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United States Court of Appeals
For the First Circuit
SAVE OUR HERITAGE, INC., ET AL.,
FEDERAL AVIATION ADMINISTRATION,
SHUTTLE AMERICA CORPORATION and MASSACHUSETTS PORT AUTHORITY,
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL AVIATION ADMINISTRATION
Before Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Andrea C. Ferster for petitioners.
Elizabeth S. Merritt, Associate General Counsel, Paul W. Edmondson, General
Counsel, Anita C. Canovas, Assistant General Counsel, National Trust for
Historic Preservation, Frances Gould, Special Assistant Attorney General for
the Commonwealth of Massachusetts, Massachusetts Historical Commission, Neil
T. Proto, Patricia A. Deem and Verner Liipfert Bernhard, McPherson and Hand
on brief for National Trust for Historic Preservation, Commonwealth of
Massachusetts, Honorable Congressman Marty Meehan, Historic Concord, Inc.,
and Freedom's Way Heritage Association, Amici Curiae.
M. Alice Thurston, Environment and Natural Resources Division, Department of
Justice, with whom John C. Cruden, Acting Assistant Attorney General, James
C. Kilbourne, Environment and Natural Resources Division, Department of
Justice, and Daphne A. Fuller, Manager, Environmental Law Branch, Federal
Aviation Administration, were on brief for respondent.
Roscoe Trimmier, Jr. with whom Richard J. Lettieri, M. Concetta Burton, Amy
E. Serino, Ropes & Gray, David S. Mackey, Ira
M. Wallach and Michael P. Sady were on brief for intervenor Massachusetts
H. Bissell Carey, III, Clive D. Martin and Robinson & Cole LLP on brief
intervenor Shuttle America Corporation.
October 23, 2001
BOUDIN, Chief Judge. The Federal Aviation Administration ("FAA")
Shuttle America Airlines ("Shuttle America") to provide scheduled passenger
service to New York's LaGuardia Airport ("LaGuardia") from Hanscom Field
("Hanscom"), a general aviation airport that lies 15 miles northwest of
Boston abutting the towns of Bedford, Concord, Lexington, and Lincoln. The
petitioners--two preservationist organizations, three of the four towns
(Bedford is an intervenor), and stewards of several nearby historic
sites--seek review of the FAA decision on the ground that the agency did not
adequately consider the adverse effect of the additional Shuttle America
flights on historic and natural resources near Hanscom.
Hanscom has been a major aviation facility since 1940, when the Commonwealth
of Massachusetts first acquired the site to accommodate the U.S. Army Air
Corps. In 1973 the Massachusetts Port Authority ("MassPort") converted a
portion of the site into a general aviation facility serving corporate
aviation, flight schools, air charter operations, light cargo, and private
business and recreational flights. (The U.S. Air Force uses the remainder as
Hanscom Air Force Base.) In 1995, there were about 95,000 general aviation
and military flights (defined as a departure and an arrival) at Hanscom.
In recent years, MassPort and the FAA have expanded commercial passenger
service at Hanscom, seeking to lessen congestion at Boston's Logan
International Airport. These steps have concerned community groups who fear
that the increased noise, air pollution, and surface traffic from the
additional flights will harm the natural and historic resources near
Hanscom. These sites include Minute Man National Historic Park, Walden Pond,
and the homes of eminent American authors such as Ralph Waldo Emerson and
Louisa May Alcott. The main access road to Hanscom is a part of Route 2A,
which runs through the heart of Minute Man National Park.
In July 1999, MassPort backed a plan to let Shuttle America--a commuter
airline then operating out of several airports on the East Coast--provide
scheduled passenger service at Hanscom. To this end, Shuttle America asked
the FAA to add Hanscom to the list of airport destinations in its operating
specifications. MassPort asked the FAA to upgrade Hanscom's operating
certificate to a "full Part 139 certificate," which allows use of planes
with greater than 30 seats. See generally 14 C.F.R. Part 139 (2000).
The FAA granted both requests in September 1999, and Shuttle America
immediately commenced passenger service out of Hanscom, with four daily
round-trip flights. The FAA determined that it did not need to perform an
environmental analysis for the two approvals because they were categorically
excluded from review under the National Environmental Policy Act of 1969
("NEPA"), 42 U.S.C. § 4321 et seq. (1994). It also concluded that the
categorical exclusion under NEPA obviated the need for consultation under
Section 106 of the National Historic Preservation Act of 1966 ("NHPA"), 16
U.S.C. § 470f (1994).
