CITY OF DANIA BEACH, a political subdivision of the State of Florida, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION, Respondent Broward County, Florida, Intervenor.
Nos. 09-1064, 09-1067
United States Court of Appeals, District of Columbia Circuit.
Decided Dec. 28, 2010.
Rehearing En Banc Denied March 2, 2011.
628 F.3d 581
On the record before the court, the fact that Honeywell‘s tangible net worth declined does not necessarily provide a reasonable basis to distinguish the 2009 decision because, as the Commission charts in its denial letter, Honeywell‘s tangible net worth was declining when it granted the 2007 and 2008 exemptions. Nor can the fact that Honeywell had a negative tangible net worth in 2009 serve as the apparent basis for the denial because its 2008 tangible net worth was also negative. Nor can the fact that the proposed rule would require a licensee to have $19 million in tangible net worth before allowing consideration of goodwill; the proposed rule was published before the Commission granted Honeywell‘s second exemption in 2008, see supra note 2, and the governing regulations have remained unchanged since Honeywell received its exemption in 2007 upon renewal of its Source Materials License. The Commission‘s attempt through post hoc arguments of counsel to explain its decision in its response brief comes too late. See Motor Vehicle Mfrs. Ass‘n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Accordingly, we grant the petition, vacate the Commission‘s December 11, 2009 denial, and remand Honeywell‘s April 11, 2009 exemption request to the Commission for further proceedings.
Neil McAliley argued the cause and filed the briefs for petitioners.
Robert P. Stockman, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Andrew C. Mergen and M. Alice Thurston, Attorneys. John C. Cruden, Assistant Attorney General, and Ellen J. Durkee, Attorney, entered appearances.
Before: GINSBURG and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
Opinion concurring in part, dissenting in part, and concurring in the judgment filed by Circuit Judge ROGERS.
WILLIAMS, Senior Circuit Judge:
Fort Lauderdale-Hollywood International Airport no longer has the capacity to meet existing demand without substantial delays. Congestion and delay, indeed, are projected to increase. The parties dispute what to do about it.
The airport now has three runways. Two are widely spaced and run parallel in the east/west direction on either side of the airport terminal—the 9,000-foot by 150-foot “main” runway and a shorter south runway; the third runs diagonally from northwest to southeast. Only the main runway is long and wide enough to accommodate larger aircraft. The airport‘s owner, Broward County, seeks to extend the south runway to 8,000 feet by 150 feet and to close the diagonal runway. It applied to the Federal Aviation Administration for federal funding and for the many FAA approvals needed to begin construction pursuant to the Airport and Airway Improvement Act (“AAIA“),
The cities of Dania Beach and Hollywood and several individuals challenge the adopted proposal. They argue that instead of approving Alternative Blb, the FAA should have chosen an alternative that is concededly preferable environmentally, “Alternative C1,” consisting of a new runway to the north of the main runway. Besides a variety of other environmental benefits (discussed below), Alternative Cl
Petitioners invoke two environmental statutes and an executive order: (1)
In its administrative proceedings and before us, the FAA points to airport delays that would continue and even be exacerbated if Alternative Cl were adopted, and to safety hazards associated with that option. It regards these problems as extreme enough, in context, to support its finding that Alternative C1 was not “prudent” under either statute, nor “practicable” under the Executive Order. It also found Brooks Park not to be a park of local significance.
After addressing the county‘s arguments that the FAA decision is not final and that petitioners lack standing, we consider whether the FAA either was required to, or did, give the term “prudent” in the AAIA the same meaning that the Supreme Court found “prudent” to have in § 4(f) in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); we find that it was free to, and did, give it a somewhat laxer construction. Applying that construction, we find the FAA‘s decision consistent with the AAIA. We also find that the FAA could reasonably conclude that Brooks Park was not a park protected by § 4(f). Finally, we hold that the agency was not arbitrary or capricious in viewing Alternative Cl as “impracticable” within the meaning of the Executive Order.
Finality and standing
First, the county argues that the FAA‘s challenged actions under
Second, the county objects to the petitioners’ standing, saying that a favorable decision in this case would not redress their alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 112 L.Ed.2d 351 (1992) (“it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision“) (internal quotations omitted). The county contends that it has an approved airport layout plan (“ALP“) (approved in the Decision itself, see Decision at 91), and could and would make the proposed changes to the airport even with
We discuss the two objections to our subject matter jurisdiction—the lack of finality and redressability—in reverse order. The county‘s understanding of
Assuming the county proceeded without federal funding, its theory would be correct that it and the FAA would have had no need to jump through
For the same reasons, the county‘s finality objection must fail. The Decision gave its approval to the new ALP, Decision at 91, a necessary condition for implementing Alternative Blb, and a sufficient one so far as FAA approvals are concerned. See United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 310, 47 S.Ct. 413, 71 L.Ed. 651 (1927) (holding that agency orders are final when they “determine [a] right or obligation“). See also Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 589 & n. 8 (D.C.Cir.1971).
