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32 be more stringent than the potential mitigation measures discussed by the FAA in its EIS.260 III. AIRPORT SPONSORSâ LOGISTICAL ROLE Section II addressed the substantive content of an environmental review document required by NEPA, and the relative roles and responsibilities of the airport sponsor and the FAA to prepare that content at different stages of the environ- mental review process. This section deals with the more practical and logistical issues encountered during the NEPA process, such as coordination of other parties involved in the process (e.g., envi- ronmental consultants, non-FAA government agencies, and the public). Special attention is paid to when public hearings are required under NEPA, when NEPA documents must be made available to the public, and when related envi- ronmental documents might otherwise become public record. The airport sponsorâs legal obligation to provide participation opportunities for the public (or other government agencies) will be project-specific. It will depend very much on the scope of the pro- posed development project, as well as the exis- tence of any specially protected environmental resources in the vicinity of the project, and the history of development and environmental con- cerns at that airport. Therefore, the airport spon- sor (and its legal counsel) will not want to rely solely on âstandard proceduresâ used by the air- port sponsorâs engineering consultant. This sec- tion will provide a reference for navigating the process of drafting NEPA documents, exchanging preliminary drafts with government agencies when required, receiving public comment on drafts when required, and protecting preliminary drafts from public disclosure when possible or when necessary to advance the project. A. Early Consultation with FAAâNEPA Scheduling Once an airport sponsor has identified the de- velopment project it will propose, it should imme- diately begin considering how much funding it will need from the FAA to complete the project, 260 See, e.g., Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *85â87 (N.D. Ill. Feb. 14, 2007) (uphold- ing a mitigation plan required by the Corps of Engineers under the Clean Water Act, which differed from the âcon- ceptual mitigation planâ in the FAAâs EIS, because the Corps considered the EIS mitigation plan to be inade- quate). and when it will need funding. Any required NEPA process will have to be finalized by April 30 of the fiscal year preceding the fiscal year in which the airport sponsor hopes to receive the funding.261 The FAA must have any final NEPA documents in its possession by that date to de- termine which development projects it will ap- prove for funding in the following fiscal year. If the project is likely to require an EA, the air- port sponsor is responsible for developing a schedule that will allow the airport sponsor to ob- tain FAA approval of the EA by April 30.262 The airport sponsorâs first call should be to the FAA, to discuss typical schedules for similar projects. The FAA might also advise the airport sponsor whether the proposed development project is un- realistic, given the FAAâs likely budget for devel- opment projects.263 If the airport sponsor needs to adjust the project due to funding limitations, it is best to know that before significant environ- mental planning begins. To develop the EA schedule, the airport spon- sor will need to consult not just with the FAA, but also with any other agency that may have juris- diction due to special-purpose laws or specially protected environmental resources. Preparing the EA schedule will give the airport sponsor an idea of when the project could realistically begin. If the project is likely to require an EIS, the airport sponsor may request an EIS preparation schedule from the FAA.264 Upon receiving such a request, the FAA will begin consulting with all necessary outside agencies to develop a schedule that is as realistic as possible (with the under- standing that environmental controversies can arise later that would cause the schedule to be revised).265 Once the FAA has developed an EIS schedule, it is monitored closely throughout the NEPA proc- ess. If the FAA becomes aware that the schedule will have to be adjusted, the FAA must notify the sponsor.266 If the project will be subject to stream- lined environmental review (e.g., because it will 261 FAA Order 5050.4B, Â§ 301.b (2006). 262 FAA Order 5050.4B, Â§ 301.b(2) (2006). 263 See, e.g., City of Tempe, Ariz. v. FAA, 239 F. Supp. 2d 55, 57 n.2 (D.D.C. 2003) (describing how the FAA worked with the airport sponsor to revise its budget for a runway project to $66 million, down from the airport sponsorâs original vision of a âmore substantialâ $120 million pro- ject). 264 FAA Order 5050.4B, Â§Â§ 902.b, 904.d (2006). 265 FAA Order 5050.4B, Â§ 902.b (2006). 266 FAA Order 5050.4B, Â§ 1201.c (2006).
33 expand capacity at a congested airport or relates to aviation safety or security), then the failure of any participant (the FAA, the airport sponsor, or an outside agency) to meet a schedule milestone must be reported to Congress.267 Contacting the FAA to establish a schedule for the environmental review sets the NEPA process in motion. There will be much more consultation between the FAA and the airport sponsor to follow for any successful environmental review process (one that results in timely FAA approval of a de- velopment project that satisfies the airport spon- sorâs purpose and need). The relative roles and responsibilities of the FAA and airport sponsor to shepherd the NEPA process are described in the following sections. B. Coordination with Consultants Because the content of a NEPA document, de- scribed in Section II, requires specialized techni- cal knowledge, the airport sponsor and FAA often rely on outside consultants or contractors to pre- pare the documents or to perform certain studies in preparation of the documents. This section ad- dresses the roles and responsibilities of the air- port sponsor and FAA in forming these contrac- tual relationships at different stages of the environmental review process. i. Pre-NEPA Planning Consultants Airport sponsors may hire consultants to pro- vide planning services, which are defined by the FAA to include preparation of an Airport Master Plan or Noise Compatibility Program.268 If the airport sponsor intends to use AIP grant funds to pay for the planning consultant, the airport spon- sor is required to employ competitive bidding and qualifications-based selection methods to hire the consultant.269 The selection process is to be based on a scope of services identified by the airport sponsor and advertised to potential bidders.270 The FAA provides a draft scope of services that can be used or modified by airport sponsors to so- licit consultants for planning services such as up- dating the ALP to reflect planned develop- ments.271 267 FAA Order 5050.4B, Â§ 1505.k (2006). 268 FAA Advisory Circular 150/5100-14D, Â§ 1-4.a, App. A (2005). 269 49 U.S.C. Â§ 47107(a)(17) (2012). 270 FAA Advisory Circular 150/5100-14D, Â§Â§ 2-3, 2-6, 2-7, 2-8 (2005). 271 FAA Advisory Circular 150/5100-14D, App. E, Ex- ample 2 (2005). ii. Environmental Assessment Consultants If the airport sponsorâs proposed development project cannot be categorically excluded from NEPA, an EA will usually need to be prepared. As the applicant for federal funding, it is in the best interests of both the airport sponsor and the FAA for the airport sponsor to prepare the EA âor hire qualified environmental contractors to prepare those documents.â272 The FAA will typically have no shortage of applicants for funding, so it is more efficient for each applicant to perform the techni- cal analysis required for an EA,273 which will later form the basis for the FAAâs decision to either ap- prove the project or require additional study. The airport sponsor in turn will typically assign the responsibility of EA preparation to a âqualified environmental consultantâ274 experienced with navigating the NEPA process and performing the various studies required to analyze environmental impacts in each impact category. During EA preparation, the EA consultantâs ac- tivities are coordinated with and directed by the airport sponsor; the FAA does not typically exer- cise control or oversight over the EA consultant.275 However, before the FAA can approve the project (e.g., issue a FONSI), the FAA is required to inde- pendently evaluate the EA prepared by the air- port sponsorâs consultant, and take responsibility for its content.276 Although the EA consultant will typically be selected by the airport sponsor (often a consultant with whom the airport sponsor has an existing relationship), the airport sponsor should consult with the FAA if it expects the proposed develop- ment project to have significant environmental impacts that cannot be mitigated below the FAAâs significance thresholds. In that case, the FAA (not 272 FAA Order 5050.4B, Â§ 201.b(3) (2006). 273 See, e.g., Giuliano v. State, No. X01UWYCV014002704S, 2007 Conn. Super. LEXIS 3467, at *3 (Dec. 20, 2007) (Depending on its workload, the FAA typically completes the type of environmental assessment required for the proposed change of runway departure procedures internally. However, in this case, the FAA advised [the airport sponsor] that the process would be expedited by the retention by [the airport sponsor] of third-party consultants.). 274 FAA Order 5050.4B, Â§ 703 (2006). 275 See, e.g., City of Oxford, Ga. v. FAA, 428 F.3d 1346, 1356 (11th Cir. 2005) (upholding an EA prepared by the airport sponsorâs consultant, where the FAA did not exer- cise oversight over the consultant but evaluated and signed the EA, taking responsibility for it). 276 Barnes v. U.S. Depât of Transp., 655 F.3d 1124, 1131 (9th Cir. 2011).
34 Figure 7. Experience of Survey Respondents with Selecting EA Consultants. the airport sponsor) should select the consultant that the airport sponsor will hire to prepare an EA.277 This is because the project is likely to even- tually require an EIS, which will have to be pre- pared by the FAA (or a contractor directed by the FAA) before the FAA can approve the project. It will be more efficient in that case to have the EA prepared by the same consultant who will be in- volved with the FAA later during EIS prepara- tion. The airport sponsors who responded to the sur- vey conducted for this digest generally indicated that they do not consult the FAA before hiring EA consultants. As shown in Figure 7, of the survey respondents who reported hiring EA consultants, almost all of them (39 out of 43, or 91 percent) selected and hired the EA consultant without seeking FAA input. Only in a few cases did the FAA recommend or select an EA consultant for the airport sponsor. Clearly, the airport sponsor must be prepared to accept the responsibility of selecting and hiring an EA consultant (without financial assistance from the FAA) when a pro- posed development cannot be categorically ex- cluded from NEPA. iii. Environmental Impact Statement Contractors If the airport sponsorâs proposed development project will have significant environmental im- pacts that cannot be satisfactorily mitigated, it is 277 FAA Order 5050.4B, Â§ 703 (2006). the FAAâs responsibility to prepare an EIS before the FAA can approve the project.278 As with the EA, the EIS is typically prepared by an environ- mental consultant rather than the FAA itself. Also, as with the EA, the FAA promotes a âthird- party contractingâ approach where the EIS con- tractor actually has a contract with the airport sponsor, not the FAA.279 However, despite the con- tractual relationship, the EIS contractor âis re- sponsible for assisting the FAAâânot the airport sponsorââin preparing an EIS that meets the re- quirements of the NEPA regulations.â280 The third-party contracting process is therefore more complex than at the EA stage. The third-party contracting process is âpurely voluntaryâ281âthe airport sponsor could opt to have the FAA prepare the EIS internally. How- ever, since the development is proposed by the airport sponsor (not the FAA), it is typically in the airport sponsorâs interest to use the third-party contracting process to advance the project toward final FAA approval. Where the airport sponsor opts to use the third-party contracting process, it typically begins by issuing a request for qualifica- tions (RFQ) or request for proposals (RFP) seek- ing qualified environmental consultants to pre- 278 42 U.S.C. Â§ 4332(C) (2012). 279 FAA Order 1050.1E, App. B, Â§ 2b (2004). 280 Id. 281 Id.
