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3 THE ROLE OF THE AIRPORT SPONSOR IN AIRPORT PLANNING AND ENVIRONMENTAL REVIEW OF PROPOSED DEVELOPMENT PROJECTS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) AND STATE MINI-NEPA LAWS By Timothy R. Wyatt, Conner Gwyn Schenck, PLLC I. INTRODUCTION A. Overview For proposed development projects at public airports, the Federal Aviation Administration (FAA) is responsible for compliance with the envi- ronmental review procedures of the National En- vironmental Policy Act (NEPA). However, devel- opment projects are proposed by airport sponsors, not the FAA. As the project proponent, the airport sponsor plays a significant role in the NEPA proc- ess. This digest explores the legal requirements that the airport sponsor and FAA must satisfy under NEPA, related âspecial-purposeâ environ- mental laws, and state âmini-NEPAâ statutes. The digest explores the relationship between the air- port sponsor and the FAA in fulfilling such legal requirements, and the role played by each at dif- ferent stages in the environmental review process, or based on the type of NEPA action (e.g., Cate- gorical Exclusion, Environmental Assessment (EA), or Environmental Impact Statement (EIS)) required for a given development project. This digest offers practical guidance to airport sponsors and their legal counsel on how to fulfill specific requirements for each type of NEPA action and at each stage in the NEPA process. The digest summarizes relevant statutes, regu- lations, FAA Orders and Advisory Circulars, and case law related to these legal issues. Addition- ally, a survey was prepared and sent to the 400 airports or airport sponsors who received the larg- est amounts of FAA grant funding under the Air- port Improvement Program (AIP) from 2004 through 2011. The survey is available at the end of this digest. Fifty-five survey responses were received. In some cases, one survey response was received on behalf of multiple AIP grant recipi- ents (e.g., from regional aviation authorities or block grant states who oversee multiple airports). Survey results are provided throughout the di- gest. Section II of the digest explores the roles and responsibility of the airport sponsor and FAA in addressing substantive environmental review re- quirements, such as formulating the proposed de- velopment projectâs âpurpose and need,â assessing its environmental impact, evaluating the feasibil- ity of alternatives, and formulating mitigation measures. Section III addresses more logistical issues, such as the responsibility of the airport sponsor and FAA to coordinate the activities of other parties (such as environmental consultants, the interested public, and other government agen- cies with jurisdiction over specially-protected en- vironmental resources). Section III also addresses the roles and responsibility of the airport sponsor and FAA to hold public hearings, to make certain NEPA documents publicly available, and to re- spond to public records requests for other docu- ments. The following section briefly summarizes the environmental review process under NEPA, defin- ing key terms that are used throughout the di- gest. It also addresses the relationship between NEPA, special-purpose environmental laws, and state mini-NEPA laws. B. Background on Environmental Review Under NEPA and Related Laws i. Pre-NEPA Planning and Categorical Exclusions The environmental review process begins unof- ficially in the planning stages, when development is first proposed as a way âof solving an airportâs problems.â1 The airport sponsor develops a Master Plan to document proposed development projects and â[j]ustify the proposed development through the technical, economic, and environmental inves- tigation of concepts and alternatives.â2 One ele- ment of the Master Plan is an updated set of Air- port Layout Plan (ALP) drawings showing all planned future development.3 At the earliest planning stages, the airport sponsor will begin to formulate the rationale or justification for the proposed development project, which will later 1 FAA Order 5050.4B, Â§ 504.d(1) (2006). 2 FAA Advisory Circular 150/5070-6B, Â§ 104.c (2005). 3 FAA Advisory Circular 150/5070-6B, Â§ 202.c (2005).
