Judge Ikuta: Good morning.
Matthew Adams (Burien): And may it please the court, my name is Matthew Adams appearing for the City of Burien. I’m joined by Lisa Marshall, the City Attorney. I’d like to reserve three minutes if I could and I’ll keep my eye on the clock.
This case is about whether it was arbitrary and capricious for the FAA to rely on a categorical exclusion from NEPA review to avoid preparing either an environmental assessment or an environmental impact statement for a flight path that sends low-flying aircraft directly over the city.
Beginning with the plain language of the categorical exclusion itself, the CATEX applies to quote “modifications to currently approved Air Traffic Control procedures conducted below 3,000 feet that do not significantly increase noise over noise sensitive areas.” The problem for the FAA here is that at the time of its decision there was no quote-unquote “currently approved procedure.”
Judge (uncertain which): I’m sorry, it wasn’t the manual procedure? The manual turning procedure wasn’t that the procedure that was in effect?
Adams: Your honor is correct that these aircraft were turned manually. Some of them were turned to the 250 degree heading, some of them used other headings. The turn was made at various points and so the result was you had this distribution of aircraft and no neighborhood bore the brunt of the whole air traffic.
Was that a quote-unquote procedure? We know that it wasn’t because it was not included in the so-called letter of agreement or LOA between the tower at the airport and what’s called the terminal radar TRACON. So before 2016, excuse me, there was nothing in that letter of agreement as it addressed the southbound turbo props.
Judge (uncertain which): How do we know that in order for some procedure to be a procedure for purposes of the categorical exemption that has to appear in LOA? Is there a regulation to that effect?
Adams: Well the LOA itself purports to list all of the procedures that pertain to the relationship between the tower and TRACON. So I guess it’s theoretically possible that there is an error in the LOA such that it was published improperly and it didn’t include any other procedure…
Judge (uncertain which): Is not a procedure, or does it say this was all possible procedures or what is the exact language?
Adams: I don’t know that I have that here, your honor. I don’t believe it does say these are all the procedures that exist between these two and there are no other procedures.
Judge (uncertain which): Okay. So there’s an inference you’re saying that this is just to establish coordination and control procedures, so you’re saying there’s an inference that if it’s not in here it’s not a procedure, is that the argument?
Adams: That’s right. I mean they’ve published this letter of agreement that purports to pull together all the procedures in one place and I suppose it doesn’t say there are no other procedures explicitly but I think we can…
Judge Rakoff: Just help me out here as a matter of sort of basic English meaning of the word procedure—there was a procedure in place. It was a sort of ad hoc type of situation and for that reason wasn’t easily reducible to a formula, but it wasn’t as if they were just operating blindly or without any consideration of what went on. They had a way of figuring out when they wanted these planes to turn and when they didn’t.
Adams: Sure. So let me offer two responses to that and I think one goes directly to what you just asked me and the other maybe provides a better answer to your question, Judge Ikuta.
If one were to read procedure to mean as you’ve suggested, anything that anybody does provided that it is done—essentially if anything is a procedure even if it’s ad hoc—then we have a problem because this particular categorical exclusion is one subpart out of four and Kisor—the Supreme Court just told us we have to use traditional tools of statutory construction and one of those traditional tools of course is we have to look at the structure of the whole thing and make sure it fits together, right?
So this categorical exclusion—if I could use the shorthand, the modifications categorical exclusion so I don’t have to repeat it over and over—is the third subpart. There’s a second subpart that is just to do with flights that are procedures that are under 3,000 feet but do not route aircraft over noise sensitive uses at all, right? And if we were to accept that anything can be a procedure even if it’s just ad hoc, then I think those two categories collapse on themselves and there’s no longer any distinction between them.
Judge Bennett: Well you know, counsel, I mean isn’t it correct that during the administrative procedure when the FAA described the no action alternative, that they said that the no action alternative was the manual procedure?
Adams: I think that’s accurate.
Judge Bennett: So, you know, I’d like to make sure you spend enough time on your argument on the cumulative impact.
Adams: Sure. Would your honor like me to head there now or would you prefer that I just…
Judge Bennett: Go ahead to cumulative impact, that would be fine with me.
