Michelle BARNES, an individual; Patrick Conry, an individual; Blaine Ackley, an individual; David Barnes, an individual; James Lubischer, an individual; Oregon Aviation Watch, an Oregon non-profit organization, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent; Port of Portland, Intervenor-Respondent.
No. 14-71180
United States Court of Appeals, Ninth Circuit
August 3, 2017
1268
Argued and Submitted October 5, 2016 Portland, Oregon
Even if an additional party could have satisfied PAGA‘s aggrievement and procedural requirements, Plaintiffs have cited no authority—and we have located none—explaining why the district court was obligated to permit the addition or substitution of PAGA representatives. Plaintiffs invoke authorities holding that district courts may permit substitution of class representatives in ordinary class action cases, but that comparison is unavailing for at least two reasons. First, as we have explained, “a PAGA suit is fundamentally different than a class action.” Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1123 (9th Cir. 2014); see id. at 1122-23 (explaining that principles of finality, preclusion, notice, and reservation of rights differ between these procedural devices). Second, a district court‘s discretion to permit substitutions or additions of parties is not a requirement that it do so. The court was under no such obligation. Cf.
Over years of litigation, the parties had ample opportunity to shape their theories of this case. Nothing in the district court‘s order or this court‘s opinion prevents a proper plaintiff from bringing a new action to vindicate his or her rights in the future. In the circumstances, the district court did not err by dismissing the case.
AFFIRMED.
Robert Lundman (argued), Maggie B. Smith, and Andrew C. Mergen, Attorneys, Appellate Section; Sam Hirsch, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Patricia Deem, Office of Regional Counsel, NW Mountain Division, Federal Aviation Administration; Eric Elmore and Daphne Fuller, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C.; for Respondent.
Before: SIDNEY R. THOMAS, Chief Judge, and RICHARD R. CLIFTON and JACQUELINE H. NGUYEN, Circuit Judges.
OPINION
CLIFTON, Circuit Judge:
This case involves a new runway at Hillsboro Airport, a general aviation airport near Portland, Oregon. We previously considered a challenge to the original environmental assessment done for the new runway project in Barnes v. United States Department of Transportation, 655 F.3d 1124 (9th Cir. 2011) (”Barnes I“). Although we rejected many of the arguments raised in the prior petition for review, we granted the petition and remanded for further consideration based primarily on concern for the possibility that the new runway would result in a larger number of takeoffs and landings at the airport, a possibility we concluded had not been adequately addressed.
Following remand, a supplemental environmental assessment was prepared. It concluded that the new runway would cause at most a small increase in air traffic and also determined that, even if the runway did induce a growth in traffic, any impact on air quality would be immaterial. The Federal Aviation Administration accepted that assessment and issued a finding that the new runway would have no significant impact on the environment. Petitioners, five individuals and a non-profit organization, oppose the new runway and challenge the FAA‘s conclusions. We have jurisdiction pursuant to
I. Background
Hillsboro Airport (“HIO“) is located in the city of Hillsboro in Washington County, Oregon, twelve miles west of downtown Portland. It is owned by Intervenor-Respondent Port of Portland. In terms of airport operations (the sum of takeoffs and landings), it became the busiest airport in Oregon in 2008, surpassing Portland International Airport.1
In 2005 the Port undertook to develop a Master Plan for HIO. Among other things, the Plan proposed construction of a new third runway, which would run parallel to the existing primary runway and would be used by small general aviation aircraft. The Plan concluded that adding the new runway would be “the best means available for reducing delays and the undesirable conditions that occur due to delay.” The new runway would also allow for separating small, single-engine propeller planes from larger propeller planes and jet aircraft. The modifications were to be funded in part by FAA grants.
The use of FAA funds meant that the environmental effects of the project had to be considered. See
Opponents of the new runway, including three of the petitioners in this action, peti-
On remand, the Port produced a supplemental environmental assessment (“SEA“), which included three different forecasts for demand at HIO. The forecasts predicted at most a small increase in air traffic operations due to the new runway and concluded that pollution generated by any increased traffic would be negligible. The FAA adopted the SEA, concluded that it was unnecessary to prepare an environmental impact statement, and, in 2014, issued a new FONSI. See
Petitioners now contend that, on remand, the FAA did not fulfill NEPA‘s requirement to take a “hard look” at the environmental impacts of additional air traffic generated by the new runway. See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006). They also argue that the circumstances of the project necessitated preparation of an environmental impact statement. See
II. Discussion
“Judicial review of agency decisions under NEPA ... is provided by the [Administrative Procedure Act], which maintains that an agency action may be overturned only when it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‘” Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006) (quoting
A. Petitioners’ Challenges to the Supplemental Environmental Assessment
Petitioners argue that the SEA was deficient in a number of respects and that it therefore did not constitute the “hard look” NEPA requires. We address each of Petitioners’ contentions in turn.
