United States Court of Appeals

For the First Circuit

No. 07-2820

TOWN OF MARSHFIELD,

Petitioner,

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE FEDERAL AVIATION ADMINISTRATION

Before

 Boudin, Stahl and Howard,

Circuit Judges.

Andrea C. Ferster on brief for petitioner.

Elizabeth Ann Peterson, Andrew C. Mergen, M. Alice Thurston,

Environmental & Natural Resources Division, Department of Justice,

and Ronald J. Tenpas, Assistant Attorney General, on brief for

respondent.

December 18, 2008
-2-

BOUDIN, Circuit Judge. The Federal Aviation

Administration ("FAA") has authority to prescribe aircraft approach

and departure patterns in order to minimize noise and ensure

safety. See 49 U.S.C. §§ 44502, 44505 (1994). In 2002, the agency

approved a change in the runway layout of Logan Airport in Boston

to include a new runway and, at the same time, began a study of

improved noise abatement measures. The outcome was the "Boston

Overflight Noise Study" ("BONS"), conducted with advice and

participation by various organizations.

The participants in BONS included not only the FAA but

also Massport, a Massachusetts entity that is responsible for Logan

Airport; the Logan Community Advisory Committee ("CAC"), a

community organization founded thirty years ago to represent

interests affected by Logan's operations (and a sometime adversary

of the airport); and the Boston Technical Advisory Committee

("BOS/TAC"), which provides technical advise to Massport and the

CAC.

In October 2007, the FAA adopted certain of the BONS

report's "phase I" measures for the rerouting of aircraft to

increase use of Logan approaches and departures over the ocean with

shoreline crossings at higher altitudes. In finding that these

measures required no environmental assessment ("EA") or

environmental impact statement ("EIS"), the FAA relied upon noise

studies to measure the impact on surrounding communities. Deferred
-3-

to phase 2 and an expected phase 3 were possible measures that

required more study and potentially more detailed and formal

environmental analysis.

The Town of Marshfield, Massachusetts, located about 25

miles south of Logan Airport, opposed the new phase 1 measures,

arguing that the new flight patterns would adversely affect its

residents. It now seeks judicial review of the FAA's decision

pursuant to 49 U.S.C. § 46110(a) (2004), claiming violations by

the FAA of the National Environmental Policy Act ("NEPA"), 42

U.S.C. § 4321 et seq. (2000), the Federal Advisory Committee Act

("FACA"), 5 U.S.C. App. 1, § 1 et seq. (2000), and the FAA's own

rules. We begin with the NEPA claim.

NEPA requires that "every recommendation or report on

proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment"

include a statement addressing, inter alia, "the environmental

impact of the proposed action" and "any adverse environmental

effects." 42 U.S.C. § 4332(c)(i), (ii). The NEPA statement or

EIS, usually entailing substantial efforts and a detailed analysis,

is not required if the agency supportably determines that no such

"significantly affecting" impact will result. Id.

Agency regulations sometimes provide "categorical

exclusions" identifying classes of actions that do not threaten

environmental damage and thus do not require the preparation of an
-4-

EA or EIS. See generally 40 C.F.R. § 1508.4 (2003). An FAA order

governing environmental assessments, FAA Order 1050.1E (June 10,

2004), provides (albeit in technical and somewhat opaque terms) a

categorical exclusion for various departure, routing and approach

procedures, see FAA Order 1050.1E, paras. 311g, 311i, 311p, an

exclusion that the FAA treats as applicable to phase 1; but the

exclusion is itself subject to a major qualification, which is at

issue in this case. 

The qualification states that where "extraordinary

circumstances" exist, an otherwise categorically excluded action

"could" require further environmental analysis, see FAA Order

1050.1E, Para. 304, and such circumstances include inter alia "an

impact on noise levels of noise-sensitive areas," id. at para.

304f. A further provision, dealing specifically with noise,

classes as significant a noise impact comprising an increase in

decibel level of 1.5 dB or more--based on a day-night average

("DNL")--to or above the 65 dB level. Id. at App. A, para. 14.3.