35 pare the EIS.282 The airport sponsor should in- clude the proposed scope of work, as well as the airport sponsorâs selection criteria, in any RFQ or RFP for an EIS contractor.283 The proposed scope of work must be prepared by the FAA, not the airport sponsor.284 The selection criteria may be prepared by the airport sponsor, but the FAA must concur with the criteria.285 Based on the responses to the RFQ or RFP, and the airport sponsorâs selection criteria, the airport sponsor will typically prepare a âshort listâ of its preferred EIS contractors.286 The short list will typically include three to five contractors.287 The airport sponsor may conduct interviews of the contractors on its list, but the airport sponsor must invite the FAA to participate in the inter- views.288 After any such interviews have been conducted, the airport sponsor will submit the short list to the FAA, and the airport sponsor may indicate its preference or ranking of the contrac- tors.289 However, the FAA ultimately must select the EIS contractor,290 and the FAA is not obli- gated to base its selection on the airport sponsorâs preference or ranking.291 The FAA may even con- sider environmental consultants who are not on the airport sponsorâs list of preferred EIS contrac- tors.292 The FAA will provide the airport sponsor a list of potential EIS contractors ranked according to the FAAâs preference.293 If the airport sponsor wishes to proceed with EIS preparation at that time, the airport sponsor must begin negotiating the cost of EIS preparation with the FAAâs pre- ferred EIS contractor.294 The FAA cannot partici- pate in those negotiations, but the FAA may con- sider whether the negotiated cost is reasonable 282 FAA Order 1050.1E, App. B, Â§ 2c (2004). 283 FAA AC 150/5100-14D, Â§ 2-7 (2005). 284 FAA AC 150/5100-14D, Â§ 2-10.a (2005). 285 FAA AC 150/5100-14D, Â§ 2-10.b (2005). 286 FAA Order 5050.4B, Â§ 1003.a(1) (2006). 287 FAA AC 150/5100-14D, Â§ 2-8.g (2005). 288 FAA AC 150/1500-14D, Â§ 2-10.c (2005). 289 FAA AC 150/1500-14D, Â§ 2-10.d (2005); FAA Order 1050.1E, App. B, Â§ 2c (2004). 290 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 202 (D.C. Cir. 2002). 291 FAA AC 150/1500-14D, Â§ 2-10.d (2005); FAA Order 1050.1E, App. B, Â§ 2c (2004). 292 FAA Order 5050.4B, Â§ 1003.a(2) (2006). 293 FAA AC 150/1500-14D, Â§ 2-10.f (2005). 294 Id. before the airport sponsor enters into a contract with the EIS contractor.295 The survey conducted for this digest indicates that, in practice, the airport sponsorâs preferred consultant is often hired to be the EIS contractor. Of the airport sponsors who reported hiring an EIS contractor, a slim majority (four of seven, or 57 percent) reported that the FAA selected the EIS contractor from the airport sponsorâs âshort list.â However, a sizeable minority (three of seven, or 43 percent) reported that the airport sponsor selected and hired the EIS contractor without any FAA involvement. Under NEPA, the EIS is to be prepared by the federal agency (or a contractor working on its behalf) and not the grant recipient; therefore, the FAA should have selected the EIS contractor in all cases. However, these survey re- sponses are consistent with previous surveys in which airport sponsors have âresponded as if they [rather than the FAA] were preparing EISs.â296 Airport sponsors must ensure that the EIS con- tractor executes a âdisclosure state- mentâ¦specifying that they have no financial or other interest in the outcome of the project.â297 The statement signed by the EIS contractor should either be âprepared byâ the FAA, or the FAA should âfurnish guidance and participate in the preparation and shall independently evaluate the [disclosure] statement prior to its approval and take responsibility for its scope and con- tents.â298 The disclosure statement is particularly important where the FAA selects the airport sponsorâs preferred EIS contractor, to refute any later challenge that the EIS is biased or not im- partial. This is illustrated by Communities Against Runway Expansion, Inc. v. FAA299 (here- inafter, CARE), which involved a conflict-of- interest challenge against an EIS contractor. In that case, the FAA selected the original EIS con- tractor in December 1993.300 Later, the airport sponsorâs preferred consultant became a member of the EIS contractorâs âconsultant team.â301 In October 1996, the FAAâs minutes of a meeting with the airport sponsor reflected that the airport sponsor announced that its preferred consultant was âthe newâ EIS contractor.302 It was unclear 295 FAA AC 150/1500-14D, Â§ 2-10.g (2005). 296 ANDREWS ET AL., supra note 79, at 4. 297 40 C.F.R. Â§ 1506.5(c) (2012). 298 Id. 299 355 F.3d 678 (D.C. Cir. 2004). 300 Id. at 686. 301 Id. 302 Id.
36 what, if any, role was played by the FAA in nam- ing the airport sponsorâs preferred consultant as the new EIS contractor. However, the U.S. Court of Appeals for the D.C. Circuit upheld the EIS, concluding that even if âthe FAA did not properly discharge its obligationsâ in selecting the EIS con- tractor, there was no evidence that the EIS was biased.303 In reaching this conclusion, the D.C. Circuit relied heavily on the fact that the ultimate EIS contractor âexecuted a disclosure statement specifying that it had no financial or other inter- est in the outcome of the project,â and the disclo- sure statement identified the other projects per- formed for the airport sponsor by the EIS contractor.304 When the airport sponsor enters into a contract with the EIS contractor, it should also enter into a memorandum of understanding (MOU) with both the EIS contractor and the FAA.305 The MOU will state that the EIS contractorâs activities are to be directed by the FAA (not the airport sponsor),306 and that the airport sponsor (not the FAA) is obli- gated to pay the EIS contractor.307 Although the airport sponsor directly pays the EIS contractor, the FAA typically reimburses the airport sponsor for most of that expense.308 For example, the FAA may include the cost of EIS preparation in the AIP grant funds that the FAA ultimately provides the airport sponsor to construct the project.309 However, airport sponsors responding to the survey conducted for this digest indicated a less than universal adoption of the MOU requirement. Of the survey respondents with EIS experience, only half (four of eight) reported entering into an MOU with the FAA and the EIS contractor for preparation of an EIS. These airport sponsors re- port that the MOU is an unusual arrangement, and that it can be frustrating for the airport spon- sor because the airport sponsor is unable to con- trol the activities of the EIS contractor. One sur- vey respondent wrote that it is â[d]ifficult for airport sponsor organization to understand that the FAA is really the project manager and the [airport sponsor] is just a vehicle for payment.â Specific potential problem areas identified by the survey respondents included the following: 303 Id. 304 Id. at 687. 305 FAA Order 5050.4B, Â§ 201.b(6) (2006). 306 FAA Order 5050.4B, Â§ 1003.c(3) (2006). 307 FAA Order 5050.4B, Â§ 1003.c(4) (2006). 308 FAA Order 5050.4B, Â§ 1003.a(3) (2006). 309 FAA Order 1050.1E, App. B, Â§ 2d (2004). â¢ Difficulty reaching agreement with the FAA as to the scope of the EIS (number and type of environmental impact studies required) and the EIS contractorâs level of effort. â¢ Ineffective communication between the air- port sponsor and the EIS contractor, due to the EIS contractorâs understanding that the EIS con- tractor is not to be unduly influenced by the air- port sponsor. â¢ The airport sponsorâs perception that the EIS contractor lacks the airport sponsorâs sense of ur- gency, since the airport sponsor cannot direct the activities of the EIS contractor. â¢ No local presence (e.g., local office, local em- ployees) of the EIS contractor, particularly where the FAA selects an EIS contractor that was not recommended by the airport sponsor. â¢ The EIS contractorâs tendency to use out-of- region consultants with whom the EIS contractor may have an existing relationship, instead of rely- ing upon local subject-area experts, consultants, or subcontractors with whom the airport sponsor may have an existing relationship. Clearly, the best solution to these problems is early communication with the FAA, as it is the FAA who is to prepare the EIS contractorâs scope of work, to approve the reasonableness of the EIS contractorâs level of effort, and to direct the activi- ties of the EIS contractor. The latter two issues cited by survey respondents (related to local pres- ence and use of local consultants) are best han- dled when the airport sponsor is negotiating its EIS contractor selection criteria with the FAA. Certainly, the use of local consultants should have a favorable impact on the cost of EIS preparation, and cost will almost always be an important com- ponent of the selection criteria. Also, local experts may have more familiarity with specially pro- tected environmental resources in the airport vi- cinity that could be impacted by the proposed de- velopment, and may have been involved in past impact studies and mitigation measures related to protecting those resources. The airport sponsor should advise the FAA of any such specific advan- tages of using local consultants familiar with the airport site. In addition to the EIS contractor, the airport sponsor and FAA may work with other consult- ants during EIS preparation. As seen in the CARE case above, the airport sponsor may inde- pendently fund its own preferred consultant to
37 participate in meetings with the EIS contractor.310 The airport sponsor may also hire an independent consultant to participate in public hearings re- garding the EIS, to help explain the EIS contrac- torâs technical analysis to the interested public.311 The airport sponsor may also provide funds to the FAA (including AIP grant funds that the airport sponsor received from the FAA) for the FAA to hire additional consultants or staff to expedite processing of the EIS.312 The FAA may independ- ently hire a consultant who was not involved in EIS preparation to evaluate the work of the EIS contractor or the analyses contained within the EIS.313 In particular, where an airport sponsor has prepared an EIS or equivalent EIR to satisfy the requirements of a state mini-NEPA law, the FAA is likely to hire its own consultant to independ- ently review the work of the airport sponsorâs con- sultant before the FAA issues an EIS under NEPA.314 The EIS contractor may hire subcon- tractors with expertise in special-purpose envi- ronmental laws to handle portions of the EIS. The airport sponsor should make itself aware of all the parties participating in preparation of an EIS, and be aware of the chain of command (i.e., who directs the activities of each consultant). C. Exchange of Preliminary Environmental Reviews Airport sponsors are obligated to involve the public in the environmental review process. As discussed in subsection D herein, the airport sponsor, FAA, or both are generally required to publish (or make publicly available) final NEPA documents such as EAs and EISâs. In some cases, Draft EAs and Draft EISâs must also be made public and can potentially be the subject of public hearings. By the same token, it is often not in the interest of the airport sponsor for preliminary or 310 Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 686 (D.C. Cir. 2004). 311 See, e.g., Mass. Port Auth. v. City of Boston, No. 012731BLS2, 17 Mass. L. Rep. 125, 2003 Mass. Super. LEXIS 429, at *17 (Nov. 18, 2003). 312 FAA Order 1050.1E, App. D, Â§ 7.a (2004). A previous ACRP study concluded that airport sponsors can expedite the EIS process by funding an FAA environmental special- ist position dedicated to environmental review of the air- port sponsorâs proposed project. ANDREWS ET AL., supra note 79, at 25. 