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 REPLY 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

INTRODUCTION

ARGUMENT

I. The FAA Clearly Failed to Consider Cumulative Noise Impacts

A. The FAA’s Argument that it is only Required to Consider the Incremental Impact of the Project is Contrary to Law.
B. The FAA's Cumulative Impacts Analysis Should Not Be Held to a Lesser Standard
C. The FAA has Completely Failed to Consider Cumulative Impacts From Aircraft that do not Utilize the St. George Airport

1. Cross-country Overflights
2. Air Tour Operations
3. Airport Enhancement Projects
II. The FAA Failed to Consider Relevant NPS Data

III. The Highly Controversial Nature of the Project Renders it Significant under NEPA

IV. This Court May Order the FAA to Prepare an EIS

CONCLUSION


Table of Authorities


CASES

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

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

City of Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142 (9th Cir. 1997)

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

Custer County Action Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001)

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

Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000)

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

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)

National Audubon Society v. Hoffman, 132 F.3d 7 (2d Cir. 1997)

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)

Save Our Heritage, Inc. v. FAA, 269 F.3d 49 (1st Cir. 2001)


REGULATIONS

40 C.F.R. 1508.7
40 C.F.R. 1508.25(a)(1)
40 C.F.R. 1508.27(b)
40 C.F.R. 1508.27(b)(4)
40 C.F.R. 1508.27(b)(7)



INTRODUCTION

In its Brief for Respondent (“FAA Brief”), the FAA provides inadequate justification for its argument that it took a hard look at the noise impacts to Zion National Park. Contrary to the FAA’s argument, the FAA failed to address the cumulative noise impacts of the project, failed to consider important noise monitoring data collected within Zion, and failed to consider the highly controversial nature of the environmental impacts of the project. Petitioners Grand Canyon Trust (“GCT”) reply as follows:


ARGUMENT

I. The FAA Clearly Failed to Consider Cumulative Noise Impacts.

The FAA makes three arguments in support of its position that it took a hard look at the cumulative noise impacts to Zion. The FAA argues: (1) that it is only required to look at the incremental impact of the project and not the cumulative impact, (2) that the cumulative impacts analysis in this EA should be held to a lesser standard, and (3) that it did consider the impacts of actions “unrelated” to the St. George airport. As described in detail below, the FAA’s arguments are contrary to law, inconsistent with evidence in the record, and entirely without merit.


A. The FAA’s Argument that it is only Required to Consider the Incremental Impact of the Project is Contrary to Law.

The FAA mistakenly argues that NEPA only requires it to consider the “incremental impact” of the project when considering cumulative impacts. The FAA states that “it is the significance of the incremental impact of the project, not the significance of the total impacts from past, present, and future related and non-related actions, that triggers the requirement for an EIS.” FAA Brief, at 29. This assertion is contrary to the applicable law.

The CEQ regulations implementing NEPA could not be more clear about this issue. Under the regulations, cumulative impact is defined as the “incremental impact of the proposed action when added to other past, present, and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7 (emphasis added). Thus, the regulation clearly spells out that cumulative impacts encompass much more than just the incremental impact of the project. Natural Resources Defense Council v. Hodel, 865 F.2d 288 (D.C. Cir. 1988); Coalition on Sensible Transportation v. Dole, 826 F.2d 60, 70 (D.C. Cir. 1987); City of Carmel-by-the-Sea v. U.S. Department of Transportation, 123 F.3d 1142, 1160-62 (9th Cir. 1997); Fritofson v. Alexander, 772 F.2d 1225, 1245 (5th Cir. 1985); Defenders of Wildlife v. Babbitt, 130 F. Supp.2d 121, 136 (D.D.C. 2001); Fund for Animals v. Clark, 27 F. Supp.2d 8, 12 (D.D.C. 1998).

Similarly, in determining whether an EIS is necessary, federal agencies must consider “[w]hether 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.” 40 C.F.R. § 1508.27(b). The agency’s own NEPA policy states: “An 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.” FAA Order 1050.1D; App. at 870. Thus, the FAA’s argument that it is only the incremental impact that determines whether an EIS is required is clearly contrary to the CEQ regulations and the FAA’s own NEPA policy.

