City of Los Angeles v. Faa ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES, California, No. 21-71170
Petitioner,
v.
OPINION
FEDERAL AVIATION
ADMINISTRATION; STEPHEN M.
DICKSON, in his official capacity as
Administrator; U.S. DEPARTMENT
OF TRANSPORTATION; PETE
BUTTIGIEG, in his official capacity
as Secretary,
Respondents,
BURBANK-GLENDALE-
PASADENA AIRPORT
AUTHORITY,
Respondent-
Real Party in Interest.
On Petition for Review of an Order of the
Federal Aviation Administration
Argued and Submitted October 18, 2022
Pasadena, California
Filed March 29, 2023
2 CITY OF LOS ANGELES V. FAA
Before: Stephen A. Higginson, * Morgan Christen, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Higginson;
Dissent by Judge Bumatay
SUMMARY **
Federal Aviation Administration
The panel granted in part the City of Los Angeles’s
petition for review challenging the Federal Aviation
Administration (“FAA”)’s issuance of a Final
Environmental Impact Statement (EIS) and Record of
Decision (ROD) that let the Burbank-Glendale-Pasadena
Airport Authority start constructing a replacement terminal
at the Bob Hope “Hollywood Burbank” Airport (the
“Project”).
The Airport Authority, which owns and operates the
Airport, reached an agreement with the City of Burbank to
build a new terminal. In 2016, Burbank voters approved that
agreement as required by local law (“Measure B”). Before
the FAA could sign off on the Project, the National
Environmental Policy Act (“NEPA”) required the agency to
prepare an EIS. In 2021, the FAA issued the Final EIS and
ROD.
*
The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CITY OF LOS ANGELES V. FAA 3
Los Angeles first challenged FAA’s compliance with
NEPA’s requirement that an EIS include a “detailed
statement” of “alternatives to the proposed action.” 42
U.S.C. § 4332(2)(C)(iii). The panel denied the petition on
this ground because the FAA considered a reasonable range
of alternatives in the Final EIS. Here, the FAA drafted an
adequate purpose and need statement and then narrowed the
range of alternatives for detailed study based on rational
considerations. Los Angeles failed to identify any
reasonable alternative that FAA should have studied given
the FAA’s analysis of the relevant technical and economic
constraints. The panel held that contrary to Los Angeles’s
argument—that the FAA improperly eliminated certain
alternatives because they were not approved pursuant to
Measure B—the FAA properly eliminated the new airport,
remote landside facility, and southeast terminal alternatives
based on rational considerations that were independent of
Measure B. In addition, the panel held that even if the
Measure B criteria foreclosed consideration of alternatives
other than the Project, that would not be enough to establish
an irreversible commitment to the Project. Here, the FAA
could have picked the no action alternative after reviewing
the Project’s environmental impacts. Accordingly, the
FAA’s inclusion of the Measure B criteria did not
predetermine the outcome of the FAA’s NEPA review.
Next, Los Angeles challenged the FAA’s analysis of
construction-related impacts. The panel held that the FAA
did not take a hard look at noise impacts from the Project
because its analysis rested on an unsupported and irrational
assumption that construction equipment would not be
operated simultaneously. Because the FAA failed to take a
hard look at construction noise impacts and based its
cumulative impacts analysis on its inadequately considered
4 CITY OF LOS ANGELES V. FAA
conclusions about construction noise, the panel granted the
petition on these limited grounds.
The panel considered the rest of Los Angeles’s
objections to the FAA’s impact analysis and found them
meritless. On remand, the panel directed the FAA to address
the deficiency in its construction noise analysis, the resulting
deficiency in its cumulative impacts analysis, and the
resulting deficiency in its environmental impacts analysis.
Dissenting, Judge Bumatay wrote that the majority
ignored the FAA’s reasonable assumptions about noise
effects and should have deferred to the FAA’s reasonable
analysis. He would hold that the FAA’s construction noise
analysis was not arbitrary or capricious, and deny the City’s
petition challenging the FAA’s construction noise
analysis. Judge Bumatay agreed with those parts of the
majority’s opinion that rejected the bulk of the City’s
petition.
COUNSEL
Andrea K. Leisy (argued), Laura M. Harris, and Casey A.
Shorrock, Remy Moose Manley LLP, Sacramento,
California; David J. Michaelson, Attorney; Robert M.
Mahlowitz, Deputy City Attorney, Michael N. Feuer, City
Attorney; Office of the City Attorney, Los Angeles,
California; for Petitioner.
Justin D. Heminger (argued), Senior Litigation Counsel;
Anna T. Katselas, Attorney; Todd Kim, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.;
Joseph Manalili and Catherine M. Basic, Attorneys; Office
CITY OF LOS ANGELES V. FAA 5
of the Chief Counsel, Federal Aviation Administration,
Washington, D.C.; for Respondent.
Thomas A. Ryan (argued), McDermott Will & Emery LLP,
Los Angeles, California; Jessica J. Thomas, McDermott
Will & Emery LLP, San Francisco, California; Terence R.
Boga, Ginetta L. Giovinco, and Chelsea O’Sullivan,
Richards Watson & Gershon APC, Los Angeles, California;
for Intervenor.
OPINION
HIGGINSON, Circuit Judge:
The passenger terminal at the Bob Hope “Hollywood
Burbank” Airport is more than fifty years old and violates
safety standards set by the Federal Aviation Administration
(FAA). So the Burbank-Glendale-Pasadena Airport
Authority, which owns and operates the Airport, reached an
agreement with the City of Burbank to build a new terminal.
In 2016, Burbank voters approved that agreement as
required by local law. But before FAA could sign off on the
project, the National Environmental Policy Act (NEPA), 42
U.S.C. §§ 4321 et seq., required the agency to prepare an
Environmental Impact Statement (EIS). In May 2021, the
FAA issued a Final EIS (FEIS) and Record of Decision
(ROD) that let the Authority start constructing the
replacement terminal, and shortly after, the City of Los
Angeles petitioned for review. Because FAA failed to
comply with NEPA, we GRANT the petition in part and
REMAND for FAA to redo the deficient parts of its analysis
as specified in this opinion.
6 CITY OF LOS ANGELES V. FAA
I.
A.
The Hollywood Burbank Airport spans 555 acres about
twelve miles northwest of downtown Los Angeles.
Approximately 455 of those acres are within Burbank, and
the remaining 100 acres fall within Los Angeles.
The Airport opened in 1930 and was purchased by the
Lockheed Aircraft Company a decade later. During World
War II, the Airport was one of the largest commercial
airports in the region. In 1978, Lockheed sold the airport to
the Burbank-Glendale-Pasadena Airport Authority. The
Authority was created by a Joint Powers Agreement between
Burbank, Glendale, and Pasadena. Los Angeles is not
represented by the Authority. Since 1978, the Authority has
owned and operated the Airport.
Two intersecting runways divide the Airport into
quadrants. The Airport’s 14-gate passenger terminal is in
the southeast quadrant. The southwest and northwest
quadrants contain aircraft hangars, parking areas, and other
facilities for airport operations. Only the northeast quadrant
is undeveloped.
