Town of Barnstable v. Federal Aviation Administration , 740 F.3d 681 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2013 Decided January 22, 2014
No. 12-1362
TOWN OF BARNSTABLE, MASSACHUSETTS,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
CAPE WIND ASSOCIATES, LLC,
INTERVENOR
Consolidated with 12-1363
On Petitions for Review of Final Agency Action
of the United States Federal Aviation Administration
W. Eric Pilsk argued the cause for petitioners. With him on
the briefs were Charles C. Lemley and Catherine M. van
Heuven.
Daniel J. Lenerz, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Stuart F. Delery, Principal Deputy Assistant Attorney General,
Michael J. Singer, Attorney, Richard H. Saltsman, Assistant
Chief Counsel for Litigation, Federal Aviation Administration,
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and Vicki Leemon, Manager, Adjudication Branch.
Christopher H. Marraro argued the cause for intervenor
Cape Wind Associates, LLC. With him on the brief was
Geraldine E. Edens.
Before: GARLAND, Chief Judge, and ROGERS and BROWN,
Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This case arises in the context of
the approval of a lease by the U.S. Department of Interior to
Cape Wind Associates for construction of an offshore wind farm
in Nantucket Sound. Under the lease, Cape Wind must obtain
the Federal Aviation Administration’s (“FAA”) determination
whether the turbines pose a hazard to air navigation and comply
with any mitigation measures before beginning construction. In
Town of Barnstable, Mass. v. FAA, 659 F.3d 28 (D.C. Cir. 2011)
(“Barnstable I”), the court held that the “no hazard”
determinations in 2010 for each of the wind turbines in a
25–square mile area of Nantucket Sound were “inadequately
justified.” Id. at 31. Petitioners now challenge the no hazard
determinations in 2012 as similarly deficient for failing to
analyze the safety risks posed by the project and to perform an
environmental review required by the National Environmental
Policy Act (“NEPA”), 42 U.S.C. § 4332. For the following
reasons, we deny the petitions for review.
I.
Regarding structures interfering with air commerce,
Congress has instructed that:
Under regulations prescribed by the Secretary [of
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Transportation], if the Secretary decides that
constructing . . . a structure may result in an
obstruction of the navigable airspace or an interference
with air navigation facilities and equipment or the
navigable airspace, the Secretary shall conduct an
aeronautical study to decide the extent of any adverse
impact on the safe and efficient use of the airspace,
facilities, and equipment.
49 U.S.C. § 44718(b)(1). In conducting the study, the Secretary
is to “consider factors relevant to the efficient and effective use
of the navigable airspace,” including “the impact on arrival,
departure, and en route procedures for aircraft operating under
visual flight rules [VFR],” “the impact on [such procedures] for
aircraft operation under instrument flight rules [IFR],” and “the
cumulative impact resulting from the proposed construction . .
. when combined with the impact of other existing or proposed
structures.” Id. § 44718(b)(1)(A), (B) & (E).
The Secretary’s regulations provide the standards to be used
to determine whether a structure would constitute an
“obstruction[] to air navigation,” 14 C.F.R. § 77.13, and define
an “obstruction” in terms of height and location. Id. § 77.17.
As relevant, a structure within three nautical miles of an airport
constitutes an obstruction if it is more than 200 feet above
ground level, id. § 77.17(a)(2), but regardless of its location a
structure higher than 499 feet above ground level will constitute
an obstruction. Id. § 77.17(a)(1). The FAA is directed to issue
a Determination of No Hazard to Air Navigation “when the
aeronautical study concludes that the proposed construction . .
. will exceed an obstruction standard but would not have a
substantial aeronautical impact to air navigation,” id. § 77.31(d),
or when “a proposed structure does not exceed any of the
obstruction standards and would not be a hazard to air
navigation.” Id. § 77.31(e). The FAA’s aeronautical studies are
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conducted according to the FAA Handbook, Procedures for
Handling Airspace Matters, FAA Order JO 7400.2J (February
9, 2012), of which Section 3, on identifying and evaluating
aeronautical effect, is relevant here.