The county also poses finality and standing objections to our reaching petitioners’ claims that the FAA violated the Executive Order. So far as we can determine, this challenge depends entirely on the county‘s claims, set out in its discussion of the AAIA context, that the Decision did not establish any right, and that its reversal would not remedy Dania Beach‘s prospective injury, because it was not a final grant of money. But as we have shown, the Decision did afford Broward County a right (the right to proceed with Alternative B1b), and its reversal would correspondingly relieve Dania Beach of the feared injury, namely the side effects of the airport expansion. The same points are
Merits
The first issue relating to
Petitioners invoke our decision in Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C.Cir.1991), in support of their argument that the FAA has no discretion to interpret the term “prudent” more narrowly than the Supreme Court‘s interpretation of § 4(f). But that case does not resolve the point. Having first found that the agency had not violated § 4(f), i.e., that it non-arbitrarily found the proposed alternative imprudent under § 4(f), we said that we had “little trouble” deciding that there was no violation of the predecessor of
Given the range of plausible interpretations, some deference is due the agency‘s interpretation under either Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), or Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); here we need not resolve which. The FAA discusses the meaning of “prudent” in both statutes in its Order 5050.4B, an agency “manual” adopted pursuant to a notice-and-comment process as directed by the Vision 100—Century of Aviation Reauthorization Act.
In its brief before us the FAA explicitly offers an interpretation of
Despite the two statutes’ general similarity in context, the FAA reasons that the greater breadth of resources protected by
In addition, the NRDC court observed that § 4(f) protects only publicly owned resources, so their use will almost always be less costly to “the public purse,” id. at 566 (citing Overton Park, 401 U.S. at 412); and because no one normally lives or works in § 4(f)-protected areas, no one will have to be driven from his home or business, id. Thus the § 4(f) context requires exceptional agency pushback if the resources are to have any chance. By contrast, NRDC v. FAA reasoned, the AAIA protected privately owned as well as public lands, so that an alternative affecting the protected resources was less likely to have an automatic advantage.
Besides the difference in range of protected resources and NRDC v. FAA‘s arguments,
This case falls somewhere between the conditions for deference to agency interpretations of their regulations under Auer and the restricted conditions for deference to interpretations of an enabling statute under Mead. United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). If Order 5050.4B simply echoed the exact language of
With these principles in mind, we have little difficulty finding that there was nothing arbitrary or capricious in the FAA‘s finding that Alternative C1 was not “prudent,” and that
Petitioners try to parry the delay figures with the point that poor-weather delays are rare (occurring only 7% of the time). They also argue that
But projections prepared in the final EIS showed that Alternative Cl would perform as poorly as the no action alternative in poor weather conditions (and worse than Alternative Blb by a factor of 10). Final Environmental Impact Statement for the Development and Expansion of Runway 9R/27L and Other Associated Airport Projects at Fort Lauderdale-Hollywood International Airport (June 2008), App. F at F-19. And the 7% frequency of poor weather amounts to an average of 25 days a year. We think the FAA entirely within its discretion in placing weight on defects in Alternative Cl that were not foreseen in the original formulation of goals.
The different alternatives also vary considerably in their fit with the existing airport layout, with the edge decisively in favor of Alternative Blb. Under it, both the main runway and the extended south runway could operate independently, reducing complexity in coordinating arrivals and departures. Decision at 46-47. Un
The petitioners respond that this is nothing extraordinary, and that air traffic control could easily coordinate air traffic and runway crossings. But the fact that air traffic control could choreograph the dance of the airplanes does not suggest that such coordination is not more cumbersome or less safe than the alternative. Human error is the most common cause of aviation accidents. See SCOTT SHAPPELL ET AL., DOT/FAA/AM-06/18, HUMAN ERROR AND COMMERCIAL AVIATION ACCIDENTS: A COMPREHENSIVE, FINE-GRAINED ANALYSIS USING HFACS, at 1 (2006) (reporting that “60-80% of aviation accidents are due, at least in part, to human error“). The FAA can reasonably determine that concerns about safety combined with substantially greater delays would render Alternative C1 imprudent under
In sum, we find that the FAA was not in violation of law in its construction of “prudent” for the purposes of
Petitioners’ “Brooks Park” argument has two elements: first, a substantive claim that the area qualified for § 4(f) protection as a “public park ... of ... local significance“; second, a motion to supplement the administrative record with draft environmental impact statements (“EISs“) prepared in 2001 and 2002 evaluating a different (albeit similar) proposal to expand the airport, and with documents submitted during those processes. If admitted, they argue, these would reinforce its argument that the FAA‘s determination that the area was not a park was arbitrary and capricious.