The existing terminal building occupies the site of the
original 1930 terminal. After a fire in 1966, Lockheed
rebuilt the terminal in the same spot. However, by 1980, the
reconstructed terminal no longer complied with FAA
standards. 1 In January of that year, FAA and the Authority
1
Although FAA has determined that the existing terminal is safe to use,
the building is located within certain object-free areas that are designated
as such to reduce the risk of collisions between aircraft and vehicles,
CITY OF LOS ANGELES V. FAA 7
began discussing how to replace the terminal building. It
took FAA and the Authority more than three decades to find
a solution.
Between 1981 and 1995, FAA and the Authority
proposed three terminal concepts, none of which got off the
ground. The first proposal failed when the Authority could
not acquire the necessary land from Lockheed, and the
second was abandoned when Lockheed announced that it
planned to leave Burbank. In 1995, FAA issued an FEIS for
a third proposal. Los Angeles and Burbank challenged that
FEIS in this court and lost. See City of Los Angeles v. FAA,
138 F.3d 806 (9th Cir. 1998). But in 1999, a state court
decision required the Authority to get approval for the
project from Burbank. City of Burbank v. Burbank-
Glendale-Pasadena Airport Auth., 85 Cal. Rptr. 2d 28 (Cal.
Ct. App. 1999). Instead of approving the project, Burbank
residents adopted a ballot measure, “Measure B,” that
required voter approval before the City of Burbank agreed to
any relocation or expansion of the terminal. As a result of
these decisions, any relocation or expansion of the terminal
requires Burbank voter approval.
In 2015, Burbank and the Authority agreed to a term
sheet for a replacement terminal that would let the Authority
build a new 14-gate terminal between 232,000 and 355,000
square feet in size. The term sheet also specified that the
project would be subject to review under the California
Environmental Quality Act (CEQA). Burbank and the
Authority subsequently entered into a development
agreement that included 241 conditions of approval for the
objects, and buildings. In addition, the terminal violates current FAA
standards that protect navigable airspace around the runways.
8 CITY OF LOS ANGELES V. FAA
project. The Authority finished its CEQA analysis in July
2016.
Pursuant to Measure B, Burbank residents voted on and
approved the project in the November 2016 election. The
text of the 2016 ballot measure asked voters whether an
ordinance should “be approved allowing no more than a 14-
gate, 355,000 square foot replacement terminal and ancillary
improvements to be built at the Bob Hope Airport . . . in
exchange for governance changes that provide Burbank a
greater voice in the future of the airport.”
Following passage of the ballot measure, the Authority
submitted an Airport Layout Plan (ALP) for the proposed
project to FAA. Because FAA approval of an ALP requires
compliance with NEPA, FAA began to prepare an EIS in
2018.
B.
NEPA requires federal agencies to prepare an EIS for
“major [f]ederal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(C). An EIS
must consider direct, indirect, and cumulative impacts from
the proposed action. 40 C.F.R. § 1508.25(c). 2 The agency
must also analyze a range of reasonable alternatives to the
proposed action, including the alternative of taking no
2
The Council on Environmental Quality (CEQ) promulgates regulations
implementing NEPA. 42 U.S.C. § 4342. In 2020, CEQ made substantial
amendments to those regulations. See 85 Fed. Reg. 43,304 (July 16,
2020). But at the time that FAA started preparing the EIS for the Project,
the updated regulations had not yet gone into effect, and so FAA
followed the pre-2020 regulations. Because the parties do not dispute
that the pre-2020 regulations govern the EIS, this opinion cites to and
applies the pre-2020 regulations.
CITY OF LOS ANGELES V. FAA 9
action. See id. § 1502.14. These requirements are
procedural, not substantive. In other words, “NEPA itself
does not mandate particular results, but simply prescribes the
necessary process,” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989) (citations omitted), for an
agency to “take[] a ‘hard look’ at [the] environmental
consequences” of a proposed action, Kleppe v. Sierra Club,
427 U.S. 390, 410 n.21 (1976) (citation omitted).
On December 18, 2018, FAA announced its intent to
prepare an EIS for the Replacement Passenger Terminal
Building Project (the “Project”). In early 2019, FAA held
two scoping meetings to identify potentially significant
environmental impacts from the project. FAA released a
Draft EIS (DEIS) on August 21, 2020. A forty-five-day
comment period started running on that day. Following
multiple requests for extensions, FAA added twenty-two
days to the comment period. FAA received hundreds of
comments by the deadline.
On May 21, 2021, FAA issued a combined FEIS and
ROD for the Project. FAA also responded to the comments
on the DEIS, including those submitted by Los Angeles.
C.
On July 12, 2021, Los Angeles filed a petition for review
of the ROD in this court pursuant to the FAA Authorization
Act of 1994, 49 U.S.C. § 46110.3 In relevant part, that
statute provides for exclusive jurisdiction over petitions for
review of certain FAA orders in the Court of Appeals for the
District of Columbia Circuit or in the court of appeals for the
3
Los Angeles initially named the Authority as a respondent along with
FAA. On the joint motion of the parties, the court redesignated the
Authority as an intervenor.
10 CITY OF LOS ANGELES V. FAA
circuit in which the petitioner resides or has its principal
place of business. 49 U.S.C. § 46110(a), (c). The parties
agree that the ROD is an FAA order reviewable under
Section 46110 and that this court has jurisdiction over the
petition. See Ctr. for Cmty. Action & Env’t Just. v. FAA, 18
F.4th 592, 598 (2021).
II.
The Administrative Procedure Act (APA), 5 U.S.C. §
706(2)(A), controls judicial review of an agency’s
compliance with NEPA. Bark v. U.S. Forest Serv., 958 F.3d
865, 869 (9th Cir. 2020). Under the APA, we may overturn
agency action when it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). As the party challenging the agency’s
action, Los Angeles has the burden of persuasion. Ctr. for
Cmty. Action, 18 F.4th at 599.
Agency action is arbitrary and capricious if the agency
“relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” WildEarth
Guardians v. EPA., 759 F.3d 1064, 1069-70 (9th Cir. 2014)
(citation omitted). In reviewing agency action under the
arbitrary and capricious standard, we may not substitute our
judgment for the agency’s. Lands Council v. McNair, 537
F.3d 981, 987 (9th Cir. 2008) (en banc), overruled in part on
other grounds by Winter v. Nat. Res. Def. Council, 555 U.S.
7 (2008). An agency decision will be upheld if there is a
rational connection between the facts that the agency found
and its conclusions. Barnes v. U.S. Dep’t of Transp., 655
CITY OF LOS ANGELES V. FAA 11
F.3d 1124, 1132 (9th Cir. 2011). But “[p]ost hoc
explanations of agency action by appellate counsel cannot
substitute for the agency’s own articulation of the basis for
its decision.” Arrington v. Daniels, 516 F.3d 1106, 1113
(9th Cir. 2008).
We use the “rule of reason” standard to decide whether
the agency’s discussion of environmental impacts is
sufficiently thorough. Audubon Soc’y of Portland v.
Haaland, 40 F.4th 967, 980 (9th Cir. 2022). The rule of
reason “is essentially the same as an abuse of discretion
analysis.” Id. (cleaned up). In other words, under the rule
of reason, an agency acts arbitrarily and capriciously “only
when the record plainly demonstrates that the agency made
a clear error in judgment in concluding that a project meets
the requirements of NEPA.” Id. (cleaned up).
III.
