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Case: 20-70272, 01/03/2022, ID: 12329663, DktEntry: 93, Page 1 of 90
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`No. 20-70272, 20-70464
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`____________________
`
`CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE;
`SIERRA CLUB; TEAMSTERS LOCAL 1932; SHANA SATERS; AND MARTHA
`ROMERO,
`
`Petitioners,
`
`V.
`
`FEDERAL AVIATION ADMINISTRATION; AND STEPHEN M. DICKSON, IN
`HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE FEDERAL AVIATION
`ADMINISTRATION,
`
`Respondents,
`
`EASTGATE BLDG 1, LLC; AND SAN BERNARDINO INTERNATIONAL
`AIRPORT AUTHORITY,
`
`Intervenors.
`
`[Consolidated Case Caption on Following Cover Page]
`____________________
`
`On Petition for Review of an Order of the
`Federal Aviation Administration
`____________________
`
`PETITION FOR REHEARING EN BANC
`BY THE STATE OF CALIFORNIA
`____________________
`
` CALIFORNIA DEPARTMENT OF JUSTICE
`1515 Clay Street, 20th Floor
`P.O. Box 70550
`Oakland, CA 94612-0550
`(510) 879-3298
`Yuting.Chi@doj.ca.gov
`Attorneys for the State of California
`
`
`ROB BONTA
`Attorney General of California
`EDWARD H. OCHOA
`Senior Assistant Attorney General
`CHRISTIE VOSBURG
`Supervising Deputy Attorney General
`YUTING YVONNE CHI
`Deputy Attorney General
`
`
`January 3, 2022
`
`
`
`
`
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`
`
`

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`
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`____________________
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`STATE OF CALIFORNIA, BY AND THROUGH ROB BONTA, IN HIS OFFICIAL
`CAPACITY AS ATTORNEY GENERAL,
`Petitioner,
`
`V.
`
`FEDERAL AVIATION ADMINISTRATION; STEPHEN M. DICKSON, IN HIS
`OFFICIAL CAPACITY AS ADMINISTRATOR OF THE FEDERAL AVIATION
`ADMINISTRATION, AND SAN BERNARDINO INTERNATIONAL AIRPORT
`AUTHORITY,
`
`____________________
`
`Respondents.
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`

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`Case: 20-70272, 01/03/2022, ID: 12329663, DktEntry: 93, Page 3 of 90
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`TABLE OF CONTENTS
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`Page
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`Introduction and Rule 35 statement........................................................................... 1
`
`Statement of the case ................................................................................................. 4
`
`A.
`
`B.
`
`The Eastgate air cargo project .............................................................. 4
`
`Procedural background ......................................................................... 7
`
`Reasons for granting rehearing en banc .................................................................... 9
`
`I.
`
`II.
`
`The panel’s creation of a new burden of proof is inconsistent with
`Ninth Circuit precedent .............................................................................. 9
`
`The panel’s approval of flawed agency environmental analysis
`where impacts are uncertain and controversial conflicts with Ninth
`Circuit precedent ...................................................................................... 13
`
`III. This case presents questions of exceptional importance .......................... 16
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`Conclusion ............................................................................................................... 19
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`i
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`TABLE OF AUTHORITIES
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`Page
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`
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`CASES
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`Anderson v. Evans
`371 F.3d 475 (9th Cir. 2004) ...................................................................3, 13, 14
`
`Bark v. U.S. Forest Serv.
`958 F.3d 865 (9th Cir. 2020) ..................................................................... passim
`
`Barnes v. U.S. Dep’t of Transp.
`655 F.3d 1124 (9th Cir. 2011) ................................................................... passim
`
`Blue Mountains Biodiversity Project v. Blackwood
`161 F.3d 1208 (9th Cir. 1998) .....................................................................13, 18
`
`Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric.
`681 F.2d 1172 (9th Cir. 1982) .................................................................2, 10, 16
`
`Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.
`387 F.3d 989 (9th Cir. 2004) .................................................................11, 12, 16
`
`Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.
`463 U.S. 29 (1983) ............................................................................................13
`
`Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp.