4 form the basis for the statement of âpurpose and needâ required by NEPA.4 Another planning tool that may be a valuable resource in developing the Master Plan is a Noise Exposure Map (NEM).5 A NEM illustrates the noise experienced by areas surrounding the air- port due to existing development at the airport, with noise contours calculated according to the FAAâs standardized methodology.6 A NEM depict- ing a proposed new development might not be prepared at the development planning stage (since a similar noise impact analysis will typi- cally be required later under NEPA),7 but any ex- isting NEMs illustrating adverse noise impacts of existing airport development experienced by noise-sensitive land uses surrounding the airport should be incorporated into the development planning process.8 Based on the NEM, the airport sponsor may elect to enter into a Noise Compati- bility Program to mitigate the noise from existing development,9 regardless of whether the airport sponsor decides to pursue any new development project at that time. Once a proposed development project is identi- fied, the airport sponsor (in consultation with the FAA) will determine whether the proposed devel- opment project constitutes a major federal action subject to NEPA,10 or whether it is a Categorical Exclusion from NEPA because it is not expected to have a significant adverse effect on the envi- ronment.11 If the FAA grants a Categorical Exclu- sion for the proposed development, the NEPA process effectively ends. The FAA has determined that a number of development activities are typi- cally Categorical Exclusions (i.e., not subject to NEPA) as long as the project does not involve âex- traordinary circumstances.â12 These typical Cate- 4 FAA Order 5050.4B, Â§ 502 (2006). 5 FAA Advisory Circular 150/5020-1, ch. 1, Â§ 2, Â¶ 20 (1983). 6 14 C.F.R. Â§ 150.21 (2012). 7 FAA Order 1050.1E, App. A, Â§ 14 (2004). FAA Order 1050.1E was revised on March 20, 2006, with FAA Order 1050.1E, Change 1. However, the 2006 revisions did not modify any sections cited in this report. Therefore, cita- tions to FAA Order 1050.1E throughout this digest refer to both the original 2004 Order and the 2006 Change. 8 FAA Order 5050.4B, Â§ 503.c (2006). 9 14 C.F.R. Â§ 150.23 (2012). 10 40 C.F.R. Â§ 1508.18 (2012). 11 40 C.F.R. Â§ 1508.4 (2012). 12 FAA Order 5050.4B, Table 6-2 (2006); see also FAA Order 1050.1E, Â§ 310 (2004). The proposed development project involves âextraordinary circumstancesâ if it would gorical Exclusions include construction of new cargo buildings, replacement of existing terminal facilities, construction of new airport access roads, improvement of existing runway surfaces, and installation of airfield lighting. Also, the FAAâs conditional approval of a revised ALP depicting future significant development is typically a Cate- gorical Exclusion, since NEPA review will be re- quired later before the proposed development is undertaken.13 Accepting federal funds to prepare NEMs and Noise Compatibility Programs to ad- dress existing development is typically a Categori- cal Exclusion,14 as is implementing a Noise Com- patibility Program and revising an ALP to depict the implemented noise mitigation measures15 (as long as extraordinary circumstances are not im- plicated).16 In response to the survey conducted for this di- gest, airport sponsors indicated a wide range of experience with Categorical Exclusions, as shown in Figure 1. Most survey respondents (29 out of 55, or 53 percent) requested between 1 and 20 Categorical Exclusions from 2004 to the present. One survey respondent reported 400 requests for Categorical Exclusion in that timeframe. How- ever, a significant number of respondents (7 out of 55, or 13 percent) reported no requests for Cate- gorical Exclusion from 2004 to 2012. (These seven survey respondents also all reported having per- formed minimal or no NEPA reviews in that time- frame.) This is surprising, because all survey re- spondents received significant AIP grant funding in that timeframe. All AIP-funded projects should either result in a Categorical Exclusion or a NEPA review.17 All of these survey respondents encroach on an environmental resource protected by a spe- cial-purpose environmental law, or if the proposed devel- opment project is otherwise likely to be highly controver- sial on environmental grounds. FAA Order 1050.1E, Â§ 304 (2004). In these situations, the project cannot be categori- cally excluded from NEPA. 13 FAA Order 5050.4B, Table 6-1 (2006). 14 FAA Order 5050.4B, Table 6-1 (2006); see also FAA Order 1050.1E, Â§ 307n (2004). 15 FAA Order 5050.4B, Table 6-2 (2006); see also FAA Order 1050.1E, Â§ 307d (2004). 16 FAA Advisory Circular 150/5020-1, Â§ 362 (1983) (âAl- though FAA acceptance of noise exposure maps and ap- proval of noise compatibility programs are both categorical exclusions, any application for Federal funding of any por- tion of noise compatibility program may involve the need for an environmental assessment before such funding deci- sions can be made.â). 17 FAA Order 5100.38C, Â§Â§ 302.a, 1011.c (2005).
