The Role of the Airport Sponsor in Airport Planning and Environmental Reviews of Proposed Development Projects Under the National Environmental Policy Act (NEPA) and State Mini-NEPA Laws (2014)

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52 the FAA and a state environmental agency for a master plan update that was subject to both NEPA and a state mini-NEPA law: The ADO [FAA Airport District Office] had never done an MOU on a combined NEPA and State “NEPA-Like” document. We [the airport sponsor] had to obtain samples from other airports and write multiple drafts over a pe- riod of almost a year before the FAA would sign the MOU. We lost much valuable time because the ADO and Regional FAA office simply had no experience in how to draft such an MOU. It was very frustrating. Upon completion of the Draft EIS, regardless of whether it was prepared in a coordinated or streamlined process, the FAA must specifically request comments from the airport sponsor, any federal agency “having jurisdiction by law or spe- cial expertise,” and “appropriate” state and local agencies.451 The FAA must revise the EIS to re- spond to any “substantive comments” received concerning the Draft EIS, whether those com- ments come from the airport sponsor or an outside agency.452 Once the FAA (or the EIS contractor) has addressed all substantive comments received on the Draft EIS, it prepares the Final EIS for a 30-day public review “wait period.”453 The FAA is to distribute one copy of the Final EIS to every outside agency (or airport sponsor) who provided substantive comments on the Draft EIS,454 five copies to the EPA,455 and a number of copies to other federal agencies.456 Unlike the Draft EIS, the FAA is not required to solicit comments from outside agencies (or the airport sponsor) regard- ing the Final EIS.457 Also unlike the Draft EIS, the FAA is generally not required to respond to comments received during the 30-day “wait pe- riod” regarding the Final EIS.458 Upon conclusion of the 30-day “wait period,” the FAA will prepare a final ROD approving or not approving the Final EIS.459 451 FAA Order 5050.4B, § 1101.a (2006). 452 FAA Order 5050.4B, § 1101.a (2006); see also 40 C.F.R. § 1503.4 (2012). 453 FAA Order 5050.4B, § 1303 (2006). 454 FAA Order 5050.4B, § 1211.d (2006). 455 FAA Order 5050.4B, § 1211.f (2006); see also 40 C.F.R. § 1506.9 (2012). 456 FAA Order 5050.4B, § 1211.g (2006). 457 See FAA Order 5050.4B, § 1211.b (2006) (“An agency may request comments on an FEIS.”) (emphasis added); see also 40 C.F.R. § 1503.1(b) (2012). 458 See FAA Order 5050.4B, § 1211.a (2006) (noting that the FAA “may choose to circulate” revisions to the Final EIS in response to comments). 459 FAA Order 5050.4B, § 1301 (2006). It should be apparent that the airport sponsor’s role in coordinating outside agencies is more pro- nounced during preparation of the EA (in which the airport sponsor has the lead preparation role) than during preparation of the EIS. At the EIS stage, the airport sponsor and outside agencies both tend to be in the role of (at best) participants in a coordinated review process conducted by the FAA, or (at worst) excluded from the substantive environmental review process and relegated to the role of “commenter.” IV. CONCLUSION NEPA and related environmental laws impose significant requirements on federal agencies such as the FAA to evaluate the environmental impact of its actions (such as approving funds for airport development projects). Because airport develop- ment projects are typically proposed by the air- port sponsor rather than the FAA, the FAA has shifted much of that responsibility to the airport sponsor, to the extent it is legally allowed to do so, particularly for proposed development projects that will not require an EIS. Since most airport development projects will not require an EIS, the airport sponsor (or its EA consultant) is usually responsible for performing most of the environ- mental analysis required by NEPA or required by non-FAA agencies under special-purpose envi- ronmental laws. The airport sponsor may also have similar environmental review responsibili- ties under state “mini-NEPA” laws and state spe- cial-purpose environmental laws. Any AIP-funded development project will in- volve some level of environmental review (which may simply be a determination that the project’s anticipated environmental impacts are so insig- nificant as to qualify for a Categorical Exclusion from NEPA). However, the airport sponsor’s con- sideration of the three components of an environ- mental review (environmental impacts, alterna- tives, and mitigation measures) begins long before AIP funds are devoted to a project. In the plan- ning stage, when the airport sponsor first identi- fies its needs and considers development solu- tions, it formulates a preliminary statement of “purpose and need” that shapes the analysis of impacts, alternatives, and mitigation. The pur- pose and need may be refined as a project ad- vances through the NEPA process (to reflect addi- tional planning data and environmental data), and certainly the environmental review will have an increased level of detail as the airport sponsor moves from requesting a Categorical Exclusion, to preparing an EA, to assisting the FAA in prepara-