`222 F.3d 677 (9th Cir. 2000) .............................................................................11
`
`Ocean Advocs. v. Army Corps of Eng’rs
`402 F.3d 846 (9th Cir. 2005) .............................................................................11
`
`Robertson v. Methow Valley Citizens Council
`490 U.S. 332 (1985) ....................................................................................16, 18
`
`Te-Moak Tribe of the W. Shoshone of Nev. v. U.S. Dep’t of Interior
`608 F.3d 592 (9th Cir. 2010) ..................................................................... passim
`
`ii
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`

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`TABLE OF AUTHORITIES
`(continued)
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`Page
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`
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`STATUTES
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`National Environmental Policy Act (NEPA)
`42 U.S.C. § 4321 et seq. ......................................................................................1
`
`
`
`CODE OF FEDERAL REGULATIONS
`
`40 C.F.R. § 1500.1(a) .............................................................................................16
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`40 C.F.R. § 1500.1(b) .........................................................................................3, 18
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`40 C.F.R. § 1500.1(c) .......................................................................................16, 18
`
`
`
`COURT RULES
`
`Federal Rules of Appellate Procedure
`
` Rule 28(j) ..........................................................................................................15
`Rule 35(b)(1)(A) .................................................................................................1
`Rule 35(b)(1)(B) ..................................................................................................1
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`iii
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`INTRODUCTION AND RULE 35 STATEMENT
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`After a cursory environmental analysis under the National Environmental
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`Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Federal Aviation Administration
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`(FAA) approved an air cargo and distribution expansion project in San Bernardino,
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`California based on an Environmental Assessment (EA) and Finding of No
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`Significant Impact. The FAA took this action even though the expansion would
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`add at least one ton of air pollution per day to the South Coast Air Basin, the most
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`polluted air basin in the country. The area around the airport is home to a low-
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`income community of color and thousands of residents who are already suffering
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`from air pollution-related illnesses such as asthma and heart diseases. A divided
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`panel of this Court upheld the FAA’s flawed environmental analysis.
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`The State of California, by and through Attorney General Rob Bonta,
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`respectfully petitions for rehearing en banc of the panel’s decision on two issues
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`that are in conflict with decisions of this Court and also of exceptional importance
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`to the State. See Fed. R. App. P. 35(b)(1)(A), (B).
`
`First, the panel imposed on the petitioners a heavy burden to demonstrate
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`that significant environmental harms will in fact result from the proposed agency
`
`action. It required petitioners to point to affirmative evidence in the record to show
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`significant harms (for example, harm to public health), even though the agency had
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`not gathered or analyzed the available evidence relevant to such harms. Op. 24,
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`1
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`30, 36. But this Court has long held that the burden on NEPA petitioners “is not an
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`onerous one,” particularly where the impacts of an agency action, such as approval
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`of a major capacity-enhancing airfield, are self-evident. Te-Moak Tribe of the W.
`
`Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 605 (9th Cir. 2010);
`
`Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1136-39 (9th Cir. 2011); Found.
`
`for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982)
`
`(holding a showing that significant effects “will in fact occur” is unnecessary).
`
`Second, this project was—to say the least—controversial, in part because the
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`FAA refused to answer serious questions from commenters, including state expert
`
`agencies, about whether the agency had significantly understated air pollution
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`impacts that may be caused by increased truck traffic induced by the expansion.
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`Projects that are “highly controversial and uncertain” generally require an
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`Environmental Impact Statement (EIS), not an abbreviated EA. Bark v. U.S.
`
`Forest Serv., 958 F.3d 865, 870-71 (9th Cir. 2020) (striking down EA that failed to
`
`engage with contrary evidence and drew “general conclusions” that impacts are
`
`insignificant). Here, the FAA never explained why its truck traffic numbers were
`
`substantially lower than in the state environmental document for the identical
`
`project, nor the incomplete and internally inconsistent truck traffic calculations
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`within the agency’s own environmental review. The panel was dismissive of this
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`serious disconnect, choosing to accept the agency’s conclusory statements about
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`2
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`the accuracy of its review. Op. 34-36. But as Judge Rawlinson noted in her
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`dissent, under well-established NEPA precedent, the agency must provide a
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`“convincing statement of reasons to explain why a project’s impacts” are
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`insignificant; that obligation is not met where the agency overlooks information
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`relevant to its determination of significant impacts or offers conclusory statements
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`in lieu of evidence. Op. 51, 60-61 (Rawlinson, J., dissenting); Bark, 958 F.3d at
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`871-72; see Anderson v. Evans, 371 F.3d 475, 492-93 (9th Cir. 2004) (striking
`
`down EA because not addressing controversial and uncertain impacts was
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`impermissible “analytical lapse”).