Los Angeles first challenges FAA’s compliance with
NEPA’s requirement that an EIS include a “detailed
statement” of “alternatives to the proposed action.” 4 42
4
FAA challenges Los Angeles’s standing to bring this suit, arguing that
Los Angeles neither identifies any injury it would suffer from the Project
nor offers any supporting evidence. But Los Angeles has pointed to
sufficient evidence in the administrative record that the noise impacts
from the Project could affect its neighborhoods and that the Project could
increase the use of its roads and streets. See City of Sausalito v. O’Neill,
386 F.3d 1186, 1197 (9th Cir. 2004) (holding that a municipality must
allege injuries to “its own ‘proprietary interests,’” including the
“municipality’s responsibilities, powers, and assets”); Cal. ex rel.
Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior,
767 F.3d 781, 790-91 (9th Cir. 2014) (allegations that federal action
would undermine land management sufficient to establish standing);
City of Las Vegas v. FAA, 570 F.3d 1109, 1114 (9th Cir. 2009) (similar).
These threats to Los Angeles’s interests make this a “real controversy
12 CITY OF LOS ANGELES V. FAA
U.S.C. § 4332(2)(C)(iii); see id. § 4332(2)(E); 40 C.F.R. §
1502.14. Since FAA considered a reasonable range of
alternatives in the FEIS, the petition is denied on this ground.
A.
An EIS must “describe and analyze every reasonable
alternative within the range dictated by the nature and scope
of the proposal.” Audubon Soc’y of Portland, 40 F.4th at
981 (citation omitted). Consideration of alternatives “is the
heart of the [EIS]” and agencies should “[r]igorously explore
and objectively evaluate all reasonable alternatives.” 40
C.F.R. § 1502.14. But NEPA does not force agencies to
“review remote and speculative alternatives,” Protect Our
Cmtys. Found. v. Jewell, 825 F.3d 571, 580 (9th Cir. 2016)
(internal quotation marks omitted), “only reasonable or
feasible ones,” City of Sausalito, 386 F.3d at 1207 (citation
omitted). “[T]he EIS need only ‘briefly discuss’ the reasons
for eliminating an alternative not selected for detailed
examination.” Protect Our Cmtys. Found., 825 F.3d at 580(quoting 40 C.F.R. § 1502.14(a)). “The rule of reason guides
both the [agency’s] choice of alternatives as well as the
extent to which the EIS needs to discuss each alternative.”
Audubon Soc’y of Portland, 40 F.4th at 980 (cleaned up).
Because “[t]he range of alternatives that an agency must
consider . . . is based on the purpose and need of the proposed
agency action[,] . . . we begin by determining whether or not
the purpose and need statement was reasonable.” Id. at 981
(cleaned up). Then, we determine whether the agency
with real impact.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021) (citation omitted). The Constitution does not require more.
CITY OF LOS ANGELES V. FAA 13
considered a reasonable range of alternatives based on its
purpose and need. Id. at 982.
Here, FAA drafted an adequate purpose and need
statement and then narrowed the range of alternatives for
detailed study based on rational considerations. Indeed, Los
Angeles failed to identify any reasonable alternative that
FAA should have studied given FAA’s analysis of the
relevant technical and economic constraints.
B.
NEPA requires that an agency’s purpose and need
statement “briefly specify the underlying purpose and need
to which the agency is responding in proposing the
alternatives including the proposed action.” 40 C.F.R. §
1502.13. Agencies have discretion in drafting the purpose
and need statement, Env’t Def. Ctr. v. Bureau of Ocean
Energy Mgmt., 36 F.4th 850, 876 (9th Cir. 2022), but the
statement must not “unreasonably narrow[] the agency’s
consideration of alternatives so that the outcome is
preordained,” Alaska Survival v. Surface Transp. Bd., 705
F.3d 1073, 1084 (9th Cir. 2013); see Nat’l Parks &
Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d
1058, 1070 (9th Cir. 2010) (similar).
In the FEIS, FAA stated that its purpose and need were
“to provide a passenger terminal building that meets current
FAA Airport Design Standards, passenger demand, and
building requirements as well as improve utilization and
operational efficiency of the passenger terminal building,”
and “to ensure that the Airport operates in a safe manner” as
required by the Airport and Airway Improvement Act of
1982 (AAIA), 49 U.S.C. § 47101(a)(1). FAA also noted its
obligation to decide whether to approve the Authority’s ALP
pursuant to AAIA, 49 U.S.C. § 47107(a)(16). FAA
14 CITY OF LOS ANGELES V. FAA
explained that its purpose and need addressed the
Authority’s goals of building an energy-efficient terminal in
compliance with the Americans with Disabilities Act and
state building codes, consolidating air facilities, and
maintaining connections to rail and bus lines.
This purpose and need statement was sufficiently broad
in light of the relevant statutory context. It is appropriate for
an agency to draft a purpose and need statement with
reference to the agency’s statutory mandates. See League of
Wilderness Defs.-Blue Mountains Biodiversity Project v.
U.S. Forest Serv., 689 F.3d 1060, 1070 (9th Cir. 2012);
Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d
853, 866 (9th Cir. 2004). FAA did just that. AAIA directs
FAA to promote airport safety and efficiency, see 49 U.S.C.
§ 47101(a), (b), and the purpose and need statement
incorporated those goals. Thus, FAA acted reasonably in
limiting its inquiry to alternatives consistent with AAIA
policies. Cf. HonoluluTraffic.com v. Fed. Transit Admin.,
742 F.3d 1222, 1230-31 (9th Cir. 2014) (finding purpose and
need reasonable where stated objectives were consistent
with authorizing statute).
Nor did FAA err in accounting for the Authority’s goals.
A private entity’s goals may be relevant to an agency’s
purpose and need when the agency is deciding whether to
approve a private project. See Alaska Survival, 705 F.3d at
1085; Nat’l Parks & Conservation Ass’n, 606 F.3d at 1071(describing inquiry as whether the agency’s purpose and
need statement “properly states the [agency’s] purpose and
need, against the background of a private need, in a manner
broad enough to allow consideration of a reasonable range
of alternatives”). And here, inclusion of the Authority’s
objectives in the purpose and need statement did not
unreasonably exclude alternatives that failed to meet those
CITY OF LOS ANGELES V. FAA 15
objectives. See Nat’l Parks & Conservation Ass’n, 606 F.3d
at 1072. Application of the purpose and need statement to
the nine potential action alternatives at Step 1 of the
screening process eliminated five options. In ruling out
those options, FAA referenced components of the purpose
and need statement drawn from FAA’s statutory mandates.
Accordingly, FAA probably would have eliminated those
alternatives notwithstanding the Authority’s goals.
FAA defined its purpose and need in the context of the
applicable statutory framework and incorporated private
goals without unreasonably eliminating alternatives from
consideration. Therefore, its purpose and need statement
was not too narrow to survive NEPA review.
C.
Next, we consider whether FAA considered a reasonable
range of alternatives given the purpose and need statement.
Audubon Soc’y of Portland, 40 F.4th at 982. As we
explained, an EIS must “objectively evaluate all reasonable
alternatives.” 40 C.F.R. § 1502.14(a). We defer to an
agency’s technical expertise. Alaska Survival, 705 F.3d at
1087. However, “[t]he existence of a viable but unexamined
alternative renders the environmental review conducted
under NEPA inadequate.” Env’t Def. Ctr., 36 F.4th at 877
(internal quotation marks omitted).
1.
