FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`CENTER FOR COMMUNITY ACTION
`AND ENVIRONMENTAL JUSTICE;
`SIERRA CLUB; TEAMSTERS LOCAL
`1932; SHANA SATERS; MARTHA
`ROMERO,
`
`No. 20-70272
`
`
`
`
`Petitioners,
`
`
`
`v.
`
`
`FEDERAL AVIATION
`ADMINISTRATION; STEPHEN M.
`DICKSON, in his official capacity as
`Administrator of the Federal
`Aviation Administration,
`Respondents,
`
`
`EASTGATE BLDG 1, LLC; SAN
`BERNARDINO INTERNATIONAL
`AIRPORT AUTHORITY,
`
`
`
`Intervenors.
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`CENTER FOR COMMUNITY ACTION
`AND ENVIRONMENTAL JUSTICE;
`SIERRA CLUB; TEAMSTERS LOCAL
`1932; SHANA SATERS; MARTHA
`ROMERO,
`
`No. 20-70272
`
`
`
`
`Petitioners,
`
`
`
`v.
`
`
`FEDERAL AVIATION
`ADMINISTRATION; STEPHEN M.
`DICKSON, in his official capacity as
`Administrator of the Federal
`Aviation Administration,
`Respondents,
`
`
`EASTGATE BLDG 1, LLC; SAN
`BERNARDINO INTERNATIONAL
`AIRPORT AUTHORITY,
`
`
`
`Intervenors.
`
`
`
`
`
`2
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`STATE OF CALIFORNIA, by and
`through Rob Bonta,* in his official
`capacity as Attorney General,
`Petitioner,
`
` No. 20-70464
`
`OPINION
`
`
`
`
`v.
`
`
`FEDERAL AVIATION
`ADMINISTRATION; STEPHEN M.
`DICKSON, in his official capacity as
`Administrator of the Federal
`Aviation Administration; SAN
`BERNARDINO INTERNATIONAL
`AIRPORT AUTHORITY,
`
`Respondents.
`
`On Petition for Review of an Order of the
`Federal Aviation Administration
`
`Argued and Submitted February 1, 2021
`San Francisco, California
`
`Filed November 18, 2021
`
`Before: Eugene E. Siler,** Johnnie B. Rawlinson, and
`Patrick J. Bumatay, Circuit Judges.
`
`
`* Under Fed. R. App. P 43(c)(2), Rob Bonta has been substituted for
`his predecessor, Xavier Becerra, as Attorney General of the State of
`California.
`
`** The Honorable Eugene E. Siler, United States Circuit Judge for
`the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
`
`
`
`
`
`
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`3
`
`Opinion by Judge Siler;
`Concurrence by Judge Bumatay;
`Dissent by Judge Rawlinson
`
`
`SUMMARY**
`
`Federal Aviation Administration / Environmental Law
`
`The panel denied a petition for review challenging the
`Federal Aviation Administration (“FAA”)’s Record of
`Decision, which found no significant environmental impact
`stemming from the construction and operation of an Amazon
`air cargo facility at the San Bernardino International Airport
`(the “Project”).
`
`To comply with their duties under the National
`Environmental Policy Act (NEPA), the FAA issued an
`Environmental Assessment
`(EA)
`that evaluated
`the
`environmental effects of the Project. In evaluating the
`environmental consequences of the Project, the FAA
`generally utilized two “study areas” – the General Study
`Area and the Detailed Study Area. Petitioners are the Center
`for Community Action and Environmental Justice and others
`(collectively “CCA”), and the State of California.
`
`In attacking the parameters of the study areas, the CCA
`asserted that the FAA did not conform its study areas to the
`FAA’s Order 1050.1F Desk Reference. The panel held that
`the FAA’s nonadherence to the Desk Reference could not
`alone serve as the basis for holding that the FAA did not take
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`4
`
` a
`
` “hard look” at the environmental consequences of the
`Project. Instead, the CCA must show that the FAA’s
`nonadherence to the Desk Reference had some sort of EA
`significance aside from simply failing to follow certain Desk
`Reference instructions. The panel held that the CCA had not
`done so here.