`
`This case involves matters of exceptional importance to the State, affecting
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`NEPA’s procedural safeguards that protect every Californian from the
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`environmental consequences of federal agency actions. The new burden of proof
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`imposed by the panel would have a chilling effect on future NEPA challenges by
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`petitioners seeking to correct the harms of agency actions. This would be
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`exacerbated by the agencies’ diminished duty, as held by this panel, to fully
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`analyze uncertain and controversial environmental impacts and to present that
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`information accurately to the public, thus further impairing the public’s and the
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`decision maker’s evaluation of the agency action, obstructing government
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`transparency, and undermining public trust in federal agencies’ NEPA processes.
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`See 40 C.F.R. § 1500.1(b) (“[P]ublic scrutiny [is] essential.”). And in this case, the
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`3
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`panel’s departure from existing Ninth Circuit law means that the FAA will never
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`take the requisite hard look at the project’s potential for significant long-term
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`public health impacts to thousands of residents in a low-income community of
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`color who are already disproportionately affected by pollution, nor explore
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`alternatives and mitigation that could reduce impacts.
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`The Court should grant rehearing en banc both to secure the uniformity of its
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`decisions and protect the ability of the public to vindicate their rights under NEPA.
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`STATEMENT OF THE CASE
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`A. The Eastgate Air Cargo Project
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`San Bernardino International Airport Authority proposed to develop the new
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`Eastgate Air Cargo Facility (“Project”), a major air and ground capacity
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`enhancement project that includes an air cargo and warehouse distribution hub
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`exceeding 100 acres. Pet’rs’ Joint Excerpts of R. (PER) 0996. The Project will
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`add taxiways, parking aprons, and support structures for more than a dozen large
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`commercial aircrafts and generate several dozen additional daily round-the-clock
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`flights, along with several thousand additional daily vehicle trips, including diesel
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`truck trips. PER0046. The Project is already being operated by Amazon, Inc.,
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`seven days a week and is expected to reach full buildout and operations in four
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`years, PER0134, 0149-0150, with operations to last at least 35 years. ECF No. 1-
`
`12 at 10.
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`4
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`The Project is located near the San Bernardino-Muscoy community, a low-
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`income community of color already burdened by multiple sources of pollution and
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`the harmful health effects of that pollution. PER0404. An environmental health
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`screening tool created by the California Office of Environmental Health Hazard
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`Assessment, called CalEnviroScreen, ranks residents in this area as among the top
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`5 percent for pollution burdens, indicating they are already exposed to more
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`pollution overall than the vast majority of Californians and are more vulnerable to
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`that pollution. PER0404.
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`Ambient air at and near the Project site already contains high background
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`levels of ozone, which causes lung inflammation and increased asthma-related
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`emergency room visits; particulate matter 2.5, fine particles that cause heart and
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`lung diseases; and diesel particulate matter, a toxic air contaminant causing
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`increased cancer risk—and all three result from diesel truck traffic. PER0026,
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`0299, 0384, 0404. Residents in this area are among the top 5 percent of
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`Californians for the prevalence of asthma-related hospital visits and among the top
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`3 percent for the prevalence of emergency room visits due to heart attacks.
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`PER0404. Thus, these residents are especially vulnerable to the effects of
`
`pollution. A large majority identify as Latinx or African American, and nearly 20
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`percent of the population are children under the age of 10, a group particularly
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`sensitive to the health effects of air pollution. PER0404. More than 95 percent of
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`5
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`the community live below the poverty level, and more than 75 percent are
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`unemployed, thus limiting the community’s access to healthcare. PER0404-0405.
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`The Airport Authority began a state-level environmental review of the
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`Project under the California Environmental Quality Act (CEQA) in 2018 and
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`determined in a Final Environmental Impact Report that the Project will have
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`significant air quality, climate, and noise impacts. PER0825-26, 0788. In 2019,
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`the Airport Authority and the FAA began the federal-level review process under
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`NEPA triggered by approvals required by the FAA, and circulated an EA for
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`public comment. PER0612.