313 See, e.g., Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 682 (D.C. Cir. 2004). 314 See, e.g., Mass. Port Auth. v. City of Boston, No. 012731BLS2, 17 Mass. L. Rep. 125, 2003 Mass. Super. LEXIS 429, at *37 n.36 (Nov. 18, 2003). incomplete drafts, studies, and communications about specific impact categories to be made public. Such preliminary or incomplete findings could create the impression that a proposed develop- ment project will have a significant adverse envi- ronmental impact, when a fair reading of the complete or final study would suggest otherwise. For example, the airport sponsor, the FAA, or an- other agency participating in a coordinated envi- ronmental review may have concerns early in the NEPA process that the airport sponsorâs proposed development project will have certain adverse en- vironmental impacts. In most cases, these early concerns are alleviated either when the prescribed environmental impact analysis for that impact category suggests that impacts will be below sig- nificance thresholds, or upon determining that the impact can be mitigated below significance thresholds. Likewise, early in the environmental review process, a broad range of potential alterna- tives may be considered and even advocated by a party participating in the environmental review, before being discarded as unreasonable (e.g., be- cause it does not satisfy the purpose and need). Also, certain environmental concerns or potential alternatives might never be vocalized if there is concern that the discussion would later be dis- closed publicly. Airport sponsors would often like to be able to protect from public disclosure such preliminary, incomplete, internal communications involving potential impacts and alternatives that might later be determined to be insignificant or unreasonable, respectively. Sometimes the desire to protect preliminary opinions and communications from public disclo- sure conflicts with statutes and public policy fa- voring transparent government. Federal agencies such as the FAA are subject to the Freedom of Information Act (FOIA).315 Under FOIA, federal agencies receiving a request for public records that âreasonably describes such recordsâ¦shall make the records promptly available to any per- son.â316 Public airport sponsors and state agencies participating in environmental review are typi- cally subject to similar requirements under state law. These public records laws cover a broad range of records, and are not limited to final deci- sions of the agency and the documents supporting those decisions (such as EAs and EISâs). For ex- ample, upon receiving a public records request, âan agency shall make reasonable efforts to search for the records in electronic form or for- 315 5 U.S.C. Â§ 552 (2006). 316 5 U.S.C. Â§ 552(a)(3)(A) (2006).
38 mat,â317 such as emails or draft documents stored on the computers used by agency employees. This search will often reveal preliminary communica- tions or concerns that were later discarded as in- significant or unreasonable, but which can create the appearance of controversy or disagreement regarding the final agency decision. Opponents of airport development projects might use these re- cords to challenge the conclusions in an EA or EIS, and delay the project. However, the motiva- tion of the requestor (e.g., the requestor opposes the proposed development project) is irrelevant to the question of whether the records must be dis- closed.318 Therefore, it is important for the airport spon- sor and the FAA to be aware of exceptions to FOIA, where certain records need not be disclosed and may be withheld. Perhaps most importantly for NEPA purposes, FOIA does not apply to âin- ter-agency or intra-agency memorandums or let- ters which would not be available by law to a party other than an agency in litigation with the agency.â319 These exceptions are construed nar- rowly, with any doubts resolved in favor of public disclosure.320 Internal memoranda and other pre- liminary work products (including data collections and summary reports) prepared by the FAAâs em- ployees and its agents (e.g., consultants), and not shared outside the FAA, are typically protected from disclosure under the intra-agency communi- cations exception to FOIA.321 Information pre- pared by other federal agencies working in coor- dination with the FAA, such as the Corps of Engineers cooperating in a streamlined environ- mental review, could typically be protected from disclosure under the inter-agency communications exception to FOIA.322 However, it is not clear that there is any such legal protection for information transmitted be- tween the FAA and airport sponsors. For one rea- 317 5 U.S.C. Â§ 552(a)(3)(C) (2006). 318 United Techs. Corp. by Pratt & Whitney v. FAA, 102 F.3d 688, 691 (2d Cir. 1996). 319 5 U.S.C. Â§ 552(b)(5) (2006). 320 Town of Winthrop v. FAA, 328 F. Appâx 1, 4 (1st Cir. 2009). 321 See, e.g., Van Aire Skyport Corp. v. FAA, 733 F. Supp. 316, 321 (D. Colo. 1990) (âDocuments that reflect the mental processes of the government are deliberative, and can be withheld from production. Nonfinal drafts, by their very nature, are typically predecisional and delibera- tive materials because they reflect a tentative view and are subject to later revision.â). 322 5 U.S.C. Â§ 552(b)(5) (2006). son, the inter-agency communication exception only protects communications between the FAA and other agencies of the Federal Government,323 and airport sponsors generally are not federal agencies. Also, communications between the FAA and the airport sponsor probably do not qualify for the intra-agency communication as consultant communications, despite the alignment of inter- ests between the FAA and the airport sponsor. It is also important for airport sponsors to recognize that state public records laws often do not include inter-agency or intra-agency exceptions, so âinter- nalâ communications involving the airport staff, its consultants, and other agencies participating in a coordinated environmental review may not be protected from disclosure.324 As a general rule, communications between and documents transmitted between the FAA and the airport sponsor are not protected from public disclosure. In Department of the Interior v. Klamath Water Users Protective Association,325 the U.S. Supreme Court determined that communica- tions from Native American tribes to the Depart- ment of the Interior must be disclosed in response to a FOIA request, despite the âtrust obligationâ and âfiduciary relationshipâ between the tribes and the agency. The Court determined that the tribes did not qualify as consultants for purposes of the intra-agency communications exception be- cause the tribes were advocates for their own in- terests (in that case, water rights), which may come at the expense of other citizens. Likewise, although the interests of airport sponsors are of- ten aligned with the interests of the FAA when both support development at the airport, the air- port sponsor is ultimately subject to regulation by the FAA and is not truly an independent consult- ant. Where the airport sponsor has received AIP development grant funds, the funds have probably come at the expense of some other airport with its own worthwhile proposed development. By anal- ogy to the Klamath case, information shared be- tween the airport sponsor and the FAA regarding environmental review of the airport sponsorâs proposed development project is probably subject to FOIA disclosure, even where NEPA and related special-purpose laws do not mandate disclosure. 323 5 U.S.C. Â§Â§ 551(l), 552(f) (2006). 324 See, e.g., People ex rel. Birkett v. City of Chicago, 184 Ill. 2d 521, 528â34, 705 N. E. 2d 48, 51 (1998) (declining to allow airport sponsor to withhold inter-agency and intra- agency communications regarding airport development plans under state public records law). 325 532 U.S. 1, 121 S. Ct. 1060, 149 L. Ed. 2d 87 (2001).
39 The airport sponsor and FAA should always keep in mind that correspondence between them may have to be disclosed, regardless of whether such disclosure is required by NEPA. i. Public Disclosure of Preliminary Environmental Assessments and Related Documents As will be discussed in Section III.D.i, an EA (and sometimes a Draft EA) must be made pub- licly available, and may be subjected to public re- view and comment. However, the FAA requires the airport sponsor to file a Preliminary Draft EA with the FAA for internal review before any EA is made publicly available.326 The FAAâs internal review may include review for both technical cor- rectness and legal adequacy.327 If the FAAâs inter- nal review identifies deficiencies in the Prelimi- nary Draft EA, the FAA will ask the airport sponsor to revise the Preliminary Draft EA and resubmit it to the FAA for internal review.328 The EA that is ultimately made publicly available un- der NEPA will address the FAAâs comments on the Preliminary Draft EA, and will contain all revisions required by the FAA. NEPA itself does not require disclosure of the Preliminary Draft EA submitted by the airport sponsor to the FAA for internal review, and fail- ure to disclose it will not invalidate the NEPA review.329 However, this internal review version of the Preliminary Draft EA is probably subject to disclosure under FOIA or state public records law, since it is submitted by the airport sponsor to the FAA. NEPA itself does not require public disclo- sure of communications between the FAA, the airport sponsor, and other agencies participating in a coordinated environmental review, regarding internal concerns about or deficiencies in the Pre- liminary Draft EA.330 Likewise, internal FAA communications regarding the internal review are 326 FAA Order 5050.4B, Â§ 404.a(4)(a) (2006). 327 FAA Order 1050.1E, Â§ 404e (2004). 328 FAA Order 5050.4B, Â§ 707.c (2006). 329 See, e.g., Giulano v. State Depât of Transp., No. X01UWYCV014002704S, 2007 Conn. Super. LEXIS 3467, at *39 (Dec. 20, 2007) (holding that neither the preparation of a Preliminary Draft EA by a consultant for an airport sponsor nor the âpresentmentâ of the Preliminary Draft EA to the FAA for internal review are subject to the ânotice and commentâ requirements of NEPA or state mini-NEPA law). 330 See, e.g., City of Oxford, Ga. v. FAA, 428 F.3d 1346, 1357 (11th Cir. 2005) (âPetitioner seems to operate under the erroneous view that the FAA was required to provide it with all significant written correspondences between the FAA and theâ cooperating state agency or airport sponsor.). probably protected by the intra-agency exception to FOIA, and communications between the FAA and cooperating federal agencies regarding the Preliminary Draft EA are probably protected from disclosure under the inter-agency exception to FOIA. Furthermore, the internal review for legal adequacy is probably attorney-client privileged. However, under Klamath, communications from the FAA to the airport sponsor regarding deficien- cies in the Preliminary Draft EA are probably not protected from disclosure under a FOIA request to the FAA, or under a state-law public records re- quest to the airport sponsor. The survey conducted for this digest did not re- veal any widespread concerns over public disclo- sure of Preliminary Draft EAs. Of airport spon- sors with EA experience, a sizeable majority (27 of 44, or 61 percent) never experienced a public re- cords request for Preliminary Draft EAs. How- ever, a significant number (13 of 44, or 30 percent) âusuallyâ or âalwaysâ treat those documents as public records, and make them available upon request; only a few reported that they attempt to prevent disclosure of the Preliminary Draft EA. If challenged, it is likely that the airport sponsor or FAA would be required to produce the Prelimi- nary Draft EA and any comments from the FAA in response, since those documents do not appear to qualify for any FOIA exception.