In 2009, the FAA determined that the proposed turbines,
which are to be located in the middle of Nantucket Sound,
would have an electromagnetic effect on local radar facilities —
namely the ASR-8 radar at Otis Airfield in Falmouth,
Massachusetts — and conducted a year-long aeronautical study
of the effects of the project on the operation of navigation
facilities and the safe and efficient use of the navigable airspace.
Based on the study, the FAA issued no hazard determinations,
finding that each of the turbines would not be a hazard to air
navigation provided (1) a digital processor—the TDX-
2000—was installed at the ASR-8 radar at Otis Airfield, (2)
Cape Wind provided financial assurance for the installation of
an additional radar upgrade if the TDX-2000 insufficiently
mitigated any radar interference, and (3) the turbines were
properly lighted and marked. Applying Handbook § 6-3-8(c)(1),
the FAA concluded that the turbines would not have an adverse
effect on aircraft operating under VFR, when pilots navigate by
reference to physical landmarks, because the turbines would be
less than 500 feet high and located in the area of “en route”
operations (i.e., not affecting takeoffs or landings). Petitioners
sought review.
In Barnstable I, 659 F.3d at 34–35, this court held that the
FAA had misread its regulations by relying solely on § 6-3-
8(c)(1) of the Handbook to find no adverse effect on VFR
operations because the turbines would not exceed 500 feet in
height. The FAA had not addressed whether the turbines would
have an “adverse effect” under § 6-3-3. Id. at 35. Section 6-3-3
states that “[a] structure is considered to have an adverse effect
if it first . . . is found to have physical or electromagnetic
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radiation effect on the operation of air navigation facilities.” If
so, then an “adverse effect,” as relevant, exists where a structure
would require a change to an IFR minimum flight altitude or to
a VFR operation’s regular flight course or altitude, or affect
future VFR or IFR operations. Handbook § 6-3-3 (a), (b), (e).
The court found no “apparent analysis of the record evidence
concerning the wind farm’s potentially adverse effects on VFR
operations,” Barnstable I, 659 F.3d at 35, although at the time
it was “undisputed” that the turbines would have “physical or
electromagnetic radiation effect on the operation of air
navigation facilities,” id. The court therefore vacated the 2010
no hazard determinations and remanded the matter. Id. at 36.
By the time the FAA issued no hazard determinations on
August 15, 2012, the circumstances with regard to radar had
changed. In January 2012, the FAA upgraded the ASR-8 radar
and beacon at Otis Airfield by digitizing the output with a TDX-
2000 processor. The FAA had concluded in the aeronautical
study that the installation of the TDX-2000 would not only
address existing radar issues with “coasting, dropped targets,
and ring around,” but also reduce unwanted returns from the
wind turbines. 2012 Determination at 5. In a study conducted
before the TDX-2000 was permanently installed, the FAA ran
tests simulating wind turbines on the ASR-8 radar at Otis
Airfield with and without a TDX-2000 and confirmed that the
modification was effective. The FAA further evaluated the
actual operation of the TDX-2000 at Otis Airfield after its
permanent installation in 2012. See Resp’t Br. at 13.
On remand, the FAA explained that its aeronautical study
had relied on multiple reports to evaluate potential impacts to
the three FAA radar sites on or near Nantucket Sound. The
FAA found that the Cape Wind project would have no
noticeable impact on beacon, or “secondary,” radars. All three
radar sites (at North Truro Cape, Nantucket, and Falmouth) are
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more than 2.4 nautical miles from the proposed turbines, a
distance at which a 2008 study near a wind farm in Great Falls,
Montana, found that turbines generated no false target reports.
2012 Determination at 4 & n.2 (citing Guidelines for Evaluating
Wind Turbine Impacts to Radars (Dec. 2010) (“2010
Guidelines”)).