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`The State of California, along with the California Air Resources Board, the
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`South Coast Air Quality Management District, and more than 800 other members
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`of the public commented on the EA. PER0002; PER0010. California urged the
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`FAA and the Airport Authority to perform a more thorough environmental analysis
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`under NEPA by preparing an EIS. PER0403-0411. In particular, California
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`requested the agencies to correct their flawed air emissions analysis and to
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`examine the airport expansion’s impacts on the nearby community already
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`burdened by air pollution. PER0403-0408. But the FAA dismissed the concerns
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`raised by California, air protection agencies, and members of the local community,
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`declining to conduct further environmental analysis. On December 23, 2019, the
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`FAA issued a Finding of No Significant Impact and Record of Decision (“FAA
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`6
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`Order”) approving the Project. PER0001-0029, 0412-0416, 0611. Construction
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`began shortly after, in January 2020. PER0131.
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`B.
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`Procedural Background
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`California filed its petition for review of the FAA Order on February 20,
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`2020, which the Court consolidated with the petition earlier filed by local
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`community advocates. ECF No. 1-5 (filed Feb. 20, 2020 in Case No. 20-70464);
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`ECF Nos. 1-7, 25. Merits briefing occurred between June and October 2020, and
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`oral arguments were held in February 2021. ECF Nos. 55-89. Petitioners
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`highlighted that the CEQA review of the Project had found significant and
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`unavoidable environmental impacts, therefore raising substantial questions in the
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`corresponding, albeit separate, NEPA review process regarding the presence of
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`these significant impacts, and argued that the FAA failed to adequately explain the
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`EA’s divergent diesel truck traffic numbers and its conclusion that the Project
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`would have no significant impacts. ECF No. 57-1 at 22-27. Petitioners also
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`argued that the EA’s unexplained inconsistencies in truck traffic undermined the
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`accuracy of the air emissions analysis. ECF No. 57-1 at 27-33. On November 18,
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`2021, a divided panel of this Court denied the petitions for review. The panel held
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`the EA sufficient under NEPA and that the FAA need not prepare an EIS. Op. 43-
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`44.
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`7
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`The panel held that petitioners did not raise substantial questions in the
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`NEPA context as to whether the Project may have significant effects on the
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`environment. In particular, it determined that petitioners were required to, but did
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`not, point to specific impacts supported by the evidence in the record to meet their
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`burden for raising substantial questions whether the Project may have significant
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`effects. Op. 23-24, 26.
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`Furthermore, the panel held that the FAA is not required to reconcile or
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`explain the truck traffic inconsistencies between the CEQA and NEPA analysis,
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`despite the significant implications of the erroneous truck trips data on the FAA’s
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`air emissions analysis and the agency’s own finding that diesel truck emissions
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`contribute to toxic air pollution. Op. 31-36. According to the panel, because the
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`CEQA’s traffic estimates were also unclear and unsupported, the FAA could not be
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`faulted for having inconsistent estimates in its NEPA analysis. Op. 33.
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`Furthermore, though the FAA’s truck trip calculations were unsupported in the
`
`record, the panel accepted the FAA’s conclusory representation that the
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`calculations were accurate. Op. 34-35 (citing FAA response to comments). The
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`panel also accepted the FAA’s post-hoc rationalizations about how it had
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`calculated truck trips. Op. 33-34.
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`Judge Rawlinson emphatically dissented. In her view, “the FAA . . . failed
`
`to provide a convincing statement of reasons to explain the Amazon Project’s
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`8
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`impacts are insignificant,” and thus failed to take the requisite “hard look” under
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`NEPA. Op. 60-61 (Rawlinson, J., dissenting) (internal quotations and alterations
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`omitted). The dissent stated that the FAA “patently undercount[ed] the number of
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`daily truck trips in calculating potential truck [e]missions” and ignored the CEQA
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`analysis conclusion of significant and unavoidable environmental impacts. Id. 61-
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`62. Finally, the dissent would have held that petitioners raised substantial
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`questions whether the Project may have significant effects on the environment and
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`that the EA was deficient for not addressing those effects, “thereby requiring
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`preparation of an EIS.” Id. 51, 61-62.