40 Figure 8. Experience of Survey Respondents with Public Records Requests for Preliminary NEPA Documents. ii. Public Disclosure of Preliminary Environmental Impact Statements and Related Documents As will be discussed in Section III.D.iii, a Draft EIS must be made publicly available and sub- jected to public review and comment. However, the FAA requires the EIS contractor to file a Pre- liminary Draft EIS with the FAA for internal re- view, before any Draft EIS is made publicly avail- able.331 The FAAâs internal review may include review for both technical correctness and legal adequacy.332 NEPA does not require public disclo- sure of either the Preliminary Draft EIS, internal FAA communications regarding review of the Pre- liminary Draft EIS, or communications between the FAA and the EIS contractor regarding con- cerns about or deficiencies in the Preliminary Draft EIS.333 Also, because the EIS contractorâs work is to be directed solely by the FAA, the Pre- liminary Draft EIS (unlike the Draft EA prepared by the airport sponsor) and communications be- tween the FAA and the EIS contractor regarding 331 FAA Order 5050.4B, Â§ 1100 (2006). 332 FAA Order 1050.1E, Â§ 508a (2004). 333 See, e.g., Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 688 (D.C. Cir. 2004) (Airport develop- ment opponent âcites no provision of NEPA or its imple- menting regulations, the APA, or any FAA regulation re- quiring the disclosure of an EIS contractor's draft work product.â). the Preliminary Draft EIS can probably be pro- tected from public disclosure under the intra- agency exception to FOIA.334 For this reason, even when opponents of airport development projects obtain copies of the Preliminary Draft EIS in- tended for internal FAA review, courts tend to disregard those documents.335 The survey conducted for this digest did not re- veal any concerns related to public disclosure of Preliminary Draft EISâs. Of the survey respon- dents with EIS experience, most (six out of eight, or 75 percent) were unaware of any public records requests for Preliminary Draft EISâs. However, two survey respondents reported that the public is usually able to obtain the Preliminary Draft EIS upon request. The intra-agency exception will not operate to prevent disclosure of communications and envi- 334 See, e.g., Town of Winthrop v. FAA, 535 F.3d 1, 14â15 (1st Cir. 2008) (declining to require the FAA to produce documents that the FAA claims âpertain to internal delib- erative processes and were properly exempted from disclo- sure under FOIA,â including correspondence between the FAA and the EIS contractor). 335 See, e.g., Mass. Port Auth. v. City of Boston, No. 012731BLS2, 17 Mass. L. Rep. 125, 2003 Mass. Super. LEXIS 429, at *37 n.36 (Nov. 18, 2003) (attaching no evi- dentiary weight to an EIS contractorâs earlier revisions of a Preliminary Draft EIS that predated the Draft EIS that was made available for public review and comment).
41 ronmental impact data obtained from outside sources (aside from other federal agencies, in which case the documents may be protected under the inter-agency exception). Courts have allowed opponents of airport development to obtain such documents under FOIA even after ruling that there was no NEPA requirement to disclose those documents created in preparation of an EIS.336 So, for example, where the FAA is required (by stat- ute or its own procedures) to coordinate with the public or with nonfederal agencies (e.g., to address a particular impact category), those communica- tions probably must be disclosed in response to a FOIA request. Likewise, where the FAA claims that its communications with the EIS contractor are protected from disclosure under the intra- agency exception, but the EIS contractor has cor- responded (on behalf of the FAA) with the public or with state agencies in the process of preparing the EIS, any FOIA protection has probably been waived and that correspondence must be disclosed in response to a FOIA request.337 Most importantly for the airport sponsor, under Klamath, correspondence between the airport sponsor and either the FAA or the EIS contractor probably must be disclosed in response to a re- quest under FOIA or state public records law. This is important to recognize, since the airport sponsor will typically participate in meetings and studies with the FAA and the EIS contractor, par- ticularly in situations where the airport sponsor is required to prepare an EIS or equivalent EIR un- der a state mini-NEPA law or is a participant in the FAAâs coordinated environmental review proc- ess.338 In those situations, there is typically no inter-agency or intra-agency exception that would prevent the disclosure of documents (such as Pre- liminary Draft EISâs) that are shared between the airport sponsor and FAA. Courts will lean toward requiring the FAA to disclose any communications with the airport sponsor related to EIS prepara- tion, including data gathered by the airport spon- sor and provided to the FAA (or the EIS contrac- 336 See, e.g., St. Johnâs United Church of Christ v. City of Chicago, 502 F.3d 616, 624 (7th Cir. 2007); St. Johnâs United Church of Christ v. City of Chicago, 401 F. Supp. 2d 887, 906 (N.D. Ill. 2005). 337 See, e.g., Kroposki v. FAA, No. 08-CV-01519, 2009 U.S. Dist. LEXIS 76084, at *11 (Aug. 26, 2009) (dismissing FOIA claims against FAA for environmental review docu- ments in the possession of contractors, only because plain- tiff failed to allege facts suggesting that he exhausted ad- ministrative remedies). 338 Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 687 (D.C. Cir. 2004). tor) to support the EIS.339 Generally, however, disclosure of such preliminary documents under FOIA has no legal implications under NEPA.340 As long as the requirements of NEPA are followed (including the opportunity for public review and comment on the Draft EIS), the FAAâs decision to approve an EIS would only be subject to challenge if the preliminary documents disclosed under FOIA demonstrate that the EIS materially mis- represented the environmental impact analysis. Where the FAA has approved an EIS, but the airport sponsor has taken no major steps within 3 years after FAA approval to implement the ap- proved project, the airport sponsor may no longer assume the FAAâs approval is still valid.341 In that event, if the airport sponsor still wishes to pursue the proposed development, the FAA must perform another internal review to determine whether the EIS is still valid, or whether there are significant changes (such as new environmental impact data that contradicts the assumptions or conclusions of the EIS) that would require the EIS to be supple- mented.342 This internal review of an EIS that was previously approved, like the internal review of the Preliminary Draft EIS, need not be publicly disclosed under NEPA.343 However, keep in mind that, under Klamath, communications between the FAA and the airport sponsor, including re- quests for and transmission of new environmental impact data to support the FAAâs internal review, may be subject to disclosure under FOIA. D. Publication Section III.C discussed whether certain envi- ronmental review documents, particularly pre- liminary draft NEPA reports, are public records that must be produced when requested. A related but different question is what is the legal respon- 339 See St. Johnâs United Church of Christ v. City of Chi- cago, 502 F.3d 616, 624 (7th Cir. 2007); St. Johnâs United Church of Christ v. City of Chicago, 401 F. Supp. 2d 887, 906 (N.D. Ill. 2005). 340 See, e.g., Kroposki v. FAA, No. 08-CV-01519, 2009 U.S. Dist. LEXIS 76084, at *8 n.4 (Aug. 26, 2009) (declin- ing to reopen the public comment period on an EIS based on FOIA documents provided by the FAA after the close of the public comment period). 341 FAA Order 5050.4B, Â§ 1401.c (2006); FAA Order 1050.1E, Â§ 514b (2004). 342 FAA Order 5050.4B, Â§ 1401.d (2006); FAA Order 1050.1E, Â§ 515c (2004). 343 Id.; see also Town of Winthrop v. FAA, 535 F.3d 1, 8 (1st Cir. 2008) (âThe written reevaluation determining whether it is necessary to prepare an SEIS need not, how- ever, be made public.â).
