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County of Delaware, Pennsylvania v. Dep't of Transportation

February 3, 2009

COUNTY OF DELAWARE, PENNSYLVANIA, A POLITICAL SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA, ET AL., PETITIONERS
v.
DEPARTMENT OF TRANSPORTATION, ET AL., RESPONDENTS



On Petition for Review of an Order of the Federal Aviation Administration.

The opinion of the court was delivered by: Sentelle, Chief Judge

Argued October 7, 2008

Before: SENTELLE, Chief Judge, and RANDOLPH and GARLAND, Circuit Judges.

On July 30, 2007, the Federal Aviation Administration ("FAA") published a notice in the Federal Register entitled Federal Presumed to Conform Actions Under General Conformity ("PTC List"). 72 Fed. Reg. 41,565. The PTC List, promulgated by the FAA under authority granted it by the Environmental Protection Agency ("EPA"), see 40 C.F.R. §§ 93.153(f)-(h), set forth a list of 15 categories of FAA actions that are presumed to conform to state implementation plans ("SIPs") of national air quality standards in a particular local area. One of the categories that the PTC List deemed "presumed to conform" to any SIP was Category 14: "Air Traffic Control Activities and Adopting Approach, Departure and Enroute Procedures for Air Operations." 72 Fed. Reg. at 41,578. According to the PTC List, alterations in air traffic control activities at airports are presumed to conform to SIPs if the airspace alterations "are designed to enhance operational efficiency (i.e., to reduce delay), increase fuel efficiency, or reduce community noise impacts by means of engine thrust reductions." Id. On September 14, 2007, a group of petitioners comprised of public entities, associations, and individuals filed a petition for review with this court, challenging the validity of the PTC List and the FAA's reliance on the PTC List in making alterations to air traffic control routes in two separate instances. We cannot reach the merits of the petitioners' challenge, however, because they have not established that they have met Article III standing requirements. We therefore dismiss their petition for review.

I.

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, establishes a joint state and federal program to control the country's air pollution by establishing national air quality standards. Under this program, states must adopt, and submit to the EPA for approval, SIPs that provide for the implementation, maintenance, and enforcement of these national standards in each of their "air quality control regimes." 42 U.S.C. § 7410(a)(1). Federal agencies must act consistently with these state plans, and may only engage in or approve activities that conform to SIPs. See 42 U.S.C. § 7506(c)(1).

The EPA has promulgated regulations to assist federal agencies in determining whether their actions conform with SIPs. See 40 C.F.R. § 93.150 et seq. According to these general conformity regulations, if an agency's proposed action affects a maintenance or nonattainment area, the agency must determine whether its proposed action conforms to the Clean Air Act. See 40 C.F.R. § 93.153(b). In these instances, an agency must make a conformity determination for each pollutant when the total emissions caused by a proposed action would equal or exceed specified emissions levels or would otherwise be deemed regionally significant. See 40 C.F.R. §§ 93.153(b), (i). Prior to making a conformity determination, however, agencies must first conduct an applicability analysis to determine whether these thresholds would be exceeded by the proposed action. See 40 C.F.R. § 93.153(c). If the applicability analysis reveals that the effect would be at or below de minimis levels, then that activity is exempt from the conformity analysis requirement. 40 C.F.R. §§ 93.153(c)(1), (2). Such a conformity analysis is therefore only required if the proposed agency conduct exceeds these de minimis levels.

The EPA also promulgated regulations allowing federal agencies to establish categories of actions that are presumed to conform to a SIP, and that therefore do not require either an applicability or conformity determination. See 40 C.F.R. §§ 93.153(f)-(h). Following the EPA's prescription, the FAA published the PTC List, which set forth 15 categories of actions that are presumed to conform to any applicable SIPs. 72 Fed. Reg. 41,565 (July 30, 2007). Because the activities listed on the PTC List were presumed to conform to the SIPs, the FAA determined that they did not require either a conformity determination (Section 93.153(b)) or an applicability analysis (Section 93.153(c)). 72 Fed. Reg. at 41,579. As mentioned previously, Category 14 of the PTC List presumes that changes in air traffic control activities at airports conform to the Clean Air Act if those changes "are designed to enhance operational efficiency (i.e., to reduce delay), increase fuel efficiency, or reduce community noise impacts by means of engine thrust reductions." 72 Fed. Reg. at 41,578.

