Challenges to Environmental Analysis

Challenges to Environmental Analysis

By Howard Beckman
Attorney at Law

All rights to publication are reserved by the author. Republication of all or any portion of the text, other than "fair use," requires express permission from the author.

(Revised February 19, 2011)


The purpose of the National Environmental Policy Act (NEPA) and similar state schemes, such as the California Environmental Quality Act, is to ensure public disclosure of the environmental impacts of projects that may affect air, water, or natural resources (trees, creeks, wetlands, etc.). NEPA itself does not protect the environment. If an environmental analysis demonstrates that a project will have significant adverse impacts, the project may nevertheless be approved as long as the impacts are mitigated or the decision-making body decides that some public interest overrides the adverse impacts.

Thus, lawsuits challenging federal "environmental impact statements" (EIS), if successful, only result in a court order to re-do the environmental analysis or do some additional analysis. If the decision-making body is intent on approving the project that is the subject of the environmental analysis, court review only delays the project. Nevertheless, judicial review is important in the long run because it hold an agency's feet to the fire, underscoring the agency's accountability to the law and implementing regulations, and thus helps to ensure that all analyses of environmental impacts will be reasonably objective and honest.

Most of the cases listed below deal with focused challenges to analyses of aircraft noise. Other cases, not listed here, deal with aircraft noise only secondarily or with procedural questions that are not unique to noise analysis.


The literature on the interpretation and practice of environmental analysis under both federal and California law is vast. No articles that deal specifically with airport noise analysis have been identified. Nevertheless, articles on particular topics, such as "categorical exclusions" or "cumulative impacts", can provide guidance in dealing with the FAA and airports on analysis of airport noise impacts.

In addition, the following guides to environmental analysis are essential and should be consulted together:



Federal courts conduct review of environmental impact statements (EIS) prepared under federal law. When an EIS is challenged, the court may also consider complaints under state environmental law. If a challenge is brought only under state law, the review is conducted by a state court.

Courts of Appeal

Alaska Center for the Environment v. U.S. Forest Service (1999) -- This case concerns "categorical exclusions." A helicopter ski- and hiking-guide operator was granted a one-year "special use" permit to operate in a national forest. Under Forest Service policy, one-year special use permits are not subject to the National Environmental Policy Act (NEPA), i.e., they are classified as "categorical exclusions". ACE challenged the issuance of the permit, arguing that the type of permit issued in this case did not properly fall within the Forest Service's categorical exclusions, and thus an environmental assessment or environmental impact statement was required before the permit could be issued. The district court granted summary judgment for the Forest Service on the grounds that the Forest Service properly relied on its categorical exclusion under NEPA and provided a reasonable explanation for doing so. (9th Cir.; 189 F.3d 851)

Alliance for Legal Action et al. v. FAA et al. (2003) -- FedEx planned to build a large cargo-handling hub at the Piedmont Triad International Airport in North Carolina. A citizen's group challenged the environmental impact statement (EIS), alleging that: (1) the statement of the project's purpose was narrowly written so that the only alternatives considered were those that met the needs of FedEx, and (2) the examination of noise impacts was insufficient because it relied on faulty assumptions and did not take adequate account of nighttime operations. The court concluded that the EIS "was not perfect but it was adequate to support the agency's decision to approve the expansion project." (4th Cir.; unpublished)

Allison v. Department of Transportation (1990) -- Individuals living in an "airpark" threatened by construction of the new Denver International Airport challenged the FAA's determination that the noise generated by the new airport would not constitute "use" of a nearby state park and wildlife refuge. The court found that the FAA erred in using inappropriate guidelines from 14 C.F.R. Part 150 to measure the effects of noise on the parks. The court concluded, however, that the FAA otherwise presented substantial evidence that airport noise would not constitute a "use" of the parklands, and therefore the FAA's erroneous use of Part 150 guidelines was not prejudicial error. (D.C. Cir; 908 F.2d 1024)

Citizens Against Burlington v. Busey (1991) -- Citizens sued for judicial review of FAA approval of plans to expand Toledo Express Airport, claiming that the FAA's environmental impact statement should have compared the impacts of numerous alternatives to the airport's plan. The court held that the FAA complied with the law by analyzing the impacts of only two alternatives: the plan proposed by the airport governors and no expansion. (D.C. Cir.; 938 F.2d 190)

City of Grapevine v. Dept. of Transportation (1994) -- Individuals and local governments challenged the FAA's environmental impact statement on expansion of Dallas/Fort Worth Airport. Held: the FAA complied with the National Environmental Policy Act requirement that the EIS show that the FAA had taken a "hard look" at the environmental consequences of the airport expansion, even though the FAA determined that elements of the project, e.g., surface transportation improvements, could be excluded from detailed consideration in the EIS. The court found no basis for holding that the FAA could not consider the airport's economic goals in the EIS, and concluded that the FAA's statement of the purpose of the airport expansion did not improperly constrain its consideration of alternatives in the EIS. (D.C. Cir.; 17 F.3d 1502; cert. denied 115 S.Ct. 635)

City of Los Angeles v. Federal Aviation Administration and City of Burbank v. Federal Aviation Administration (1998) -- For years the Burbank-Glendale-Pasadena Airport Authority and the FAA have planned to expand and modernize the Burbank-Glendale-Pasadena Airport. The federal government would help fund an expansion that would nearly double the number of gates, triple the number of parking spaces, and quadruple the size of the terminal. The project would also move the terminal, now perilously close to runway 8.

