City Of New York v. Norman Y. MinettaCity Of New York v. Norman Y. Minetta
Susan E. Amron (Michael D. Hess, Corporation Counsel of the City of New York, of counsel), New York, New York, for Petitioners.
F. Franklin Amanat, Assistant United States Attorney (Loretta E. Lynch, United States Attorney for the Eastern District of New York, and Deborah B. Zwany and Stanley N. Alpert, Assistant United States Attorneys for the Eastern District of New York, and Paul M. Geier, Assistant General Counsel for Litigation and Thomas L. Ray, Senior Trial Attorney, U.S. Department of Transportation, Office of the General Counsel, Washington D.C., of counsel), Brooklyn, New York, for Respondents.
Lorraine B. Halloway, Crowell & Moring L.L.P. (r. Bruce Keiner, Jr., of counsel), Washington, D.C., for Amici Curiae Regional Airline Association in support of Respondents.
Robert E. Cohn, Shaw, Pittman, Potts & Troebridge (Alexander Van der Bellen, and W. Paul Zampol, General Attorney, Delta Air Lines, Inc., Atlanta, Georgia, and Robert P. Silverberg, Silverberg, Goldman and Bikoff, L.L.P., Washington, D.C., of counsel), Washington, D.C., for Amici Curiae Delta Connection Carriers in support of Respondents.
Before: Van Graafeiland, Winter, And Calabresi, Circuit Judges.
Winter, Circuit Judge
The City of New York, its Mayor, and the President of the Borough of Queens (collectively “City“) petition for review of four orders of the Secretary of Transportation granting take-off and landing slots at New York‘s LaGuardia and John F. Kennedy International Airports. See In re The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Orders 2000-4-10-13, Nos. OST-2000-7175-7178 (Dep‘t of Transp. Apr. 14, 2000) [hereinafter Orders].
The City claims that the orders must be overturned because the Secretary failed to: (i) assess the environmental impact of the orders; (ii) exercise discretion in granting the orders by considering additional statutory factors concerning the domestic economic benefits from granting each request; and (iii) review the merits of each application individually. Respondents, the Secretary of Transportation, the Deputy Assistant Secretary for Aviation and International Affairs, the United States Department of Transportation, and the Federal Aviation Administration (collectively “Secretary“), argue that we have no jurisdiction to review the orders and that, even if jurisdiction exists, no environmental assessment was required and the Secretary complied with the relevant statutory requirements. We conclude that we have jurisdiction but agree with the Secretary on the merits and deny the petition for review.
BACKGROUND
The present petition arises from the federal regulation of air traffic at four airports -- LaGuardia, Kennedy, Chicago‘s O‘Hare International, and Washington, D.C.‘s Reagan National. Congress‘s phasing out of regulation of aviation routes in the 1970s, see
In 1968, the FAA adopted the “High Density Rule” (“HDR“), which limited the number of flights at these four (high density) airports and required airlines to obtain “slots” -- reservations for takeoffs and landings -- before offering services during regulated time periods. See id. By the early 1990s, however, the HDR was perceived as a barrier to improved service, in part because new air carriers were unable to establish service due to the lack of slot availability. See H.R. Rep. No. 106-167, at 225-26, reprinted at 1999 WL 355951 (1999). As a result, in 1994, Congress enacted a provision giving the Secretary discretion to grant exemptions from the slot requirement where the Secretary “finds it to be in the public interest and the circumstances to be exceptional.”
The new law, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21“),
Because the City‘s petition for review requires a close reading of AIR21, we set forth in some detail the pertinent provisions of AIR21.
(a)... Subject to section 41714(i), the Secretary of Transportation shall grant, by order, [slot] exemptions... to any air carrier to provide nonstop air transportation, using an aircraft with a certificated maximum seating capacity of less than 71, between LaGuardia Airport or John F. Kennedy International Airport and a small hub airport or nonhub airport--
(1) if the air carrier was not providing such air transportation during the week of November 1, 1999;
(2) if the number of flights to be provided between such airports by the air carrier during any week will exceed the number of flights provided by the air carrier between such airports during the week of November 1, 1999; or
(3) if the air transportation to be provided under the exemption will be provided with a regional jet as replacement of turboprop air transportation that was being provided during the week of November 1, 1999.