Adams: Okay. And maybe I’ll just make a note to circle back on rebuttal. So on cumulative impact, the question of course is whether the FAA was required to consider the cumulative impacts involving this particular project together with the Sustainable Airport Master Plan, which folks refer to as…
Judge Rakoff: Is that the focus of your cumulative impacts—that there was this SAMP, call it? I don’t know if that’s what they’re calling it. You’re not talking about any other planned projects that were in the works, because I know they did go through a number of projects in their categorical exemption document.
Adams: That’s accurate, your honor. I think they listed seven or eight. They were mostly roadway improvement projects. What they did not do was look at anything that was proposed to be done at the airport itself.
Judge Rakoff: My understanding is they don’t even mention the SAMP, is that correct?
Adams: That is accurate.
Judge Rakoff: Is that the right way to just to talk about the acronym—do people call it the SAMP?
Adams: That’s what I have heard.
Judge Rakoff: Okay. Okay, well I’m going to call it the SAMP. And I have to say I looked at the what I think is—it was cited as a SAMP and it appeared to be just a plan to make a plan. Was there any actual plan? Because this is just saying here’s how we’re going to guide this SAMP process and how SAMP goals and objectives will guide the preparation of a plan. So it did not appear that there was a plan in place. Am I wrong? Is there some—in 2015 I guess—was there a plan or just this plan to make a plan?
Adams: So your honor is correct that we attached to our motion to supplement the record or in the alternative for consideration of extra record evidence the 2015 technical memorandum. And one thing that I hope your honor gets from that technical memorandum is that the SAMP planning process was funded by a grant from the FAA. Now the process did not end in 2015, however it continued on, and so one of the other exhibits to our motion was a subsequent technical memorandum that talked about what was going to be included in the SAMP. I think it referred to these things as quote unquote near-term projects and it was things like a new terminal, new gates, new cargo facilities…
Judge Rakoff: Was that one before them? I thought only the 2015 one was before them at the time of this decision.
Adams: Well the FAA has agreed that your honors may consider both of those…
Judge Rakoff: But which was before them?
Adams: Well they’ve taken the position that neither was before them and they didn’t consider either of them.
Judge Rakoff: Well the 2015—I guess my question is, because the 2015 document which was the one I focused on because I believe that was what was before them, didn’t have any particular plan. It was just a plan to make a plan. So it was—so my question was how it rose to the level of being a future project or reasonably foreseeable future project when it doesn’t identify anything of that nature.
Adams: So can I speak to the timing issue? So you are correct that the date of that final report is marked 2018 May 2018, so that was two weeks after—two weeks after the approval of the project that we’re here on. So just one observation is just as a practical matter it’s sort of inconceivable that all of the planning for a new terminal and 20 more gates in this phenomenal buildout of cargo facilities would have happened within those two weeks. But just drilling down on the specifics of what is in that 2018 report, it is filled with maps and plans and descriptions of these new facilities that are all dated 2017.
Judge Bennett: Counsel, I mean since the FAA never mentioned the SAMP they obviously didn’t say the SAMP is just a plan to make a plan and is not reasonably foreseeable. They never made any kind of a finding because as I understand it they never mentioned it.
Adams: That’s accurate, your honor. And so this is not one of those cases where there’s a dispute about an agency’s reasoning for eliminating something from a cumulative impacts analysis. Here there’s nothing to defer to, there’s just a void. And I would just note in addition, the city asked the FAA to look into future projects at the airport—that’s at ER 113—and the response to that comment says nothing about future projects at the airport.
So I guess that is the cumulative impacts question sort of in a nutshell. There’s also the question of public controversy that if I could just circle back quickly before I lose it. You know on this question of whether all of the procedures are in the letter of agreement, you know we think it’s worth noting that the original procedure was adopted in 2016. In the face of litigation it was withdrawn and the mechanism for withdrawal was to formally strike it from the letter of agreement so that the letter of agreement again served as the you know register of all of the procedures. And then when it was reapproved the mechanism was not to place it somewhere else or sort of leave it beyond the side because there were other places where other procedures lived, but instead to add it back to the letter of agreement. And so that’s another reason why we believe that letter of agreement was intended to be the full roster of all the procedures.