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`REASONS FOR GRANTING REHEARING EN BANC
`
`I.
`
`THE PANEL’S CREATION OF A NEW BURDEN OF PROOF IS
`INCONSISTENT WITH NINTH CIRCUIT PRECEDENT
`
`The panel has disregarded well-established Ninth Circuit precedent to
`
`impose a new, heightened burden of proof for petitioners who challenge an EA.
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`This new burden of proof would require NEPA petitioners to point to record
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`evidence to show affirmatively the significant harms that will result from a
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`proposed project, even when the agency itself has not gathered the necessary
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`information or engaged in this analysis. The case law states, however, that the
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`burden on NEPA challengers is not onerous, and that they need not show
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`significant harms will in fact occur. Te-Moak Tribe, 608 F.3d at 605; Wild Sheep,
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`681 F.2d at 1178. In direct conflict with the panel’s holding, the burden of
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`9
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`identifying and analyzing potential impacts is squarely on the agency where, as
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`with an airport expansion project, the impacts are so self-evident that there is no
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`need for petitioners to point them out. See Barnes, 655 F.3d at 1134-35.
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`But here, the panel concluded the petitioners should have “identified specific
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`cumulative impacts that the agency did not address and supported the existence of
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`those impacts with record evidence.” Op. 23-24. Contrary to this Court’s
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`precedent, the panel reasoned that the absence of specific, petitioner-identified
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`cumulative impacts “suggests that there are none.” Op. 24. Further, the panel
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`seems to require petitioners to point to specific emissions data from any of the 80-
`
`plus projects raised by the petitioners in their cumulative impacts claim to show
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`that, individually, a project would exceed relevant significant thresholds. See Op.
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`25.
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`The panel’s new burden of proof is in direct conflict with the case law of this
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`Court, which holds that petitioners can meet their burden in raising a cumulative
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`impacts claim under NEPA, despite not “specify[ing] a particular project that
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`would cumulatively impact the environment along with the proposed project.” Te-
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`Moak Tribe, 608 F.3d at 605. Moreover, this Court has consistently found that in
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`major ground capacity expansion projects that have the obvious potential to spur
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`demand, and thus cumulative developments, the agency must “consider the
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`environmental impact of increased demand” as a matter of course, regardless of
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`10
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`whether the issue is raised by the public. Barnes, 655 F.3d at 1134-35 (finding
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`FAA failed to consider self-evident, indirect effects of increased aircraft
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`operations, therefore requiring FAA to prepare EIS); see also Ocean Advocs. v.
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`Army Corps of Eng’rs, 402 F.3d 846, 870 (9th Cir. 2005); Nat’l Parks &
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`Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677, 679-80 (9th Cir. 2000).
`
`Furthermore, Ninth Circuit precedent requires that when “the potential for . . .
`
`serious cumulative impacts is apparent,” the agency must provide more details of
`
`its cumulative impact analysis in an EA before concluding that there were no
`
`significant cumulative effects.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of
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`Land Mgmt., 387 F.3d 989, 996 (9th Cir. 2004). This Court has declined to impose
`
`a greater burden on NEPA petitioners, noting that “the [agency] failed first” by not
`
`having properly identified other projects in the area and detailed those impacts in
`
`their cumulative impacts analysis. Te-Moak Tribe, 608 F.3d at 605. This is
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`precisely what has occurred in this case.
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`Here, the FAA approved a major airport expansion project that would add at
`
`least fifty more flights and several hundred more diesel truck trips, per day, in the
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`most polluted air basin in the nation, next to a vulnerable community already
`
`bearing the health burdens of other sources of air pollution. Because the potential
`
`for serious cumulative environmental impacts is self-evident here, the FAA needed
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`to provide a much more detailed cumulative impacts analysis. See Barnes, 655
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`11
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`F.3d at 1124; Klamath-Siskiyou, 387 F.3d at 996. However, as the dissent points
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`out, the FAA “ignored more than 80 projects” located nearby, and failed to
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`“disclose specific, quantifiable data about the cumulative effects of related
`
`projects, explain why objective data about the projects could not be provided, or
`
`discuss the combined effects of these projects.” Op. 55 (Rawlinson, J., dissenting)
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`(internal quotations omitted). The FAA itself concedes that it did not quantify its
`
`conclusions. Id. 58. If the FAA—the agency responsible for presenting
`
`information to the public about its environmental analysis—has not quantified data
`
`about the environmental impacts in the area and therefore provided no such data in
`
`its record, petitioners and other members of the public cannot be expected to
`
`“show that emissions from [nearby] projects individually exceed relevant
`
`thresholds.” But see Op. 25 (requiring this showing).
