JORDAN LOUIE, ET AL., PETITIONERS v. STEPHEN DICKSON, ADMINISTRATOR AND FEDERAL AVIATION ADMINISTRATION, RESPONDENTS
No. 18-1022
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2019; Decided July 7, 2020
Consolidated with 18-1336
On Petitions for Review of Actions of the Federal Aviation Administration
Peter R. Steenland Jr. argued the cause for petitioners. With him on the brief was James R. Wedeking.
J. David Gunter II, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General.
Before: SRINIVASAN, Chief Judge, and GRIFFITH and KATSAS, Circuit Judges.
Opinion for the Court filed by Chief Judge
SRINIVASAN, Chief Judge: Petitioners, residents living near the Paulding Northwest Atlanta Airport, seek review of several Federal Aviation Administration actions related to a proposed airport expansion. Petitioners contend that those actions violate the Administrative Procedure Aсt, the National Environmental Policy Act, and the Department of Transportation Act. We dismiss the petitions for lack of jurisdiction because none of petitioners’ challenges involves an ongoing case or controversy.
I.
A.
The Airport and Airway Improvement Act,
First, should approval constitute a “major Federal action[] significantly affecting the quality of the human environment,”
FAA guidance establishes time limits on the validity of FONSIs. In particular, “[i]f major steps toward implementation of the proposed action,” such as construction, “have not commenced within three years from [a FONSI‘s issuance], a written re-evaluation must be prepared.” FAA Order 1050.1F, ¶ 9-1.b, J.A. 616. A new or supplemental EA must be prepared unless the written re-evaluation indicates, as relevant here: (i) that the “proposed action conforms to plans [addressed in the FONSI] and there are no substantial changes in the action that are relevant to environmental concerns“; and (ii) that the “[d]ata and analyses contained in the previous EA and FONSI or EIS are still substantially valid and there are no significant new circumstances or information relevant to environmental concerns.” Id. at ¶ 9-2.c, J.A. 617.
Second, the FAA‘s approval may also implicate Section 4(f) of the Department of Transportatiоn Act, which applies to approvals of a “transportation program or project.”
B.
In 2005, the FAA approved an EA and issued a FONSI on construction of the Paulding Northwest Atlanta Airport. The Paulding County Airport Authority, however, was unable to develop much of the originally planned area, leading the Authority to propose the expansion at issue. Because the Georgia Department of Transportation (GDOT) joined the FAA‘s State block grant program in 2008, the expansion required GDOT approval. In 2011, GDOT approved a supplemental EA for the expansion and issued a FONSI. The FAA also approved the supplemental EA, but noted that its approval only provided the findings necessary for future action and did not thereby authorize any funding.
Subsequently, the Airport Authority became interested in also developing commercial service from the Airport, which requires an Airport Operating Certificate. See
During the FAA‘s work on that EA, the Airport Authority and GDOT separately studied the expansiоn. GDOT, as noted, had already done so in the 2011 supplemental EA, but since more than three years had passed, FAA guidance required a written re-evaluation. See FAA Order 1050.1F, ¶ 9-1, J.A. 617. In May 2017, the Airport Authority issued and GDOT approved a written re-evaluation, concluding that the 2011 supplemental EA remained valid and that no new supplemental EA was necessary. In September 2017, the FAA concurred in that written re-evaluation and withdrew the expansion from the scope of the then-pending EA. See Notice of Modification to Previously Published Notice of Intent to Prepare an Environmental Assessment, 82 Fed. Reg. 42,221, 42,221 (Sept. 6, 2017).
Petitioners, residents living in the vicinity of the Airport who had submitted comments on the draft EA conсerning the expansion, requested reconsideration of the FAA‘s decision to concur in the written re-evaluation. Petitioners contended that FAA guidance required a new supplemental EA because the expansion did not conform to the plans studied in the 2011 supplemental EA, certain data underlying it was no longer valid, and significant new information relevant to environmental concerns had come to light.In January 2018, the FAA denied reconsideration. The FAA first noted that petitioners’ request “may have been more appropriately directed to [GDOT],” because “the State ha[d] been responsible for most of the administrative responsibilities, including applicable environmental review requirements,” since joining the State block grant program in 2008. Letter from Michael S. Fineman, FAA, to Peter Steenland, Sidley Austin (Jan. 18, 2018), J.A. 128. The FAA explained that it had reviewed the written re-evaluation given its sensitivity, but “withdrawal of the FAA‘s concurrence would not require Georgia to withhold block grant funding.” Id. At any rate, the FAA concluded that petitioners hаd not demonstrated that the written re-evaluation failed to satisfy agency guidance. In response, petitioners filed a petition for review, which is Case No. 18-1022 in our court.
In October 2018, while that case was pending, the FAA reversed course and decided to withdraw its concurrence in the written re-evaluation. In a letter to GDOT, the FAA reiterated its view that GDOT is “responsible for administering the Airport Improvement Program,” including “environmental review.” Letter from Elliott Black, Dir., Office of Airport Planning and Programming, FAA, to Russell McMurry, Commissioner, GDOT (Oct. 31, 2018), J.A. 131. The FAA explained that its concurrence had been “a mere gesture of support” and had “no legal effect.” Id. Without commenting on the written re-evaluаtion‘s validity, the FAA decided to withdraw its concurrence to keep “lines of responsibility and accountability”
The two cases are now consolidated in our court, and together, they present challenges to four FAA actions: (i) the FAA‘s decision to withdraw the expansion from thethen-pending commercial service EA; (ii) the FAA‘s simultaneous concurrence in GDOT‘s written re-evaluation; (iii) the FAA‘s denial of reconsideration of that concurrence; and (iv) the FAA‘s subsequent decision to withdraw its concurrence. Contending that those actions violate the APA, NEPA, and Section 4(f), petitioners ask us to vacate all four actions and remand to the FAA for further environmental analysis.