Here, to identify reasonable alternatives for detailed
study, FAA made a list of ten potential alternatives. Those
alternatives included construction of a new airport on a
16 CITY OF LOS ANGELES V. FAA
different site, construction of a remote landside facility, 5
transfer of aviation activity to other airports, use of other
modes of transportation like buses and rail, reconfiguration
of runways, replacement of the terminal in each of the four
Airport quadrants, and no action. Then, FAA used a two-
step screening process to decide which of those alternatives
to study in detail. At Step 1, FAA considered whether an
alternative could achieve the purpose and need of the
proposed action by meeting “current FAA Airport Design
Standards, passenger demand, and state building
requirements, as well as improving utilization and
operational efficiency of the passenger terminal building.”
Alternatives that could not satisfy those objections were
eliminated. At Step 2, FAA ruled out alternatives that
“would not be practical or feasible to implement from a
technical or economic standpoint.” As FAA described in the
FEIS, the criteria at Step 2 included “whether the alternative
is consistent with the development agreement entered into
by the City of Burbank and the Authority and ratification of
Measure B by Burbank voters.”
At Step 1, FAA rejected transfer of aviation activity, use
of other modes of transportation, airfield reconfiguration,
and construction of a terminal in the southwest and
northwest quadrants. Specifically, FAA found that FAA and
the Authority could not require airlines to operate out of
different airports and transferring those operations would not
bring the existing terminal into compliance with FAA
standards. FAA reached similar conclusions about the
modes of transportation alternative. As to airfield
5
This alternative would involve construction of a remote terminal
(“remote landside facility”) and construction of a separate facility
located more proximate to the runways.
CITY OF LOS ANGELES V. FAA 17
reconfiguration, FAA pointed to state law restrictions on
changing the Airport’s runways and noted that airfield
reconfiguration would not bring the existing terminal into
compliance with California’s building standards or improve
its efficiency. Finally, construction in the southwest and
northwest quadrants would not meet FAA standards because
it would increase the number of aircrafts required to taxi
across active runways.
At Step 2, FAA eliminated all remaining alternatives
except a northeast quadrant terminal, as proposed by the
Authority, and the no action alternative. FAA screened out
construction of a new airport at a different location because
neither the Joint Powers Agreement nor Measure B
authorized a new airport. Likewise, FAA eliminated the
remote landside facility alternative because of a lack of
authorization from Measure B. FAA also noted that the
Authority would need to acquire property for the remote site
and passengers would experience increased travel times.
FAA ruled out a southeast quadrant terminal because of
space limitations and the need to continue using the existing
terminal during construction.
In sum, out of the four action alternatives that met the
Project’s purpose and need, FAA eliminated from detailed
study three alternatives that “would not be practical or
feasible to implement from a technical or economic
standpoint” or that were inconsistent “with the development
agreement . . . and . . . Measure B.” FAA eliminated
construction of a new airport or a remote landside facility
and listed Measure B as one reason for their elimination.
FAA eliminated the southeast terminal alternative without
reference to Measure B.
18 CITY OF LOS ANGELES V. FAA
2.
Los Angeles argues that FAA improperly eliminated the
new airport, remote landside facility, and southeast terminal
alternatives on the basis that those alternatives were not
approved pursuant to Measure B.
But contrary to the premise of Los Angeles’s argument,
FAA eliminated the new airport, remote landside facility,
and southeast terminal alternatives based on rational
considerations that were independent from Measure B.
First, FAA concluded that the new airport alternative
was not feasible “because the Joint Powers Agreement that
forms [the Authority] does not provide the authority . . . to
construct a replacement airport and close the existing
airport.” Although FAA also stated that the Measure B vote
did not authorize a new airport, the fact that the extant
Airport operator could not shut down the Airport and build
a new one was an independent reason for FAA to conclude
that new airport construction is too “remote and speculative”
to study in detail. Protect Our Cmtys. Found., 825 F.3d at
580. Indeed, Los Angeles does not argue that the Joint
Powers Agreement was an insufficient ground for FAA to
eliminate the new airport construction alternative.
Second, FAA listed three reasons to eliminate a remote
landside facility alternative aside from Measure B: (i) no
space existed near the Airport for such a facility; (ii) “[s]ite
selection would be limited by . . . the Authority’s inability to
condemn or purchase property if the owners were unwilling
to sell”; and (iii) travel time for passengers would increase.
Los Angeles does not argue that those rationales were
insufficient grounds to reject the remote landside facility
alternative. At most, Los Angeles contends that FAA only
said that implementation of a remote landside facility would
CITY OF LOS ANGELES V. FAA 19
be “difficult” on account of those factors, not infeasible. Los
Angeles cites no authority that FAA had to use the word
“infeasible” to eliminate an alternative from consideration.
Cf. Env’t Def. Ctr., 36 F.4th at 877 (“Agencies do not have
to consider . . . impractical alternatives.”). And all that
NEPA requires is a brief discussion of the reasons for
eliminating the remote landside facility alternative. Protect
Our Cmtys. Found., 825 F.3d at 581 (quoting 40 C.F.R. §
1502.14(a)). FAA’s analysis of the space, property
acquisition, and travel time factors met that standard.
Finally, FAA did not rely on Measure B in eliminating
the southeast terminal alternative, and Los Angeles does not
argue that FAA’s stated reasons to eliminate that alternative
were unreasonable. Los Angeles is therefore incorrect that
FAA rejected a southeast terminal because of Measure B.
It is simply not the case, as Los Angeles argues, that
FAA used Measure B to “guarantee[] no alternative could
survive the EIS’s screening process,” or that FAA’s
reference to Measure B “ensured that all reasonable
alternatives . . . are rejected.” There was no alternative that
FAA found “feasible to implement from a technical and
economic standpoint” that FAA then rejected as inconsistent
with Measure B. Rather, FAA cited technical or economic
reasons to cull the alternatives from the field. Los Angeles
does not explain why FAA acted arbitrarily and capriciously
in doing so.
Moreover, Los Angeles has not met its burden, as a party
challenging an agency’s failure to consider an alternative,
“to show that the alternative is viable.” Alaska Survival, 705
F.3d at 1087; Audubon Soc’y of Portland, 40 F.4th at 983
(same).
20 CITY OF LOS ANGELES V. FAA
In in its opening brief, Los Angeles argues that the new
airport and remote landside facility alternatives would meet
FAA’s purpose and need—a conclusion that FAA reached
as well—but does not explain how those alternatives were
practical or feasible given FAA’s analysis. And in its reply,
Los Angeles speculates that “[i]f Measure B . . . had not been
part of the [calculus], [the remote landside facility
alternative] might have been carried forward for detailed
evaluation.” But Los Angeles does not respond to FAA’s
analysis of available land for development, property
acquisition issues, and travel time.
Los Angeles also argues that the “airfield
reconfiguration alternative” outlined in its comment letter
was a reasonable alternative. Los Angeles forfeited that
argument by raising it for the first time in its reply brief. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996); Barnes v. FAA, 865 F.3d 1266, 1271 n.3 (9th Cir.
2017); Kaffaga v. Estate of Steinbeck, 938 F.3d 1006, 1018
n.8 (9th Cir. 2019); Burlington N. & Santa Fe Ry. Co. v.
