Tinicum Township v. United States Department of Transportation
685 F.3d 288
3rd Cir.2012Background
- FAA approved expansion of Philadelphia International Airport (PHL) to extend two runways and add a third; NEPA and AAIA consistency review at issue.
- Project triggered Environmental Impact Statement (EIS) under NEPA and a conformity assessment under the Clean Air Act.
- Tinicum Township/Delaware County (Tinicum) challenged the FAA’s Record of Decision (ROD) on air quality/NEPA grounds; action reviewed under APA arbitrary and capricious standard.
- FAA engaged EPA and others; EPA comments were considered but not binding or controlling under Chevron deference.
- Final EIS and General Conformity Determination concluded emissions below de minimis levels for most pollutants; some construction-year NOx and VOC credits required; dispersion modeling for operations conducted but with EPA concerns.
- Two post-decision EPA studies cited by EPA letter do not require supplemental EIS per agency practice; FAA confirmed no new significant environmental impacts existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA adequacy of the air quality analysis | Tinicum argues the FAA’s air analysis was flawed | FAA reasonably analyzed impacts and considered EPA comments | FAA air analysis adequate under NEPA |
| EPA comments and Chevron deference | EPA comments should govern as a matter of law | EPA comments do not have force of law and deference not required | EPA comments did not carry Chevron deference; FAA must only seriously consider them |
| Need for a supplemental EIS based on post-decision studies | Post-decision studies mandate supplement | No supplemental EIS required if information confirms original analysis | No supplemental EIS required; post-decision studies did not add new significant concerns |
| Consistency with AAIA and DVRPC plans | FAA failed to require true consistency with surrounding-area plans | Reasonable consistency standard applies; DVRPC plans properly considered | FAA’s consistency finding reasonable and not arbitrary |
| Construction vs. operational dispersion modeling requirements | Modeling should cover construction and nearby sources | Construction dispersion modeling not required for de minimis emissions; operational modeling limited and adequate | FAA’s modeling decisions were not arbitrary or capricious |
Key Cases Cited
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (arbitrary and capricious review standard for EISs)
- Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004) (NEPA review skepticism limits on judicial substitution of judgment)
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) (agency must respond seriously to agency comments but not bound by them)