in the united states court of appeals for the ninth...

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR COMMUNITY ACTION & ENVIRONMENTAL JUSTICE; et al.,

Petitioners,

v.

FEDERAL AVIATION ADMINISTRATION; et al.,

Respondents,

SAN BERNARDINO INTERNATIONAL AIRPORT AUTHORITY; EASTGATE BLDG 1, LLC,

Intervenors-Pending.

No. 20-70272

No. 20-70464

STATE OF CALIFORNIA, by and through Xavier Becerra, in his official capacity as Attorney General,

Petitioner,

v.

FEDERAL AVIATION ADMINISTRATION; et al.,

Respondents.

On Petition for Review of an Order By the Federal Aviation Administration

PETITIONER STATE OF CALIFORNIA’S OPENING BRIEF

XAVIER BECERRA Attorney General of California EDWARD H. OCHOA SENIOR ASSISTANT ATTORNEY GENERAL CHRISTIE VOSBURG Supervising Deputy Attorney General YUTING YVONNE CHI Deputy Attorney General State Bar No. 310177 Attorneys for State of California

1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550

Telephone: (510) 879-3298 Fax: (510) 622-2270 Email: [email protected]

Case: 20-70272, 06/30/2020, ID: 11739107, DktEntry: 57-1, of 47

TABLE OF CONTENTS

Page

i

INTRODUCTION ......................................................................................... 1 JURISDICTIONAL STATEMENT .............................................................. 3 STATEMENT OF ISSUES ........................................................................... 6 STATEMENT OF THE CASE ..................................................................... 7 STATEMENT OF THE FACTS ................................................................... 9

I. The Project ................................................................................ 9 II. Impacts on the Surrounding Communities and the

Environment ............................................................................ 10 III. Environmental Review ............................................................ 13 IV. Project Construction and Operations ...................................... 16 V. Relevant Procedural History ................................................... 18

SUMMARY OF ARGUMENT ................................................................... 18 STANDARD OF REVIEW ......................................................................... 20 ARGUMENT ............................................................................................... 21

I. The Order Must Be Set Aside Because the FAA Failed to Prepare an EIS as Required by NEPA and Failed to Articulate Why Findings of Significant Impact in the CEQA Analysis Did Not Trigger the Preparation of an EIS Under NEPA. ................................................................... 22

II. The FAA Order Must Be Set Aside Because the NEPA Analysis Failed to Discuss or Reconcile Factual Inconsistencies Before the Agencies, Insufficiently Justified Its Determinations, and Potentially Underestimated Project Mobile Source Emissions by 60 Percent. .................................................................................... 27 A. The FAA Failed to Discuss or Reconcile

Inconsistent and Inaccurate Truck Trip Estimates Used to Model Mobile Source Emissions and Failed to Justify Its Use of Those Estimates. ................ 28


TABLE OF CONTENTS (continued)

Page

ii

B. The FAA’s Errors in Modeling Mobile Source Emissions Means that It Potentially Underestimated Mobile Source Emissions by 60 Percent, Rendering Flawed the EA’s Determination of “Significance.” ................................. 31

III. The FAA Order Must Be Set Aside Because It Fails to Consider California Greenhouse Gas Emissions Requirements Imposed to Protect the Environment. .............. 33

CONCLUSION AND REQUESTED RELIEF ........................................... 36


TABLE OF AUTHORITIES

Page

iii

CASES

Bark v. U.S. Forest Serv. 958 F.3d 865 (9th Cir. 2020) ............................................................. 28, 33

Bennett v. Spear 520 U.S. 154 (1997)........................................................................... 20, 21

Blue Mountains Biodiversity Project v. Blackwood 161 F.3d 1208 (9th Cir. 1998) ..................................................... 20, 26, 35

Bob Marshall All. v. Hodel 852 F.2d 1223 (9th Cir. 1988) ............................................... 23, 26, 29, 35

California v. U.S. Dep’t of Transp. 260 F. Supp. 2d 969 (N.D. Cal. 2003) ..................................................... 24

Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin. 538 F.3d 1172 (9th Cir. 2008) ..................................................... 21, 23, 27

Earth Island Inst. v. U.S. Forest Serv. 351 F.3d 1291 (9th Cir. 2003) ................................................................. 21

Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric. 681 F.2d 1172 (9th Cir. 1982) ................................................................. 27

Marsh v. Or. Nat. Res. Council 490 U.S. 360 (1989)..................................................................... 28, 31, 33

Motor Vehicle Mfr. Ass’n v. State Farm Mutual 463 U.S. 29 (1983)............................................................................ passim

N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp. 545 F.3d 1147 (9th Cir. 2008) ........................................................... 21, 23

Native Ecosystems Council v. Tidwell 599 F.3d 926 (9th Cir. 2010) ................................................. 20, 22, 25, 26


TABLE OF AUTHORITIES (continued)

Page

iv

Ocean Advocates v. U.S. Army Corps. of Eng’rs 402 F.3d 846 (9th Cir. 2005) ............................................................. 27, 35

Or. Nat. Res. Council Fund v. Goodman 505 F.3d 884 (9th Cir. 2007) ................................................................... 20

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv. 265 F.3d 1028 (9th Cir. 2001) ..................................................... 21, 26, 30

Robertson v. Methow Valley Citizens Council 490 U.S. 332 (1989)................................................................................. 22

S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of the Interior 588 F.3d 718 (9th Cir. 2009) ................................................................... 21

Sierra Club v. U.S. Forest Serv. 843 F.2d 1190 (9th Cir. 1988) ................................................................. 33

FEDERAL STATUTES

5 U.S.C. § 706 ......................................................................................... 20, 21

42 U.S.C. § 4332 ............................................................................... 14, 22, 27

42 U.S.C. § 4370m-6 .......................................................................................4

42 U.S.C. § 7506 ........................................................................................... 17

49 U.S.C. § 40101 ............................................................................................3

49 U.S.C. § 40103 ..................................................................................... 3, 14

49 U.S.C. § 40113 ............................................................................................3

49 U.S.C. § 44701 ............................................................................................3

49 U.S.C. § 44706 ............................................................................................3



Page

v

49 U.S.C. § 44718 ..................................................................................... 3, 14

49 U.S.C. § 46110 ................................................................................. 4, 6, 18

49 U.S.C. § 47101 ............................................................................................3

49 U.S.C. § 47107 ..................................................................................... 3, 14

CODE OF FEDERAL REGULATIONS

40 C.F.R. § 81.305 .................................................................................. 11, 32

40 C.F.R. § 93.153(b) ................................................................................... 17

40 C.F.R. § 1501.4 .................................................................................. 23, 29

40 C.F.R. § 1501.7 ........................................................................................ 23

40 C.F.R. § 1502.1 ........................................................................................ 22

40 C.F.R. § 1503.1 ........................................................................................ 23

40 C.F.R. § 1508.9 ............................................................................ 23, 27, 29

40 C.F.R. § 1508.27 ............................................................................... passim

FEDERAL REGISTER

70 Fed. Reg. 25,162 (May 12, 2005) ............................................................ 11

79 Fed. Reg. 52,526 (Sept. 3, 2014) ............................................................. 17

85 Fed. Reg. 160 (Jan. 2, 2020) .................................................................... 11

CALIFORNIA STATE AUTHORITIES

Assemb. B. 617, 2017 Reg. Sess. (Cal. 2017) .............................................. 12