42 sibility of the airport sponsor and FAA to publicly disclose NEPA reports (and drafts) after they are no longer preliminary? Both NEPA and FAA regu- lations require opportunities for public review and comment at certain points in the environmental review process, which carries a greater obligation than merely producing public records upon re- questâthe document must be published and pub- lic comment must be solicited. This section exam- ines the airport sponsorâs role in that process. i. Publication of Planning Documents â[T]he FAA does not control or direct the ac- tions and decisions ofâ airport sponsors in the pre- NEPA planning phase.344 Before the airport spon- sor invokes NEPA by requesting FAA funding for a new development project or FAA approval of a revised ALP, there is generally no federal re- quirement for public disclosure of airport devel- opment planning. However, development plan- ning documents may be subject to public disclosure under state open records laws. Also, airport sponsors may find it of strategic benefit to make planning documents (both draft and final) available to the surrounding community and in- terested public.345 Where the airport sponsor takes part in FAA- funded planning activities, however, there typi- cally are federal requirements for public disclo- sure and public participation. For example, if the airport sponsor prepares a NEM, the airport spon- sor must allow âthe public to review and comment during the development of the map.â346 When the airport sponsor submits the final NEM to the FAA, the airport sponsor must certify that it has afforded âinterested personsâ adequate opportu- nity to comment on the draft NEM, including the planning data (e.g., airport operations forecasts) on which it was based.347 The NEM may be used in the development of an updated ALP showing proposed developments at the airport. To the ex- tent the proposed developments implicate NEPA, environmental review of the proposed develop- ments is subject to publication as described in the following sections. ii. Publication of Environmental Assessments After the FAA has internally reviewed the air- port sponsorâs Preliminary Draft EA, the airport 344 City of Bridgeton v. FAA, 212 F.3d 448, 454 (8th Cir. 2000). 345 ANDREWS ET AL., supra note 79, at 14, 24. 346 14 C.F.R. Â§ 150.21(b) (2012). 347 Id. sponsor must prepare a Draft EA that has been revised to address the FAAâs comments and con- cerns.348 If the proposed development involves a new airport, a new runway, or a major runway extension, the airport sponsor must make this revised Draft EA available to the public for 30 days.349 (Recall, however, that an EIS is normally required for projects involving a new commercial service airport or a new runway at an existing commercial service airport located in a metropoli- tan statistical area.350 In those cases, the FAA may bypass the EA process for such projects and begin preparing an EIS, in which case there will be no Draft EA to publish.) It is the airport spon- sorâs obligation to publish a notice âin an area- wide or local newspaper having general circula- tionâ specifying the locations and times when the Draft EA will be available for public review.351 The presumption is that the airport sponsor will make hard copies of the Draft EA available in a physical location, although it will typically be more convenient for both the airport sponsor and the interested public for the airport sponsor to also make the Draft EA available electronically. Certain special-purpose environmental laws also have public review requirements, so the air- port sponsor should consider whether the pro- posed development project will impact those spe- cially protected resources (namely, historic sites, wetlands, and floodplains).352 If so, a single 30-day public review period generally satisfies all of the applicable environmental review laws, as long as proper public notice is given. Therefore, the air- port sponsor should coordinate with the FAA to ensure that the airport sponsorâs notice of Draft EA availability, and any similar notice that the FAA is required to make under a federal special- purpose law, are made simultaneously, so that the 30-day public review period for the Draft EA only occurs once. Upon conclusion of the 30-day public review period, the airport sponsor will typically hold a public hearing (as described in Section III.E.ii in- fra). After that, it is the airport sponsorâs respon- sibility to revise the EA to respond to any âsub- stantive public concernsâ raised concerning the Draft EA during the public review process.353 To respond to some comments, the airport sponsor 348 FAA Order 5050.4B, Â§Â§ 404.a(4)(a), 708.a (2006). 349 Id. 350 FAA Order 5050.4B Â§ 903.b (2006). 351 FAA Order 5050.4B, Â§ 404.a (2006). 352 FAA Order 5050.4B, Â§Â§ 403.b, 708.b (2006). 353 FAA Order 5050.4B, Â§ 709 (2006).
43 (or its EA consultant) may have to perform addi- tional environmental impact analyses for certain impact categories.354 The Final EA should incor- porate these subsequent studies that respond to public comments on the Draft EA. Generally speaking, there is no requirement for these sup- plemental environmental analyses in the Final EA to be subjected to public review and comment, even though they would have been subject to pub- lic review and comment if they had been included in the Draft EA.355 However, the airport sponsor should consider whether the supplemental envi- ronmental analyses represent a significant change from the conclusions of the Draft EA (e.g., result- ing in a new proposed alternative). If so, the air- port sponsor should consult with the FAA to de- termine whether a Supplemental Draft EA should be issued and subjected to an additional 30-day public review and comment period before the air- port sponsor submits its Final EA to the FAA.356 If the Final EA concludes that there will be sig- nificant environmental impacts that cannot be satisfactorily mitigated, then an EIS will have to be performed before the FAA can approve the pro- posed development. However, if the airport spon- sorâs Final EA concludes that there will not be significant environmental impacts, and if the FAA concurs, then the FAA will issue a FONSI. (At this point, the preliminary Draft EA will already have been through the FAAâs internal review, and the Final EA will reflect revisions to address the FAAâs comments and concerns, so it is likely that the FAA will concur with the conclusion in the Final EA.) When the FONSI is issued, it is the FAAâs obligation to make the Final EA and FONSI publicly available, to announce a location (typically an FAA office) where the Final EA and FONSI can be reviewed, and to provide copies (preferably electronic) of the Final EA and FONSI 354 See, e.g., Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) (âIn response to comments on a draft environmental assessment, the FAA conducted a Supple- mental Noise Analysis on the potential noise impacts of the replacement airport.â). 355 See, e.g., California v. U.S. Depât of Transp., 260 F. Supp. 2d 969, 978 (N.D. Cal. 2003) (overturning the FAAâs FONSI and requiring an EIS in part because environ- mental analyses subsequent to the Draft EA were not sub- jected to public review and comment). 356 See, e.g., Town of Cave Creek, Ariz. v. FAA, 325 F.3d 320, 325 (D.C. Cir. 2003) (describing a Supplemental Draft EA with an additional public review and comment period, where the Supplemental Draft EA analyzed a new alterna- tive not discussed in the Draft EA). to anyone who requests them.357 Although this is the FAAâs obligation under NEPA, the FAA con- siders it âmost effectiveâ for the airport sponsor to assist by publishing the announcement in âmedia serving the project impact area,â such as local newspapers and the airport Web site.358 The air- port sponsorâs notice must mention the FAA. Unlike publication of the Draft EA, in which the public has a 30-day review and comment pe- riod, publication of the Final EA and FONSI typi- cally signifies the final decision of the FAA. In limited circumstances, however, the FAA will make a proposed FONSI/EA available for a 30- day public review period before issuing a final ROD.359 As mentioned previously, certain special- purpose environmental laws require a 30-day public review and comment period, so the FAA may have to make the proposed FONSI/EA pub- licly available if the proposed development will impact specially protected environmental re- sources (i.e., historic sites, wetlands, or flood- plains) and the airport sponsor did not previously make the Draft EA publicly available (e.g., be- cause the proposed development does not involve a new airport, new runway, or major runway ex- tension).360 Also, a 30-day public review and com- ment period is required for a proposed FONSI/EA if the FAA plans to issue a FONSI for an action that would ordinarily require an EIS, or for an action that is without precedent.361 In most cases, however, there is no general requirement for the airport sponsorâs Final EA and the FAAâs FONSI to be subjected to public review and comment prior to final publication. iii. Publication of Environmental Impact Statements After the FAA has internally reviewed a Pre- liminary Draft EIS, the EIS contractor must pre- pare a Draft EIS that has been revised to address the FAAâs comments and concerns.362 The FAA is always required to make this revised Draft EIS available to the public for 45 days.363 This occurs by the FAA filing five copies of the Draft EIS with the Environmental Protection Agency (EPA).364 It 357 FAA Order 5050.4B, Â§ 807.a (2006). 358 FAA Order 5050.4B, Â§ 807.b (2006). 359 FAA Order 5050.4B, Â§Â§ 804.b, 804.c (2006). 360 FAA Order 5050.4B, Â§ 804.b(3) (2006). 361 FAA Order 5050.4B, Â§Â§ 804.b(1), 805.a (2006). 362 FAA Order 5050.4B, Â§ 1100 (2006). 363 FAA Order 5050.4B, Â§ 1102 (2006). 364 FAA Order 5050.4B, Â§ 1101.b(1)(d)(2) (2006).
44 is then the EPAâs responsibility to publish a notice of public availability in the Federal Register, al- though the FAA is encouraged to also publish a notice of availability in âlocal newspapersâ and âother local mediaâ in the area affected by the proposed development project.365 The airport sponsor may need to handle coordination with the local media, especially coordination of the publica- tion date (so that the local notice appears on the same date as the Federal Register notice, so that the end date of the 45-day review period can be accurately determined).366 The FAA will typically make the Draft EIS available to the public elec- tronically.367 Unlike the Draft EA, which is prepared by the airport sponsorâs EA consultant, the Draft EIS is prepared by the EIS contractor who takes direc- tion solely from the FAA. Therefore, the FAA must specifically request comments from the air- port sponsor (in addition to the public) regarding the Draft EIS during the 45-day review period.368 Upon completion of the review period, the FAA (or the EIS contractor) must revise the EIS to re- spond to any âsubstantive commentsâ received concerning the Draft EIS, whether those com- ments come from the airport sponsor, the public, or another government agency.369 To adequately respond to comments on the Draft EIS, the FAA (or the EIS contractor) may have to perform additional studies of environ- mental impacts, consider additional alternatives, or consider additional mitigation measures. De- pending on the scope of the additional study or revisions that will be required to address the comments, the FAA may opt to prepare a Sup- plemental Draft EIS for public review and com- ment.370 If the additional analysis adequately re- sponds to the comments without changing the conclusions or preferred alternative from the Draft EIS, then supplementation is probably not necessary and the FAA would probably proceed directly to the Final EIS (which must report the comments and the study performed in re- 365 40 C.F.R. Â§ 1506.6(b) (2012); FAA Order 5050.4B, Â§ 1101.b(3)(a) (2006). 366 FAA Order 5050.4B, Â§ 1101.b(3)(b) (2006). 367 FAA Order 5050.4B, Â§ 1101.b(2) (2006). 368 FAA Order 5050.4B, Â§ 1101.a(4) (2006). 369 FAA Order 5050.4B, Â§ 1101.a (2006); see also 40 C.F.R. Â§ 1503.4 (2012). 370 See, e.g., Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 682 (D.C. Cir. 2004) (âIn response to public concerns, the FAA opted to prepare a Supplemental Draft EIS (âSDEISâ) to address certain issues.â). sponse).371 Likewise, if the FAA is able to address the comments on the Draft EIS by making minor adjustments to its preferred alternative, the FAA may opt to proceed directly to publishing a Final EIS with those modifications.372 There are no FAA guidelines or formal NEPA requirements explain- ing when a Supplemental Draft EIS should be prepared and submitted for public review. How- ever, courts consider it not âidealâ for significant deviations from the Draft EIS (such as a new pre- ferred alternative or proposals for significant new mitigation measures) to appear for the first time in a Final EIS.373 Preferably, such analysis would be subjected to public review and comment in a Draft EIS or Supplemental Draft EIS. Once the FAA (or the EIS contractor) has ad- dressed all substantive comments received on the Draft EIS (or Supplemental Draft EIS), it pre- pares the Final EIS for a 30-day public review âwait period.â374 The FAA is to âsimultaneouslyâ375 distribute one copy of the Final EIS to everyone who provided substantive comments on the Draft EIS376 (including the airport sponsor), five copies to the EPA,377 and a number of copies to other fed- 371 The FAA is to perform whatever additional analysis is necessary to adequately respond to substantive com- ments from the airport sponsor, the public, and other agen- cies. Where the other agencies have an obligation to pre- pare an EIS of their own (or to âadoptâ the FAAâs EIS as cooperating agencies in a streamlined environmental re- view), those agencies may also perform their own analysis to ensure that their concerns are addressed. If the agency ultimately adopts the FAAâs Final EIS, this additional analysis performed subsequent to the FAAâs Final EIS might never appear in a Draft EIS and would conceivably escape the NEPA public review and comment process. See, e.g., Davis Mountains Trans-Pecos Heritage Assân v. FAA, 117 F. Appâx 3, 18 n.64 (5th Cir. 2004) (â[I]n order for a cooperating agency to adopt the lead agencyâs EIS, the NEPA process actually requires the cooperating agency to do some independent study after the final EIS has been prepared.â). 372 See, e.g., Village of Bensenville v. FAA, 457 F.3d 52, 59 (D.C. Cir. 2006) (â[I]n the final EIS, the FAA proposed to conclude that [its preferred alternative from the Draft EIS], as modified to [address public comments], was the least restrictive means of achieving the federal govern- mentâs compelling interest in increasing capacity and re- ducing delay.â). 373 Davis Mountains Trans-Pecos Heritage Assân v. FAA, 116 F. Appâx 3, 14â15 (5th Cir. 2004). 374 FAA Order 5050.4B, Â§ 1303 (2006). 375 FAA Order 5050.4B, Â§ 1211.a (2006). 376 FAA Order 5050.4B, Â§ 1211.d (2006). 377 FAA Order 5050.4B, Â§ 1211.f (2006); see also 40 C.F.R. Â§ 1506.9 (2012).
