Case 111

Communities, Inc. v. Busey, 956 F.2d 619 (6th Cir.), cert. denied, 506 U.S. 953 (1992).

Petitioners, community organizations representing neighborhoods near the Louisville, Kentucky, airport at Standiford Field, filed suit in the United States Court of Appeals for the Sixth Circuit seeking review of a Federal Aviation Administration (FAA) order which approved airport expansion plans. Plans called for the addition of two runways which would increase the airport's maximum capacity by 67 percent. After preparing an environmental impact statement (EIS), FAA approved plan funding in a decision issued in January 1991. Petitioners alleged that the EIS violated the National Environmental Policy Act (NEPA) because it did not address the project's cumulative impacts and failed to evaluate all reasonable alternatives and their environmental consequences, particularly with regard to the impact of airport noise on historic resources. Petitioners also claimed that FAA had violated Section 4(f) of the Department of Transportation Act because the project constituted a "constructive use" of properties entitled to protection. According to petitioners, FAA failed to seek comments on the project from the Advisory Council on Historic Preservation and, therefore, also violated the National Historic Preservation Act (NHPA). The court did not specifically address the NHPA claim.

Petitioners' challenge focused on FAA's use of the 65 Ldn contour to measure noise impacts of the proposed airport expansion. The 65 Ldn contour represents a weighted 24-hour average of all noise levels, rather than maximum single-event noise levels (SEL). Although FAA supplemented the Ldn measurements with an analysis of SEL, it ultimately relied on the 65 Ldn analysis in concluding the noise impacts did not result in constructive use of the neighborhoods.

Applying the arbitrary and capricious standard in reviewing FAA's decision, the court found that the agency did not abuse its discretion by using the methodology. Moreover, it noted that even if FAA were to use the SEL data, it was questionable whether noise impacts in this case constituted a constructive "use" given that the historic resources involved (a residential neighborhood and park) qualified for listing in the National Register of Historic Places because of their architectural importance. 956 F.2d at 624. Acknowledging that several other courts had recognized noise, in addition to noise combined with pollution and loss of views, as a constructive "use," the court determined that the rationale of those cases did not apply to the facts of the present case. Id.

The court also rejected petitioners' argument that FAA did not consider reasonable alternatives to the Standiford Field site, noting that the burden of suggesting a viable alternative was on petitioners. Id. at 625. Petitioners suggested that the expansion of the runway over a landfill was a reasonable option. FAA, however, had already considered that alternative and determined that it was "extremely inefficient." The court upheld FAA's conclusion that the petitioners' alternative was not feasible and prudent, and, therefore, that FAA did not violate Section 4(f) when it chose its method of expanding the airport. Id.

Under NEPA, petitioners alleged that FAA had segmented its analysis by failing to prepare a complete mitigation plan. Applying the precedent of Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989), the court found that the final EIS prepared by FAA was sufficient because it identified and discussed potential measures for mitigating environmental impacts, even though it did not specify which measures would be used to mitigate those impacts. A fully developed mitigation plan, according to Robertson, is not necessary in preparing a final EIS. 956 F.2d at 626.

Petitioners also alleged that FAA failed to comply with NEPA when it did not consider as part of the proposed action the fact that 1,300 housing units in several adjacent neighborhoods were going to be demolished. The demolition was pursuant to a county urban renewal initiative which FAA treated as separate from expansion of the airport. The court pointed out that the county would have demolished the properties with or without airport expansion and, indeed, had begun to acquire the property at issue long before FAA approved the airport expansion. The court also observed that FAA analyzed county plans to acquire and demolish properties adjacent to the airport in its final EIS. Even if it had not, the county program had an independent utility. Thus, the court concluded that FAA was not required to reopen the EIS. Id.

As a final argument, petitioners contended that FAA failed to consider alternative sites for the airport expansion. The court examined the final EIS and determined that it properly included a discussion of alternatives and an analysis as to why each alternative was either imprudent or infeasible. The court also looked at the entire administrative record and found that it contained extensive documentation on alternatives. Based on that reasoning, the court of appeals denied plaintiffs' petition and affirmed FAA's decision.

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