(b)... Subject to section 41714(i), the Secretary shall grant, by order, [slot] exemptions... to any new entrant air carrier or limited incumbent air carrier to provide air transportation to or from LaGuardia Airport or John F. Kennedy International Airport if the number of slot exemptions granted under this subsection to such air carrier with respect to such airport when added to the slots and slot exemptions held by such air carrier with respect to such airport does not exceed 20.
(c) Stage 3 aircraft required.--An exemption may not be granted under this section with respect to any aircraft that is not a Stage 3 aircraft (as defined by the Secretary).
The requirements of
within 60 days after an application for a slot exemption is filed, the Secretary must approve the request if the Secretary determines that the requirements of the section under which the request is made are met; [] return the request to the applicant for additional information relating to the request to provide air transportation; or [] deny the request and state the reasons for its denial.
If the Secretary neither approves... nor denies the request... within the 60-day period... then the request is deemed to have been approved on the 61st day....
Neither the request for, nor the granting of an exemption, under this section shall be considered for purposes of any Federal law a major Federal action significantly affecting the quality of the human environment.
Finally,
(c) Factors to consider. --
(1) In general.--Before the award of slot exemptions under sections 41714 and 41716-41718, the Secretary of Transportation may consider, among other determining factors, whether the petitioning air carrier‘s proposal provides the maximum benefit to the United States economy, including the number of United States jobs created by the air carrier, its suppliers, and related activities. The Secretary should give equal consideration to the consumer benefits associated with the award of such exemptions.
(2) Applicability.--Paragraph (1) does not apply in any case in which the air carrier requesting the slot exemption is proposing to use under the exemption a type of aircraft for which there is not a competing United States manufacturer.
On April 14, 2000 -- nine days after the President signed AIR21 into law -- the Secretary issued four orders granting applications for slot exemptions at LaGuardia and Kennedy. See Orders. Rather than reviewing the applications for exemptions individually, the Secretary decided that it would be more efficient to open four dockets -- two for each New York airport2 -- and to issue a blanket order in each docket granting slot exemptions to any airline that certified its satisfaction of the criteria set forth in
All of the applications for slot exemptions at issue on this petition were filed before the President signed the legislation, apparently in anticipation of AIR21‘s becoming law. The City submitted comments in response to thirteen of those applications,3 arguing, inter alia, that an environmental assessment was required before the slot exemptions could be granted. After the orders were issued, the City filed papers with the Secretary objecting to the orders pertaining to LaGuardia -- functionally a motion for reconsideration, or so we shall call it -- again arguing that an environmental review was required before granting slot exemptions. None of the papers filed by the City disputed any factual assertion in any application for a slot exemption.
However, before the Secretary could act on the City‘s motion for reconsideration, the City filed its petition for review in this court, claiming that: (i) a required environmental review was not done; (ii) the issuance of four blanket orders, rather than individual orders reviewing each application, was improper; and (iii) the Secretary should have considered the factors listed in
DISCUSSION
a) Jurisdiction
We have jurisdiction over petitions for review of the Secretary‘s orders under
We conclude that we have jurisdiction. The City‘s objection to the application by Continental Airlines for slot exemptions at LaGuardia, filed before the orders were issued, discussed the impact of additional slot exemptions at both LaGuardia and Kennedy. Further, that objection specifically stated, “[A]nother meaningful environmental analysis must be conducted before any new slots are awarded at either LaGuardia or JFK.” (emphasis in original). Motion For Leave to File Late Answer and Answer of the Office of the Queens Borough President, City of New York, Docket No. OST-00-7083-2 (March 29, 2000) at 7. Although the City did not discuss the Secretary‘s discretion to grant slot exemptions under AIR21 in particular, AIR21 had not yet been signed into law either at the time that Continental applied for the exemptions or at the time that the City responded. In saying this, however, we note that Continental‘s application was obviously drafted in anticipation of AIR21‘s imminent signing into law because the application certified that the type of aircraft to be used did not have a competing American manufacturer, a statement clearly related to AIR21‘s
Furthermore, the City also filed eleven other objections to applications for slot exemptions, two of which objected to the grant of exemptions at Kennedy in particular. The eleven objections were filed before the effective date of AIR21 and did not contain arguments based on that statute. However, a supplemental objection to one application was filed by the City during the nine-day period between the date AIR21 was signed and the date the orders were issued. It explicitly argued that AIR21 required an environmental review before the Secretary could grant slot exemptions under that Act.