`
`CCA next asserted that the FAA failed in its obligation
`to sufficiently consider the cumulative impacts of the
`Project. CCA first argued that the FAA only considered
`past, present, and reasonably foreseeable projects within the
`General Study Area and should have expanded
`its
`assessment to include an additional 80-plus projects. The
`panel held that the record showed that the FAA did consider
`the fact that the 80-plus projects would result in massive
`average daily trips in the first year of Project operations. The
`fact that CCA could not identify any specific cumulative
`impacts that the FAA failed to consider suggested that there
`were none. CCA additionally argued that the EA did not
`disclose specific, quantifiable data about the cumulative
`effects of related projects, and it did not explain why
`objective data about the projects could not be provided. The
`panel held that CCA’s belief that the FAA must provide
`quantifiable data was based on a misreading of this court’s
`precedent. The panel concluded that there was no reason to
`find that the FAA conducted a deficient cumulative impact
`analysis.
`
`California chiefly argued that the FAA needed to create
`an environmental
`impact statement (EIS) because a
`California Environmental Impact Report prepared under the
`California Environmental Quality Act (CEQA) found that
`the proposed Project could result in significant impacts on
`air quality, greenhouse gas, and noise. First, California
`argued the FAA should have refuted the CEQA findings
`
`
`
`5
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`
`
`regarding air quality impacts. The thresholds discussed in
`the CEQA analysis that California pointed to are those
`established by the South Coast Air Quality Management
`District (SCAQMD). The panel held by the SCAQMD’s
`own assessment, the Project will comply with federal and
`state air quality standards. Second, California argued that
`the FAA should have refuted the CEQA findings regarding
`greenhouse gas impacts. The panel held that California did
`not refute the EA’s rationale for why it found no significant
`impact of the Project’s greenhouse gas emissions on the
`environment, and did not articulate what environmental
`impact may result from the Project’s emissions standards
`exceeding the SCAQMD threshold. The panel also rejected
`California’s noise concerns. The panel concluded that
`California failed to raise a substantial question as to whether
`the Project may have a significant effect on the environment
`so as to require the creation of an EIS.
`
`Petitioners alleged certain errors related to the FAA’s
`calculations regarding truck trip emissions generated by the
`Project. First, the panel held that there was no authority to
`support petitioners’ assertion that the EA had to use the same
`number of truck trips that the CEQA analysis used, or that
`the FAA was required to explain the difference. The panel
`held further that petitioners failed to show arbitrariness or
`capriciousness in the EA’s truck trip calculation method.
`Second, petitioners provided no reason to believe that the EA
`did not correctly analyze total truck trips emissions. Finally,
`the panel rejected petitioners’ argument that the record
`contained an inconsistency concerning the number of daily
`truck trips calculated by the FAA.
`
`Finally, petitioners asserted that the FAA failed to
`consider the Project’s ability to meet California state air
`quality and federal ozone standards. First, the CCA argued
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`6
`
`that the EA failed to assess whether the Project met the air
`quality standards set by the California Clean Air Act. The
`panel held that CCA failed to articulate a potential violation
`of the Act stemming from the Project. More importantly, the
`EA did discuss California air quality law. Second, CCA
`provided no reason to believe that the Project threatened a
`violation of the federal ozone standards. Finally, the panel
`rejected petitioners’ argument that the EA failed to assess
`whether the Project met California’s greenhouse gas
`emissions standards.
`
`Judge Bumatay concurred in order to address the
`dissent’s discussion of environmental racism. He noted that
`no party raised accusations of racial motivation, and wrote
`that the dissent’s assertions were unfair to the employees of
`the FAA and the Department of Justice who stood accused
`of condoning racist actions and who had no chance to defend
`themselves.
`
`Judge Rawlinson dissented. She wrote that the case
`reeked of environmental racism, defined as “the creation,
`construction, and enforcement of environmental laws that
`have a disproportionate and disparate impact upon a
`particular race.” San Bernardino County, California, is one
`of the most polluted corridors in the United States, and the
`site of the Project was populated overwhelmingly by people
`of color. Judge Rawlinson agreed with the petitioners that
`the difference between the State of California’s conclusion
`of significant environmental impacts of the Project under
`CEQA and the FAA’s conclusion of no significant impact
`could be explained by the FAA’s failure to take the requisite
`“hard look” at the Project as required by NEPA. Judge
`Rawlinson wrote that the EA was deficient in numerous
`ways, and this EA would not prevail if the Project were
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`
`
`located near the home of the multibillionaire owner of
`Amazon.
