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Commonwealth v. Packer

Citation: 32 ELR 20765
No. No. J-123-2001, 798 A.2d 192/(Pa., 05/31/2002)

The court denies a Connecticut town's petition to review a previous opinion by the D.C. Circuit in which the court held that the town lacked standing to bring a National Environmental Policy Act (NEPA) claim against a Federal Aviation Administration (FAA) airport expansion project and that the FAA was entitled to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 14 ELR 20507 (1984) deference. The court first affirms its prior decision that the town lacks standing. The town never asserted an environmental injury necessary to assert an FAA violation of NEPA. Although the town's original brief did vaguely mention damage to wetlands, it never explained the injury and actually failed to mention it at all in a supplemental brief that the court solicited for the purpose of addressing standing and ripeness. In addition, the court holds that it did not err in applying Chevron deference to the FAA's interpretation of "location" of a runway. The FAA interpreted "location" as not applying to a minor runway shift that kept the same compass bearing and produced no additional noise impacts. It is too late for the town to argue that the FAA's interpretation is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 132 (1944), instead of Chevron. Although the FAA position that was granted deference may have been adopted during an adjudication and, thus, subject to Skidmore deference, the town raised the argument too late. And, even granting limited Skidmore deference to the FAA, the agency's interpretation of location is the better one.

[A prior decision in this litigation is published at 32 ELR 20604.]

The full text of this opinion is available from ELR (3 pp., ELR Order No. L-535).

[Counsel not available at this printing.]