1. Forecasting Methodologies
On remand, the Port produced three forecasts for air traffic growth at HIO: the Unconstrained Forecast, the Constrained Forecast, and the Remand Forecast.
The Unconstrained Forecast modeled air traffic based on socio-economic data without limitations related to the airport‘s infrastructure. In other words, the Unconstrained Forecast predicted how much air traffic HIO would see if it had limitless runways and other facilities. The Unconstrained Forecast predicted that HIO would have 224,260 total aircraft operations in 2016 and 242,680 total aircraft operations in 2021.
The Constrained Forecast modeled air traffic while taking account of HIO‘s limited runways and assuming that the new runway would not be built. The Constrained Forecast assumed that, if HIO became so crowded that the wait time to use its two then-existing runways became intolerable, then pilots would begin using other airports, and growth at HIO would taper off. The Constrained Forecast determined that, even without the new runway, the delays at HIO would not have reached an intolerable level by 2021, the end of the forecasting period adopted by the SEA. Because a delay-induced curb on operations growth was the only difference between the Unconstrained and Constrained Forecasts, and because such delays were not anticipated during the forecasting period, the Constrained Forecast predicted the same number of operations as the Unconstrained Forecast.
In order to accommodate our direction in Barnes I to consider demand induced by the new runway, the SEA also included what it called a Remand Forecast, which incorporated data derived from a survey. In the survey, pilots with planes based at HIO and other airports around Portland estimated whether and by how much they would increase their operations at HIO due to the new runway, the associated reduced delays at peak times, and the increased safety arising from separating single-engine propeller planes from larger planes. The SEA added the increase that the pilots projected to the projections from the Unconstrained Forecast to arrive at the Remand Forecast, which predicted that HIO would see 235,610 operations in 2016 and 254,030 operations in 2021. Accordingly, among the three forecasts, the Remand Forecast predicted the largest air traffic volume. Specifically, the Remand Forecast predicted that HIO would have 11,350 more takeoffs and landings each year with the new runway than it would without the new runway.
The SEA contended that the Unconstrained Forecast, which took account of socio-economic conditions, adequately predicted future demand at HIO assuming the new runway were built. Additionally, the SEA provided extensive analysis about the Remand Forecast. Our primary concern in Barnes I was the original EA‘s lack of a comparison of projected air traf-
Petitioners contend that the Remand Forecast underestimates growth. Specifically, Petitioners claim that the survey used to generate the Remand Forecast did not include a response from Hillsboro Aviation, a pilot training school that Petitioners state is the largest aviation operator at HIO. The FAA counters that Petitioners are mistaken and that Hillsboro Aviation did in fact respond to the survey. The record indicates that Hillsboro Aviation‘s response was included in the survey. Accordingly, the challenge to the Remand Forecast is without merit.3
The SEA concluded that even the higher activity levels reflected in the Remand Forecast would not have any significant environmental effects. With regard to air quality, for instance, it stated that “the proposed project would either reduce emissions and be de minimis, or, if the Remand Forecasts occurred, would slightly increase emissions but remain well below the de minimis level.” Petitioners challenge specific elements of that conclusion.
2. Lead Pollution Baseline Measurements
Petitioners argue that, because the SEA did not assess the existing amount of lead in the soil and water in the area surrounding HIO, it did not consider how any lead emissions from increased air traffic might impact the accumulation of lead in the soil and water. Unlike jet fuel used by commercial airlines, fuel used in general aviation may contain lead. Petitioners contend that the SEA therefore “ignore[d] an important aspect” of the impacts of potentially increased air traffic associated with the new runway in violation of NEPA‘s requirements.
The SEA demonstrated that the new runway would have little effect on lead in the area around HIO. The Remand Forecast estimated that the new runway would result in the annual emission of an additional 0.03 ton of lead in 2016 (from 0.83 ton under the Constrained Forecast to 0.86 ton under the Remand Forecast) and the annual emission of an additional 0.02 ton of lead in 2021 (from 0.90 ton under the Constrained Forecast to 0.92 ton under the Remand Forecast).4 These predictions represent an increase in lead emissions of less than four percent. The data underlying these forecasts were discussed in great detail in the “air quality technical memorandum” attached to the SEA.