`
`
`7
`
`
`
`
`
`8
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`COUNSEL
`
`
`(argued) and Yasmine Agelidis,
`Adrian Martinez
`Earthjustice, Los Angeles, California; Gregory Muren,
`Earthjustice, San Francisco, California; for Petitioners
`Center for Community Action and Environmental Justice,
`Sierra Club, Teamsters Local 1932, Shana Saters, and
`Martha Romero.
`
`Yuting Yvonne Chi (argued), Deputy Attorney General;
`Christie Vosburg, Supervising Deputy Attorney General;
`Edward H. Ochoa, Senior Assistant Attorney General;
`Xavier Becerra, Attorney General; Office of the Attorney
`General, Oakland, California; for Petitioner State of
`California.
`
`Rebecca Jaffe (argued), Justin D. Heminger, and John Emad
`Arbab, Attorneys; Eric Grant, Deputy Assistant Attorney
`General; Jonathan D. Brightbill, Principal Deputy Assistant
`Attorney General; Environment and Natural Resources
`Division, United States Department of Justice, Washington,
`D.C.; Joseph Manalili, Senior Attorney, Office of the Chief
`Counsel, Federal Aviation Administration, Washington,
`D.C.; for Respondents.
`
`Michael J. Carroll (argued), Latham & Watkins LLP, Costa
`Mesa, California, for Intervenor Eastgate Bldg. 1 LLC.
`
`Ronald J. Scholar (argued), Cole Huber LLP, Roseville,
`California, for Intervenor San Bernardino International
`Airport Authority.
`
`
`
`
`
`
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`9
`
`OPINION
`
`SILER, Circuit Judge:
`
`for Community Action and
`Petitioners Center
`Environmental Justice, Sierra Club, Teamsters Local 1932,
`Shana Saters, and Martha Romero (collectively, CCA) and
`the State of California (collectively, Petitioners) ask us to
`review Respondent Federal Aviation Administration’s
`(FAA) Record of Decision, which found no significant
`environmental impact stemming from the construction and
`operation of an air cargo facility (Project) at the San
`Bernardino International Airport (Airport). To comply with
`their duties under the National Environmental Policy Act
`(NEPA), the FAA issued an Environmental Assessment
`(EA) that evaluated the environmental effects of the Project.
`In an effort to prevent execution of the Project, Petitioners
`allege error in the EA and the FAA’s finding of no
`significant environmental impact. Because Petitioners have
`not established the findings in the EA to be arbitrary and
`capricious, we deny the petition.
`
`I. Background
`
`The Airport is a public airport located in San Bernardino
`County, California. The Airport is currently under the
`control
`of Respondent/Intervenor San Bernardino
`International Airport Authority (SBIAA), a joint powers
`authority consisting of San Bernardino County and some
`surrounding cities, including San Bernardino.
`
`Hillwood Enterprises, L.P. (Hillwood), an affiliate of
`private developer Respondent/Intervenor Eastgate Bldg 1,
`LLC (Eastgate), has served as the Master Developer of the
`non-aviation portions of the Airport. Eastgate, Hillwood,
`and the SBIAA possess an “Exclusive Right to Negotiate
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`10
`
`Agreement” providing for extensive due diligence and
`entitlement work on the Project. The Project is to develop
`the Eastgate Air Cargo Facility, which includes the
`development and operation of a 658,000-square-foot sort,
`distribution, and office building that would be operated by
`third-party air carriers transporting cargo to and from the
`Airport.
`
`Because the SBIAA has received federal funding for
`previous Airport projects, the Project’s proponents sought
`FAA approval of it to comply with 49 U.S.C. § 47107(a)(16)
`of the Airport and Airway Improvement Act. Among other
`requirements, the Act requires the SBIAA to “maintain a
`current layout plan of the airport” with any revisions subject
`to FAA review. 49 U.S.C. § 47107(a)(16)(B)–(D).
`
`The FAA’s review of the Project under its own statutory
`scheme triggers its duties under NEPA, 42 U.S.C. §§ 4321–
`4370m. In part, NEPA provides that “all agencies of the
`Federal Government
`shall
`. . .
`include
`in
`every
`recommendation or report on . . . major Federal actions
`significantly affecting the quality of the human environment,
`a detailed statement by the responsible official on . . . the
`environmental impact of the proposed action[.]” Id.