5 Figure 1. Experience of Survey Respondents with Categorical Exclusions. would be expected to have requested Categorical Exclusions or performed NEPA reviews since 2004, although a small but significant minority reported that they had not. This survey result is consistent with previous surveys showing that a significant minority of airport sponsors are un- aware that all federally funded expansion projects require either a Categorical Exclusion or NEPA review.18 ii. Environmental Assessments and Findings of No Significant Impact When a proposed development project cannot be categorically excluded from environmental re- view, an EA will typically be prepared. The main purpose of the EA is to determine whether the project is likely to have a significant adverse envi- ronmental impact or not.19 Generally speaking, an EA is required for projects involving a new air- port, a new runway, or a major extension to an existing runway.20 An EA may also be required for lesser developments that involve extraordinary 18 U.S. GEN. ACCT. OFF., AVIATION AND THE ENVIRONMENT: AIRPORT OPERATIONS AND FUTURE GROWTH PRESENT ENVIRONMENTAL CHALLENGES 12, 70, GAO REPORT NO. GAO/RCED-00-153 (2000). 19 40 C.F.R. Â§ 1508.9(a)(1) (2012). 20 FAA Order 5050.4B Â§Â§ 702.dâ702.g (2006); FAA Or- der 1050.1E Â§ 401k (2004). circumstances, such as when the development will impact environmental resources protected by spe- cial-purpose environmental laws or when the de- velopment is otherwise highly controversial on environmental grounds.21 The EA is required to contain âbrief discus- sionsâ of everything that would be discussed in an EIS:22 â¢ The purpose and need of the proposed devel- opment.23 â¢ Potential alternatives to the proposed devel- opment that might also achieve the purpose and need.24 â¢ Environmental impacts (or environmental consequences) of both the proposed development and any reasonable alternatives.25 21 FAA Order 5050.4B Â§ 702.aâc, hâj (2006); Jeffrey A. Berger, False Promises: NEPAâs Role in Airport Expansions and the Streamlining of the Environmental Review Process, 18 J. ENVTL. L. & LITIG. 279, 301 (2003) (In the EA, âthe FAA should considerâ¦the unique characteristics of the impacted land, the controversy of the project.â). 22 40 C.F.R. Â§ 1508.9 (2012); Berger, supra note 21, at 301 (âThis EA âhard look,â according to the FAAâs internal orders, must essentially examine almost everything that the EIS does, including alternatives and impacts.â). 23 FAA Order 5050.4B Â§ 706.b (2006); FAA Order 1050.1E Â§ 405c (2004). 24 FAA Order 5050.4B Â§ 706.d (2006); FAA Order 1050.1E Â§ 405d (2004).
6 â¢ Mitigation measures that could reduce the adverse environmental impacts.26 These elements of a NEPA document (state- ment of purpose and need, discussion of environ- mental impacts, analysis of alternatives, and mitigation measures) are explained in greater de- tail in Section I.B.iii infra. Generally speaking, the most critical portion of the EA is the discus- sion of environmental impacts of the proposed de- velopment project.27 This discussion must address not only the direct impact of the proposed project, but also its cumulative impact along with any past, present, and reasonably foreseeable future development at the airport.28 If the proposed development project is not ex- pected to have significant adverse environmental impacts, the FAA can issue a Finding of No Sig- nificant Impact (FONSI), effectively ending the NEPA review process.29 (If the proposed develop- ment project is expected to have significant ad- verse environmental impacts that can be miti- gated to insignificant levels, the FAA may issue a âmitigated FONSI,â representing the FAAâs ap- proval of the project subject to specific mitigation requirements.)30 The FONSI is the FAAâs formal statement that the project (as approved) âwill not have a significant effect on the human environ- ment,â and represents the FAAâs adoption of an EA that reaches the same conclusion.31 A FONSI signifies the FAAâs determination that an EIS is 25 FAA Order 5050.4B Â§ 706.eâf, h (2006); FAA Order 1050.1E Â§Â§ 405e-405f (2004). 26 FAA Order 5050.4B Â§ 706.g (2006); FAA Order 1050.1E Â§ 405g (2004). 27 Berger, supra note 21, at 301 (â[S]ince the purpose of the EA is to determine whether an EIS is required, the critical part of the EAâs analysis is the potential for a sig- nificant impact.â). 28 FAA Order 5050.4B Â§ 706.h (2006); FAA Order 1050.1E Â§ 405f(c) (2004). A statistical regression analysis of 140 court cases involving legal challenges to airport ex- pansion showed that failure to adequately consider cumu- lative impacts is one of the most likely reasons that courts might overturn the FAAâs FONSI. Timothy R. Wyatt, Bal- ancing Airport Capacity Requirements with Environmental Concerns: Legal Challenges to Airport Expansion, 76 J. AIR. L. & COM. 733, 796, 803 (2011). 29 Berger, supra note 21, at 296 (âOpponents of airport expansion vigorously contest FONSIs because such find- ings eliminate their participation in the process and ter- minate the environmental review process.â). 30 FAA Order 5050.4B, Â§ 802.g n.1 (2006). 31 40 C.F.R. Â§ 1508.13 (2012). not necessary for the proposed development.32 Therefore, the analysis in the EA must typically be sufficient for the FAA to show that it has taken a âhard lookâ at the potential environmental im- pacts before issuing a FONSI.33 In response to the survey conducted for this di- gest, airport sponsors indicated a wide range of experience with EAs, as shown in Figure 2. While a significant number of survey respondents (11 out of 55, or 20 percent) reported no EAs being performed for their airports from 2004 to 2012, one reported preparing 35 EAs in that timeframe. Most survey respondents (29 out of 55, or 53 per- cent) prepared one or two EAs in that timeframe. Survey respondents reported that 191 of the 205 EAs (or 93 percent) resulted in FONSIs granted by the FAA, suggesting that EAs usually result in FONSIs, effectively ending the NEPA review process. 32 FAA Order 1050.1E Â§ 406a (2004). 33 Sierra Club v. U.S. Depât of Transp., 753 F.2d 120, 127 (D.C. Cir. 1985).
