No. 01-1154

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


GRAND CANYON TRUST,
Petitioner

v.

ADMINISTRATOR OF THE FEDERAL
AVIATION ADMINISTRATION,
Respondent


ON PETITION FOR REVIEW FROM A FINAL ORDER OF
THE FEDERAL AVIATION ADMINISTRATION

PETITIONER'S OPENING BRIEF


WESTERN ENVIRONMENTAL LAW CENTER
Robin Cooley
P.O. Box 1507
Taos, NM 87571
(505) 751-0351
Attorney for Petitioners


Scheduled for Oral Argument April 11, 2002



Table of Contents


Table of Authorities

Jurisdictional Statement

Statutes and Regulations

Statement of the Issues

Statement of the Case

Statement of Facts

Summary of Argument

Standard of Review

Argument

I. The FAA Violated NEPA by Failing to Consider the Cumulative Impacts of Aircraft Activity on Zion National Park

A. The FAA Failed to Consider the Cumulative Impact that Results When the Incremental Impact of the Airport is Added to the Existing Environmental Baseline

1. The FAA Focuses Only on the Incremental Impact of the Project
2. The FAA Failed to Include Non-St. George Flights or Air Tour Operations as Part of the Environmental Baseline

B. The FAA Violated NEPA by Failing to Consider Reasonably Foreseeable Future Actions that Will Result in Cumulative Impacts to Zion

C. The FAA's Argument that it is Not Required to Look at Actions that are Not Federally-funded or Actions that are Not Directly Related to the Relocation and Expansion of the St. George Airport is Contrary to Law

II. The FAA Violated NEPA by Failing to Consider Any Data Collected within Zion National Park by the National Park Service

III. The Highly Controversial Nature of the Environmental Impacts of the Relocation of the Airport Indicate that an EIS is Required

Relief


Table of Authorities


CASES

Allison v. Department of Transportation, 908 F.2d 1024, 1031 (D.C. Cir. 1990)

Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)

Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998)

Cabinet Mountains Wilderness/Scotchman’s Peak GrizzlyBears v. Peterson, 685 F.2d 678 (D.C. Cir. 1982)

City of Carmel-by-the-Sea v. United States Department of Transportation, 95 F.3d 892, 902 (9th Cir. 1996)

City of Grapevine v. Department of Transportation, 17 F.3d 1502, 1508 (D.C. Cir. 1994)

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

Defenders of Wildlife v. Babbitt, 130 F.Supp.2d 121 (D.D.C. 2001)

Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1182 (9th Cir. 1982)

Friends of the Earth. Inc. v. United States Army Corps of Engineers. 109 F.Supp.2d 30,43 (D.D.C. 2000)

Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1557 (2d Cir. 1992)

Fritiofson v. Alexander, 772 F.2d 1225, 1242-43 (5th Cir. 1985)

Fund for Animals v. Clark, 27 F. Supp.2d 8, 12 (D.D.C. 1998)

Fund for Animals v. Frizzell, 530 F.2d 982, 988 nA5 (D.C. Cir. 1975)

Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1993)

Hanly v. Keindienst, 471 F.2d 823, 831 (2nd Cir. 1972)

K1eppe v. Sierra Club, 427 U.S. 390 (1976)

Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989)

National Parks Conservation Association v. Babbitt, 241 F.3d 722, 736 n.14 (9th Cir. 2001)

Natural Resources Defense Council Inc. v. Hodel, 865 F.2d 288 (D.C. Cir. 1988)

North Slope Borough v. Andrus, 642 F.2d 589, 600-601 (D.C. Cir. 1980)

Robertson v. Methow Valley Citizens Council 490 U.S. 332, 349 (1989)

Rucker v. Willis, 484 F.2d 158, 162(4th Cir. 1973)

Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)

Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983)

Sierra Club v. United States Department of Transportation 753 F.2d 120, 126 (D.C. Cir. 1985)

