Home » Case Summaries » 2016 » City of Mukilteo v. U.S. Department of Transportation, 815 F.3d 632 (9th Cir. 2016)


City of Mukilteo v. U.S. Department of Transportation, 815 F.3d 632 (9th Cir. 2016)



The City of Mukilteo and others (collectively, the City)[1] challenged the 2012 determination of the United States Department of Transportation, Federal Aviation Administration (FAA) that an Environmental Impact Statement (EIS) was not necessary for the commercial expansion of Paine Field, an airfield in the State of Washington. Petitioners contended that the FAA 1) unreasonably restricted the scope of its assessment; 2) failed to consider any “connected actions”; and 3) decided the result before performing its analysis. The Ninth Circuit rejected each of the City’s arguments.

In 2012, the FAA conducted an Environmental Assessment (EA), according to its obligations under the National Environmental Policy Act[2] (NEPA), on the proposed Paine Field expansion. The FAA determined that the project would have no significant environmental impact, and accordingly issued a Finding of No Significant Impact (FONSI). In June 2014, the Ninth Circuit heard oral arguments on the City’s concerns. After oral arguments, both parties requested a stay of the proceedings because the expansion project was cancelled. The proceedings were stayed until September 2015, when the expansion project was renewed. The Ninth Circuit’s opinion followed.

The Ninth Circuit reviews an agency’s NEPA analysis to determine whether the agency acted arbitrarily and capriciously, based on the agency’s administrative record.[3] Here, the Ninth Circuit determined that it was still appropriate to use the 2012 administrative record, and that no supplemental EA was required because the current project would be substantially similar to the proposed action considered in the original EA.

First, the City argued that the FAA unreasonably restricted the scope of the EA because the FAA was required to analyze all “reasonably foreseeable” environmental impacts, which it failed to do.[4] The City argued that the FAA failed to analyze what environmental impacts would occur if additional airlines, beyond the two considered in the EA, decided to conduct commercial activities at Paine Field. The FAA determined, and the Ninth Circuit agreed, that the only reasonably foreseeable environmental impacts were those related to the two airlines involved in the proposed expansion project and considered in the EA. If, in the future, any additional airline proposed conducting commercial flights from Paine Field, the FAA may have to conduct a separate EA on that proposal, but for now, the Ninth Circuit found the City’s challenge premature. The Ninth Circuit held that the FAA’s determination was not arbitrary and capricious,[5] and deferred to the FAA’s expertise.

Next, petitioners argued that the FAA failed to consider any “connected actions,” as required by NEPA’s implementing regulations promulgated by the Council on Environmental Quality,[6] by failing to consider additional airline activity that might occur at Paine Field in the future. In the EA, the FAA determined that there were no connected actions. The Ninth Circuit agreed with the FAA, and held that the City had not proved anything beyond mere speculation.

Finally, the City argued that the FAA was biased in the EA and that the FONSI was a predetermined result. The City argued that the FAA had made statements favorable to the expansion project prior to conducting the EA, and gave the outside firm hired to perform the EA a schedule including the date on which a FONSI could be issued. The Ninth Circuit rejected both arguments. First, the Ninth Circuit held that the FAA was required to conduct the NEPA process in good faith, but that it was not prevented from expressing a favored outcome. Moreover, the FAA’s enabling legislation charges the FAA with “promotion, encouragement, and development of civil aeronautics” throughout the United States,[7] indicating that such a preference was acceptable. Next, the Ninth Circuit held that the schedule that included a date when a FONSI could be issued did not obligate the consulting firm, or the FAA itself, to actually issue a FONSI. The schedule merely laid out an optimistic timeframe for the NEPA process, and did not force any specific determinations.

The Ninth Circuit found that the FAA conducted a careful, thorough, and proper NEPA analysis, in good faith, before issuing its FONSI. Thus, the Ninth Circuit held that the FAA’s EA resulting in a FONSI was neither arbitrary nor capricious, and that an EIS was not required for the Paine Field expansion.



Footnotes    (↵ returns to text)

  1. Plaintiffs included the City of Mukilteo, Washington; the City of Edmonds, Washington; Save our Communities; Michael Moore; and Victor M. Coupez.
  2. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  3. See Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
  4. See 40 C.F.R. § 1508.9 (2016); see also id. § 1508.8(b).
  5. 5 U.S.C. § 706(2)(A).
  6. 40 C.F.R. § 1508.25.
  7. Federal Aviation Act of 1958, §§ 102–103, 72 Stat. 731, 740 (codified as amended at 49 U.S.C. § 40101(14) (2012)).
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