Cal. Code Regs., Title 14, § 15002 ............................................................... 24



Page

vi



Cal. Const., Article V, § 13 .............................................................................5

Cal. Exec. Order No. S-3-05 (June 1, 2005) ........................................... 13, 34

Cal. Gov. Code § 12511...................................................................................5

Cal. Gov. Code § 12600...................................................................................5

Cal. Health & Safety Code § 38501 ............................................................. 34

Cal. Health & Safety Code § 38550 ....................................................... 13, 34

Cal. Health & Safety Code § 38566 ....................................................... 13, 34

Cal. Health & Safety Code § 39561 ............................................................. 34

COURT RULES

Fed. R. App. P. 15(a) .......................................................................................6

Fed. R. App. P. 28(f) ........................................................................................7

Ninth Circuit Rule 15-1 ...................................................................................6

Ninth Circuit Rule 28-2.7 ................................................................................7

OTHER AUTHORITIES

FAA Order 1015.1F ...................................................................................... 34

FAA Order 5050.4B ........................................................................................4


GLOSSARY

vii

APA Administrative Procedure Act CEQ Council on Environmental Quality CEQA California Environmental Quality Act EA Environmental Assessment EIR Environmental Impact Report EIS Environmental Impact Statement EPA Environmental Protection Agency FAA Federal Aviation Administration FONSI Finding of No Significant Impact GHG Greenhouse Gas NEPA National Environmental Policy Act PER Petitioners’ Joint Excerpts of Record VOC Volatile Organic Compound


1

INTRODUCTION

Petitioner the State of California, by and through Attorney General Xavier

Becerra, petitions this Court for review of Federal Aviation Administration (FAA)

Order issued on December 23, 2019 (Order), approving the Eastgate Air Cargo

Facility (Project) at the San Bernardino International Airport in San Bernardino,

California.

The Order is unlawful because Respondent the FAA approved the Project

with only a cursory environmental review, which undermines the purpose of the

National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370m. NEPA

requires federal agencies to take a “hard look” at the environmental consequences

of a proposed project and perform a detailed analysis in an Environmental Impact

Statement (EIS) to foster informed decision-making and public participation before

approving a project that, like this one, may significantly impact the quality of the

human environment. The airport expansion Project would involve constructing a

658,500 square-foot air cargo warehouse that would generate at least 500 more

truck trips and 52 additional cargo aircraft takeoffs and landings daily at the

airport, in an air basin already designated by the United States Environmental

Protection Agency (EPA) as in “extreme” nonattainment for ozone and “serious”

nonattainment for diesel particulate matter. The Project is adjacent to

environmental justice communities burdened by high rates of asthma, including the


2

San Bernardino-Muscoy community, which was selected by the California Air

Resources Board for the development of an emissions reduction program under

California Assembly Bill 617 because the community already bears heavy air

pollution.

In spite of public comments from California and others that the Project

would have significant environmental impacts, and a finding under the California

Environmental Quality Act (CEQA) one year earlier by Respondent San

Bernardino International Airport Authority that the Project would have significant

and unavoidable environmental impacts, the FAA approved the flawed NEPA

environmental review, and the developer, Respondent Eastgate Bldg 1, LLC,

began construction in early January 2020. Construction and construction-related

trucking has been occurring near communities that already experience some of the

worst pollution in the country. Respondents expect air cargo operations for the

Project to begin in December 2020 or January 2021, and estimate that more than

2,000 pounds of toxic air pollution from air cargo and trucking operations would

be emitted in the year that follows.

The Project harms California by increasing risks of death and serious

damage to the health of California residents, triggering and exacerbating heart

attacks and asthma attacks in communities that already suffer from high rates of

heart and lung diseases, and impeding California’s decades-long efforts to improve


3

air quality, meet EPA-mandated emissions reduction targets, and meet California’s

own standards to reduce greenhouse gas emissions.

Accordingly, California asks this Court to require the FAA to prepare an

appropriate environmental analysis in a detailed EIS, as required under NEPA,

which would allow the public and the Respondents to fully consider the significant

impacts of this Project. California asks this Court to set aside the FAA Order and

vacate the Project’s ground lease until the FAA has complied with NEPA.

JURISDICTIONAL STATEMENT

On December 20, 2019, the FAA approved the NEPA environmental review

for the Project. Petitioners’ Joint Excerpts of Record (PER) (ECF Nos. 56-1 to 56-

4) at PER0030. And on December 23, 2019, the FAA memorialized this approval

in a Finding of No Significant Impact and Record of Decision, which together

constitute the Order that is the subject of this petition. PER0029. The FAA has

authority to issue the Order pursuant to 49 U.S.C. §§ 40101(d), 40103(b),

40113(a), 44701, 44706, 44718(b), 47101, and 47107(a)(16). Specifically, the

FAA has authority to “review and approve or disapprove” material changes to

airport layout plans. 49 U.S.C. § 47107(a)(16). Because the Project requires

material modifications to the airport layout plan at San Bernardino International

Airport, the Project could not move forward without the FAA’s approval of the

layout plan. See id. The FAA’s approval or disapproval of the plan “is a federal


4

agency action subject to NEPA and other environmental laws.” See FAA Order

5050.4B, ¶ 9.g.(3), ¶ 202.b.

This Court has jurisdiction directly to review the Order pursuant to 42

U.S.C. § 4370m-6(a) and 49 U.S.C. § 46110(a). Section 4370m-6(a) provides:

[A] claim arising under Federal law seeking judicial review of any authorization issued by a Federal agency for a covered project shall be barred unless . . . (B) in the case of an action pertaining to an environmental review conducted under NEPA (i) the action is filed by a party that submitted a comment during the environmental review; and (ii) any commenter filed a sufficiently detailed comment so as to put the lead agency on notice of the issue on which the party seeks judicial review.

42 U.S.C. § 4370m-6(a). In addition, Section 46110(a) states:

[A] person disclosing a substantial interest in an order issued by . . . the Federal Aviation Administration with respect to . . . powers designated to be carried out by the Administrator of the Federal Aviation Administration . . . in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principle place of business. The petition must be filed not later than 60 days after the order is issued.

49 U.S.C. § 46110(a). California satisfies both statutory requirements. With regards to Section

4370m-6(a), California, by and through Attorney General Xavier Becerra,

submitted substantive comments regarding the inadequacy of the FAA’s NEPA

review process and Draft Environmental Assessment (Draft EA). PER0403-11.