`
`The panel also erroneously applied this heightened burden for other
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`environmental impacts raised by the petitioners. With regard to the FAA’s
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`inexplicable 95 percent reduction of truck traffic in the EA—from 3,823 daily trips
`
`in one part of the EA to 192 daily trips in the air emissions analysis—the panel
`
`held that petitioners needed to “articulate what exactly that significance is” as it
`
`relates to air emissions. Op. 36. It was not enough for petitioners to point out the
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`inconsistency to raise substantial questions of significant impact because that
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`would “assume[] that the 3,823 figure is significant.” Op. 36. Instead of requiring
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`12
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`that petitioners “raise[] substantial questions whether a project may have a
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`significant effect,” Barnes, 655 F.3d at 1136, the panel now requires petitioners to
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`prove up that significant effect. This represents a major departure from existing
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`Ninth Circuit precedent, and imposes an onerous burden of proof for petitioners to
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`challenge the sufficiency of an EA.
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`II. THE PANEL’S APPROVAL OF FLAWED AGENCY ENVIRONMENTAL
`ANALYSIS WHERE IMPACTS ARE UNCERTAIN AND CONTROVERSIAL
`CONFLICTS WITH NINTH CIRCUIT PRECEDENT
`
`The panel has departed from the long-established standard in the Ninth
`
`Circuit that federal agencies cannot rest on environmental analysis that contain
`
`analytical lapse, or is incomplete, inconsistent, or inaccurate, where environmental
`
`impacts are highly uncertain or controversial. Bark, 958 F.3d at 869-70; Anderson,
`
`371 F.3d at 490. Conducting cursory or inconsistent analysis of substantially
`
`disputed impacts is sufficient basis to require an EIS. Blue Mountains Biodiversity
`
`Project v. Blackwood, 161 F.3d 1208, 1213-14 (9th Cir. 1998). And when an
`
`agency fails to “articulate a satisfactory explanation for its action,” its decision is
`
`arbitrary and capricious. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.
`
`Auto. Ins., 463 U.S. 29, 43 (1983).
`
`Here—where the hundred-acre Project will lock in one ton of air pollution
`
`per day for a vulnerable community for several decades; the traffic numbers in the
`
`federal environmental document are substantially lower than in the state
`
`13
`
`

`

`Case: 20-70272, 01/03/2022, ID: 12329663, DktEntry: 93, Page 19 of 90
`
`
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`environmental document for the same project; there are significant traffic-number
`
`inconsistencies in the EA itself; under-counting truck trips can cause the agency to
`
`significantly underestimate the Project’s air emissions; and California and its air
`
`protection agencies have repeatedly raised issues with the sufficiency of the FAA’s
`
`air emissions analysis—the uncertainty and controversy of the Project’s impacts
`
`are at their height. In these circumstances, the FAA has a duty under NEPA to
`
`complete a comprehensive and accurate environmental analysis that adequately
`
`addresses these impacts. Indeed, the Ninth Circuit has upheld this duty in similar
`
`uncertain and controversial circumstances even with agency actions that do not
`
`directly harm human health. See, e.g., Anderson, 371 F.3d at 490 (finding
`
`“analytical lapse” in EA’s treatment of highly uncertain impacts to local whale
`
`population is “sufficient basis for holding that the agencies’ finding of no
`
`significant impact cannot survive”); Bark, 958 F.3d at 871-72 (striking down
`
`agency’s incomplete, conclusory analysis of controversial and uncertain impacts to
`
`national forest).