7 Figure 2. Experience of Survey Respondents with Environmental Assessments. iii. Environmental Impact Statements Where the EA reports that the proposed develop- ment project will have a significant impact on the environment that cannot be satisfactorily miti- gated to insignificant levels, for the FAA to rec- ommend or approve federal funding for the pro- ject, an EIS must be prepared.34 For development proposals that are expected to have significant environmental impacts that cannot be satisfacto- rily mitigated, or are otherwise highly controver- sial on environmental grounds, the FAA may by- pass the EA entirely and proceed directly to preparation of the EIS.35 Generally speaking, an EIS is ânormallyâ (but not necessarily) required for projects involving a new commercial service airport, or a new runway at an existing commer- cial service airport, located in a metropolitan sta- tistical area, and the FAA may (but will not nec- essarily) bypass the EA process for such projects and begin preparing an EIS.36 Even in those 34 42 U.S.C. Â§ 4332(C) (2012). 35 FAA Order 5050.4B Â§ 903.b (2006); FAA Order 1050.1E Â§ 400c (2004); see, e.g., St. Johnâs United Church of Christ v. City of Chicago, 502 F.3d 616, 620 (7th Cir. 2007) (âOn December 5, 2001, the Mayor of Chicago and the Gov- ernor of Illinois announced that they had reached an agreement on the central components of the proposed [OâHare Airport expansion plan]. Shortly thereafter, the FAA submitted its Notice of Intent to Prepare an Envi- ronmental Impact Statement (EIS).â). 36 FAA Order 5050.4B Â§ 903.b (2006). But see Allison v. U.S. Depât of Transp., 908 F.2d 1024, 1027 (D.C. Cir. 1990) cases, however, the FAA may issue a FONSI if its partial EIS analysis suggests there will be no sig- nificant adverse impact (at which point the EIS preparation will cease), or where an EA was pre- pared for the project that suggests no significant adverse impact.37 EISâs are rarely required for airport develop- ment, as illustrated by Figure 3. In response to the survey conducted for this digest, the vast ma- jority of airport sponsors (47 out of 55, or 85 per- cent) reported no EISâs from 2004 to 2012. One survey respondent reported a partial EIS, three reported one EIS, three reported two EISâs, and one reported four EISâs in that timeframe. (describing the FAAâs decision to wait to begin preparing an EIS for a new commercial service airport until the air- port sponsor completed an EA for the project). 37 See, e.g., Barnes v. U.S. Depât of Transp., 655 F.3d 1124, 1140 (9th Cir. 2011) (declining to require an EIS for a new runway, where the FAA issued a FONSI on the ba- sis of the EA).
8 Figure 3. Experience of Survey Respondents with Environmental Impact Statements. The EIS is to accomplish the following: â¢ â[B]riefly specify the underlying purpose and needâ of the proposed development.38 â¢ âRigorously explore and objectively evaluate all reasonable alternativesâ that might achieve the purpose and need.39 â¢ â[S]uccinctly describe the environment of the area(s) to be affectedâ by the proposed develop- ment,40 and discuss âthe environmental impacts of the alternatives including the proposed action, [including] any adverse environmental effects which cannot be avoided should the proposal be implemented.â41 â¢ Discuss â[m]eans to mitigate adverse envi- ronmental impactsâ of the proposed develop- ment.42 Note that these four elements of an EIS are also the four elements of an EA, although the dis- cussions in the EIS generally should be more thor- ough. Descriptions of these four elements of a NEPA document follow: 1. Purpose and Need.âThe statement of purpose and need describes the rationale for the proposed development projectâthe projectâs ability to solve problems faced at the airport. The âneedâ de- 38 40 C.F.R. Â§ 1502.13 (2012). 39 40 C.F.R. Â§ 1502.14(a) (2012). 40 40 C.F.R. Â§ 1502.15 (2012). 41 40 C.F.R. Â§ 1502.16 (2012). 42 40 C.F.R. Â§ 1502.16(h) (2012). scribes the problem to be solved at the airport; e.g., an airport may have the need to expand ca- pacity, reduce delays, or improve safety. As a gen- eral rule, the âpurposeâ describes the function of the proposed development; e.g., a runway expan- sion project may serve the purpose of expanding the class of aircraft that can use the airport. There might be multiple alternatives to the pro- posed development project that could also satisfy the airportâs âneed.â43 2. Impacts.âThe EIS is to contain a âdetailed statementâ of the environmental consequences of the proposed development project44 (as opposed to the âbrief discussionsâ in the EA). The discussion of environmental impacts in the EIS âshall be supported by evidence that the agency has made the necessary environmental analyses.â45 The FAA has compiled a list of âimpact categoriesâ that are typically considered (e.g., air quality, wa- ter quality, noise, light emissions, and visual im- pacts) and has prescribed analysis methods for evaluating environmental impacts in each cate- gory.46 Typically, the underlying technical analy- sis required for assessing environmental impacts under the EIS is the same as the analysis under the EA for determining whether significant envi- ronmental impacts are anticipated. For impact categories where the EA indicates that there will not be significant impacts, the discussion for that 43 FAA Order 5050.4B, Â§ 504.e (2006). 44 42 U.S.C. Â§ 4332(C) (2012). 45 40 C.F.R. Â§ 1502.1 (2012). 46 FAA Order 1050.1E, App. A, Â§ 1.2 (2004).
