The U.S. Court of Appeals for the Ninth Circuit Holds that the FAA and Port of Portland Failed to take a Hard Look at the Environmental Impacts of the Hillsboro Airport Third Runway Proposal

Miki Barnes
August 27, 2011

On August 26, 2011, the Court of Appeals for the Ninth Circuit Court ruled that the Federal Aviation Administration (FAA) failed to take a "hard look" at the indirect environmental impacts of constructing a third runway at the Hillsboro Airport (HIO) in Hillsboro, Oregon. Indirect effects are those environmental impacts that are caused by the action and occur later in time or are farther removed in distance but are still reasonably foreseeable. The Court of Appeals first determined that Petitioners Michelle Barnes, Blaine Ackley, and Patrick Conry sufficiently raised the issue of increased aviation activity as a result of constructing an additional runway at the Hillsboro airport. Then the Court of Appeals determined that the FAA failed to consider that an additional runway may result in increased aviation activity and its attendant environmental effects. As the Court noted:

"In essence, the agencies would like this court to take their word for it and not question their conclusory assertions in the EA [Environmental Assessment] that a new runway would not increase demand. Their word, however, is not entitled to the significant deference that courts give aviation activity forecasts actually performed by the FAA."

Because a new runway is significantly different than other infrastructural projects at airports (such as a new terminal or taxiway, extension of a runway, or a change in flight patterns), the potential for increased aviation activity must be considered by the FAA. This omission is particularly striking when the agencies acknowledged that a new runway is "the most effective capacity-enhancing feature an airfield can provide."

In response to the Port of Portland (Port) and the FAA's contention that a new runway at a general aviation airport would be unlikely to increase demand, the ruling countered,

"The agencies do not explain why this is so and do not refer to anything in the record backing their contention. It strains credulity to claim that increasing HIO's capacity significantly, which in turn would decrease delay, would have no bearing on the decision of flight schools, the military, emergency medical services, and business and private owners over whether to locate their aircraft at HIO or at other, considerably less busy, GA airports in the area."

Another argument put forth by the Port and the FAA was that HIO was approaching 100 percent of Airport Service Volume (ASV). The ruling explains that "[a]s used in the Hillsboro Master Plan, ASV represents a 'reasonable estimate of the maximum level of aircraft operations that can be accommodated at [an airport] in a year' at acceptable levels of service." The ruling, though noting that this matter is not under consideration in this decision, points out that FAA Order 5090.3C "defines ASV as the level of annual activity at which the average delay per operation is 4 minutes. By contrast, the HIO Master Plan appears to calculate the ASV as the level of annual activity at which the average delay per operation is slightly more than 1.2 minutes."

This discrepancy between the FAA Order and the HIO Master Plan suggests that the need for a third runway may have been exaggerated and so deserves further investigation.

The Ninth Circuit also determined that the agency likely failed to consider the cumulative impacts of two zoning changes implemented by the city of Hillsboro. However, because Petitioner Barnes challenged and successfully defeated these two zoning ordinances, the Ninth Circuit determined that the agencies failure to consider their impacts in conjunction with the expansion of the Hillsboro airport was harmless error: "It therefore appears that the two zoning changes would not be implemented. If so, the agencies' failure to consider them as part of its cumulative impacts analysis is harmless error."

The Ninth Circuit's ruling required the FAA to go back to the drawing board, and disclose the expected indirect environmental impacts of constructing an additional runway at the Hillsboro Airport. Whether this impact is significant, thus requiring a more rigorous Environmental Impact Statement, will likely be an issue addressed on remand.

Attorney for Petitioners, Sean T. Malone, said he was "pleased with the Court's thoughtful and well-reasoned opinion." Petitioners Blaine Ackley, Patrick Conry and Michelle Barnes echo these sentiments and extend their gratitude to the Court for hearing this case. Mr. Malone stated that he was "happy to see citizens willing to stand up for their rights under this nation's federal environmental laws so that agencies would fully and candidly disclose the environmental impacts of their actions. Without the Petitioners' willingness to challenge the unfounded conclusions, the agencies' violations would have gone unnoticed. The Petitioners should be commended for their efforts and success."

The Petitioners extend their sincere appreciation to Mr.Malone for representing them. His expertise, talent, and concerted efforts on their behalf laid the foundation for this favorable decision.

Go to http://www.ca9.uscourts.gov/datastore/opinions/2011/08/25/10-70718.pdf to access the full text of the decision (Barnes, Conry, and Ackley v. U.S. Department of Transportation, the FAA and Port of Portland, No. 10-70718).

Click on http://www.courthousenews.com/2011/08/25/39287.htm for an August 25, 2011 Courthouse News Services article Court Grounds Plans for a Third Airport Runway