Indeed, requiring consideration of only the incremental impacts of a project would completely nullify the cumulative impacts requirement. The whole point of cumulative impacts analysis is to recognize that projects are not implemented in a vacuum. CEQ has made this point very clear in its guidance document on cumulative impacts:

"The effects of a proposed action on a given resource, ecosystem, and human community include the present and future effects added to the effects that have taken place in the past. Such cumulative effects must also be added to effects (past, present, and future) caused by all other actions that affect the same resource."
Council on Environmental Quality, Executive Office of the President, Considering Cumulative Effects Under the National Environmental Policy Act 8 (1997) (“Considering Cumulative Effects”) <http://ceq.eh.doc.gov/nepa/ccenepa/ccenepa.htm> (emphasis added).

Therefore, a meaningful cumulative impacts analysis must identify: “(1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions–past, proposed, and reasonably foreseeable–that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.” Fritofson, 772 F.2d at 1245 (citing Cabinet Mountains Wilderness/Schotman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 683-84 (D.C. Cir. 1982)); see also Natural Resources Defense Council 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, 123 F.3d at 1160 (requiring consideration of past projects in the area as well as planned future projects); Fund for Animals, 27 F. Supp.2d at 12 (An EIS is required “where several separate actions may have a cumulatively significant effect on the environment”). Thus, the FAA’s argument that it must only consider the incremental impact of the project is not only contrary to the applicable law, but it also defeats the very purpose of conducting a cumulative impacts analysis.

The record in this case is replete with evidence that the noise environment of Zion, which has been identified by the FAA as part of the affected environment for the project, is impacted in many different ways from air traffic. There are the present impacts from the existing airport, non-St. George flights, and air tour operations. The replacement airport will add to these existing impacts. In addition, there will be impacts due to potential increases in non-St. George flights. By focusing only on the incremental impact of the project, the FAA effectively ignores the cumulative impacts of the project and defeats the purpose of the analysis. The FAA relies on the CEQ regulations pertaining to a no-action alternative to support its argument that the FAA is justified in considering only the incremental impact of the project. FAA Brief, at 31. In doing so, the FAA misses the point. This case is not a challenge to the consideration of alternatives in the EA or a disagreement over what is or is not part of the no-action alternative. Rather, it is a challenge to the FAA’s failure to consider the cumulative impacts of the project on Zion.

As a fallback position, the FAA argues that it did consider more than just the incremental impact of the project. FAA Brief, at 33. However, the FAA cannot point to any substantial discussion of the cumulative impact of the project in the record. Because the EA contains absolutely no discussion of cumulative impacts in the “Cumulative Impacts” section, the FAA points to conclusory statements pulled from various parts of the record. For example, the FAA points to parts of the record that describe the impacts from the new airport as “very low” or “very low values.” FAA Brief, at 33. However, there is no analysis or extensive discussion of cumulative impacts associated with these statements. Without question, conclusory statements about cumulative impacts are insufficient and do not constitute the “hard look” required under NEPA. See Natural Resources Defense Council, 865 F.2d at 298 (“[C]onclusory remarks [in a cumulative impacts analysis] do not equip a decisionmaker to make an informed decision about alternative courses of action or a court to review the Secretary’s reasoning.”); Defenders of Wildlife, 130 F. Supp.2d at 139 (“[W]hile the EIS contains section headed ‘Cumulative Effects’ nothing in the EIS provides the requisite cumulative analysis.” (internal formatting omitted)); Friends of the Earth, Inc. v. United States Army Corps of Engineers, 109 F. Supp.2d 30, 42 (D.D.C. 2000). Under NEPA, the FAA must affirmatively address cumulative impacts and provide adequate analysis rather than attempting to make up for the lack of a Cumulative Impacts section with conclusory statements scattered throughout the record.


