Jordan Louie v. Stephen Dickson ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2019 Decided July 7, 2020
No. 18-1022
JORDAN LOUIE, ET AL.,
PETITIONERS
v.
STEPHEN DICKSON, ADMINISTRATOR AND FEDERAL AVIATION
ADMINISTRATION,
RESPONDENTS
Consolidated with 18-1336
On Petitions for Review of Actions of
the Federal Aviation Administration
Peter R. Steenland Jr. argued the cause for petitioners.
With him on the brief was James R. Wedeking.
J. David Gunter II, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Jeffrey Bossert Clark, Assistant Attorney General, and Eric
Grant, Deputy Assistant Attorney General.
Before: SRINIVASAN, Chief Judge, and GRIFFITH and
KATSAS, Circuit Judges.
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Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Petitioners, residents living
near the Paulding Northwest Atlanta Airport, seek review of
several Federal Aviation Administration actions related to a
proposed airport expansion. Petitioners contend that those
actions violate the Administrative Procedure Act, the National
Environmental Policy Act, and the Department of
Transportation Act. We dismiss the petitions for lack of
jurisdiction because none of petitioners’ challenges involves an
ongoing case or controversy.
I.
A.
The Airport and Airway Improvement Act, 49 U.S.C.
§§ 47101 et seq., authorizes funding for airport development
and improvement projects. For a project to be eligible, the
Secretary of Transportation must have received written
assurances that the airport owner or operator “will maintain a
current layout plan of the airport” with certain portions of the
plan subject to the Secretary’s approval. Id. § 47107(a)(16)(B).
The Secretary has delegated that authority to the Federal
Aviation Administration (FAA). See id. § 106(g); Village of
Bensenville v. FAA, 457 F.3d 52, 58 (D.C. Cir. 2006). The
FAA’s approval, as relevant here, can implicate two statutes
pertaining to environmental considerations: (i) the National
Environmental Policy Act (NEPA), and (ii) Section 4(f) of the
Department of Transportation Act.
First, should approval constitute a “major Federal action[]
significantly affecting the quality of the human environment,”
NEPA requires preparation of an environmental impact
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statement. 42 U.S.C. § 4332(C). To decide whether an
environmental impact statement is required, the FAA prepares
an environmental assessment (EA). 40 C.F.R. § 1501.4(b). An
EA “[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an environmental impact
statement.” Id. § 1508.9(a)(1). If an EA determines an
environmental impact statement is not required, the FAA issues
a finding of no significant impact (FONSI). Id. § 1501.4(e).
FAA guidance establishes time limits on the validity of
FONSIs. In particular, “[i]f major steps toward
implementation of the proposed action,” such as construction,
“have not commenced within three years from [a FONSI’s
issuance], a written re-evaluation must be prepared.” FAA
Order 1050.1F, ¶ 9-1.b, J.A. 616. A new or supplemental EA
must be prepared unless the written re-evaluation indicates, as
relevant here: (i) that the “proposed action conforms to plans
[addressed in the FONSI] and there are no substantial changes
in the action that are relevant to environmental concerns”; and
(ii) that the “[d]ata and analyses contained in the previous EA
and FONSI or EIS are still substantially valid and there are no
significant new circumstances or information relevant to
environmental concerns.” Id. at ¶ 9-2.c, J.A. 617.
Second, the FAA’s approval may also implicate Section
4(f) of the Department of Transportation Act, which applies to
approvals of a “transportation program or project.” 49 U.S.C.
§ 303(c). Under that provision, the FAA may not approve a
project requiring “the use of publicly owned land of a . . .
recreation area . . . of national, State, or local significance,”
unless “there is no prudent and feasible alternative to using that
land” and the project includes “all possible planning to
minimize harm” to the protected resource. Id.4
The FAA may also delegate some of those responsibilities
to States. Under the FAA’s State block grant program, the
FAA may designate up to twenty qualified States “to assume
administrative responsibility for all airport grant amounts.” Id.§ 47128(a). To be eligible, a State must have “agreed to
comply with United States Government standard requirements
for administering the block grant, including [NEPA], State and
local environmental policy acts, Executive orders, agency
regulations and guidance, and other Federal environmental
requirements.” Id. § 47128(b)(4).
