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City of Phoenix, Arizona v. Huerta

United States Court of Appeals, District of Columbia Circuit

February 7, 2018

City of Phoenix, Arizona, Petitioner
Michael P. Huerta and Federal Aviation Administration, Respondents

          Argued March 17, 2017

         On Petitions for Review of a Decision by the Federal Aviation Administration

          John E. Putnam argued the cause for petitioner City of Phoenix, Arizona. With him on the briefs was Peter J. Kirsch.

          Matthew G. Adams, pro hac vice, argued the cause for petitioners Story Preservation Association, et al. With him on the briefs was Peter L. Gray.

          Lane N. McFadden, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was John C. Cruden, Assistant Attorney General at the time the brief was filed.

          Before: Rogers and Griffith, Circuit Judges, and Sentelle, Senior Circuit Judge.


          Griffith, Circuit Judge

         In September 2014, the Federal Aviation Administration changed longstanding flight routes in and out of Phoenix Sky Harbor International Airport. The city of Phoenix and a historic neighborhood association both petitioned for review, alleging that the FAA's action was arbitrary and capricious. We agree.


         Phoenix Sky Harbor International Airport is one of the nation's busiest airports. To minimize the impact of the sound of aircraft on residents, the FAA historically has routed flights over industrial and agricultural parts of the City, and the City has used zoning to minimize impact on residential areas and either purchased or furnished with sound insulation the homes most affected by flight paths, at a cost of hundreds of millions of dollars.

         In response to a mandate from Congress to modernize the nation's air-traffic control system, see FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 101(a), 213(a)(1)(A), 126 Stat. 11, 47, the FAA sought to alter the flight routes in and out of Sky Harbor and to employ satellite technology to guide planes. For consultation on its developing plans, the FAA formed the Phoenix Airspace Users Work Group with the City and others.

         One of the new flight paths the FAA devised would route planes over a major avenue and various public parks and historic neighborhoods. The new route would increase air traffic over these areas by 300%, with 85% of the increase coming from jets. The FAA consulted on the environmental impact of this and other proposed changes primarily with a low-level employee in Phoenix's Aviation Department, who warned the FAA that he lacked the expertise and authority to discuss environmental matters on the City's behalf. The FAA never conveyed the proposed route changes to senior officials in the City's Aviation Department, local officials responsible for affected parks or historic districts, or elected city officials.

         As plans progressed, the FAA used computer software to model the noise impact of the proposed route changes. This modeling predicted that two areas in Phoenix, which included twenty-five historic properties and nineteen public parks, would experience an increase in noise large enough to be "potentially controversial." But the agency concluded that these projected noise levels would not have a "[s]ignificant [environmental] impact" under FAA criteria. Joint Appendix 333, 334. Based on this conclusion, the FAA issued a declaration categorically excluding the new flight routes from further environmental review. The FAA shared these conclusions with the State Historic Preservation Officer, predicting that the new noise levels would not disrupt conversation at a distance of three feet and would be no louder than the background noise of a commercial area. The State Officer concurred in this prediction.

         The FAA presented the finalized flight routes in an April 2013 meeting attended by a low-level project manager of the City's Aviation Department. The agency also sent the proposed routes and maps showing affected areas to the other low-level Aviation Department employee, with the caveat that plans were "subject to change." J.A. 302. In May 2014, the FAA notified the Phoenix Airspace Users Work Group that the new routes would take effect in September. The FAA did not share its environmental conclusions with Airport management until the day before the routes were to go into effect. Management asked the FAA to delay implementation so the public could be informed. The FAA refused.