The FAA and the Authority drafted an Environmental Impact Statement (EIS) to comply with federal law and an Environmental Impact Report (EIR) as California law requires. The EIR/EIS projected that passenger demand for the airport would grow rapidly regardless of whether the project is completed, and that terminal expansion would barely affect usage. The City of Los Angeles challenged this conclusion in state court. The Superior Court ordered the Authority to reconsider the environmental impacts of the project on the assumption that the project would cause significantly increased demand. The Authority prepared a supplemental EIR reflecting this assumption and approved the project anyway. Satisfied, the Superior Court held that the revised EIR complied with state requirements (that decision is currently on appeal). The FAA made no similar changes in the final EIS and approved the project. Los Angeles and the City of Burbank appealed.

The cities argue that the demand projections are a finding of fact that must be supported by substantial evidence. They point to past environmental impact statements that predicted that a bigger terminal would increase use. But, the court ruled, "an agency isn't committed to a prediction forever; the FAA was entitled to reconsider its analysis in light of new experience at Burbank and other airports." Moreover, the court said, "predicting demand for the airport in 15 years is not so much a factual finding as a prognostication and is due more deference."

The cities also complain that the FAA has not adequately analyzed the noise impacts of potentially different take-off and landing patterns once the terminal is rebuilt further away from runway 8. The cities point to one study that assumed possible use of runway 8 much greater than the FAA assumes. Again, the court held, "the FAA's ultimate determination is due deference." (9th Cir.; 138 F.3d 806)

Communities, Inc. v. Busey (1992) -- After the Federal Aviation Administration approved an expansion plan for the Louisville (Kentucky) airport, the community surrounding the airport petitioned for review. (This expansion plan included a buyout of three complete neighborhoods surrounding the airport.) Petitioners alleged that the expansion violated the Airport and Airway Improvement Act because new aircraft noise due to the expansion would "use" certain historic and park areas outside the "noise impact area" defined by the FAA, and that the FAA failed to properly evaluate alternative plans that would protect those areas. The Court of Appeals held, inter alia, that the methodology the FAA used to estimate the "noise impact area" (a cumulative averaging methodology) is not arbitrary and capricious and the FAA is not required to use other methodologies, e.g., estimates based on the impact of individual noise events. (6th Cir.; 956 F.2d 619)

Grand Canyon Trust v. FAA (2002) -- The court granted a petition for review of the FAA's environmental assessment of a replacement airport near Zion National Park. The court concluded the record was insufficient to decide whether a full environmental impact statement is required, and ordered the FAA to evaluate the cumulative impact of noise in Zion Park due to the new airport "in light of air traffic near and over the Park, from whatever airport, [and] air tours near or in the Park." The court also determined that the FAA erroneously refused to include "natural ambient noise levels" in the analysis of cumulative noise. (D.C. Cir.; 290 F.3d 339)

Morongo Band of Mission Indians v. Federal Aviation Administration (1998) -- After finding no significant adverse impacts, the FAA authorized a flight path into Los Angeles International Airport that crossed over the Morongo Reservation. The tribe sued for judicial review, contending inter alia that the FAA failed to evaluate or develop alternative routes and that its methodology for evaluating the impact of aircraft noise on the reservation was inadequate. The court denied the petition for review. (9th Cir.; 161 F.3d 569)

National Parks and Conservation Association v. Federal Aviation Administration (1993) -- One of the rare decisions in which a court has held that the FAA's finding that a proposed airport construction project had no significant noise impacts (in this case on a public recreational area) was "arbitrary and capricious." The court reiterated that, although it must uphold an administrative agency's decision if there is a rational basis for the decision, it "need not defer to irrational judgements." (10th Cir.; 998 F.2d 1523)

Seattle Community Council Federation v. Federal Aviation Administration (1992) -- Affirming a decision of the Federal Aviation Administration (FAA), the court of appeals held that the FAA was not required under the National Environmental Quality Act (42 U.S.C. 4321 et seq.) to prepare an Environmental Impact Statement (EIS) on alteration of aircraft flight paths at the Seattle-Tacoma International Airport. (9th Cir.; 961 F.2d 829)

Sierra Club v. U.S. Dept. of Transportation (1985) -- The FAA prepared an environmental assessment of the use of jets at an airport within a national park, concluding that no significant adverse environmental impacts would result and therefore that a full environmental impact statement was not required. Plaintiff challenged this decision, contending that the analysis of noise based on cumulative noise levels rather than individual noise levels did not adequately measure noise impacts. Plaintiff argued that the noise of individual events should be analyzed because the airport was within a national park. The court found no abuse of agency discretion in the analysis. "[T]he use of either an individual or cumulative standard of measurement only indicates the noise level; it does not interpret the impact. That is left to the judgment of the agency." (D.C. Cir.; 753 F.2d 120)

Town of Cave Creek et al. v. FAA (2003) -- Cities newly affected by noise resulting from the FAA's redirection of air traffic at Phoenix Sky Harbor International Airport challenged the FAA's "finding of no significant impact" (FONSI) for the new air route. Such a finding means a comprehensive environmental impact statement (EIS) need not be prepared. The court denied the petition for review, concluding that the FAA applied a well-established methodology and considered the relevant criteria in reaching its decision. (D.C. Cir., 325 F.3d 320).

