June 2010 AIRPORT COOPEratiVE RESEARCH PROGRAM Sponsored by the Federal Aviation Administration Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 9 CASE STUDIES ON COMMUNITY CHALLENGES TO AIRPORT DEVELOPMENT This report was prepared under ACRP Project 11-01, “Legal Aspects of Airport Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. The report was prepared by Jaye Pershing Johnson, J.D. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Background There are over 4,000 airports in the country and most of been, for example, challenges to the expansion at Chica- these airports are owned by governments. A 2003 sur- go’s O’Hare Airport and to California’s Burbank/Glen- vey conducted by Airports Council International–North dale/Pasadena Airport. America concluded that city ownership accounts for Challenges may use various legal theories to modi- 38 percent, followed by regional airports at 25 percent, fy or, in some cases, to challenge airport development. single county at 17 percent, and multi-jurisdictional at Some of the theories that have been used are predicated 9 percent. Primary legal services to these airports are, on environmental requirements: the Environmental Im- in most cases, provided by municipal, county, and state pact Statement (EIS) did not fully address the impact of attorneys. the Endangered Species Act, or the EIS failed to properly Reports and summaries produced by the Airport Con- address the requirements of the National Environmental tinuing Legal Studies Project and published as ACRP Policy Act of 1969, the Historic Preservation Act [4(f)], Legal Research Digests are developed to assist these at- the Clean Air Act, and the Clean Water Act. Other theo- torneys seeking to deal with the myriad of legal problems ries have included challenges to the funding of the airport encountered during airport development and operations. expansion using Passenger Facilities Charges. Challeng- Such substantive areas as eminent domain, environmen- ers have also made use of the imposition of zoning laws tal concerns, leasing, contracting, security, insurance, on airport property located in multiple jurisdictions. civil rights, and tort liability present cutting-edge legal This digest summarizes judicial decisions and explains issues where research is useful and indeed needed. Air- the bases of the challenges, the defense to the challenges, port legal research, when conducted through the TRB’s and the outcome of the case. This collection is intended legal studies process, either collects primary data that to convey the strategies the FAA and airport operators usually are not available elsewhere or performs analysis rely upon to address community challenges and identify of existing literature. which strategies have succeeded, which have failed, and the reasons for both. Applications In addition to the results of a comprehensive review Airports are under pressure to accommodate increas- of court cases involving such challenges, and equally ing demand for airport facilities. Indeed, some particu- important, this digest includes a summary of responses larly congested airports are considering methods for from airport proprietors to a survey regarding litigation managing aircraft demand for their runways or facing strategies. It appears that a major component of such a shift in their air traffic to less congested regional air- strategies is directed toward litigation avoidance. ports. Various measures can be used to accommodate the This digest should be useful to airport attorneys, en- demand for limited airport resources, including airport vironmental specialists, managers, planners, administra- expansion and development. Recent expansion activi- tors, real estate specialists, right-of-way specialists, zon- ties at airports have resulted in challenges. There have ing experts, and project development specialists. TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES CONTENTS I. Introduction, 3 A. Scope, Purpose, and Need, 3 B. Summary and Comment–Strategies and Outcomes, 3 II. Environmental Law Challenges, 4 A. National Environmental Policy Act of 1969, 4 B. Standard of Review Under NEPA—“Arbitrary or Capricious,” 8 C. Challenges to FAA Determination to Issue a FONSI, 9 D. Challenges to Whether FAA Adequately Considered Alternatives Under NEPA, 10 E. Challenges to Whether FAA Adequately Considered Cumulative Effects Under NEPA, 11 F. Challenges to Whether FAA Properly Considered Mitigation Under NEPA, 13 G. Challenges to Whether FAA Has Properly Supplemented an EIS Under NEPA, 14 H. Litigation Brought Under State Environmental Policy Acts, 14 I. Litigation Brought Under the Endangered Species Act, 16 J. National Historic Preservation Act, 17 