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.
and Submitted October 5, 2016 Portland, Oregon
Petition for Review of an Order of the Federal Aviation
Malone (argued), Eugene, Oregon, for Petitioners.
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.
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.
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
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:
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.
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
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
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
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).
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.
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
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.
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