Silva v. Lynn, 482 F.2d 1282, 1285 (lst Cir. 1973)


STATUTES

49 U.S.C. Subtitle VII, Parts A and B
49 U.S.C. § 46110
National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d
42 U.S.C. § 4321
42 U.S.C. § 4332(2)(C)
42 U.S.C. § 4342
National Park Overflights Act of 1987, Pub. L. No. 100-91, 101 Stat. 674 (1987)


REGULATIONS

40 C.F.R. § 1500.3
40 C.F.R. § 1508.3
*40 C.F.R. § 1508.7
40 C.F.R. § 1508.8
40 C.F.R. § 1508.9(a)
40 C.F.R. § 1508.9(b)
40 C.F.R. § 1508.25
40 C.F.R. § 1508.25(a)
40 C.F.R. § 1508.25(a)(2)
40 C.F.R. § 1508.27(b)
40 C.F.R. § 1508.27(b)(4)

*Authorities upon which we chiefly rely are marked with astericks.



JURISDICTIONAL STATEMENT

On January 30, 2001, the Regional Administrator for the Northwest Mountain Region of the Federal Aviation Administration (FAA) approved the Final Environmental Assessment (EA) for the St. George Municipal Airport and issued a Record of Decision (ROD) and Order. The ROD approved all agency actions necessary for implementation of the preferred alternative as identified in the Final EA -- the construction of a new airport in St. George, Utah. The Order contained the following "Right of Appeal": "This decision constitutes the Federal approval for the actions identified above . . . . Today's action is taken pursuant to 49 U.S.C. Subtitle VII, Parts A and B, and constitutes a Final Order of the Administrator, subject to review by the Courts of Appeals of the United States in accordance with the provisions of 49 U.S.C. 46110." App. at 12. This statement provides both the basis for the FAA's subject matter jurisdiction as well as this Court's jurisdiction to review the decision.

Pursuant to 49 U.S.C. Subtitle VII, Parts A and B, the FAA has authority over air commerce and safety as well as airport development and noise. This Court has jurisdiction under 49 U.S.C. 46110, which provides that "a person disclosing a substantial interest in an order issued by the . . . Administrator of the Federal Aviation Administration . . . may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit." Grand Canyon Trust and its members have a substantial interest in the order issued by the FAA because of the potential impacts to Zion National Park, an area that is utilized extensively by members of Grand Canyon Trust. Exhibit 1.

Under 49 U.S.C. 46110, a petition for review must be filed not later than 60 days after the order is issued. Grand Canyon Trust filed a timely petition for review with this Court on April 2, 2001.


STATUTES AND REGULATIONS

Pertinent statutes and regulations are attached as an addendum to this brief.


STATEMENT OF THE ISSUES

Petitioner, Grand Canyon Trust, is challenging the FAA's approval of the Final EA for the St. George Municipal Airport, the ROD, and FONSI signed on January 30, 2001. Grand Canyon Trust alleges that the FAA has violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370d, because it (1) failed to address the cumulative noise impacts to Zion National Park, (2) failed to consider data collected within Zion, and (3) failed to prepare an EIS in light of the highly controversial nature of the environmental impacts to Zion.


STATEMENT OF THE CASE

The FAA issued the Order, ROD, and FONSI, approving relocation of the St. George, Utah airport on January 30, 2001. App. at 3. Grand Canyon Trust appealed the order directly to the Court of Appeals for the District of Columbia Circuit pursuant to 49 U.S.C. 46110.


STATEMENT OF FACTS

On January 30, 2001, the FAA issued an Order approving the decision to construct a new airport in St. George, Utah. App. at 3. The FAA approved the Final EA for the airport and issued a FONSI. App. at 10, 11. The construction of a new airport in St. George, Utah has significant implications because of its proximity to Zion National Park (Zion), a protected area of incredible natural beauty recognized and treasured for its solitude.