The Advisory Council on Historic Preservation, which is authorized to
enforce NHPA, see 16 U.S.C. § 470s, questioned the FAA's reading of NHPA,
and petitioner Save Our Heritage unsuccessfully sought reconsideration and
rehearing of both the Part 139 certification and the addition of Hanscom to
Shuttle America's operating specifications. However, no party sought timely
judicial review of either of the FAA's decisions; such review is now
time-barred. 49 U.S.C. § 46110(a) (1994).(1)
In May 2000, Shuttle America applied for the operating specifications
amendment at issue in this case--an amendment to add LaGuardia to its list
of approved airport destinations. It proposed to make seven round-trip
flights between Hanscom and LaGuardia, with the possibility of eventually
expanding the service to ten flights a day. The FAA expressed doubt that
NHPA consultation was required, but in light of the Advisory Council's
earlier concerns, it decided it would be "prudent" to consult provisionally
with the Massachusetts Historical Commission, which the Commonwealth had
designated as its NHPA consulting agency. After conducting an environmental
analysis, the FAA proposed a finding that the additional flights to
LaGuardia would have no potential adverse effect on historic properties.
Petitioners Save Our Heritage and the Hanscom-area towns sent the FAA
detailed criticisms of its proposed finding, and the Massachusetts
Historical Commission also refused to concur. After providing additional
documentation in an unsuccessful effort to persuade the Commission, the FAA
terminated the consultation and, on October 27, 2000, issued the amendment
("the LaGuardia amendment"). Shuttle America began commercial service from
Hanscom to LaGuardia with five round-trip flights per day, later reaching a
peak of seven daily round-trip flights in January 2001.(2)
On direct review, 49 U.S.C. § 46110(a), petitioners now ask us to set aside
and enjoin the LaGuardia amendment on the grounds the FAA decision violated
NEPA, NHPA, and Section 4(f) of the Department of Transportation Act of
1966, 49 U.S.C. § 303(c) (1994) (originally codified at 49 U.S.C. § 1653(f)
(1970)). The statutory requirements are described below. The gist of the
FAA's position is that its "effects" determination--that the addition of
seven to ten flights a day would have no significant environmental
impact--exempted the amendment from or otherwise satisfied these
At the threshold, the FAA and supporting intervenors raise two objections to
our consideration of the case. The first is that the petitioners lack
Article III standing, and the second is that the petitions are effectively
out-of-time attacks on prior agency orders. Because the first challenge is
constitutional, we start with it.
The basic requirements for Article III standing are that the petitioner is
someone who has suffered or is threatened by injury in fact to a cognizable
interest, that the injury is causally connected to the defendant's action,
and that it can be abated by a remedy the court is competent to give.(3)
What constitutes a "cognizable interest" can present vexing problems, see
Chemerinsky, Federal Jurisdiction § 2.3, at 68-74 (3d ed. 1999), but here
the FAA and supporting intervenors concede that aesthetic and environmental
injury are cognizable, see Sierra Club v. Morton, 405 U.S. 727, 734 (1972).
Rather, the objections to standing are threefold. The first, and least
persuasive, is the suggestion that even if some individuals or organizations
are adversely affected by the increased flights, none of the petitioners or
identified members of petitioner organizations have shown that they are
among those injured. Admittedly, a specified petitioner or identified member
must be within the affected group. See Friends of the Earth, Inc. v. Laidlaw
Envt'l Servs., Inc., 528 U.S. 167, 181-84 (2000).
Here, the petitioners comprise nonprofit environmental or preservationist
associations such as Save Our Heritage; the towns located near Hanscom; and
at least two petitioners that own nearby historic sites: the Walden Woods
Project, which owns part of the Walden Woods site and operates a Thoreau
research and educational facility on it; and the Louisa May Alcott Memorial
Association, which manages the writer's home. It is sufficient for the case
to proceed if at least one petitioner has standing, Wash. Legal Found. v.
Mass. Bar Found., 993 F.2d 962, 971-72 (1st Cir. 1993).
