Village of Indian Creek, Florida v. FAA

USCA11 Case: 20-14656 Date Filed: 09/02/2022 Page: 1 of 36
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14656
____________________
CITY OF NORTH MIAMI,
Petitioner,
versus
FEDERAL AVIATION ADMINISTRATION,
STEPHEN M. DICKSON,
in his official capacity as Administrator, Federal Aviation Admin-
istration,
Respondents.
____________________
Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FONSI / ROD
____________________
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2 Opinion of the Court 20-14656
____________________
No. 20-14662
____________________
VILLAGE OF INDIAN CREEK, FL,
TOWN OF SURFSIDE, FL,
CHARLES W. BURKETT,
Petitioners,
versus
FEDERAL AVIATION ADMINISTRATION,
STEPHEN M. DICKSON,
in his official capacity as Administrator,
Federal Aviation Administration,
Respondents.
____________________
Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FONSI / ROD
____________________
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20-14656 Opinion of the Court 3
____________________
No. 20-14674
____________________
VILLAGE OF BISCAYNE PARK, FL,
a Florida municipal corporation,
Petitioner,
versus
STEPHEN DICKSON,
Administrator, United States of America
Federal Aviation Administration,
Respondent.
____________________
Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FONSI / ROD
____________________
____________________
No. 20-14689
____________________
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4 Opinion of the Court 20-14656
TOWN OF BAY HARBOR ISLANDS,
Petitioner,
versus
FEDERAL AVIATION ADMINISTRATION,
ADMINISTRATOR, FAA,
STEPHEN M. DICKSON,
in his official capacity as Administrator,
Federal Aviation Administration,
Respondents.
____________________
Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FONSI / ROD
____________________
____________________
No. 20-14677
____________________
CITY OF NORTH MIAMI BEACH,
VILLAGE OF NORTH BAY VILLAGE,
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20-14656 Opinion of the Court 5
FRIENDS OF BISCAYNE BAY,
MAUREEN HARTWITZ,
Petitioners,
versus
FEDERAL AVIATION ADMINISTRATION,
STEPHEN M. DICKSON,
in his official capacity as Administrator, Federal Aviation Admin-
istration,
Respondents.
____________________
Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FONSI / ROD
____________________
Before NEWSOM, MARCUS, Circuit Judges, and MIDDLEBROOKS, ∗
District Judge.
MARCUS, Circuit Judge:
∗ Honorable Donald M. Middlebrooks, United States District Judge for the
Southern District of Florida, sitting by designation.
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6 Opinion of the Court 20-14656
Just as it did in many other metro areas around the country,
the Federal Aviation Administration (“FAA”) recently designed and
implemented new navigation procedures for flights taking off from
and landing in the South-Central Florida Metroplex, whose major
airports include Miami International, Ft. Lauderdale-Hollywood
International, Palm Beach International, Tampa International, and
Orlando International. These new procedures (referred to as “the
Project”) made it possible for more planes to safely use the limited
airspace and simplified air traffic control procedures.
Petitioners, a group comprised of municipalities, individu-
als, and a nonprofit organization all based in South Florida, filed
this petition for review, claiming that the FAA violated the Na-
tional Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et
seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Department of
Transportation Act, 49 U.S.C. § 101 et seq.; and the U.S. Constitu-
tion’s Due Process Clause. Among other things, Petitioners say the
FAA’s Purpose and Need Statement was seriously deficient in vio-
lation of NEPA; its Cumulative Impact Assessment was improper
and violated NEPA; it relied on a presumption of conformity for
air quality analysis in violation of the Clean Air Act and NEPA; it
violated Section 4(f) of the Department of Transportation Act by
failing to consult with all relevant state and local officials regarding
the impact of its Project on certain resources; and, finally, it vio-
lated the Fifth Amendment by infringing upon an alleged right to
sleep without due process.
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20-14656 Opinion of the Court 7
As we see it, none of the Petitioners’ claims have merit. The
FAA scrupulously adhered to the requirements of the relevant stat-
utes and afforded the public numerous opportunities to comment
on the proposed changes. Accordingly, we DENY the petition for
review.
I.
The FAA is tasked by Congress with ensuring safe air travel
throughout the United States. 49 U.S.C. § 40101 et seq. Under this
authority, the FAA publishes air traffic control procedures, includ-
ing where to turn, what direction to fly, when and where to ascend
or descend, and at what speeds. In 2003, Congress passed the Vi-
sion 100 – Century of Aviation Reauthorization Act of 2003 (“Vi-
sion 100 Act”), Pub. L. No. 108-176, 117 Stat. 2490 (2003), which
directed the FAA to implement the Next Generation Air Transpor-
tation System (“NextGen”). One aspect of this modernization ef-
fort involves transitioning from ground-based radar navigation sys-
tems to satellite-based navigation systems in order to make flight
paths more efficient, remedy airspace congestion, and simplify air
traffic control procedures. FAA, South-Central Florida Metroplex,
http://www.faa.gov/newsroom/south-central-florida-metroplex
(last accessed July 11, 2022).
Congress has mandated the expeditious implementation of
NextGen and required its implementation at thirty-five of the na-
tion’s busiest airports -- including several of the airports at issue
here -- within four and a half years. See, e.g., FAA Modernization
and Reform Act of 2012, Pub. L. No. 112-95, § 213(a)(1)(A), (2), 126
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8 Opinion of the Court 20-14656
Stat. 11, 46–48 (2012). The FAA was required to design and imple-
ment new “Area Navigation” procedures, or “RNAV” procedures,
for South-Central Florida and 10 other metroplexes. See FAA,
South-Central Florida Metroplex. Each of the other RNAV mod-
ernization projects that were challenged in federal courts of appeals
has survived judicial review. See, e.g., Lyons v. FAA, 671 F. App’x
674, 674 (Mem.) (9th Cir. 2016) (rejecting challenge to Northern
California Metroplex on the merits); Vaughn v. FAA, 756 F. App’x
8, 11 (D.C. Cir. 2018) (rejecting challenge to Southern California
Metroplex on the merits); Citizens Ass’n of Georgetown v. FAA,
896 F.3d 425, 436 (D.C. Cir. 2018) (dismissing Washington, D.C.
Metroplex challenge as an untimely filing); Arapahoe Cnty. Pub.