The SEA reasonably determined that any increased air traffic would have virtually no effect on the lead levels in the area around HIO. If a project will have virtually no effect on the presence of a pollutant, then it would be pointless to measure or model the presence of that pollutant prior to commencing the project. Therefore, it was not arbitrary or capricious to refrain from conducting additional analyses regarding baseline lead levels in the soil or water.5
3. Impacts on Children
Petitioners argue that the SEA failed to consider the impact that increased lead emissions may have on children. The SEA included a section titled “Children‘s Health and Safety Risk,” in which it explained that, even with the increased air traffic projected by the Remand Forecast, the air around HIO would remain “well below” the EPA‘S NAAQS lead limit of 0.15 µg/m³.
Using the FAA‘s Emission & Dispersion Modeling System, the SEA concluded that the maximum lead concentration in the air around HIO was 0.00405 µg/m³ prior to the construction of the new runway. Using a “sensitivity analysis” that assumed that all emissions occurred near ground level, the SEA found a maximum lead concentration in the air around HIO of 0.06567 µg/m³. Accordingly, even assuming that all lead emissions from the airport occurred at ground level, the projected lead level in the air around HIO was less than half of the maximum allowed under the EPA‘s standards. Given these conditions, it was not arbitrary or capricious for the SEA to conclude that an increase in lead emissions of less than four percent would not cause the ambient lead concentrations surrounding HIO to exceed the EPA‘s lead NAAQS.
The SEA also concluded that the EPA‘S NAAQS for lead was set at an acceptable level to protect sensitive populations, including children. When it issued its final rule, the EPA explained that the NAAQS for lead was established “to provide increased protection for children and other at-risk populations against an array of adverse health effects, most notably including neurological effects in children, including neurocognitive and neurobehavioral effects.” Environmental Protection Agency, National Ambient Air Quality Standards for Lead, Final Rule, 73 Fed. Reg. at 1103 (Nov. 12, 2008).
4. Flight Stage Components Included in Lead Emission Calculation
Petitioners argue that the SEA did not adequately account for the various components of a typical flight in its lead emission calculations. First, Petitioners contend that the SEA did not adequately support its estimate for the time it takes for aircraft to taxi to and from the runway. The SEA stated that the taxi times were forecast taking into account HIO‘s runway usage, aircraft mix, and weather conditions. This explanation does not, as Petitioners contend, represent a “void,” but rather it is a methodology selected by the FAA and entitled to deference. Compare Or. Nat. Desert Ass‘n v. Bureau of Land Mgmt., 625 F.3d 1092, 1121 (9th Cir. 2010) (“We cannot defer to a void.“) with Nat‘l Parks & Conservation Ass‘n v. U.S. Dep‘t of Transp., 222 F.3d 677, 682 (9th Cir. 2000) (“[T]he FAA‘s determination is due deference—especially in areas of agency expertise such as aviation forecasting.“).
Petitioners also argue that, when considering lead emissions in the air surrounding HIO, the SEA did not properly consider the altitude at which emissions were released during the “cruise” phase of flights. Specifically, Petitioners contend that the SEA should have applied a mixing height (the height below which air particles will mix to become homogeneous) of 3,000 feet. That is essentially what the SEA did, as the FAA pointed out in its answering brief. The FAA‘s Emissions and Dispersion Modeling System (“EDMS“), approved by the EPA, calls for emissions released above 1,000 feet to be treated as being released halfway between 1,000 feet and the mixing height. The SEA treated those emissions as being released at a height of 619 meters (2,031 feet), which is approximately halfway between 1,000 feet and the mixing height of 3,000 feet that Petitioners advocate. Petitioners did not say anything further on the subject in their reply.
Petitioners argue separately that the EDMS model did not include lead emissions that occur during the “run-up” phase, when pilots conduct pre-flight checks. The FAA confirmed in its response to comments that it was developing a methodology to measure emissions during the run-up phase but had not yet completed that endeavor, so it continued relying on the existing EDMS methodology in the interim. The FAA is entitled to deference in its decision. See Nat‘l Parks & Conservation Ass‘n, 222 F.3d at 682.
5. Impacts on Water Quality
Petitioners argue that the SEA did not account for pollution in water and wetlands arising from potential increased air operations. In fact, the SEA discussed the project‘s impact on water quality and wetlands in detail. Although the section of the SEA discussing water did not specifically address lead emissions, the NAAQS for lead accounts for exposure to lead through water, 73 Fed. Reg. at 66971, and the SEA concluded that any increased lead emissions would be de minimis under the
6. Duration of Emissions Forecasting Period
Petitioners argue that the SEA should have published twenty years of emissions projections instead of the ten years it provided. Petitioners contend that the FAA typically forecasts demand twenty years in advance for long-range planning purposes and note that the FAA prepared such a forecast for HIO. The SEA explained that, consistent with the FAA‘s typical practices for NEPA analyses, the SEA would rely on forecasts for the period through 2021 because the air traffic for that period was “reasonably foreseeable[,] i.e.[,] ... likely to occur or probable rather than ... mere-ly possible.”