B.
In 2005, the FAA approved an EA and issued a FONSI on
construction of the Paulding Northwest Atlanta Airport. The
Paulding County Airport Authority, however, was unable to
develop much of the originally planned area, leading the
Authority to propose the expansion at issue. Because the
Georgia Department of Transportation (GDOT) joined the
FAA’s State block grant program in 2008, the expansion
required GDOT approval. In 2011, GDOT approved a
supplemental EA for the expansion and issued a FONSI. The
FAA also approved the supplemental EA, but noted that its
approval only provided the findings necessary for future action
and did not thereby authorize any funding.
Subsequently, the Airport Authority became interested in
also developing commercial service from the Airport, which
requires an Airport Operating Certificate. See 14 C.F.R.
§§ 139.1(a), 139.101(a). Because GDOT lacks authority under
the State block grant program to grant that certificate, the
Airport Authority applied to the FAA. In April 2014, the FAA
announced its proposed EA for the application. See Notice of
Intent to Prepare an Environmental Assessment for the
Proposed Part 139 Operating Certificate and Related Actions
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at Paulding Northwest Atlanta Airport, 79 Fed. Reg. 22,177(Apr. 21, 2014). According to the notice, the EA would
consider the impacts of twenty listed proposed actions,
including the expansion, and of actions unrelated to
commercial service but expected around the same time. Id. at
22,177–78. In October 2015, the FAA issued a draft EA. See
Notice of Availability for Draft Environmental Assessment for
the Proposed Part 139 Operating Certificate and Related
Actions and Notice for Public Hearing at Paulding Northwest
Atlanta Airport, 80 Fed. Reg. 64,053 (Oct. 22, 2015).
During the FAA’s work on that EA, the Airport Authority
and GDOT separately studied the expansion. GDOT, as noted,
had already done so in the 2011 supplemental EA, but since
more than three years had passed, FAA guidance required a
written re-evaluation. See FAA Order 1050.1F, ¶ 9-1, J.A. 617.
In May 2017, the Airport Authority issued and GDOT
approved a written re-evaluation, concluding that the 2011
supplemental EA remained valid and that no new supplemental
EA was necessary. In September 2017, the FAA concurred in
that written re-evaluation and withdrew the expansion from the
scope of the then-pending EA. See Notice of Modification to
Previously Published Notice of Intent to Prepare an
Environmental Assessment, 82 Fed. Reg. 42,221, 42,221 (Sept.
6, 2017).
Petitioners, residents living in the vicinity of the Airport
who had submitted comments on the draft EA concerning the
expansion, requested reconsideration of the FAA’s decision to
concur in the written re-evaluation. Petitioners contended that
FAA guidance required a new supplemental EA because the
expansion did not conform to the plans studied in the 2011
supplemental EA, certain data underlying it was no longer
valid, and significant new information relevant to
environmental concerns had come to light.
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In January 2018, the FAA denied reconsideration. The
FAA first noted that petitioners’ request “may have been more
appropriately directed to [GDOT],” because “the State ha[d]
been responsible for most of the administrative responsibilities,
including applicable environmental review requirements,”
since joining the State block grant program in 2008. Letter
from Michael S. Fineman, FAA, to Peter Steenland, Sidley
Austin (Jan. 18, 2018), J.A. 128. The FAA explained that it
had reviewed the written re-evaluation given its sensitivity, but
“withdrawal of the FAA’s concurrence would not require
Georgia to withhold block grant funding.” Id. At any rate, the
FAA concluded that petitioners had not demonstrated that the
written re-evaluation failed to satisfy agency guidance. In
response, petitioners filed a petition for review, which is Case
No. 18-1022 in our court.