9 impact category may be substantially the same in the EA and EIS.47 The FAA may determine that additional technical analysis is warranted for the EIS,48 especially for impact categories where the EA indicates that significant impacts are antici- pated. The discussion of environmental impacts is to include not just the impact of the proposed devel- opment project, but also its cumulative impact in conjunction with âother past, present, and rea- sonably foreseeable futureâ development at the airport.49 Failure to adequately consider cumula- tive impact is one of the most likely reasons that a court might reject an EIS (or an EA/FONSI) for an airport development project.50 3. Alternatives.âWhere the proposed develop- ment project is expected to have a significant en- vironmental impact, the EIS is to contain a de- tailed discussion of âalternatives to the proposed action.â51 The discussion of alternatives is the âheartâ of the EIS.52 The EIS must present a rig- orous analysis of the environmental impacts of âall reasonable alternativesâ for comparison with the environmental impacts of the proposed devel- opment project.53 The alternatives considered must include âno actionâ54âto provide a baseline for comparing the environmental impacts of the proposed development project and all other alter- natives. In considering whether an alternative is ârea- sonableâ (and thus deserving of detailed environ- mental impact analysis), the FAA is known to conduct a âtieredâ screening process.55 The FAA 47 See, e.g., FAA Order 1050.1E Â§ 12.3a (âThe EIS de- scription of potential annoyance from airport lighting and measures to minimize the effects should be documented in a similar fashion in an EIS to that in an EA.â). 48 Id. (âIt is possible that the responsible FAA official will judge that a special lighting study is warranted.â). 49 40 C.F.R. Â§Â§ 1508.7, 1508.8(b) (2012); see also Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C. Cir. 2002) (âIndeed, the FAAâs own NEPA policy calls for considera- tion of cumulative impact, parroting the language of the NEPA regulations to include proposed projects and past, present, and reasonably foreseeable future actions.â). 50 See supra note 28 and accompanying text. 51 42 U.S.C. Â§ 4332(C)(iii) (2012). 52 40 C.F.R. Â§ 1502.14 (2012). 53 40 C.F.R. Â§ 1502.14(a), (b) (2012). 54 40 C.F.R. Â§ 1502.14(d) (2012). 55 Alliance for Legal Action v. U.S. Army Corps of Engârs, 314 F. Supp. 2d 534, 538â39 (M.D.N.C. 2004); see also Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *19â20 (N.D. Ill. Feb. 14, 2007). first determines whether each alternative could satisfy the âpurpose and needâ of the proposed development. Only the âno actionâ alternative and those alternatives that potentially satisfy the âpurpose and needâ are considered further for de- tailed environmental impact analysis. All others are deemed to not be âreasonableâ alternatives. Although the purpose of the alternatives analy- sis is to make it possible to compare the environ- mental impact of different approaches that satisfy the purpose and need of the proposed develop- ment, there is no requirement in NEPA to select the alternative with the least environmental im- pact. However, for projects involving a new air- port, new runway, or major runway extension, upon finding that the proposed development will have a significant environmental impact, the FAA is required to find that there is âno possible or prudent alternativeâ to the proposed development project for the project to receive federal funds.56 There may also be special-purpose environmental laws that require selection of the alternative with the least environmental impact on specially- protected environmental resources. For example, if the proposed development project would impact wetlands, and there is a âpracticable alternativeâ that would not impact wetlands, that alternative becomes the âpreferred alternativeâ in the EIS.57 If the proposed development project will impact a wildlife refuge, public park, or historic site, there must be âno feasible and prudent alternativeâ to the preferred alternative in the EIS.58 Although these requirements appear to be stricter than the NEPA requirement to discuss âreasonableâ alternatives, in practice, courts do not require airport sponsors to adopt âa rigid least-harm standardâ when selecting from multi- ple feasible alternatives.59 In part, this is because the FAAâs tiered screening process is effective in removing from consideration more environmen- tally-friendly alternatives that would not address the airportâs needs. Courts routinely uphold envi- ronmental reviews where the FAA has deter- mined that certain alternatives are not âprudentâ because they do not satisfy the purpose and need (e.g., expand capacity, reduce delays, or improve safety).60 Environmental reviews for airport de- 56 49 U.S.C. Â§ 47106(c)(1)(B) (2012). 57 FAA Order 1050.1E, App. A, Â§ 18.2d (2004). 58 FAA Order 1050.1E, App. A, Â§ 6.1a (2004). 59 City of Bridgeton v. Slater, 212 F.3d 448, 462 (8th Cir. 2000). 60 See, e.g., Safeguarding the Historic Hanscom Areaâs Irreplaceable Res., Inc. v. FAA, 651 F.3d 202, 211 (1st Cir.