`§ 4332(2)(C)(i). Here, the FAA issued a Record of
`Decision, which included its Final EA and Finding of No
`Significant Impact. See 40 C.F.R. § 1508.9(a) (2019)1
`(“Environmental assessment[] [m]eans a concise public
`
`
`1 The pertinent NEPA regulations were amended in February 2020,
`after the rendering of the EA and Finding of No Significant Impact at
`issue in this case. So, the pre-amended regulations apply here, see
`40 C.F.R. § 1506.13, although no party has suggested that the difference
`in substance between the pre-amended and amended versions affects the
`outcome of this case.
`
`
`
`11
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`
`
`document for which a Federal agency is responsible that
`serves to[] [b]riefly provide sufficient evidence and analysis
`for determining whether to prepare an environmental impact
`statement or a finding of no significant impact[ and] [a]id an
`agency’s compliance with [NEPA] when no environmental
`impact statement is necessary[.]”); 40 C.F.R. § 1508.13
`(2019) (“Finding of no significant impact means a document
`by a Federal agency briefly presenting the reasons why an
`action, not otherwise excluded . . . , will not have a
`significant effect on the human environment and for which
`an environmental impact statement therefore will not be
`prepared. It shall include the environmental assessment or a
`summary of it and shall note any other environmental
`documents related
`to
`it[.]”); 40 C.F.R. § 1501.3(a)
`(“Agencies shall prepare an environmental assessment . . .
`when necessary . . . . An assessment is not necessary if the
`agency has decided to prepare an environmental impact
`statement.”). Here, the Petitioners challenge the FAA’s
`decision to proceed in this manner and its findings in that
`regard.
`
`The parties agree that the FAA’s Record of Decision
`constitutes “an order issued by” the FAA under “part B
`[which encompasses 49 U.S.C. § 47107(a)(16)]” through
`which Petitioners “may apply for review . . . in the court of
`appeals of the United States for the circuit in which the
`person resides or has its principal place of business.”
`49 U.S.C. § 46110(a); see Barnes v. Fed. Aviation Admin.,
`865 F.3d 1266, 1268–70 (9th Cir. 2017).
`
`II. Discussion
`
`A. General Standards of Review
`
`“NEPA requires that a federal agency consider every
`significant aspect of the environmental impact of a proposed
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`12
`
`action . . . [and] inform the public that it has indeed
`considered environmental concerns in its decisionmaking
`process.” Earth Island Inst. v. United States Forest Serv.,
`351 F.3d 1291, 1300 (9th Cir. 2003) (simplified). To
`accomplish this, NEPA “imposes procedural requirements
`designed to force agencies to take a ‘hard look’ at
`environmental consequences.”
` Id. (simplified).
` As
`mentioned, the FAA here decided to issue an EA and a
`Finding of No Significant Impact. Although an EA “need
`not conform to all the requirements of an EIS [i.e.,
`Environmental Impact Statement], it must be sufficient to
`establish the reasonableness of the decision not to prepare an
`EIS.” Cal. Trout v. F.E.R.C., 572 F.3d 1003, 1016 (9th Cir.
`2009) (simplified). “In reviewing an agency’s finding that a
`project has no significant effects, courts must determine
`whether the agency has met NEPA’s hard look requirement,
`‘based [its decision] on a consideration of the relevant
`factors, and provided a convincing statement of reasons to
`explain why a project’s impacts are insignificant.’” Bark v.
`United States Forest Serv., 958 F.3d 865, 869 (9th Cir. 2020)
`(simplified).
`
`“The statement of reasons is crucial to determining
`whether the agency took a ‘hard look’ at the potential
`environmental impact of a project.” Blue Mountains
`Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
`Cir. 1998) (simplified). “An EIS must be prepared if
`substantial questions are raised as to whether a project . . .
`may cause significant degradation of some human
`environmental factor.” Id. (simplified). “Thus, to prevail on
`a claim that the [agency] violated its statutory duty to prepare
`an EIS, a plaintiff need not show that significant effects will
`in fact occur.” Id. (simplified). “It is enough for the plaintiff
`to raise substantial questions whether a project may have a
`significant effect’ on the environment.” Id. (simplified).
`
`
`
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`13
`
`“Judicial review of agency decisions under [NEPA] is
`governed by the Administrative Procedure Act, which
`specifies that an agency action may only be overturned when
`it is ‘arbitrary, capricious, an abuse of discretion, or
`otherwise not in accordance with law.’” Earth Island,
`351 F.3d at 1300 (simplified). “An agency action is arbitrary
`and capricious if the agency has: relied on factors which
`Congress has not intended it to consider, 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.” Bark, 958 F.3d at 869 (simplified). “An
`agency’s factual determinations must be supported by
`substantial evidence.” Id. (simplified).
