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City of Las Vegas, Nevada v. Federal Aviation Administration

June 12, 2009

CITY OF LAS VEGAS, NEVADA, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA; ENVIRONMENTAL COALITION, INC., A NEVADA CORPORATION; CANYON GATE HOMEOWNERS ASSOCIATION, INC., A NEVADA CORPORATION; CANYON RIDGE HOMEOWNERS ASSOCIATION INC., A NEVADA CORPORATION; SUN CITY SUMMERLIN COMMUNITY ASSOCIATION, INC., A NEVADA CORPORATION; VALERIE E. WEBER, MEMBER, NEVADA STATE ASSEMBLY, CLARK COUNTY DISTRICT 5; ROBERT W. HALL, AN INDIVIDUAL; GREG FAA FONSI/ROD TOUSSAINT, AN INDIVIDUAL; AND CHARLES JONES, AN INDIVIDUAL, PETITIONERS,
v.
FEDERAL AVIATION ADMINISTRATION, UNITED STATES DEPARTMENT OF TRANSPORTATION; MARY E. PETERS, SECRETARY OF TRANSPORTATION; MARION C. BLAKEY, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION; AND WILLIAM C. WITHYCOMBE, REGIONAL ADMINISTRATOR, FAA WESTERN PACIFIC REGION, RESPONDENTS.



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

The opinion of the court was delivered by: Reinhardt, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 22, 2008 -- San Francisco, California

Before: Mary M. Schroeder, Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt

OPINION

In 2006, the Federal Aviation Administration (FAA) issued a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) approving the modification of the departure route at Las Vegas McCarran International Airport that would direct a third of the eastbound flights departing west from one of the runways to complete a turn to the north of the airport instead of the south. The City of Las Vegas and other communities to the north of the airport, as well as individual residents of those communities, have filed a petition for review challenging the FONSI/ROD under the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Clean Air Act (CAA). We deny the petition.

I. Factual Background

This case involves the flight departure paths from one of the runways at the Las Vegas McCarran International Airport.

There are two sets of parallel runways at the airport: one set oriented from east to west (7L/R and 25L/R) and one set oriented from north to south (1L/R and 19L/R). Most of the planes depart to the west and to the south due to prevailing winds, but many of those flights are bound for destinations to the east. Prior to 2001, more than 60% of eastbound flights departing to the west from Runway 25R flew west for some time and then turned to the right over the territory to the north of the airport.

In 2001, the FAA issued a FONSI/ROD to implement a new plan - "the Four Corner Post Plan" - that directed approximately 95% of the flights departing westward from Runway 25R but heading to the east to turn left over the territory to the south of the airport. The remaining 5% of the flights still turned right and completed the turn in the northerly direction, following a slightly different path from that taken before. According to the petitioners, this new plan was an improvement over the earlier route because it avoided flying above the more densely populated area to the north of the airport, including Las Vegas, or near the Nellis Air Force Base and North Las Vegas Airport.

In 2005, the FAA proposed another change to the flight paths: about a third of the eastbound flights departing west from Runway 25R would turn right along a new northern path, while two-thirds would continue the left turn under the Four Corner-Post Plan. The stated purpose of increasing the air traffic to the north was to improve airspace efficiency and reduce departure delays. On November 22, 2005, the FAA made available for public review and comment the Draft Supplemental Environmental Assessment (DSEA) of the proposed flight paths.

At the end of December 2005, after the publication of the DSEA, the FAA learned that its proposal violated the design criteria for flight paths in FAA Order 8260.44A, which establishes the minimum leg lengths between each "waypoint" - predetermined geographical positions that map out the desired departure path of the flights, including when the flight should begin its turn. The FAA Air Traffic Division then modified the proposed flight path by adding another waypoint, setting the maximum flight speed, and imposing some limits on the use of the procedure. Because these changes to the route still did not satisfy FAA Order 8260.44A, the Air Traffic Division also applied for a waiver of the design criteria pursuant to FAA Order 8260.19C. Such waivers are forwarded to the FAA Flight Technologies and Procedures Division for approval. See FAA Order 8260.19C § 830(i).

On November 14, 2006, the FAA made the Final Supplemental Environmental Assessment (FSEA) available to the public, and concurrently issued the FONSI/ROD, which gave agency approval to the proposed route without the need for a more detailed Environmental Impact Statement (EIS). See Notice of Availability, 71 Fed. Reg. 67949-03 (Nov. 24, 2006). At that point, however, the waiver of the design criteria had not been ...


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