DNL is a measure that signifies the average day-night sound over

the course of a year. Id. at App. A, para. 14.5a.

The FAA found that Marshfield “would experience noise

below 45 DNL,” which was well below the threshold of 65 DNL contour

(the map line marking points where 65 dB registered). In fact, the

FAA expert found that at practically all of the testing points in

Marshfield, the noise levels would decrease, except at a single
-5-

measuring point (PT073) where the increase would be at most 0.2dB.

Another expert, who peer-reviewed the FAA study and conducted

additional data analysis, corroborated the agency's conclusion. 

The calculations were done using a computer modeling

program called the Integrated Noise Model ("INM"), which is one of

three methods authorized in FAA Order 1050.1E. Id. at App. A,

para. 14.2b. Marshfield says that the FAA should instead have used

a different program called the Noise Integrated Routing System

("NIRS"), also identified in FAA Order 1050.1E. Id. Ordinarily,

the agency would be entitled to use any reasonable methodology to

arrive at a decision, e.g., Hughes River Watershed Conservancy v.

Johnson, 165 F.3d 283, 289 (4th Cir. 1999), but Marshfield says

that FAA Order 1050.1E required the use of the NIRS methodology.

Marshfield's argument rests on a paragraph of FAA Order

1050.1E that says, most pertinently, that "[f]or air traffic

airspace actions where the study area is larger than the immediate

vicinity of an airport, incorporates more than one airport, or

includes actions above 3,000 feet AGL, noise modeling will be

conducted using NIRS." FAA Order 1050.1E App. A, para. 14.5e. 

The FAA does not claim that Marshfield is in the "immediate

vicinity" of Logan, nor deny that some of the routing changes

affect planes above 3,000 feet.

Rather, the FAA explains tersely in its brief that NIRS

is a computer modeling tool for studying air traffic among multiple
-6-

airports over wide areas, and it provides a reference to the

history of NIRS that arguably supports this gloss. In its reply

brief Marshfield merely counters that the provision it relies on

uses the word "will" and therefore requires the use of NIRS. It

makes no effort to counter the FAA's explanation or to explain why

NIRS calculation would be different or superior.

Where neither side has shed much light on a matter,

judges tend to fault the appellant; "it is up to those who assail

its findings or reasoning to identify the defects in evidence and

the faults in reasoning." Save Our Heritage, Inc. v. FAA, 269 F.3d

49, 60 (1st Cir. 2001). In this case, the FAA's assessment of

minimal impact is not implausible. If there is a stronger argument

for insisting that the FAA use NIRS or some other computer modeling

program in cases like this, it can await an instance in which a

more powerful argument is presented.

Marshfield next contends that its own expert calculated

that noise levels would increase at least five decibels for the

single data point location in Marshfield. Because both the FAA and

the CAC experts calculated the number at 0.2 dB, it would take a

detailed and cogent attack for us to find the FAA's factual

conclusion unsupported or irrational. Id., 269 F.3d at 60.

Marshfield's attack on the FAA figure of 0.2 dB for the location in

question may be detailed but it is not persuasive.
-7-

The FAA's brief identifies several seeming methodological

flaws in the Marshfield expert's assessment. These include (1) the

calculation of noise exposure based on selective days and times

when overflights were occurring rather than average DNL

measurements and (2) a faulty assumption that because some flights

produced noise of 50 dB or above all overflights produced noise at

this level. It also appears that the town's expert regards

increases at the 45 dB contour to be fatal whereas the FAA Order

1050.1E is primarily aimed at increases to or above the 65 dB

contour level. We think the FAA's finding is adequately based.

In a further NEPA claim, Marshfield insists that the FAA

erred by considering the impact of the phase 1 measures without

regard to the possible further impact of measures that might be

adopted during phase 2 or later phases. NEPA requires that a

cumulative analysis include future actions that are "reasonably

foreseeable." See 40 C.F.R. § 1508.7. The cumulative test is

meant to ensure that a project is assessed as a whole and not

sliced into "small component parts," id. § 1508.27(b)(7), which

individually judged might elude assessment.

