BRRAM Inc v. FAA, 16-4355

Background

Trenton-Mercer Airport (Mercer County-owned) sought approval for Allegiant Air to operate there; Allegiant proposed 14 weekly operations and submitted a noise assessment concluding no significant noise impact.
The FAA considered Allegiant’s assessment and a separate airport-prepared noise forecast projecting 20 years of foreseeable traffic; the FAA concluded no significant noise impacts.
The FAA invoked a categorical exclusion in its NEPA procedures for operating-specification amendments that do not significantly change the operating environment, after determining no extraordinary circumstances applied.
Petitioners (BRRAM, Inc. and individuals across the Delaware River) appealed, arguing the FAA acted arbitrarily and capriciously by only considering Allegiant’s proposed 14 flights and not potential future expansion it could not control.
The court found the FAA had in fact considered both the 14-flight screening and the airport’s 20-year forecast, and the Petitioners did not challenge the airport analysis’ validity; the court therefore upheld the FAA’s determination not to prepare an EIS.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FAA properly applied a NEPA categorical exclusion to Allegiant’s operating-spec amendment	FAA considered only Allegiant’s 14 proposed flights and ignored potential future expansion, so extraordinary-circumstance (noise) applies	FAA considered both Allegiant’s screening and Trenton’s 20-year forecast; neither showed significant noise impact, so no extraordinary circumstance exists	FAA acted reasonably; categorical exclusion valid and no EIS required
Whether FAA’s noise analysis relied on improper methodology	FAA contends the FAA should have used the detailed-noise model required by FAA Order 1050.1F Appendix B § B-1.2	FAA/Allegiant: Allegiant’s analysis served as an authorized noise screening (Area Equivalent Method) and Trenton’s forecast obviated further detail	Petitioners did not meaningfully challenge Trenton’s forecast; FAA’s reliance on screening and airport forecast was not arbitrary
Whether FAA should have provided public notice or treated the action as "highly controversial"	Petitioners raised these arguments in reply to argue an extraordinary circumstance existed	FAA notes these issues were not raised in the opening brief and are waived	Court held the arguments waived and declined to consider them
Whether Petitioners could join challenges to FAA’s air-quality analysis	Petitioners attempted to adopt the Township’s air-quality challenge	FAA argued Petitioners failed to adequately raise the issue in their opening brief	Court held the air-quality argument waived for Petitioners

Key Cases Cited

Del. Dep’t of Nat. Resources & Envtl. Control v. U.S. Army Corps of Eng’rs, 685 F.3d 259 (3d Cir.) (standard for arbitrary-and-capricious review of agency NEPA decisions)
Laborers' Int'l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375 (3d Cir.) (issues not raised in opening brief are waived)
N.J. Retail Merchs. Ass'n v. Sidamon-Eristoff, 669 F.3d 374 (3d Cir.) (amicus cannot inject new issues into an appeal)
Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir.) (limitations on amicus briefs raising new issues)