Home » Case Summaries » 2017 » Barnes v. Federal Aviation Administration, 865 F.3d 1266 (9th Cir. 2017).


Barnes v. Federal Aviation Administration, 865 F.3d 1266 (9th Cir. 2017).



Oregon Aviation Watch and several individuals[1] (collectively, Plaintiffs) brought suit against the Federal Aviation Administration (FAA) challenging an order that determined an airport runway expansion project at the Hillsboro Airport in Oregon would have no significant impact on the environment. The owner of the airport, Port of Portland, intervened in the case. The United States Court of Appeals for the Ninth Circuit granted the petition for review and remanded to FAA for further consideration of the concern that a new runway would increase the number of takeoffs and landings. Upon remand, the FAA prepared a supplemental environmental assessment which again found no significant environmental impact. Plaintiffs, in turn, filed a second petition for review. The Ninth Circuit, reviewing under the arbitrary and capricious standard of the Administrative Procedure Act (APA),[2] denied the petition.

Hillsboro Airport (HIO) is located in Hillsboro, Oregon, approximately eighteen miles outside of Portland. In 2005, HIO began working on a Master Plan for the airport, including the runway expansion at the center of the suit. The modifications were funded partially by FAA grants and, because of these grants, the environmental effects of the project required assessment. In 2010, after examining the report compiled by the Port, the FAA made its initial finding of no significant impact.

Plaintiffs challenged this initial finding, petitioning the Ninth Circuit for judicial review. Upon remand, pursuant to the requirement that the Port examine the issue of increased flight traffic, the Port created and produced a supplemental environmental assessment (SEA). Based on the SEA, the FAA made the same determination of no significant impact. Plaintiffs’ main contention in their request for review of the second FAA conclusion was that the FAA did not fulfill the requirement to take a “hard look” at the environmental impacts of the additional air traffic under the National Environmental Policy Act (NEPA).[3] Plaintiffs also contended that the circumstances of the project required a full environmental impact statement (EIS), and that the FAA did not comply with a requirement under the Airport and Airways Improvement Act (AAIA)[4] to ensure that the new runway complied with the plans of local agencies.

The court made three determinations of law. First, Plaintiffs’ were incorrect in challenging the SEA as insufficient to constitute a “hard look” under NEPA. Second, Plaintiffs’ arguments related to the “significance” of the project were insufficient to trigger the requirement for an EIS. Third, Plaintiffs’ argument that the FAA must ensure the project complies with local agency plans failed because the FAA had considered the applicable city zoning ordinances.

When the court addressed Plaintiffs’ challenge to the SEA as insufficient under NEPA, it addressed six different claims. First, it examined the challenge to the pollution forecasting methodologies the FAA considered, and agreed with the FAA’s assessment that even with the worst possible forecast pollution, increases would not exceed a de minimis amount. Second, the court examined the contention that the FAA did not assess the existing amount of lead in the soil and water in the area surrounding the airport, agreeing with the FAA conclusion that increased air traffic would have little to no effect on the lead levels in the surrounding area. Third, the court looked at Plaintiffs’ claim that the FAA did not adequately examine the impact increased lead emissions would have on children. The court found that the FAA properly used EPA’s lead limit regulations when considering the maximum emissions amounts and the FAA’s determination that the lead emissions fell below the limits for “sensitive” populations was correct. Fourth, the court inspected Plaintiffs’ claim that the SEA did not adequately account for the amount of lead that would be emitted in a typical flight. The court determined that the FAA was entitled to deference for its emissions calculation methodology and did not seek to impose another methodology. Fifth, the court dispensed with Plaintiffs’ claim that the SEA did not account for water pollution by noting that the SEA discussed these items in detail. Finally, Plaintiffs argued that the SEA should have included twenty years of emissions projections rather than ten. The court disagreed, finding that it was within the agency’s discretion to limit the temporal scope of the SEA.

The court divided its analysis of the challenge to the “significance” of the project into four main sections. First, the court found that, consistent with prior case law, a full EIS is not required merely because an SEA reveals the potential for a minor impact. Second, the court rebuked Plaintiffs’ contention that the project would have some kind of unique impact on children because of its location, citing its earlier discussion of lead impacts on children. Third, the court dispensed with Plaintiffs’ argument that the location had “unique geographical characteristics,” stating “[Plaintiffs] provided no reason to conclude there is anything unique about an airport near a residential area.”[5] Plaintiffs’ last argument that the project’s effects were likely to be “highly controversial” were similarly dismissed. The court found that there was no controversy because the difference in results between two lead analyses was the result of a calculation error since corrected, not a difference in opinion among examiners.

The challenge to the project under the AAIA was given short shrift in comparison to Plaintiffs’ other claims. The court concluded that, despite Plaintiffs’ success in having the two implicated airport zoning ordinances invalidated, the city intended to correct and reinstate the ordinances and the FAA’s consideration of these plans was not arbitrary or capricious.

In sum, the court concluded that by adopting the SEA, issuing the finding of no significant impact, and determining that HIO complied with the requirements of the AAIA, the FAA did not act in an arbitrary or capricious manner. Therefore, the court denied the petition for review.

Footnotes    (↵ returns to text)

  1. Michelle Barnes, Patrick Conry, Blaine Ackley, David Barnes, and James Lubischer.
  2. 5 U.S.C. § 706(2)(A) (2012).
  3. 42 U.S.C. §§ 4321–4370h (2012); Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001).
  4. 49 U.S.C. § 47106(a)(1) (2012).
  5. Barnes v. Fed. Aviation Admin., 865 F.3d 1266, 1275 (9th Cir. 2017).
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