As explained in the EA, St. George is seeking to relocate its airport in order to accommodate predicted increases in aircraft activity at the St. George airport and to allow for use by large commercial jets. App. at 27-46. Currently, the airport serves general aviation aircraft, air taxi service, commuter planes, corporate business jets, and some military aircraft. Commercial service is limited to two carriers who utilize turboprop planes that contain 30 passenger seats or less. App. at 27. However, St. George intends to expand the capability of the airport by adding a longer runway that can accommodate much larger commercial aircraft including Canadair Regional Jet (CRJ-200ER), the Embraer Amazon (EMB-145), the Boeing 737-500, and the Saab 2000. App. at 30. The city's goal is to have "an airport that can accommodate, in a safe and efficient manner, the unconstrained forecast aircraft activity, in both number and types, along with the unconstrained passenger enplanements." App. at 22. Because of topography constraints, the existing airport cannot be expanded. App. at 27-28. Therefore, the city of St. George is seeking FAA approval to relocate the airport to the preferred site, located approximately 5 miles southeast of the existing airport and approximately 25 miles from Zion. App. at 214.

Relocation of the airport, which will allow for significant increases in the number of flights and the introduction of larger commercial planes, has tremendous implications for the noise levels in Zion. The flight paths of many of the aircraft taking off and landing at the existing airport go directly over Zion. App. at 293-384. The flight path will remain over Zion if the airport is relocated to the preferred site. In addition, there will be a significant increase in the number of flights. If the new airport is built, commercial operations are expected increase from the 4,242 flights that utilized the existing airport in 1998 to approximately 10,220 in 2018. App. at 29.

The preliminary draft EA only contained a noise analysis based on noise contours in the immediate vicinity of the airport. However, in response to criticism from the NPS about the failure to consider the impacts to Zion, the FAA completed a supplemental noise study, which is included in the EA. App. at 95-110, 293-384. Based on the study, the EA concludes that there is little discernable increase in noise intrusion to the Park. App. at 95.

Federal agencies, including the National Park Service (NPS) and the Environmental Protection Agency (EPA), as well as organizations, including Grand Canyon Trust, the Sierra Club, and the National Parks Conservation Association, provided comments on the draft EA. App. at 486-752. These comments included complaints about the noise metrics used by the FAA, the failure to consider any monitoring of aircraft noise collected within Zion, and the failure to consider cumulative impacts. App. at 486-752. Although the FAA responded to comments, no changes were made to the supplemental noise analysis.

The comments provided by NPS are particularly important since NPS has primary management authority for Zion and strives to protect the natural quiet of the park as part of its mandate. The National Park Overflights Act of 1987, Pub. L. No. 100-91,101 Stat. 674 (1987), required NPS, with technical assistance from the FAA, to complete a study on the effects of aircraft flights over units of the National Park System.

The resulting report, Report on the Effects of Aircraft Overflights on the National Park System, recognized that NPS manages the "natural quiet" of parks as an important park resource. App. at 1094-1109. Natural quiet is defined as "the natural ambient sound conditions" found within a park. App. at 1097. "It refers to the absence of mechanical noise, but accepts the 'self-noise' of park visitors." Id. The report concludes that "[n]atural quiet is an important natural resource in units of the National Park System. The indigenous sound levels in national parks, are often considerably lower than sound levels commonly experienced in most residential areas. In such park areas of low ambient sound levels, even distant aircraft can be easily heard. Complete preservation of natural quiet under these circumstances can mean that aircraft must fly several miles from the area to be protected." App. at 1225.

