Barnes v. Federal Aviation Administration
865 F.3d 1266
| 9th Cir. | 2017Background
- Hillsboro Airport (HIO) sought to add a third, parallel runway for general aviation; the Port of Portland prepared an EA and FAA issued a FONSI in 2010.
- Petitioners challenged the EA under NEPA; this court in Barnes v. DOT (Barnes I) remanded because the EA lacked analysis of whether added capacity would induce increased demand.
- On remand the Port prepared a Supplemental Environmental Assessment (SEA) with three demand forecasts (Unconstrained, Constrained, and a survey-based Remand Forecast). The Remand Forecast projected at most ~11,350 additional operations/year versus no-new-runway.
- The SEA concluded any traffic-induced increases (including lead emissions from avgas) would be de minimis and below EPA NAAQS for lead; FAA adopted the SEA and issued a new FONSI.
- Petitioners raised NEPA “hard look” and EIS necessity claims (demand-induced impacts; lead baseline and children’s health; modeling choices; forecast horizon) and alleged noncompliance with the Airport and Airway Improvement Act planning-consistency requirement.
- The runway was constructed during litigation; the court found the action not moot and denied the petition for review, upholding the FAA’s SEA/FONSI and statutory consistency determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAA took a NEPA “hard look” at demand-induced growth | Barnes: SEA understates induced demand and fails to compare with-and-without-runway demand adequately | FAA/Port: SEA used three forecasts (including a survey-based Remand Forecast) and examined impacts; addressed court’s remand concern | Held: FAA took required hard look; SEA adequately considered induced demand and impacts |
| Adequacy of lead-emissions analysis and baseline measurements | Barnes: SEA failed to measure existing soil/water lead and ignored children’s exposure risks | FAA/Port: SEA modeled emissions, showed <4% increase and ambient levels well below NAAQS; NAAQS protects children; baseline sampling unnecessary where effect is negligible | Held: Lead analysis reasonable; no arbitrary or capricious failure to measure baseline or analyze child impacts |
| Modeling choices (flight-stage emissions, mixing height, run-up) and forecasting horizon | Barnes: SEA used flawed taxi/run-up/mixing assumptions and too-short (10-year) projection | FAA/Port: Used accepted EDMS methodology, treated emissions per EPA guidance, forecasted through reasonably foreseeable period; technology (unleaded fuel) factors justify shorter horizon | Held: Modeling and temporal scope were within agency discretion and entitled to deference |
| Whether project’s effects were significant/controversial so as to require an EIS | Barnes: Potential significant impacts (lead, proximity to residences, contested data) justify EIS | FAA/Port: Increases are de minimis, ambient lead within NAAQS, disputes do not amount to substantial scientific controversy | Held: No substantial questions or controversy requiring an EIS; FONSI upheld |
| Compliance with Airport and Airway Improvement Act planning-consistency | Barnes: Project inconsistent with local plans after litigation invalidated certain city zoning | FAA/Port: City intended to remedy zoning infirmities; ordinances represented existing local plans for §47106(a)(1) purposes | Held: FAA reasonably found project consistent with local planning requirements |
Key Cases Cited
- Barnes v. United States Dep’t of Transp., 655 F.3d 1124 (9th Cir. 2011) (prior remand for analyzing induced demand)
- Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) (NEPA hard-look standard)
- Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) (agency must provide convincing reasons why impacts are insignificant)
- Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir. 1998) (FONSI obviates need for EIS)
- Great Basin Res. Watch v. Bureau of Land Mgmt., 844 F.3d 1095 (9th Cir. 2016) (rejection of agency reliance on unsupported pollutant baseline assumptions)
- Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (agency discretion in selecting temporal scope)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (definition of “controversial” under NEPA)
- Town of Cave Creek v. FAA, 325 F.3d 320 (D.C. Cir. 2003) (permissible shorter-term FAA modeling given evolving technology and planning uncertainty)