5

California and other commenters provided detailed comments during the

environmental review period that put the FAA on notice of the issues raised in this

brief. Specifically, comments raised the Draft EA’s failure to consider and explain

the significant and unavoidable impacts found through the CEQA process, see

PER0405-07, the inconsistencies in truck trip estimates between the EA and the

CEQA documents, see PER0407-08, and the EA’s deficient analysis of whether

the Project would threaten a violation of California’s greenhouse gas emissions

requirements, see PER0609-10.

California also satisfied Section 46110(a)’s jurisdictional requirements.

California has substantial interest in the FAA Order. Attorney General Xavier

Becerra is the chief law enforcement officer of the State and is authorized to file

actions to protect public rights and interests, including to protect the natural

resources of the State from pollution, impairment, or destruction. Cal. Gov. Code

§§ 12600-12612. This challenge is brought pursuant to the Attorney General’s

independent constitutional, common law, and statutory authority to represent the

public interest. See Cal. Const., art. V, § 13; Cal. Gov. Code §§ 12511, 12600-12.

The FAA’s approval of the Project without adequate environmental review

deprives California of its right to an adequate public review process essential to

NEPA. The Project is located in a part of California already burdened with

significant air pollution, and its development will directly harm California’s air


6

quality and the health of California’s communities and residents. See ECF No. 31-

3 (declarations of residents in California communities harmed by Project).

Furthermore, California timely filed its petition for review within 60 days of the

entry of the FAA Order approving the NEPA review of the Project, in accordance

with 49 U.S.C. § 46110(a), the Federal Rule of Appellate Procedure 15(a) and

Circuit Rule 15-1. Compare 85 Fed. Reg. 160 (Jan. 2, 2020) (January 2, 2020

publication of Record of Decision in Federal Register), with ECF No. 1-5 (No. 20-

70464) (California Petition for Review filed February 20, 2020).

Accordingly, this Court has jurisdiction to review this case.

STATEMENT OF ISSUES

Whether the FAA action—issuing an Order to approve the environmental

review for the Project without preparing an EIS—was arbitrary, capricious, and

unlawful in violation of NEPA, where:

1. The FAA failed to articulate why findings of significant and unavoidable

impact in the CEQA environmental review did not trigger the preparation of an

EIS under NEPA;

2. The FAA potentially underestimated Project mobile source emissions by

60 percent after using truck trip estimates that are inconsistent with the estimates

used in the CEQA analysis and by using erroneous modeling inputs, and then

failed to explain its use of the inconsistent estimates and modeling inputs; and


7

3. The FAA failed to analyze whether the Project’s greenhouse gas

emissions may violate California’s greenhouse gas emissions requirements.

Pursuant to Federal Rule of Appellate Procedure 28(f) and Circuit Rule 28-

2.7, all pertinent constitutional provisions, treaties, statutes, ordinances, regulations

or rules are set forth verbatim in the addendum to this brief.

STATEMENT OF THE CASE

California challenges the FAA Order approving the 658,500 square-foot

Eastgate Air Cargo Logistics Center currently under construction in San

Bernardino, California. PER0040; PER0046-47; PER0996. Following an

insufficient environmental review process under NEPA in which it prepared an

EA, the FAA determined that this Project will not have significant impacts on the

human environment, and failed to prepare an EIS to analyze and disclose in detail

the Project’s significant environmental impacts. PER0001-2. The Project will

result in additional flight operations and hundreds of additional truck trips at the

San Bernardino International Airport, and it will contribute 355.56 tons of air

pollution every year to the already pollution-burdened surrounding communities.

PER0047; PER0144.


8

The FAA’s environmental review is flawed in three ways. First, the FAA

failed to articulate why findings of significant and unavoidable impact in the

Project’s CEQA environmental review did not trigger the preparation of an EIS

under NEPA. Second, the FAA potentially underestimated Project mobile source

emissions by 60 percent after using truck trip estimates that are inconsistent with

the estimates used in the CEQA analysis and by using erroneous modeling inputs,

and then failed to explain its use of the inconsistent estimates and modeling inputs.

Third, the FAA unlawfully violated its duty under NEPA to consider how the

Project will impact California’s greenhouse gas standards.

Therefore, California respectfully requests this Court to set aside the FAA

Order as arbitrary, capricious, and unsupported by the law. In addition, California

requests this Court to set aside the Final Environmental Assessment (Final EA)

approved by the FAA on December 20, 2019—which is the basis for the FAA’s

unlawful Order—as arbitrary, capricious, and unsupported by the law. California

further requests this Court to vacate the December 30, 2019 ground lease

agreement between the Airport Authority and Eastgate Bldg 1, LLC, which was

approved pursuant to the FAA’s unlawful Order. Finally, California requests this

Court to require the FAA to prepare an EIS for the Project in accordance with

NEPA.


9

STATEMENT OF THE FACTS

I. The Project

The San Bernardino International Airport Authority, which owns and

operates the San Bernardino International Airport, and Eastgate Bldg 1, LLC, the

Project proponent, agreed in 2018 to develop the Eastgate Air Cargo Facility

within the airport boundaries to “satisfy an unmet need for large-scale air cargo

facilities in the San Bernardino area.” PER0044. The Project would develop a

package distribution center with an air cargo hub on approximately 100-acres on

the northern side of the airport, 150 feet from the nearest residences. PER0046;

PER0411. The proposed facilities would include a 658,500 square-foot

warehouse, an area for aircraft to taxi and park that would concurrently support 14

airplanes ranging from Boeing-737 to Boeing-767, 12 acres of ground support

equipment parking and operational support areas, two 25,000 square-foot

maintenance buildings, and more than 2,300 parking stalls. PER0046. The

facilities would operate seven days a week, adding 24 cargo aircraft takeoffs and

landings on opening day—which Respondents expect to be as early as December

2020—ramping up to 52 takeoffs and landings a day within five years. Decl. of

David Kessler, ECF No. 41-2 (Kessler Decl.) ¶ 7; Decl. of John Magness, ECF No.

42-2 (Magness Decl.) ¶ 3; PER0047. The projected average daily vehicle round

trips generated by the Project is about 3,500 on opening day, including at least 192


10

by heavy duty trucks, more than doubling within five years to over 7,500 round

trips, including at least 500 by trucks. See PER0134.

In May 8, 2020, the Airport Authority announced that Amazon will be the

company operating out of the Project.1 See PER0996.

II. Impacts on the Surrounding Communities and the Environment

The communities adjacent to the Project already rank in the top 5 percent in

California for environmental pollution. PER0404. The South Coast Air Basin, in

which the Project is sited, is already severely polluted by ozone and particulate

matter. See PER0026. Ambient air in the Project area contains among the highest

background levels in the South Coast Air Basin of diesel particulate matter, a toxic

air contaminant generated by truck and aircraft engines that cause increased cancer

risks, heart disease, and lung disease. PER0404. The EPA has designated the air

basin as in “extreme” nonattainment for ozone and “serious” nonattainment for

particulate matter 2.5 (PM2.5, or particulate matter less than or equal to 2.5

microns in diameter). PER0299; PER0026. Ozone is the main ingredient of smog

and formed from volatile organic compounds (VOC) and nitrogen oxide—

chemicals generated by cars, trucks, and airplanes—reacting in the presence of

sunlight, and can cause premature deaths and cause and exacerbate asthma attacks.

