Monday, July 9, 2012
Jul 6: In the U.S. Court of Appeals, Third Circuit, Case No. 11-1472 On Petition for Review of an Order of the United States Department of Transportation, Federal Aviation Administration. The Appeals Court explains this is an appeal of the Federal Aviation Administration's approval of a significant expansion of Philadelphia International Airport. Disputing the FAA's air quality analysis, Petitioners (collectively Tinicum) allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the consistency provision of the Airport and Airway Improvement Act, 49 U.S.C. § 47106(a)(1).
The Appeals Court ruled, "Because we find the Federal Aviation Administration's decision was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' 5 U.S.C. § 706(2)(A), we will deny the petition for review." The Appeals Court said, "We review the FAA's action under the APA's arbitrary and capricious standard. . . We confine our review to the administrative record upon which the FAA's Record of Decision was based."
Further, the Appeals Court outlined the extent of its review saying, "Citing the EPA's comments, Tinicum alleges five technical errors in the FAA's air quality analysis that purportedly render its environmental review inadequate under NEPA. Each allegation pertains to a category of data excluded from the FAA analysis. While additional data might enable a more detailed environmental analysis, NEPA does not require maximum detail. Rather, it requires agencies to make a series of line-drawing decisions based on the significance and usefulness of additional information. . . With this in mind, we review the FAA's air quality analysis, considering each of the alleged technical defects. . ."
The Appeals Court concluded, "In sum, the FAA gave serious consideration and reasonable responses to each of the EPA's concerns. As the lead agency, the FAA has some latitude to determine the level of analytical detail necessary to support an informed decision and to adequately disclose air quality impacts to the public. The technical errors alleged by Tinicum do not render the FAA's air quality analysis arbitrary or capricious." The Appeals Court also denied a request by the Township for a supplemental EIS, saying, "Where new information merely confirms the agency's original analysis, no supplemental EIS is indicated."
Finally, Tinicum contends the FAA failed to comply with the consistency requirement of the Airport and Airway Improvement Act (AAIA), which provides that the FAA may only approve an airport project if it is "consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the airport." 49 U.S.C. § 47106(a)(1). The Appeals Court ruled, "The FAA reasonably looked to the DVRPC's [Delaware Valley Regional Planning Commission's] plans in making its consistency determination. Accordingly, that determination was neither arbitrary nor capricious."
Access the complete opinion (click here). [#Air, #Transport, #Land, #CA3]
Posted by WIMS at 3:41 PM