18 F.4th 592
9th Cir.2021Background
- Project: FAA reviewed construction/operation of a 658,000 sq.ft. Amazon air‑cargo sort/distribution facility at San Bernardino International Airport (former Norton AFB, a Superfund site). FAA issued an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI).
- Challengers: Center for Community Action & Environmental Justice, Sierra Club, Teamsters Local 1932, two residents ("CCA"), and the State of California petitioned under 49 U.S.C. § 46110 challenging the EA/FONSI under NEPA.
- Main factual disputes: geographic scope of FAA’s General and Detailed Study Areas; adequacy of cumulative‑impacts analysis (petitioners cite 80+ nearby projects); differences between FAA EA conclusions and California’s CEQA Final EIR (CEQA found significant impacts for air quality, GHG, noise).
- Technical disputes: truck‑trip and mobile‑emissions calculations (differences between EA, CEQA, and traffic spreadsheets; one‑way vs. roundtrip modeling); whether FAA considered state and federal air/ozone/GHG requirements.
- District/circuit outcome: Ninth Circuit denied the petition (majority opinion by Judge Siler); Judge Bumatay concurred (criticizing dissent’s racial‑motivation allegations as not briefed); Judge Rawlinson dissented, arguing EA was legally inadequate and characterizing the approval as environmental racism.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Study area boundaries / Desk Reference | FAA used study areas too narrowly and ignored FAA Desk Reference guidance; that undercounts impacts. | Desk Reference is nonbinding guidance; FAA’s chosen General/Detailed Study Areas were reasonable and covered relevant impacts. | Court: Desk Reference nonbinding; petitioners must show substantive EA significance beyond nonconformity. FAA’s study areas were not arbitrary. |
| Cumulative impacts (80+ projects) | FAA omitted >80 nearby projects from full cumulative analysis and failed to quantify combined effects. | FAA considered traffic from those projects and analyzed 26 projects in detail; no record showing those other projects produce cumulatively significant non‑traffic impacts. | Court: Petitioners failed to identify specific unaddressed cumulative harms; EA provided sufficient detailed information; no defective cumulative analysis. |
| CEQA FEIR differences / Need for EIS | California: CEQA FEIR found significant unavoidable air, GHG, noise impacts, so FAA must prepare an EIS under NEPA. | FAA: CEQA and NEPA differ; FAA’s EA explained why NEPA significance threshold not met (SCAQMD conformity, GHG global context, mitigation/land acquisition for noise). | Court: CEQA findings did not raise a substantial question under NEPA requiring an EIS; FAA’s explanations were adequate. |
| Truck trips / mobile emissions calculations | Petitioners: EA used inconsistent/understated truck‑trip figures (192 v. 3,823), may have only used one‑way trips, and failed to tie traffic to emissions. | FAA: explained its truck‑trip methodology (packages→trucks), SCAQMD reviewed/calibrated CalEEMod outputs and FAA performed further analysis for roundtrips; differences with CEQA reflect data/time differences. | Court: Petitioners failed to show arbitrariness; FAA’s methods and SCAQMD review suffice; apparent numerical discrepancies do not show NEPA violation. |
| Compliance with state/federal air, ozone, GHG standards | Petitioners: EA failed to assess risk of violating California Clean Air Act, federal 8‑hour ozone standards, and state GHG targets. | FAA: EA addressed these laws; SCAQMD confirmed project conforms to AQMP and ozone budgets; FAA explained GHG contribution is de minimis in global/national context. | Court: Petitioners did not identify specific likely violations; EA’s discussion and SCAQMD conformity letter defeat substantial‑question showing. |
Key Cases Cited
- Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291 (9th Cir. 2003) (NEPA requires agency to take a "hard look" and inform public);
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (EIS required when substantial questions exist that project may cause significant environmental degradation);
- Cal. Trout v. F.E.R.C., 572 F.3d 1003 (9th Cir. 2009) (EA must be sufficient to justify no EIS);
- Bark v. United States Forest Serv., 958 F.3d 865 (9th Cir. 2020) (cumulative impacts require some quantified or detailed information);
- Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002) (EAs sometimes must analyze cumulative impacts);
- Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) (EA cumulative analysis inadequate where no quantified combined assessment);
- Kern v. United States Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) (agency must analyze reasonably foreseeable future actions in cumulative impacts);
- W. Radio Servs. Co. v. Espy, 79 F.3d 896 (9th Cir. 1996) (nonbinding internal guidance not enforceable as law);
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard for administrative actions);
- Am. Wild Horse Campaign v. Bernhardt, 963 F.3d 1001 (9th Cir. 2020) (NEPA does not require EIS for ordinary uncertainty; substantial questions standard explained).