121 F.4th 902
D.C. Cir.2024Background
- The Federal Aviation Administration (FAA) and National Park Service (NPS) were required under the National Parks Air Tour Management Act of 2000 to develop an Air Tour Management Plan for four San Francisco Bay Area national parks.
- The agencies allowed interim operating authority for commercial air tours pending plan development, using the average number of tours from recent years as the environmental baseline in their review.
- They concluded the Plan would have minimal environmental impact compared to this baseline, invoking a categorical exclusion under the National Environmental Policy Act (NEPA) and declining to prepare a full environmental impact assessment.
- Petitioners, including conservation groups and a local resident, challenged this approach, arguing it arbitrarily set the environmental baseline and failed to meet NEPA’s requirements.
- The D.C. Circuit previously issued a writ of mandamus to compel agency compliance due to years of inaction and retained jurisdiction to monitor progress.
- The agencies’ Plan was finalized without a new environmental assessment, heavily relying on Council on Environmental Quality (CEQ) regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of Using Interim Authority Baseline | Agencies used an artificially high baseline, masking true environmental impacts | Interim authority flights represent current status quo, making them appropriate baseline | Agencies acted arbitrarily and capriciously by using interim authority as the environmental baseline |
| Applicability and Validity of CEQ Regulations | Agencies failed to comply with binding CEQ NEPA regulations | Agencies complied by applying CEQ regulations, justify categorical exclusion | CEQ regulations are ultra vires; CEQ lacked authority to promulgate binding NEPA regulations |
| Arbitrary/Capricious Non-Preparation of Environmental Assessment | Agencies reversed prior decision to prepare assessment and treated Bay Area Parks inconsistently with others | Change was justified by statute changes and practical considerations; assessments in other parks are distinguishable | Not arbitrary to reverse course or distinguish among parks; intensive review factors considered |
| Appropriate Remedy | Remand only (keep Plan in effect to protect environment) | Remand only (vacatur harms petitioners and environment) | Vacatur is required by APA; Plan set aside and remanded |
Key Cases Cited
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (NEPA’s requirements are procedural; does not mandate specific substantive outcomes)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA imposes procedural, not substantive, requirements)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (President cannot unilaterally make binding law via executive order)
- Chrysler Corp. v. Brown, 441 U.S. 281 (Agency rulemaking must rest on Congressional delegation)
- U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (Court's duty to determine and apply correct construction of law)
- Conservation Law Foundation v. FERC, 216 F.3d 41 (Agencies must fully examine environmental impacts regardless of baseline)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (Agencies must acknowledge and justify policy changes)
- Nat’l Fed’n of Indep. Bus. v. OSHA, 595 U.S. 109 (Agencies can act only with clear Congressional authority)
- Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (Chevron deference no longer applies; agency decisions must be rooted in Congressional authorization)
- Checkosky v. SEC, 23 F.3d 452 (Courts must vacate unlawful agency action under APA)