Town Of Barnstable, MA v. FAA

Oct 28:  In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1276. The Appeals Court summarizes that, Cape Wind Associates has proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound -- an area roughly the size of Manhattan island [See WIMS 4/28/10, & WIMS 4/29/10]. If constructed, the project would be the nation's first offshore wind farm.

 

    The Appeals Court explains that as required by federal regulations, Cape Wind notified the Federal Aviation Administration (FAA) of its proposed construction. After a preliminary investigation, the FAA issued a Notice of Presumed Hazard, and initiated more extensive aeronautical studies to decide whether the project would "result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace." The FAA also circulated a public notice of these

studies and invited interested persons to submit comments.

 

    The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines. In the determinations, the FAA concluded that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." Although it ultimately decided that the project was not a hazard, its decision was contingent on Cape Wind's implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

 

    Petitioners -- the town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound, a non-profit organization of private citizens and other organizations -- challenge these No Hazard determinations. They argue that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. In response, the FAA claims that petitioners lack standing to challenge the FAA's determinations and that their merits

claims are faulty. The Appeals Court found that petitioners do have standing and that the FAA did misread its regulations, "leaving the challenged determinations inadequately justified."

 

    The Appeals Court points out, "After discussing the adverse effects the turbines would have on nearby radar facilities, the FAA's Determination addressed the impact on VFR operations, purporting to find no adverse effect on such operations. In so doing, the FAA relied solely on § 6-3-8(c)1 of the handbook, which says: 'A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within 2 statute miles of any regularly used VFR route.'. . After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

 

    The Appeals Court ruled, "The FAA repeatedly notes in its brief that the handbook 'largely consists of criteria rather than rules to follow.' . . We agree. Any sensible reading of the handbook, and of § 6-3-8(c)1 in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure. . . the FAA catapulted over the real issues and the analytical work required by its handbook.

 

    "Whether in fact an application of the handbook's guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion. . . The FAA's misplaced reliance on § 6-3-8(c)1 is no substitute. The petitions for review are accordingly granted, and the FAA's determinations are Vacated and Remanded."

 

    Access the complete opinion (click here). Access the DOI website for the project for complete background information and extensive documents (click here). [#Energy/Wind, #CADC]

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Natural Resources Defense Council v. U.S. EPA

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1105. On Petition for Review of a Final Rule of the Environmental Protection Agency. The Appeals Court explains that the case follows up a D.C. Circuit decision in Environmental Defense, Inc. v. EPA, 509 F.3d 553 (D.C. Cir. 2007), in which the Appeals Court reviewed U.S. EPA's promulgation of a final rule for "PM2.5 and PM10 Hot Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards," 71 Fed. Reg. 12,468 (Mar. 10, 2006) (the 2006 Rule).

 

    The "conformity determinations" referred to in the rule's title are approvals needed under the Clean Air Act (CAA) for Federally funded transportation projects in an area that is designated "nonattainment" or "maintenance" with respect to the National Ambient Air Quality Standards (NAAQS) -- approvals required in order to assure that the project "conforms" to the applicable State Implementation Plan (SIP). See Environmental Defense, 509 F.3d at 555–58. "Hot spot" analysis means simply analysis of a project's localized impact. See 2006 Rule, 71 Fed. Reg. at 12,469/3.

 

    In a brief, 10-page opinion the Appeals Court said, "We start with a quick review of the statutory and regulatory provisions at issue in our remand in Environmental Defense, explain the nature of that remand, describe the EPA's response to the remand, and (finally) explain the adequacy of that response."

 

    Much of the case looks at the 1990 Congress amended CAA's conformity provisions to provide that [c]onformity to an implementation plan means— . . . "(B) that such activities will not— (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or milestones in any area."

    The Appeals Court indicates that, "The pertinent passage of the 2006 Rule, however, appeared to disregard subsection (B)(iii). It provided that a new transportation project:

must not [1] cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or [2] increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied . . . if it is demonstrated that . . . no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.

    ". . .Obviously the segments designated [1] and [2] neatly match (B)(i) and (B)(ii), and are paralleled in the sentence beginning 'This criterion is satisfied if . . . .' But if the statutory language 'any area' required application of the (B)(i) and (B)(ii) requirements at the local level, then the EPA's seeming failure to address B(iii), or to explain its not doing so, was arbitrary and capricious."

    In summation, the Appeals Court rules, ". . .given the EPA's clarification that (B)(iii) applies to local projects and its persuasive explanation of how the substance of the "delay" condition is met, we are satisfied that the 2010 Rule is not arbitrary, capricious, or inconsistent with law for the reasons raised in Environmental Defense. In particular, it is now clear that a project giving rise to the 'counterbalance' hypothetical we described in that case would not be deemed conforming." Accordingly, the petition of three environmental organizations is denied.

    Access the complete opinion (click here). [#Air, #CADC]
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ASPCA v. Feld Entertainment, Inc

Oct 28: Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. The Appeals Court summarizes, "In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals [i.e. American Society for Prevention of Cruelty to Animals (ASPCA)] allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants -- bullhooks and chains -- harms the animals in violation of the Endangered Species Act. But the district court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree."

 

    The Appeals Court indicates that the district court held a six-week bench trial, heard testimony from approximately thirty witnesses, reviewed hundreds of documents entered into the evidentiary record, and concluded that both Rider (Tom Rider, a barn helper) and API (another plaintiff, Animal Protection Institute) had failed to establish standing. The district court found that Rider was "essentially a paid plaintiff and fact witness" whose trial testimony, and particularly his claim that he had developed an attachment to the elephants, lacked credibility. The district court also rejected API's two theories of standing.

 

    Following an exhaustive analysis of standing issues, the Appeals Court indicates, "Because Rider has failed to show that the district court applied an erroneous legal standard, we are left to review the district court's fact-findings and credibility determination for clear error. . . we see no basis for finding clear error." The Appeals Court also rejects claims of "informational standing" [i.e. FEC v. Akins, 524 U.S. 11, 21 (1998)] and "Havens Standing [i.e. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)] and ultimately concludes that, "API and Rider lack Article III standing to maintain this action. We therefore affirm."

 

    Access the complete opinion (click here). [#Wildlife, #CADC]

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