1 “Amazon is landing at the San Bernardino Airport, officials say,” San Bernardino Sun (May 8, 2020), https://www.sbsun.com/2020/05/08/amazon-is-landing-at-san-bernardino-airport-officials-say/.


11

See 40 C.F.R. § 81.305; 70 Fed. Reg. 25,162, 25,169 (May 12, 2005). PM2.5 can

include organic chemicals, dust, soot, and metals that come from cars, trucks, and

construction activities, and cause lung disease, heart disease, and asthma.

PER0384; PER0404.

The Project is sited close to sensitive receptors, including four elementary

schools and a high school nearby. PER0115. One elementary school, located less

than a mile from the airport’s runway, is directly beneath the flight paths of all

airport air traffic. Decl. of Martha Romero, ECF No. 30-2 at 472 (Romero Decl.) ¶

10. Local schools report high rates of asthma among their enrolled students. See

Romero Decl. ¶ 14. Furthermore, residents in the areas immediately adjacent to

the Project suffer from asthma at rates higher than 84 percent of California.

PER0404.

In addition, the Project is located just over a mile to the east of the San

Bernardino-Muscoy environmental justice community, which will be impacted by

pollution from the Project’s construction and operations. PER0404. The

California Legislature enacted Assembly Bill 617 to remedy the disproportionate

impact of air pollution in environmental justice communities, requiring local air

districts to help reduce air pollution and toxic air contaminants from commercial

and industrial sources, including by developing emissions reduction programs in

selected communities. Assemb. B. 617, 2017 Reg. Sess. (Cal. 2017). As a result


12

of the San Bernardino-Muscoy community’s disproportionate exposure to

pollution and their vulnerability, in 2018, the California Air Resources Board

selected the San Bernardino-Muscoy community specifically to reduce air

emissions in the community under Assembly Bill 617. PER0405. In accordance

with that bill, San Bernardino-Muscoy has finalized a community emissions

reduction plan that calls for reducing truck traffic through the community.

PER0405.

Asthma rates in the San Bernardino-Muscoy community are among the

highest 2 percent in California. PER0404. Exposure to air pollution can cause

asthma, and the existing prevalence of asthma in a community can make the

community more vulnerable to exposure to air pollution. PER0404. The

community’s 90,000 residents identify as 13 percent African American and 73

percent Hispanic. PER0404. Furthermore, nearly 20 percent of the population are

children under the age of 10, a group particularly sensitive to the health effects of

air pollution. PER0404. In addition, more than 95 percent of the community live

below the poverty level2 and more than 75 percent are unemployed, thus limiting

the community’s access to healthcare. PER0404-05.

2 Poverty level as referenced here is defined as twice the federal poverty

threshold. PER0405.


13

California has enacted laws and requirements for the protection of the

environment, specifically regarding greenhouse gas emissions levels. See

PER0609-10. These include, but are not limited to, the California Global Warming

Solutions Act of 2006, or Assembly Bill 32, which requires the California Air

Resources Board to adopt statewide rules and regulations that would achieve

greenhouse gas emissions equivalent to statewide levels in 1990 by 2020. Cal.

Health & Safety Code § 38550. In addition, Senate Bill 32, enacted in 2016, builds

on the Assembly Bill 32’s goal by requiring California to reduce statewide

greenhouse gas emissions to 40 percent below 1990 levels by 2030. Cal. Health &

Safety Code § 38566. Finally, Executive Order S-3-05 sets two statewide

greenhouse gas reduction targets: reducing emissions to 1990 levels by 2020, and

reducing emissions to 80 percent below 1990 levels by 2050. Cal. Exec. Order No.

S-3-05 (June 1, 2005).

III. Environmental Review

In 2018, the Airport Authority began an environmental review of the Project

under CEQA, California’s corollary to NEPA, publishing an Initial Study in July

2018 and a Draft Environmental Impact Report (Draft EIR) in August 2018.

PER0807. The Airport Authority published a Final Environmental Impact Report

(Final EIR) in October 2018, determining that the Project will have significant and

unavoidable air quality, climate, and noise impacts. PER0825-26; PER0788. The


14

Final EIR concluded that construction and operational air emissions would exceed

regional thresholds of significance even after implementing all mitigation

measures. PER0825-26.

On December 18, 2018, Eastgate Bldg 1, LLC, entered into a lease

agreement for the Project site with the Airport Authority. See PER0049; ECF No.

1-12 at 11. But, because the proposed construction at the Project site also requires

the FAA approval of an airport layout plan, and such a federal agency action

requires compliance with NEPA, the Airport Authority began a NEPA review of

the Project in early 2019 and published a Draft EA in July 2019. PER0612; 42

U.S.C. § 4332(2)(C); 49 U.S.C. §§ 40103(b), 44718, 47107(a)(16); FAA Orders

1050.1F & 5050.4B. Despite having concluded in its Final EIR less than a year

prior that the Project would cause significant and unavoidable environmental

impacts, the Airport Authority found no significant impacts in its Draft EA, and

therefore it did not prepare an EIS required by NEPA. PER0612-0787. The

Airport Authority performed some of its NEPA analysis just three months after

concluding its analysis under CEQA. Compare PER1006, -13 tbl. 4.2, -22, -29 tbl.

4.2 (header dates indicating calculations for NEPA analyses were performed on

January 15, 2019), with PER0788-793 (Final EIR Errata published in October

2018). But the Draft EA did not discuss the CEQA analysis.


15

More than 800 comments, including comments from California Attorney

General Xavier Becerra, were submitted to the Airport Authority identifying

deficiencies with the Draft EA. PER0002; PER0010; PER0403-11. Specifically,

the comments raised concerns that the EA does not consider or explain the

significant and unavoidable Project impacts what the CEQA review had found less

than a year prior to the NEPA review. PER0405-07. The comments also pointed

out inconsistencies and errors in the EA’s mobile source emissions modeling

analysis, which could have caused the EA to significantly underestimate the

Project’s mobile source emissions. PER0407-08. Furthermore, commenters

criticized the EA’s failure to demonstrate the Project’s compliance with

California’s greenhouse gas emissions standards. PER0609-10.

The FAA approved the Final EA without meaningfully addressing or

correcting any of these concerns. PER0412-16; PER0611. On December 20,

2019, and issued its Record of Decision and Finding of No Significant Impact

(FONSI) on December 23, 2019. PER0001-0029. The December 23, 2019 Record

of Decision and FONSI constitute the FAA Order that is the subject of this petition

for review. See ECF No. 1-5 (Case No. 20-70464). One week later, on December

30, the Airport Authority voted to approve the ground lease agreement between it

and Eastgate Bldg 1, LLC, for the Project site. ECF No. 1-12 at 3.