Airport Auth. v. FAA, 850 F. App’x 9, 10 (Mem.) (D.C. Cir. 2021)
(dismissing Denver Metroplex challenge for lack of standing).
The FAA conducted an extensive public outreach program
for the Project. Thus, in April and May 2019, the FAA held public
workshops to solicit input on potential designs for the Project, in-
cluding four in-person workshops and one virtual workshop in the
Miami area. Further, in July 2019, the FAA sent a letter announcing
its plans for the Project to 590 federal, state, regional, and local
agencies, elected officials, and tribes, and the FAA published a legal
notice in English and Spanish in six newspapers.
The FAA also prepared a draft environmental assessment
evaluating the Project’s potential impact under NEPA, distributed
the draft widely, and solicited public comments on the draft from
May 2020 to July 2020. In June 2020, the FAA hosted twelve virtual
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20-14656 Opinion of the Court 9
workshops to give the public opportunities to learn about the Pro-
ject and to ask the FAA questions about the Project and the draft
environmental assessment. Finally, in October 2020, the FAA is-
sued its Final Environmental Assessment, Finding of No Significant
Impact, and final decision adopting new flight procedures. Admin.
Rec. (“AR”) 3 at 1, 5, 17.
Petitioners timely filed five petitions for review challenging
the Florida Metroplex Project, and we consolidated them. 1
II.
We start with some general principles. We review the
FAA’s final decision under the Administrative Procedure Act,
5 U.S.C. § 500 et seq. “Specifically, the standard is whether the
[agency action] is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Miccosukee Tribe of Indi-
ans of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)
(quoting 5 U.S.C. § 706(2)(A)) (quotation marks omitted); see also
1 Several petitions for review are consolidated here. The first set of Petition-
ers, the “Consolidated Petitioners,” are comprised of five municipalities in the
South Florida area (the City of North Miami, the Village of Indian Creek, the
Town of Surfside, the Village of Biscayne Park, and the Town of Bay Harbor
Islands) and Charles Burkett, an individual. The second set of Petitioners, the
“North Miami Beach Petitioners,” are two municipalities in South Florida (the
City of North Miami Beach and the Village of North Bay Village), a nonprofit,
and a local resident, Maureen Harwitz. The Consolidated Petitioners have
adopted all of the arguments made by the North Miami Beach Petitioners, and
the North Miami Beach Petitioners, in turn, have adopted all of the arguments
made by the Consolidated Petitioners, except their constitutional sleep claim.
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10 Opinion of the Court 20-14656
City of Oxford v. FAA, 428 F.3d 1346, 1351 (11th Cir. 2005) (citing
Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 375–76
(1989)) (“[F]ederal courts apply the ‘arbitrary and capricious’ stand-
ard, as opposed to the ‘reasonableness’ standard, when reviewing
final agency decisions under the Administrative Procedure Act.”).
This standard of review is “exceedingly deferential” and provides
the reviewing court with limited discretion to reverse an agency’s
decision. Miccosukee Tribe of Indians, 566 F.3d at 1264 (quotation
marks omitted). The reviewing court may not substitute its own
judgment for that of the agency but must, instead, generally defer
to the agency’s technical expertise. North Buckhead Civic Ass’n v.
Skinner, 903 F.2d 1533, 1539 (11th Cir. 1990).
We may, however, find an agency action arbitrary and ca-
pricious where
the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an expla-
nation for its decision that runs counter to the evi-
dence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983).
A.
We begin with Petitioners’ claim that the FAA’s Purpose
and Need Statement was impermissibly narrow. Specifically, they
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20-14656 Opinion of the Court 11
say the Purpose and Need of the Project was defined “so narrowly
that only one alternative -- the proposed flight procedures -- could
fill that purpose.” Appellants’ Consol. Br. at 45.
NEPA’s only requirement regarding the Pur-
pose and Need Statement is that it “briefly specify the underly-
ing purpose and need to which the agency is responding in propos-
ing the alternatives including the proposed action.” Citizens for
Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1212
(11th Cir. 2012) (quoting 40 C.F.R. § 1502.13) (quotation marks
omitted). Congress explained the aims of the NextGen Air Trans-
portation System, the project at issue here, in the Vision 100 Act:
(c) Goals.-- The Next Generation Air Transportation
System shall—
(1) improve the level of safety, security, efficiency,
quality, and affordability of the National Airspace Sys-
tem and aviation services;
(2) take advantage of data from emerging ground-
based and space-based communications, navigation,
and surveillance technologies;
(3) integrate data streams from multiple agencies and
sources to enable situational awareness and seamless
global operations for all appropriate users of the sys-
tem, including users responsible for civil aviation,
homeland security, and national security;
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12 Opinion of the Court 20-14656
(4) leverage investments in civil aviation, homeland
security, and national security and build upon current
air traffic management and infrastructure initiatives
to meet system performance requirements for all sys-
tem users;
(5) be scalable to accommodate and encourage sub-
stantial growth in domestic and international trans-
portation and anticipate and accommodate continu-
ing technology upgrades and advances;
(6) accommodate a wide range of aircraft operations,
including airlines, air taxis, helicopters, general avia-
tion, and unmanned aerial vehicles; and
(7) take into consideration, to the greatest extent prac-
ticable, design of airport approach and departure
flight paths to reduce exposure of noise and emissions
pollution on affected residents.