The record before the FAA indicated that the primary public function of the space in question, lying between the airport fence and a perimeter road on the east side of the airport, was for airplane-viewing, though with some later encroachment by commercial vehicles using it as a waiting area. Joint Appendix (“J.A.“) 114-15. There is no claim that the area featured the sort of “natural beauty” that is among the values § 4(f) seeks to protect. See
None of this seems to undermine the FAA‘s refusal to regard this plane-viewing site as a public park of local significance. Petitioners reinforce their claim, however, by invoking an FAA handbook provision against manipulative redesignations of sites:
Where the use of a property is changed from a section 4(f) type use to a transportation use in anticipation of a
request for FAA approval, section 4(f) shall be considered to apply.
Order 1050.1E, App. A, ¶ 6.2d. They argue that the county, after it bought the area from Dania Beach in 1997, changed its formal “use” from park to transportation. Under the handbook, they say, it follows that § 4(f) must be “considered to apply.”
The petitioners are deeply overreading Order 1050.1E, App. A, ¶ 6.2d. The fact that the designated use of the area was changed from park to transportation does not convert a non-§ 4(f) resource into a § 4(f) resource. The evidence in the record supports the FAA‘s conclusion that the land was never a § 4(f) resource. The county as its owner never considered the land to be a park. J.A. 114. In fact, it has said that the land was used “illegally by commercial vehicles ... as a waiting area” (a use that prevented use of the picnic tables). Id. Apart from their assertion, petitioners introduced no evidence that the area had been used as a park—unless the FAA was obliged to regard any airplane-watching site with picnic tables as a “park of local significance.” See also Stewart Park & Reserve Coalition, Inc. v. Slater, 352 F.3d 545, 557 (2d Cir.2003) (holding that “uninterrupted and purposeful use by the public” makes particular lands a public park and recreation area within the meaning of § 4(f)). It was not arbitrary or capricious for the FAA to conclude that § 4(f) did not apply to this tract.
The petitioners have moved before us to supplement the administrative record with hundreds of pages of documents introduced in prior EIS processes that contemplated the airport expansion. We deny their motion. As we explained in Texas Rural Legal Aid v. Legal Services Corp., 940 F.2d 685, 698 (D.C.Cir.1991), we do not allow parties to supplement the record “unless they can demonstrate unusual circumstances justifying a departure from this general rule.” Id. at 698. In American Wildlands v. Kempthorne, 530 F.3d 991 (D.C.Cir.2008), we held that the record can be supplemented in three instances: (1) if the agency “deliberately or negligently excluded documents that may have been adverse to its decision,” (2) if background information was needed “to determine whether the agency considered all the relevant factors,” or (3) if the “agency failed to explain administrative action so as to frustrate judicial review,” id. at 1002. None of these conditions is met here.
The FAA has been considering the expansion of the airport since 1996. 61 Fed.Reg. 14,190 (Mar. 29, 1996). In 2001 and 2002, the FAA issued a draft EIS and two supplemental draft EISs analyzing that proposal. In 2005, the county substantially revised the proposed expansion, and the FAA began the process anew, including holding new public hearings and preparing a completely new EIS. 70 Fed.Reg. 3095 (Jan. 19, 2005). The petitioners contend that the administrative record nevertheless must include documents produced since the FAA first began considering the airport‘s expansion. They claim that the FAA selectively excluded adverse documents from the earlier administrative process. Those documents would show that the FAA once considered Brooks Park to be a § 4(f) resource (they are also said to show that the alleged problems with Alternative Cl were exaggerated).
Instead of identifying particular documents adverse to the FAA, the petitioners have simply submitted the entirety of the three draft EIS statements prepared in 2001 and 2002 during the prior EIS processes. But this vague proffer hardly supplies the requisite “unusual circumstances” to justify an order supplementing the record with 1500 pages of additional material. Texas Rural Legal Aid, 940 F.2d at 698.