45 eral agencies.378 Upon receipt of the FAAâs Final EIS, the EPA will publish a notice of availability of the Final EIS in the Federal Register.379 Like- wise, the FAA is to announce the availability of the Final EIS in local newspapers and other local media. As with the Draft EIS, the airport sponsor should probably coordinate the publication with the local media to synchronize the timing of that notice with the Federal Register notice, which will be used to start the 30-day âwait period.â The FAA is required to make the Final EIS âavailable to the public at publicly accessible locations.â380 The presumption is that the FAA will make hard cop- ies of the Final EIS available in a physical loca- tion, although (as with the Final EA) it will typi- cally be more convenient if the airport sponsor assists by also making the Final EIS available electronically (e.g., on the airport Web site). Unlike the Draft EIS, the FAA is not required to solicit comments from the public, other agen- cies, or the airport sponsor regarding the Final EIS.381 Also unlike the Draft EIS, the FAA is not required to respond to comments received during the 30-day âwait periodâ regarding the Final EIS.382 Upon conclusion of the 30-day âwait pe- riodâ383 (but no sooner than 90 days after the Draft EIS was first made public),384 the FAA will prepare a final ROD approving or not approving the Final EIS.385 Unlike the Final EIS, NEPA does not require the ROD to be made publicly avail- able. However, the FAA typically publishes a no- tice of availability of the ROD in the Federal Reg- ister.386 E. Public Hearings The FAA states that it is generally the respon- sibility of the airport sponsor to â[p]rovide oppor- tunities for public participation, and a public hearing, if one is appropriate,â regarding proposed development at an airport.387 Before the FAA will 378 FAA Order 5050.4B, Â§ 1211.g (2006). 379 FAA Order 5050.4B, Â§ 1211.f (2006). 380 FAA Order 5050.4B, Â§ 1211.i (2006). 381 See FAA Order 5050.4B, Â§ 1211.b (2006) (âAn agency may request comments on an FEIS.â) (emphasis added); see also 40 C.F.R. Â§ 1503.1(b) (2012). 382 See FAA Order 5050.4B, Â§ 1211.a (2006) (noting that the FAA âmay choose to circulateâ revisions to the Final EIS in response to comments). 383 FAA Order 5050.4B, Â§ 1300 (2006). 384 FAA Order 5050.4B, Â§ 1101.b(1)(d)(2) (2006). 385 FAA Order 5050.4B, Â§ 1301 (2006). 386 FAA Order 5050.4B, Â§ 1304 (2006). 387 FAA Order 5050.4B, Â§ 201.b(4) (2006). approve an airport sponsorâs funding request for a new airport, a new runway, or a major runway extension, the airport sponsor must certify to the FAA that âan opportunity for a public hearing was given to consider the economic, social, and envi- ronmental effects of the location and the locationâs consistency with the objectives of any planning that the community has carried out.â388 In addi- tion to the FAAâs statutory public hearing re- quirements, NEPA requires public hearings to take place âwhenever appropriate.â389 The airport sponsor should thus keep in mind that the âpublic hearingâ requirement is fluid, and the number of public hearings to be held depends upon the con- troversial nature of the project, the degree of pub- lic interest in the project, and the persuasiveness of requests for public hearings.390 The FAA defines âpublic hearingâ as âa gather- ing under the direction of a designated hearing officer for the purpose of allowing interested par- ties to speak and hear about issues of concern to interested parties.â391 This definition leaves the airport sponsor a great deal of flexibility in how public hearings are to be conducted. In declining to define the term more specifically, the FAA ex- plained that âpublic hearingâ is a âterm of artâ under NEPA and that âthe most important as- pects of a traditional, formal hearing are that a designated hearing officer controls the gathering and there is an accurate record of the major public concerns stated during the gathering.â392 This sec- tion explores how the airport sponsor and FAA will satisfy those requirements at different stages in the environmental review. i. Public Hearings on Pre-NEPA Planning Documents The FAA does not control the pre-NEPA devel- opment planning process, and there are generally no federal requirements for public hearings prior to the airport sponsor invoking NEPA by request- ing FAA approval or funding for a development project. However, state open meetings laws may require certain development planning meetings of the airport sponsor to be open to the public. Where the airport sponsor accepts FAA funding for certain planning activities, FAA regulations may call for public hearings. For example, if the 388 49 U.S.C. Â§ 47106(c)(A)(i) (2012). 389 40 C.F.R. Â§ 1506.6(c) (2012). 390 FAA Order 5050.4B, Â§ 403.a (2006); FAA Order 1050.1E, Â§ 209a (2004). 391 FAA Order 5050.4B, Â§ 403.a (2006). 392 71 Fed. Reg. 29014, 29032 (2006).
46 airport sponsor prepares a Noise Compatibility Program to address the noise impact of the exist- ing airport layout, the airport sponsor must âpro- vide notice and the opportunity for a public hear- ingâ prior to submitting the Noise Compatibility Program to the FAA for approval.393 The submis- sion to the FAA must summarize the comments received at the public hearing, as well as all writ- ten submissions received, and the airport spon- sorâs response to those comments from the pub- lic.394 The Noise Compatibility Program should address noise impacts of the existing airport lay- out rather than proposed developments; proposed new developments should generally be considered in the NEPA process rather than the Noise Com- patibility Program.395 However, Noise Compatibil- ity Programs may identify development projects that could better distribute noise impacts. NEPA documents for such proposed development pro- jects have been upheld, despite the airport spon- sorâs failure to hold public hearings on the NEPA documents, where the proposal resulted from a Noise Compatibility Program that was subject to extensive public involvement and opportunity to comment.396 ii. Public Hearings on the Environmental Assessment If the airport sponsor is preparing an EA in- volving a new airport, a new runway, or a major runway extension, it must provide an opportunity for a public hearing on the Draft EA (as revised by the airport sponsor to address any FAA concerns on the Preliminary Draft EA).397 (Recall, however, that an EIS is normally required for projects in- volving a new commercial service airport or a new runway at an existing commercial service airport located in a metropolitan statistical area.398 In those cases, the FAA may bypass the EA process for such projects and begin preparing an EIS, in which case there will be no Draft EA and the pub- lic hearing will take place during EIS prepara- tion, as described in the following section.) When the airport sponsor prepares a Draft EA for a pro- ject requiring a public hearing, at the time the Draft EA is made available to the public, the air- port sponsor must publish a notice of opportunity 393 14 C.F.R. Â§ 150.23(d) (2012). 394 14 C.F.R. Â§ 150.23(e)(7) (2012). 395 FAA Order 5050.4B, Â§ 706.g(3) (2006). 396 See Heide v. Molnau, FAA Docket Nos. 16-04-11, 16-05-05, 16-05-15 (Jul. 7, 2006). 397 FAA Order 5050.4B, Â§Â§ 404.a(4)(a), 708.a (2006). 398 FAA Order 5050.4B Â§ 903.b (2006). for public hearing âin an area-wide or local news- paper having general circulation.â399 This notice must provide 15 days in which anyone receiving the notice may request a public hearing.400 Upon receiving such request (or upon determining that a public hearing should be held), the airport spon- sor then must publish a notice of hearing in the same newspaper at least 30 days prior to the hearing, stating the time and location of the hear- ing, as well as âa list of potentially affected envi- ronmental resourcesâ drawn from the Draft EA.401 If multiple requests for public hearing are re- ceived, the airport sponsor should consider whether multiple public hearings are required (taking into account the controversial nature of the project, the degree of public interest in the project, and the variety of concerns cited in the requests for public hearings).402 If a public hearing is required, the airport sponsor cannot prepare the Final EA before the public hearing is held.403 The survey conducted for this digest indicated a wide range of experience with holding public hearings on Draft EAs. As illustrated in Figure 9, of the airport sponsors with EA experience, a size- able minority (17 out of 44, or 39 percent) never held a public hearing on a Draft EA from 2004 to the present. One survey respondent reported hold- ing 28 public hearings on Draft EAs in that time- frame. Half of the survey respondents with EA experience (22 out of 44) held between one and four public hearings on Draft EAs. 399 FAA Order 5050.4B, Â§ 404.a (2006). 400 FAA Order 5050.4B, Â§ 404.a(5) (2006). 401 FAA Order 5050.4B, Â§ 406.b (2006). 402 See, e.g., Town of Cave Creek, Ariz. v. FAA, 325 F.3d 320, 325 (D.C. Cir. 2003) (âIn April 2001, the FAA circu- lated the DEA for public comment and held four public workshops to explain the project, answer questions, and accept written comments on the DEA.â). 403 FAA Order 5050.4B, Â§ 709 (2006).