Vision 100 Act, § 709(c).
In its Final Environmental Assessment, the FAA described
the Purpose and Need of the Project this way: “to provide for the
efficient use of airspace, to develop plans and policy for the use of
the navigable airspace, and to assign by regulation or order the use
of the airspace necessary to ensure the safety of aircraft and the ef-
ficient use of airspace.” AR 5 at 2-1–2-2. The FAA also underscored
the importance of safety and integrating the latest technologies,
such as RNAV-based design. Id.
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20-14656 Opinion of the Court 13
Petitioners fault the FAA for failing to include the reduction
of noise and emissions, to the greatest extent practicable, in its Pur-
pose and Need Statement, even though these considerations are
listed among the seven goals of the NextGen program. Vision 100
Act, § 709(c)(7).
We’ve said that “agencies must look hard at the factors rel-
evant to the definition of purpose.” Citizens for Smart Growth, 669
F.3d at 1212 (cleaned up) (quoting Citizens Against Burlington, Inc.
v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991)). Relatedly, “an agency
should always consider the views of Congress, expressed, to the
extent that the agency can determine them, in the agency’s statu-
tory authorization to act, as well as in other congressional direc-
tives.” Citizens Against Burlington, Inc., 938 F.2d at 196. But other
than appealing to the general rule that agencies must consider the
views of Congress, as expressed in the agency’s statutory authori-
zation, Petitioners identify no law or precedent that would compel
the FAA, in its statement of Purpose and Need, to account for each
and every one of Congress’s goals for the NextGen project.
To the contrary, our courts afford agencies deference in de-
fining the aims of their projects. Nat’l Parks Conservation Ass’n v.
United States, 177 F. Supp. 3d 1, 14–15 (D.D.C. 2016). “That is, as
long as the agency ‘look[s] hard at the factors relevant to the defi-
nition of purpose,’ we generally defer to the agency’s reasonable
definition of objectives.” Theodore Roosevelt Conservation P’ship
v. Salazar, 661 F.3d 66, 73 (D.C. Cir. 2011) (alteration in original)
(citation omitted); see also Citizens for Smart Growth v. Peters, 716
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14 Opinion of the Court 20-14656
F. Supp. 2d 1215, 1223 (S.D. Fla. 2010), aff’d, 669 F.3d 1203 (11th
Cir. 2012) (quoting City of Alexandria v. Slater, 198 F.3d 862, 867
(D.C. Cir. 1999)) (“Courts evaluate the reasonableness of an agency
objective ‘with considerable deference to the agency’s expertise
and policy-making role.’”).
The FAA’s decision to list most, but not all, of Congress’s
objectives in its Purpose and Need statement was not arbitrary or
capricious in violation of NEPA. Congress’s complex web of stat-
utes regulating noise and emissions expresses broad goals, but none
of those statutes compels the FAA to prioritize noise and emission
reduction in all of its projects. Indeed, it is within the sound discre-
tion of the agency to determine which of Congress’s goals this par-
ticular project should accomplish. See Mass. v. EPA, 549 U.S. 497,
527 (2007) (“As we have repeated time and again, an agency has
broad discretion to choose how best to marshal its limited re-
sources and personnel to carry out its delegated responsibilities.”).
It bears repeating that Congress outlined broadly seven goals in the
Vision 100 Act, and at least the following five were mentioned in
the FAA’s Purpose and Need Statement: improving efficiency, har-
nessing new technologies, supporting the growth of transporta-
tion, reducing operational errors, and leveraging additional data to
ease air traffic controllers’ workload. AR 5 at 2-1–2-2.
Petitioners’ follow-on argument that, because the Purpose
and Need Statement omits mentioning noise and emission reduc-
tion, the selection of a particular outcome was a preordained con-
clusion necessarily fails. The FAA considered two options here --
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20-14656 Opinion of the Court 15
the Project and no action at all. Petitioners’ claim that the FAA
failed to consider alternatives that accomplished noise and emis-
sion reduction presupposes that we hold that the FAA must have
mentioned those objectives in its Purpose and Need Statement.
See Theodore Roosevelt Conservation P’ship, 661 F.3d at 73 (cita-
tion omitted) (“[W]e will reject an ‘unreasonably narrow’ defini-
tion of objectives that compels the selection of a particular alterna-
tive.”). But we conclude that the FAA need not have mentioned
noise and emission reduction in its Purpose and Need Statement.
Further, the FAA did all that NEPA requires. As we noted
in Citizens for Smart Growth, “NEPA does not impose any mini-
mum number of alternatives that must be evaluated.” 669 F.3d at
1212. And in North Buckhead Civic Association, we found that an
environmental impact statement with only two alternatives stud-
ied in detail was sufficient. See N. Buckhead Civic Ass’n v. Skinner,
903 F.2d at 1541–43. Of course, the FAA could have studied more
alternatives, but they quickly rejected those that didn’t meet para-
mount criteria, such as safety. AR 20 at 29, 32.
Finally, as discussed at length below, see infra Part II.B–D.,
the FAA considered noise and emissions reduction in detail, and in
conformity with the stated Congressional goals.
B.
Second, Petitioners argue that the FAA also violated NEPA
by incorrectly calculating the cumulative impact of its actions on
the environment. In assessing the marginal change in noise from
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16 Opinion of the Court 20-14656
implementing the NextGen system in the South-Central Florida
Metroplex, the FAA used the 2017–2018 period as its baseline. Pe-
titioners say this undercounted the effects of the FAA’s pre-2017
actions, and that the FAA should have instead used the 2006 noise
levels as a baseline.
