as part of its approval process to assess the environmental effects of the project. 42 U.S.C. s 4332(2)(C). Accordingly, in August 1990 the agency solicited comments on a Draft EIS (DEIS), and later (in January 1992) released the FEIS. Still later, the FAA gave "final approval" to the ALP and declared the project eligible for federal funding. See FAA Record of Decision, April 1992. The FAA specifically provided, however, that no expenditures for construction of the West Runway would be permitted until the review process required by the NHPA was completed. Three cities and a school district in which the airport is located, and certain owners of undeveloped property in the area, now seek review of the FEIS and of the FAA's Decision, pursuant to 49 U.S.C.App. s 1486.
The petitioners raise various challenges under the FAA's regulations, CEQ regulations, the DOT Act, and the NHPA.
A. Exclusions from the FEIS
The NEPA requires each federal agency to consider in an EIS the environmental impact of "every recommendation or report on proposals for ... major federal actions significantly affecting the quality of the human environment." 42 U.S.C. s 4332(2)(C). The EIS must include, among other things, a "detailed statement" describing the reasonably foreseeable environmental impact both of the proposed federal action and of any feasible alternative(s) to the proposed federal action, including non-action. 42 U.S.C. ss 4332(2)(C)(i), (iii). Upon review of the EIS, our job is to ensure that the agency took a "hard look" at the environmental consequences of its decision to go forward with the project. Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 294 (D.C.Cir.1988).
The petitioners contend that the FEIS fails the "hard look" test. The gravamen of their argument is that the FAA improperly excluded substantial portions of the ALP from its environmental review, thereby failing to consider the full environmental impact of the project as required under the FAA's regulations governing the proper scope of an EIS.
The FAA described the "proposed federal action" for which it prepared the FEIS as "the Federal approval and funding participation in the construction of proposed new Runway 16/34 East, scheduled to be operational in 1992, and proposed new Runway 16/34 West, scheduled to be operational in 1997, and the runway-related improvements and safety actions associated with their operation at the [DFW] Airport." The FAA determined that certain elements of the project, such as ground transportation improvements, could be categorically excluded from individualized consideration in the FEIS.
In Appendix 3 of the FEIS the FAA explained that it categorically excluded those aspects of the project under FAA Order 5050.4A P 23. That regulation implements a CEQ rule, 40 C.F.R. s 1508.4, that authorizes an agency to list in advance the types of federal actions within its jurisdiction for which an Environmental Assessment (EA) or an EIS normally will not be required. The petitioners do not deny that the elements that the FAA excluded in this instance are all listed in P 23; rather they claim that the FAA was required to examine their effects anyway pursuant either to P 24, which enumerates various characteristics that preclude exclusion under P 23, or pursuant to P 26, which requires consideration of "the overall cumulative impact of the proposed action and the consequences of subsequent related actions."
1. Exceptional Circumstances Under 5050.4A P 24
Paragraph 24 provides that "[p]roposed Federal actions which are normally categorically excluded but which have any of the following characteristics shall be the subject of an environmental assessment ...
a. An action that is likely to have an effect on properties protected under section 106 of the Historic Preservation Act of 1966 ... or use section 4(f) lands....
b. An action that is likely to be highly controversial on environmental grounds. A proposed Federal action is considered highly controversial when the action is opposed on environmental grounds by a Federal, state, or local government agency or a substantial number of the persons affected by such action....
c. An action that is likely to have a significant impact on natural, ecological, cultural, or scenic resources of national, state, or local significance....
d. An action that is likely to be highly controversial with respect to the availability of adequate relocation housing....
e. An action that is likely to ... cause substantial division or disruption of an established community, or disrupt orderly, planned development or ... increase surface traffic congestion....
f. An action that is likely to ... have a significant impact on noise levels of noise sensitive areas; [h]ave a significant impact on air or water quality or violate the local, state, or Federal standards for air quality; [or h]ave a significant impact on water quality or contaminate a public water system; or ... [b]e inconsistent with any Federal, state, or local law or administrative determination relating to the environment.
g. Other action that is likely to directly or indirectly affect human beings by creating a significant impact on the environment."
The petitioners do not claim that each excluded element, standing alone, satisfies a P 24 criterion; rather, they argue more broadly that "[t]he Expansion Project met not just one, but most of the criteria set forth in paragraph 24." (Emphasis added.) For example, invoking P 24(b) they point out that each of the petitioners opposed the airport expansion project, and that each of the petitioners as well as the Attorney General of Texas, the DOT, and the Environmental Protection Agency (EPA) submitted comments questioning the adequacy of the FAA's environmental review of the project. Presumably with P 24(e) in mind, they contend that the proposed ALP would disrupt community planning that had been carried out in reliance upon an airport master plan devised in the 1970's. "In short," they say, "even the FAA's own regulations obliged it to review the entire expansion project, including all the portions it ignored as categorically excluded."
The FAA, on the other hand, maintains that the petitioners improperly aggregate the excluded elements into an "action" precluded by P 24 from exclusion. According to the agency, an element that is otherwise excluded pursuant to P 23 -- a new terminal, or the expansion of a runway, for example -- is not excludable only if that element by itself meets one of the criteria of P 24.
The FAA's reading of its own regulation is not unreasonable. By its terms P 24 applies to "[p]roposed federal actions which are normally categorically excluded" pursuant to P 23; under P 23 the FAA categorically excluded from the FEIS only particular elements of the ALP. Therefore, when P 24 precludes the exclusion of, for example, "[an] action that is likely to be highly controversial on environmental grounds," it refers to a specific action listed in P 23 as eligible for categorical exclusion, not to the larger project of which it is but a small piece.