There is little reason to doubt that the two nonprofit landowners (Walden
Woods Project and the Alcott Association) would be affected by both noise
and air pollution, given their function and proximity to Hanscom; and it is
likely, although unnecessary to decide, that the three towns themselves
would have a direct interest, e.g., in traffic congestion.(4) We need not
resolve whether the petitioner associations have established standing based
on the rather sparse allegations of injury to the interests of their
individual members. See Int'l Union, United Auto., Aero. & Agric. Implement
Workers of Am. v. Brock, 477 U.S. 274, 281-82 (1986).
Next, the FAA says that there is no actual or threatened adverse effect on
any petitioner because, according to the FAA's findings, the small number of
additional flights will have no significant environmental impact. At first
blush, this appears to be a question of the merits rather than one of
standing; the petitioners certainly allege substantial effects and challenge
both the FAA's contrary findings and the procedures used to reach them.
We need not rule out the possibility of cases where the claim of impact is
so specious or patently implausible that a threshold standing objection
might be appropriate. See, e.g., Town of Norwood, 202 F.3d at 406; Florida
Audubon Soc'y v. Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996). But beyond
that, we think that the likelihood and extent of impact are properly
addressed in connection with the merits and issues of harmless error. Breyer
& Stewart, Administrative Law and Regulatory Policy 1107 (2d ed. 1985); cf.
Bell v. Hood, 327 U.S. 678, 681-84 (1946). A reasonable claim of minimal
impact is enough for standing even though it may not trigger agency
Third, the FAA points out that the order here under review did not increase
the number of flights that Shuttle America is authorized to operate at
Hanscom. Given prior orders that are now beyond review, Shuttle America was
and is entitled to fly an unlimited number of flights to its other,
already-approved airports regardless of the outcome of this case. Thus, says
the FAA, the order permitting flights to LaGuardia cannot be the cause of
the alleged injury to petitioners, because it could fly the same number of
flights even if the order were overturned.
If the same number of flights carrying the same number of passengers would
be flown regardless of the present order, the order would hardly be the
but-for cause of any impact due to more flights or ground traffic. But as a
matter of common sense, Shuttle America likely sought authorization for
LaGuardia because it would generate some additional traffic over and above
its existing demand. Shuttle America has not shown or offered to show that
the number of flights and the amount of car traffic would be identical even
without the authorization. Petitioners asserting standing are not required
to negate every possibility that the outcome might be the same under highly
The FAA makes a separate and quite different threshold objection. It says
that petitioners are making out-of-time attacks on prior orders. It points
out that the statute imposes a 60-day limit on direct review, 49 U.S.C. §
46110(a), and, no petition for review having been filed within that time, it
argues that it is not open to petitioners now to challenge the orders
entered in September 1999 allowing Shuttle America to operate from Hanscom
and Hanscom to handle commercial flights using larger planes.
No doubt much of the impact on nearby natural and historic sites, assuming
the allegations are true, stems from these earlier orders and not from the
authorization to add a limited number of flights to LaGuardia. Nevertheless,
the petitioners are entitled to claim that an additional impact will be felt
from the now-authorized LaGuardia flights, over and above the effects of the
prior orders. Whether or not the plausible added effects are so slight as to
justify the shortcuts taken by the FAA is a merits issue yet to be
addressed; but it does not make an attack on this alleged incremental impact
an attack on the wrong order.
Only to the extent that petitioners are actually seeking redress from the
effects of the present orders are their petitions timely, and this
limitation must be borne in mind in considering the arguments. Admittedly,
there is some language in the briefs that appears to attack the earlier
orders because of alleged infirmities in its findings or procedures. But the
possibility that some of the petitioners' arguments are time-barred does not
defeat those actually directed to the more recent order.
This brings us to the merits. Although the claims can be segmented in
several ways, the underlying issues basically reduce themselves to two:
whether the FAA erred substantively in concluding that the additional
flights--up to ten new round trips a day--would have a de minimis
environmental impact and whether, regardless of impact, the FAA erred
procedurally in failing to consult further with governmental agencies
concerned with historic preservation. We begin with the "substantive" issue
which arises, in slightly different frameworks, under three different
The most familiar is NEPA, which requires agencies to develop a detailed
environmental impact statement (an "EIS") before undertaking "major Federal
actions significantly affecting the quality of the human environment." 42
U.S.C. § 4332(2)(C). The NEPA regulations permit agencies to conduct a less
demanding "environmental assessment" to determine whether an EIS is
required; if not, the agency must explain its determination in a "finding of
no significant impact." 40 C.F.R. §§ 1501.4 (2000).