B. The FAA’s Cumulative Impacts Analysis Should Not Be Held to a Lesser Standard.

The FAA makes the argument that it is held to a lesser standard for its cumulative impacts analysis because: (1) this is an EA and not an EIS, and (2) the actions are “not related” to the St. George airport. These arguments are without merit.

First, the FAA argues that the cumulative impacts analysis in an EA should be held to a lesser standard than in an EIS. While an EA is not required to be as extensive of a document as an EIS, the whole purpose of an EA is to determine whether an action will have significant impacts, including cumulatively significant impacts. 40 C.F.R. § 1508.27(b). Indeed, the cumulative impact analysis is a crucial part of an EA. As CEQ has recognized, “[g]iven that so many more EAs are prepared than EISs, adequate consideration of cumulative effects requires that EAs address them fully.” Considering Cumulative Effects, at 4. Similarly, the United States Court of Appeals for the Fifth Circuit has stated that, “when deciding the potential significance of a single proposed action (i.e., whether to prepare an EIS at all), a broader analysis of cumulative impacts is required.” Fritiofson, 772 F.2d at 1243; see also Friends of the Earth, 109 F. Supp.2d at 42 (“[A]t the stage of an environmental assessment where the agency is affirmatively finding that there are no significant impacts of the federal action with only summary investigation, some analysis is especially necessary to allow the Court to review the agency’s finding.”); cf. Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 1178 (9th Cir. 1982) (“The EA at issue here failed to address certain crucial factors, consideration of which was essential to a truly informed decision whether or not to prepare an EIS.”). Thus, the cumulative impacts analysis in an EA is critical and should not be held to a lesser standard.

Second, the FAA argues that it should be held to a lesser standard because activities that should have been consider in a proper cumulative impacts analysis–including non-St. George flights and air tour operations–are not “related to” the St. George airport. FAA Brief, at 37. The FAA points to the fact that an EIS is required when “the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.28(b)(7) (emphasis added). Based on this language, the FAA argues that “unrelated actions” do not deserve much analysis in an EA. FAA Brief, at 37. The FAA then states that operations that do not come directly from the St. George airport are unrelated actions, with no explanation of what constitutes a related action. FAA Brief, at 37-38.

However, a proper analysis of whether actions are related should focus on each action’s impact on the “affected environment.” As stated by CEQ, “[a]nalyzing cumulative effects requires focusing on the resource, ecosystem, and human community that may be affected.” Considering Cumulative Effects, at 8. Therefore, a proposed action is related to other actions where the impacts from either will “have cumulative effects on the same ecosystem.” Fritiofson, 772 F.2d at 1247 (“[The proposed action] is related, in the sense that it may affect the same estuarine environment, to other actions on West Galveston Island. . . . The record, moreover, is replete with evidence of other actions on West Galveston Island–past, present, proposed, and future–that may affect the same area that [the proposed action] will affect.” (emphasis added)); City of Carmel-by-the-Sea, 123 F.3d at 1160 (finding that the EIS failed to “provide any useful analysis of the cumulative impact of past, present, and future projects and the [proposed project] on the wetlands” (emphasis added)); Defenders of Wildlife, 130 F. Supp.2d at 136-39. In this case, the FAA and NPS have identified Zion as part of the affected environment of the project based on noise impacts. Therefore, the FAA must consider the cumulative impact of other aircraft operations that also have an impact on the natural quiet of Zion.

In making the determination of whether other actions will affect the same environment as the proposed project, it is particularly important to consider the views of other federal agencies. Fritiofson, 772 F.2d at 1247. NPS pointed out this deficiency of the EA to the FAA stating that “[w]e are especially concerned about the project’s cumulative impacts of park resources and visitors when combined with the other proposed airport projects in the region (e.g. dEA page 29), associated flight patterns, growth in operations, and other airspace changes.” App. at 495. This comment made it clear that NPS believed that non-St. George flights were an important consideration because they cumulatively affect the noise environment of Zion.

