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K.B. Fund II v. Federal Aviation Admin.

ELR Citation: 31 ELR 20239
Nos. 99-5685, 242 F.3d 371/(3d Cir., 10/04/2000)

The court denies a property owner's petition to review the Federal Aviation Administration's and the Federal Highway Administration's selection of and subsequent issuance of a finding of no significant impact (FONSI) for a highway accessing a new terminal at Philadelphia International Airport. A portion of the owner's property will be condemned if the proposed highway is constructed. The court first holds that the agencies did not violate the National Environmental Policy Act (NEPA) when they issued the FONSI and, thus, did not violate the owner's procedural rights under NEPA. The agencies did involve the owner and the general public in their decisionmaking process in a timely way. There were a number of public notices and meetings concerning the highway. Moreover, the agencies held three separate private meetings with the owner, and the agency engineers analyzed the owner's proposed alternatives. Therefore, there is no basis to find that the agencies excluded the owner from participation in the selection process. The court next holds that the agencies were not required to evaluate the owner's proposed highway alternatives concurrently with the other project alternatives. Concurrent evaluations of alternatives are required when exclusive rights are in contest between competing licensees. NEPA and its regulations do not afford private parties such rights because under NEPA an agency is not required to evaluate every possible alternative. The court then holds that the agencies did not abuse their discretion by improperly overvaluing environmental concerns in the selection process. Department of Transportation Act §4(f) requires that the protection of historic properties, parks, recreation areas, and wildlife refuges be given paramount importance in transportation planning. Therefore, when selecting the highway, the agencies had to take into account a wildlife refuge adjacent to the airport.

The full text of this decision is available from ELR (12 pp., ELR Order No. L-288).

Counsel for Petitioner
Stanley Weinberg
Mesirov, Gelman, Jaffe, Cramer & Jamieson
1735 Market St., Philadelphia PA 19103
(215) 994-1000

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]