Third Circuit Ruling in Tinicum Township v. DOT Reveals Futility of Relying Solely on NEPA as a Method of Attacking Airport Expansion

 

On July 6, 2012, the U.S Court of Appeals for the Third Circuit denied Tinicum Township, Pennsylvania’s Petition for Review of the Federal Aviation Administration’s approval of the expansion of Philadelphia International Airport.

The western edge of PHL is located Tinicum Township and Delaware County, Pennsylvania, thus expansion of the airport is a paramount concern of the Township, the County and their residents.  In the Petition for Review Tinicum alleged that the FAA violated provisions of the National Environmental Policy Act (NEPA) as well as the consistency provision of the Airport and Airway Improvement Act.  The Third Circuit denied the Petition for Review

Tinicum basically had two NEPA arguments.  First, it argued that the FAA should have deferred to the EPA and its analysis of the air quality data that was submitted in conjunction with the Environmental Impact Statement.  The FAA made some adjustments to the EIS based on the EPA’s comments, but declined to follow other suggestions.  The Court concluded that since the FAA was the lead agency on the EIS, it could accept or reject the comments of the EPA so long as it gave the comments “serious consideration.”  In addition, the Court added that should the EPA disagree with the FAA’s conclusion, it had the authority under NEPA to take the matter up with the Council on Environmental Quality.  42 U.S.C. § 7609(b).  The EPA did not take that step in this case.

Second, Tinicum contended that there were at least five technical errors that rendered the FAA’s air quality analysis inadequate under NEPA.  In each case, the Court stated that the “FAA gave serious consideration and reasonable responses to each of the EPA’s concerns.”  Thus, the Court concluded, “the technical errors alleged by Tinicum do not render the FAA’s air quality analysis arbitrary or capricious.”

This case shows, once again, that using NEPA and the environmental review process as the primary vehicle for challenging airport expansion is not a successful strategy.  See, e.g.,  City of Las Vegas, et al. v. FAA No. 07-70121 (9^th Cir. June 12, 2009),  County of Rockland et al. v. FAA, No. 07-1363 (D.C. Cir. June 10, 2009), and City of Olmsted Falls v. FAA, No. 00-1548 (D.C. Cir. June 14, 2002).  Since NEPA is a procedural, not a substantive statute, the bar is set very low for the federal government to meet its obligations under NEPA.  Thus, the FAA and the airport move ahead with an expansion without having to concede anything to the local communities.  All NEPA requires is a “hard look” and the opportunity for public comment.

Moreover, challenging the FAA’s Record of Decision on an Environmental Impact Statement many times does not address the issues that directly affect the residents.  There is no doubt that communities surrounding airports suffer disproportionately from the noise, air quality and other environmental effects created by airports.   See Airports And FAA Still Ignore Surrounding Communities’ Concern About Exposure to Hazardous Air Pollutants, (April 11, 2012).  However, the relief that can be obtained in a successful NEPA lawsuit oftentimes is nothing more than a band aid, or a delay in the expansion while the airport and the FAA correct the problems identified in the lawsuit.  The root of the problem – the noise and pollution created by incoming and outgoing aircraft – are often left unaddressed by a NEPA lawsuit.

This is not to say that the environmental concerns raised by the expansion of an airport should not be addressed through lawsuits, if necessary.  But a NEPA lawsuit has to be used as part of a larger strategy to succeed.  For example, the City of Warwick, Rhode Island, had substantial concerns about the expansion of T.F. Green Airport, particularly the extension of a runway that would require moving a major road, many homes, and a park containing softball diamonds and soccer fields.  The City of Warwick used its challenge to the FAA’s Record of Decision to negotiate an agreement with the airport about the issues that it cared about.

The problem for communities affected by expansion of airports in their midst is that the law does not allow opportunities to stop the project(s) before they are started.  And once the project has started it is significantly more difficult to get it stopped, particularly when airports hide behind the FAA’s invocation of the Supremacy Clause.  However, at this point in time, the Tinicum Township case shows that, once again, attacking the environmental analysis under NEPA does not move the ball forward in assisting communities surrounding airports.

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