In October 2018, while that case was pending, the FAA
reversed course and decided to withdraw its concurrence in the
written re-evaluation. In a letter to GDOT, the FAA reiterated
its view that GDOT is “responsible for administering the
Airport Improvement Program,” including “environmental
review.” Letter from Elliott Black, Dir., Office of Airport
Planning and Programming, FAA, to Russell McMurry,
Commissioner, GDOT (Oct. 31, 2018), J.A. 131. The FAA
explained that its concurrence had been “a mere gesture of
support” and had “no legal effect.” Id. Without commenting
on the written re-evaluation’s validity, the FAA decided to
withdraw its concurrence to keep “lines of responsibility and
accountability” clear. Id. Petitioners then filed another petition
for review, which is Case No. 18-1336 in our court.
The two cases are now consolidated in our court, and
together, they present challenges to four FAA actions: (i) the
FAA’s decision to withdraw the expansion from the
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then-pending commercial service EA; (ii) the FAA’s
simultaneous concurrence in GDOT’s written re-evaluation;
(iii) the FAA’s denial of reconsideration of that concurrence;
and (iv) the FAA’s subsequent decision to withdraw its
concurrence. Contending that those actions violate the APA,
NEPA, and Section 4(f), petitioners ask us to vacate all four
actions and remand to the FAA for further environmental
analysis.
II.
We begin and end with the question of our jurisdiction.
The relevant doctrines are standing, which generally turns on
the circumstances at the commencement of the suit, and
mootness, which generally turns on developments thereafter.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000). Each of those doctrines applies
to each form of relief requested. See City of Los Angeles v.
Lyons, 461 U.S. 95, 109 (1983) (standing); J.D. v. Azar, 925
F.3d 1291, 1307 (D.C. Cir. 2019) (mootness). We thus proceed
claim by claim, and we ultimately conclude that one or the
other of the two doctrines requires dismissing each of the
claims before us.
A.
We begin with petitioners’ challenge to the FAA’s
decision to withdraw its concurrence in GDOT’s written
re-evaluation. Petitioners lack standing to pursue that claim.
To satisfy the “irreducible constitutional minimum” of
standing, petitioners must have suffered an “injury in fact” that
is both “fairly traceable to the challenged action” and likely to
be “redressed by a favorable decision.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992) (citation omitted). “The
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party invoking federal jurisdiction bears the burden of
establishing [those] elements.” Id. at 561.
Petitioners allege injuries that would flow from
construction of the airport expansion. For instance, petitioners
Robert and Mary Board allege that they live on a section of
Bluffy Creek that is home to threatened Cherokee darters,
which they spend time observing. Petitioner Anthony Avery
lives near and engages in hunting and other recreational
activities in the Paulding Forest Wildlife Management Area,
through which Bluffy Creek flows. Petitioners aver that
construction of the expansion will increase erosion,
sedimentation, and turbidity in Bluffy Creek. They allege that
the expansion will harm their recreational and aesthetic
interests, through disruption of Cherokee darter habitat, filling
of wetlands, and clearing of trees.
Those injuries, while cognizable, are not fairly traceable to
the challenged action: the FAA’s withdrawal of its
concurrence in the written re-evaluation. Petitioners contend
that the FAA’s withdrawal of its concurrence authorizes the
expansion. It does not. Instead, it removes the FAA’s
endorsement of GDOT’s environmental analysis, concluding
that responsibility for that analysis lies solely with GDOT.
Any injury attendant to construction of the expansion thus
flows from GDOT’s approval and the Airport Authority’s
decision to proceed, not from the FAA’s withdrawal of its
approval.
That analysis, in petitioners’ view, improperly wades into
the merits of their claim. To be sure, “in reviewing the standing
question, the court must be careful not to decide the questions
on the merits for or against the [petitioners], and must therefore
assume that on the merits the [petitioners] would be successful
in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235
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(D.C. Cir. 2003) (per curiam). Petitioners argue that we
therefore must assume there is “[f]ederal action” sufficient to
trigger NEPA, 42 U.S.C. § 4332(C), and a “transportation
program or project” triggering Section 4(f), 49 U.S.C. § 303(c).