Despite these concerns, the FAA refuses to consider the impacts from non-St. George flights. The FAA relies on Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 431 (10th Cir. 1996), for the proposition that unrelated actions should be held to a lesser standard. However, this case is easily distinguishable because there was no showing in that case that the other projects Petitioners argued should be considered as part of the cumulative impacts analysis were related to the proposed action in the sense that they would have a similar environmental impact on the same affected environment.

The FAA also relies on Custer County Action Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001) for the proposition that related actions must be “dependent” on the proposed action. FAA Brief, at 40. The Custer Country court states that “Commercial and non-military flight activity is neither related to nor dependent on the Initiative–Petitioners make no showing such activities, and thus any noise impacts from such activities, are likely to increase as a result of the Initiative. As such, those activities need not be analyzed as direct or indirect cumulative impacts caused by the Initiative.” 256 F.3d, at 1037 (emphasis added). However, in making this conclusion, the court completely confuses the difference between direct, indirect, and cumulative impacts set out by the CEQ regulations.

Cumulative impacts are something separate and distinct from direct or indirect impacts. 40 C.F.R. § 1508.8 (“Effects includes ecological . . . aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.” (emphasis added)). While both direct and indirect environmental impacts “are caused by the action,” cumulative impacts are not. Id.; 40 C.F.R. § 1508.7. Rather, cumulative impacts are those “which result 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.” 40 C.F.R. § 1508.7. Thus, it is not necessary for cumulative impacts to be “caused by” or “dependent on” the proposed action.


C. The FAA has Completely Failed to Consider Cumulative Impacts From Aircraft that do not Utilize the St. George Airport.

As a default position, the FAA argues that it did consider cross-country overflights, air tour operations, and flights from other airports and determined that they would not have significant noise effects on Zion. FAA Brief, at 38. However, the record clearly shows that the FAA did not consider these impacts.


1. Cross-country Overflights

The FAA claims that it adequately considered cross-country overflights by simply stating that there are approximately 250-300 aircraft that pass over Zion on a daily basis. There is absolutely no discussion of the noise impacts of these aircraft or the cumulative impact of the St. George flights when added to this existing environment. Instead, the EA simply uses this large number to argue that the incremental impact of the St. George airport is not that great. Once again, the EA’s focus is only on the incremental impact, stating that the “additional aircraft associated with the construction of the replacement airport contributes approximately 2% of the total IFR aircraft flights over or near the park.” App. at 99. However, the EA fails to address the total IFR aircraft flights that will utilize the replacement airport or the percentage of the total flights that the replacement airport will constitute.

The FAA faults GCT for suggesting that the incremental impact from additional flights attributable to the replacement airport could be the straw that breaks the camels back, but the FAA provides no discussion of the impact of these flights or their significance. Instead the FAA argues that “[i]mplicit in the FAA’s analysis is its view that noise impacts from planes flying at high cruise altitudes are not significant.” FAA Brief, at 39. There is no explicit discussion of this view anywhere in the EA. The FAA states that EAs are not required for decisions affecting air traffic operations above 3,000 feet. However, the extent of an environmental analysis may depend on the unique nature of the impacted environment. See, e.g., Fritiofson, 772 F.2d at 1246. The FAA has clearly made an exception with respect to the replacement airport, where it analyzed the impact of air traffic on Zion at levels exceeding 3,000 feet. It is apparent that in this case the FAA, at the urging of NPS, recognized the special significance of Zion as well as the potential for impacts that in other settings might not be considered relevant or significant.