As to search, or “primary,” radar, the FAA found the
turbines would not affect the service at the North Truro Cape
site, which is used for long-range coverage, because it was
located 31.66 nautical miles from the project. Because of the
distance from the radar to the project and the “minimal”
elevation angle of the proposed turbines, the FAA found that the
low-altitude coverage of the North Truro radar would be
unaffected. Id. at 4. The Departments of Homeland Security
and Defense, which rely on this radar for national defense and
drug interdiction, also evaluated the project and identified no
impacts. Although acknowledging that the wind turbines could
decrease the probability of detection at the Nantucket search
radar as a result of wind turbine “clutter,” the FAA Operations
Engineering Support Group had determined that this level of
impact would not rise to the level of a “physical or
electromagnetic effect” on the air navigation facility because the
probability of detection is not expected to drop “below
acceptable values,” in part because the ASR-9 sites have been
upgraded with the installation of a 9PAC-II dynamic sensor that
significantly reduces “clutter.” Id. at 5. The FAA also
concluded that while search radar at Otis Airfield might be
affected by the “shadowing” of aircraft flying behind turbines at
lower than 800 feet and within three nautical miles of the wind
farm, any such effect would be “brief and intermittent” due to
the spacing between the turbines and their individual width. Id.
In evaluating the likely effect of the turbines on VFR
operations, the FAA applied the criteria in Handbook § 6-3-
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8(c)(1). That subsection states as to “en route operations” that
“[a] structure would have an adverse effect upon VFR air
navigation if its height is greater than 500 feet above the surface
at the site, and within 2 statute miles of any regularly used VFR
route.” Although the wind farm would be within the two-mile
distance, the height for the proposed turbines is not greater than
500 feet above the surface at their sites. The FAA noted that its
adverse effects determinations were based on “long-standing
FAA policy governing aeronautical studies of proposed
structures and their potential impact on VFR operations.” 2012
Determination at 6. “Therefore, even if the proposed wind
turbines exceeded an obstruction standard in 14 CFR § 77.17,
they would not adversely affect VFR operations.” Id. The FAA
also found no adverse effect on “any existing or proposed arrival
or departure VFR operations or procedures.” Id.Although the FAA therefore concluded that under its policy
“no VFR analysis is required in this case,” the FAA collected
data on VFR traffic in the area “to address concerns raised by the
court in [Barnstable I].” Id. The FAA hired the MITRE
Corporation to assess the project’s effects on VFR flights. The
MITRE study found that between January 1 and September 30,
2011, 427 VFR flights equipped with transponders flew over the
location of the proposed turbines at 949 feet or below, flights that
presumably would have had to change altitude or route had the
wind farm been in existence, see 14 C.F.R. § 91.119(a),(c). Of
those flights, more than half (220) passed over the proposed
location of the four turbines in the southeast corner of the wind
farm. On any given day during the nine-month period, the
greatest number of transponder-equipped VFR flights that passed
over the turbines’ proposed location at an altitude of 949 feet or
below was nine, which occurred three times. As the FAA notes,
more often, on 165 of 273 days, no flights or one flight passed
over that location at or below 950 feet. See Resp’t Br. at 11–12.
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Because the FAA cannot track VFR aircraft that lack an
operating transponder, see 2012 Determination at 6 n.10, the
FAA also issued a public notice of the wind farm proposal on
February 10, 2012 “to all known aviation interests and to non-
aeronautical interests that may be affected by the proposed
turbines,” id. at 4 (citing Handbook § 6-3-17(a)(1)), and sought
information regarding the turbines’ potential impact on this type
of VFR operations. Of the public comments received,
“supporting commenters stated that the turbines would not have
a significant adverse effect on VFR flight in the area,” and “that
any adjustments to flight paths or altitudes would be minor and
brief,” with which the FAA agreed. Id. at 7. In response to the
nine commenters objecting to the project because of its impact
on the navigable airspace and radar, the FAA explained why it
found none persuasive. For example, the FAA explained that the
project would not compromise safety during marginal weather
periods because the turbines would be marked and lighted to
make them conspicuous and pilots could safely fly around them.