Two provisions -- one statutory, one regulatory -- guide our
analysis here. First, the National Environmental Policy Act, which
is largely a procedural statute. 42 U.S.C. § 4321 et seq. It directs all
of the agencies of the federal government to, among other things:
(A) utilize a systematic, interdisciplinary approach
which will insure the integrated use of the natural and
social sciences and the environmental design arts in
planning and in decisionmaking which may have an
impact on man’s environment;
(B) identify and develop methods and procedures, in
consultation with the Council on Environmental
Quality established by subchapter II of this chapter,
which will insure that presently unquantified envi-
ronmental amenities and values may be given appro-
priate consideration in decisionmaking along with
economic and technical considerations;
(C) include in every recommendation or report on
proposals for legislation and other major Federal ac-
tions significantly affecting the quality of the human
environment, a detailed statement by the responsible
official on—
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20-14656 Opinion of the Court 17
(i) the environmental impact of the proposed
action . . . .
42 U.S.C. § 4332. And one of NEPA’s implementing regulations
obligates an agency to consider cumulative impact, rather than
merely the impact of the action at hand. 40 C.F.R. § 1508.7. Sec-
tion 1508.7 of the NEPA regulations define “cumulative impact” as
the impact on the environment which results from
the incremental impact of the action when added to
other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions. Cu-
mulative impacts can result from individually minor
but collectively significant actions taking place over a
period of time.
Id. 2
Second, FAA Order 1050.1F § 4-2(d)(3) echoes this regula-
tion and adds, “[i]f the proposed action would cause significant in-
cremental additions to cumulative impacts, an EIS [environmental
2 The Council on Environmental Quality recently updated the NEPA regula-
tions at 40 C.F.R. Parts 1500–1508. See 85 Fed. Reg. 43,304 (July 16, 2020).
Because the FAA’s NEPA process started before September 2020, see, e.g., AR
30 (draft environmental assessment, dated May 11, 2020), the agency chose to
apply the prior regulations, and we cite the prior regulations applicable to the
FAA’s order. See 40 C.F.R. § 1506.13 (explaining that the revised regulations
apply “to any NEPA process begun after September 14, 2020,” but that “[a]n
agency may apply the regulations in this subchapter to ongoing activities and
environmental documents begun before September 14, 2020”).
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18 Opinion of the Court 20-14656
impact statement] is required.” “This requirement prevents a pro-
ponent from breaking a proposal into small pieces that, when
viewed individually, appear insignificant but that are significant
when viewed as a whole.” City of Oxford, 428 F.3d at 1353.
Here, the FAA established a noise baseline using 1,741,841
flights in the South-Central Florida Metroplex region from June 1,
2017 to May 30, 2018 (which were all the flights that the FAA’s ra-
dar detected in that timeframe). The FAA then modeled noise for
both alternative plans (action and no-action) in 2021 and 2026.
Based on this modeling, the FAA concluded that the Project will
not have a significant noise impact. FAA Order 1050.1F defines a
significant impact from the Proposed Action as an increase of Day-
Night Level (“DNL”) noise by 1.5 decibels at noise-sensitive land
use locations (e.g., residences, schools, etc.) that are exposed to air-
craft noise of DNL 65 decibels or higher. Further, the Final EA
concluded that no population would experience an increase in “re-
portable noise,” even when looking at areas with noise exposure
levels between DNL 60 to 65 and DNL 45 to 60.
But Petitioners say that starting from 2017–2018 is the
wrong baseline because it ignores FAA actions in 2006, 2015, and
2018 and therefore creates the false impression that the cumulative
impact of the FAA’s actions will not significantly increase noise in
the South Florida area.
A cumulative impact analysis must identify
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(i) the area in which the effects of the proposed pro-
ject will be felt; (ii) the impact expected in that area;
(iii) those other actions -- past, present, and proposed,
and reasonably foreseeable that have had or will have
impact in the same area; (iv) the effects of those other
impacts; and (v) the overall impact that can be ex-
pected if the individual impacts are allowed to accu-
mulate.
Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir. 2016) (cleaned up)
(emphasis added). Because the 2006, 2015, and 2018 actions had no
legally significant impact on noise levels, the FAA argues it did not
need to incorporate them in its baseline measurement. We agree.
The first action Petitioners want included in the FAA’s base-
line came in 2006, when the FAA replaced certain existing flight
procedures with satellite-based navigation procedures. But the sat-
ellite routes were overlaid on top of the existing flight procedures,
and Section 331g of Order 1050.1E contains a categorical exclusion
for the establishment of RNAV systems that “use overlay of exist-
ing procedures.” See FAA Order 1050.1E § 311g. 3
Next, in 2015, the FAA added maximum altitudes to flight
charts at the request of air traffic control, without changing any
flight procedures. Petitioners make no effort to explain how this
3 The previous version of Order 1050.1F was Order 1050.1E, and it was in
place from 2006 through 2015. See FAA, Order 1050.1E, Chg. 1,
http://www.faa.gov/documentLibrary/media/Order/1050.1E.pdf (last ac-
cessed July 15, 2022).
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20 Opinion of the Court 20-14656
change had any on-the-ground effects or “will have impact[s] in the
same area” as the Metroplex project. Sierra Club, 827 F.3d at 49.
Last, in 2018, the FAA established sixteen high-altitude flight
procedures over land, modified seven high-altitude procedures
over land, created forty-two high-altitude procedures over the
ocean, and amended two high-altitude procedures over the ocean.
See Establishment and Modification of Area Navigation Routes,
Florida Metroplex Project, 83 Fed. Reg. 54,864 (Nov. 1, 2018); AR
1024 at 19–20. In the Federal Register, the FAA noted that “this
action . . . in support of the Florida Metroplex Project qualifies for
categorical exclusion under the National Environmental Policy
Act” because it involves “new or revised air traffic control proce-
dures conducted at 3,000 feet or more above ground level.” Id. at
54,866. Petitioners seem to acknowledge this fact, saying that,
“[a]lthough these did not include approaches and departures, they
had an indirect effect on approaches and departures.” Appellants’
Consol. Br. at 49. But they offer no additional detail about how
this “indirect effect” affected noise levels.
