In a split decision, the Ninth Circuit Court of Appeals rejected the FAA panel’s decision approving the construction of a new passenger terminal at Hollywood Burbank Airport based on a flawed Environmental Impact Statement (EIS). City of Los Angeles, California v. Fed. Aviation Admin., 63 F.4th 835 (9th Cir. 2023) [hereinafter City of Los Angeles]. The City of Los Angles had challenged the FAA’s decision approving the new terminal complex, parking structure, fire station, and maintenance and cargo buildings on two grounds. First, the City challenged the Environmental Impact Statement (EIS) based on fundamental flaws in the study. The second argument was that the FAA did not consider all reasonable alternatives such that the outcome was predetermined. The court rejected the second argument but found in favor of the City in the first argument. Accordingly, the court remanded the case back to the FAA panel since the plan failed to comply with the National Environmental Policy Act (NEPA).
The court determined that the FAA had a fundamental flaw in the EIS because it failed to consider the reasonable possibility that equipment running simultaneously would have increased noise levels beyond the acceptable thresholds. Courts generally give deference to the FAA’s fully informed and well-considered decision. City of Los Angeles, 63 F.4th at 849 citing Audubon Soc’y of Portland v. Haaland, 40 F.4th 967 (9th Cir. 2022). However, the court is permitted to take a hard look at the EIS when the FAA relies upon incorrect assumptions or data. City of Los Angeles, 63 F.4th at 849-50 citing Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005). Here, the court determined that the EIS failed to account for the cumulative effects of the simultaneous equipment operation. Simultaneous equipment operation was not a remote possibility but a certainty. The FAA should have foreseen that equipment could operate simultaneously since project phases overlapped. Had the FAA made such adjustments, it would have increased the noise level in neighboring communities to a level that would have resulted in the project not being approved. Thus, the court determined that the FAA failed to meet its burden and a second look was warranted.