In order to further the protection of the natural quiet, NPS recommended that NPS and FAA "jointly commit to resolving and mitigating airspace issues beginning with identified priority areas." App. at 1236. NPS identified Zion as one of nine parks where "maintaining or restoring the natural quiet is an immediate priority." App. at 1237. NPS developed certain criteria for determining which parks should receive priority in addressing airspace issues. Two of these criteria are particularly important for Zion. First, NPS wanted to prioritize areas where "[n]atural quiet is a central resource value to the park and its absence imperils the totality of the visitor experience, especially when the visitor comes to the park expecting peace and quiet and enjoyment of nature and natural sounds. For example, an experience in a canyon in southern Utah is not complete without the call of a canyon wren or the sounds of the wind." App. at 1240. Second, NPS wanted to include parks where "[w]ilderness has been designated on all or part of the park, and given characteristics of the terrain and sound attenuation, opportunities for solitude would be substantially diminished by overflights." Id. Ninety percent of Zion is proposed for designation as wilderness and the park contains extensive landscape features, such as canyons, that affect sound distribution. App. at 1348.

NPS strives to protect the natural quiet at Zion through its management practices. App. at 496. However, the FAA controls and regulates the airspace over the park. Without their cooperation and compliance with the law, NPS cannot adequately protect the park.


SUMMARY OF ARGUMENT

The FAA has violated NEPA by failing to adequately address the noise impacts that will result from the relocation of the St. George airport on Zion National Park. Grand Canyon Trust raises three primary concerns with the noise analysis contained in the EA.

First, the FAA does not adequately address the cumulative impacts of increased aircraft activity over Zion in violation of NEPA. In fact, the EA is void of any cumulative impacts section. The FAA fails to consider the total cumulative impacts that will result when the incremental impacts of the proposed airport are combined with the existing environmental baseline. The FAA also fails to address reasonably foreseeable future impacts of aircraft noise to Zion. Finally, the FAA provides a justification for its failure to consider cumulative impacts that is contrary to law. By definition, these omissions render the EA inadequate.

Second, the FAA has violated NEPA by failing to consider any data collected within the park by NPS on the impacts of overflights to Zion. This data provides the most relevant information about the actual noise impacts of aircraft activity on the park and must be considered by the FAA.

Third, the FAA has violated NEPA by failing to prepare an EIS in light of the highly controversial nature of the environmental impacts of the project. Based on the controversial nature aircraft noise impacts on national parks, the considerable concerns raised by other federal agencies, and the public concern for a treasured national park, NEPA requires the FAA to prepare an EIS.


STANDARD OF REVIEW

An agency's decision to issue a finding of no significant impact (FONSI) may be overturned if it is "arbitrary, capricious, or an abuse of discretion." Sierra Club v. United States Department of Transportation, 753 F.2d 120, 126 (D.C. Cir. 1985). However, "[j]udicial review of an agency's finding of 'no significant impact' is not . . . merely perfunctory as the court must insure that the agency took a 'hard look' at the environmental consequences of its decision." Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).


ARGUMENT

We have to earn silence, then, to work for it: to make it not an absence but a presence; not emptiness but repletion. Silence is something more than just a pause; it is that enchanted place where space is cleared and time is stayed and the horizon itself expands. In silence, we often say, we can hear ourselves think; but what is truer to say is that in silence we can hear ourselves not think, and so sink below our selves into a place far deeper than mere thought allows. In silence, we might better say, we can hear someone else think.[FN 1]

[FN 1] Pico Iyer, The Eloquent Sounds of Silence (1993). App. at 1011.

At issue in this case is the FAA's compliance with NEPA, 42 U.S.C. 4321-4370d. NEPA was enacted "to encourage productive and enjoyable harmony between man and his environment [and] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." Id. § 4321. This procedural statute "ensures that the agency . . . will have available, and will consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA works to prevent or eliminate damage to the environment by "requiring all federal agencies to take a 'hard look' at the environmental effects of their planned action." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989).

Under NEPA, federal agencies must prepare an Environmental Impact Statement (EIS) for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). Specifically, FAA Order 1050.1D, establishing FAA's NEPA compliance procedures, states that "an EIS shall be prepared if an FAA action . . . has a significant impact on noise levels of noise sensitive areas." App. at 871.