16

IV. Project Construction and Operations

On January 6, 2020, Eastgate Bldg 1, LLC, began construction at the Project

site, and has been conducting land clearing, demolition, excavation, embankment,

and grading. Kessler Decl. ¶ 7; see PER0131. Project construction is generating

and will continue to generate emissions of VOC, nitrogen oxides, and PM.

PER0147-50. Trucks hauling construction debris regularly traverse the Project site

and drive through the nearby communities. Romero Decl. ¶ 13. The Final EA’s

mitigation measures specify that when transporting material from the construction

off-site, all material should be covered to limit dust emissions. PER0154-55.

However, residents near the construction have observed truck trips transporting

material out of the construction site with uncovered loads. Romero Decl. ¶ 13.

Debris and dust from uncovered trucks are escaping into the adjacent

neighborhoods. Romero Decl. ¶ 13. Residents near the Project construction site

have stated that they experience noxious smells from the construction activities and

bad headaches when walking past the site. Romero Decl. ¶¶ 7, 12.

Respondents anticipate Project operations to begin in December 2020 or

January 2021. Kessler Decl. ¶ 7; Magness Decl. ¶ 3. If the construction isn’t

completed by then, the EA estimates that Project construction and operations,

including air cargo flights and almost 200 daily truck trips, will add 214.05 tons of

air pollution in its first year of operations. PER0149-50. The EA anticipates that


17

these emissions will exceed the de minimis emissions thresholds in the

nonattainment South Coast Air Basin set by the EPA under the Clean Air Act to

protect human health. See 42 U.S.C. § 7506(c)(1); 40 C.F.R. § 93.153(b);

PER0154-56. The EA further estimates that within five years, beginning in 2024,

Project operations will emit 355.56 tons of air pollution annually—or one ton of

pollution each day, due to additional daily air cargo flights and at least 500 truck

trips. PER0132; PER0134; PER0144.

The types of emissions that will occur during construction and operations are

harmful to human health. PER0384. Nitrogen oxide recombines with VOC to

form ground-level ozone, a gas that irritates and damages respiratory organs. 79

Fed. Reg. 52,526, 52,526 n.3 (Sept. 3, 2014); PER0404. Ozone exposure is

associated with increases in respiratory-related hospital admissions, respiratory

symptoms, and medication use by those who suffer from asthma. PER0404. PM

in diesel exhaust from car, truck, and airplane engines and from construction-

related activities is easily inhaled in the bronchial and alveolar regions of the lung,

children and the elderly are particularly vulnerable, and exposure is associated with

cardiovascular and respiratory hospitalizations, cancer, and early deaths.

PER0404.

Furthermore, the Project is anticipated to generate significant greenhouse

gas emissions, emitting 27,991 new metric tons of CO2 equivalent emissions in its


18

first year of operations, and 55,842 metric tons of such emissions in 2024.

PER0165.

V. Relevant Procedural History

Following the FAA’s issuance of its final Order on December 23, 2019,

Center for Community Action & Environmental Justice, Sierra Club, Teamsters

Local 1932, Martha Romero, and Shana Saters on January 27, 2020, filed a petition

for review in this Court pursuant to 49 U.S.C. § 46110(a). Center for Community

Action & Environmental Justice v. FAA, No. 20-70272 (9th Cir. filed Jan. 27,

2020), ECF No. 1. California filed its petition for review of the FAA Order on

February 20, 2020. ECF No. 1 (No. 20-70464). On March 2, 2020, California

moved this Court to consolidate the two petitions, as they challenge the same FAA

Order. ECF No. 22. On March 11, 2020, the Court granted California’s

unopposed motion to consolidate the two petitions. ECF No. 25. On April 23,

2020, this Court denied Petitioners’ motion for a stay pending judicial review.

ECF No. 48.

SUMMARY OF ARGUMENT

The FAA’s December 23, 2019 Order must be set aside as arbitrary and

capricious under NEPA and the Administrative Procedure Act for three reasons.

First, the FAA Order is based on a flawed environmental analysis that fails

to discuss or even acknowledge substantial questions before the agency that the


19

Project would have significant environmental impacts on air quality, climate, and

noise. These substantial questions are generated by the Project’s CEQA review, in

which the Airport Authority found significant and unavoidable impacts on those

environmental factors.

Second, the FAA Order is based on analysis that fails to discuss or reconcile

inconsistent and inaccurate data before the agency, thus potentially

underestimating Project mobile source emissions by 60 percent. The NEPA

analysis calculates mobile source emissions using truck trip estimates that are

substantially lower than the estimates used in the CEQA analysis, and does not

explain why the lower estimates are used. In addition, the NEPA analysis used

erroneous modeling inputs—half of the total truck trips—that lead to a significant

underestimate of mobile source emissions.

Third, the FAA Order is based on an analysis that failed to evaluate and

reconcile the Project’s greenhouse gas emissions with California’s binding

greenhouse gas emissions standards. NEPA and FAA’s own procedures require

the evaluation of whether a Project would “threaten the violation” of state law or

requirement implemented to protect the environment.

Therefore, the Court should set aside the FAA Order and require

Respondents to perform an environmental analysis and prepare an EIS that

thoroughly analyzes the Project’s environmental impacts as required by NEPA.


20

STANDARD OF REVIEW

This Court reviews the FAA’s action for compliance with NEPA and the

Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). Native Ecosystems

Council v. Tidwell, 599 F.3d 926, 932 (9th Cir. 2010). The Court must ensure that

the agency has taken a “hard look,” pursuant to NEPA, at the environmental

consequences of the proposed action. Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998).

Under the APA, a court must hold unlawful and set aside agency action,

findings, and conclusions found to be arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law. See Bennett v. Spear, 520 U.S. 154, 174

(1997). The agency has an obligation to state a “rational connection” between the

facts found and the decision made. Native Ecosystems Council, 599 F.3d at 932.

An agency action is arbitrary and capricious if the agency has “entirely failed to

consider an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.”

Motor Vehicle Mfr. Ass’n v. State Farm Mutual, 463 U.S. 29, 42 (1983). A final

agency action is arbitrary and capricious, and must be set aside, if it does not

“consider[] the relevant factors” and “articulate a rational connection between the

facts found and the choice made.” See Or. Nat. Res. Council Fund v. Goodman,


21

505 F.3d 884, 889 (9th Cir. 2007); Pac. Coast Fed’n of Fishermen’s Ass’ns v.

Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001). The reviewing

court may not supply a reasoned basis for the agency’s action that the agency itself

has not given. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43.

ARGUMENT

The FAA Order violates NEPA and therefore must be set aside as “arbitrary,

capricious, . . . or not otherwise in accordance with law.” 5 U.S.C. § 706(2)(A);

Spear, 520 U.S. at 174. NEPA is a “basic national charter for the protection of the

environment.” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety

Admin., 538 F.3d 1172, 1185 (9th Cir. 2008) (quoting 40 C.F.R. § 1500.1(a)).