`
`As the “party challenging the administrative decision,”
`Petitioners “bear[] the burden of persuasion” here. See J.W.
`ex rel., J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431,
`438 (9th Cir. 2010). We have upheld an agency decision
`when there was no evidence “which compelled a different
`conclusion” or “any evidence that [the agency] considered
`impermissible factors.” George v. Bay Area Rapid Transit,
`577 F.3d 1005, 1011 (9th Cir. 2009) (citing City of Olmsted
`Falls, Ohio v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002)). As
`the D.C. Circuit has stated, “even assuming the [agency]
`made missteps[,] the burden is on petitioners to demonstrate
`that the [agency’s] ultimate conclusions are unreasonable.”
`City of Olmsted Falls, 292 F.3d at 271; see also San Luis
`Obispo Mothers for Peace v. U.S. Nuclear Regulatory
`Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (“[T]he party
`challenging an agency’s action as arbitrary and capricious
`bears the burden of proof.” (citing Nat’l Ass’n of Regul. Util.
`Comm’rs v. FCC, 746 F.2d 1492, 1502 (D.C. Cir. 1984))).
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`14
`
`B. Study Areas
`
`In evaluating the environmental consequences of the
`project, the FAA generally utilized two “study areas”—the
`General Study Area and the Detailed Study Area. The
`General Study Area “is defined as the area where both direct
`and indirect impacts may result from the development of the
`Proposed Project.” The Detailed Study Area, on the other
`hand, “is generally defined as the areas where direct physical
`impacts may result from the Proposed Project[.]” The
`General Study Area’s “purpose . . . is to establish the study
`area for the quantification of impacts to resource categories
`that involve issues that are regional in scope and scale,
`including noise, land use, socioeconomic impacts, and
`Section 4(f) and 6(f) resources.” The Detailed Study Area’s
`purpose, meanwhile, “is to establish the study area for
`environmental considerations that deal with specific and
`direct physical construction or operational issues that
`directly affect natural resources such as water resources, air
`quality, and hazardous materials.” The CCA’s general
`argument here is that the FAA’s defined geographical
`boundaries encompassing
`the study areas did not
`appropriately capture the true environmental impacts of the
`project.2
`
`
`2 As an initial matter, although the FAA argues that most of the
`CCA’s arguments are not preserved for the CCA’s failure to exhaust
`them, it appears the CCA sufficiently exhausted the arguments they
`present here. See Lands Council v. McNair, 629 F.3d 1070, 1076 (9th
`Cir. 2010) (“[A] claimant need not raise an issue using precise legal
`formulations, as long as enough clarity is provided that the decision
`maker understands the issue raised. Accordingly, alerting the agency in
`general terms will be enough if the agency has been given ‘a chance to
`bring its expertise to bear to resolve [the] claim.’” (citation omitted)).
`
`
`
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`15
`
`In attacking the parameters of the study areas, the CCA
`repeatedly asserts that the FAA did not conform its study
`areas to the FAA’s Order 1050.1F Desk Reference. Most, if
`not all, of the CCA’s improper study areas arguments are
`derived by evaluating the conformity of the findings in the
`EA to the guidance provided by the Desk Reference. But the
`CCA’s arguments in this regard are unavailing because the
`CCA does not dispute the fact that the Desk Reference does
`not serve as binding guidance upon the FAA: “This Desk
`Reference may be cited only as a reference for the guidance
`it contains, and may not be cited as the source of
`requirements under laws, regulations, Executive Orders,
`DOT or FAA directives, or other authorities.” FAA 1050.1F
`Desk Reference, Introduction (July 2015).3
`
`We “review an agency’s alleged noncompliance with an
`agency pronouncement only if that pronouncement actually
`has the force and effect of law.” W. Radio Servs. Co., Inc. v.
`Espy, 79 F.3d 896, 900 (9th Cir. 1996) (citation omitted).