In a regulation whose validity is not in dispute, the FAA effectively
concedes that the LaGuardia amendment qualifies as a major federal action.
Dep't of Transp., Fed. Aviation Admin. Order 1050.1D, "Policies and
Procedures for Considering Environmental Impacts," App. 4, ¶ 3(e).(5)
However, a categorical exclusion excuses the FAA from preparing either an
EIS or an environmental assessment for "operating specifications and
amendments thereto which do not significantly change the operating
environment of the airport." FAA 1050.1D, App. 4, ¶ 4(h).
This exclusion is itself qualified by an "extraordinary
provision which requires at least an environmental assessment for an
otherwise excluded action if the action is, inter alia, "likely to have an
effect that is not minimal on properties protected under Section 106 of
[NHPA] or Section 4(f) [of the Transportation Act of 1966]," or "likely to
be highly controversial on environmental grounds." FAA Order 1050.1D, ¶ 32.
Petitioners rely on both of these exceptions and argue that the additional
flights have more than minimal effects and were highly controversial.
NHPA and Section 4(f) impose different requirements than NEPA, in the
service of somewhat more focused interests; but the requirements of concern
here--with one possible qualification regarding an obligation to
consult--both turn (as with NEPA) on whether the agency action poses a
plausible environmental threat. A brief description of the two statutes
makes this clear.
NHPA, heavily relied on by petitioners, is designed to protect certain
"historic properties," which indisputably include sites near Hanscom.
Section 106 of the statute requires that prior to a proposed federal
"undertaking," the agency must "take into account the effect" on such
properties and allow the Advisory Council on Historic Preservation a
"reasonable opportunity to comment." 16 U.S.C. § 470f. The act thus imposes
both a substantive obligation to weigh effects in deciding whether to
authorize the federal action and a procedural obligation to consult. See
generally 36 C.F.R. Part 800 (2000).
The grant of a permit such as the LaGuardia authorization can certainly
qualify as an undertaking. 16 U.S.C. § 470w(7)(C); 36 C.F.R. § 800.16(y)
(2000); see also Sugarloaf Citizens Ass'n v. Fed. Energy Reg. Comm'n, 959
F.2d 508, 515 (4th Cir. 1992). But even if the approval of the LaGuardia
flights is assumed to be an undertaking, the substantive obligation to "take
into account the effect" of the flights on historic properties is beside the
point if there is no potential adverse effect. See 36 C.F.R. § 800.3(a)(1)
(2000). To that extent, the question under NEPA and under NHPA is the same:
whether the FAA erred in finding that any impact of the newly authorized
flights on the surrounding area was de minimis.
The last of the three statutes--Section 4(f) of the Department of
Transportation Act--is even more stringent where it applies. It protects
certain public parks and historic sites, again indisputably including some
near Hanscom, from any "transportation program or project" requiring the
"use" of such park or land, unless certain quite restrictive tests have been
met. To proceed in the teeth of such a "use," the agency must find that
there is no feasible alternative to using that land and that the program or
project includes all possible planning to minimize harm. 49 U.S.C. § 303(c).
At first blush, one might think that Section 4(f) could have nothing to do
with authorizing new flights from an existing, physically unaltered airport;
but the statute has been read to apply not only to a physical use or
occupancy of protected parks or land but also to activities that will have a
serious indirect impact on the protected park or land--a so-called
"constructive use." 23 C.F.R. § 771.135(p)(1)(iii) (2000); Morongo Band of
Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 583 (9th Cir. 1998).
Once again, the FAA's finding that the LaGuardia flights would have only a
de minimis effect would avoid the statute if the finding were to be upheld.
Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982).
What, then, underpins the FAA's finding of de minimis impact in this case?
The starting point is that independent of the LaGuardia flights, Hanscom
handled just under 100,000 flights in 1999, and the disputed LaGuardia
flights would add, at a maximum, ten more flights per day. The more
realistic estimate of seven flights, according to the FAA, would produce an
annual increase in Hanscom flights of about 2.5 percent--a number that
absent special circumstances would approach the trivial.