According to the Council on Environmental Qualityțs (CEQ) [FN 2] NEPA regulations, an agency must prepare an EIS if a project will or may have a significant effect on the environment. 40 C.F.R. 1508.3 (emphasis added); see also Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) ("If any 'significant' environmental impacts might result from the proposed agency action then an EIS must be prepared before the action is taken.") (emphasis added and removed). Thus, "[a]n EIS must be prepared if 'substantial questions are raised as to whether a project . . . may cause significant degradation of some human environmental factor. . . . [A] plaintiff need not show that significant effects will in fact occur.' It is enough for the plaintiff to raise 'substantial questions whether a project may have a significant effect' on the environment." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (quoting Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149-50 (9th Cir. 1998)).

[FN 2] The Council on Environmental Quality (CEQ) is an agency within the Executive Office of the President that has promulgated regulations to implement the mandates of NEPA. These regulations are "binding on all federal agencies." 42 U.S.C. 4342; 40 C.F.R. 1500.3. CEQ interpretations of NEPA are entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
In order to determine whether it is necessary to prepare an EIS, federal agencies may prepare an Environmental Assessment (EA). An EA must "provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. 1508.9(a). An EA must also include brief discussions of the following: (1) the need for the proposal, (2) a reasonable range of alternatives to the proposal, (3) the environmental impacts of the proposed actions and alternatives, and (4) a listing of agencies and persons consulted. Id. § 1508.9(b). The D.C. Circuit has adopted four criteria for reviewing an agency's decision not to prepare an EIS. "First, the agency must have accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a 'hard look' at the problem in preparing the EA. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum." Coalition on Sensible Transportation v. Dole, 826 F.2d 60 (D.C. Cir. 1987); Sierra Club v. United States Department of Transportation, 753 F.2d 120, 127 (D.C. Cir. 1985); Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983); Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678 (D.C. Cir. 1982).

In response to criticism from NPS, the FAA did accurately identify the relevant environmental concern of noise impacts from aircraft to Zion National Park. App. at 95. However, the FAA has not taken the requisite 'hard look' at this issue in violation of NEPA. First, the FAA failed to consider any cumulative impacts of the proposed action. Second, the FAA failed to consider the most relevant noise data that is availablețdata that has been collected on aircraft noise within the Park itself. Third, the FAA failed to prepare an EIS based on the highly controversial nature of the environmental impacts of the project. Therefore, the FAA cannot make a convincing case for its FONSI and its approval of the EA violates NEPA and is arbitrary and capricious.


I. The FAA Violated NEPA by Failing to Consider the Cumulative Impacts of Aircraft Activity on Zion National Park.

The FAA failed to analyze the cumulative impact of the proposed action on Zion in violation of NEPA. Under NEPA, an EA must include a discussion of the environmental impacts (or effects) [FN 3] of the proposed action. 40 C.F.R. 1508.9(b). Environmental impacts include direct, indirect, and cumulative impacts of any proposed action. 40 C.F.R. 1508.8. Thus, an EA must contain a discussion of cumulative impacts. Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60, 70 (D.C. Cir. 1987); Fritiofson v. Alexander, 772 F.2d 1225, 1242-43 (5th Cir. 1985), abrogated on other grounds, Sabine River Authority v. United States Department of the Interior, 951 F.2d 669 (5th Cir. 1992); Friends of the Earth, Inc. v. United States Army Corps of Engineers, 109 F. Supp.2d 30, 41-42 (D.D.C. 2000); Fund for Animals v. Clark, 27 F. Supp.2d 8, 12-14 (D.D.C. 1998).

