City of Scottsdale, Arizona v. FAA ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2022 Decided June 24, 2022
No. 20-1070
CITY OF SCOTTSDALE, ARIZONA,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION AND STEPHEN DICKSON,
IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR, FEDERAL
AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of a Decision
of the Federal Aviation Administration
Steven M. Taber argued the cause for petitioner. With him
on the briefs were Eric Anderson and Esther Choe.
Eric M. Fraser was on the brief for amicus curiae Salt
River Pima-Maricopa Indian Community, et al. in support of
petitioner.
Justin D. Heminger, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Todd Kim, Assistant Attorney General, Dina B. Mishra,
Attorney, and Catherine M. Basic, Attorney, Federal Aviation
Administration.
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Before: WILKINS and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge:
The City of Scottsdale has petitioned for review of the
Federal Aviation Administration’s decision to approve certain
east-bound flight paths out of the Phoenix Sky Harbor
International Airport. It claims that the FAA did not
adequately consider the environmental and historical-resource
consequences of those flight paths as required by statute. 42
U.S.C. § 4332; 49 U.S.C. § 303; 54 U.S.C. § 306108. But we
cannot reach the merits of those claims because Scottsdale has
not established that it has standing to bring its petition.
The “irreducible constitutional minimum of standing
contains three elements.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). A petitioner must suffer an “injury in
fact” that is “fairly traceable to the challenged action of the
defendant” and that “a favorable decision” will likely redress.
Id. at 560-61 (cleaned up). This case turns on the injury-in-fact
element. To satisfy that requirement, a petitioner such as
Scottsdale must point to “evidence sufficient to support its
standing to seek review.” Utility Workers Union of America
Local 464 v. FERC, 896 F.3d 573, 578 (D.C. Cir. 2018)
(cleaned up).
Scottsdale claims that the FAA’s approval of the east-
bound flight paths injured it because planes flying along those
paths produce noise and pollution on property that it owns.
That is the type of harm that could give Scottsdale standing.
See National Wildlife Federation v. Hodel, 839 F.2d 694, 704
(D.C. Cir. 1988). But Scottsdale has not identified evidence
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showing that it has suffered that harm. It has directed us to no
study measuring noise increases from new flight paths over
city-owned property. It has not even brought forth a declarant
who stood on city-owned property at a specific time and heard
a disruptive noise from a plane flying along one of the
challenged flight paths.
Instead, when Scottsdale says that new flight paths make
disruptive noise and increase pollution on city-owned property,
it does so in the most conclusory way. Its City Attorney’s
declaration identifies several city-owned places and says there
is now more noise there than before. That, however, is not
enough to establish standing. See Utility Workers Union, 896
F.3d at 578 (requiring evidence). The declaration lays no
foundation for its assertions. Nor does it refer to any specific
flight that causes specific harm to specific property. See City
of Olmsted Falls v. FAA, 292 F.3d 261, 267 (D.C. Cir. 2002)
(“geographic proximity does not, in and of itself, confer
standing on any entity under NEPA or any other statute”).
Scottsdale’s claim of injury is not only unsupported; it is
also at least partly rebutted. The FAA studied whether noise
levels rose after the new flight paths were approved. Its study
found no recordable noise increases in Scottsdale.
Even Scottsdale’s own expert report hurts Scottsdale more
than it helps. It describes planes destined for, or leaving from,
local airports other than Phoenix Sky Harbor International
Airport, and it notes that some of those planes fly underneath
the flights from Phoenix Sky Harbor. So any noise problems
in Scottsdale might be the result of unchallenged flight paths to
and from other airports.
Because the evidence in the record does not demonstrate
that the challenged flight paths from Phoenix Sky Harbor have
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injured Scottsdale, we dismiss Scottsdale’s petition for lack of
standing.