NPS has clearly stated that cross-country overflights pose an increasing threat to the natural quiet of national parks. NPS’s Report on the Effects of Aircraft Overflights on the National Parks System (“Report to Congress”), transmitted to Congress in response to the National Park Overflights Act of 1987, Pub. L. No. 100-91, 101 Stat. 674 (1987), recognizes that commercial aircraft have noticeable impacts on parks. See App. at 1070-93, 1105-07 (“The extreme quiet in many parks coupled with typical tour and commercial aircraft source levels require very large distances between the aircraft and the visitors to prevent audibility.”). In a paper titled Measurement and Description of Enroute Aircraft Sounds Within National Parks, the authors Robin T. Harrison and Paul H. Dunholter state: “Aircraft noise from . . . enroute transient aircraft (commercial, military and general aviation) have become a source of disturbance to park visitors.” App. at 989. The EA for the replacement airport even recognizes that flights at cruise altitude “are noise events that are higher than the background natural quiet that is present without manmade noise sources.” App. at 76. However, the FAA never analyzes the impact of these additional noise events in combination with the noise caused by the replacement airport.

The FAA argument that the implication of GCT’s position is that “every capacity-enhancing airport development project anywhere in the country must be analyzed in terms of its impact on Zion National Park because any enhanced traffic may increase the number of cruise-altitude overflights over Zion” completely mischaracterizes GCT’s position. FAA Brief, at 40 n.23. GCT’s position is that when an agency has identified a national park like Zion as part of the “affected environment” that the project will impact, the agency must consider the proposed project in light of other “past, present, and reasonably foreseeable future actions” that also impact that area.


2. Air Tour Operations

Next, the FAA contradicts its statement that “unrelated” actions were considered and determined not to have significant impacts, FAA Brief at 38, by admitting that there was no consideration of air tour operations. The FAA claims that “[t]here is no factual support in the record for the Trust’s assertion that there are ongoing commercial air tour operations overflying Zion National Park.” FAA Brief, at 41. This statement is simply not true. NPS’s Report to Congress clearly recognizes that air tour operations are a significant issue at Zion: “The NPS recommends that FAA develop an operational rule to regulate air tour operations where they have or may have adverse effects on national parks. . . . . Areas where this rule is most needed include . . . Zion National Park.” App. at 1238-39 (emphasis added). In addition, in a paper titled A Study to Define the Effects of Aircraft Overflights on Parks and Wilderness Areas, presented at the Sixth Conference on Research and Resource Management in the National Parks and Equivalent Reserves in 1990, NPS employees Richard L. Ernenwein and Wesley R. Henry identify Zion as a park where commercial sightseeing tours are offered. App. at 1006 (Table 1). Both of these documents are part of the administrative record prepared by the FAA.

The FAA also argues that GCT has provided no evidence to suggest that construction of the new airport will lead to new air tour operator issues. FAA Brief, at 42. In addition, the FAA argues that air tour operations should be considered as part of the Air Tour Management Plan that will be developed for Zion, under the National Parks Air Tour Management Act of 2000, Pub. L. No. 106-181. However, once again, these statements ignore the fact that the FAA’s cumulative impacts analysis must consider “past, present, and reasonably foreseeable future actions.” Air tour operations are part of the existing and reasonably foreseeable future environment that must be considered.


3. Airport Enhancement Projects

Finally, the FAA also contradicts its statement that it considered “unrelated” actions by stating that it did not consider potential impact from airport developments in the region. The FAA objects to the fact that there is nothing in the record that GCT can point to in order to demonstrate that “other airport enhancement projects in the region are likely to materialize.” FAA Brief, at 41. However, two conservation groups raised the issue of proposed airport projects in Las Vegas (airport runway extension), Mesquite (new airport), and Cedar City (new airport). App. at 570, 574. In response, the FAA seems to recognize that projects are in the works by making reference to them. App. at 589. However, the FAA states that the “purpose and need of the St. George Replacement airport is different than that of other nearby communities” and that “[e]ach of these airports function independently and serve different markets.” App. at 589. The FAA also argues in its brief that airport improvement projects have “independent utility” and do not have to be considered in the EA. FAA Brief, at 41. However, as discussed above, the relevant question is whether the projects are reasonably foreseeable, 40 C.F.R. § 1508.7, and whether they will cause additional flights to pass over Zion. Despite the fact that these issues were raised in the comments on the draft EA, the FAA did not address them.

