Citizens Against Burlington, Inc. v. Busey/Concurrence-dissent Buckley

BUCKLEY, Circuit Judge, dissenting in part:

Burlington Air Express and the Federal Aviation Administration might be right: On substantial economic and environmental balance, Toledo Express Airport may well be the only suitable site for Burlington's air cargo hub. The public cannot know for certain, however, and neither can the FAA. By refusing to inquire into the feasibility of sites rejected by Burlington, the agency sidestepped its obligation to prepare "a detailed statement . . . on . . . alternatives to the proposed action." 42 U.S.C. § 4332(2)(C) (1988). The majority endorses this evasion. I cannot, and therefore I dissent from part II(A) of the majority opinion. While "the concept of 'alternatives' is an evolving one," Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 552, 55 L. Ed. 2d 460, 98 S.C.t. 1197 (1978), judicial evolution may not reduce it to a vermiform appendix.

I.
In a narrow sense, the only federal action that is involved when a non-federal applicant seeks federal approval or funding is the agency's decision to grant or deny the applicant's request. No one disputes, however, that the agency's environmental impact statement ("EIS") must inquire into reasonable alternatives to the applicant's proposal. The only controversy is over the nature of the alternatives that the EIS should consider. See, e.g., Friends of the River v. FERC, 231 U.S. App. D.C. 329, 720 F.2d 93, 104-05 (D.C. Cir. 1983) (permit to operate hydroelectric plant; alternative of purchasing power from other producers); Mason County Med. Ass'n v. Knebel, 563 F.2d 256, 262-63 (6th Cir. 1977) (permit to build coal-fired steam electric generator; alternatives of nuclear, geothermal, conservation, purchased power, and others); North Carolina v. FPC, 174 U.S. App. D.C. 475, 533 F.2d 702, 707 (D.C. Cir.) (permit to build hydroelectric plant; alternative of conservation), vacated on other grounds, 429 U.S. 891, 97 S.C.t. 250, 50 L. Ed. 2d 174 (1976).

The majority would limit the consideration of alternatives to those available to the Toledo-Lucas County Port Authority. As the majority sees it, the FAA "defined the goal for its action as helping to launch a new cargo hub in Toledo and thereby helping to fuel the Toledo economy." As a consequence, airports outside the Toledo area were not to be considered because "none . . . would serve the purpose of the agency's action." Maj. op. at 198. I read the EIS differently. Recognizing that Burlington is an essential party to the Port Authority's application, the FAA understands that the EIS must consider any reasonable alternative to Toledo Express Airport that might be available to Burlington, whether it lies within the Toledo area or outside it.

Thus, while the EIS begins by reviewing the proposed construction and expansion of the Toledo Express Airport, EIS at 1-1, it pays particular attention to Burlington. The "Background" section recounts Burlington's existing operations at Fort Wayne, Burlington's unsuccessful negotiation for the expanded facilities required for a permanent hub at Fort Wayne, Burlington's decision to look elsewhere, Burlington's analysis of seventeen sites, and Burlington's ultimate selection of Toledo. Id. at 1-2. The "Alternatives" section rejects the other four airports in the Toledo area in part because their expansion would take longer, and "Burlington officials have indicated they cannot accommodate an extended time period." Id. at 2-15. As for airports elsewhere, the EIS declares that "Burlington officials have indicated that Fort Wayne is not a permanent alternative," and that other airports surveyed by Burlington's consultants were rejected "because of the advantages of the Toledo Express Airport." Id. at 2-15, 2-16. The "Benefits of Proposed Project" section acknowledges the economic advantages that will flow to Toledo, but links them to Burlington's decision to locate there. "The Proposed Project, while serving a demand that is being created by Burlington Air   Express's decision to locate in Toledo, will provide economic benefits and employment opportunities to the community." Id. at 1-4. Burlington makes the demands that define the project; Toledo enjoys the benefits that result.

The FAA takes a broader view of its responsibilities because it acknowledges that the proposed project is intended to serve several purposes. Toledo seeks the substantial economic benefits that will accrue from the establishment of an air cargo hub in its metropolitan area. Burlington seeks a home for its air cargo operations, one that will be tailored to its specifications. For its part, the FAA is conscious of its mandate, under the Airport and Airway Improvement Act ("AAIA"), 49 U.S.C. APP. § 2201(a)(7) (1988), to encourage the development of a national system of air cargo hubs. See EIS at S-1 to S-2.

