Center for Community Action & Environmental Justice v. Federal Aviation Administration

The Ninth Circuit Court of Appeals denied petitions for rehearing en banc of its decision rejecting NEPA challenges to an air cargo facility at the San Bernardino International Airport in southern California. The lawsuits were brought by the State of California and by the Center for Community Action and Environmental Justice, Sierra Club, Teamsters Local 1932, and two individuals. The petitioners’ claims included challenges to the Federal Aviation Administration’s conclusion that the project would not have a significant impact on greenhouse gas emissions.

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The Ninth Circuit Court of Appeals amended its opinion denying petitions for review that challenged the Federal Aviation Administration’s environmental review for an air cargo facility at the San Bernardino International Airport in southern California. The Ninth Circuit replaced its discussion of the petitioners’ cumulative impacts arguments, but still rejected the contention that the analysis of cumulative air impacts was deficient. The Ninth Circuit denied pending petitions for rehearing en banc as moot.

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In its petition for rehearing en banc, California argued that the majority’s decision created a new burden of proof for NEPA challenges that was inconsistent with Ninth Circuit precedent and that the approval of environmental analysis that was incomplete and inaccurate where impacts were uncertain and controversial also was at odds with Ninth Circuit precedent. California said the questions raised were of exceptional importance because the Ninth Circuit’s decision created “gaping loopholes for federal agencies in future actions” to undermine NEPA’s procedures and purpose.

California and a group of petitioners led by Center for Community Action and Environmental Justice (CCAEJ) filed petitions requesting rehearing en banc of the Ninth Circuit’s decision upholding the NEPA review for construction and operation of an air cargo facility at the San Bernardino International Airport in southern California. The CCAEJ petitioners also argued that the case presented questions of exceptional importance because the decision would “bring lasting, lung-burning harm to hundreds of thousands of San Bernardino residents who already breathe some of the most polluted air in the nation,” and that the decision’s harms would extend to anyone near a federally-approved project in the Ninth Circuit, “but the worst of these harms will fall unequally on Black and brown communities.” The CCAEJ petitioners contended that the Ninth Circuit’s decision adopted “a virtually insurmountable standard” for establishing NEPA violations that contravened Ninth Circuit precedent and also failed to hold the Federal Aviation Administration to the cumulative impacts standard established by precedent.

The Ninth Circuit Court of Appeals denied two petitions seeking review of the Federal Aviation Administration’s (FAA’s) environmental review for the construction and operation of an air cargo facility at the San Bernardino International Airport in southern California. One petition was filed by Center for Community Action and Environmental Justice, Sierra Club, Teamsters Local 1932, and two individuals. The other petition was filed by the State of California. The majority rejected the petitioners’ contentions that the FAA’s geographical boundaries for study areas resulted in a failure to “appropriately capture the true environmental impacts of the project” such as air quality and socioeconomic impacts. The majority also was not persuaded that the analysis of cumulative impacts was deficient, that the FAA’s calculations of truck trips associated with the project were erroneous, or that the FAA’s review under the National Environmental Policy Act (NEPA) was required to “meaningfully address” issued raised in the California Environmental Quality Act (CEQA) review, which California argued had found that the project could result in significant impacts on air quality, greenhouse gas emissions, and noise. With respect to greenhouse gases, the majority found that California had not refuted the NEPA environmental assessment’s rationale for finding no significant impact, which noted that the project’s greenhouse gas emissions would “comprise … less than 1 percent” of U.S. and global emissions. The majority said the rationale was not refuted by the CEQA analysis’s “cursory assumption” that a significant impact would result because the South Coast Air Quality Management District regional emissions thresholds would be exceeded, and that California had not articulated what impact might result from emissions exceeding this threshold. In addition, the Ninth Circuit rejected the petitioners’ assertion that the FAA failed to consider the project’s ability to meet state and federal air standards, including California’s greenhouse gas emission standards. The majority noted that the CEQA analysis had itself found no conflict with state plans, policies, or regulations aimed at reducing greenhouse gas emissions. Judge Rawlinson dissented, writing that the case “reeks of environmental racism,” and that the FAA’s determination that the project would have no significant environmental impact “does not past muster under NEPA.” She wrote that “[o]ur children and grandchildren are looking to us to stem this tide of pollution that is contributing to increasingly disastrous climate change” and that “[t]his emissions-spewing facility that disproportionately impacts communities of color and was not properly vetted is a good place to start.”

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