This figure might at first appear to understate the potential environmental
effect because most existing Hanscom flights are private aircraft, which are
somewhat smaller and carry fewer passengers than even the modest 50
passenger turboprop planes used by Shuttle America. On the other hand, some
of the resulting ground traffic occurs in non-peak periods where existing
levels are light, and the new flights use turboprop aircraft considerably
quieter than the corporate jets and other civilian aircraft currently using
the airport. Thus, certain effects of the additional flights may be less
than the already small percentage increase in the number of flights.
But we need not rely on such inferences because here the FAA directly
studied the three types of potential effects from the additional flights:
noise, fuel emissions, and surface traffic from passenger travel to and from
the airport. As background for considering the effects, the FAA extrapolated
from MassPort's 1995 Generic Environmental Impact Report ("the GEIR"),
actually completed in 1997, which projected and extensively assessed the
noise, emissions, and traffic effects of future Hanscom operations under
zero, modest, and robust growth scenarios for commercial aviation. It also
relied on a surface traffic study performed in 2000 for the adjacent Hanscom
Air Force Base.
The FAA summarized its findings in two letters (on September 15, 2000 and
October 6, 2000) to the Massachusetts Historical Commission. The FAA first
compared the actual number of flights in 1999 (prior to the LaGuardia
authorization) with the GEIR's 1999 projections under the modest growth
scenario, and found that the GEIR's forecast was nearly exact (approximately
99,000 flights). This both confirmed the accuracy of the GEIR and, since the
GEIR indicated no significant environmental concerns under the modest growth
scenario, showed that pre-amendment baseline conditions were acceptable.
The FAA then conducted its own studies, which found that the additional
LaGuardia flights would not exacerbate environmental conditions. As to
noise, the FAA found that the additional flights would have a 1 percent or
less increase in the 65 DNL dB noise contour, which indicates noise levels
compatible with all land uses, see 14 C.F.R. Part 150, App. A, Tbl. 1
(2001), under a test in which a 17 percent increase is deemed significant.
It also found that the 65 DNL dB noise contour would continue to remain
"almost completely on airport property" and that most of Minute Man National
Park and Walden Woods would fall outside the 55 DNL dB line.(6) It thus
concluded that the area around Hanscom "should not experience appreciable
increases in aircraft noise or overflights" as a result of the added air
For air quality effects, the FAA used a model that took account of emissions
both from aircraft (accounting for factors such as equipment type and
including take-off, taxi, and idling time) and surface vehicles (both
passenger traffic and ground support equipment). The FAA concluded that the
potential emissions associated with the LaGuardia flights were "below de
minimis levels" as to both of the two critical ozone-producing pollutants
and that the new flights would not undercut the state's implementation plan
for air quality.
As for surface traffic, the FAA found that none of the flights would affect
peak morning traffic and only one would affect peak evening traffic.
Estimating that each flight would generate 70 additional vehicle trips, it
concluded that, at worst, the peak evening flight would increase traffic at
several intersections on Route 2A by only about 2.65 percent, which the FAA
deemed minimal and within the GEIR projection already found to be tolerable.
As for noise increase, it found that the increased traffic volume would
raise the peak level by less than 0.3 dB, "which is not a perceptible
increase." See 23 C.F.R. § 771.135(p)(5)(iii) (2001).
Remarkably, in their lengthy submissions, petitioners make no direct attack
on the aircraft noise or air pollution conclusions. Petitioners say only
that any reliance on the GEIR was "inappropriate" because it was prepared
for "unrelated" operations and is out of date. But in fact, the FAA verified
the GEIR's accuracy by finding that the actual growth at Hanscom as of 1999
coincided almost exactly with the GEIR "modest growth" scenario whose
environmental effects had already been considered.
The FAA's surface traffic analysis gets more attention, but even here their
discussion is limited to a few pages and is confined to three brands of
criticism: highly general claims that the agency's analysis is inadequate
(e.g., that the FAA should have discussed non-peak hour traffic or other
intersections); criticisms of the agency's factual assumptions (e.g., that
the FAA underestimated the number of vehicle trips that each passenger would
take); or abstract statements of disagreement by other entities (e.g.,
claims by the National Park Service that increased traffic would have
"serious detrimental impacts").