K. Department of Transportation Act, Section 4(f), 19 L. Clean Air Act, 21 M. Clean Water Act, 23 III. Constitutional Law Challenges, 25 A. Preemption, 26 B. Free Exercise of Religion, 31 C. Due Process, 33 D. Lack of Representation, 34 IV. State Law Issues, 34 A. State Law Preemption Issues, 34 V. Jurisdictional Issues, 37 A. Subject Matter Jurisdiction, 37 B. Standing, 38 C. Other Jurisdiction Issues–Timeliness and Mootness, 40 VI. Challenges to Passenger Facility Charges, 42 A. Challenge to Passenger Facility Charge Determination Remanded to FAA for Further Consideration, 42 B. Challenge to Passenger Facility Charge Denied, 42 VII. Other Statutory Challenges, 43 A. Religious Freedom Restoration Act, 43 VIII. Conclusion, 43 Appendix A—Table of Cases, Laws, and Rules, 45 Appendix B—Questionnaire, 52 Appendix C—Questionnaire Recipients and Respondents, 54 3 CASE STUDIES ON COMMUNITY CHALLENGES TO AIRPORT DEVELOPMENT By Jaye Pershing Johnson, J.D. I. INTRODUCTION tionnaire was intended to elicit specific feedback about litigation strategies used in the face of community chal- lenges to airport development. Twenty-nine responses A. Scope, Purpose, and Need were received. It is interesting to note that 19, or more Development activities at airports around the United than half of the questionnaire responses, indicated no States have resulted in a number of challenges against community challenges to airport improvements whatso- the Federal Aviation Administration (FAA) and airport ever. Two other respondents reported projects in devel- proprietors from municipalities and community groups opment, but no litigation as of the date of response. One seeking to modify or prevent airport expansion and de- respondent reported that the litigation that followed an velopment. Many of these challenges are predicated on airport improvement project involved a dispute as to a environmental issues, either through the procedural contract award, a topic which is not covered in the scope requirements of the National Environmental Policy Act of this digest. Only seven respondents reported commu- of 19691 (NEPA) and state “mini-NEPA” laws2 or di- nity challenges to airport development or operations. rectly under “special purpose laws” such as the Endan- Discussions of many of these responses are incorporated gered Species Act of 1973 (ESA);3 the National Historic in this digest. The list of questionnaire recipients and Preservation Act of 1966 (NHPA);4 Airport and Airway respondents appears in Appendix B. Improvement Act of 1982 (AAIA);5 park, natural re- source area, and historic site protection in the Depart- B. Summary and Comment—Strategies and ment of Transportation Act (Transportation Act), Sec- Outcomes tion 4(f);6 the Clean Air Act (CAA);7 and the Clean 8 Water Act (CWA). Other challenges include state and 1. Litigation Avoidance federal constitutional and other statutory challenges While the case law regarding community challenges and local land use litigation. This digest addresses both to airport development and operations is fairly exten- federal and state cases brought by communities and sive, the survey results indicate that, for the most part, nonprofit organizations in opposition to airport expan- airport proprietors have managed to avoid such litiga- sion or to development or operations at airports. The tion. Two proprietors of large airport properties, Metro- digest does not address challenges to the exercise of politan Washington Airports Authority (MWA) and San eminent domain that have been brought by individual Francisco International Airport, reported that their property owners against airport proprietors seeking to proactive approach to working with stakeholders has expand their boundaries through such a taking. The been the key to avoiding community challenges. The digest summarizes certain of these judicial decisions MWA is an independent body created by the Common- and explains the basis of the challenge, the defense to wealth of Virginia and the District of Columbia. It op- that challenge, and the outcome of the case. This collec- erates and maintains Ronald Reagan Washington Na- tion is intended to convey the strategies used by the tional Airport and Washington Dulles International FAA and airport proprietors to address community Airport. MWA is a public body, corporate and politic, challenges and identify which strategies have suc- and is independent of all other bodies. It is not an ceeded, which have failed, and the reasons. agency of the Commonwealth of Virginia or the District A questionnaire (a copy of which appears in Appen- of Columbia, nor is it a federal agency. dix A) was circulated among airport proprietors in con- MWA began its second