Vaughn, 509 F.3d 1085, 1093 n.3 (9th Cir. 2007). In any
event, Los Angeles’s comment merely told FAA that it
“should fully consider an airfield reconfiguration alternative
that would also include upgrades to the existing terminal”
without explaining why such an alternative would be
practical or feasible. FAA did consider, and reject, an
airfield reconfiguration alternative in the FEIS because state
law restricted relocation or lengthening of the Airport’s
runways. NEPA did not require FAA to consider further
permutations of that alternative. See Westlands Water Dist.,
376 F.3d at 871-72; Headwaters, Inc. v. Bureau of Land
Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990) (“NEPA does
not require a separate analysis of alternatives which are not
significantly distinguishable from alternatives actually
CITY OF LOS ANGELES V. FAA 21
considered, or which have substantially similar
consequences.”).
In addition, Los Angeles argues that a “same size
replacement terminal” alternative raised in the DEIS
comments was viable. Like the airport reconfiguration
alternative, this argument was newly raised in the reply brief
and forfeited. Regardless, Los Angeles does not explain
why a same size replacement terminal is practical or feasible
or distinguish that alternative from those FAA did consider.
See Westlands Water Dist., 376 F.3d at 871-72; Headwaters,
914 F.2d at 1181.
Accordingly, Los Angeles “has not provided a sufficient
basis for questioning [FAA’s] determination not to further
consider” the new airport, remote landside facility, same size
replacement terminal, and airfield reconfiguration options.
Audubon Soc’y of Portland, 40 F.4th at 983.
Further, Los Angeles objects that FAA considered only
the Project and the no action alternative. But “there is no
minimum number of alternatives that must be discussed” in
an EIS. Imperial Cnty., 767 F.3d at 797 (quoting Laguna
Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 524
(9th Cir. 1994). We have approved of an agency’s decision
to compare the proposed action to only a no action
alternative where the circumstances justified that choice.
Imperial Cnty., 767 F.3d at 797-98; Te-Moak Tribe of W.
Shoshone of Nev., 608 F.3d 592, 602 n.11 (9th Cir. 2010).
Other circuits have done the same. See Webster v. U.S. Dep’t
of Agric., 685 F.3d 411, 427 (4th Cir. 2012); Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190, 197 (D.C. Cir.
1991); Tongass Conservation Soc’y v. Cheney, 924 F.2d
1137, 1141-42 (D.C. Cir. 1991); cf. Save Our Cumberland
Mountains v. Kempthorne, 453 F.3d 334, 345 (6th Cir. 2006)
22 CITY OF LOS ANGELES V. FAA
(rejecting agency’s decision to only consider approval or
disapproval of permit where agency claimed it had no
authority to consider other alternatives). Given FAA’s
unchallenged technical and economic analysis that led to
elimination of all alternatives except the proposed action and
no action—as well as Los Angeles’s failure to identify a
viable alternative that FAA did not consider—the
circumstances here justify FAA’s conclusions. 6
3.
Finally, Los Angeles argues that because FAA’s
screening process rejected alternatives that failed to meet the
Project’s purpose and need and were inconsistent with
Measure B, FAA predetermined the outcome of its NEPA
review.
6
In addition, Los Angeles argues that FAA did not adequately consider
the no action alternative. The FEIS studied the impacts of the no action
alternative in detail because the regulations require it to do so. FAA
asserted that the no action alternative would not meet the Project’s
purpose and need because it would not remedy the facility’s
nonconforming status. And in a table summarizing its analysis, FAA
wrote “no” in a column that asked whether the alternative was practical,
feasible, and consistent with Measure B. Los Angeles concludes that
FAA “never considered the No Action Alternative a viable option.” But
Los Angeles does not show that FAA predetermined its choice of the
proposed action as the preferred alternative. Even assuming that FAA
considered the no action alternative to be not practical or feasible, it does
not follow that FAA would have granted the ALP application had the
environmental impacts of the proposed action been significant as
compared to the status quo. Indeed, the no action alternative serves as
the benchmark against which an agency can compare the impacts of the
action alternatives. See Kilroy v. Ruckelshaus, 738 F.2d 1448, 1453 (9th
Cir. 1984). FAA made that comparison in selecting the proposed action
as the preferred alternative, and Los Angeles does not suggest otherwise.
CITY OF LOS ANGELES V. FAA 23
NEPA requires that an agency prepare the EIS
“objectively” and “not as a subterfuge designed to
rationalize a decision already made.” Metcalf v. Daley, 214
F.3d 1135, 1142 (9th Cir. 2000). An agency predetermines
the outcome of its analysis in violation of NEPA when it
makes “an irreversible and irretrievable commitment of
resources” before finishing its review. Id. at 1143. The
standard for predetermination is high and not met by mere
partiality on the part of the agency. See id. at 1142 (“NEPA
does not require that agency officials be subjectively
impartial.” (cleaned up)); see Forest Guardians v. U.S. Fish
& Wildlife Serv., 611 F.3d 692, 714 (10th Cir. 2010); Env’t
Def. Fund v. Corps of Eng’rs of the U.S. Army, 470 F.2d 289,
295 (8th Cir. 1972). Indeed, an agency “can formulate a
proposal or even identify a preferred course of action before
completing an EIS.” Ass’n of Pub. Agency Customers, Inc.
v. Bonneville Power Admin., 126 F.3d 1158, 1185 (9th Cir.
1997). And an agency can make statements favoring the
proposed action, City of Mukilteo v. U.S. Dep’t of Transp.,
815 F.3d 632, 638 (9th Cir. 2016), so long as the agency does
not select its preferred alternative until the end of its review,
Pac. Coast Fed. Of Fishermen’s Ass’ns v. Blank, 693 F.3d
1084, 1101 (9th Cir. 2012).
Los Angeles has not met its burden to show that FAA
predetermined its analysis prior to finishing the EIS.
Metcalf, 214 F.3d at 1143. Los Angeles argues that FAA
made “an irreversible and irretrievable commitment to the
Project” by including Measure B in the screening criteria.
But as we explained, FAA found that all action alternatives
other than the Project were not feasible irrespective of
Measure B, and Los Angeles has not identified any
reasonable alternative that FAA did not consider. And the
text of Measure B seems broad enough to admit alternatives
24 CITY OF LOS ANGELES V. FAA
other than the Project, as evidenced by the fact that FAA did
not reference Measure B in eliminating a southeast terminal
alternative.
Even if it were true that the Measure B criteria foreclosed
consideration of alternatives other than the Project, that
would not be enough to establish an irreversible commitment
to the Project. An irreversible commitment means that “the
die already had been cast” in favor of the Project over other
alternatives, see Metcalf, 214 F.3d at 1144, including the no
action alternative. For example, in Metcalf v. Daley, the
agency signed a contract committing it to support a proposed
action before it had finished its review. Id. at 1143-44. Had
the agency made “its promise . . . conditional upon a NEPA
determination that the . . . proposal would not significantly
affect the environment,” id. at 1144, the outcome might have
been different since the agency still could have selected the
no action alternative. Here, FAA could have picked the no
action alternative after reviewing the Project’s
environmental impacts. FAA made no promises to the
Authority, and Los Angeles points to no evidence that FAA
was blocked from denying the ALP. Accordingly, FAA’s
inclusion of the Measure B criteria did not predetermine the
outcome of FAA’s NEPA review.
III.
In its second issue, Los Angeles challenges FAA’s
analysis of construction-related impacts. Because FAA
failed to take a hard look at noise impacts from construction
and based its cumulative impacts analysis on its inadequately
considered conclusions about construction noise, we grant
the petition on those limited grounds, for the reasons stated
CITY OF LOS ANGELES V. FAA 25
in this section. 7 Having considered the rest of Los Angeles’s
objections to FAA’s impact analysis and found them
meritless, we deny the petition on all other grounds.