Under settled doctrine, the FAA's factual findings are conclusive if
supported by substantial evidence, 49 U.S.C. § 46110(c), and its reasoning
is tested for reasonableness under an arbitrary and capricious standard. 5
U.S.C. § 706(2)(A); Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164
F.3d 713, 718-20 (1st Cir. 1999). Further, it is up to those who assail its
findings or reasoning to identify the defects in evidence and the faults in
reasoning. Lomak Petroleum, Inc. v. Fed. Energy Reg. Comm'n, 206 F.3d 1193,
1198 (D.C. Cir. 2000).
Where the agency is dealing with a very complicated and technical subject,
this takes a lot of work by lawyers in culling the record and organizing the
information for the reviewing court, but it can be done. Here, the FAA's
final assessment--that a tiny percentage increase in flights would have a de
minimis effect--is presumptively inviting but, in principle, can be overcome
by a sustained and organized rebuttal. Nothing offered by petitioners
approaches such an effort. Gauzy generalizations and pin-prick criticisms,
in the face of specific findings and a plausible result, are not even a
start at a serious assault.
There is one obvious concern, and it is not about the impact of this
extremely modest increase in Shuttle America flights. Conceivably, Shuttle
America or another airline could appear with a succession of new-destination
proposals, each modest in size and in impact; and yet the cumulative effect
of the FAA approvals could be major even though no one approval was
significant in itself. Either a clear plan for such successive steps or
proof that such a succession was foreseeable could conceivably require an
overall prospective assessment. 40 C.F.R. §§ 1508.4, 1508.27(b)(7) (2000).
But we are not faced with any such developed claim in this case, nor do the
known facts suggest any such thing. At the time of Shuttle America's
application, commercial service at Hanscom had been a repeated failure, and
there was no reason to believe, at that point, that demand would
dramatically increase. Now, Shuttle America has reduced its operations and
is under the protection of the bankruptcy court. If Shuttle America or other
airlines undertake a series of proposed expansions, it will be time enough
to consider whether new and projected activities need to be considered
Petitioners say that even if the minimal effects finding stands, the FAA's
own regulations still required at least an environmental assessment under
NEPA because the proposed action was "highly controversial on environmental
grounds." FAA Order 1050.1D ¶ 32(b). The FAA's regulations, read literally,
indicate that this test is met if the "action" in question is "opposed on
environmental grounds by a Federal, State, or local government agency or by
a substantial number of the persons affected." FAA Order 1050.1D, ¶ 17.
Although the federal and state agencies did not formally oppose the
LaGuardia flights (instead simply asking for more study), the four adjoining
towns flatly opposed the new flights.
Citing a number of cases, the FAA argues that whether a project is
environmentally controversial does not depend on whether vocal opponents
exist but on whether reasonable disagreement exists over the project's risk
of causing environmental harm. See, e.g., Found. for N. Am. Wild Sheep v.
U.S. Dep't of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982). Otherwise, says
the FAA, projects could be bogged down by a "heckler's veto" despite the
lack of a genuine environmental threat. The FAA says that its own assessment
here that the project is not objectively controversial is entitled to
The FAA's approach certainly makes sense on policy grounds, but it is in
some tension with the wording of its own regulation, which seems to make
official opposition to the proposed "action" the trigger. By contrast, the
decisions on which the FAA relies interpret "controversial" as used in other
regulations, where the term modifies "effects"--phrasing more helpful to the
FAA's reading. See, e.g., id. (interpreting 40 C.F.R. § 1508.27(b)(4)).
We need not decide whether the latitude allowed to the agency in
interpreting its own regulations, see Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 512 (1994), stretches to a reading that may make policy sense but
appears at odds with the language. (Certainly the FAA might wish expressly
to clarify its language for future cases.) Rather, we think that even if the
"controversial" action regulation is read in petitioners' favor, it makes no
sense to remand for an environmental assessment where, as here, the FAA has
already made a reasoned finding that the environmental effects are de
minimis. In a nutshell, the failure to make a more formal assessment was
The doctrine of harmless error is as much a part of judicial review of
administrative action as of appellate review of trial court judgments.