Your honors, I see I’m running fairly low on time here. Do you have other questions for me or should I reserve for rebuttal?
Judge Ikuta: I just have one question. My understanding is in the administrative process the EPA asked the FAA to clarify the extent to which the air traffic is expected to increase and incorporate that into the analysis.
Adams: That’s right, your honor. And the FAA’s response to that—I believe the FAA’s final categorical exclusion document takes the position that there will be no increase in operations. Now that’s for purposes of its environmental analysis. For purposes of justifying the project of course the justification is that there will be all these additional operations that we need to accommodate in the future.
Judge Ikuta: Thank you.
Adams: Thank you, your honor.
Erica Kranz (FAA): Good morning. My name is Erica Kranz for respondent FAA and with me is Patricia Dean from FAA.
Well the action here was a modest change in the way the departure procedures are handled for two percent of departures from Sea-Tac. The purpose and need of this project was to increase safety and efficiency in the National Airspace to help manage the workload of busy air traffic controllers.
Now Burien’s trying to import a lot of concepts from environmental analysis and environmental impact statement cases involving much more complicated projects into this case. But this action falls within an established categorical exclusion from that more detailed NEPA review. This is a modification of a procedure that does not significantly increase noise. This was an established category of the type of project that will not normally require more…
Judge (uncertain which): What do you say to their argument that this wasn’t a modification of a procedure because there was no established procedure in the listing of procedures?
Kranz: So I think they’re taking a track on procedure in a different way than the way that FAA does. So a procedure is a process by which air traffic control directs aircraft operations and determines where and in what manner they’re going to fly. So procedure usually refers to things like published departure procedure.
So this is going to get a little bit technical but I’ll do my best here. So for instance there is a published departure procedure that a lot of turbo props use at Seattle. It’s called the Seattle Standard Instrument Departure. It’s basically a set of instructions for departing planes and it says take off at the runway heading and then wait for more instructions from Air Traffic Control. That’s where this change happened, is within that framework.
Previously those further instructions from Air Traffic Control for this subset of a subset of departing turbo props, those instructions would come after individual coordination between the airport tower and the TRACON. Now—and nearly always it would result in a 250 heading being issued. Now that coordination has been essentially eliminated. It’s been pre-coordinated that the airport tower will assign a 250 heading. So within the departure procedure that these departing turbo props are flying, this is changing basically the way that that’s implemented, the way that they’re receiving and the timing when they’re receiving their heading, their turn after they take off.
Judge Bennett: Counsel, you said that this affects two percent of the Sea-Tac departures, that’s right? What how many flights a day is that?
Kranz: Sorry, I don’t—so it’s going to have the north conditions…
Judge Bennett: That’s right.
Kranz: So north flow occurs about 30 percent of the year, so if the airport’s in south flow it will affect zero flights on that day. If it’s in north flow I’m sorry I don’t have a number for you but on average over the course of the year two percent.
Judge Bennett: But that’s two percent of the turbo props or two percent of all departures at the airport?
Kranz: Turbo props and jets—two percent of all departures including jets.
Judge Bennett: We know that under the categorical exemption guidance you can’t rely on a categorical exemption if there are extraordinary circumstances which include that directly and indirectly or cumulatively it creates a significant impact. And so why in making the determination that there weren’t extraordinary circumstances why didn’t the FAA look at projects that were in the works in the SAMP process?
Kranz: Well as you mentioned during question earlier, really at the point that they were conducting this analysis there were no real projects here that were that had been seriously proposed. Everything was still in planning. So FAA and the Port of Seattle had not yet even issued their scoping documents for their environmental review. These are tech—there’s a technical memo about possible projects that by the way wasn’t published yet at the time that FAA even issued its decision here. So they didn’t know if or when these projects would occur. They didn’t have the type of information about things like the number of flights that…
Judge Rakoff: Counsel, so my issue on the SAMP is okay so maybe maybe this was something that was just chaff in the wind that nothing’s going to happen, but why wouldn’t the FAA say that? I mean what would have been the burden on the FAA to just simply say the SAMP is irrelevant to our statutory duty to consider cumulative impacts because it really doesn’t propose anything? I mean especially given that this was funded in part at least with FAA money and it was done—it was being done in consultation with the FAA—what would have been the burden on the FAA to just say well this really is nothing that we need to consider?