`We do “not review allegations of noncompliance with an
`agency statement that is not binding on the agency.” Id. In
`Western Radio, we held that “neither the [Forest Service’s]
`Manual nor [its] Handbook has the force and effect of
`law[,]” and thus we “review[ed] the Service’s issuance of a
`permit only under its binding regulations.” Id. at 902; see
`also River Runners for Wilderness v. Martin, 593 F.3d 1064,
`1071, 1073 (9th Cir. 2010) (“The text of the 2001 Policies
`makes clear that they are intended only to provide guidance
`within the Park Service, not to establish rights in the public
`
`3 The applicable Desk Reference at the time of the FAA’s EA was
`the July 2015 version, not the February 2020 version the CCA relies
`upon. In any event, no party has suggested that the difference in
`substance between the pre-amended and amended versions affects the
`outcome of this case.
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`16
`
`generally . . . . The Court therefore may not set aside the . . .
`Plan because it fails to comply with portions of the 2001
`Policies[.]”).
`
`The only argument the CCA makes to support its
`assertion that the Desk Reference is relevant is that the FAA
`itself pointed to the Desk Reference as a reference in
`analyzing the environmental consequences of the Project.
`Yet without more, these references are insufficient to “bind”
`the FAA here. See W. Radio, 79 F.3d at 902. References to
`the Desk Reference “cannot bind” the FAA “to a Manual or
`Handbook
`that
`is neither promulgated pursuant
`to
`congressional procedure nor contemplated in a statute.” Id.
`And “[m]ere incorporation does not convert a procedural
`guideline into a substantive regulation.” Id. We therefore
`cannot review the CCA’s allegations that the EA’s study
`areas are deficient per the Desk Reference.
`
`The FAA’s nonadherence to the Desk Reference cannot
`alone serve as the basis for holding that the FAA did not take
`a “hard look” at the environmental consequences of the
`Project. Instead, the CCA must show that the FAA’s
`nonadherence to the Desk Reference has some sort of EA
`significance aside from simply failing to follow certain Desk
`Reference instructions. But the CCA has not done so here.
`
`The CCA first argues that the General Study Area is
`deficient because the FAA failed to create individualized
`study areas
`for
`individual
`impact categories
`(i.e.,
`individualized study areas for the Project’s effects on air
`quality, noise, water, etc.). The CCA, however, has
`conceded that “[t]he EA may rely on one sufficiently large
`study area to address all . . . impacts.” And the CCA does
`not explain why the circumstances of the Project dictated
`different study areas based on different environmental
`impacts, apart from summarily concluding that it did. On
`
`
`
`17
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`
`
`the other hand, the FAA justified the parameters of its
`General Study Area, in part, as being based on the region
`around the Airport affected by noise, the region considered
`to be Airport property, and the region north of the Airport
`through which vehicle traffic was expected to flow to and
`from the project site. Without an explanation as to why a
`more individualized study area per environmental impact
`was needed, the CAA raises no substantial questions as to
`whether the Project may cause significant degradation of
`some environmental factor, and there is no reason to believe
`that the FAA’s use of the General Study Area as a general
`baseline to evaluate multiple environmental impacts was an
`abrogation of its responsibility of taking a hard look at the
`environmental consequences of the Project. See J.W.,
`626 F.3d at 438; George, 577 F.3d at 1011.
`
`Next, the CCA generally attacks the EA’s consideration
`of the impact of the Project on air quality. The CCA argues
`that the General Study Area does not appropriately
`encompass the effect of vehicle traffic on air quality because
`“the FAA’s air quality analysis only captures air quality
`impacts to an area that is less than five miles wide and four
`miles long, even though many air quality impacts occur
`outside the General Study Area.”
`
`These assertions, however, are belied by the fact that the
`FAA did evaluate air quality impacts outside of the General
`Study Area and provided a detailed explanation of its
`methodology in that regard. There is no indication from the
`EA that the FAA limited its consideration of air quality
`impacts within the geographical parameters of the General
`Study Area only. For example, throughout the EA, the FAA
`continuously evaluates the impact of vehicular emissions
`and the Project in general on the air quality within the South
`Coast Air Basin. The Basin encompasses a geographical
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`18
`
`area greater than the General Study Area and is overseen by
`the South Coast Air Quality Management District
`(SCAQMD) under the direction of the California Air
`Resources Board to ensure air pollutant levels adhere to state
`and federal standards. In ascertaining the impact of
`vehicular emissions on air quality, the FAA considered the
`“[a]verage truck trip length for delivery trucks,” and the
`average 64.25-mile length truck trip, goes far beyond the
`“five-by-four mile General Study Area[.]” Moreover:
`
`The air quality analysis for this EA includes
`direct and indirect emissions inventories, as
`well as air dispersion modeling for landside
`sources (area, energy, and mobile) and
`airside sources (aircraft operations and GSE).