In sum, none of the prior actions had a legal impact on noise
levels in the area because they were either subject to categorical
exclusions or did not change flight procedures. The FAA’s 1050.1F
Desk Reference on Cumulative Impact Analysis notes that “FAA
has discretion to determine whether, and to what extent, infor-
mation about the specific nature, design, or present impacts of a
past action are useful for the analysis of the impacts of the proposed
action and alternative(s).” FAA 1050.1F Desk Reference (V2), at
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20-14656 Opinion of the Court 21
15-1 (Feb. 2020). We cannot say the FAA’s exercise of that discre-
tion was arbitrary or capricious.
C.
Third, Petitioners charge that the FAA violated the Clean
Air Act and NEPA when it failed to evaluate the Project’s true air
quality impact. The FAA relied on a complex regulatory frame-
work in the process of determining that the effects of the project
were entitled to a “presumption of conformity” with environmen-
tal laws, but Petitioners claim the FAA wasn’t entitled to any such
presumption. See Federal Presumed to Conform Actions Under
General Conformity, 72 Fed. Reg. 41,565, 41,566 (July 30, 2007).
By way of background, the Clean Air Act includes a program
to control the nation’s air pollution by setting national ambient air
quality standards (“NAAQS”). 42 U.S.C. § 7409(a)(1)(A). Under the
Act, the Environmental Protection Agency (“EPA”) must establish
NAAQS for certain pollutants. Id. Each state must adopt and sub-
mit to EPA for approval a state implementation plan (“SIP”) that
provides for the implementation, maintenance, and enforcement
of the NAAQS in a designated air quality region. Id. § 7410(a)(1).
Moreover, federal agencies may not “approve[] any activity which
does not conform to [a SIP] after it has been approved or promul-
gated . . . .” 42 U.S.C. § 7506(c)(1). “Conformity” to a SIP generally
means that the anticipated emissions from a proposed activity will
not frustrate a SIP’s purpose of attaining the NAAQS. Id. §
7506(c)(1).
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22 Opinion of the Court 20-14656
The EPA has promulgated regulations to help federal agen-
cies determine whether their actions conform with SIPs. See 40
C.F.R. § 93.150 et seq. However, the FAA need not perform a con-
formity analysis on certain exempt actions that result in no emis-
sions increases or increases that are clearly de minimis. Id.§ 93.153(c)(2); see also Federal Presumed to Conform Actions Un-
der General Conformity, 72 Fed. Reg. at 41,566.
Here, the FAA made use of two presumptions: (1) for mod-
ifications to flight routes and procedures at or above 3,000 feet
above ground level, and (2) for changes to flight paths below 3,000
feet when those changes are designed to improve operational effi-
ciency. As for the first presumption, Petitioners claim “the Final
EA provides no factual support for the conclusion that the opera-
tional changes associated with the proposed action will occur ex-
clusively, or even preponderantly, at or above 3,000 feet AGL.”
Appellants’ Consol. Br. at 55. They say this is so because the Final
EA notes that the Project would “change air traffic flows during
departures, descents, and approaches of flights.” Id.
We are not persuaded. The FAA concluded that the opera-
tional changes likely to result in a change in emissions will occur at
or above 3,000 feet. Where the emissions will occur is relevant be-
cause the FAA’s presumption is based on the determination that
“aircraft emissions released into the atmosphere above” 3,000 feet
“do not have an effect on pollution concentrations at ground
level.” Federal Presumed to Conform Actions Under General Con-
formity, 72 Fed. Reg. at 41,578. So, although the Project may result
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20-14656 Opinion of the Court 23
in some changes to on-the-ground procedures, the FAA permissi-
bly found that the changes in emissions -- the relevant metric -- will
occur at or above 3,000 feet above ground level and warranted a
presumption of conformity.
Petitioners also challenge the FAA’s use of the second pre-
sumption for changes below 3,000 feet when those changes “to
routes and procedures are designed to enhance operational effi-
ciency (i.e., to reduce delay), increase fuel efficiency, or reduce
community noise impacts by means of engine thrust reductions.”
Id. They say this presumption should not apply “because FAA is
attempting to apply the Presumption of Conformity to a Project
that will increase fuel burn, and, consequently, decrease effi-
ciency.” Appellants’ Consol. Br. at 58 (emphases removed). Alt-
hough the FAA concedes fuel burn will increase (by less than half a
percent), see AR 20 at 15, Petitioners’ argument defines “efficiency”
too narrowly, and is therefore misplaced.
As the FAA explains,
in determining that air traffic control activities have
negligible air quality impacts, FAA defined efficiency
more broadly as “reducing congestion, balancing con-
troller workload, and improving coordination be-
tween controllers handling existing air traffic.” 72
Fed. Reg. at 41,578. . . . [T]he Project falls squarely
within that definition because it decreases the fre-
quency of controller-pilot communication, reduces
controller and pilot workload by decreasing the com-
plexity of flight procedures, reduces the need for
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24 Opinion of the Court 20-14656
flight path adjustments, and creates more predictable
traffic flows. E.g., AR 5 at 2-16, AR 20 at 4. The slight
increase in fuel burn does not negate or outweigh the
substantial improvements in efficiency that the Pro-
ject brings to the Florida airspace.
Appellee’s Br. at 40. Petitioners have offered no response to the
FAA’s broader definition of efficiency in their reply brief. They
merely repeat that fuel burn will increase. That is factually accu-
rate, but legally insufficient. Because the changes occurring below
3,000 feet above ground level are designed to increase operational
efficiency, their effects on the environment are entitled to a pre-
sumption of conformity with SIPs.
