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Los Angeles, City of v. Federal Aviation Admin.

ELR Citation: 28 ELR 21047
Nos. 96-70340, -70381, 138 F.3d 806/46 ERC 1567/(9th Cir., 03/12/1998)

The court holds that the Federal Aviation Administration's (FAA's) approval of the expansion of Burbank-Glendale-Pasadena Airport does not violate the National Environmental Policy Act (NEPA) or the Clean Air Act (CAA). The court first rejects the arguments made by two cities that if FAA had taken a hard look, it could not rationally have concluded that a larger, more convenient terminal will not attract more passengers. FAA explains that demand for an airport depends much more on location, runways, and ticket prices than on how convenient the terminal is. FAA does not say that modernizing the terminal will have no effect on usage. What FAA says is that it cannot accurately predict how big this effect might be. The court does not require an agency to quantify all possible effects. So long as the agency reasonably explains why further quantification is not necessary or feasible, the court's review is at an end. The court also rejects the cities' argument that FAA has not adequately analyzed the noise implications of potential changed takeoff and landing patterns on a particular runway. FAA did analyze what would happen if use on that runway more than tripled. Increased use is highly unlikely due to the runway's length, slope, terrain, and wind and air traffic patterns. FAA's ultimate determination is due deference.

The court next holds that the terminal expansion is grandfathered into conformity with the state's implementation plan pursuant to 40 C.F.R. §93.150(c)(2). FAA uncontroversially meets the regulation's requirement that prior to January 31, 1994, an environmental analysis was commenced or a contract awarded to develop the specific environmental analysis. In addition, the preliminary final environmental impact statement (EIS) is written; it determines that the project complies with the implementation plan as CAA §176(c) requires; and it was published before March 15, 1994. Further, the document contains enough analysis to be sufficient under the regulation's remaining requirement. The court rejects the cities' argument that since the conformity determination appeared in a preliminary final EIS, it is not final. There need not be a final EIS to grandfather the project. Had the conformity determination been published separately, it would surely be sufficient; that it was published as part of a preliminary final EIS does not change that. The court also rejects the argument that this conformity determination does not meet the publication and comment requirements of 40 C.F.R. §93.156. Regulations surrounding conformity determinations do not apply to grandfathered conformity decisions—that is what it means to be grandfathered.

[Briefs and Pleadings in this litigation are digested at 28 ELR 66581.]

Counsel for Petitioner
Peter J. Kirsch
Cutler & Stanfield
700 14th St. NW, Washington DC 20005
(202) 624-8400

Counsel for Respondent
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Schroeder and Whyte,* JJ.