63 F.4th 835
9th Cir.2023Background
- Bob Hope (Hollywood Burbank) Airport is owned/operated by the Burbank-Glendale-Pasadena Airport Authority; the 14-gate passenger terminal is decades old and does not meet current FAA design/safety standards.
- A replacement terminal project (northeast-quadrant site; 14 gates; up to 355,000 sq ft) was negotiated with the City of Burbank, subject to CEQA review, and approved by Burbank voters under Measure B in 2016.
- The Authority submitted an Airport Layout Plan to FAA; FAA prepared a Draft EIS (2019–2020) and issued a combined Final EIS and Record of Decision (ROD) in May 2021 approving the ALP.
- City of Los Angeles petitioned for review under 49 U.S.C. § 46110, arguing FAA violated NEPA (inadequate alternatives analysis, predetermination, and deficient impacts analyses).
- FAA used a two-step screening to winnow alternatives (technical/design feasibility & economic/implementation constraints), ultimately analyzing the proposed project and the no-action alternative.
- The Ninth Circuit: upheld FAA’s purpose-and-need and alternatives analysis, rejected predetermination claim, but found FAA’s construction-noise analysis deficient for failing to aggregate simultaneous equipment noise and remanded to redo construction-noise, cumulative-noise, and related analyses (including reconsideration of environmental justice consistency if warranted).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of purpose & need / range of alternatives | LA: FAA’s purpose-and-need and screening improperly narrowed alternatives (excluded reasonable options) and unduly relied on Measure B. | FAA: Purpose/need tied to statutory mandates (AAIA) and Authority goals; screening used rational technical/economic criteria; eliminated remote/speculative options. | Held: FAA’s purpose-and-need was reasonable and its two-step screening rational; FAA permissibly limited detailed study to feasible alternatives. |
| Predetermination (Measure B) | LA: Including Measure B in screening predetermined outcome and foreclosed meaningful consideration of alternatives. | FAA: Measure B was one factor; technical, legal, and economic constraints independently justified rejection of alternatives; no irreversible commitment. | Held: No predetermination—FAA did not make an irreversible commitment and could have chosen no-action; inclusion of Measure B did not render the EIS a subterfuge. |
| Construction-noise analysis | LA: FAA failed to take a hard look—assumed single-equipment operation and did not aggregate simultaneous equipment noise, so underestimated impacts. | FAA: Calculations and assumptions (distance, intermittent work, existing freeway background) support conclusion that construction noise attenuates below significance thresholds. | Held: FAA’s construction-noise analysis was arbitrary/capricious for relying on an unsupported assumption that equipment would not operate simultaneously; remand required to aggregate equipment noise and reassess impacts. |
| Cumulative impacts & environmental justice | LA: Because construction-noise analysis is flawed, FAA’s cumulative-noise and EJ analyses are also defective. | FAA: No extensive cumulative analysis needed if project noise is insignificant. | Held: Because construction-noise analysis was deficient, FAA must revisit cumulative impacts and related environmental-justice consistency on remand. |
Key Cases Cited
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA prescribes procedures requiring agencies to take a "hard look")
- Kleppe v. Sierra Club, 427 U.S. 390 (NEPA requires consideration of environmental consequences)
- Audubon Soc’y of Portland v. Haaland, 40 F.4th 967 (9th Cir. 2022) (rule-of-reason standard for EIS alternatives and impact discussion)
- WildEarth Guardians v. EPA, 759 F.3d 1064 (9th Cir. 2014) (agency action arbitrary if it fails to consider an important aspect of the problem)
- Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) (predetermination requires an irreversible commitment of resources)
- Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (agencies bear primary responsibility to ensure NEPA compliance; some defects may be obvious without commenter's prompting)
- Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850 (9th Cir. 2022) (agency discretion in framing purpose and need but not to unreasonably narrow alternatives)
- Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073 (9th Cir. 2013) (limits on narrowing alternatives tied to agency purpose and private project context)