District Courts

Citizens Concerned About Jet Noise v. Dalton (1999) -- Residents near a Navy airfield challenged the environmental impact statement (EIS) for the Navy's decision to transfer 156 aircraft to the field. Among the deficiencies alleged by plaintiffs was the noise analysis. In particular, plaintiffs claimed that the EIS should have focused more on single noise events instead of relying so heavily on an annual-average metric for noise impacts. The court concluded: "Courts have consistently held that the choice of scientific methodology used in an EIS is within the sound discretion of the agency." The court found the EIS adequate in all respects. (E.D. Va.; 48 F.Supp.2d 582)

Davison v. Department of Defense (1982) -- Plaintiffs challenged the environmental impact statement prepared for conversion of a military airport to civilian cargo use. The court found that the federal EIS adequately dealt with all issues except the disruption of sleep of nearby residents: "The EIS treatment of potential sleep disturbance is more notable for what it leaves out than what it includes." It therefore ordered the Department of the Air Force to prepare a supplemental EIS on the impact of the proposed air cargo facility on the sleeping habits of nearby residents. Plaintiffs had also challenged the reliance in the EIS on noise contour maps based on annual-average noise data. Although the court found "difficulties" in the presentation of the maps, it nevertheless found the maps "somewhat useful in providing the decisionmaker with a rough idea of the areas which will be most affected by the proposed use." "Although DNL averages and contour maps are heavily emphasized, a number of other noise measurement methodologies are discussed and employed in the EIS." (S.D. Ohio; 560 F.Supp. 1019).


The California Environmental Quality Act (CEQA) governs "environmental impact reports" (EIR) required for certain actions by state and local agencies. Challenges to an EIR are heard in state court, unless an associated federal EIS is also challenged, in which case review under both state and federal law is heard in a federal court.

Berkeley Keep Jets Over the Bay Committee et al. v. Board of Port Commissioners (2001) -- The court affirmed the trial court's decision concerning various deficiencies in the environmental impact report (EIR) for the Oakland International Airport's long-range development plan. Notably, the court found the analysis of the airport's noise impacts on the surrounding population inadequate. A key feature of the airport's development plan was expansion of air cargo facilities; most cargo carriers fly at night. The noise analysis in the EIR relied entirely on annual-average measurements of noise, the prevailing measure used in analyses of airport noise. The court ordered a new noise analysis based on an accurate estimate of the number of additional nighttime flights and the frequency of those flights. The analysis must focus on the potential interference of this additional nightttime traffic on sleep, including physiological responses and annoyance. See the Revised Writ of Mandate from the Superior Court. (The state supreme court denied the Port of Oakland's petition for review of this decision.) (Ct. App. 1st Dist.; 91 Cal.App.4th 1344, 111 Cal.Rptr.2d 598)

Los Angeles United School District v. City of Los Angeles (1997) -- The City of Los Angeles adopted a plan to develop a 1.5 square mile area in which two schools existed. The school district alleged the schools would be adversely affected by increased traffic noise and air pollution resulting from the development. The EIR responded to these issues by finding that additional traffic noise near the schools would be "insignificant" and that additional air pollution would occur throughout the project area despite any feasible mitigation measures. In view of the latter findings, the city declared that the benefits of the plan outweighed the unavoidable effects of increased air pollution. The city certified the EIR and approved the plan.

The city argues that the noise impact is "insignificant" because, even though traffic noise from the new development will make things worse, the noise level around the schools is already beyond the maximum level permitted under Department of Health guidelines. The court held that "the relevant issue to be addressed in the EIR ... is not the relative amount of traffic noise resulting from the project when compared to existing traffic noise, but whether any additional amount of traffic noise should be considered significant in light of the serious nature of the traffic noise problem already existing around the schools. We do not know the answer to this question but, more important, neither does the City and because the City does not know the answer, the information and analysis in the EIR regarding noise levels around the schools is inadequate.

Furthermore, the court said, the EIR fails to take into account that the significance of an activity may vary with the setting. "It does not necessarily follow, and the EIR does not establish, an increase in the decibel level from 72.1 to 75.4 would have the same effect on a hearer trying to study in a classroom as a hearer waiting for a bus on a street corner." (Ct. App. 2nd Dist.; 58 Cal.App.4th 1019, 68 Cal.Rptr.2d 367)


No cases identified.