Kranz: I suppose that’s…
Judge Rakoff: You’re not saying that they raised the SAMP and we never responded. They don’t raise the SAMP. They make a vague reference to other airport projects and I don’t think it’s enough to put the FAA on notice that that’s what they were talking about. So I mean I guess FAA could have speculated that that’s what Burien was talking about and responded there, but…
Judge Rakoff: What’s the current situation if you know of any of those projects going forward?
Kranz: I believe FAA is currently doing an EA for at least some of those SAMP projects. I don’t know the full scope of what they’re considering.
Judge Ikuta: So I asked the opposing counsel about the timing of when the decision was made on this categorical exemption as opposed to the SAMP timeline and their argument as I understand it is that based on the timing of the second document which does identify specific projects, the FAA must have been aware that those projects were pretty close to being proposed during the period of determination of the categorical exemption. Do you agree with that?
Kranz: I mean I guess this decision was published in April 2018. The memo that they’re citing was from May 2018. So I suppose the memo was in development, but the cases that Burien is relying on about where agencies were required to consider things that were in development or that had been proposed, these are cases like in the Northern Plains case where it had been—was well known and projected for instance how many methane wells there were going to be over a 20-year horizon. There was the type of actual numbers that the court said that allowed meaningful consideration of those other proposed effects.
In the Earth Island case, you know, the agency had acknowledged that there’s an owl living right over there in the next national forest and then you know said they didn’t really have to consider that. I mean these are cases where—well first of all they’re EIS cases so we’re talking about a true cumulative impacts analysis in those cases. Those are cases where there are actual numbers allowing for meaningful consideration. There just isn’t that kind of information available that would allow a meaningful consideration of how the impacts of this action, which are de minimis, how they would interact with possible effects of other possible proposed plans. I’m sorry, go ahead.
Judge Rakoff: You know when you say when you say de minimis, I mean I suppose that’s in the eye of the beholder if you have a bunch of extra turbo prop planes flying over your your business or your area at seven in the morning or six in the morning, right?
Kranz: So I’m using that as sort of a term of art actually because FAA has these established noise thresholds and they involve some averaging. So you know I understand that when you hear a turbo prop going right over you that can be disturbing, but FAA has these—established by regulation that have been accepted by this court—established ways of measuring noise that averages over the day. It gives more weight to noise that occurs at night and it’s basically a way to try to objectify—take an objective look at the total amount of noise that an area sees.
So when FAA looked at this it actually did two different noise analyses for this project. The first looked at just noise from turbo props and that analysis sort of zoomed in on the expected effects of this action and sort of exaggerated the effects and they saw essentially no—no change, no either significant noise increase or a lower level that’s called reportable noise increase. They did a second noise analysis where they looked at the total aircraft noise in this area and that also showed no changes at all—nothing significant, nothing reportable.
So I don’t mean to downplay the subjective experience of people hearing turbo props, but applying the the accepted objective noise measurement thresholds here it doesn’t rise to that level.
Judge Ikuta: We have some cases—Seattle Community Council and Morongo Band of Mission Indians and and the last one was Barnes I think—which effectively say that a change in flight patterns don’t have a significant impact, don’t have a growth inducing impact. How did those affect our analysis here?
Kranz: I think Seattle Community Council Federation is extremely helpful. I mean that project was different than the one here in that it was much broader in scale, but it was similar in that it was being driven by the need for safety and efficiency in the face of increasing numbers of operations at the airport. So the agency explained that yes, growth at the airport was an impetus for this—the action which was sort of the rerouting of a bunch of turbo props—but because the project was not designed to increase growth or create more capacity for more flights to be scheduled, this court agreed that FAA didn’t need to study…
Judge Ikuta: Was the court looking at cumulative impacts or indirect effects?