Further, the FAA stated: “This is not unusual and does not of
itself create a safety risk,” observing that some commenters
indicated “aircraft currently make course and altitude
adjustments in this area to avoid passenger ferries and other
marine traffic.” Id. at 9. The FAA additionally explained that
VFR operations would not be “compressed” into IFR corridors,
which begin at 2,000 feet and higher, because VFR flights may
operate as low as 940 feet over the turbines, permitting
“adequate airspace for VFR and IFR aircraft operating in this
area.” Id. at 8. The FAA noted as well that “[a] mixture of IFR
and VFR operations is not unique to Nantucket Sound and is
common in areas with major commercial airports and numerous
general aviation airports,” and that “[a]dherence to [14 C.F.R.]
§ 91.119 provides basic separation between . . . operations,
regardless of whether the pilot is familiar with local customs,
because all pilots are operating under the same requirements.”
Id.
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Having found that the turbines, individually and as a group,
would neither exceed the obstruction standards in 14 C.F.R. §
77.17 nor have a physical or electromagnetic radiation effect on
the operation of air navigation facilities, see Handbook § 6-3-3,
the FAA concluded, in the absence of either condition, that no
further “adverse effect” evaluation was required. The FAA also
found the turbines would not create a safety risk for local pilots
because they would be properly lighted and marked. In issuing
the 2012 no hazard determinations because the proposed wind
farm would not have a substantial adverse effect and would not
be a hazard to air navigation, the FAA included several
conditions, one of which required Cape Wind to place $15
million in escrow for two years to acquire and install an ASR-11
radar system if the TDX-2000 upgrade at Otis Airfield proved
insufficiently effective. Petitioners again sought review.
II.
Petitioners contend that on remand the FAA again relied on
its erroneous view that a structure can only be a hazard if it is an
“obstruction,” notwithstanding its adverse effect on the operation
of air navigation facilities by interfering with the operation of
FAA radar facilities or its effect on VFR flights, and failed to
conduct the safety analysis mandated by the court in Barnstable
I. To successfully challenge the 2012 no hazard determinations,
petitioners must demonstrate that the FAA’s action was
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see, e.g., Clark
Cnty., Nev. v. FAA, 522 F.3d 437, 441 (D.C. Cir. 2008). An
agency’s interpretation of its regulations is “controlling unless
plainly erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997) (citation and internal
quotation marks omitted). And the FAA’s factual findings, if
supported by substantial evidence in the record as a whole, are
“conclusive.” 49 U.S.C. § 46110(c). The substantial evidence
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standard “requires more than a scintilla, but can be satisfied by
something less than a preponderance of the evidence.” Fla. Gas
Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010)
(citation omitted). The court, however, must consider the
evidence in light of “whatever in the record fairly detracts from
its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951).
A.
Petitioners contend that the 2012 no hazard determinations
are inconsistent with the Handbook procedures and 49 U.S.C. §
44718. We conclude that the FAA could reasonably view its
Handbook procedures implementing the Secretary’s regulations
to establish a threshold finding necessary to trigger a further
“adverse effects” analysis. Cf. Auer, 519 U.S. at 461. The
Handbook provision for “Determining Adverse Effect” reads: “A
structure is considered to have an adverse effect if it first exceeds
the obstruction standards of part 77, and/or is found to have
physical or electromagnetic radiation effect on the operation of
air navigation facilities.” Handbook § 6-3-3 (emphasis added).
By using the word “first” the FAA signaled, as a matter of the
ordinary usage of the word, cf. Engine Mfrs. Ass’n v. S. Coast
Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004), that a finding
of either an obstruction or an air navigation effect is antecedent
to the remaining analysis of adverse effects under the Handbook.
See MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 439 (10th
ed. 1993). Indeed, the FAA has revised the sentence to state
explicitly that “[i]f a structure first exceeds the obstruction
standards of Part 77, and/or is found to have a [radar effect], then
the proposed or existing structure . . . has an adverse effect if it
would [have other effects listed in ¶ 6-3-3 (a)-(f)].” Guidance on
Determining Adverse Effect, FAA Notice N JO 7400.29 (June
19, 2012). This further clarifies the FAA’s intended meaning.
In any event, when read as a whole, the plain text of § 6-3-3
indicates that VFR impact is one category of effects to be
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considered once either of the two threshold conditions is found.
See § 6-3-3(b).
Reading § 6-3-3 in the context of the Handbook provisions
on the identification and evaluation of aeronautical effect
confirms that the FAA’s interpretation is reasonable. Section 7-
1-3(e) states that the FAA will issue a hazard determination if a
structure would have a “substantial adverse effect” that cannot
be eliminated. Section 6-3-5 states that a “substantial adverse
effect” exists when a structure “causes electromagnetic
interference . . . or if there is a combination of: a. Adverse effect
as described in paragraph 6-3-3; and b. A significant volume of
aeronautical operations . . . would be affected.” Therefore, if a
structure does not cause electromagnetic interference under § 6-
3-5, then § 6-3-3 prescribes the process for determining adverse
effect. When neither of the threshold conditions in § 6-3-3
exists, the FAA has determined that it need not analyze whether
a “significant volume” of VFR flights would be required to
change their course or altitude, see § 6-3-3(b) and § 6-3-4. In
Barnstable I, 659 F.3d at 35 n.1, the court assumed this
interpretation was permissible, and petitioners present no cause
for a different conclusion. The FAA likewise does not need to
evaluate VFR effects under § 6-3-8 when neither of the two § 6-
3-3 threshold criteria is satisfied.
Neither the governing statute on which petitioners rely nor
the Secretary’s regulations render a threshold requirement
impermissible. Congress specified the factors that must be
considered in an aeronautical study, see 49 U.S.C.
§ 44718(b)(1)(A)-(E), but left to the Secretary’s broad discretion
the determination of when a structure may result in an
obstruction of navigable airspace and what constitutes an adverse
impact. Section 44718 does not use the term “hazard,” much
less set the requirements for determining when a structure is a
“hazard.” To the extent petitioners maintain that the FAA’s
“threshold” interpretation of § 6-3-3 of the Handbook violates 49
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U.S.C. § 44718, by failing to “decide the extent of any adverse
impact on the safe and efficient use of the airspace, facilities, or
equipment,” Petrs’ Br. 37, they ignore the statutory scheme
Congress created and the deference this court owes to the
reasonable interpretation of the FAA, acting for the Secretary, in
implementing the statute. See Chevron U.S.A. Inc. v. Natural
Resources Def. Council, 467 U.S. 837, 843–44 (1984); see, e.g.,
Public Citizen, Inc. v. FAA, 988 F.2d 186, 191 (D.C. Cir. 1993).
When the FAA found in 2009 that the proposed turbines “may
result in an obstruction of the navigable airspace or an
interference with air navigation facilities and equipment or the
navigable airspace,” 49 U.S.C. § 44718(b)(1), it conducted an
aeronautical study and proceeded to “decide” and “disclose” the
extent of any adverse impact. That is what Congress required,
leaving further elaboration on standards for regulations to be
issued in light of the Secretary’s expertise and judgment. Cf.
Aircraft Owners & Pilots Ass’n v. FAA, 600 F.2d 965, 973–74
(D.C. Cir. 1979). The statute’s reference to “any adverse
impact,” while “all inclusive,” Petrs’ Br. 37, does not limit the
Secretary’s discretion to reasonably determine what can
constitute an adverse impact or how those impacts should be
evaluated.
Petitioners’ assertion that the statute proscribes the FAA’s
decision to impose a backup plan for the TDX-2000 also finds no
statutory support. Air Line Pilots’ Ass’n Int’l v. FAA, 446 F.2d
236, 241–42 (5th Cir. 1971), on which they rely, confirms that
the regulatory purpose of the safety provisions administered by
the FAA contemplates pre-construction evaluation of
modification of operating procedures, but that opinion is
addressing the ripeness of the FAA’s determination for judicial
review, not the required substance of a determination.