Indeed, the Administrative Procedure Act, 5 U.S.C. § 706, says that in
reviewing agency action, the court "shall" take due account of "the rule of
prejudicial error," i.e., whether the error caused actual prejudice. And
while many of the decisions involve harmless substantive mistakes, no less
an authority than Judge Friendly has applied the harmless error rule to
procedural error, as has the circuit that most often reviews agency
Obviously, a court must be cautious in assuming that the result would be the
same if an error, procedural or substantive, had not occurred, and there may
be some errors too fundamental to disregard. But even in criminal cases
involving constitutional error, courts may ordinarily conclude that an
admitted and fully preserved error was "harmless beyond a reasonable doubt."
Chapman v. California, 386 U.S. 18, 24 (1967). Agency missteps too may be
disregarded where it is clear that a remand "would accomplish nothing beyond
further expense and delay." Kerner, 340 F.2d at 740.
We will assume that an environmental assessment and finding of no
significant impact might look somewhat different in form and follow somewhat
more complicated procedures than the study and findings by the FAA in this
case. See generally 40 C.F.R. §§ 1501.4, 1508.9, 1508.13 (2000). But this
case does not involve a simple refusal to study environmentally problematic
consequences. On the contrary, even though only seven to ten flights a day
are realistically at issue, the FAA examined each of the three principal
possible negative effects and found each to be de minimis, and petitioners
have provided no basis for serious doubt about those findings.
Under these circumstances, the presence of "controversy" is beside
point. Ultimately, the entire NEPA process is designed to make certain that
significant negative effects are taken into account. See Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 348-50 (1989). Remanding for a
differently named assessment, where the project's negative consequences have
already been analyzed and found to be absent and the findings have been
disclosed to interested parties, is a waste of time. If there was error in
denominating the assessment, it was patently harmless.
The same is true of petitioners' argument that the FAA committed a
procedural error by failing to consult adequately with the Massachusetts
Historical Commission. As already noted, NHPA imposes an obligation not only
to take account of adverse effects of an "undertaking" on historic
properties but also to permit the federal Advisory Council a "reasonable
opportunity to comment." This might sound like an obligation easily
discharged, but that is far from the case.
On the contrary, the Advisory Council's regulations, once they are
triggered, impose a complex consultative process. See generally 36 C.F.R
Part 800 (2000). Although the choice whether to approve the undertaking
ultimately remains with the agency, it must consult with the state historic
preservation officer--here, the Massachusetts Historical Commission--and
other "consulting parties" about adverse effects on historic properties,
document any no- effect finding, and submit the effects issue to binding
review by the Advisory Council if the state officer and the federal agency
disagree. 36 C.F.R. §§ 800.4, 800.5 (2000). If adverse effects are
established, even more complex steps are entailed.(8)
Understandably, agencies are loath to submit to this cumbersome process, and
the NHPA regulation in effect at the time the FAA acted contained a
categorical exemption from the consultation process where "the undertaking
does not have the potential to cause effects on historic properties." 36
C.F.R. § 800.3(a)(1) (2000). No consultation was required for this decision.
64 Fed. Reg. 27,063 (1999). The FAA found that the LaGuardia flights had no
such potential and, after some consultation with the state officer,
discontinued the process, relying on the regulation's exemption.
As already explained, petitioners make nothing close to a colorable attack
on the FAA's finding that the ten or fewer LaGuardia flights in question
would not adversely affect nearby historic sites in any substantial way.
Nevertheless, petitioners argue that under section 800.3(a)(1) of the
regulations, it is enough to trigger the consultation process that the FAA
action is a "type of activity"--a change in operating specifications--that
in some other case could have a potential adverse affect.
The main support for this reading comes from the language in the overarching
paragraph (section 800.3(a)) and the Advisory Council's amendment of section
800.3(a)(1) following the FAA decision in this case, 65 Fed. Reg. 77,698,
77,726 (Dec. 12, 2000), both of which employ the "type of activity"
language.(9) The Advisory Council claims that the amendment reflects what
the regulation always meant. Although it is not the most natural reading of
the original regulation, a definitive judgment as to meaning would have to
allow some deference to an agency's clarification. See Thomas Jefferson
Univ. 512 U.S. at 512.
