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Barnes v. Federal Aviation Administration

United States Court of Appeals, Ninth Circuit

August 3, 2017

Michelle Barnes, an individual; Patrick Conry, an individual; Blaine Ackley, an individual; David Barnes, an individual; James Lubischer, an individual; Oregon Aviation Watch, an Oregon non-profit organization, Petitioners,
Federal Aviation Administration, Respondent; Port of Portland, Intervenor-Respondent.

          Argued and Submitted October 5, 2016 Portland, Oregon

         On Petition for Review of an Order of the Federal Aviation Administration

          Sean Malone (argued), Eugene, Oregon, for Petitioners.

          Robert Lundman (argued), Maggie B. Smith, and Andrew C. Mergen, Attorneys, Appellate Section; Sam Hirsch, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Patricia Deem, Office of Regional Counsel, N.W. Mountain Division, Federal Aviation Administration; Eric Elmore and Daphne Fuller, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C.; for Respondent.

          Jason T. Morgan (argued) and Beth S. Ginsberg, Stoel Rives LLP, Seattle, Washington, for Intervenor-Respondent.

          Before: Sidney R. Thomas, Chief Judge, and Richard R. Clifton and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY [*]

         Federal Aviation Administration

         The panel denied a petition for review of a decision of the Federal Aviation Administration ("FAA"), finding that a new runway project at Hillsboro Airport near Portland, Oregon, would have no significant impact on the environment ("FONSI").

         The panel held that in adopting the supplemental environmental assessment, issuing the FONSI, and concluding that the project at Hillsboro Airport complied with the requirements of the Airport and Airway Improvement Act, the FAA did not act in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance of law.


          CLIFTON, Circuit Judge:

         This case involves a new runway at Hillsboro Airport, a general aviation airport near Portland, Oregon. We previously considered a challenge to the original environmental assessment done for the new runway project in Barnes v. United States Department of Transportation, 655 F.3d 1124 (9th Cir. 2011) ("Barnes I"). Although we rejected many of the arguments raised in the prior petition for review, we granted the petition and remanded for further consideration based primarily on concern for the possibility that the new runway would result in a larger number of takeoffs and landings at the airport, a possibility we concluded had not been adequately addressed.

         Following remand, a supplemental environmental assessment was prepared. It concluded that the new runway would cause at most a small increase in air traffic and also determined that, even if the runway did induce a growth in traffic, any impact on air quality would be immaterial. The Federal Aviation Administration accepted that assessment and issued a finding that the new runway would have no significant impact on the environment. Petitioners, five individuals and a non-profit organization, oppose the new runway and challenge the FAA's conclusions. We have jurisdiction pursuant to 49 U.S.C. § 46110(a), and we deny their petition for review.

         I. Background

         Hillsboro Airport ("HIO") is located in the city of Hillsboro in Washington County, Oregon, twelve miles west of downtown Portland. It is owned by Intervenor-Respondent Port of Portland. In terms of airport operations (the sum of takeoffs and landings), it became the busiest airport in Oregon in 2008, surpassing Portland International Airport.[1]

         In 2005 the Port undertook to develop a Master Plan for HIO. Among other things, the Plan proposed construction of a new third runway, which would run parallel to the existing primary runway and would be used by small general aviation aircraft. The Plan concluded that adding the new runway would be "the best means available for reducing delays and the undesirable conditions that occur due to delay." The new runway would also allow for separating small, single-engine propeller planes from larger propeller planes and jet aircraft. The modifications were to be funded in part by FAA grants.

         The use of FAA funds meant that the environmental effects of the project had to be considered. See 40 C.F.R. § 1508.18(a). The Port produced an environmental assessment ("EA") for the FAA, and the FAA issued a finding of no significant impact ("FONSI") in 2010. See 40 C.F.R. § 1508.13. That finding relieved the FAA of the obligation to have a more detailed environmental impact statement prepared. See 40 C.F.R. § 1501.4(e).

         Opponents of the new runway, including three of the petitioners in this action, petitioned this court for review, arguing, among other things, that the EA did not meet the requirements of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. Barnes I, 655 F.3d at 1130-31. We rejected many of the opponents' arguments, but we granted the petition and remanded for further consideration. Id. at 1143. Although the EA concluded that the new runway would not increase air traffic at the airport, our decision concluded that the EA was inadequate because the FAA could not "point to any documents in the record that actually discusse[d] the impact of a third runway on aviation demand at HIO." Id. at 1136. Accordingly, we determined "that remand [was] necessary for the FAA to consider the environmental impact of increased demand resulting from the HIO expansion project, if any." Id. at 1139.

         On remand, the Port produced a supplemental environmental assessment ("SEA"), which included three different forecasts for demand at HIO. The forecasts predicted at most a small increase in air traffic operations due to the new runway and concluded that pollution generated by any increased traffic would be negligible. The FAA adopted the SEA, concluded that it was unnecessary to prepare an environmental impact statement, and, in 2014, issued a new FONSI. See 40 C.F.R. §§ 1501.4, 1508.13; Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998) ("If a FONSI is made, the agency need not prepare an EIS."). Following the decision of a motions panel of this court to deny Petitioners' motion for an injunction pending consideration of the petition, the Port constructed the runway, and the runway is now completed and open for use.[2]

         Petitioners now contend that, on remand, the FAA did not fulfill NEPA's requirement to take a "hard look" at the environmental impacts of additional air traffic generated by the new runway. See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006). They also argue that the circumstances of the project necessitated preparation of an environmental impact statement. See 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.27. Finally, they contend that the FAA did not comply with the Airport and Airway Improvement Act's requirement to ensure that the new runway was consistent with the plans of the appropriate local agencies. See 49 U.S.C. § 47106(a)(1).

         II. Discussion

         "Judicial review of agency decisions under NEPA . . . is provided by the [Administrative Procedure Act], which maintains that an agency action may be overturned only when it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006) (quoting 5 U.S.C. § 706(2)(A)). In the context of "reviewing an agency's decision not to prepare an EIS under NEPA, " we consider "whether the agency has taken a 'hard look' at the consequences of its actions, 'based [its decision] on a consideration of the relevant factors, ' and provided a 'convincing statement of reasons to explain why a project's impacts are insignificant.'" Envtl. Prot. Info. Ctr., 451 F.3d at 1009 (alteration in original) (quoting Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001)). The FAA's conclusion that a proposed project ...

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