[FN 3] The CEQ regulations make it clear that the terms "effects" and "impacts" are synonymous. 40 C.F.R. 1508.8.
Analysis of cumulative impacts is essential for determining whether it is necessary to prepare an EIS, which is the sole purpose of an EA. In order to determine whether an action is a major federal action that significantly affects the quality of the human environment, an agency must consider:
Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
40 C.F.R. 1508.27(b); Friends of the Earth, 109 F. Supp.2d at 43 ("[T]he significant cumulative impacts of the multiple casino projects along the coast . . . warrant the preparation of an EIS."); Fund for Animals, 27 F. Supp.2d at 12. Similarly, FAA Order 1050.1D, establishing the agency's policy for compliance with NEPA, specifies that "[i]n determining whether an environmental statement is required for a proposed Federal action, it is necessary to consider the overall cumulative impact of the proposed action." App. at 870. The FAA Order makes it clear that "[a]n EIS is required not only when the impact of the proposed project itself is significant, but also when the cumulative impact of the proposed project and other past, present and reasonably foreseeable future actions is significant." Id. Thus, if the FAA determines that cumulative impacts result in a significant effect on the environment, it must prepare an EIS.

Cumulative impact is defined as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. 1508.7.

The St. George EA completely fails to consider cumulative impacts. The section titled țCumulative Impactsț consists, in its entirety, of the following sentence: "There are no known factors that could result in cumulative impacts as a result of the proposed St. George Replacement Airport." EA, at 132. There is no further discussion of cumulative impacts anywhere in the EA.

The noise analysis itself also disregards cumulative impacts. First, the FAA failed to consider the total impact that results from the incremental impact of the project when added to the environmental baseline. Second, the FAA failed to consider reasonably foreseeable future actions that will contribute to the cumulative impact of aircraft activity on Zion. In addition, the justification provided by the FAA for failing to consider cumulative impacts is contrary to law. Therefore, the FAA has not taken a hard look at the noise impacts to Zion and its approval of the EA is arbitrary and capricious.


A. The FAA Failed to Consider the Cumulative Impact that Results When the Incremental Impact of the Airport is Added to the Existing Environmental Baseline

The FAA failed to consider the actual cumulative impact of the project by failing to consider the incremental impact of the airport when added to the environmental baseline that exists at Zion.

As stated above, cumulative impacts have been defined by CEQ as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. 1508.7.

In order to meet the requirements of this regulation, the agency must first look at the țincremental impactț of the project. Coalition on Sensible Transportation, 826 F.2d at 70. Next, the agency must add the incremental impact of the project to the environmental baseline. The environmental baseline includes all past and present actions that impact the affected area, regardless of what agency or person is responsible for those actions. As this Court has stated, "[i]t makes sense to consider the 'incremental impact' of a project for possible cumulative effects by incorporating the effects of other projects into the background 'data base' of the project at issue." Id.; Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) (finding that not only did the agency have to consider "the combined impact of [the project] with other activities in that area," but it also had to consider inter-regional impacts); City of Carmel-by-the-Sea v. United States Department of Transportation, 95 F.3d 892, 902 (9th Cir. 1996); Fritiofson, 772 F.2d at 1245; Fund for Animals, 27 F. Supp.2d at 12-14. By combining the incremental impact with the environmental baseline, the agency can determine what the total impacts to the area will be.

It is clear that the total impacts may be significant, even where the incremental impacts are not great. As stated by the Court of Appeals for the Second Circuit:

Although the existing environment of the area which is the site of a major federal action constitutes one criterion to be considered, it must be recognized that even a slight increase in adverse conditions that form an existing environmental milieu may sometimes threaten harm that is significant. One more factory polluting air and water in an area zoned for industrial use may represent the straw that breaks the back of the environmental camel. Hence the absolute, as well as comparative effects of a major federal action must be considered.
Hanly v. Keindienst, 471 F.2d 823, 831 (2d Cir. 1972). The FAA has failed to consider total cumulative impacts in two significant ways. First, the FAA consistently attempts to minimize the impact of the project by focusing only on the incremental impact of the project. Second, the FAA fails to include non-St. George flights or air tour operations as part of the environmental baseline.


Continued in Part Two