`
`However, the panel erroneously allowed the FAA to rest its approval of the
`
`Project on the incomplete and inaccurate analysis in the EA. See Op. 33. And
`
`despite acknowledging that “the FAA does not appear to specifically articulate
`
`what further analysis was conducted” to support the truck trip calculations in the
`
`EA, the panel relied on the FAA’s conclusory representations that the agency’s
`
`14
`
`

`

`Case: 20-70272, 01/03/2022, ID: 12329663, DktEntry: 93, Page 20 of 90
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`
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`calculations were accurate.1 Op. 34-35. Ninth Circuit case law directly contradicts
`
`the panel’s determination that an agency can fulfill its NEPA obligation to present
`
`complete and accurate information simply by making a conclusory statement it has
`
`done so in lieu of actually showing its work. See Bark, 958 F.3d 871-72 (striking
`
`down EA where conclusory statement that there were no harmful effects was based
`
`on vague and uncertain analysis). Furthermore, it is not at all clear that the FAA’s
`
`representations on this score were correct. The FAA’s counsel, two days before
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`oral argument, filed a Federal Rule of Appellate Procedure 28(j) letter informing
`
`the panel that the FAA’s prior representations in its brief and the record regarding
`
`these truck trip calculations “appear to be inaccurate.” ECF No. 87. If the FAA’s
`
`own counsel is unsure of the accuracy of the information the FAA relied on, the
`
`public cannot be expected to take the FAA at its word, nor to have confidence in
`
`the accuracy and thoroughness of the FAA’s environmental review. See Klamath-
`
`Siskiyou, 387 F.3d 989 at 996 (EA unacceptable if indecipherable to public).
`
`Failure by an agency to present complete and accurate information
`
`undermines the credibility and accuracy of an environmental review process,
`
`
`1 The FAA explained that the South Coast Air Quality Management District and
`other agencies had verified its truck traffic numbers, but pointed to no record
`support that such reviews in fact occurred. PER0414. The FAA also stated that it
`conducted further truck traffic calculations at a later time, which apparently were
`not reviewed by other agencies and again are unsupported by the record.
`PER0414.
`
`15
`
`

`

`Case: 20-70272, 01/03/2022, ID: 12329663, DktEntry: 93, Page 21 of 90
`
`
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`creating uncertainty for the public and the agency. See Robertson v. Methow
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`Valley Citizens Council, 490 U.S. 332, 349 (1985). The FAA’s lack of clarity with
`
`regard to truck traffic creates the exact kind of uncertainty for the public and the
`
`agency that the NEPA process is designed to avoid. The correct result would have
`
`been to require the FAA to reconcile the inconsistencies and inaccuracies in its
`
`calculations as part of the NEPA process, on the record for public review.
`
`III. THIS CASE PRESENTS QUESTIONS OF EXCEPTIONAL IMPORTANCE
`
`NEPA’s action-forcing provisions are intended to ensure that federal
`
`agencies like the FAA act according to the letter and spirit of the statute, 40 C.F.R.
`
`§ 1500.1(a), to “foster excellent [agency] action,” and to ensure that “important
`
`effects will not be overlooked or underestimated only to be discovered after
`
`resources have been committed or the die otherwise cast,” id. § 1500.1(c);
`
`Robertson, 490 U.S. at 349. NEPA law is clear that agencies bear the burden of
`
`providing evidence and analysis for the significant impacts of their actions, and
`
`that this is not the NEPA petitioners’ burden. See Te-Moak Tribe, 608 F.3d at 605;
`
`Wild Sheep, 681 F.2d at 1178. The panel’s decision undermines this Court’s
`
`considerable body of precedent upholding NEPA’s protective mandate and may
`
`have a chilling effect on future NEPA challenges.
`
`In shifting this burden to the NEPA petitioners, the panel holds NEPA
`
`petitioners to a burdensome requirement to point to their own data to show that a
`
`16
`
`

`

`Case: 20-70272, 01/03/2022, ID: 12329663, DktEntry: 93, Page 22 of 90
`
`
`
`project will have significant impacts when federal agencies fail to perform a
`
`sufficient environmental review. This burden-shifting thwarts NEPA’s purpose,
`
`because it is out of line with the guiding principles of NEPA that require agencies
`
`to analyze and confront the environmental impacts of their actions and to disclose
`
`that information to the public. Assigning this task to the public—those who are
`
`trying to hold fede

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