10 velopment projects are practically never over- turned due to inadequate analysis of alterna- tives.61 4. Mitigation Measures.âThe EIS is to discuss â[m]eans to mitigate adverse environmental im- pactsâ of the proposed development project.62 To offset the environmental impact of the project, an airport sponsor may incorporate mitigation meas- ures into its proposed project. Alternatively, some alternatives considered by the FAA in the EIS may combine the airport sponsorâs proposed pro- ject with various mitigation measures.63 The FAAâs âpreferred alternativeâ in the EIS may in- corporate mitigation measures, so that the FAAâs approval of the development project is conditioned upon the airport sponsor implementing the miti- gation measures.64 However, unless the mitigation measures are expressly incorporated into the pro- posed development or preferred alternative ap- proved by the FAA, there is no strict requirement in NEPA to actually implement any mitigation measures discussed in the EIS. Although NEPA does not expressly require mitigation, for projects involving a new airport, new runway, or major runway extension, upon finding that the proposed development will have a significant environmental impact, the FAA cannot approve the project without finding âthat every reasonable step has been taken to minimize the adverse effect.â65 Although this provision appears to impose a strict mitigation requirement, the FAA defines âreasonableâ mitigation measures to be those that satisfy the statement of âpurpose and need.â The FAA thus attempts to ensure that any required mitigation measure incorporated into its preferred alternative is tailored to the purpose and need.66 2011); City of Dania Beach v. FAA, 628 F.3d 581, 587 (D.C. Cir. 2010); Natural Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 569 (2d Cir. 2009). 61 Wyatt, supra note 28, at 751, 796, 800 (finding that, based on 140 court cases involving environmental review of airport expansion, a legal challenge to the alternatives analysis has a statistically insignificant effect on the out- come of the case, and almost never results in overturning a NEPA review). But see People ex rel Van de Kamp v. Marsh, 687 F. Supp. 495, 497 (N.D. Cal. 1988). 62 40 C.F.R. Â§ 1502.16(h) (2012). 63 40 C.F.R. Â§ 1502.14(f) (2012). 64 FAA Order 1050.1E, Â§Â§ 506h(2), 512b (2004). 65 49 U.S.C. Â§ 47106(c)(1)(B) (2012). 66 See, e.g., Complaint for Declaratory, Injunctive and other Equitable Relief at 9, Avellaneda v. FAA, No. 08â 10718âDPW (D. Mass. 2009) (â[T]he FAA concluded that the Preferred Alternative, and the proposed 10-knot There may also be special-purpose environ- mental laws that impose strict mitigation re- quirements if the proposed development project will impact specially protected environmental re- sources. For example, if the project will impact wetlands, the preferred alternative in the EIS must employ âall practicable measures to mini- mize harmâ to the wetlands.67 If the project will impact a wildlife refuge, public park, or historic site, the preferred alternative in the EIS must include âall possible planning to minimize harmâ to that resource.68 Environmental reviews for air- port projects that satisfy the NEPA requirement to discuss mitigation measures have been over- turned for failing to find that the proposed devel- opment minimizes harm to a specially protected environmental resource.69 iv. Record of Decision When NEPA review is complete, the FAA will often issue a Record of Decision (ROD) either ap- proving the airport sponsorâs proposed develop- ment project; approving the FAAâs preferred al- ternative to the proposed development; approving a range of potential alternatives, including re- quired mitigation measures; or simply approving no action. For projects requiring an EIS, FAA funding and airport sponsor implementation of the project can only take place after an ROD has been issued.70 On the other hand, where the FAA has issued a FONSI based on an airport sponsorâs EA, an ROD is optional. Where the FAA has pre- pared a FONSI but no EIS, the FAA will typically still issue an ROD for actions requiring a miti- gated FONSI, for actions that would normally re- quire an EIS, for actions that are without prece- dent, and for actions that are highly controversial on environmental grounds.71 v. Supplementation The NEPA environmental review is to be sup- plemented if, at any time (i.e., before or after an ROD has been issued), substantial changes are northwest/southeast wind restriction as a mitigation measureâ¦would allow the FAA âto achieve the purpose and need of the project to reduce delays during northwest wind conditions.ââ). 67 FAA Order 1050.1E, App. A, Â§ 18.4a(5) (2004). 68 49 U.S.C. 303(c)(2) (2012). 69 See, e.g., Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 557 (2d Cir. 2003). 70 FAA Order 1050.1E, Â§ 512 (2004). 71 FAA Order 5050.4B, Â§ 805.a (2006); FAA Order 1050.1E, Â§ 408b (2004).
