the same as affirmative
evidence that the levels of PM10 emissions will exceed 70 tons per year.
Moreover, countering whatever marginal weight the Supplemental Dulla
Declaration may carry is a declaration from FAA expert David Kessler
concluding that "the Harding ESE Report uses a logical and appropriate
methodology to project air emissions for the proposed Center Runway
Reconstruction Project." Declaration of David B. Kessler ¶ 12. Mr.
Kessler also opines that the Center Runway Project "will not generate air
pollutant emissions that exceed the de minimis threshold specified in 40
C.F.R. Part 93 for the various criteria pollutants," id, ¶ 15, and
"will not create air pollutant emissions that would be regionally
significant," id. ¶ 7.
Overall then, the Court is left without a firm factual basis upon which
to conclude that plaintiffs will be irreparably harmed unless an
injunction is granted at this time. Even if plaintiffs could establish
that they would be harmed by PM10 emissions, the evidence before the
Court is that PM10 emissions from the Center Runway Project will not even
reach the threshold (established by the EPA) at which the requirement for
a conformity determination becomes applicable. It would be incongruous
for the Court to grant a preliminary injunction for the failure to
perform a conformity determination where the only alleged harm is from
emissions so low that a conformity determination would not normally be
D. Harm to Other Parties and the Public Interest
The parties dispute the extent to which a preliminary injunction
halting the Center Runway Project might impact PHX's air traffic
operations, and thus impact other parties and the public. Ultimately,
however, an examination of the interests of other parties and the public
confirms that a preliminary injunction should not be granted.
According to evidence submitted by defendants — including
declarations from representatives of Southwest Airlines and America West
Airlines, two major users of PHX — a delay in the Center Runway
Project occasioned by a preliminary injunction will cause significant
disruption. During Phase II, the Center Runway must be completely closed
for 50 days. Krietor Decl. ¶ 15. Thereafter, in Phase III, the
Center Runway will open for 40 days at a length of 7,500 feet —
less than its normal operating length of 10,300 feet, and less than the
lengths of PHX's North Runway (11,000 feet) and South Runway (7,800
feet). Id. ¶ 5, 15. Defendants proffer that, in order to minimize
the disruption to the National Airspace System and the airlines during
Phases II and III of the Center Runway Project, it is important that the
Phase II closure occur during the winter; in colder months, defendants
submit, less runway length is required than in warmer months for the same
intervals between flights can be shorter, and usage of PHX is
lightest. Flynn Decl. ¶ 18; Declaration of John M. Daley ¶ 8;
Declaration of Clifton Childers ¶¶ 6, 11; Krietor Decl. ¶¶ 13,
16.*fn14 If Phase II does not begin until the summer, defendants argue,
burdens from the Project will increase. Due to high temperatures, PHX
will only be able to pour PCC at night, thus increasing the costs and
extending the time for completing the work. Krietor Decl. ¶ 16. In
addition, PHX will not be able to divert certain aircraft to the South
Runway because that runway is not long enough to handle takeoffs of
heavier crafts when temperatures are hot. Id. ¶ 16; Childers Decl.
¶ 7. This, in turn, will require that more flights be diverted to the
North Runway than had otherwise been planned, thereby increasing flight
delays and costs and possibly requiring rescheduling or cancellation of
flights. Krietor Decl. ¶ 16; Childers Decl. ¶ 7-8.
Alternatively, airlines could institute weight restrictions that would
enable them to use the South Runway; however, the artificial caps on the
number of passengers and the size of fuel loads that might be required,
defendants submit, would dig into airline income and require additional
fuel stops. Childers Decl. ¶¶ 8-10.
Defendants also argue that the adverse consequences of delay could not
be entirely ameliorated by postponing Phase II of the Project until after
the 2003 hot-weather season. Krietor Decl. ¶ 17. In the interim
period, defendants contend, based on the current status of the Center
Runway Project, the Center Runway might remain unusable except for
certain smaller types of aircraft. Id. Thus, larger aircraft would still
have to be diverted to the North Runway, possibly resulting in flight
delays or cancellations, or in weight restrictions for aircraft that
could potentially use the Center or South Runways Id.; Childers Decl.
Plaintiffs, for their part, offer a declaration from a consultant,
George Williams, contesting defendants' evidence. Mr. Williams points out
that until October 5, 2000, PHX was able to operate with only two
runways, and that, since September 11, 2001, operations at PHX have
decreased markedly. Declaration of George Williams ¶¶ 2, 13. Mr.
Williams opines that "through the use of in-trail arrival spacing
programs, speed control on the final approach course, departure sequencing
at the runway to avoid in-trail delays, runway use techniques, and
through the implementation of other air traffic procedures, the air traffic
system can mitigate or eliminate . . . reduction in capacity, caused by a
runway closure, whether in winter or in summer." Williams Decl. ¶
9. Indeed, Mr. Williams suggests that during a closure of the Center
Runway, even in the summer, heavier and lighter flights can be
efficiently allocated between the North and South Runways. Id. ¶
In evaluating the competing evidence on harms, it must be noted as an
initial matter that, like the Supplemental Dulla Declaration, the
Williams Declaration was filed on reply without leave of Court, as
required under Local Civil Rule 65.1(c).
Accordingly, the Williams
Declaration is not properly before the Court.
In any event, however, the Court is not persuaded that harms to other
parties and the public interest favor granting an injunction at this
time. Although the Court is not well-positioned to evaluate the
conflicting conclusions of the parties' declarants, on the whole, the
Court finds more persuasive defendants' evidence that runway closure
during the warmer months, when the airport is busiest and when the South
Runway cannot readily accommodate certain aircraft, will impose a greater
burden on outside parties. Indeed, there is no dispute that PHX staff
(together with interested airlines) intentionally tailored and managed
the construction schedule so that Phase II would occur during the light
winter traffic season. Krietor Decl. ¶ 13; Daley Decl. ¶ 8;
Childers Decl. ¶ 11. Logically, then, a shift in that schedule will
create burdens for the public and the airlines that PHX serves.
Moreover, even if the Court were to agree with Mr. Williams that
reduction in capacity during the summer months could be "mitigate[d] or
eliminate[d]," Williams Decl. ¶ 9, plaintiffs have still not
demonstrated that the balance of harms favors granting an injunction. The
Center Runway remains in a degraded condition, and will be improved by
resurfacing with PCC. See Declaration of Candace Huff ¶ 7; Krietor
Decl. ¶ 10. Timely attention to the deteriorated condition of the
Center Runway is in the public interest.*fn15 And although some PM10
will be released by the Project and these emissions could potentially
reach citizens in neighboring communities, as noted above, the evidence
shows that the emissions will be below the threshold levels set by the
E. Balancing the Factors
"[B]alanc[ing] the strengths of the requesting party's arguments in
each of the four required areas," Cityfed Fin. Corp, 58 F.3d at 747, it
is clear that plaintiffs' application for a preliminary injunction must
fail. Plaintiffs have not demonstrated a substantial likelihood of
success on the merits, nor have they made a persuasive showing that they
will be irreparably harmed if a preliminary injunction is not granted.
Moreover, while the evidence concerning the interests of other parties
and the public is conflicting, on the whole it suggests that granting an
injunction at this time will be disruptive to airlines and passengers.
Thus plaintiffs have not established that the `extraordinary and drastic
remedy' of a preliminary injunction is warranted. See Mazurek, 520 U.S.
For the foregoing reasons, plaintiffs' application for a preliminary
injunction is denied as to all defendants. An order denying plaintiffs'
application was issued by this Court on January 3, 2003.