It is the responsibility of the agency to consider whether actions, particularly those raised in the comment period, are reasonably foreseeable. As stated by CEQ, “the analyst should use the best available information to develop scenarios that predict which future actions might reasonably be expected as a result of the proposal.” Considering Cumulative Effects, at 19. Reasonable forecasting by federal agencies is an implicit requirement of NEPA and part of the agency’s responsibility. Sierra Club v. Sigler, 695 F.2d 957, 970 (5th Cir. 1983) (“Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’” (quoting Scientists’ Institute for Public Information v. Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C. Cir. 1973))). The failure of the FAA to consider these projects, or even consider whether they were reasonably foreseeable, is an abdication of its duty under NEPA.


II. The FAA Failed to Consider Relevant NPS Data

The FAA’s argument that they took a hard look at the noise impacts to Zion is also contradicted by its failure to consider relevant NPS monitoring data. In commenting on the draft EA, NPS raised the issue of monitoring occurring within Zion stating “[a]coustic data collected at Zion National Park appears not to have been considered at all.” App. at 496. Measurements and recordings of aircraft flying over Zion, which are valuable for characterizing the soundscape and intrusions by individual aircraft overflights, have been conducted in the park starting in mid-October of 2000. Initial reports of this monitoring was reported to NPS in mid-December 2000, a month and a half before the final EA was published. This data is extremely important because it was collected within the boundaries of the park. However, the FAA ignored this crucial information.

The FAA argues that it is not obligated to consider this data because neither the NPS or GCT provided the results to the FAA. However, the responsibility for complying with NEPA lies with the federal agency and not with the Petitioners. See, e.g., City of Carmel-by-the Sea, 123 F.3d at 1161 (“Compliance with [NEPA] is a primary duty of every federal agency; fulfillment of this vital responsibility should not depend on the vigilance and limited resources of environmental plaintiffs.” (quoting City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975))); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 558-59 (9th Cir. 2000). This responsibility does not end just because the comment period on the draft document has expired.

The FAA also argues that “the results of the study as reported in the Foch affidavit hardly demonstrate that the FAA’s conclusion of no significant impact was arbitrary and capricious.” FAA Brief, at 46. However, this argument once again attempts to place the burden of complying with NEPA on the Petitioners instead of the agency. The fact that the FAA failed to even consider very relevant data in making its finding of no significant impact is the arbitrary and capricious action.


III. The Highly Controversial Nature of the Project Renders it Significant Under NEPA.

In its brief, the FAA misapplies NEPA’s “highly controversial” standard. The FAA argues that it is not required to prepare an EIS based on the highly controversial nature of the environmental impacts at issue because the project does not meet a “threshold of significance.” FAA Brief, at 48. In support, the FAA cites FAA Order 5050.4A 47f(4), which states: "If the proposal is highly controversial with regard to an impact that is determined to be significant according to thresholds in paragraphs 47e and 85, an environmental impact statement is required. Otherwise, no further analysis is needed and a finding of no significant impact may be prepared." App. at 804. This assertion is incorrect.

The FAA’s approach under 47f(4) is completely inconsistent with the plain language of the CEQ regulations. In order to determine whether a proposed project is significant and requires an EIS, the agency must consider “[t]he degree to which the possible effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). In other words, controversy over environmental impacts is a factor that must be considered in order to determine whether a project is significant, not something that should be considered once the agency has already determined that the project is significant. National Parks and Conservation Ass’n v. Babbitt, 241 F.3d 772, 736 (9th Cir. 2001) (finding that the action was significant based on controversy); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212-13 (9th Cir. 1998) (same); Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 1182 (9th Cir. 1982) (same); Friends of the Earth, Inc. v. U.S. Army Corps of Engineers, 109 F. Supp.2d 30, 43 (D.D.C. 2000). If the agency has already determined that impacts are significant, an EIS will be required regardless of whether the action is highly controversial. Therefore, the FAA’s approach effectively removes consideration of the controversial nature of the impacts of a project as a part of evaluating significance in violation of the CEQ regulations.