II.

Petitioners challenge two recent FAA actions in which the FAA altered the air traffic control activities at airports: (1) a change in departure route at McCarran International Airport in Las Vegas, Nevada ("Las Vegas Project"), and (2) a revision of the airspace in the New York/New Jersey/Philadelphia area ("Airspace Redesign"). The FAA modified its departure procedures according to the Las Vegas Project on March 20, 2007. Before implementing this procedure, the FAA conducted a Draft Supplemental Environmental Assessment of the Las Vegas Project, and later issued a Finding of No Significant Impact as a result of the Las Vegas Project. Both reports were issued in November 2006. The reports concluded that the Las Vegas Project would not result in increased emissions of the relevant pollutants because the Las Vegas Project would cause a "decrease in aircraft emissions of all the criteria and precursor pollutants." Accordingly, the FAA determined that the Las Vegas Project had met the de minimis air emission requirement in Section 93.153(c)(2), and therefore was exempt from the conformity analysis requirement under Section 93.153(b).

The FAA implemented the Airspace Redesign on September 28, 2007. The Airspace Redesign was based on over nine years of environmental study, presented in a Draft Environmental Impact Statement in June 2005 and then a Final Environmental Impact Statement in July 2007. In the July 2007 Final Environmental Impact Statement for the Airspace Redesign, the FAA noted that the PTC List had been created in draft form, but was not yet enacted. Accordingly, the FAA conducted a fuel consumption analysis to determine whether the Airspace Redesign would result in emissions that would exceed the applicable de minimis emission levels for the surrounding areas. This study concluded that airline fuel consumption would in fact be reduced under the proposed Airspace Redesign, and that this reduction would in turn reduce emissions rather than increase them. The FAA determined, unsurprisingly, that a reduction in emissions was clearly a de minimis impact on the emission levels for the areas surrounding the Airspace Redesign. Accordingly, the FAA determined in its Final Environmental Impact Statement that the Airspace Redesign was exempt, under Section 93.153(c), from having to conduct an additional conformity analysis under Section 93.153(b).

Later, the FAA issued a Corrected Record of Decision when several errors or omissions not relevant to this case were discovered. In this Corrected Record of Decision, the FAA reaffirmed its findings in the Final Environmental Impact Statement that the Airspace Redesign was exempt, under Section 93.153(c), from a conformity analysis under Section 93.153(b), because the fuel consumption analysis revealed that the project "would clearly reduce rather than increase emissions." The FAA also noted that, in the time between the issuance of the Final Environmental Impact Statement and the Corrected Record of Decision, the FAA had finally promulgated the PTC List. Accordingly, based on its findings in the Final Environmental Impact Statement, and the new promulgation of the PTC List, the FAA found that the Airspace Redesign was "either exempt or presumed to conform under" the PTC List.

Shortly after these two airspace alterations were implemented, two petitioners (City of Las Vegas and Nevada Environmental Coalition) and others not represented here filed a petition for review of the Las Vegas Project in the Ninth Circuit. That petition is currently awaiting resolution. Twelve groups of petitioners, including two from this case (County of Delaware and Heinz Wildlife Refuge), filed with this court a similar petition for review of the Airspace Redesign. Final briefs are due in that case by March 3, 2009.

In the present case, the petitioners do not challenge the substantive merits of either airspace alteration, or the FAA's findings and conclusions in implementing the projects. Rather, the petitioners challenge the validity of the PTC List, and argue that the FAA's reliance on the PTC List in enacting the Las Vegas Project and the Airspace Redesign caused the FAA to disregard its obligations under the Clean Air Act to provide a complete analysis of the potential adverse impacts on the air quality of the areas surrounding these airspace alterations. This, in turn, injures the County of Delaware and the City of Las Vegas ("public entity petitioners") because they are unable to determine whether the quality of the air that they govern is in compliance with their ...


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