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Mukilteo v. U.S. Department of Transportation

ELR Citation: 46 ELR 20052
Nos. 13-70385, (9th Cir., 03/04/2016)

The Ninth Circuit denied a petition challenging the FAA's decision that no EIS was necessary to commence operating commercial passenger service at an industrial airport near Everett, Washington. The FAA prepared an EA, but chose not to prepare an EIS following its finding of no significant environmental impact (FONSI). Despite petitioners' claims to the contrary, the scope of the FAA's analysis was not arbitrary and capricious, and the FAA's demand-based projections of approximately 8,340 operations per year in 2018 is entitled to deference. The court also rejected petitioners' argument that FAA unlawfully favored commercial service from the outset. NEPA does not prohibit agencies from having or expressing a favored outcome, and the enabling legislation that created the FAA includes an express congressional directive that the agency shall promote and encourage the development of commercial aviation throughout the United States. In addition, the FAA's FONSI was not predetermined by the creation of an optimistic schedule for completing the environmental review or statements favoring commercial service at the airport. The FAA performed its NEPA obligations in good faith and did not prematurely commit resources to opening the terminal.