Kranz: I believe it was looking at—you know, you know I’m sorry I don’t remember how they sort of worded it. I think those two concepts almost merge in this area.
I want to distinguish Seattle Community because I think that case is extremely similar to this one and there’s no reason to deviate from here. But two of the cases that Burien’s relying on are quite different and I want to explain why.
So one, the Ocean Advocates case—that was a project meant to increase capacity. So this was at a dock I believe, a new pier. So they had to study growth in that example. Davis versus Coleman—another one where the purpose of a highway project and an interchange upgrade was to allow access—to improve access to allow for or create additional industrial growth in an area and so they needed to study that growth.
That’s not what this project is about. This project is about helping—giving air traffic controllers a new tool to help manage their workload as—and the FAA has no way to control how many new flights that the airline schedule and it doesn’t believe that this modest change that applies to two percent of departures will cause the scheduling of additional flights.
Judge (uncertain which): And so the FAA could theoretically say even if it were considering the SAMP as something that’s going to happen, we understand they’re going to be these increased flights, we understand they’re going to be increased turbo prop flights, but we don’t find the cumulative impact significant? Or if they had to go further they could talk about the importance of the safety factors?
Kranz: That’s right. That’s right, yes. And I mean recall we’re spending a lot of time—Burien has been spending a lot of time in its brief citing these EA and EIS cases that do involve like a full environmental impacts discussion. This is a CATEX. So what is supposed to happen with the CATEX is the agency determines that the action falls within the established category and then does a quick check to make sure none of the extraordinary circumstances are implicated.
What FAA has done here goes far beyond that and unfortunately it seems like the additional documentation has almost opened it up to additional criticism. But this far exceeds what you normally have in a CATEX situation. And Burien has not identified anything about this decision to use the CATEX or the analysis supporting it that was arbitrary and capricious.
If there are no further questions…
Judge Ikuta: Apparently not.
Kranz: We ask that you deny Burien’s petition.
Adams (Rebuttal): Your honors, just a few very quick points. So on this question of whether this is a quote unquote limited change as counsel has suggested, we would suggest comparing ER 55 and ER 56 which provide a visual representation of the change that was affected.
On the question of whether the SAMP documents were published and when, of course publication is not the standard. The standard is reasonably foreseeable—reasonable foreseeability, excuse me. And again as you mentioned Judge Bennett, we did suggest that they look into this.
There’s been the assertion that you did not…
Judge (uncertain which): Your honor, let me read you the exact language and so we say quote “the draft PEA”—that’s the preliminary document that they made available—”fails to evaluate indirect and cumulative impacts. That failure is significant in light of capacity enhancing future projects planned for the airport.”
So we didn’t use the acronym SAMP. I don’t think we knew the acronym SAMP at that point, but we were clearly pointing towards that and it’s hard to imagine that the FAA wouldn’t have known what we were talking about given that they were funding that planning process.
On what the status is, Judge Rakoff, so we have April—the project was approved. May—that technical memorandum that contains the 2017 plans for the new terminal and all the gates and all the rest of it was formally published, you know, two weeks after this decision. Then in July, so about two months after this decision and around the time we were filing this petition for review, the FAA goes public with the formal initiation of environmental review for the SAMP and that process is running now. And the near-term projects that are proposed include sort of things that were in that technical memorandum that’s dated May 2018.
On the notion that there’s some difference between cumulative impacts analysis in an EIS and cumulative impacts analysis elsewhere, keep in mind that it’s the agency’s own NEPA procedures that require it to consider cumulative impacts in the CATEX context and we’ve cited cases—we’ve got the relevant citations in our brief.
On the question of safety, there’s—down to the end—and the question of safety, in our brief we explained that there is no current safety issue. The FAA has admitted that it’s only a question of accommodating these additional operations in a safe way.
Judge Ikuta: Okay, you’re over your time. Thank you.
Adams: Thank you.
Judge Ikuta: We appreciate your the arguments about parties in the case of City of Burien v. Elwell and the Federal Aviation Administration is submitted.