Neither do petitioners demonstrate that the FAA’s threshold
interpretation of § 6-3-3 is arbitrary and capricious because it
accounts for potential VFR effects only when either an
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obstruction or radar interference is present. VFR flights do not
rely on instruments or instructions from air traffic control to
navigate; rather, the FAA explained, “[i]t is the pilot’s
responsibility to see and avoid other aircraft and structures when
conducting VFR flight.” 2012 Determination at 8. The FAA
could reasonably conclude, at least in the circumstances here,
that when proposed construction will not compromise radar
operations, then changes to VFR flight paths will not be
hazardous because air traffic control will be able to track VFR
and IFR flights on radar and direct IFR flights away from other
flights or the wind turbines.
Petitioners’ suggestion that in Barnstable I the court
mandated a “safety analysis” ignores the changed circumstances
after 2010 and the FAA’s further evaluation in light of the
court’s concerns. When there is neither an obstruction nor radar
interference, as the FAA found in 2012, the FAA interprets its
Handbook not to require the remaining “adverse effect” analysis
under § 6-3-3, which in turn renders the analysis under § 6-3-8
inapplicable. In Barnstable I, the court stated the FAA needed
to perform additional analysis because the adverse effect on
radar was at that time “undisputed,” 659 F.3d at 35.
Notwithstanding the changed radar circumstances in 2012 and its
longstanding policy reflected in its Handbook, the FAA on
remand addressed the court’s concern in Barnstable I by hiring
the MITRE Corporation to do a further study, which found that
most VFR flights would be over just four turbines in one corner
of the wind farm, and by seeking public comments and
responding to aeronautical objections to the wind farm.
B.
Petitioners’ challenge to the FAA’s factual findings
regarding radar and mitigation for interference with the Otis
ASR-8 as lacking substantial evidentiary support fare no better.
They suggest that the TDX-2000 may not mitigate the known
adverse effects of the turbines and that an ASR-11 also may not
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resolve the acknowledged interference issues. They also
maintain that the FAA failed to fully analyze other adverse
effects, specifically the “shadowing” effects on beacon and
search radar, the decreased probability of detection for search
radars, impacts to the Truro ARSR-4, and unique weather
conditions in Nantucket Sound. And they maintain the FAA
failed to impose mitigation measures it had identified as
necessary.
Multiple studies of record analyzing the anticipated impact
of wind turbines on the radar systems in Nantucket Sound and on
radar in general support the FAA’s findings that the wind
turbines will neither “have physical or electromagnetic radiation
effect on,” Handbook § 6-3-3, nor “cause[] electromagnetic
interference to,” Handbook § 6-3-5, air navigation. These
studies — which include the Technical Operations Division
Response, the 2009 Impact Study of 130 Offshore Wind
Turbines in Nantucket Sound (“Impact Study”), and the 2010
Surveillance Engineering Study — address the potential safety
concerns such as unwanted search radar returns (“clutter”) and
drops of targets. The Technical Operations Division Response
found that impacts of the wind turbines to radars other than Otis
Airfield were unlikely and that the TDX-2000 would
“significantly improve[]” the Otis Airfield radar performance.
The Impact Study acknowledged the vulnerability of the older
Otis Airfield radar and recommended a TDX-2000 to ameliorate
the problem, stating that TDX-2000s “are known to perform well
with the ASR-8” and have “many post processing tools and
features that are designed for operating in a high clutter
environment.” Impact Study at 24–25. Although at the time the
TDX-2000 had not been tested near a wind farm, the study
concluded that it would “greatly enhance the radar product.” Id.
at 25. For the Surveillance Engineering Study, the FAA
temporarily installed a TDX-2000 at Otis Airfield and tested its
performance with simulated wind turbines. The TDX-2000 was
found to have “exceeded expectations” for search radar
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probability of detection. Surveillance Engineering Study at 16.