NEPA imposes procedural requirements that are intended to enforce NEPA’s

mandate that agencies will take a “hard look” at their actions’ environmental

consequences—by carefully considering detailed information on significant

environmental impacts and ensuring that the relevant information will be made

available to the public. Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291,

1300 (9th Cir. 2003); see N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp.,

545 F.3d 1147, 1153 (9th Cir. 2008). Congress enacted NEPA to protect the

public interest by requiring “careful consideration of environmental impacts before

major federal projects may go forward.” S. Fork Band Council of W. Shoshone of

Nev. v. U.S. Dep’t of the Interior, 588 F.3d 718, 728 (9th Cir. 2009) (emphasis


22

added). This ensures that “important effects will not be overlooked or

underestimated only to be discovered after resources have been committed or the

die otherwise cast.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

349 (1989).

I. The Order Must Be Set Aside Because the FAA Failed to Prepare an EIS as Required by NEPA and Failed to Articulate Why Findings of Significant Impact in the CEQA Analysis Did Not Trigger the Preparation of an EIS Under NEPA.

NEPA requires federal agencies to analyze in an EIS the potential

environmental impacts of any major federal action “significantly affecting the

quality of the human environment.” 42 U.S.C. § 4332(2)(C). The threshold for

determining whether an EIS is required is a low one—the agency must prepare an

EIS whenever “there are substantial questions about whether a project may cause

significant degradation of the human environment.” Native Ecosystems Council,

428 F.3d at 1239.

An EIS’s primary purpose is to be an “action-forcing tool” to ensure federal

government programs and actions meet NEPA’s goals and policies. 40 C.F.R.

§ 1502.1. To determine whether an EIS is necessary for a project, the agency may

prepare an EA, which should provide sufficient evidence and analysis to justify the

agency’s determination whether to prepare an EIS or make a finding of no

significant impact. 40 C.F.R. §§ 1501.4, 1508.9; see also Bob Marshall All. v.

Hodel, 852 F.2d 1223, 1225 (9th Cir. 1988).


23

Indeed, giving detailed consideration of environmental impacts in an EIS

where substantial questions exist about whether a project may harm human and

environmental health is the exact type of procedural safeguard mandated by NEPA

to promote informed decision-making and public participation. See Ctr. for

Biological Diversity, 538 F.3d at 1194; N. Idaho Cmty. Action Network, 545 F.3d

at 1153.

In addition to fulfilling the agencies’ obligation under NEPA to fully

evaluate Project impacts, preparation of an EIS triggers a public participation

process in which the community can help determine the scope of issues that should

be addressed. See 40 C.F.R. § 1501.7. Furthermore, the EIS drafting process

requires agencies to request and address additional comments from the public. See

40 C.F.R. § 1503.1(a)(4). Thus, an EIS process would have enabled the FAA and

the Airport Authority to solicit input from the community and tailor improvements

to the Project based on community needs. In failing to prepare an EIS, the FAA

and the Airport Authority deprived the community of a public participation process

regarding a Project which disproportionately harms the community.

During the Airport Authority’s CEQA review in 2018, it prepared an EIR,

CEQA’s analog to the EIS, based on its finding that the Project may have

significant environmental impacts. PER0788; PER0825-26. Environmental

review under CEQA is akin to the process required by NEPA. Similar to NEPA,


24

the “basic purposes of CEQA [is] to [i]nform governmental decision makers and

the public about the potential, significant environmental effects of proposed

activities.” Cal. Code Regs., tit. 14, § 15002(a)(1) (CEQA Guidelines). An EA

under NEPA is analogous to an initial study under CEQA. See id. § 15063.

Likewise, a FONSI under NEPA is analogous to a negative declaration under

CEQA. See id. § 15070. Preparing a negative declaration is appropriate under

CEQA only if, based on the whole record before the agency, there is no substantial

evidence the project may have significant environmental effects. See id. §

15070(a). Similarly, issuing a FONSI is appropriate under NEPA only if there is

no substantial question on whether the project may have significant environmental

effects. California v. U.S. Dep’t of Transp., 260 F. Supp. 2d 969, 972 (N.D. Cal.

2003).

The EIR prepared by the Airport Authority concluded that the Project would

have significant and unavoidable air quality, climate change, and noise impacts.

PER0825-26. For example, with respect to air quality impacts, the Final EIR

found that the construction of the Project would result in nitrogen oxides and PM

emissions that exceed applicable local regional air quality thresholds based on

additional mitigation, and that even after implementing recommended mitigation

measures, the Project’s emissions from operations would exceed regional

thresholds of significance for VOC, nitrogen oxides, carbon monoxide, and PM.


25

PER0825-26. “No feasible mitigation measures have been identified that would

reduce these emission to levels that are less than significant.” PER0825-26;

PER0890, -901, -903, 0905, -914. Similarly for greenhouse gas impacts, the Final

EIR determined that emissions from Project operations would exceed local air

district thresholds, and that no feasible mitigation measures could reduce

greenhouse gas emissions to levels that are less than significant. PER0825.

Moreover, Project operations “would create a significant cumulative impact to

global climate change.” PER0825.

These findings—in an environmental review process closely approximating

NEPA—raises “substantial questions” in the NEPA review about whether this

Project may cause significant environmental effects, and thus triggers the FAA’s

NEPA obligation to prepare an EIS. See Native Ecosystems Council, 428 F.3d at

1239.

Perplexingly, the EA prepared by the Airport Authority and approved by the

FAA failed to discuss the CEQA process or the Airport Authority’s own

conclusion—just one year earlier—that the Project would have significant,

unavoidable impacts on air quality, climate change, and noise. Without even

mentioning the EIR, the EA disregarded the Airport Authority’s finding of

significant environmental impacts. A final agency action is arbitrary and

capricious, and must be set aside, if it does not “consider[] the relevant factors and


26

articulate [] a rational connection between the facts found and the choice made.”

Pac. Coast Fed’n of Fishermen’s Ass’ns, 265 F.3d at 1034; Native Ecosystems

Council, 599 F.3d at 932. Respondents’ decision to approve the Project without an

EIS was arbitrary and capricious because they inexplicably concluded the Project

would not have significant environmental impacts, after coming to the opposite

conclusion in an analogous environmental review of the exact same Project.

Given the opportunity to publicly address questions regarding environmental

impacts found through the CEQA analysis, Respondents offered only conclusory

statements regarding the significance of those impacts in the Final EA. In the EA’s

response to California’s comment letter, for example, Respondents gave a short,

general statement that CEQA guidelines, methodologies, and significance

thresholds are different from those used by the FAA, that the “EIR is unrelated to

the federal EA.” PER0413. They provided no other analysis or explanation for

why the impacts determined to be significant and unavoidable under CEQA were

not significant under NEPA. This conclusory explanation is insufficient to provide

the public with the level of evidence and analysis required under NEPA. See Bob

Marshall All., 852 F.2d at 1225; Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d at 1212 (holding agency “must supply a convincing

statement of reasons to explain a Project’s impacts are insignificant” where it

decides not to prepare an EIS); Ocean Advocates v. U.S. Army Corps. of Eng’rs,


27

402 F.3d 846, 864 (9th Cir. 2005) (holding agency “cannot avoid preparing an EIS

by making conclusory assertions that an activity will have only an insignificant

impact on the environment”).