47 Figure 9. Experience of Survey Respondents with Public Hearings on Draft NEPA Documents. The public hearing must afford the public an opportunity to âspeak and hearâ about the pro- posed development and environmental issues of concern. Therefore, the public hearing will typi- cally involve a presentation (by the FAA, the air- port sponsor, or the EA consultant) about the pro- ject and any issues of concern that are discussed in the Draft EA.404 Thereafter, members of the public should be allowed to provide oral testi- mony, ask questions, and obtain real-time feed- back (if possible) from the FAA, the airport spon- sor, or the EA consultant.405 The airport sponsor must arrange for a transcript of these proceedings to be made.406 The airport sponsor must also pro- vide 10 days after the public hearing in which members of the public can submit additional writ- ten comments.407 404 See, e.g., Barnes v. U.S. Depât of Transp., 655 F.3d 1124, 1130, 1142 (âTwice during the meeting, the [airport sponsor] made a presentation providing an overview of the project and summarizing the results of the DEAâ¦Twice during the two-hour meeting, the FAA made a presenta- tion about the project and the EA.â). 405 Id. at 1142 (âThe members of the public were invited to talk to project team members, who were available to answer their questions and get their feedback. The mem- bers of the public were also invited to visit the oral testi- mony area to provide their feedback.â). 406 FAA Order 5050.4B, Â§ 406.c (2006). 407 FAA Order 5050.4B, Â§ 406.b(4) (2006). Public hearings on Draft EAs may generate numerous comments for the airport sponsor.408 The airport sponsor must consolidate all âsub- stantive comments obtained during hearingâ and forward those comments to the FAA.409 The Final EA must âinclude a detailed summary of issues raised during the public hearing and responses to those issues.â410 The response may include further analysis of environmental impacts or alternatives; however, discussions of environmental impacts, alternatives, and other issues in the EA (unlike the EIS) are to be âbrief.â411 The airport sponsor âis under no obligation to respond individually to each and every concern raised during the com- ment periodâ on a Draft EA.412 In response to the survey conducted for this digest, the overwhelm- ing majority of airport sponsors with EA experi- ence (36 out of 44, or 82 percent) reported that they never had to revise an EA to address com- ments raised during a public hearing. If the air- port sponsor does perform additional analysis to respond to comments raised during a public hear- 408 See, e.g., C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1571 (11th Cir. 1988) (describing a public hearing on a Draft EA for a runway extension that was attended by 2,000 citizens who submitted 3,500 comments). 409 FAA Order 5050.4B, Chart 2 (2006). 410 FAA Order 5050.4B, Â§ 406.d (2006). 411 40 C.F.R. Â§ 1508.9(b) (2012). 412 Safeguarding the Historic Hansom Areaâs Irreplace- able Res., Inc. v. FAA, 651 F.3d 202, 212 (1st Cir. 2011).
48 ing, there is generally no requirement to hold ad- ditional public hearings to present the results of that analysis. It is in the FAAâs discretion whether to require the airport sponsor to hold ad- ditional public hearings.413 If the public hearing on the Draft EA is ade- quately conducted (i.e., proper notice, designation of a âhearing officer,â opportunity for the public to âspeak and hear,â414 and adequate documentation of the proceedings), the record of the public hear- ing can be invaluable later in upholding a FONSI. Courts have upheld FONSIs against such chal- lenges as failure to adequately consider cumula- tive impacts or all possible alternatives, where the public failed to raise those concerns during the public hearing.415 However, the publicâs failure to raise âobviousâ environmental concerns during the public hearing does not absolve the airport spon- sor from addressing those concerns in the EA, es- pecially where the airport sponsor has âindepend- ent knowledge of a reasonable possibilityâ that such environmental concerns exist.416 Even where the FAA does not require a public hearing on the Draft EA (e.g., for projects not in- volving a new airport, new runway, or major run- way extension), the proposed development project may implicate special-purpose laws that require âpublic participationâ (i.e., if the proposed devel- opment is expected to impact historic sites, wet- lands, or floodplains).417 For other special-purpose laws that do not have public participation re- quirements, another government agency with ju- risdiction over the specially protected environ- mental resource may nevertheless request that the airport sponsor hold a public hearing.418 In these situations, the FAA recommends using the same public hearing approach described above419 (i.e., providing notice of opportunity for public 413 See, e.g., City of Oxford, Ga. v. FAA, 428 F.3d 1346, 1357 (11th Cir. 2005) (âThe FAA properly exercised its discretion in concluding that no further meetings would be useful.â). 414 FAA Order 5050.4B, Â§ 403.a (2006). 415 See, e.g., Barnes v. U.S. Depât of Transp., 655 F.3d 1124, 1136 (9th Cir. 2011) (holding that the petitioner âwaivedâ its argument that reasonable alternatives were not considered, where the petitionerâs public hearing com- ments âfailed to alert the agencies to the argument that the range of alternatives to the project actually discussed in the EA was not reasonable.â). 416 Id. at 1134. 417 FAA Order 5050.4B, Â§ 403.b (2006). 418 FAA Order 5050.4B, Â§ 403.a (2006). 419 FAA Order 5050.4B, Â§ 404.b (2006). hearing, making the Draft EA available for 30 days beforehand, providing an opportunity for the public or government agency to âspeak and hearâ about the proposed project, and making a record of the proceedings). Where public hearings are required under both special-purpose environ- mental laws and the FAAâs NEPA regulations, the special-purpose public hearing is typically con- ducted first.420 Then, all comments received from the public or government agency at the special- purpose public hearing should be made available by the airport sponsor at the NEPA public hear- ing on the Draft EA.421 iii. Environmental Impact Statement The EIS is prepared by the FAA (or the EIS contractor working under the direction of the FAA) and not the airport sponsor. Nevertheless, as this digest has made clear, the airport sponsor plays an important role in preparation of the EIS. If the EIS concerns âa new airport, new runway, or major runway extension for which an airport sponsor intends to seek AIP funding,â the Final EIS must include a âcertification from the airport sponsor that it has provided an opportunity for a public hearingâ¦to consider economic, social, and environmental effectsâ of the project.422 This does not necessarily require the airport sponsor to pro- vide a public hearing to consider the Draft EIS. For example, if the airport sponsor previously pre- pared an EA for the proposed development project before the FAA began preparing the EIS, then the public hearing on the Draft EA (described in the previous section) would technically satisfy this requirement. Ultimately, it is up to the discretion of the FAA whether to require an additional pub- lic hearing on the Draft EIS. In response to the survey conducted for this digest, of the airport sponsors with EIS experience, most (5 out of 8, or 63 percent) reported that public hearings had been held on Draft EISâs for proposed develop- ment projects at their airports. Where public participation is also required un- der special-purpose environmental laws under the jurisdiction of other government agencies, the FAA encourages joint public hearings on the Draft EIS, to the extent possible, if that will âsatisfy the 420 See, e.g., City of Oxford, Ga. v. FAA, 428 F.3d 1346, 1350 (11th Cir. 2005) (describing a âspecial interestâ meet- ing regarding historic resources held âon the heelsâ of pub- lication of the Draft EA, 1 week before the NEPA public hearing). 421 FAA Order 5050.4B, Â§ 403.b (2006). 422 FAA Order 5050.4B, Â§ 1203.b(1) (2006).
49 NEPA requirements for each Federal agency in- volved in a proposed action.â423 Likewise, a joint public hearing may be held to satisfy both the FAAâs NEPA requirements and the airport spon- sorâs requirements under a state mini-NEPA law.424 If a public hearing is required (either by the FAA or to satisfy the public participation re- quirement of some special-purpose environmental law) prior to publication of the Final EIS, the FAA will provide notice of opportunity for public hear- ing in the same announcement in which it pro- vides notice of availability of the Draft EIS.425 Unlike the notice of availability, the notice of op- portunity for public hearing need not be published in the Federal Register unless the proposed devel- opment has ânational implications.â426 If the FAA receives a request for public hearing, the airport sponsor is required to publish a notice of the pub- lic hearing in local media at least 30 days in ad- vance of the public hearing.427 The notice must state the time and location of the hearing, as well as âa list of potentially affected environmental resourcesâ drawn from the Draft EIS.428 Like the Final EA, the Final EIS âshould in- clude a detailed summary of issues raised during the public hearing and responses to those is- sues.â429 The FAA is to provide the airport sponsor a copy of the transcript of the public hearing.430 However, because the EIS is prepared by the FAA (or the EIS contractor under the FAAâs direction), the airport sponsor has no formal role to play in summarizing the public comments or responding to them.431 However, it is clearly in the airport sponsorâs interest to work closely with the public and help respond to concerns raised during public 423 FAA Order 5050.4B, Â§ 9.j (2006). 424 See, e.g., Mass. Port Auth. v. City of Boston, No. 012731BLS2, 17 Mass. L. Rep. 125, 2003 Mass. Super. LEXIS 429, at *16 (Nov. 18, 2003) (â[T]he FAA held two public hearings on the draft EIS/EIR.â). 425 FAA Order 5050.4B, Â§ 1101.b(1)(d); FAA Order 1050.1E, Â§ 508c(3) (2004). 426 FAA Order 1050.1E, Â§ 209c (2004). 427 FAA Order 5050.4B, Chart 3 (2006). 428 FAA Order 5050.4B, Â§ 406.b (2006). 429 FAA Order 5050.4B, Â§ 406.d (2006). 430 FAA Order 5050.4B, Â§ 406.c (2006). 431 See, e.g., FAA Order 1050.1E, Â§ 508g (2004) (requir- ing the FAA to consider âcomments made during public hearingsâ on the Draft EIS, and to revise the EIS to reflect âissues raised through the community involvement and public hearing process.â). hearings.432 In response to the survey conducted for this digest, of the airport sponsors with EIS experience, a small minority (2 out of 8, or 25 per- cent) reported that an EIS had been revised to address comments raised during public hearings. After the FAA (or the EIS contractor) revises the EIS to reflect public comments, it makes the Final EIS available for a 30-day âwait periodâ be- fore the FAA publishes its ROD, approving or not approving the project. There is no requirement for a public hearing on the Final EIS. However, where the project is âa new airport, new runway, or major runway extension,â the Final EIS must include the airport sponsorâs certification that the opportunity for public hearing was provided at some point during the NEPA review process. Also, the Final EIS must include the airport sponsorâs certification either that its management board âhas voting representation from the communities in which the project is located,â or that the airport sponsor âhas advised the communities that they have the right to petition the Secretary [of Trans- portation] about [the] proposed project.â433 How- ever, courts have upheld RODs where there was no such certification from the airport sponsor, as long as the Final EIS documents âthe extensive participation of local communities in the envi- ronmental review process.â434 Therefore, it is in the airport sponsorâs interests to make a good faith effort (in coordination with the FAA) to pro- vide opportunities for public hearing on the EIS. F. Coordination of Outside Agencies The airport sponsor is to take on the responsi- bility âas neededâ to coordinate the activities of other federal, state, and local agencies during the environmental review process.435 In the survey conducted for this digest, the most common con- cern raised by airport sponsors was the role of âoutsideâ (i.e., non-FAA) agencies. The two most commonly cited issues were: â¢ Conflicts between federal agencies with differ- ent mandates. This problem seems to arise most 432 See, e.g., Mass. Port Auth. v. City of Boston, No. 012731BLS2, 17 Mass. L. Rep. 125, 2003 Mass. Super. LEXIS 429, at *16â17 (Nov. 18, 2003) (describing the air- port sponsorâs efforts to work with the public before, dur- ing, and after public hearings on the Draft EIS). 433 49 U.S.C. Â§ 47106(c)(A)(ii) (2012); FAA Order 5050.4B, Â§ 1203.b(2) (2006). 434 Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 690 (D.C. Cir. 2004). 435 FAA Order 5050.4B, Â§ 201.b(5) (2006).
