Norfolk Noise Abatement Movement, Inc. v. Bond

No. 80-1751 (4th Cir. June 17, 1981)

The Fourth Circuit Court of Appeals holds that the district court properly ruled that the Federal Aviation Administration need not prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) for a runway extension project. The court notes that NEPA does not require an EIS in cases where the agency finds that the project does not have significant environmental impacts, and the district court on reviewing the record is to determine only whether the agency abused its discretion. The court finds that the district court properly held that defendant's "finding of no significant impact" was not an abuse of discretion and thus affirms the district court's holding.

Counsel for Appellant
Barry L. Jenkins
156 Newtonroad, Virginia Beach VA 23462
(804) 497-1849

Counsel for Appellees
Loretta Alkalay
Federal Aviation Administration
Fed. Bldg., Jamaica NY 14430
(212) 995-2815

John F. Kane, Ass't U.S. Attorney
P.O. Box 60, Norfolk VA 23501
(804) 827-6331

John B. King Jr.
Vandeventer, Black, Meredith & Martin
2050 Virginia Nat'l Bank Bldg., One Commercial Pl., Norfolk VA 23510
(804) 622-4381

Before Winter, Haynsworth, and Russell, JJ.

[11 ELR 20726]

Per curiam:

The Norfolk Port and Industrial Authority (NPIA) proposed an extension of two runways and the construction of a general aviation runway at the Norfolk International Airport. In seeking federal funding for the runway extension projects, pursuant to the Airport and Airways Development Act, (ADAP) 49 U.S.C. § 1701 et seq., the Authority was required by the Federal Aviation Administration (FAA) to file an Environmental Assessment. The Environmental Assessment was prepared by an independent consulting firm. The FAA, after receiving and evaluating the Environmental Assessment, issued a Finding of No Significant Impact, which meant that the study revealed so few adverse effects to the environment that an Environmental Impact Statement was not required.¹ In issuing the Finding of No Significant Impact, the FAA consulted with both the Environmental Protection Agency and the Department of Interior, see 42 U.S.C. § 4332(2)(C), and neither the Agency nor the Department raised objections to the project. On September 29, 1980 the FAA approved the Grant Agreement, giving the NPIA $3,464,118 for the extension of the runway.

The plaintiff Norfolk Noise Abatement Movement brought suit against the officials of the FAA, the Secretary of Transportation and the NPIA for declaratory and injunctive relief to force the agencies involved to prepare an Environmental Impact Statement. The action was stayed until the grant was approved. The District Court denied all relief.

On appeal the plaintiff contends that the District Court abused its discretion in applying the test it did in denying plaintiff's motion for injunctive relief herein. We affirm.

The National Environmental Policy Act, 42 U.S.C. § 4321, et seq., does not require that an Environmental Impact Statement be filed in every case in which agency action is involved, Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 [5 ELR 20698] (7th Cir. 1975), cert. denied, 424 U.S. 976 (1976), but only requires that the agency file a "detailed statement . . . on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, . . . ." 42 U.S.C. § 4332(2)(C). When the agency makes a finding of No Significant Impact in connection with a project, as it did in this case, the role of the District Court on review is to examine the record and to determine whether the agency abused its discretion. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414 [1 ELR 20110] (1971). In connection with that review, "[n]either the statute [the National Environmental Policy Act] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976). Our review of the District Court's decision is also limited to erroneous interpretations of law and clearly erroneous interpretations of fact. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551-52 [8 ELR 20065] (9th Cir. 1977).

While the application of the plaintiff in this case was initially one for a preliminary injunctions, the hearing early developed into a trial on the merits of plaintiff's complaint. Both plaintiff and defendants made a full and complete presentation of their positions by the testimony of live witnesses and the introduction of exhibits. The plaintiff has not shown either that it was denied the opportunity to present any relevant information at the hearing or that the District Court ignored the evidence presented. On the basis of such record and considering the limited scope of its review, as already detailed, we have not difficulty in concluding that the District Court did not commit error in holding that the defendant [11 ELR 20727] agency's Finding of No Significant Impact was not arbitrary, capricious or an abuse of discretion on the part of the agency. It follows that the dismissal of the plaintiff's action on the merits was appropriate and the judgment of the District Court to that effect is

AFFIRMED.

1. This finding applied only to one of the runways; the FAA decided that further study would be required before approving the extension of the second.