`Mass emissions inventories were prepared
`for both construction and operations of the
`Proposed Project and No Action Alternative.
`The criteria pollutant emission inventories
`developed as part of this EA used standard
`industry software/models and federal, state,
`and
`locally
`approved methodologies.
`Emissions of regulated pollutants were
`calculated to determine if the impacts to air
`quality from the Proposed Project would
`potentially be significant under the federal
`Clean Air Act of 1970, as amended. For
`those Proposed Project pollutant emissions
`that exceeded mass emissions thresholds,
`dispersion-modeling
`analyses
`were
`performed to determine if the Proposed
`Project would contribute to an exceedance of
`a [National Ambient Air Quality Standard].
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`
`
`So contrary to what the CCA suggests, the FAA did go
`beyond the General Study Area in ascertaining the true scope
`of both the Project’s emissions and the impact of those
`emissions.
`
`19
`
`The CCA also argues that the General Study Area does
`not appropriately encompass the socioeconomic impacts of
`the Project. Specifically, the CCA argues that “the General
`Study Area is significantly smaller than the local population
`centers for the Cities of San Bernardino, Highland,
`Redlands, and unincorporated San Bernardino County, even
`though Eastgate is located in or borders each of these areas.”
`Yet, as is the case with most of their study area arguments,
`the CCA fails to articulate exactly why the FAA needed to
`expand the General Study Area to include more of the local
`population centers than it already did. Simply summarily
`asserting that the FAA should have expanded its General
`Study Area to include more people based on the guidance
`offered in the nonbinding Desk Reference is insufficient to
`render the FAA’s chosen socioeconomic General Study
`Area arbitrary when it was based, in part, on expected noise
`and vehicle traffic considerations.
`
`The CCA’s next argument is that the EA deficiently
`examines whether “the proposed action or alternative(s)
`creates impacts that are incompatible with existing and/or
`future planned uses in the study area.” The only specific
`argument the CCA makes here, however, is that the General
`Study Area “is not big enough to be able to evaluate whether
`the Project navigates
`truck
`trips
`through residential
`neighborhoods . . . [so] it is . . . far too small to determine
`whether the Project will lead to any incompatible land uses
`from truck traffic.” But the parameters of the General Study
`Area were based, in part, on “the neighborhoods north of the
`Airport through which employee vehicle and truck traffic is
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`20
`
`expected to flow to and from the Proposed Project site[.]”
`The CCA has not pointed to anything suggesting that traffic
`stemming from the Project is expected to flow to residential
`neighborhoods outside of those parameters. Without more,
`the CCA’s argument here is meritless.
`
`Finally, the CCA attacks the legitimacy of the Detailed
`Study Area examined by the FAA. More specifically, the
`CCA argues that the FAA failed to comply with the Desk
`Reference’s instruction that the FAA must consider the
`“existing contaminated sites at the proposed project site or
`in the immediate vicinity of a project site” and include “local
`disposal capacity for solid and hazardous wastes generated
`from the proposed action or alternative(s).” But with respect
`to the two hazardous material sites the FAA allegedly failed
`to properly evaluate, the CCA has not explained why those
`sites fall within the “proposed project site or in the
`immediate vicinity of a project site” when they fall “more
`than 1.5 miles and 0.75 miles, respectively, from the
`[Project] Site.” Distance is relative, and what may seem
`sufficiently close for consideration to a non-expert may not
`in fact be so. Without an explanation of why that is the case
`here, we cannot conclude that the FAA acted arbitrarily in
`purportedly omitting those two sites from the Detailed Study
`Area.
`
`Additionally, although the CCA harps on the exclusion
`of certain sites from the Detailed Study Area where “past
`waste management [and] disposal practices” may have
`contaminated the surrounding soil and groundwater, the
`CCA ignores the FAA’s consideration of the remediation
`and monitoring efforts at these sites in determining that they
`do not present any notable risks. This remediation and
`monitoring effort also applies to the two hazardous materials
`sites, mentioned above, that the CCA highlights.
`
`
`
`
`
`
`CTR. FOR COMMUNITY ACTION V. FAA
`
`21
`
`Lastly on this point, the CCA asserts that “the FAA does
`not explain how and why on
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