Finally, Petitioners say that, even if we assume that the Pro-
ject complies with SIPs and does not violate the Clean Air Act,
NEPA requires the FAA to determine whether the action “[i]s not
likely to have significant effects or the significance of the effects is
unknown and is therefore appropriate for an environmental assess-
ment.” 40 C.F.R. § 1501.3(a)(2). But the FAA defines a “significant”
air quality impact under NEPA as one that “would cause pollutant
concentrations to exceed one or more of the National Ambient Air
Quality Standards (NAAQS), as established by the Environmental
Protection Agency under the Clean Air Act.” Order 1050.1F at 4-
4. Here, the Project would not likely do so. Therefore, the FAA’s
Clean Air Act analysis showing that the Project would have only a
de minimis impact on air quality satisfies NEPA, too.
D.
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20-14656 Opinion of the Court 25
Petitioners also allege that the FAA violated Section 4(f) of
the Department of Transportation Act by (1) failing to consider the
impact of its Project on all public parks, recreation areas, and wild-
life refuges in and around Biscayne Bay, and (2) failing to consult
with all local, state, and federal officials with jurisdiction over the
affected areas.
Section 4(f) of the Department of Transportation Act pro-
hibits “use” of certain public lands, like Biscayne Bay, unless the
agency finds that two conditions are met -- (1) that there is no “pru-
dent and feasible alternative” to use of the land, and (2) that the
project minimizes any resulting harm to the resource. 49 U.S.C.
§ 303(c). Here, the FAA’s “use” of Biscayne Bay is a non-physical
one -- specifically, the production of noise -- which can be consid-
ered a “constructive use” if it substantially impairs the resource.
See Order 1050.1F at 4-6, B-11. The significance threshold for noise
under Section 4(f) is the same as the threshold under NEPA. An
action is significant enough to constitute a “use” if it “would in-
crease noise by DNL 1.5 dB or more for a noise sensitive area that
is exposed to noise at or above the DNL 65 dB noise exposure level,
or that will be exposed at or above the DNL 65 dB level due to a
DNL 1.5 dB or greater increase, when compared to the no action
alternative for the same timeframe.” Order 1050.1F at 4-8.
The FAA also examined potential impact in more noise-sen-
sitive areas. It categorizes an increase of DNL 3.0dB or more as
significant when it occurs in an area with a noise exposure level
between DNL 60 and 65 dB. After a thorough analysis, the FAA
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26 Opinion of the Court 20-14656
concluded the Project would not cause a significant increase in
noise at any of the areas it examined.
Petitioners lob a number of objections at the FAA’s analysis.
First, they say the Section 4(f) analysis “did not address all public
parks, recreation areas, and wildlife refuges in and around Biscayne
Bay.” Specifically, they claim the “Biscayne Bay Aquatic Preserve”
was omitted. The Florida Department of Environmental Protec-
tion defines that Preserve as “run[ning] the length of Biscayne Bay
proper, from the headwaters of the Oleta River down to Card
Sound near Key Largo.” Fla. Dep’t of Env’t Pres., Biscayne Bay
Aquatic Preserves, http://www.floridadep.gov/BiscayneBayAP
(last accessed July 15, 2022).
The entire length of Biscayne Bay is surely covered by the
FAA’s other, extensive analysis. The FAA generated grid points
spaced every 0.5 nautical miles for all Project areas where planes
would be flying under 18,000 feet. Then, the FAA modeled the
noise at the grid points pre-Project (the baseline) and post-Project
(after implementing the Project’s flight route changes) for two sep-
arate years, 2021 and 2026. It found that the Project would not
cause a significant increase in noise at any of the more than 94,000
Section 4(f) resource points or at any of the 0.5 nautical mile grid
points. So, even if the FAA did not specifically enumerate the Bis-
cayne Bay Aquatic Preserve, it nonetheless ensured the Preserve
would not suffer a significant increase in noise. Absent a showing
by Petitioners that the FAA has violated its regulations in some
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20-14656 Opinion of the Court 27
way, their claim is insufficient to establish that the FAA’s 4(f) anal-
ysis was arbitrary and capricious.
Next, Petitioners say the FAA’s assessment of potential use
was flawed because “there is no evidence the agency properly con-
sidered whether” the protected areas “might be ‘substantially im-
paired’ by the Project.” This is not accurate. There is ample record
evidence of the methodology the FAA used to map the areas that
may be affected under Section 4(f) and to conclude that there
would be no significant increase in noise. See generally AR 19.
The Petitioners also complain that the FAA only used Day-
Night Level to evaluate noise levels and that, under the FAA’s Sec-
tion 4(f) procedures, “general thresholds are not sufficient to deter-
mine noise compatibility for noise-sensitive Section 4(f) resources.”
In support of this argument, Petitioners cite to the FAA’s 1050.1F
Desk Reference’s discussion of Section 4(f). There, the FAA writes
that
The FAA may use the part 150 land use compatibility
table as a guideline to determine the significance of
noise impacts on Section 4(f) properties to the extent
that the land uses specified bear relevance to the
value, significance, and enjoyment of the lands in
question. However, the part 150 guidelines may not
be sufficient for all historic sites as described above,
and the part 150 guidelines do not adequately address
the impacts of noise on the expectations and purposes
of people visiting areas within a national park or na-
tional wildlife refuge where other noise is very low
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28 Opinion of the Court 20-14656
and a quiet setting is a generally recognized purpose
and attribute.
AR 1541 at 5-7 (emphasis added). Even under a Petitioner-friendly
interpretation of this provision, the FAA could choose to apply the
standard noise thresholds to noise-sensitive areas if it determined
that it was appropriate to do so. See id. (“The FAA may use the
part 150 land use compatibility table as a guideline . . . .”).