By “entirely failing to consider an aspect of the problem,” the FAA Order is

arbitrary and capricious, and must be set aside. Motor Vehicle Mfr. Ass’n, 463

U.S. at 42.

II. The FAA Order Must Be Set Aside Because the NEPA Analysis Failed to Discuss or Reconcile Factual Inconsistencies Before the Agencies, Insufficiently Justified Its Determinations, and Potentially Underestimated Project Mobile Source Emissions by 60 Percent.

Federal agencies may prepare an EA first in order to determine whether a

project may have “a significant effect upon the human environment.” 40 C.F.R.

§ 1508.9; Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172,

1178 (9th Cir. 1982). The EA must comply with requirements set forth in NEPA

and its implementing regulations, and must foster both informed decision-making

and informed public participation. See Ctr. for Biological Diversity, 538 F.3d at

1194; see, e.g., 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.27. The Council on

Environmental Quality (CEQ) regulations specify minimum requirements for the

agency’s analysis of a proposed action, mandating that agencies evaluate the

“context” and the “intensity” of the impacts when determining the impacts’


28

“significance.” 40 C.F.R. § 1508.27. Marsh v. Or. Nat. Res. Council, 490 U.S.

360, 372 (1989).

If the agency fails to properly consider any one of the ten factors relating to

the significance of a project’s impacts on the environment, or “[w]hen one factor

alone raises ‘substantial questions’ about whether an agency action will have a

significant environmental effect,” the decision should be set aside and the agency

should prepare an EIS. Bark v. U.S. Forest Serv., 958 F.3d 865, 871 (9th Cir.

2020); Marsh, 490 U.S. at 372 (1989); see 40 C.F.R. §§ 1508.27(b)(1)-(10).

A. The FAA Failed to Discuss or Reconcile Inconsistent and Inaccurate Truck Trip Estimates Used to Model Mobile Source Emissions and Failed to Justify Its Use of Those Estimates.

The FAA Order is based on an EA that fails to explain inconsistent facts

before the agency and contains analysis based on inaccurate data, in violation of

NEPA. The EA underestimates mobile source emissions generated by the Project

in at least two ways. As a result, it underestimates the Project’s air quality and

climate change impacts. First, without explanation, the EA uses an estimate for

truck trips that is 23 percent lower than the estimate used for the Project’s CEQA

analysis. PER0407. The EA estimates that the Project would generate 192 truck

trips in its initial year of operation and 500 truck trips in full operation. PER0133-

34. However, according to the EIR from the CEQA process, the Project will

generate significantly more truck trips—248 truck trips in the initial year of


29

operation and 652 truck trips in full operation. PER0795; PER0928. The EA fails

to offer any explanation for the discrepancies in estimates between the EIR and the

EA. The record shows that emissions calculations for the EA were performed just

three months after the EIR was developed. Compare PER1006, -13 tbl. 4.2, -22, -

29 tbl. 4.2 (header dates indicating calculations for NEPA analyses were performed

on January 15, 2019), with PER0788-793 (Final EIR Errata published in October

2018).

Respondents’ adoption of a new calculation that generated lower trip

estimates just three months after the Airport Authority itself concluded its CEQA

analysis evidences an inconsistent and arbitrary review process. The failure to

provide any explanation or basis for the reduced estimates, which California and

others raised in public comments, violates NEPA’s requirement that agencies

provide sufficient evidence and analysis to justify their final determinations. 40

C.F.R. §§ 1501.4, 1508.9; see also Bob Marshall All., 852 F.2d at 1225.

Furthermore, if the EIR’s higher estimates are accurate, the EA significantly

underestimates the emissions generated by the Project.

In addition, the EA appears to model only half of the mobile source

emissions because it counts each truck trip as a one-way trip, not a roundtrip. The

EA estimated emissions using CalEEMod, a program that models emissions of

one-way trips. PER0408. The truck trip estimates in the EIR, however, were


30

roundtrips. PER0795. If the reduced truck trips considered in the EA were also

roundtrips, then the number of trips should be doubled before using CalEEMod to

estimate emissions. There is no evidence the EA did this. PER1013 tbl. 4.2;

PER1029 tbl. 4.2. The record shows that the EA’s emissions calculations were

based on the CalEEMod’s modeling inputs of only half of the total number of truck

trips. Compare PER1013 tbl. 4.2; PER1029 tbl. 4.2 (CalEEMod worksheets

indicating single-trip inputs of 192 and 500), with PER0795 (Final EIR Errata

indicating roundtrip inputs used). When California and others raised this oversight

in their comments, Respondents indicated that “further analysis was completed” to

calculate the total round trip truck traffic emissions, but pointed to no additional

analysis. PER0414.

Because the FAA Order has “entirely failed to consider an important aspect

of the problem” or articulate a “rational connection between the facts found and the

choice made,” it is arbitrary and capricious and must be set aside. See Motor

Vehicle Mfr. Ass’n, 463 U.S. at 42; Pac. Coast Fed’n of Fishermen’s Ass’ns, 265

F.3d at 1034.


31

B. The FAA’s Errors in Modeling Mobile Source Emissions Means that It Potentially Underestimated Mobile Source Emissions by 60 Percent, Rendering Flawed the EA’s Determination of “Significance.”

The CEQ regulations specify that an action’s “significance” depends on

“both context and intensity.” 40 C.F.R. § 1508.27; see also id. § 1508.27(b)

(setting forth ten factors to “consider[] in evaluating intensity”); Marsh, 490 U.S.

at 372. “Context” requires the agency to analyze “the significance of an action” in

several contexts, including “society as a whole (human, national), the affected

region, the affected interests, and the locality.” 40 C.F.R. § 1508.27(a).

“Intensity” is simply the “the severity of impact.” 40 C.F.R. § 1508.27(b).

Because the EA underestimated the truck emissions in two ways, it failed to

account for a large amount of potential emissions in its air quality analysis,

underestimating the Project’s “intensity,” or “severity of impact.” For the initial

year of operation, if the EA mistakenly based its emissions estimates on the lower

estimate for the truck trips (192 truck trips) when it should have based estimates on

the higher trip number projected by the EIR (248 truck trips), and if it modeled the

lower single trip number in CalEEMod (192 trips) when it should have modeled

round trips by doubling the higher EIR trip number (496 trips), then the EA would

have modeled only 39 percent of the actual number of truck trips. Similarly, for

full operation, if the EA based emissions estimates on the lower truck trip number

(500 trips) rather than the trip number predicted by the EIR at full operation (652


32

trips), and if the EA mistakenly modeled the lower trip number as single trips (500

trips) rather than doubling the higher EIR number to project emissions for round

trips (1,307 trips), the EA would have modeled only 38 percent of the actual truck

trips.