         On September 18, 2014, the FAA published the new routes, and related procedures, and made them effective immediately. The public's reaction was swift and severe: the planes supplied the sound, the public provided the fury. In the next two weeks, the Airport received more noise complaints than it had received in all of the previous year.[1] Residents complained that the flights overhead were too loud and frequent and rattled windows and doors in their homes. Some claimed that they had trouble sleeping uninterrupted, carrying on conversations outdoors, or feeling comfortable indoors without earmuffs to mute the noise.[2]

         In response to the uproar, the FAA held a public meeting the next month that drew 400 attendees and hundreds of comments.[3] There the agency promised to review the noise issue and update the City's Aviation Department. The FAA later claimed to have identified and corrected the problem: aircraft had been straying from the new routes. The agency said it was "teaming with the airport staff and industry experts" to see what more could be done about the noise levels. J.A. 609. But despite the FAA's assurances, the City continued to receive record numbers of noise complaints. In early December, the City told the FAA that public concern remained high.

         That month the State Historic Preservation Officer also asked the FAA to reconsider the new routes in light of their impact on historic properties, which he said was far worse than he had been led to believe. He said he had originally concurred with the agency's optimistic projections only out of deference to the FAA's technical expertise.

         Around the same time, the FAA's Regional Administrator met with Phoenix's City Council and publicly admitted, "I think it's clear that . . . [our pre-implementation procedures were] probably not enough because we didn't anticipate this being as significant an impact as it has been, so I'm certainly not here to tell you that we've done everything right and everything we should have done." J.A. 773.

         A week after this concession, the City asked the agency to reopen consultation and restore the old routes until the City and the agency could engage the public in discussions. In response, the FAA said it would work with the airport and airlines to investigate additional changes to the flight paths. To that end, the FAA promised to reconvene the original Working Group, assuring the City that it was "an important player in this process." J.A. 750-51. But the agency also said it could not reinstate the routes in place before September 18, 2014, because that would require a time-consuming series of related changes to air-traffic control and aircraft automation systems, as well as additional safety and environmental reviews. The FAA also declined the Preservation Officer's request to reopen environmental review of the new routes.

         In mid-February and again in early April the following year, the City submitted data to the FAA purporting to show that the agency's assertions to the Preservation Officer regarding the noise impact of the new routes were "massive[ly] and material[ly]" incorrect. J.A. 814. The City also alleged that computer modeling the FAA was required to use under its own regulations showed that 40, 000 additional residents would be exposed to noise loud enough to disrupt speech compared to before the new routes were implemented. And the City renewed its request that the FAA reopen a statutorily mandated consultation process with the State Preservation Office, in order to provide the City with data from the FAA's modeling, conduct an environmental review of the route changes, and find ways to either minimize the noise impact of those changes or restore the old routes.

         In mid-April the FAA responded with a letter to the City that included the Working Group's final report. The report evaluated alternative routes and amended some existing routes but reaffirmed the agency's decision not to conduct further review of the new flight paths' environmental impact. And though the accompanying letter expressed the FAA's frustration that the City had offered no alternative route proposals, the letter also conveyed the agency's promise to consider further modifications as it "continue[d] to support a collaborative approach towards addressing the community's concerns." J.A. 1036. The letter did not address the City's data, modeling, or requests. In fact, the accompanying documents disclosed that noise level reduction was not among the Working Group's stated objectives.

         The City's response expressed frustration that despite initial promises, the FAA had organized the Working Group so that it would not address the noise issue, and had even excluded the City from meetings for fear of confrontation between the City and the airlines. Indeed, the City was not listed as a Working Group member. The City also protested that it had provided an alternative plan to the FAA-namely, reinstating the original routes but continuing to use satellite technology- which the City claimed would eliminate the 69% increase in residents exposed to higher noise levels and cost airlines only $700, 000 more per year in fuel compared to the new routes.

         In late May, the City met with the FAA and the airlines to again discuss ways to fix the noise issues. The FAA characterized these discussions as "productive" in a follow-up letter sent on June 1. J.A. 1109. The letter also listed short-term adjustments the agency could make within six months, as well as some "longer term" possibilities, which the agency could implement within a year following additional environmental review. Id. The letter said nothing about the City's data submissions, previous requests to reopen consultation and environmental review, proposal to return to the old routes while still using satellite technology, or exclusion from the Working Group.

         Also on June 1, the City sought review in our court, characterizing the FAA's last letter as a final order. The Historic Neighborhoods filed their own petition for review in late ...

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