11 made to the proposed development project (or ap- proved alternatives) or significant new circum- stances or information become known relevant to the environmental impact of the project.72 Where an ROD has been issued, but more than 3 years have passed and the project has not been imple- mented, the FAA requires a written reevaluation of the EIS (or EA) to determine whether there are significant new circumstances or information that require supplementation.73 The Supplemental EIS (or EA) must satisfy the requirements of an EIS (or EA), and an ROD (and/or FONSI, as applica- ble) must be issued before the project can be im- plemented.74 C. State Mini-NEPA Laws A number of states have adopted what are known variously as âmini-NEPA,â âlittle NEPA,â or âNEPA-likeâ statutes, which require an envi- ronmental review procedure similar to NEPA for state actions having a significant impact on the environment.75 These include the California Envi- ronmental Quality Act (CEQA)76 and the Massa- chusetts Environmental Protection Act (MEPA).77 These state mini-NEPA laws may require a state environmental agency or airport sponsor (e.g., a state or regional aviation authority) to perform an environmental review for a proposed development project at an airport, in addition to the FAAâs en- vironmental review requirements under NEPA. The FAA requires any state mini-NEPA environ- mental review to be conducted jointly with the NEPA environmental review to the extent possi- ble.78 As a general rule, no significant airport de- velopment (e.g., to expand capacity or reduce de- lay) will take place without FAA funding (or without the FAAâs unconditional approval of an ALP). Therefore, Federal NEPA review will prac- tically always be required for any significant air- port development project, and that NEPA review, in most cases, will satisfy most requirements of the state mini-NEPA review (once adopted by the appropriate state agency). However, the airport sponsor should contact the lead state agency un- der a mini-NEPA law and encourage that state 72 40 C.F.R. Â§ 1502.9(c)(1) (2012); see also FAA Order 1050.1E, Â§Â§ 411a, 516a (2004). 73 FAA Order 5050.4B, Â§ 1401(c) (2006). 74 40 C.F.R. Â§ 1502.9(c)(4) (2012); see also FAA Order 1050.1E, Â§Â§ 411b, 516b (2004). 75 Wyatt, supra note 28, at 739. 76 CAL. PUB. RES. CODE Â§ 21000 et seq. (2012). 77 MASS. GEN. LAWS ch. 30, Â§ 61 (2012). 78 FAA Order 5050.4B, ch. 1, Â§ 9.m (2006). agency to coordinate its efforts with the FAA to minimize duplication of effort.79 Where the proposed development project will have a significant environmental impact, state mini-NEPA laws typically establish procedural requirements for state agencies (or airport spon- sors) to prepare an Environmental Impact Report (EIR). An EIR is analogous to the Federal EIS and contains the same basic content:80 a discus- sion of environmental impacts, an analysis of al- ternatives, and a discussion of measures to miti- gate the environmental impact of the proposed development project. However, state mini-NEPA laws (unlike NEPA) may also have substantive environmental requirements that require the state agency (or airport sponsor) to adopt the al- ternative with the least environmental impact or to adopt mitigation measures to âminimizeâ the environmental impact.81 Airport sponsors should be aware of any such substantive requirements in relevant state mini-NEPA laws that might influ- ence the joint NEPA environmental review with the FAA. In response to the survey conducted for this di- gest, most airport sponsors reported no issues with integrating their state mini-NEPA proce- dures (if any) into the Federal NEPA review proc- ess. The lone exception was California, where air- port sponsors consistently expressed frustration with having to address CEQA requirements that go beyond the NEPA requirements. Specifically, actions that may be categorically excluded from NEPA review may not be excluded from CEQA review, so the airport sponsor often has to prepare CEQA documents in situations where NEPA 79 DONALD G. ANDREWS ET AL., APPROACHES TO INTEGRATING AIRPORT DEVELOPMENT AND FEDERAL ENVIRONMENTAL REVIEW PROCESSES 25 (ACRP SYNTHESIS 17 2009). 80 See, e.g., Mass. Port Auth. v. City of Boston, No. 0102731BLS2, 17 Mass. L. Rep. 158, 2003 Mass. Super. LEXIS 425, at *3 nn.4â5 (Nov. 18, 2003) (indicating that the requirements for an EIR under MEPA and an EIS un- der NEPA are so interchangeable that they can be com- bined into a single report). 81 See, e.g., CAL. PUB. RES. CODE Â§ 21002 (2012) (â[P]ublic agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects.â); MASS. GEN. LAWS ch. 30, Â§ 61 (2012) (âAll agenciesâ¦shall review, evaluate, and determine the impact on the natural environment of all works, projects or activities conducted by them and shall use all practicable means and measures to minimize dam- age to the environment.â).