Petitioners’ final argument invokes Executive Order 11,990, § 2(a), 42 Fed. Reg. 26,961 (May 24, 1977), which conditions federal assistance for construction in wetlands on a finding that there is no “practicable alternative“; in resolving that issue, the agency is to consider “economic, environmental and other pertinent factors.” Id. Alternative B1b would destroy 15.41 acres of wetlands, the FAA found, of which 3.05 acres are mangrove wetlands. Alternative C1 would destroy 15.40 acres of wetlands, but the FAA believed the impacts could be reduced with further planning. Decision at 28, 47 & n. 97.
The Ninth Circuit has found that the standard under Executive Order 11,990 is “less prohibitive and contemplates more balancing of other factors” than § 4(f). Nat‘l Wildlife Federation v. Adams, 629 F.2d 587, 591 (9th Cir.1980). For reasons similar to those behind our decision about
Even assuming for the purposes of argument that Alternative C1 would cause no impacts to wetlands, the FAA‘s determination was not arbitrary and capricious. As we discussed above, Alternative C1‘s inferiority to Alternative B1b, in its longer delays (particularly in poor weather) and the safety drawbacks of the requisite runway-crossing, render it not only imprudent under
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The motion to supplement the record and the petition for review are accordingly
Denied.
ROGERS, Circuit Judge, concurring in part, dissenting in part, and concurring in judgment:
I write separately on the question whether the court may properly defer to the Federal Aviation Administration‘s position on appeal that the word “prudent” has different meanings in section 4(f) of the Department of Transportation Act of 1966 (“DOT Act“) and section 509(b)(5) of the Airport and Airway Improvement Act of 1982 (“AAIA,” codified at
It is unnecessary in concurring in the judgment to decide whether the FAA‘s Order 5050.4B is consistent with the Supreme Court‘s analysis of the word “prudent” in section 4(f). Suffice it to say, because the record demonstrates that the FAA acted consistently with its regulatory interpretation of “prudent” in Order 5050.4B in determining whether Alternative C1, favored by petitioners, met the transportation goals of the Fort Lauderdale-Hollywood International Airport expansion, the FAA‘s determination that Alternative Cl is imprudent was not arbitrary or capricious or contrary to law. See FED. AVIATION ADMIN., RECORD OF DECISION, THE DEVELOPMENT AND EXPANSION OF RUNWAY 9R/27L AND OTHER ASSOCIATED AIRPORT PROJECTS AT FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT, BROWARD COUNTY, FLORIDA 32-33 (2008) (“RECORD OF DECISION“). Accordingly, except as discussed below, I concur.
I.
Section 4(f) of the DOT Act of 1966 provides that the Secretary of Transportation may approve a transportation program or project
requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance ... only if—
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court addressed the meaning of “prudent” in section 4(f). It held that to be imprudent and thereby justify the destruction of parkland, the alternative to using a section 4(f)-protected resource must present “unique” and “truly unusual” problems reaching “extraordinary magnitudes.” 401 U.S. at 413.
In 1982, Congress enacted the AAIA, Pub.L. No. 97-248, 96 Stat. 324, 684 (1982). Section 509(b)(5) of the AAIA, now codified at
is found to have a significant adverse effect on natural resources, including fish and wildlife, natural, scenic, and recreation assets, water and air quality, or another factor affecting the environment, only after finding [1] that no possible and prudent alternative to the project exists and [2] that every reasonable step has been taken to minimize the adverse effect.
The Supreme Court has long considered Congress to intend similar or identical language to have the same meaning in two different statutes when “the two provisions share a common raison d‘etre.” Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (quoting Johnson v. Combs, 471 F.2d 84, 86 (5th Cir.1972)). Thus, as the Supreme Court held in Smith v. City of Jackson, Miss., 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), “when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.” 544 U.S. at 233 (citing Northcross); see Nat‘l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 857 (D.C.Cir.2006) (citing Smith). Further, “when judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its ... judicial interpretations as well.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006) (quoting Bragdon v. Abbott, 524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)) (modification in original).