“The selection of the [temporal] scope of an EIS is a delicate choice and one that should be entrusted to the expertise of the deciding agency.” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 962 (9th Cir. 2003). In that case we concluded that, although the Forest Service had data that could have allowed it to forecast further into the future, it was within the agency‘s discretion to select a three-year window for analyzing the future effects of its action. Id. at 962-63. Similarly, it was not arbitrary or capricious for the FAA to determine that, under NEPA, the reasonably foreseeable emission forecasting time frame for this project was five to ten years, even though it had (less precise) demand estimates available in the twenty-year time frame. That was especially true for lead emissions given that the FAA and the EPA are working to create an unleaded aviation fuel for existing piston engine aircraft by 2018. See Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (concluding that, especially in light of evolving technologies, it was permissible under NEPA for the FAA to model environmental impacts five years in advance, even though the agency possessed demand projections stretching further into the future).
Because the FAA “based [its decision] on a consideration of the relevant factors,” and provided a “convincing statement of reasons to explain why [the] project‘s impacts are insignificant,” we conclude that the FAA took the requisite “hard look” at the consequences of its actions. Envtl. Prot. Info. Ctr., 451 F.3d at 1009 (first alteration in original) (quoting Nat‘l Parks & Conservation Ass‘n, 241 F.3d at 730).
B. Petitioners’ Arguments Related to the Significance of the Project
“An agency must prepare an EIS if ‘substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.‘“” Ctr. for Biological Diversity v. Nat‘l Highway Traffic Safety Admin., 538 F.3d 1172, 1219 (9th Cir. 2008) (omission in original) (quoting Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)). Petitioners contend that the significance of the new runway‘s potential impacts requires the agency to produce an EIS. Although we rejected many of Petitioners’ arguments in support of this contention in Barnes I, we left open the possibility that Petitioners might prevail on their arguments related to demand induced by the new runway. 655 F.3d at 1140.
Petitioners contend that the new runway will result in increased lead emissions “significantly” affecting public health, especially children‘s health. See
Petitioners also contend that the new runway is significant because it involves “unique ... risks” to children. See
Additionally, Petitioners contend that the new runway is significant because it is near residences and therefore has “unique geographical characteristics.” Petitioners refer to
Citing
In support of their argument, Petitioners point to another airport, in San Carlos, California, that was responsible for lead emissions lower than those attributed to HIO but had a higher ambient lead level than the SEA ascribed to HIO. Petitioners reason that this circumstance calls into question the accuracy of the SEA‘s assessment of the ambient lead level at HIO. To the contrary, the study does not support Petitioners’ position because ambient lead levels are the result of emissions from all sources in a region. The non-airport lead sources near HIO were not the same as the non-airport lead sources near the other airport, and Petitioners do not contend otherwise.
Petitioners also claim controversy exists because different analyses identified different levels of lead near HIO. Contrary to Petitioners’ argument, the analysis that indicated the highest levels of ambient lead was not the result of a difference of opinion but rather was the result of an error that was corrected in subsequent analyses. There was no “substantial dispute” about the SEA‘s conclusion that ambient lead levels at HIO were well within the NAAQS. See Blue Mountains, 161 F.3d at 1212. Therefore, there was no controversy necessitating an EIS.
C. Petitioners’ Arguments Related to the Airport and Airway Improvement Act
The Airport and Airway Improvement Act requires that, before approving a project grant, the FAA must ensure that “the project is consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the air-
The city indicated that it planned to resolve the zoning ordinances’ infirmities and reinstate the relevant provisions in substance. Accordingly, the zones represented the plans “of public agencies authorized by the State in which the airport is located,”
III. Conclusion
In adopting the SEA, issuing the FONSI, and concluding that the project at Hillsboro Airport complied with the requirements of the Airport and Airway Improvement Act, the FAA did not act in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The petition for review is denied.
PETITION FOR REVIEW DENIED.
Gary KLEIN, Plaintiff-Appellant, v. CITY OF BEVERLY HILLS; Daniel Chilson; Michael Publicker; David L. Snowden, Chief, Defendants-Appellees.
No. 15-56279
United States Court of Appeals, Ninth Circuit
August 4, 2017
Argued and Submitted March 10, 2017 Pasadena, California