I cannot fault the FAA for the attention given Burlington and its preferences. While both Toledo and Burlington are indispensable to the enterprise, Burlington is plainly the dominant partner; its requirements and desires shaped the project from the start. As the agency points out in its Record of Decision ("ROD"), "the demand for this project is clearly based on a business decision by Burlington Air Express and the interest of a local airport sponsor, the Toledo-Lucas County Port Authority, in accommodating and facilitating this decision." ROD at 29.

I do fault the agency for failing to attend to its own business, which is to examine all alternatives "that are practical or feasible from the technical and economic standpoint . . . rather than simply desirable from the standpoint of the applicant." Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations ("Forty Questions"), 46 Fed. Reg. 18,026, 18,027 (1981) (emphasis omitted). As far as I can tell, the FAA never questioned Burlington's assertions that of the ones considered, Toledo Express is the only airport suitable to its purposes. Instead, the agency simply accepted Burlington's "Toledo-or-bust" position. Thus, the EIS notes that Burlington hired consultants to help it choose a new hub site, and that the consultants prepared a confidential report. EIS at 2-1 to 2-2. The impact statement fails to summarize the report; indeed, it does not say whether Burlington made the document available to the FAA. The EIS reports that a letter from the consultants demonstrates that Burlington's Toledo decision rests on "legitimate business interests." Id. at 2-2. Of Burlington's decision to leave Fort Wayne, the FAA's Record of Decision similarly declares: "This is a business decision on the part of Burlington, in which the FAA has not been involved." ROD at 10. The FAA thus accepts at face value Burlington's assertion that it had no second choice. See EIS at 2-16; ROD at 30-31.

Burlington's stance may have been at least partly tactical. The consultants told the FAA that their "overall business judgement . . . was to recommend Toledo"; they made no claim that Toledo was the only feasible site among the seventeen examined. EIS APP. at E-64. In its comments on the EIS, Burlington conceded that it "would obviously have preferred to remain at Fort Wayne." Id. APP. at E-28. A principal obstacle was money: "Fort Wayne was unable to compose a competitive funding package and development plan for a permanent hub," id., whereas Toledo "worked diligently" to produce a "creative" funding package, id. APP. at E-27.

Nevertheless, Fort Wayne kept trying; in an April 1990 letter, the Fort Wayne-Allen County Airport Authority assured Burlington that "it is totally feasible to expect to structure a financial package for Fort Wayne similar to that currently under consideration at Toledo." Joint Appendix 266. Replying in early May 1990 - the same month the final EIS was issued - Burlington expressed appreciation for the "cooperative and constructive tone of your letter" and "the really outstanding character of the Airport Authority," and said that it would "look to Fort Wayne for support and solutions as and if our Toledo commitment is altered by any of the risks or uncertainties that lie ahead." Id. at 268.

Although this exchange was not part of the record at the time the EIS was prepared, parties commenting on the EIS inquired about newspaper reports of reopened negotiations between Burlington and Fort Wayne, and the FAA asked the company to clarify its position. In a letter dated June 27, 1990, its Chief Executive Officer stated "for the record that Burlington does not have any existing viable alternative to the proposed new hub project at Toledo." ROD at 30-31. Once again, the FAA took Burlington at its word: "Base [sic] on this reconfirmation of the findings in the FEIS [Final EIS], the FEIS need not be revised or supplemented to consider Fort Wayne as a reasonable alternative." Id. at 31.

I do not suggest that Burlington is untrustworthy, only that the FAA had the duty under NEPA to exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project. It may well be that none of the sixteen other alternatives examined by Burlington and its consultants could be converted into a viable air cargo hub at acceptable cost. That, however, was something that the FAA should have determined for itself instead of accepting as a given. Under NEPA, "the federal agency must itself determine what is reasonably available." Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 94 (2d Cir. 1975); see Van Abbema v. Fornell, 807 F.2d 633, 642 (7th Cir. 1986) (condemning agency's "blind reliance on material prepared by the applicant"). By allowing the FAA to abandon this requirement, the majority establishes a precedent that will permit an applicant and a third-party beneficiary of federal action to define the limits of the EIS inquiry and thus to frustrate one of the principal safeguards of the NEPA process, the mandatory consideration of reasonable alternatives.