A.
“NEPA requires that a federal agency consider every
significant aspect of the environmental impact of a proposed
action . . . [and] inform the public that it has indeed
considered environmental concerns in its decisionmaking
process.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d
1291, 1300 (9th Cir. 2003) (internal quotation mark
omitted). To accomplish that objective, NEPA “imposes
procedural requirements designed to force agencies to take a
‘hard look’ at environmental consequences.” Ctr. for Cmty.
Action, 18 F.4th at 598 (citation omitted).
However, in reviewing the FEIS, we do not “fly-speck”
FAA’s analysis and “hold it insufficient on the basis of
inconsequential, technical deficiencies.” Audubon Soc’y of
Portland, 40 F.4th at 984 (citation omitted). We employ the
rule of reason to determine whether the EIS contains “a
reasonably thorough discussion of the significant aspects of
the probable environmental consequences.” Audubon Soc’y
of Portland, 40 F.4th at 984 (citation omitted). Ultimately,
we “must defer to an agency’s decision that is fully informed
7
Los Angeles also claims that FAA failed to take a hard look at the
environmental justice impacts of the project, and the parties agree that
we review FAA’s study of environmental justice impacts under the APA.
Since FAA’s conclusion that “there would be no disproportionate noise
impacts on minority populations” is predicated in part on the agency’s
inadequate study of construction noise impacts, FAA should reconsider
this analysis after correcting the construction noise analysis. We need
not reach Los Angeles’s other arguments regarding FAA’s
environmental justice analysis.
26 CITY OF LOS ANGELES V. FAA
and well-considered.” Id. (cleaned up). But the hard look
standard is not satisfied when an agency relies “on incorrect
assumptions or data in an EIS.” Native Ecosystems Council
v. U.S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005).
B.
Building a terminal complex in the northeast quadrant
and demolishing the southeast terminal is estimated to take
six years. Construction of the new terminal building,
parking structures, fire station, and maintenance and cargo
buildings would happen during the first four years of the
project. In the fifth year, “approximately 82,020 cubic yards
. . . of concrete and asphalt” would be demolished in the
southeast quadrant. During construction and demolition,
workers would use excavators, graders, dozers, loaders,
forklifts, tractors, haul trucks, jackhammers, scrapers,
backhoes, compressors, generators, and pile drivers.
FAA did not take a hard look at noise impacts from the
Project because its analysis rested on an unsupported and
irrational assumption that construction equipment would not
be operated simultaneously. As a result, FAA “failed to
consider an important aspect of the problem,” WildEarth
Guardians, 759 F.3d at 1069-70 (citation omitted): the
combined noise impacts from construction equipment on
nearby neighborhoods. And because FAA’s noise analysis
was deficient, on remand, FAA should reconsider whether
the Project is consistent with Los Angeles’s noise standards.
FAA divided its noise impact analysis into two parts.
First, FAA considered potential noise impacts from Airport
operations. For aircraft noise, the FEIS defined a significant
noise impact as (i) a 1.5 decibel or greater noise increase for
a noise sensitive area within a 65-decibel or greater noise
contour, or (ii) a 1.5 decibel or greater noise increase that
CITY OF LOS ANGELES V. FAA 27
results in a noise sensitive area falling within the 65-decibel
or greater noise contour. Those decibel levels use a
“Community Noise Equivalent Level” (CNEL) standard,
which estimates sound levels over a 24-hour period. FAA
concluded that Airport operations would not cause a
significant noise impact if the proposed action were taken.
Second, FAA analyzed construction noise. The FEIS
noted that FAA has not established a significance threshold
for noise from construction equipment. To estimate noise
from specific equipment at fifty feet, FAA borrowed data
from the Federal Highway Administration (FHWA)
Roadway Construction Noise Model User’s Guide. FAA
reported those noise levels in terms of an “Leq” standard, not
CNEL. 8 The Leq standard “is the time-average of the total
sound energy over a specified period.” Then, FAA
calculated the noise levels from that equipment at 75, 100,
150, 450, 900, and 1,250 feet using “the inverse square law
for sound,” which provides for an “inversely proportional
relationship between source sound pressure and distance
from [the] sound source.” According to FAA’s calculations,
the loudest piece of equipment that FAA studied, a
jackhammer, would produce 88 decibels at 50 feet and 64
decibels at 900 feet. Other land uses and noise sources were
located between the construction and demolition sites and
the closest noise sensitive land uses—residences that were
930 and 1,400 feet away from the sites, respectively. Those
residences were also within the CNEL 70-decibel noise
contour of the I-5 freeway. FAA also pointed out that
construction and demolition noise would be temporary and
8
On appeal, FAA explains that the FHWA’s model relies on the Lmax
metric rather than the Leq metric, but this distinction does not affect our
analysis.
28 CITY OF LOS ANGELES V. FAA
intermittent. Given the distances between the residences and
the Airport and the existing background noise, FAA decided
that construction noise impacts would be minimal.
Los Angeles raises several purported errors in this
analysis. The only one that has merit is Los Angeles’s
contention that FAA failed to account for the simultaneous
operation of construction equipment, failed to consider
whether a significant impact would likely occur because of
the combined effects of sound sources, and failed to perform
the necessary calculations to conclude otherwise.
In its noise analysis, FAA did not adequately “account
for the fact that construction equipment would operate
simultaneously,” as Los Angeles argues, even though FAA
acknowledged that “[i]f two sounds of the same level are
added, the sound level increases by approximately [three]
[decibels].” FAA calculated how loud different types of
equipment would sound at various distances from the site.
Yet FAA did not calculate noise levels from multiple pieces
of equipment running at the same time. Instead, based on a
chart showing noise levels from different categories of
equipment, FAA concluded that “noise from construction
and demolition equipment would attenuate to less than
CNEL 70 [decibels] at the closest noise sensitive land
use[s].” FAA’s chart lists equipment in the singular, for
example, “jackhammer,” and the model from which FAA
copied the data refers to sound from “each piece of
construction equipment.” Thus, FAA’s conclusion rests on
an implicit premise that construction noise would be
generated by one piece of equipment at a time. This
assumption defies common sense.
Nor does FAA support its implied assumption that
construction equipment would run in sequence. FAA
CITY OF LOS ANGELES V. FAA 29
observed that construction “would result in varying levels of
noise generation subject to change based on the construction
intensity and distance to a given receptor,” and explained
that “construction and demolition noise would be temporary
and . . . intermittent depending on the type of construction
equipment needed.” These are not the kinds of expert
scientific or technical judgments to which we defer. Cf. Nat.
Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 803
n.13 (9th Cir. 2005) (deferring to Forest Service’s judgment
on standard for wildlife viability). And even if both of those
vague statements were true, it would still be the case that
noise from construction equipment would overlap. This is
especially true because the schedule shows that the terminal,
parking structures, fire station, and equipment maintenance
and airline cargo buildings will be constructed during the
same five-year period. Indeed, while FAA claims that it did
not have “specific construction details” when it drafted the
FEIS, the record indicates that FAA relied on a “detailed
construction schedule” including “phasing, equipment, [and]
haul routes” for its air quality analysis. Regardless, a lack of
details about the schedule does not give FAA the license to
assume the site would be run in an illogical way.