What’s more, the FAA did in fact use different thresholds for
noise-sensitive areas, rather than just applying the part 150 guide-
lines referenced in the Desk Reference to all areas. Instead of look-
ing for increases of 1.5 dB or more at overall DNL levels at or above
65 dB, it looked for DNL increases of 3.0 dB at the 60–65 dB level
and a DNL increase of 5.0 dB at the 45–60 dB level. AR 3 at 8–9;
AR 5 at 5-6; AR 1541 at 11-9. Petitioners’ vague argument that
“something more than a mechanistic review” of DNL estimates is
necessary, without specifying what that something more might be,
in noise-sensitive areas both fails as a matter of law and ignores the
record.
Petitioners’ last Section 4(f) argument is that the FAA failed
to adequately consult with all state and local agencies about poten-
tial noise impact on Section 4(f) resources. Section 4(f) itself says
nothing about consultation with local officials. Instead, the FAA’s
implementing regulation, Order 1050.1F, provides that the “re-
sponsible FAA official must consult all appropriate Federal, state,
and local officials having jurisdiction over the affected Section 4(f)
properties when determining whether project-related impacts
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20-14656 Opinion of the Court 29
would substantially impair the resources.” Order 1050.1F at B-11.
Order 1050.1F does not prescribe any particular process or manner
in which the FAA must conduct this consultation, however.
The FAA sent notice to all the local government Petitioners
in this case; it followed general notice-and-comment procedures;
and it conducted twelve public workshops. But the Petitioners say
this is insufficient. They claim that the FAA did not consult specif-
ically with the Florida Department of Environmental Protection
about the Biscayne Bay Aquatic Preserve. Further, they say that
general consultation is not enough -- the FAA needed to seek the
input of state and local officials on the topic of Section 4(f).
Petitioners’ arguments fail, both as a matter of fact and of
law. First, the FAA did indeed reach out to the Florida Department
of Environmental Protection. AR 11 at 77. Both the Secretary of
the Florida Department of Environmental Protection, Noah Va-
lenstein, and the Director of the Office of Resilience and Coastal
Protection at the Florida Department of Environmental Protec-
tion, Kevin Claridge, were on the FAA’s mailing list for its Notices
of Availability of its draft environmental assessment. Id. These
Notices alerted their recipients to the workshops the FAA was host-
ing on the draft environmental assessment for the South-Central
Florida Metroplex Project. Id. The letters sent to the Florida De-
partment of Environmental Protection listed twelve total work-
shops that were open to the public, three of which focused on the
Miami area -- where the Biscayne Bay Aquatic Preserve is located.
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30 Opinion of the Court 20-14656
Petitioners say this is still not enough. They argue Section
4(f)’s consultation “mandate requires specific participants to ex-
change views on a specific subject at a specific time.” North Miami
Beach Reply Br. at 6. No case law supports this onerous require-
ment, and neither does the text of Order 1050.1F. The FAA cannot
drag all stakeholders to the proverbial consulting table -- it can only
set the table and send the invitations.
Petitioners’ appeal to City of Phoenix v. Huerta, 869 F.3d
963 (D.C. Cir. 2017), is unavailing. There, the FAA changed satel-
lite-based flight routes, and the City argued the FAA failed to fulfill
its consultation obligations under Section 4(f) when it consulted a
low-level employee in the City’s aviation department who lacked
the authority to speak for the City. Id. at 966, 971. The D.C. Cir-
cuit held that the City’s failure to consult other local officials was
arbitrary because
it was unreasonable for the agency simply to assume
that low-level Aviation Department employees had
jurisdiction over the historic sites and public parks
protected by section 4(f), much less that these em-
ployees (along with the State Historic Preservation
Officer) represented all the local officials with such ju-
risdiction, as the agency’s consultation duties re-
quired.
Id. at 973–74. Here, by contrast, the FAA did not attempt to consult
with low-level employees; rather, it invited the views of the
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20-14656 Opinion of the Court 31
Secretary and of the Director of the Office of Resilience and Coastal
Protection of the Florida Department of Environmental Protec-
tion.
Nor is this a case where the FAA offered “no evidence that
[it] ever consulted with the Cities regarding the affected section 4(f)
properties the FAA identified.” City of Los Angeles v. Dickson, No.
19-71581, 2021 WL 2850586, at *2 (9th Cir. July 8, 2021). The FAA’s
extensive outreach efforts satisfy Section 4(f)’s consultation provi-
sion. It provided advance notice of its intent to prepare a draft en-
vironmental assessment, and it distributed the notice to more than
200 state and local public officials throughout South Florida, in-
cluding all the local government Petitioners, along with many fed-
eral officials. AR 36 at A-1 to A-16; AR 36 at A-14 (the City of North
Miami, Mayor Joseph Smith; id. at A-13 (the Village of Indian
Creek, Mayor Bernard Klepach; id. at A-15 (the Town of Surfside,
Mayor Daniel Dietch; id. at A-12 (the Village of Biscayne Park,
Mayor Tracy Truppman); id. at A-14 (the City of North Miami
Beach, Mayor Anthony Defillipo); id. at A-14 (the Village of North
Bay Village, Mayor Brent Latham; id. at A-15 (the Town of Bay
Harbor Islands, Mayor Stephanie Bruder); see also AR 11 at A-1 to
A-16 (sending notice of revised project scope); AR 11 at A-27 to A-
38 (sending clarification about the Project’s scope).
The Petitioners have not identified -- and we have not found
-- any other case where a court has granted a petition for review
based on the FAA’s failure to fulfill its consultation duties under
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32 Opinion of the Court 20-14656
Order 1050.1F. We think the FAA complied with all of Section
4(f)’s requirements.
E.
