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Bensenville, Village of v. Federal Aviation Admin.

ELR Citation: 34 ELR 20061
Nos. No. 03-1068, (D.C. Cir., 07/27/2004)

The D.C. Circuit granted several municipalities' petition to review an FAA order allowing Chicago to impose a $4.50 passenger facility fee to fund an EIS being prepared in connection with the modernization of O'Hare International Airport. Under the Federal Aviation Act of 1958, the FAA must find, among other things, that the proposed passenger facility fee will not generate excessive revenue before authorizing the fee. Here, however, the FAA did not find that the passenger facility fee will generate only that revenue necessary to fund the EIS. Despite Chicago's extraordinarily high cost estimate of its proposed EIS and the FAA's express statutory duty, the FAA did not make a single finding regarding the necessity of over $110 million to prepare an EIS for the modernization program. The FAA simply concluded that the fee "will not result in revenue that exceeds the amount necessary to finance the projects." Under the circumstances of this case, such a simple recitation of the statutory standard neither satisfies the statute nor assures the court that the agency’s decision is rational. The order was therefore remanded for the FAA's further consideration.