Petitioners contended that FAA violated NHPA by approving the expansion prior to completion of the Section 106 process. Although the Section 106 process had been completed for the East Runway through a signed Memorandum of Agreement (MOA) addressing archeological impacts, Section 106 review had not been completed for the West Runway, which would have adverse noise effects in the historic district. Since the West Runway was scheduled for construction during a later phase of the expansion, FAA's "final approval" of the airport expansion plan was subject to a proviso that no expenditures would be permitted on the West Runway until after the FAA had conducted a "reevaluation" and the Section 106 process had been completed. 17 F.3d at 1503, 1508-09.
The court summarized the status of the Section 106 process, noting that much of it had taken place "after the FAA had issued its Decision." Id. at 1509. Approximately one year later, the FAA, the Texas Historical Commission, and the Dallas-Fort Worth Airport Board had entered into an agreement finding no adverse effect on historic properties. Id. The Council, however, disagreed with the finding of no adverse effect and requested consultation with FAA about alternatives and mitigation measures. Id. That consultation did not occur before the court decided the case.
Petitioners argued that the FAA's "conditional approval" violated NHPA, by failing to complete the process "prior to the approval of the expenditure of any Federal funds on the undertaking," as required by Section 106. The D.C. Circuit disagreed, determining that, because FAA's approval was conditional, FAA did not "approv[e]" the expenditure of Federal funds for the West Runway and, therefore, did not violate NHPA. 17 F.3d at 1509. However, the court noted that it was "desirable for the § 106 process to occur as early as possible in a project's planning stage . . . ." Id. Furthermore, the court pointed out that, if the airport committed resources to the project prior to completion of Section 106 review, it risked losing its investment if the review concludes with a finding of an adverse effect and FAA withdraws its approval. Id.
Petitioners also alleged that FAA improperly deemed several elements of the project as categorical exclusions in violation of FAA's regulations implementing NEPA. Although these elements were listed in FAA's regulations as exclusions, petitioners argued that FAA should have examined their effects nonetheless because the entire expansion project met several of the criteria listed by FAA as an exceptional circumstance requiring environmental review. FAA countered that it was not the entire expansion project, but merely the individual elements excluded that had to fall within FAA's list of exceptional circumstances. The court agreed with FAA's interpretation of its regulations and found that exceptional circumstances did not apply. Id. at 1504-05.
The court also rejected plaintiffs' argument that FAA failed to consider the cumulative impacts of related actions. Even though FAA deemed several elements of the plan as independent or speculative, the court determined that FAA had considered the cumulative impact of most of the elements; those elements not considered by FAA, however, could not be included in the approved airport layout plan. Id. at 1505-06.
Another challenge under NEPA was FAA's consideration of alternatives in its environmental impact statement. Petitioners argued that FAA improperly defined the purpose of the project and that consideration of alternatives was circumscribed by the stated purpose. Specifically, petitioners challenged FAA's determination that the project's purpose included the economic development of the Dallas-Fort Worth area on the grounds that consideration of such a purpose was inappropriate. The court found that FAA acted properly in considering the sponsor's goals when evaluating the alternative courses of action and gave reasoned consideration to off-site alternatives. Id. at 1506-07.
Petitioners also took issue with the noise measurement technique used by FAA in determining whether the noise level produced by the airport expansion would constitute a constructive "use" under Section 4(f) of the Department of Transportation Act. Under Section 4(f), FAA can approve the use of historic sites only where no prudent and feasible alternative exists, and then only if the project includes all possible planning to minimize harm to the site. In assessing noise impacts, FAA relied on its traditional 65 Ldn guidelines, based on a weighted average of noise levels during a 24-hour day and night period, and determined that the historic site would not be "used" within the meaning of Section 4(f). There is no noise-level guideline specific to historic sites, but because the historic sites at issue in this case were residential properties, FAA used the level for residences.
With regard to the noise-level methodology, petitioners presented two arguments. First, they argued that single-event noise levels, not weighted averages, should be the basis for determining a constructive "use." The court rejected their arguments, deferring to FAA's choice of methodology. The court did consider, however, that FAA was undergoing the study of different methods of evaluating airport noise and had conducted a single-event noise analysis, even though it primarily relied on the Ldn average. Id. at 1507-08. Second, petitioners alleged that FAA noise guidelines were inappropriately applied to historic sites in that the standards for residential properties generally were not relevant in determining constructive "use" of the historic properties. The court observed that "the standard must bear some relevance to the value, significance, and enjoyment of the lands at issue." Id. at 1508 (quoting Allison v. United States Department of Transportation, 908 F.2d 1024, 1029 (D.C. Cir. 1990)). However, because the historic sites in this case were in use daily as residential properties, the court determined that the noise-level measurement for residential properties was appropriately used.
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