Other FAA documents of record also indicate that the ASR-
11’s performance would be satisfactory. The FAA’s 2010
Guidelines on the technical operations process for evaluating
effects of wind turbines on radar state that turbine effects require
detailed study only if they are less than 6.5 nautical miles from
the radar, see 2010 Guidelines at 5, and here the nearest radar is
9.5 miles away. Additionally, the FAA pointed out in
responding to concerns of an FAA air traffic control specialist
about a proposed mitigation plan for radar interference,
particularly with respect to the ASR-8 at Otis Airfield, that the
TDX-2000 is “performing as expected, with a reduction in false
and dropped targets,” that “the enhancement of a TDX-2000 has
been performed at approximately 25% of the ASR-8 sites, with
documented improvements to clutter and false targets,” and that
Technical Operations and Air Traffic personnel have
“acknowledged improvements in overall radar performance.”
Response of Douglas A. Klauck, FAA, (July 9, 2012) to
Affidavit of Mark J. Cool, Air Traffic Control Specialist (July 2,
2012).
There also was evidence regarding the faulty performance
of a TDX-2000/ASR-8 combination and an ASR-11 over a wind
farm in Travis Air Force Base in California. In opposing the
project, two concerned citizens “with extensive radar
experience” submitted a 2008 presentation indicating that neither
a TDX-2000 nor an ASR-11 had worked near the Travis Air
Force Base wind turbines and that the base eventually warned
search radar–only aircraft that they were invisible to radar over
the turbines. They also stated that restricting flights without
transponders over Nantucket Sound would necessitate substantial
rerouting because the Sound has many small and recreational
aircraft. But neither the commenters nor petitioners offered
details about the Travis wind farm to indicate it is comparable in
size or geography to the proposed wind farm in Nantucket
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Sound. By contrast, the FAA’s February 2010 engineering study
tested the Otis ASR-8 and the TDX-2000 to predict the effects of
the proposed wind farm at its future location in Nantucket
Sound. The FAA’s Guidelines noted that the TDX-2000 at
Travis had “good results.” 2010 Guidelines at 10.
To the extent petitioners cite concerns about impacts to other
radars, radar “shadowing,” and the unique weather conditions of
Nantucket Sound, the FAA addressed many of these matters in
the Impact Study and found these impacts, if any, would be at
acceptable levels. The FAA’s findings with regard to the ARSR-
4 at Truro are buttressed by the lack of objections from the
Departments of Defense and Homeland Security that rely on the
radar. The FAA was “not required to address every argument
advanced by petitioners,” only, as it has done, to “state the main
reasons for its decision and indicate that it has considered the
most important objections.” Simpson v. Young, 854 F.2d 1429,
1434–35 (D.C. Cir. 1988). Given the record evidence and the
level of FAA expertise involved in drawing factual conclusions
from the reports, conducting the aeronautical study, and
responding to comments, petitioners fail to show that the FAA
findings are unsupported by substantial evidence. See Aircraft
Owners & Pilots’ Ass’n, 600 F.2d at 973–74.
C.
Finally, petitioners’ contention that the FAA was required
under NEPA, 42 U.S.C. § 4332, to perform or participate in an
analysis of the environmental impacts of its no hazard
determinations is based on a flawed premise.
Preliminarily, we note that intervenor Cape Wind
Associates’ challenges to petitioners’ standing to raise the NEPA
objection are unpersuasive. Given the location of the Town of
Barnstable, its standing might well appear self-evident in view
of its concerns the wind farm would adversely affect noise or
traffic, or degrade views or coastal areas. Sierra Club v. EPA,
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292 F.3d 895, 900 (D.C. Cir. 2002); see Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992); Ass’n of Data Processing
Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970); see also Ry.
Labor Execs. Ass’n v. U.S., 987 F.2d 806, 810 (D.C. Cir. 1993).