At the same time, the current regulation could make the exemption useless to
the FAA--at least, if the FAA continues to view "operating specifications"
as the category to which "type" refers. One could easily think of some
change in operating specifications--as to equipment, frequency or other
variables--that could have a significant environmental effect. Of course,
the current regulation does not define the notion of a "type"; conceivably,
the FAA could still distinguish among "types" of amendments so as to
preserve some role for the categorical exception.
We need not resolve any of these questions. The consultative process under
NHPA, like the process of creating an EIS or environmental assessment under
NEPA, is intended in the end to identify and measure the adverse effects of
a proposed action on a protected interest (historic properties for NHPA, the
environment for NEPA) so that those effects can be considered by the
Here, the FAA did make specific findings that the effects on the environment
and on historic properties from ten or so daily flights, against the
backdrop of nearly 100,000 flights a year, would be de minimis. If the
question were at all close and if plausible doubts had been raised,
requiring a more elaborate assessment with more extensive consultation might
serve some useful purpose. But neither is the case and, in these
circumstances, the error (if there was one) is harmless.
The petition for review is denied.
1. The four Hanscom-area towns unsuccessfully sued in Massachusetts state
court to enjoin MassPort's application on the ground that it violated
promises made in MassPort's 1978 Hanscom Master Plan. Hanscom Area Towns
Comm. v. Mass. Port Auth., CIV No. 99-04461-F (Mass. Sup. Ct. 1999).
2. Since that time, Shuttle America has entered into Chapter 11
reorganization proceedings, but it continues to maintain one LaGuardia
flight daily and has stated that it hopes eventually to reinstate its
previous level of service.
3. Cotter v. Mass. Ass'n of Minority Law Enforcement Officers, 219 F.3d 31,
33 (1st Cir. 2000), cert. denied, 531 U.S. 1072 (2001); Town of Norwood,
Mass. v. Fed. Energy Reg. Comm'n, 202 F.3d 392, 405-06 (1st Cir.), cert.
denied, 531 U.S. 818 (2000).
4. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992); Douglas
County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir. 1995), cert. denied, 516
U.S. 1042 (1996).
5. FAA Order 1050.1D, which was in effect at the time of the LaGuardia
amendment, is the FAA's formal rule for implementing all three statutes
implicated in this case. 49 Fed. Reg. 28,501 (July 12, 1984). A proposed
revision to the order is not relevant here. See 64 Fed. Reg. 55,526 (Oct.
6. These noise contour lines demarcate the land area enclosed within a
particular level of noise, measured in "day-night average sound level"
("DNL") units, which represent the average decibel level at a particular
location over a 24-hour period.
7. Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir. 1965) (Friendly, J.).
See also Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 649 (D.C. Cir. 1994)
(failure to allow comment in hazardous waste standard case was harmless
error); Illinois Commerce Comm'n v. ICC, 848 F.2d 1246, 1257 (D.C. Cir.
1988) (order to prepare an environmental assessment or an EIS would be "a
meaningless gesture"); Gerber v. Babbitt, 146 F. Supp. 2d 1, 4-5 (D.D.C.
2001) (failure in NEPA case to make site location and map public was
harmless procedural error).
8. Assuming an adverse effect is found, the agency must consult with the
state officer and other consulting parties to develop and evaluate
mitigation measures. 36 C.F.R. § 800.6 (2000). The process is then completed
either by a "memorandum of agreement" between the agency and the consulting
parties, which then governs the federal undertaking, 16 U.S.C. § 470h-2(l),
or by termination of the consultation by the agency followed by the issuance
of formal comments by the Advisory Council, 36 C.F.R. § 800.7 (2000).
9. Prior to the amendment, 36 C.F.R. § 800.3(a) (2000) read as follows:
(a) The Agency Official shall determine whether the proposed Federal action
is an undertaking . . . and, if so, whether it is a type of activity that
has the potential to cause effects on historic properties. . . .
(1) If the undertaking does not have the potential to cause effects on
historic properties, the Agency Official has no further obligations under
The amendment changed section 800.3(a)(1) to read "If the undertaking is
type of activity that does not have the potential to cause effects on
historic properties. . . ." 65 Fed. Reg. 77,698, 77,728 (Dec. 12, 2000).