II.
We begin and end with the question of our jurisdiction. The relevant doctrines are standing, which generally turns on the circumstances at the commencement of the suit, and mootness, which generally turns on developments thereafter. See Friends of the Earth, Inc. v. Laidlaw Envtl. Sеrvs. (TOC), Inc., 528 U.S. 167, 189 (2000). Each of those doctrines applies to each form of relief requested. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (standing); J.D. v. Azar, 925 F.3d 1291, 1307 (D.C. Cir. 2019) (mootness). We thus proceed claim by claim, and we ultimately conclude that one or the other of the two doctrines requires dismissing each of the claims before us.
A.
We begin with petitioners’ challenge to the FAA‘s decision to withdraw its concurrence in GDOT‘s written re-evaluation. Petitioners lack standing to pursue that claim.
To satisfy the “irreducible constitutional minimum” ofstanding, petitioners must have suffered an “injury in fact” that is both “fairly traceable to the challenged action” and likely to be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (citation omitted). “The party invoking federal jurisdictiоn bears the burden of establishing [those] elements.” Id. at 561.
Petitioners allege injuries that would flow from construction of the airport expansion. For instance, petitioners Robert and Mary Board allege that they live on a section of Bluffy Creek that is home to threatened Cherokee darters, which they spend time observing. Petitioner Anthony Avery lives near and engages in hunting and other recreational activities in the Paulding Forest Wildlife Management Area, through which Bluffy Creek flows. Petitioners aver that construction of the expansion will increase erosion, sedimentation, and turbidity in Bluffy Creek. They allege that the expansion will harm their recreational and aesthetic interests, through disruрtion of Cherokee darter habitat, filling of wetlands, and clearing of trees.
Those injuries, while cognizable, are not fairly traceable to the challenged action: the FAA‘s withdrawal of its concurrence in the written re-evaluation. Petitioners contend that the FAA‘s withdrawal of its concurrence authorizes the expansion. It does nоt. Instead, it removes the FAA‘s endorsement of GDOT‘s environmental analysis, concluding that responsibility for that analysis lies solely with GDOT. Any injury attendant to construction of the expansion thus flows from GDOT‘s approval and the Airport Authority‘s decision to proceed, not from the FAA‘s withdrawal of its approval.
Doing so, however, only underscores the lack of a causal relationship between the claimed injuries and the challenged action. Assuming without deciding that the expansion is federal in character and requires the FAA‘s approval, the FAA‘s withdrаwal of its concurrence makes clear that the agency has not given that approval. If anything, the FAA‘s withdrawal makes the expansion, and in turn petitioners’ injuries, less likely under petitioners’ view of the merits. Tellingly, petitioners themselves sought that withdrawal in their request for reconsideration of the FAA‘s concurrence, and indeed still seek it hеre.
Perhaps petitioners could challenge some other FAA action approving or funding the expansion. But the FAA‘s withdrawal of its concurrence does the opposite: that action revokes the agency‘s ostensible approval. Because petitioners’ injuries are not fairly traceable to that action, petitioners lack standing to challenge it.
B.
Petitioners’ remaining challenges concern the FAA‘s concurrence in GDOT‘s written re-evaluation, the FAA‘s denial of reconsideration of that concurrence, and the FAA‘s withdrawal of the airport expansion from the then-pending commercial service EA. Those challenges are аll moot.
“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979)(citation omitted). Mootness prevents federal courts from deciding controversies when “events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990). Thus, “if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever,” the appeal is moot. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (citation omitted).
During the pendency of petitioners’ challenges to the FAA‘s conсurrence in the written re-evaluation and denial of reconsideration, the FAA withdrew its concurrence, mooting those challenges. A challenge seeking an agency‘s withdrawal of a notice becomes moot when the agency withdraws the notice. See Cierco v. Mnuchin, 857 F.3d 407, 415 (D.C. Cir. 2017). Here, petitioners acknowledge that a remand to the FAA to withhold its concurrence would relieve any injuries stemming from it. That is exactly what the FAA has already done administratively through its withdrawal. Because we cannot grant any relief beyond that already afforded, petitioners’ challenges are moot.
Petitioners contend that, because they also challenge the FAA‘s withdrawal of its concurrenсe, their challenges to the concurrence and denial of reconsideration are not moot. Petitioners suggest that we can vacate the mooting circumstance, restoring
Similarly, while petitioners’ challenge to the FAA‘s dеcision to consider the expansion separately from the commercial service EA was pending, the FAA notified the Airport Authority that it had closed its file on the EA due toinsufficient progress and deemed the Authority‘s application for an Airport Operating Certificate withdrawn. Accordingly, the FAA no longer needs nor intends to prepаre a commercial service EA, as no application for an Operating Certificate remains pending. It follows that the issues presented by petitioners’ challenge to the FAA‘s decision to consider the expansion separately from the commercial service EA are no longer live.
Petitioners’ challenge relies on the rule against segmentation, which prevents “an agency [from] avoid[ing] the NEPA requirement that an [environmental impact statement] be prepared for all major federal actions with significant environmental impacts by dividing an overall plan into component parts, each involving action with less significant environmental еffects.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987) (per curiam). But no alleged avoidance persists when, as here, there is no longer any interrelated action contemplated. Nor have petitioners provided any reason to believe that any new application for an Airport Operating Certificate is impending. As a result, whether the airport expаnsion and introduction of commercial service are too interrelated to be considered separately is a hypothetical issue. Any opinion addressing it would “neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Transwestern Pipeline, 897 F.2d at 575. Petitioners’ challenge thus has become moot.
*
For the foregoing reasons, we dismiss the petitions for lack of jurisdiction.
So ordered.