The petitioners' attempt to invoke the requirements of P 24 because "[t]he Expansion Project" as a whole meets the criteria of that paragraph is contrary to the whole tenor of Order 5050.4A, which addresses the requirements for separately evaluating the environmental impact of particular elements. See, e.g., P 22a(5) (requiring an EA for "construction ... of entrance or service road connections which adversely affect the capacity of such roads"; P 23a(4) (excluding from environmental review "construction or expansion of passenger handling facilities"). For any project the environmental effects of which are significant enough to require an EIS in the first place, the petitioners' approach would negate altogether the possibility of excluding any individual element under P 23. This consequence of the petitioners' interpretation only highlights the reasonableness of the FAA's interpretation of its regulation.
2. Cumulative Impact Under 5050.4A P 26
Paragraph 26 of the same regulation provides generally that "[i]n determining whether an environmental impact statement is required for a proposed Federal action, it is necessary to consider the overall cumulative impact of the proposed action and consequences of subsequent related actions." The petitioners contend that the FAA granted unconditional approval to every element of the expansion project but avoided considering the cumulative impact of many of the individual elements of the project by labelling them "independent" or "speculative." The FAA points out that it did consider the environmental impact of some elements that it deemed independent or speculative when it considered the cumulative impact of categorically excluded elements of the project pursuant to P 26. In any event the FAA maintains that, although it approved the ALP unconditionally, "the ability of DFW and the FAA to actually implement many of the features shown on that document is in fact conditioned on further review and analysis by the FAA," implying that any environmental impact slighted in the FEIS will be the subject of further consideration.
At several points in the FEIS, the FAA did indeed consider the cumulative impacts of categorically excluded elements of the expansion project -- upon land use, air quality, endangered and threatened species, and wetlands. The petitioners raise no challenge to the adequacy of the FAA's treatment of the cumulative impact of those excluded projects; nor do they challenge the FAA's conclusion that the cumulative impact of the excluded projects was not significant.
Our review of the FEIS suggests that the FAA considered the cumulative impact of all of the "independent" and of most if not all of the "speculative" elements that the petitioners complain were improperly excluded from consideration in the FEIS. We note, however, that certain elements that the EPA claimed in its comments on the DEIS were improperly excluded -- for example, demolition of existing terminals and of a hotel -- do not appear at those places in the FEIS to which the FAA points in order to show that it considered otherwise excluded elements when it assessed the cumulative impact of the project. Unless the FAA considered those elements elsewhere in the FEIS, they can not be deemed part of the approved ALP insofar as the FAA's duties under the NEPA are concerned. In other words, if the FAA determined that review of an element of the ALP would have been premature when it was considering the cumulative impact of the project in the FEIS, then such review must be done when the matter is no longer too speculative to warrant it.
B. Consideration of Alternatives
According to the CEQ, the "heart" of an EIS should be the agency's presentation of "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 CFR s 1502.14. The range of alternatives that the agency must consider is not infinite, of course, but it does include all "feasible" or "reasonable" alternatives to the proposed action. 40 CFR ss 1502.14(a)-(c), 1508.25(b)(2). This "rule of reason governs 'both which alternatives the agency must discuss, and the extent to which it must discuss them.'" Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991) (emphases in original).
The petitioners argue that the FAA improperly curtailed its consideration of alternatives by the way in which it stated the purpose of the airport expansion project. In the DEIS, the FAA said that the purpose of the project was to meet increased demand at the DFW Airport; thus it considered only alternative runway configurations at the airport itself. In their comments on the DEIS, the EPA, the DOT, and the Attorney General of Texas criticized the FAA for failing to consider alternatives off the DFW Airport site. In the FEIS, the FAA described the purposes of the project to include economic development of the Dallas/Fort Worth area and meeting national and international demand for a hub airport. It briefly considered and rejected off-site alternatives to the expansion plan, including construction of a new regional airport and construction of a "wayport" facility designed to handle only connecting traffic. The agency concluded that neither a new airport nor a wayport could be completed in time to alleviate problems at the DFW Airport, and that a wayport, which is as yet an unproven concept, could also be detrimental to the level of non-stop and international service to the DFW Airport. As the only "viable alternatives" to the proposed plan, therefore, the different possible runway configurations were addressed in more detail.
First, the petitioners (and some of the amici) argue that it was improper for the FAA, in defining the purpose of the project, to consider the economic goals of the project's sponsor, the DFW Airport Board. This argument is foreclosed, however, by our decision in Citizens Against Burlington: Per then-Judge Thomas, where a federal agency is not the sponsor of a project, "the Federal government's consideration of alternatives may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project." 938 F.2d at 197-98. In formulating the EIS requirement, the "Congress did not expect agencies to determine for the applicant what the goals of the applicant's proposal should be." Id. at 199. While it is not clear whether federal funds were committed to the project in Citizens Against Burlington, we see no basis for holding that where, as here, federal funds would be involved -- assuming the project passes environmental muster -- the agency may not consider the sponsor's goals to the same extent. Therefore, we conclude that the FAA's statement of the purpose of the airport expansion project did not improperly constrain its consideration of alternatives in the FEIS.
Second, the petitioners contend that the FAA, in response to criticism of the scope of the alternatives it considered in the DEIS, merely "manipulate[d] the statements of need and purpose to avoid considering any alternatives except for those that achieve what has been the FAA's unmistakable goal from day one -- the expansion of DFW Airport." We pass over the facile implication that the FAA harbored an improper motive for changing the statement of purpose in the FEIS. The very purpose of a DEIS is to elicit suggestions for change. The resulting FEIS must be evaluated for what it is, not for why the drafter may have made it so. Here the record shows that the FAA gave reasoned consideration to off-site alternatives to the proposed project. Therefore, we can not hold that the FAA failed to take a "hard look" at the environmental impact of the alternatives to the project. Hodel, 865 F.2d at 294.