CATEX Controversy: The Ninth Circuit Strikes Down FAA Decision to Exempt a Sea-Tac Operational Change from Environmental Review

By Roy Goldberg

The process for approving changes in airport operations and development projects may now be more complicated, time-consuming, expensive and uncertain, due to a new federal appeals court decision. The decision faults the Federal Aviation Administration (FAA) for rushing through its approval of a new procedure for turning southbound turboprops to the west in certain wind conditions existing at Seattle-Tacoma International Airport (Sea-Tac). The new procedure automates a formerly manual process of assigning headings to such turboprops, and has the effect of concentrating low-flying planes over the City of Burien after takeoff. In its November 27, 2019 majority decision, City of Burien v. FAA, the U.S. Court of Appeals for the Ninth Circuit held that the FAA failed to comply with the National Environmental Policy Act (NEPA).

The FAA often identifies certain actions as “categorical exclusions” (CATEXs) that are exempt from environmental review under NEPA. CATEXs apply for actions that do not “individually or cumulatively have a significant effect on the human environment.” In its 2-1 decision, the Ninth Circuit ruled that the FAA acted “arbitrarily and capriciously” by “failing to consider all ‘reasonably foreseeable’ future actions at Sea-Tac in its analysis of whether” the new procedure might contribute “cumulatively” to a significant effect on the human environment. The decision is significant because it may cause the FAA and airport operators to delay airport procedures and development until a suitable environmental impact statement (EIS) is prepared and reviewed, or other form of compliance with NEPA requirements is satisfied.

NEPA and the CATEX Exemption

While agencies promulgate their own rules for identifying and applying CATEXs, all agencies must “provide for certain extraordinary circumstances in which a normally excluded action may have a significant environmental impact” such that an environmental review is required.

Before applying a CATEX, the FAA must prepare “concise” supporting documentation citing the CATEX used, describing why its application is appropriate, and explaining that there are no relevant extraordinary circumstances. Pursuant to the relevant regulation, “cumulative impact” means “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions,” and “[c]umulative impacts can result from individually minor but collectively significant actions taking place over a period of time.”

FAA’s Application of a CATEX to the New Sea-Tac Procedure

The FAA determined that environmental review of the new Sea-Tac procedure was not required because the action fell within a CATEX for “modifications to currently approved procedures conducted below 3,000 feet [above ground level] that do not significantly increase noise over noise sensitive areas.” Although the FAA considered a number of past, present and reasonably foreseeable future actions within the study area in its cumulative impacts analysis, that study area did not include Sea-Tac and, as a result, the agency failed to even mention future actions taking place at Sea-Tac itself, even if to dismiss them as not reasonably foreseeable. Most notably, the FAA failed to address any cumulative impacts that might stem from projects described in Sea-Tac’s Sustainable Airport Master Plan (SAMP). The SAMP has been described as “a long-term blueprint for airport development to meet the needs of the traveling public, while reducing environmental and social impacts. The plan includes airfield development within the current three-runway configuration, terminal development, roadway improvements, and facility modernization and expansion possibilities.”

The Court’s Finding that Application of the CATEX was Arbitrary and Capricious

Burien argued that application of the CATEX was arbitrary and capricious for multiple reasons, but the court was persuaded by only one: namely, that the FAA acted arbitrarily and capriciously by failing to consider all “reasonably foreseeable” future actions at Sea-Tac in its analysis of whether a cumulative impacts extraordinary circumstance existed.”

The majority opinion emphasized that, “[g]iven that the FAA was involved in the funding and development of the SAMP, and that a final SAMP document listing specific expansion projects was published only weeks after the [new turboprop] procedure was approved in April 2018, the FAA had to be well aware of these planning documents and the substantial airport expansion described in them.” As a result, the “FAA should have addressed them in its cumulative impacts analysis.” The court stated:

The bottom line is that, even though the FAA’s analysis rambles on for 128 pages, that cannot excuse its failure to even address whether a “Master Plan” for a major expansion of the airport – a plan that the FAA staff had commissioned and that was only weeks away from being published – encompassed a “reasonably foreseeable future action” that should be considered within the FAA’s cumulative impact analysis.

The Dissenting Opinion

The dissenting judge primarily relied on case law suggesting that a “reasonably foreseeable future action” does not include a project “that is not yet proposed” and is “remote in time.” However, as the majority pointed out, the FAA’s own Desk Reference that guides its interpretation of relevant categorical exclusions expressly states that “[a]n action may be reasonably foreseeable even in the absence of a specific proposal.” The Desk Reference further provides that the existence of “planning documents”—like the SAMP—even if short of an official proposal, provides important evidence for determining whether a future project is reasonably foreseeable. “In such circumstances, even if the FAA concludes that the planned projects are ‘improbable or remote,’ the Desk Reference specifically recommends that such actions ‘be mentioned in the NEPA document with an indication that they are not reasonably foreseeable.” According to the majority, the FAA, “by failing to even mention the SAMP. . . did not meet its obligation to explain its actions under NEPA.”

The dissent also stated that the FAA did not need to consider the SAMP in its cumulative impacts analysis because the court had previously held that approval of a change in flight pattern for turboprops does not produce a significant impact. However, according to the majority, the cited case involved consideration of “indirect effects” rather than “cumulative impacts.”

What to Expect on Remand to the FAA

The court remanded the case to the FAA “with instructions to consider the potential cumulative impact of all relevant reasonably foreseeable future actions – including those which may exist in the SAMP documents – as part of its extraordinary circumstances analysis pursuant to 40 C.F.R. § 1508.7.” In short, the FAA must now consider the cumulative impact of the new turboprop turn procedure in connection with the SAMP, including, without limitation, airfield development, terminal development, roadway improvements, and facility modernization and expansion possibilities.

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