Applying the presumption, it is clear Congress intended “prudent” in section 47106(c)(1)(B) (the AAIA) to mean the same thing as in section 4(f) and as construed by the Supreme Court in Overton Park. Contextually, the term is used identically in the two statutes: both provisions limit the Secretary of Transportation‘s power to approve new transportation projects when they would “use” (as in section 4(f)) or “cause significant adverse effects” (as in section 47106(c)(1)(B)) to the protected environmental resources. In the years between enactment of section 4(f) and the AAIA‘S enactment, the Supreme Court defined “prudent” as used in section 4(f) in Overton Park. It is difficult to imagine that Congress did not have in mind this settled understanding of the meaning of “prudent” when it chose to employ the same word (and the same concomitant requirement, feasibility) in a virtually identical context for the same purpose of protecting environmental resources. Congress gave no indication in the AAIA that it intended a different meaning, which it easily could have done, much less that it intended to water down the high hurdle that the Supreme Court identified in Overton Park.
The FAA, which, as relevant here, has been delegated authority for carrying out section 4(f) and section 47106(c)(1)(B), reached the same conclusion in formally adopting the interpretation that the word “prudent” has the same meaning in both statutes. In Order 5050.4B, the FAA‘s regulatory announcement of internal policies published upon congressional direction for notice and comment in the Federal Register, see Maj. Op. at 586, the FAA stated that “prudent” as used in the AAIA is “defined relative to section 4(f).” Order 5050.4B, ¶ 1007.e(4)(b) (Apr. 26, 2006), available at http://www.faa.gov/airports/resources/publications/orders/environmental_5050_4/; see Notice of Publication of the Preamble to Order 5050.4B, 71 Fed.Reg. 29,014 (May 18, 2006) (“2006 Notice“); Notice of Availability and Request for Comments on Draft Order 5050.4B, 69 Fed.Reg. 75,374 (Dec. 16, 2004).
Ordinarily, were deference due to the FAA‘s interpretation, whether under Chevron or Skidmore, see Maj. Op. at 586, the FAA has already spoken by regulation on the precise question in a manner consistent with the presumption that Congress used the word “prudent” to mean the same thing in the AAIA and section 4(f), as interpreted by the Supreme Court in Overton Park. See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Before this court, although not contesting that the FAA is bound by its interpretation in Order 5050.4B, see United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), counsel representing the FAA states that FAA Order 5050.4B provides that the definition of “prudent” in section 4(f) is “useful” to defining the term in section 47106(c)(1)(B) but “does not suggest that ‘prudent’ has the same meaning under both statutes.” Respd.‘s Br. 42. This means, counsel tells the court, that additional factors may be considered in the section 47106(c)(1)(B) “prudent” analysis that may not be considered in the section 4(f) analysis. See id. at 42-44. Counsel further maintains that this litigating interpretation merits deference under Skidmore. See Respd.‘s Br. 42. Yet the Order, in fact, uses the phrase “very useful” (emphasis added) and in the context of the surrounding language, and considering also the unequivocal statement in the preamble, the phrase “very useful” in Order 5050.4B simply explains that the definition contained in paragraph 1007.e(5)(a) applies to section 47106(c)(1)(B) notwithstanding that paragraph‘s references to section 4(f). Nothing in the “very useful” phrase indicates that the meaning of “prudent” differs under the two statutes, and the FAA has not identified a separate list of factors for consideration under the AAIA. Under the circumstances, unlike in Auer, 519 U.S. at 462, there is “reason to suspect” FAA‘s post hoc litigating position does not reflect the agency‘s “fair and considered judgment on the matter in question” and no deference is due to that position, even if, as the majority states, Maj. Op. at 586-87, counsel has taken the same position in another case while Order 5050.4B remains unchanged. See Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
In construing “prudent” to have the same meaning in both statutes, the FAA‘s interpretation is also consistent with our precedent. In Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C.Cir.1991), the court addressed a challenge to a
Nonetheless, the majority concludes that petitioners’ “seemingly common sense point that a word‘s meaning should be the same across comparable contexts,” Maj. Op. at 586, much less the FAA‘s regulatory interpretation in Order 5050.4B, must yield to FAA counsel‘s “distinctly laxer,” Maj. Op. at 586, interpretation of the meaning of the word “prudent” in the AAIA because of some contextual differences between section 47106(c)(1)(B) and section 4(f). Those differences, according to the majority, include that section 4(f) protects a narrower set of resources and prohibits “use” rather than “significant adverse effect[s].” Maj. Op. at 586; see Respd.‘s Br. 44. These differences, which are not mentioned by the FAA in either the Record of Decision or Order 5050.4B, merely define the precise contours of each statute‘s application; they do not suggest that the contexts are so dissimilar that the ordinary presumption does not apply. After all, two statutes need not be so similar as to be redundant in order for Congress to have intended identical terms to be read identically. In Smith v. City of Jackson, Miss., 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), the Supreme Court held that Congress meant in the Age Discrimination in Employment Act,