Together, these two errors—using a lower estimate of truck trips without

any explanation, and modeling emissions for only single trips—potentially

underestimated the Project’s mobile source emissions by more than 60 percent,

rendering flawed any determination of significant impacts based on those

emissions estimates, such as air quality and climate change impacts. By

underestimating the Project’s mobile source emissions, the FAA failed to properly

consider “the severity of impact” from the Project, thus failing to adequately

analyze the Project’s “intensity.” See 40 C.F.R. § 1508.27(b).

These mobile source emissions must also be considered in the “context” of

this Project. See 40 C.F.R. § 1508.27(a). The Project is located in the South Coast

Air Basin, which “continues to experience some of the worst air quality in the

nation” and suffers from some of the highest levels of smog-forming ozone

pollution in the country. See 40 C.F.R. § 81.305. In addition, the adjacent

communities already suffer from high rates of pollution-related illnesses, including

asthma, which could be caused and aggravated by such mobile source emissions.

PER0404. In this context, the intensity of Project impacts is heightened. Because


33

the FAA underestimated mobile source emissions, it failed to adequately consider

the impact of additional emissions in this context. See 40 C.F.R. § 1508.27(b)(2)

(“The degree to which the proposed action affects public health or safety.”) &

(b)(5) (“The degree to which the possible effects on the human environment are

highly uncertain or involve unique or unknown risks.”).

The FAA Order must be set aside because the agency failed to adequately

analyze multiple factors relating to the context and intensity—the “significance”—

of the Project. See Bark, 958 F.3d at 871; Marsh, 490 U.S. at 372.

III. The FAA Order Must Be Set Aside Because It Fails to Consider California Greenhouse Gas Emissions Requirements Imposed to Protect the Environment.

During the EA review process, the agency has the affirmative duty to

consider whether the action “threatens a violation” of federal, state, or local law or

requirement “imposed for the protection of the environment. 40 C.F.R.

§ 1508.27(b)(10). This consideration contributes to the agency’s determination of

whether the agency action may have significant impacts on the environment. Id.

§ 1508.27. The Ninth Circuit has held unreasonable an agency’s failure to

consider these environmental laws in an EA and has required the agency to prepare

an EIS to redress this type of oversight. Sierra Club v. U.S. Forest Serv., 843 F.2d

1190, 1193, 1195 (9th Cir. 1988) (holding that “CEQ regulations, 40 C.F.R.

1508.27(b)(10), require the Forest Service to consider state requirements imposed


34

for environmental protection to determine whether the action will have a

significant impact on the human environment” and that “an EIS should have been

prepared” because the EA failed to mention the state requirements). Furthermore,

the FAA’s own NEPA guidance requires the agency to identify and address any

“state and/or local air quality requirements that are applicable to a project.” FAA

Order 1015.1F § 1.1.2.

Recognizing the “serious threat” posed by greenhouse gases to “the

economic well-being, public health, natural resources, and the environment of

California,” California enacted various laws setting mandatory greenhouse gas

standards. See Cal. Health & Safety Code § 38501. These standards require the

California Air Resources Board to “reduce state emissions of greenhouse gases to

at least the 1990 emissions level by 2020,” “ensure that statewide greenhouse gas

emissions are reduced to at least 40 percent below the statewide greenhouse gas

emissions limit” by the end of 2030, and reduce statewide greenhouse gas levels to

80 percent below 1990 levels by 2050. See id. §§ 38550, 39561, 38566; Cal. Exec.

Order No. S-3-05.

However, nowhere does the FAA Order or the EA on which it is based

consider the Project’s impacts on the attainment of California’s greenhouse gases

standards. Given that the Project’s CEQA analysis found significant and

unavoidable impacts to climate change, and the EA estimated the Project would


35

generate 27,991 new metric tons of CO2 equivalent within the first year of Project

operations, and 55,842 metric tons per year at full operation, Respondents should

have evaluated the Project’s impacts against these binding California greenhouse

gas emission requirements. PER0165. But the EA did not mention California’s

requirements, despite public comments urging Respondents to do so. PER0609-

10. In response to these comments, the FAA simply asserted that “FAA’s Orders

carry no requirement or obligation . . . to reconcile the [greenhouse gas] GHG

emissions generated by the Proposed Project with the State of California GHG

emissions goals,” then concluded without further explanation or analysis that the

Project will not result in significant greenhouse gas emissions. PER0611. NEPA

requires more than these conclusory statements. See Bob Marshall All., 852 F.2d

at 1225; Blue Mountains Biodiversity Project, 161 F.3d at 1212; Ocean Advocates,

402 F.3d at 864.

The Respondents’ failure to evaluate the Project’s conformity with

California’s greenhouse gases standards violates their obligation under NEPA to

consider whether the Project “threatens a violation” of state requirements. 40

C.F.R. § 1508.27(b)(10). Omitting such an evaluation renders the FAA Order

approving the Project arbitrary and capricious, because the agency has “entirely

failed to consider an important aspect of the problem.” Motor Vehicle Mfr. Ass’n,

463 U.S. at 42.


36

CONCLUSION AND REQUESTED RELIEF

For these reasons, California respectfully requests this Court to set aside

FAA’s December 23, 2019 Order as unlawful, require the FAA to conduct a

thorough environmental review by producing a detailed EIS, vacate the ground

lease, and enjoin further construction and operations on the Project until

Respondents comply with NEPA.

Respectfully submitted this 30th day of June 2020.

XAVIER BECERRA Attorney General of California EDWARD H. OCHOA SENIOR ASSISTANT ATTORNEY GENERAL CHRISTIE VOSBURG Supervising Deputy Attorney General s/ Yuting Chi YUTING YVONNE CHI Deputy Attorney General Attorneys for State of California


37

CERTIFICATE OF COMPLIANCE I hereby certify that PETITIONER STATE OF CALIFORNIA’S

OPENING BRIEF contains 7864 words and is 36 pages, excluding the items

exempted by Federal Rule of Appellate Procedure 32(f), and thus complies with

this Court’s type-volume and length requirements under Appellate Rules 28 and

32(g), and Circuit Rule 28.1-1(b). I further certify that this brief is proportionately

spaced and has a typeface of 14 points, and thus it complies with the typeface and

type-style requirements of Appellate Rules 32(a)(5) and (6).

Executed on June 30, 2020, in Oakland, California.

s/ Yuting Chi YUTING YVONNE CHI Attorney for Petitioner


38

STATEMENT OF RELATED CASES

Pursuant to Rule 28-2.6, California states that it is unaware of any related

case.




39

CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2020, I electronically filed the foregoing

PETITIONER STATE OF CALIFORNIA’S OPENING BRIEF with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by using

the appellate CM/ECF system. Participants in the case who are registered

CM/ECF users will be served by the appellate CM/ECF system.




in the united states court of appeals for the ninth...

Documents