However, when the FAA determined to implement phase 1,

some phase 2 action was foreseeable but one could only speculate as

to which phase 2 measures would be implemented, cf. City of Oxford

v. FAA, 428 F.3d 1346, 1354 (11th Cir. 2005) ("An agency must

consider the cumulative impacts of future actions only if doing so
-8-

would further the informational purposes of NEPA."); indeed, the

phrasing aimed to reserve decision on those steps that might

involve a substantial environmental impact. Further, the negative

impact of the phase 1 measures, as quantified by the noise study,

appears to have been so slight that problems of cumulative effect

vanish.

Further, the phase 1 measures were deemed independently

valuable regardless of what happened in phase 2. This is not a

case in which the agency's adoption of one step--say, the

construction of footings for a major bridge--makes sense only if

future steps are taken, and the first step effectively commits the

agency to a further step. The phases address the same general set

of problems, but it made perfect sense to move ahead phase 1

measures that posed no significant threat to the environment.

Finally, Marshfield seems to assert that an EA or EIS was

required so long as the phase 1 measures were "highly

controversial," which it regards as covering any introduction of

new noise over inhabited areas and with opposition by a town or

city. Although FAA Order 10501.1E, para. 304, uses the phrase

"highly controversial," it makes clear that controversy is not

decisive but is merely to be weighed in deciding what documents to

prepare.

This brings us to Marshfield's claim under a different

statute, namely, that the FAA violated the National Historical
-9-

Preservation Act, 16 U.S.C. §§ 470 et seq. (2000), by failing to

consult the historic preservation officer. As incorporated by the

FAA into its own regulations, the statute requires, in pertinent

part, that "[u]ndertakings that have the potential to significantly

affect historic properties pursuant to NEPA constitute an

extraordinary circumstance requiring an EA even if the project

normally qualifies as a categorical exclusion under NEPA." FAA

Order 1050.1E, App. A, para. 11.2a.

The FAA does not dispute that the area in and around

Marshfield contains various historic sites such as the Daniel

Webster Library, but it argues instead that under the pertinent

regulations, "[i]f the undertaking is a type of activity that does

not have the potential to cause effects on historical properties,

assuming such historic properties [are] present, the agency

official has no further obligations under section 106 or this

part." 36 C.F.R. 800.3(a)(1)(2000).

Here, the FAA found in the decision under review that

"[t]here would be no potential for effects on [protected] historic

or cultural resources," a view supported by the noise measurement

study. Accordingly, the FAA's task was to report and document this

finding to the preservation officer, 36 C.F.R. § 800.4(d)(1); City

of Oxford, 428 F.3d at 1356-57. Where the preservation officer

does not object, no consultation is required. See 1050.1E, para.

11.2b.
-10-

Marshfield's remaining challenge is that the FAA violated

the FACA statute and underlying regulations. Specifically, it

asserts that the agency relied on advisory committees subject to

the statute but failed to provide public notice of meetings, open

meetings to the public and assure that committee recommendations

were not controlled by special interests. See 5 U.S.C. App. §§

2(a), (b), 3(2), 10(a)(1), 10(a)(2); 41 C.F.R. § 102-3.105(g)

(2001).

FACA does not apply to every entity whose views may be

sought or considered by an agency--vast numbers of private

organizations express their views to regulators; rather, it applies

only to advisory committees or their equivalent "established or

utilized by one or more agencies." 5 U.S.C. App. § 3(2)(C).

Although the term "utilized" could be read broadly, courts have

read it to apply only to committees that are under the actual

management or control of the agency. Public Citizen v. United

States Dep't of Justice, 491 U.S. 440, 457-58 (1989); Center for

Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 840 (D.C.

Cir. 2008).

The two organizations that Marshfield deems to be covered

by the statute are CAC and BOS/TAC. The former is not even

remotely an advisory committee under the FAA's management or

control. And although the FAA plays a role in BOS/TAC, it is at

best a member of the forum and Marshfield points to no facts
-11-

showing that the FAA manages or controls BOS/TAC. See Byrd v. EPA,

174 F.3d 239, 246 (D.C. Cir. 1999).

The petition for review is denied.