Finally, it is uncontested that the City expressly raised the environmental review issue in its motion for reconsideration. Although the City withdrew that motion upon filing the present petition, it nevertheless clearly notified the Secretary: “While we are withdrawing our motion, we continue to object to the orders.” Brief for Respondents at Appendix A, New York v. Minetta (2d Cir. 2001) (No. 00-4124). We therefore conclude that the City preserved its objections as to the need for environmental review. See Wagner Seed Co. v. Daggett, 800 F.2d 310, 314 (2d Cir. 1986) (“A presumption exists in favor of jurisdiction by federal courts over the actions of federal administrative agencies.“); Bd. of Educ. v. Harris, 622 F.2d 599, 606 (2d Cir. 1979) (exercising jurisdiction over objections not raised below where objections could not have been made earlier).
The City concedes, however, that it did not object before the Secretary to his decision to issue four blanket orders, rather than orders responding to each application individually. Nevertheless, the City argues that it had a “reasonable ground,”
b) The Need for an Environmental Review
The City‘s argument regarding the need for environmental review is based on the requirements of the
[A]ll agencies of the Federal Government shall... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on [] the environmental impact of the proposed action....
“When a court reviews an agency‘s construction of the statute which it administers, it is confronted with two questions.... If the intent of Congress is clear,... the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.... [I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see Skubel v. Fuoroli, 113 F.3d 330, 335 (2d Cir. 1997). Although the Secretary is not charged with administering NEPA, his conclusion that an EIS was not required was based not on his interpretation of NEPA but, rather, on his construction of AIR21, which he is charged with administering. We must, therefore, if necessary, apply Chevron deference to his decision.
NEPA directs that it is to be applied “to the fullest extent possible.”
The second pertinent exception to the EIS requirement arises when a statute imposes short, mandatory deadlines on an agency, thereby rendering compliance with NEPA‘s EIS requirement impossible. See Flint Ridge, 426 U.S. at 788-89. “[W]here a clear and unavoidable conflict in statutory authority exists, NEPA must yield.” Id. at 777. If a timeframe imposed by the statute on an agency is too short for the agency to prepare an EIS, therefore, an EIS is not required. Id.
Both exceptions apply in the present case. First,
The City relies upon two other provisions of AIR21 to support its argument. First, it relies on
Turning to
We choose to resolve this issue on the narrow ground that the City has waived or forfeited any argument based on
Because a procedural wrinkle is involved, we will review the history of this issue in some detail. While the City did raise the claim of a need for environmental review in proceedings before the Secretary, it never argued in that forum that the need arose because
That is not to say, however, that
The petition for review in this court did mention
The Secretary‘s brief, and those of the two amici, in opposition to the petition for review, asserted in plain terms that
We thus face the following circumstances. The record before the Secretary regarding the use of foreign aircraft by applicants for slot exemptions and/or the existence of competing U.S. manufacturers is unclear, except for two applicants. The remaining applications covered by this petition for review never addressed the issue. Because the City‘s objections to the applications never mentioned
The City‘s petition for review raised
Whether the silence of the City‘s main brief waived or forfeited the issue as to other applicants is arguable. Given that two of the applications under review had mentioned the lack of a competing U.S. aircraft manufacturer and that (c)(1) was irrelevant if (c)(2) applied, some mention of (c)(2) in the City‘s brief would have been appropriate, if only to note the lack of a record as to other applicants. Certainly, however, once the Secretary and both amici explicitly invoked (c)(2) in their briefs, the City no longer had silence as an option without fatal consequences. If the City disputed the claims of the Secretary and the amici, the City‘s reply brief at the very least should have asserted that, based on information and belief, a genuine dispute of fact existed over the type of aircraft to be used and the existence of competing domestic manufacturers.