The reason FAA’s flawed assumption matters is
apparent from the record. In its background information
about noise, FAA explained that “[i]f two sounds of the same
level are added, the sound level increases by approximately
[three] [decibels].” So two 88-decibel jackhammers would
add up to 91 decibels of noise at the site. FAA does not even
try to calculate the combined effects from multiple pieces of
equipment or the attenuation of that noise at the nearest
residence. This is not an “inconsequential[] technical
deficienc[y],” Audubon Soc’y of Portland, 40 F.4th at 984,
but appears to be a fundamental error in the agency’s noise
30 CITY OF LOS ANGELES V. FAA
analysis, see WildEarth Guardians v. Mont. Snowmobile
Ass’n, 790 F.3d 920, 927 (9th Cir. 2015) (“NEPA requires
more” than an agency asking the court “to assume the
adequacy and accuracy of partial data without providing any
basis for doing so.”).
FAA’s hedging about noise from the I-5 corridor doesn’t
change the equation. The FEIS states that the nearest
residences fall within the CNEL 70-decibel noise contour of
the I-5 freeway, and the FEIS concludes that construction
noise would be minimal given that background noise. But
FAA’s comparison of construction noise to the I-5 contour
was based on calculations that failed to aggregate equipment
noise, and it is unclear what FAA would have concluded had
it found equipment noise to attenuate to more than 70
decibels at the nearest residence. Moreover, the FEIS
reports equipment noise and I-5 noise in two different
standards. Equipment noise was calculated in Leq, I-5 noise
in CNEL. FAA never explains how, or whether, those
standards can be mixed and matched to decide that certain
Leq levels are not significant given certain CNEL levels.
Since FAA’s analysis studies only sound produced by
equipment in isolation, the FEIS does not contain a
“reasonably thorough discussion” of construction noise,
Audubon Soc’y of Portland, 40 F.4th at 984 (citation
omitted); see Native Ecosystems Council, 697 F.3d at 1051.
The petition is granted on this basis. 9
9
The dissent argues that in granting the petition, we rely on an argument
that Los Angeles failed to raise before FAA. But FAA was put on notice
about this defect in its analysis. Los Angeles’s comment letter said that
“the DEIS should provide a more thorough assessment of cumulative
construction effects. . . . [C]onstruction activities, which will all occur
on the same site during site operations, will likely lead to combined . . .
CITY OF LOS ANGELES V. FAA 31
Los Angeles also asserts that FAA failed to discuss
inconsistencies between the Project and City noise
standards. Under NEPA, agencies must “discuss[] . . . .
[p]ossible conflicts between the proposed action and the
objectives of . . . local . . . land use plans, policies, and
controls.” 40 C.F.R. § 1502.16(c). “Where an inconsistency
exists,” between “a proposed action” and “local . . . laws,”
the EIS “should describe the extent to which the agency
would reconcile its proposed action with the . . . law.” Id. §
1506.2(d). Still, “NEPA does not require an agency to list
every way in which a project is consistent with . . . a land use
plan.” Crenshaw Subway Coalition v. L.A. Cnty. Metro.
noise . . . effects, yet the DEIS does not address these combined effects.”
Los Angeles also urged FAA to revise the DEIS “to properly explain its
conclusion that noise will be attenuated such that there will not be
adverse noise impacts.” Similarly, another comment letter says that “all
construction equipment identified throughout the Air Quality Appendix
(Appendix E) should be combined and assessed with existing airport
operations.” Even assuming that the comment letters are inadequate, this
flaw in FAA’s analysis was sufficiently obvious that FAA had to address
it. In Department of Transportation v. Public Citizen, the Supreme Court
said that “the agency bears the primary responsibility to ensure that it
complies with NEPA, and an EA’s or an EIS’ flaws might be so obvious
that there is no need for a commentator to point them out specifically in
order to preserve its ability to challenge a proposed action.” 541 U.S.
752, 765 (2004) (citation omitted). We have “interpreted the ‘so
obvious’ standard as requiring that the agency have independent
knowledge of the issues that concern petitioners.” Barnes v. U.S. Dep’t
of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011). Here, as we explained,
the agency’s own reference materials instructed it to add together sounds
from multiple sources. And the CEQA review did analyze simultaneous
noise effects. FAA did not do so in its EIS. Finally, the government
does not argue that Los Angeles failed to preserve this issue, and we
should not take up administrative waiver sua sponte. The government
“waive[d] waiver . . . by failing to assert it.” Norwood v. Vance, 591
F.3d 1062, 1068 (9th Cir. 2010) (cleaned up).
32 CITY OF LOS ANGELES V. FAA
Transp. Auth., No. 11-CV-9603 (FMO), 2015 WL 6150847,
at *20 (C.D. Cal. Sept. 23, 2015). Having concluded that
construction noise would not cause a significant impact,
FAA did not have to say that the proposed action would be
consistent with Los Angeles’s standards. However, since
FAA’s conclusion about noise impacts may be revised on
remand, FAA should take another look at the proposed
action’s consistency with those standards.
Los Angeles’s other challenges to FAA’s noise analysis,
including FAA’s analysis of ambient noise from
construction truck trips and construction-related vibration
impacts are not persuasive, and we decline to grant the
petition on those grounds.
C.
Among NEPA’s requirements, an agency must consider
a project’s “cumulative impacts.” Ctr. for Cmty. Action &
Env’t Justice v. FAA, 18 F.4th 592, 603 (9th Cir. 2021).
Cumulative impacts are “the impact on the environment
which results from the incremental impact of the action
when added to other past, present, or reasonably foreseeable
future actions.” Id. (citation omitted). They “can result from
individually minor but collectively significant actions taking
place over a period of time.” Kern v. U.S. Bureau of Land
Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002) (citation
omitted).
The FEIS assumed that all “[e]nvironmental resource
categories that would not result in potential adverse effects
as a result of the . . . Project cannot result in cumulative
impacts.” FAA listed “Noise and Noise-Compatible Land
Use” as an impact category that would “not result in
potential adverse effects.” But FAA’s determination that the
proposed action would have minimal noise impacts was
CITY OF LOS ANGELES V. FAA 33
based on a flawed study of construction noise. As we
explained, FAA failed to take a hard look at the noise
impacts from construction equipment on nearby residences.
Since FAA did not properly analyze the possible effects of
the proposed action, it was a clear error in judgment to
conclude that the action would not have an “incremental
impact . . . when added to other past, present, or reasonably
foreseeable future actions.” Ctr. for Cmty. Action, 18 F.4th
at 603 (citation omitted).
On remand, the agency must revisit its cumulative
impacts analysis after taking a hard look at noise impacts
from construction equipment. 10
IV.
The petition for review is GRANTED in part and the
case is REMANDED to the agency. On remand, FAA is
directed to address (i) the deficiency in its construction noise
analysis described in this opinion; (ii) the resulting
deficiency in its cumulative impacts analysis; and (iii) the
resulting deficiency in its environmental impacts analysis.
10
FAA argues that it “reasonably declined to conduct an extensive
analysis of cumulative noise impacts, when it found that the Project
would not produce any significant noise impacts.” This reflects a
misunderstanding of the cumulative impact requirement. It is
uncontested that multiple noise sources that individually fall short of a
significance threshold may accumulate to surpass the threshold. FAA
may only decline to consider cumulative noise impacts if it concludes
either that the cumulative noise impact from relevant sources will not be
significant or that the project’s impact is so small that consideration of
its contribution would not provide an “informed analysis.” N. Plains
Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1082 (9th Cir.
