BFI Waste Systems of North America, Inc. v. Federal Aviation Administration

TATEL, Circuit Judge,

concurring in part and dissenting in part:

I agree that the FAA acted arbitrarily and capriciously by failing to provide BFI with adequate notice concerning the two new grounds on which the agency rested its final hazard determination and that the record lacks substantial evidence to support two findings of adverse impact. See Maj. Op. at 534-35. In view of the considerable deference we owe the agency, however, I do not agree that the FAA acted arbitrarily and capriciously by “conducting an aeronautical study without ‘circularizing ’ notice thereof and without negotiating with BFI to identify mitigation measures.” Id. at 532. Because of this, and because the FAA may be able to explain its decision, I would not vacate the order, but would instead remand to the agency for further consideration. See Allied-Signal, Inc. v. United Stales Nuclear Regulatory Comrn’n, 988 F.2d 146, 150-51 (D.C.Cir.1993) (noting that “[a]n inadequately supported rule ... need not necessarily be vacated,” particularly where the agency may well “be able to explain” its decision).

My colleagues’ conclusion that the FAA acted arbitrarily and capriciously by failing to circularize notice rests on their view that applicable regulations require the agency to solicit comments from all interested persons. Maj. Op. at 532. The regulation, however, calls for solicitation of comments only “[t]o the extent considered necessary.” 14 C.F.R. § 77.35(b). Attempting to make this obviously discretionary provision seem mandatory, the court places the word “must” before its quotation of the regulation. Maj. Op. at 532. But even with this judicially added imperative, the regulation remains entirely discretionary — the agency “must” circularize “[t]o the extent considered necessary.”

Were there any doubt about this, the FAA interprets its regulation as “not mandating] that the FAA solicit comments.” Resp’t’s Br. at 15. We, of course, owe substantial deference to an agency’s interpretation of its own regulation, see Air Transp. Ass’n of Am., Inc. v. FAA 291 F.3d 49 (D.C.Cir.2002) — a principle recognized nowhere in the court’s opinion. Moreover, we have no indication that the FAA’s interpretation reflects anything other than its “fair and considered judgment,” Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 912, 137 L.Ed.2d 79 (1997); see also Drake v. FAA 291 F.3d 59 (D.C.Cir.2002) (holding that we owe deference to an agency’s interpretation of its own regulations expressed during litigation).

In support of their interpretation of the regulation, my colleagues point to the Federal Aviation Act, an Eighth Circuit decision, and the FAA Handbook. The only statutory language they cite, however, is the generic requirement that the FAA ensure “the safe and efficient use of ... airspace.” 49 U.S.C. § 44718(b)(1). The Eighth Circuit did not reach its decision in the face of a contrary agency interpretation — as this court now has — nor did it mention the “to the extent considered necessary” language. And the FAA Handbook’s recommendation that “normally, any proposal that would affect an airport or require a change in aeronautical operations or procedures should always be circularized,” FAA Handbook ¶ 5-20 (emphasis added), is consistent with the agency’s view that the obligation is discretionary.

Moreover, even if the regulation required circularization, the record contains substantial evidence that the FAA did just that. In April 1999, the FAA issued a notice to BFI stating that “we are in the process of conducting an aeronautical study to determine the effect on air navigation.” Although it is true that the FAA failed to provide “an opportunity, open to all interested parties, to submit written comments,” Maj. op. at 534, BFI nowhere raises the concerns of any one other than itself, nor would it have standing to do so, see Nat’l Capital Airlines v. Civil Aeronautics Bd., 419 F.2d 668, 676-77 (D.C.Cir.1969) (rejecting a petition for review based on CAB’s failure to follow its own procedures because that failure did not harm the petitioner).

As to the second basis for the court’s arbitrary and capricious finding — that the FAA failed to negotiate with BFI over possible mitigation measures — substantial record evidence indicates that even if the agency has such an obligation, the required negotiation took place on not one but two occasions: in March and May 1999. The record of the March meeting expressly states that “[ajnticipating mitigation, potential options were discussed, [e.g.,] moving radar[.]” True, the March meeting occurred before the FAA issued its notice of proposed study, see Maj. Op. at 533, but neither the FAA regulation nor the handbook requires that negotiations take place at any particular time. My colleagues, moreover, never even mention the May meeting. Although the record might support the conclusion that there was no “meaningful give-and-take” between BFI and the FAA, id. at 535, the evidence is more than sufficient to support the opposite conclusion — that the FAA “offer[ed] to meet ... informally” and “attempted] to negotiate a solution,” FAA Handbook ¶¶ 7-36(0, 5-12. That is enough. See Chritton v. NTSB, 888 F.2d 854, 856 (D.C.Cir.1989) (citation and internal quotation marks omitted) (explaining that an agency’s “conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view”).