We cannot on this record determine whether the silence of the City‘s reply brief was due to the fact that pursuit of the (c)(2) issue would have been fruitless in terms of actually stopping any flights -- or any measurable number of flights -- or because of some other consideration. We can determine, nevertheless, that the choice of silence had to have been deliberate. All three briefs in opposition to the petition for review stated that (c)(1), one of the two lynch-pins of the City‘s statutory arguments, was entirely inapplicable because of (c)(2). This argument could not have remained unnoticed when the City‘s reply brief, with its heavy reliance on (c)(1), was drafted.6 We therefore hold that the City‘s failure at any point in the proceedings to discuss (c)(2) forecloses the NEPA argument based on
We turn now to the City‘s argument based on
We disagree. The canon is inapplicable because we are not inferring an additional exception in the context of AIR21. In fact, the reason for the explicit exemption of Reagan National from NEPA works against, rather than for, the City. Unlike the statutory provisions governing LaGuardia, Kennedy, and O‘Hare, the provisions governing Reagan National expressly require the Secretary to exercise discretion over the granting of slot exemptions. Reagan National is the only one of the four airports at which the number of slot exemptions is limited. See
In contrast,
The Secretary also argues that, whether or not slot exemptions at LaGuardia and Kennedy are discretionary decisions, AIR21‘s short deadlines make compliance with NEPA impossible, thereby triggering the second relevant exception to the EIS requirement.
No one argues that it is possible to complete an EIS within a sixty-day period. See, e.g., Flint Ridge, 426 U.S. at 789 n.10 (“Draft environmental impact statements on simple projects prepared by experienced personnel take some three to five months to complete....“). The City, however, relies upon the tolling provision in
Again, we disagree. A statute permitting an agency to suspend a short statutory timeframe to allow applicants to supplement incomplete application materials cannot be read to give the agency the “inherent power to suspend the... deadline in order to prepare an [environmental] impact statement.” Flint Ridge, 426 U.S. at 787. In Flint Ridge, the statute at issue vested the Department of Housing and Urban Development (“HUD“) with only limited discretion regarding the effective date of a real estate developer‘s disclosure statement. The statute provided that such disclosure statements would automatically become effective after thirty days of filing unless HUD suspended the effective date. Under the statute, HUD had authority to suspend the effective date only where the filing was inaccurate or incomplete, in order to request additional information. The Supreme Court held that HUD‘s power to suspend the timeframe to remedy an inadequate filing did not imply that it could use its suspension authority in order to prepare an EIS. See id. at 790.
The present case involves almost identical circumstances. The Secretary can toll the sixty-day period only to request “additional information relating to the request to provide air transportation.”
c) The Orders Did Not Comply With AIR21
The City‘s argument here is based on the Secretary‘s failure to consider the factors enumerated in
d) Issuance of Blanket Orders
The City also contends that the Secretary violated AIR21 when it issued the blanket orders granting slot exemptions to any carrier that satisfied the requirements of
Given the mandatory nature of the Secretary‘s role in granting slot exemptions for LaGuardia and Kennedy, we see no reason (other than
CONCLUSION
We have considered the City‘s remaining arguments and find them to be without merit. We therefore deny the petition for review.
Notes
Notes
Each airport was assigned two dockets because
The City‘s motion to file its proposed supplemental appendix is granted.
The Secretary alternatively argues that, because the City‘s motion for reconsideration was an omnibus document objecting in general to a large number of applications for slot exemptions, rather than a series of motions objecting to individual applications, the City therefore acquiesced in the Secretary‘s use of blanket orders. We disagree. The City‘s use of a “blanket objection” neither constitutes acquiescence nor waives its right to object to the Secretary‘s use of blanket orders. It does, however, support the Secretary‘s argument that the use of blanket orders was reasonable in this matter. See infra Section d.
For example, the Conference Report stated: New York specific provisions. Slot restrictions at New York are eliminated after January 1, 2007. In the interim, DOT is directed to provide exemptions from the slot rules to any airline flying to the two New York airports if it will use aircraft with 70 seats or less and will (1) provide service to a small hub or non- hub that it did not previously service, (2) provide additional flights to a small hub or non- hub that it currently serves, or (3) provide service with a regional jet to a small hub or non- hub as a replacement for a prop plane.... DOT is also directed to grant exemptions to new entrants and limited incumbents for service to New York. H.R. Conf. Rep. No. 106- 513, at 174 (2000), reprinted at 2000 WL 272075, at 413 (emphases added).
Significantly, the City‘s reply brief recognized that the Secretary‘s brief argued that