12 documents are not required. One survey respon- dent stated, âIn California, the NEPA process is often of far less importance than CEQA. The only time NEPA comes into play on most projects is when FAA grant money and/or ALP modification is involved, and most of those projects are Cate- gorical Exclusions.â Another survey respondent from California reported similar observations, and expressed frustration that Federal AIP funds are available to prepare NEPA documents but not to prepare the analogous CEQA documents when the action is categorically excluded from NEPA re- view. A third survey respondent from California indicated that although the differences between NEPA and CEQA create a less efficient environ- mental review process, airport sponsors in Cali- fornia are well aware of the differences and have adapted. No survey respondent from any other state reported any issues coordinating the envi- ronmental reviews under NEPA and state mini- NEPA laws. For airport sponsors located in states that par- ticipate in the FAAâs State Block Grant Program, funding decisions for specific airport development projects are typically made by the administering state agency rather than the FAA.82 In that case, NEPA does not technically apply (since approval of airport development by the Block Grant state is not a federal action, but rather a state action). However, the FAA has ensured that NEPA or NEPA-like review is conducted for Block Grant projects that may have a significant impact on the environment. If the Block Grant state is not sub- ject to a mini-NEPA law, then the proposed devel- opment project is subject to NEPA review (under the terms of the Block Grant Program), but the administering state agency takes on the FAAâs responsibility to oversee the NEPA process.83 If the Block Grant state is subject to a mini-NEPA law, then the proposed development project is not subject to NEPA, but the administering state agency is required to fulfill the mini-NEPA proc- ess84 (which may be stricter than NEPA). How- ever, all airport development projects in Block Grant states are required (under the terms of the Block Grant Program) to satisfy federal special- purpose environmental laws, since those laws would have applied to the project had the FAA retained responsibility for the project.85 These 82 FAA Order 5050.4B, Â§ 210.d (2006). 83 FAA Order 5050.4B, Â§ 212.c (2006). 84 FAA Order 5050.4B, Â§ 212.b (2006). 85 FAA Order 5050.4B, Â§Â§ 212.b, c (2006). special-purpose environmental laws are discussed in the following section. Although Congress has only authorized 10 states to participate in the FAAâs Block Grant Program, in the survey conducted for this digest, 19 of the 55 responses (34.5 percent) came from airport sponsors located in Block Grant states. Although airport development in these states may not technically be subject to NEPA, in general, survey responses from airport sponsors located in Block Grant states do not indicate reduced com- pliance with NEPA. If anything, survey respon- dents from the Block Grant states reported higher-than-average numbers of EAs and Cate- gorical Exclusions. D. Special-Purpose Environmental Laws Although NEPA requires discussion of the en- vironmental impacts, reasonable alternatives, and possible mitigation measures of a proposed devel- opment project, NEPA itself does not impose a substantive requirement to select the alternative that minimizes environmental impact. However, there are a number of special-purpose environ- mental laws, typically established to protect spe- cific categories of environmental resources, and these special-purpose laws often do impose sub- stantive requirements if the project will impact the specially protected resources. The FAA has integrated consideration of federal special- purpose laws into the NEPA process of evaluating environmental impacts.86 Specially protected re- sources commonly impacted by airport develop- ments that implicate special-purpose environ- mental laws with substantive requirements include wetlands,87 floodplains,88 coastal zones,89 and wildlife refuges, public parks, or historic sites.90 Airport sponsors should keep in mind that there may also be state special-purpose laws that apply and should be addressed during environ- mental review. Typically, there will exist a non-FAA govern- ment agency with jurisdiction over the specially protected environmental resource or special- 86 FAA Order 5050.4B, ch. 1, Â§ 9.t (2006); FAA Order 1050.1E, App. A (2004). 87 FAA Order 5050.4B, Â§ 1206 (2006); FAA Order 1050.1E, App. A, Â§ 18 (2004). 88 FAA Order 5050.4B, Â§ 1207 (2006); FAA Order 1050.1E, App. A, Â§ 9 (2004). 89 FAA Order 5050.4B, Â§ 1208 (2006); FAA Order 1050.1E, App. A, Â§ 3 (2004). 90 FAA Order 5050.4B, Â§ 1204 (2006); FAA Order 1050.1E, App. A, Â§ 6 (2004).