Finally, Petitioners make the long-shot argument that the
FAA has deprived them of a constitutionally protected right to
sleep. They locate such a right in the Due Process Clause as a sub-
stantive “liberty” interest, and they say that the increase in noise
will deprive them of that liberty without constitutionally sufficient
process. The claim fails for myriad reasons.
To start, the FAA argues that Petitioner Charles Burkett and
the Petitioner Towns do not have standing to bring this claim. The
three prerequisites for Article III standing are that:
(1) the plaintiff has suffered an “injury in fact” -- an
invasion of a judicially cognizable interest, which is
(a) concrete and particularized, and (b) actual or im-
minent, not conjectural or hypothetical; (2) there be
a causal connection between that injury and the con-
duct complained of -- the injury must be fairly tracea-
ble to the challenged action of the defendant, and not
the result of the independent action of some third
party not before the court; and (3) it be likely, not
merely speculative, that the injury will be redressed
by a favorable decision.
Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019)
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). The
FAA highlights that the petition for review and Burkett’s
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20-14656 Opinion of the Court 33
declaration never mention sleep. They never allege that the FAA’s
project has disturbed their sleep, and therefore do not allege an in-
jury in fact -- at least not one that could give rise to a constitutional
sleep claim.
In response, Petitioners point to Burkett’s declaration stat-
ing that the Project has “negatively impacted [his] quality of life and
health.” Appellants’ Consol. Br., Ex. B ¶ 4. On its own, that might
be insufficient, but Petitioner Burkett also points to his public com-
ments during the notice-and-comment period. He said, “Surfside
has already experienced a noticeable increase in overhead aircraft
traffic in the last few years. This traffic has impacted our quality of
life and even has made it difficult to sleep at times. Please do not
increase the noise level or traffic level over Surfside, Florida.” Final
EA, Appendix J-2, p.185. Although this comment is found in the
administrative record, rather than in the petition for review or at-
tached declarations, we have held, in a case involving a petition for
review, that “if we have been presented with ‘facts beyond the four
corners’ of the pleading that are relevant to the question of stand-
ing, we may consider them.” Corbett, 930 F.3d at 1228 (citation
omitted). Burkett’s public comment that air traffic has made it “dif-
ficult to sleep” is a concrete, particularized injury, fairly traceable
to the FAA, and redressable by a favorable decision from this
Court. Reading the petition for review together with Burkett’s
public comments, we think Burkett has said just enough to show
Article III standing.
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34 Opinion of the Court 20-14656
The municipality Petitioners, however, cannot establish
standing. Their theory of standing is premised on the alleged harm
to their residents. By invoking the interests of their residents, the
municipalities are attempting to sue the FAA under a parens patriae
theory. The problem for the municipalities is that “[a] State does
not have standing as parens patriae to bring an action against the
Federal Government.” Alfred L. Snapp & Son, Inc. v. Puerto Rico,
ex rel., Barez, 458 U.S. 592, 610 n.16 (1982). And “[a]s municipali-
ties derive their existence from the state and function as political
subdivisions of the state, presumably they too cannot sue the fed-
eral government under the doctrine of parens patriae.” City of
Olmsted Falls v. FAA, 292 F.3d 261, 268 (D.C. Cir. 2002). See Ap-
pellants’ Consol. Br., Ex. A at 101 ¶ 3, 104 ¶ 3, 107 ¶ 3, 110 ¶ 3, 113
¶ 3 (explaining that each municipality’s authority comes from Flor-
ida’s Constitution and state laws). Only Burkett has standing to
pursue the lack of sleep claim.
But Burkett’s claim fails on its merits. He brings a proce-
dural due process claim under the Fourteenth Amendment (which,
as he admits in his reply brief, should be the Fifth Amendment be-
cause the FAA is an agency of the federal government) alleging that
the government has deprived him of a constitutionally protected
liberty -- the right to sleep. Putting aside, for the moment, the
threshold problem that the federal courts have not recognized a
right to sleep in the Due Process Clause, Burkett is entitled to no
additional procedural due process here. The FAA’s Metroplex Pro-
ject is clearly legislative, not adjudicative in nature, and “if
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20-14656 Opinion of the Court 35
government action is viewed as legislative in nature, property own-
ers generally are not entitled to procedural due process.” 75 Acres,
LLC v. Miami-Dade Cnty., 338 F.3d 1288, 1294 (11th Cir. 2003); see
also Jones v. Governor of Fla., 975 F.3d 1016, 1048 (11th Cir. 2020)
(emphasis in original) (explaining that when the State deprives per-
sons of liberty through the legislative process, “the affected persons
are not entitled to any process beyond that provided by the legisla-
tive process”).
We have described legislative action as “general laws that
apply to more than a few people,” whereas we have described ad-
judicative action as concerning “a relatively small number of per-
sons who are exceptionally affected, in each case upon individual
grounds, by the state action.” Id. (citation and quotation marks
omitted). The Metroplex Project plainly is not an adjudication.
The FAA acted pursuant to statutory authorization, planned for a
prospective project, and affected the “rights” of tens of millions of
people. Thus, Burkett’s procedural due process claim fails. But
even if Burkett were otherwise entitled to procedural due process
about this matter, the only place we have found any reference to a
right to sleep is in the Eighth Amendment. See, e.g., Walker v.
Schult, 717 F.3d 119, 126 (2d Cir. 2013); Harper v. Showers, 174
F.3d 716, 720 (5th Cir. 1999). The Petitioners point to no case --
and have we found none -- locating a constitutional right to sleep
in substantive due process.
***
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36 Opinion of the Court 20-14656
The FAA engaged in exhaustive study of the South-Central
Florida Metroplex Project’s impact on the environment and noise
levels in the affected area, and it found no significant impact. It also
provided ample opportunity for the various stakeholders to learn
about and comment on the project, and complied with all proce-
dural requirements.
Accordingly, we DENY the consolidated petition for review.