The majority and the FAA respond to any suggestion that Fort Wayne might be a feasible alternative by emphasizing that the federal government can no longer tell carriers where to place hub airports. Maj. op. at 13-14 (slip op.); EIS APP. at C-16. They miss the point. While the agency cannot tell Burlington where to go, it can refuse to approve the Toledo project, or to provide any funding for it. The agency's Record of Decision acknowledges as much: "While the FAA is not in a position to control or direct the actions and decisions of Burlington or of [Toledo], the FAA does have the ability to support or withhold approval for the proposed federal actions. . . ." ROD at 9. It is the exercise of that discretion that the EIS is supposed to inform.

Had the FAA rejected the proposal on the ground that Fort Wayne is a feasible, environmentally preferable alternative, it would not have been ordering Burlington "to establish hubbing operations at a specific airport." EIS APP. at C-16. Burlington would still have been free to seek out another location, as it insisted it would should the Toledo application be denied. Rather, the agency would simply have exercised its statutory responsibility to base its decision on a "comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action." NRDC v. Morton, 148 U.S. App. D.C. 5, 458 F.2d 827, 833 (D.C. Cir. 1972).

II.
Even if the FAA had correctly concluded that the only reasonable alternative was "No Action," its EIS would still be flawed. By viewing the no-action alternative exclusively through Toledo's eyes, it failed to appreciate that that city's gains must necessarily be Fort Wayne's losses. Thus the EIS informs us that whereas the proposed project would produce 750 new jobs and $ 17 million for the Toledo economy during the first full year of operation, EIS at 1-4, "the no-action alternative would mean foregoing . . . [these] economic benefits." Id. at 2-13.

This analysis suggests that the jobs and dollars will arise spontaneously from the Toledo soil. In reality, Toledo's gains will come at Fort Wayne's expense. Burlington's Fort Wayne payroll is $ 8 million, id. APP. at B-92; its Toledo payroll will begin at $ 9 million, id. at 1-4. If the project were canceled, Toledo would forego "substantial economic benefits," id. at 2-13;   but, unless Burlington were to shut down entirely, which it has asserted it will not, Toledo's loss would be offset by jobs and economic activity in Fort Wayne, or whatever other city ultimately served as Burlington's permanent hub.

More broadly, by emphasizing the economic consequences to Toledo, the FAA and the majority seem to view the Airports and Airways Improvement Act as an urban welfare statute. As the EIS notes, the AAIA merely directs the FAA "to facilitate the establishment of air cargo hubs" in the United States. Id. at 1-3. While a city will inevitably benefit economically from proximity to a major airport, this is no more than a by-product of federal funding under the AAIA. From a national perspective, it is of little consequence whether the beneficiary of this federal activity is Toledo or some other community.

The FAA was probably free to disregard economic effects in the EIS. See CEQ Regulations, 40 C.F.R. § 1508.14 (1990) (requiring discussion of economic effects only if they are "interrelated" with natural environmental effects). Once it undertook to discuss them, however, it was obliged to be impartial; an EIS "must be objectively prepared and not slanted to support the choice of the agency's preferred alternative." Forty Questions, 46 Fed. Reg. at 18,027. Because the FAA's no-action analysis failed to recognize the impact on the Fort Wayne economy, it failed to meet the standard of objectivity required by NEPA.

III.
The EIS requirement "seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project . . . which would alter the environmental impact and the cost-benefit balance." Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 146 U.S. App. D.C. 33, 449 F.2d 1109, 1114 (D.C. Cir. 1971). With its uncritical dismissal of alternatives and its myopic view of economic consequences, the EIS here fell short of this objective. As a result, we cannot be confident that in approving Toledo's applications, the FAA took the pertinent environmental as well as economic and technical considerations into the balance. And that, of course, is the purpose of the National Environmental Policy Act.

By sanctioning the FAA's approach, the majority in effect allows a non-federal party to sort out alternatives based entirely on economic considerations, and then to present its preferred alternative as a take-it-or-leave-it proposition. If allowed to stand, today's decision will undermine the NEPA aim of "inject[ing] environmental considerations into the federal agency's decisionmaking process." Weinberger v. Catholic Action of Hawaii/Peace Educ. Proj., 454 U.S. 139, 143, 70 L. Ed. 2d 298, 102 S.C.t. 197 (1981). The discussion of reasonable alternatives - "the heart of the environmental impact statement," 40 C.F.R. § 1502.14 - becomes an empty exercise when the only alternatives addressed are the proposed project and inaction.

In our first encounter with NEPA twenty years ago, we spoke of the duty to ensure that "important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy." Calvert Cliffs', 449 F.2d at 1111. Because I believe that the court today shirks that duty, I respectfully dissent.