Doing so, however, only underscores the lack of a causal
relationship between the claimed injuries and the challenged
action. Assuming without deciding that the expansion is
federal in character and requires the FAA’s approval, the
FAA’s withdrawal of its concurrence makes clear that the
agency has not given that approval. If anything, the FAA’s
withdrawal makes the expansion, and in turn petitioners’
injuries, less likely under petitioners’ view of the merits.
Tellingly, petitioners themselves sought that withdrawal in
their request for reconsideration of the FAA’s concurrence, and
indeed still seek it here.
Perhaps petitioners could challenge some other FAA
action approving or funding the expansion. But the FAA’s
withdrawal of its concurrence does the opposite: that action
revokes the agency’s ostensible approval. Because petitioners’
injuries are not fairly traceable to that action, petitioners lack
standing to challenge it.
B.
Petitioners’ remaining challenges concern the FAA’s
concurrence in GDOT’s written re-evaluation, the FAA’s
denial of reconsideration of that concurrence, and the FAA’s
withdrawal of the airport expansion from the then-pending
commercial service EA. Those challenges are all moot.
“[A] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979)
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(citation omitted). Mootness prevents federal courts from
deciding controversies when “events have so transpired that the
decision will neither presently affect the parties’ rights nor
have a more-than-speculative chance of affecting them in the
future.” Transwestern Pipeline Co. v. FERC, 897 F.2d 570,
575 (D.C. Cir. 1990). Thus, “if an event occurs while a case is
pending on appeal that makes it impossible for the court to
grant any effectual relief whatever,” the appeal is moot.
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992) (citation omitted).
During the pendency of petitioners’ challenges to the
FAA’s concurrence in the written re-evaluation and denial of
reconsideration, the FAA withdrew its concurrence, mooting
those challenges. A challenge seeking an agency’s withdrawal
of a notice becomes moot when the agency withdraws the
notice. See Cierco v. Mnuchin, 857 F.3d 407, 415 (D.C. Cir.
2017). Here, petitioners acknowledge that a remand to the
FAA to withhold its concurrence would relieve any injuries
stemming from it. That is exactly what the FAA has already
done administratively through its withdrawal. Because we
cannot grant any relief beyond that already afforded,
petitioners’ challenges are moot.
Petitioners contend that, because they also challenge the
FAA’s withdrawal of its concurrence, their challenges to the
concurrence and denial of reconsideration are not moot.
Petitioners suggest that we can vacate the mooting
circumstance, restoring the FAA’s concurrence. We cannot.
Petitioners lack standing to request vacatur of the withdrawal.
Similarly, while petitioners’ challenge to the FAA’s
decision to consider the expansion separately from the
commercial service EA was pending, the FAA notified the
Airport Authority that it had closed its file on the EA due to
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insufficient progress and deemed the Authority’s application
for an Airport Operating Certificate withdrawn. Accordingly,
the FAA no longer needs nor intends to prepare a commercial
service EA, as no application for an Operating Certificate
remains pending. It follows that the issues presented by
petitioners’ challenge to the FAA’s decision to consider the
expansion separately from the commercial service EA are no
longer live.
Petitioners’ challenge relies on the rule against
segmentation, which prevents “an agency [from] avoid[ing] the
NEPA requirement that an [environmental impact statement]
be prepared for all major federal actions with significant
environmental impacts by dividing an overall plan into
component parts, each involving action with less significant
environmental effects.” Taxpayers Watchdog, Inc. v. Stanley,
819 F.2d 294, 298 (D.C. Cir. 1987) (per curiam). But no
alleged avoidance persists when, as here, there is no longer any
interrelated action contemplated. Nor have petitioners
provided any reason to believe that any new application for an
Airport Operating Certificate is impending. As a result,
whether the airport expansion and introduction of commercial
service are too interrelated to be considered separately is a
hypothetical issue. Any opinion addressing it would “neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.”
Transwestern Pipeline, 897 F.2d at 575. Petitioners’ challenge
thus has become moot.
* * * * *
For the foregoing reasons, we dismiss the petitions for lack
of jurisdiction.
So ordered.