2011); Nw. Env’t Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d
1125, 1140 (9th Cir. 2006).
34 CITY OF LOS ANGELES V. FAA
BUMATAY, Circuit Judge, dissenting:
Our court grants the City of Los Angeles’s petition
challenging the Federal Aviation Administration’s final
environmental impact statement on the reconstruction of the
Bob Hope Burbank Airport. The majority remands for the
FAA’s reconsideration of the proposed project’s
construction noise impacts. In doing so, the majority ignores
the FAA’s reasonable assumptions about noise effects.
Because the FAA’s construction noise analysis was not
arbitrary or capricious, I respectfully dissent from granting
the petition.
I.
Our court remands because the majority disagrees with
the FAA’s assessment that the proposed project’s
construction impact on noise quality would be “minimal.”
See Maj. Op. 28–30. The majority says that the FAA erred
in failing to “account for the simultaneous operation of
construction equipment” in its analysis. Id. at 28. But, in
reaching this conclusion, the majority relies on an argument
not raised before the agency and fails to defer to the FAA’s
reasonable assumptions.
An agency must take a “hard look at environmental
consequences.” Bark v. U.S. Forest Serv., 958 F.3d 865, 868
(9th Cir. 2020) (simplified). We are only looking for “a
reasonably thorough discussion of the significant aspects of
the probable environmental consequences.” Audubon Soc’y
of Portland, 40 F.4th at 984 (simplified). So analytical
perfection isn’t necessary. And we “refrain from acting as a
type of omnipotent scientist and must defer to an agency’s
decision that is fully informed and well-considered.” Id.
(simplified).
CITY OF LOS ANGELES V. FAA 35
A.
The record shows that the FAA thoroughly considered
the environmental consequences of the project’s
construction noise. The FAA first identified the nearest
“noise-sensitive land uses” that could be affected by
construction noise—residential neighborhoods about 930
feet away from the airport’s construction zone. And those
neighborhoods are within the “noise contour” of the I-5
freeway—meaning that they are already impacted by
ambient noise reaching 70 decibels. It then factored into its
analysis the noise levels generated by various construction
equipment at different distances:
Putting this all together, the FAA concluded that “the noise
from construction and demolition equipment would
attenuate to less than . . . 70 dB at the closest noise sensitive
land use[s].”
This is consistent with the data. Even the loudest
construction equipment—the jackhammer—would generate
36 CITY OF LOS ANGELES V. FAA
a noise level of less than 64 decibels at 930 feet away. In
other words, the construction equipment would be quieter
than the noise from the freeway. The FAA also noted that
construction noise would be temporary and intermittent.
With all this in mind—distance, existing freeway noise, and
the temporary and intermittent nature of construction—the
FAA ultimately concluded that the construction noise level
impact would be “minimal for the closest noise sensitive
land uses.”
Simply, the FAA “consider[ed] every significant aspect
of the environmental impact of [the project] . . . and
inform[ed] the public that it [had] indeed considered
environmental concerns in its decisionmaking process.”
Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300
(9th Cir. 2003) (simplified). And that’s all the law requires.
B.
To discard the FAA’s analysis, the majority relies on an
argument that appears for the first time in one sentence of
the City’s opening brief—that the FAA did not “account for
the fact that construction equipment would operate
simultaneously.” Maj. Op. 28. If the FAA analyzed the
operation of two jackhammers at the same time, then, the
majority assumes, construction noise would then be
significant. But the majority only gets there by cherry-
picking the data.
The FAA provided several assumptions about sound that
it used to calculate noise impacts:
• If two sounds of the same level are added,
the sound level increases by
approximately 3 dB. For example:
60 dB + 60 dB = 63 dB.
CITY OF LOS ANGELES V. FAA 37
• The sum of two sounds of a different level
is only slightly higher than the louder
level. For example: 60 dB + 70 dB = 70.4
dB.
• Sound from a “point source,” such as an
aircraft, decreases approximately 6 dB
for each doubling of distance.
• Although the human ear can detect a
sound change as faint as 1dB, the typical
person does not perceive changes of less
than approximately 3 dB.
• A 10 dB change in sound level is
perceived by the average person as a
doubling, or halving, of the sound’s
loudness.
The majority homes in on the FAA’s background
assumption that when “two sounds of the same level are
added, the sound level increases by approximately 3 dB.”
Maj. Op. 29. The majority then concludes that this
assumption shows that “two 88-decibel jackhammers would
add up to 91 decibels of noise at the site.” Id. The majority
then speculates that construction would necessarily require
two jackhammers operating at the same time. The majority
thus manufactures a scenario where construction noise could
be “significant” in its view.
There are several problems with this scenario. First, it
ignores the FAA’s conclusion that the closest noise-sensitive
neighborhoods are 930 feet away from where the
jackhammers would be operating. So, even if we were to
add the sounds of two jackhammers running at the same
time, it would only reach 67 decibels (64 + 3 dB) at that
distance. Thus, even under the majority’s scenario, the noise
38 CITY OF LOS ANGELES V. FAA
level would still “attenuate to less than . . . 70 dB”—as the
FAA already concluded. And thus, there’s no reason to
accept that the FAA did not consider multiple construction
equipment operating at the same time.
Second, applying those same assumptions to other
construction equipment would result in even less noise than
two jackhammers running at once. This is because “[t]he
sum of two sounds of a different level is only slightly higher
than the louder level.” As an example, merging two sounds
of 60 decibels and 70 decibels would only result in a 70.4
decibel noise. So running a backhoe (60 dB) and a
jackhammer (64 dB) at the same time would be only slightly
louder than just running the jackhammer alone. And we
shouldn’t speculate on what would happen if three
jackhammers were to operate simultaneously because no
party has explained how three sounds would accumulate.
And really? Does the FAA really need to assume that three
jackhammers would operate at the same time for its analysis
to be “reasonably thorough”? Audubon Soc’y of Portland,
40 F.4th at 984.
Third, the majority disregards that the closest
neighborhoods to the project are next to a major highway.
The highway has a 70-decibel level under the Community
Noise Equivalent Level (“CNEL”), which averages sound
levels during a “24-hour equivalent.” Such a rating suggests
that highway noise is high and sustained throughout the day.
Meanwhile, the FAA reasonably assumed that construction
noise would not run all day, every day. So the FAA assessed
that construction noise would likely be drowned out by the
highway noise and not have any impact at all during non-
work hours.
CITY OF LOS ANGELES V. FAA 39
And fourth, the majority never acknowledges that “the
typical person does not perceive changes of less than
approximately 3 dB.” And thus, even under the majority’s
scenario, any noise change would barely be perceptible to
the typical person.
Rather than picking and choosing the data we want, we
should have deferred to the FAA’s reasonable analysis. I
would have denied the City’s petition challenging the FAA’s
construction noise analysis.
II.
The majority rightly rejects the bulk of the City’s
petition. I agree with those parts of the majority opinion. I
also agree with the majority that the City has standing to
pursue this petition based on the proposed project’s impact
on the City’s roads and tax base. But our court errs by
granting the petition and remanding for reconsideration of
the project’s construction noise impacts, cumulative
impacts, and related assessments. Such a decision was based
on faulty assumptions. I thus respectfully dissent.