To the extent the FAA challenged the causation and
redressability prongs of the standing analysis in Barnstable I, this
court held that petitioners had standing. 659 F.3d at 31. Were
there any doubt now, petitioners’ supplemental declarations
establish that they have standing to raise this NEPA claim. See,
e.g., Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d
678, 685 (D.C. Cir. 2004); see also Am. Library Ass’n v. FCC,
401 F.3d 489, 494 (D.C. Cir. 2005). Neither is the court’s
jurisdiction defeated because, as Cape Wind suggests, petitioners
have impermissibly split their NEPA claim, which is pending in
the district court, since any challenge to the no hazard
determinations must be brought in the court of appeals. 49
U.S.C. § 46110(a); see U.S. Indus., Inc. v. Blake Constr. Co.,
Inc., 765 F.2d 195, 205 n.21 (D.C. Cir. 1985).
No hazard determinations generally do not require
preparation of an environmental impact statement because they
are not legally binding. See BFI Waste Sys. of N. Am., Inc. v.
FAA, 293 F.3d 527, 530 (D.C. Cir. 2002). The fact that the
Interior Department has required Cape Wind to obtain the FAA’s
hazard determination and comply with any mitigation measures
it imposes before beginning construction does not create an
exception. The FAA has no authority to countermand Interior’s
approval of the project or to require changes to the project in
response to environmental concerns. Cf. Dep’t of Transp. v.
Pub. Citizen, 541 U.S. 752, 770 (2004). Although in Barnstable
I this court supposed, when addressing petitioners’ standing,
“that the Interior Department would rethink the project if faced
with an FAA determination that the project posed an unmitigable
hazard,” 659 F.3d at 34, the court did not suggest that the FAA
could unilaterally alter the project or that Interior would alter its
decision in response to environmental, as distinct from aviation,
18
concerns expressed by the FAA. “[W]here an agency has no
ability to prevent a certain effect due to its limited statutory
authority over the relevant actions, the agency cannot be
considered a legally relevant ‘cause’ of the effect.” Pub. Citizen,
541 U.S. at 770. Because the FAA “simply lacks the power to
act on whatever information might be contained in the
[environmental impact statement (“EIS”)],” id. at 768, NEPA
does not apply to its no hazard determinations.
NEPA’s “rule of reason” does not require the FAA to
prepare an EIS when it would “serve no purpose.” Id. at 767
(citation and internal quotation marks omitted). The Interior
Department prepared an EIS on the wind farm project and stated
that it would assess whether additional mitigation measures
included in the FAA determination merited a supplemental EIS.
There is no need for FAA to duplicate Interior’s NEPA analysis,
which has been challenged in another proceeding. New York v.
Nuclear Regulatory Commission, 681 F.3d 471 (D.C. Cir. 2012),
on which petitioners rely, is not on point. The court held there
that the agency rulemaking on the safety of nuclear waste storage
was subject to NEPA even though the Commission did not
license any storage because the rule and its findings would
“enable licensing decisions” and “render[] uncontestable general
conclusions about the environmental effects of plant licensure”
that would apply in later decisions. Id. at 477. By contrast, the
FAA’s no hazard determinations were not a preliminary stage of
decisionmaking that enabled Interior’s lease to Cape Wind
Associates; rather, the lease was the product of a distinct
decisionmaking process by a different agency prior to FAA’s
final determinations. Nor do the FAA’s determinations
“render[]” any conclusions about the environmental impacts of
the wind turbine project “uncontestable.” Petitioners can and
have challenged the sufficiency of Interior’s EIS for the wind
farm project, including Interior’s decision not to supplement the
EIS in response to FAA’s determinations and mitigation
requirements. See Town of Barnstable First Am. Compl. ¶¶
19
179–94 in Public Employees for Environmental Responsibility v.
Bromwich, No. 1:10-cv-01067 (D.D.C. Sept. 14, 2011).
Accordingly, for these reasons, we deny the petitions for
review.