50 often in the context of wetlands mitigation. A number of survey respondents indicated that the U.S. Army Corps of Engineers prefers that the airport sponsor mitigate wetlands impacts on the airport site, but the U.S. Fish and Wildlife Service (USFWS) prefers to mitigate wetlands impacts off-site because wetlands tend to attract wildlife. Survey respondents indicate that this conflict is usually resolved in favor of USFWS, probably due to the safety concerns associated with wildlife on the airport site. â¢ Conflicts between federal and state agencies with common mandates. Examples cited by survey respondents include state agencies with jurisdic- tion over wetlands or stormwater under state en- vironmental laws (overlapping the jurisdiction of the Corps of Engineers) or state agencies with jurisdiction over wildlife under state environ- mental laws (overlapping the jurisdiction of USFWS). The conflict most often arises when the state special-purpose agency becomes involved late in the environmental review process and re- quests changes (e.g., consideration of additional alternatives or mitigation measures) that were not requested by the analogous federal special- purpose agency. Environmental requirements may differ widely from state to state, and airport sponsors should be mindful that FAA guidance deals primarily with federal requirements. Timely identification and engagement of relevant state agencies is generally the airport sponsorâs respon- sibility. The following section addresses the airport sponsorâs coordination of these âoutsideâ (i.e., non- FAA) government agencies (both federal and state) at different stages in the environmental review process. i. Outside Agencies and the Environmental Assessment The airport sponsor is generally responsible for preparing an EA. As mentioned in SectionII.B.iii, the analysis of environmental impacts in the EA will consider impacts to environmental resources protected by special-purpose laws. Typically, non- FAA government agencies will have jurisdiction over those resources or those special-purpose laws. In that case, the EA is required to include proof that the airport sponsor (or its EA consult- ant) consulted with the relevant government agency to ensure that requirements of the special- purpose law will be satisfied.436 This consultation 436 FAA Order 5050.4B, Â§ 706.f(2)(b) (2006). should alert the airport sponsor as to whether a permit is required from the outside agency under the relevant special-purpose laws. The airport sponsor will be primarily responsible for obtaining any such permit. The FAA recommends integrat- ing the permit application into the NEPA process, rather than waiting to apply for necessary per- mits after the FAA has approved the EA.437 In some cases, the outside government agency will make recommendations (e.g., for alternatives to avoid the specially protected environmental resource, or measures to mitigate the impact to the specially protected resource). In some cases, the airport sponsor does not accept the recom- mendations of the outside agency. If the conflict between the airport sponsor and the outside agency cannot be resolved before the airport spon- sor submits the Draft EA to the FAA for internal review, the airport sponsor is required to docu- ment the outside agencyâs recommendation and the airport sponsorâs âwritten rationale for reject- ing the recommendations or solutions.â The FAA must forward the airport sponsorâs rationale to the outside agency, and allow 15 days for the out- side agency to comment before the FAA can allow the airport sponsor to finalize the EA.438 Once the airport sponsor finalizes the EA, the FAA is required to make the Final EA available to any federal agency with jurisdiction over the pro- posed action due to a special-purpose law or other specially protected environmental resource. (The airport sponsor may have a similar obligation un- der state special-purpose law to make the EA available to a state agency with jurisdiction.) The outside agencies must be allowed to review the Final EA for 30 days before the FAA can issue a FONSI.439 If outside agencies raise serious con- cerns that they consider to be inadequately ad- dressed in the EA, the proposed development pro- ject may be so controversial that the FAA cannot issue a FONSI, and an EIS will have to be pre- pared.440 In some cases, the FAA is prohibited from issuing a FONSI if the airport sponsor certi- 437 FAA Order 1050.1E, App. A, Â§ 18.1b (2004). 438 FAA Order 5050.4B, Â§ 707.d (2006). 439 FAA Order 5050.4B, Â§ 804.a (2006). 440 See, e.g., California v. U.S. Depât of Transp., 260 F. Supp. 2d 969, 973â74 (N.D. Cal. 2003) (â[T]he volume of comments from and the serious concerns raised by federal and state agencies specifically charged with protecting the environment support a finding that an EIS was required in this case. Given the controversy surrounding the airport project, defendants unreasonably failed to prepare an EIS.â).
51 fies that the proposed development project âcon- formsâ to special-purpose environmental laws, but the outside agency with jurisdiction over the spe- cial-purpose law disagrees with the airport spon- sorâs conformity determination.441 To avoid elevat- ing the proposed development project to require an EIS, the airport sponsor should work with the outside agency to get concurrence on the airport sponsorâs conformity determination prior to final- izing the EA. In response to the survey conducted for this di- get, some airport sponsors expressed frustration with what they perceived as the outside agencies making âunreasonable demandsâ and raising en- vironmental concerns that go beyond their spe- cial-purpose jurisdiction and expertise. Some sur- vey respondents expressed frustration that the FAA seems to make significant concessions to these outside agencies, requiring the airport sponsor to address alternatives or mitigation measures proposed by the outside agencies. However, this additional analysis effort at the EA stage to satisfy the outside agency can have long- term benefits for the airport sponsor, especially if it means that the FAA can issue a FONSI rather than prepare an EIS. ii. Outside Agencies and the Environmental Impact Statement If the proposed development project will have significant environmental impacts that cannot be satisfactorily mitigated, an EIS must be prepared by any federal agency who is taking âmajor fed- eral action.â This certainly includes the FAA (who will be approving and likely funding the project), and may also include other federal agencies who have jurisdiction over specially protected envi- ronmental resources or special-purpose laws. To avoid parallel EISâs and duplication of effort, the FAA encourages intra-agency coordination for airport development projects,442 preferably result- ing in a single EIS adopted by all cooperating agencies. All federal agencies and the airport sponsor are to participate in a single âcoordinated environmental review process for airport capacity enhancement projects at congested airports, avia- tion safety projects, and aviation security pro- jects.â443 State agencies (other than airport spon- sors) are also encouraged to participate in the 441 FAA Order 1050.1E, App. A, Â§ 3.4a(2) (2004). 442 FAA Order 5050.4B, Â§ 1100.b (2006); FAA Order 1050.1E, Â§ 213 (2004). 443 49 U.S.C. Â§ 47171 (2012); see also FAA Order 1050.1E, App. D, Â§ 6.c (2004). streamlined environmental review process, where the proposed development project falls within the jurisdiction of the state agency (e.g., under a state special-purpose environmental law).444 The FAA is responsible for identifying agencies who will have an interest in the proposed development project and inviting them to participate.445 The FAA is the lead agency in this streamlined environ- mental review process, and all participating agen- cies (possibly including the airport sponsor) âshall give substantial deferenceâ to the FAAâs decisions and directives.446 The coordinated environmental review process may be set forth in an inter-agency agreement or memorandum of understanding between the FAA, other participating federal or state agencies, âand, if applicable, the airport sponsor.â447 This agree- ment should clarify the responsibilities and exper- tise of the FAA, the outside agencies, and âif ap- plicable, the airport sponsor.â448 The airport sponsor is not necessarily a participant in the EIS preparation process and thus will not necessarily be a party to this agreement.449 The FAA âencour- ages airport sponsors to be signatories to the MOUâ for projects subject to streamlined envi- ronmental review (e.g., high-priority airport de- velopment projects or aviation safety/security pro- jects).450 An MOU would be particularly useful on pro- jects not subject to streamlined environmental review where cooperating federal agencies are not required by statute to defer to the FAAâs lead, or when state environmental agencies are participat- ing in the coordinated review on a voluntary ba- sis. This may be easier said than accomplished, since the role and responsibility of each partici- pating agency (and possibly the airport sponsor) must be negotiated and formalized in an MOU. The airport sponsor may play a role in negotiating the terms of the MOU between the FAA and other agencies. One survey respondent expressed frus- tration over trying to negotiate an MOU between 444 49 U.S.C. Â§ 47171(e) (2012). 445 FAA Order 5050.4B, Â§ 910.c (2006). 446 FAA Order 1050.1E, App. D, Â§ 6.g (2004). 447 FAA Order 1050.1E, App. D, Â§ 6.e (2004). 448 FAA Order 5050.4B, Â§ 1003.c(3) (2006). 449 See, e.g., Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *10â11 (N.D. Ill. Feb. 14, 2007) (describ- ing an inter-agency coordination agreement for EIS prepa- ration entered into by the FAA, U.S. Army Corps of Engi- neers, and state environmental agency). 450 FAA Order 5050.4B, Â§ 1505.e(2) (2006).