City of Mukilteo v. U.S. Dept. of TransporTation
815 F.3d 632
9th Cir.2016Background
- Paine Field (Snohomish County, WA) has long been a mixed-use airfield; in 2012 the FAA authorized limited commercial passenger service and prepared a Draft and Final Environmental Assessment (EA) finding no significant impact (FONSI).
- Petitioners (City of Mukilteo and others) challenged the FAA’s decision under NEPA and related statutes, arguing the EA’s scope was too narrow, failed to include connected actions, and that the FAA predetermined the outcome.
- The FAA based its projections on demand from two airlines (Horizon/Allegiant) totaling about 22 operations per day (~8,340 additional operations/year by 2018); petitioners argued FAA should have analyzed maximum-capacity scenarios.
- After briefing and oral argument, the case was stayed for several years due to terminal funding delays; later a private investor (Propeller Air, Inc.) resumed plans consistent with the 2012 EA and the court reinstated the appeal.
- The Ninth Circuit reviewed the administrative record for arbitrary-and-capricious review, deferred to FAA expertise on aviation forecasting, and evaluated whether changed circumstances required supplementation of the EA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAA unreasonably narrowed EA by projecting only demand from initial airlines rather than airport capacity | FAA should have analyzed reasonably foreseeable growth and a scenario where additional airlines operate at maximum capacity | FAA reasonably based projections on demand from airlines that had expressed intent to operate; forecasting is agency expertise | Held: FAA’s demand-based projections were not arbitrary or capricious |
| Whether FAA failed to analyze "connected actions" under 40 C.F.R. § 1508.25 | FAA’s approvals would trigger additional development and more flights; connected actions should have been included | Petitioners’ claims were speculative; no interdependent or automatically triggered actions were shown | Held: FAA reasonably concluded there were no connected actions |
| Whether FAA predetermined outcome (bias) before completing EA | Statements favoring service and a schedule showing a FONSI date show predetermination | Agencies may express preferred outcomes; schedule did not obligate a FONSI; NEPA requires good-faith review, not neutrality of aims | Held: No improper predetermination; FAA acted within NEPA bounds |
| Whether changed circumstances (private investor, possible airline changes) required a supplemental EA | New investor and potential airline changes could materially alter impacts, requiring supplementation | Changes are consistent with alternatives analyzed and not "significant"; further expansion would require separate approvals and review | Held: No supplemental EA required on current record; petition denied |
Key Cases Cited
- Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010 (9th Cir. 2012) (distinguishes EA and EIS standards under NEPA)
- Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (NEPA guarantees procedure, not outcomes)
- Animal Def. Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988) (administrative-record review and arbitrary-and-capricious standard)
- Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677 (9th Cir. 2000) (deference to agency expertise in aviation forecasting)
- San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 449 F.3d 1016 (9th Cir. 2006) (distinguishing factual vs. legal questions of reviewability)
- Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) (agency may prefer an outcome but must act in good faith under NEPA)
- Friends of Southeast’s Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998) (tentative schedules do not necessarily violate NEPA)
- Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836 (9th Cir. 2013) (supplementation not required for minor variations of analyzed alternatives)