The majority (and counsel for the FAA) also relies on NRDC v. FAA, 564 F.3d 549 (2d Cir.2009), which suggested that “prudent” should be read differently in the two statutes because section 4(f) safeguards only publicly owned lands, which require more protection than the public or private natural resources protected by section 47106(c)(1)(B). Maj. Op. at 586-87. There are several reasons to be wary of following the analysis in NRDC v. FAA. To begin with, the distinction drawn in NRDC v. FAA between the public lands covered by section 4(f) and the public and private lands covered by the AAIA is unpersuasive. There the court suggested that greater scrutiny is required of proposed appropriations of public lands because economic considerations and private interests will often support the use of public over private lands whenever possible. 564 F.3d at 566. Perhaps so, but this public/private distinction cannot be divined from Overton Park and it is belied by the facts in NRDC v. FAA itself, which involved privately owned wetlands that the owner/developer, anticipating the economic boom that would accompany airport expansion, offered to donate for airport construction purposes. Moreover, in NRDC v. FAA, the court referred to “broader” when it meant “narrower,” see Maj. Op. at 587 n. 1; it incorrectly stated that section 4(f) applies only to highway projects and not to airport expansions, id. at 566; and it never addressed the text of Order 5050.4B, much less its preamble stating that the FAA concluded the word “prudent” should be construed the same way in the airport expansion context.
Even assuming Congress sought through enacting the AAIA to “boost[] airport development unusually aggressively,” Maj. Op. at 587, Congress imported into the statute a limitation on the authority of the Secretary of Transportation that was well known and judicially understood in the context of the environmental impacts of transportation projects. To conclude on the basis of the overarching statutory purpose that a limitation to the effectuation of that purpose should be read narrowly, see id., assumes the conclusion about the meaning of “prudent” in the AAIA. Moreover, notwithstanding the majority‘s conclusion about the AAIA‘s broad purpose, Congress also provided in the statute that another of its objectives is that “airport development projects authorized pursuant to this title shall provide for the protection and enhancement of the natural resources and the quality of the environment of the Nation.” AAIA, Pub.L. No. 97-248 § 509(b)(5), 96 Stat. 324, 684 (1982). Nearly identical language immediately precedes section 4(f) in the DOT Act. See
For these reasons, the majority‘s effort to identify a statutory gap that may be filled by the “not new” post hoc position of counsel for the FAA is flawed and there is no basis for deferring to counsel‘s “laxer” interpretation. Whatever ambiguity the word “prudent” may have has been resolved by the FAA‘s Order 5050.4B, which reflects a reading that the word in section 47106(c)(1)(B) as it is defined in section 4(f) and Overton Park is most consistent with the statutes’ shared objectives.
II.
As this court has observed, “the case law uniformly holds that an alternative is imprudent under section 4(f)(1) if it does not meet the transportation needs of a project.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 203 (D.C.Cir.1991) (citing
With regard to their contention that Brooks Park is a section 4(f) resource, petitioners introduced no evidence in this proceeding that the area had been used as a qualifying park, “unless the FAA was obliged to regard any airplane-watching site with picnic tables as a ‘park of local significance,‘” Maj. Op. at 590, which they do not claim. Rather, petitioners assert that the area was a neighborhood park for many years, see Petrs.’ Br. 46-47, which, in the face of a bare administrative record, is insufficient, see, e.g., Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 557 (2d Cir.2003). Their efforts to supplement the record in this court with documents from separate, prior environmental impact assessments related to an earlier airport expansion proposal fail for the reasons stated by the majority. See Maj. Op. at 590-91. Hence, as petitioners failed to show that Brooks Park was ever used as a section 4(f) resource, the court has no occasion to address petitioners’ objection that Broward County‘s purchase and rezoning of Brooks Park was the type of end-around that FAA Order 1050.1E, which provides that section 4(f) “shall be considered to apply” in circumstances
[w]here the use of a property is changed from a section 4(f) type use to a transportation use in anticipation of a request for FAA approval,
is designed to prevent. Order 1050.1E, App‘x A, ¶ 6.2d; see RECORD OF DECISION at A.9-1; INTERLOCAL AGREEMENT BETWEEN BROWARD COUNTY AND CITY OF DANIA PERTAINING TO EXPANSION OF JURISDICTION OF THE FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT 2-3 (1995).
Accordingly, I dissent in part, concur in part, and concur in the judgment.