In this case, the proposed project is clearly highly controversial. The proposed replacement airport has generated a tremendous amount of concern from other agencies, including NPS and EPA, conservation groups, as well as the public. All of these parties have raised concerns about the size and nature of the noise impacts of the project on Zion and the failure of the FAA to adequately address that issue. GCT Opening Brief, at 29-31. For example, NPS raised substantial questions about the adequacy of the analysis and provided comments that undermined the FAA’s analysis, particularly with respect to cumulative impacts. The highly controversial nature of the impacts of the replacement airport on Zion, therefore, warrants the preparation of an EIS. National Parks and Conservation Ass’n v. Babbitt, 241 F.3d at 736; Blue Mountains Biodiversity Project, 161 F.3d at 1212-13; Foundation for North American Wild Sheep, 681 F.2d at 1182; Friends of the Earth, 109 F. Supp.2d at 43.

The FAA objects to the failure of NPS and others to introduce expert reports or materials contradicting its analysis. FAA Brief, at 50. However, through their comments, NPS and others pointed out the deficiencies of the FAA’s analysis and cast serious doubts on the reasonableness of the agency’s conclusions. Providing comments that raise serious questions about the agency’s approach is all that is required. See National Parks and Conservation Ass’n, 241 F.3d at 736 (“More important, to the extent the comments urged that the EA’s analysis was incomplete, and the mitigation uncertain, they cast substantial doubt on the adequacy of the Parks Service’ s methodology and data.”); Friends of the Earth, 109 F. Supp.2d at 43 (“[T]hree federal agencies and one state agency have all disputed the Corps evaluation of the environmental impacts of the casinos.”). Thus, the controversy about the environmental impacts can be raised through comments without the introduction of expert reports.

In short, the FAA ignores the fact that the impacts of this action are extremely controversial because they occur in Zion, which has been identified as one of nine national parks in the nation in need of priority attention with respect to protection of the natural quiet. App. at 1237. Over 90% of the park has been proposed for wilderness designation. App. at 1348. It is not surprising that this special place has engendered such controversy from other federal agencies, conservation groups, and the public. This controversy about the impacts of the action necessitates the preparation of an EIS.


IV. This Court May Order the FAA to Prepare an EIS.

Contrary to what the FAA argues in its Brief, this Court unquestionably has the authority to require the FAA to prepare an EIS in this case. It is well established that where a court determines based on the record that a project may have significant impacts, it may order the preparation of an EIS. See Fritiofson, 772 F.2d at 1238; National Audubon Society v. Hoffman, 132 F.3d 7, 18 (2d Cir. 1997). In order to “prevail on a claim that [a federal agency] violated its statutory duty to prepare an EIS, 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, 161 F.3d at 1212 (quoting Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)); see also National Audubon, 132 F.3d at 18 (“[A] party challenging the agency’s decision not to prepare an EIS must show only that there is a substantial possibility that the action may have a significant impact on the environment.”).

Therefore, the determination of the proper remedy will depend on the Court’s view of the merits. If the court finds that GCT has shown that the cumulative impacts of the project may be significant or if the court finds that GCT has shown that the highly controversial nature of the impacts may be significant, the Court may order the FAA to prepare an EIS. National Parks and Conservation Association, 241 F.3d at 737 (finding that “an EIS is mandated by the ‘controversy,’ as well as by the ‘uncertainty,’ factor of the intensity provision”); Friends of the Earth, 109 F. Supp.2d at 42-44 (finding that the agency was required to prepare an EIS because the cumulative impacts and the highly controversial nature of the action were significant by definition). If, however, the court does not make a finding of significance, the appropriate remedy would be remand to the agency.


CONCLUSION

For the reasons set forth above, the Court should find that the FAA has violated NEPA.


Respectfully submitted this ______ day of February, 2002,



____________________________________
Robin Cooley
WESTERN ENVIRONMENTAL LAW CENTER
323 Los Pandos
P.O. Box 1507
Taos, NM 87571
Phone: (505) 751-0351
Fax: (505) 737-1775