# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2019 Decided July 7, 2020

No. 18-1022

J ORDAN L OUIE

, ET AL

., P ETITIONERS

v.

S TEPHEN D ICKSON

, A DMINISTRATOR AND F EDERAL A VIATION
A DMINISTRATION

,

R ESPONDENTS

Consolidated with 18-1336

On Petitions for Review of Actions of

the Federal Aviation Administration

Peter R. Steenland Jr. argued the cause for petitioners.

With him on the brief was James R. Wedeking

.

J. David Gunter II , Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Jeffrey Bossert Clark , Assistant Attorney General, and Eric

Grant , Deputy Assistant A ttorney General.

Before: S RINIVASAN

, Chief Judge, and G RIFFITH and

K ATSAS

, Circuit Judges

.2

Opinion for the Court filed by Chief Judge S RINIVASAN

.

S RINIVASAN

, Chief Judge : Petitioners, residents living near the Paulding Northwest Atla nta Airport, seek review of

several Federal Aviation Administration actions related to a proposed airport expansion. Pe titioners contend that those

actions violate the Administrati ve Procedure Act, the National Environmental Policy Act, and the Department of Transportation Act. We dismis s the petitions for lack of jurisdiction because none of petit ioners’ challenges involves an ongoing case or controversy.

I.

A.

The Airport and Airway Im provement Act, 49 U.S.C. §§ 47101 et seq. , authorizes funding fo r airport development and improvement projects. For a project to be eligible, the Secretary of Transportation must have received written assurances that the airport owne r or operator “will maintain a current layout plan of the airpor t” with certain portions of the plan subject to the Secretary’s approval. Id. § 47107(a)(16)(B). The Secretary has delegated that authority to the Federal Aviation Administration (FAA). See id. § 106(g); Village of

Bensenville v. FAA , 457 F.3d 52, 58 (D.C. Cir. 2006). The FAA’s approval, as relevant he re, can implicate two statutes pertaining to environmental cons iderations: (i) the National Environmental Policy Act (NEPA) , and (ii) Section 4(f) of the Department of Tran sportation Act.

First, should approval constitute a “major Federal action[] significantly affecting the quality of the human environment,” NEPA requires preparation of an environmental impact3

statement. 42 U.S.C. § 4332(C) . To decide whether an environmental impact statement is required, the FAA prepares an environmental assessment (EA). 40 C.F.R. § 1501.4(b). An EA “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact

statement.” Id. § 1508.9(a)(1). If an EA determines an environmental impact statement is not required, the FAA issues a finding of no signifi cant impact (FONSI). Id. § 1501.4(e).

FAA guidance establishes time limits on the validity of FONSIs. In particular, “[i]f major steps toward implementation of the proposed action,” such as construction, “have not commenced within three years from [a FONSI’s issuance], a written re-evaluation must be prepared.” FAA Order 1050.1F, ¶ 9-1.b, J.A. 616. A new or supplemental EA must be prepared unless the written re-evaluation indicates, as relevant here: (i) that the “p roposed action conforms to plans [addressed in the FONSI] and there are no substantial changes

in the action that are relevant to environmental concerns”; and (ii) that the “[d]ata and analyses contained in the previous EA

and FONSI or EIS are still substa ntially valid and there are no significant new circumstances or information relevant to

environmental concerns.” Id. at ¶ 9-2.c, J.A. 617.

Second, the FAA’s approval ma y also implicate Section 4(f) of the Department of Transportation Act, which applies to approvals of a “transportation pr ogram or project.” 49 U.S.C. § 303(c). Under that provisi on, the FAA may not approve a project requiring “the use of publicly owned land of a . . . recreation area . . . of national, State, or local significance,” unless “there is no prudent and feas ible alternative to using that land” and the project include s “all possible planning to minimize harm” to the protected resource. Id.4

The FAA may also delegate some of those responsibilities

to States. Under the FAA’s State block grant program, the FAA may designate up to twenty qualified States “to assume administrative responsi bility for all air port grant amounts.” Id. § 47128(a). To be eligible, a State must have “agreed to comply with United States Gove rnment standard requirements for administering the block gran t, including [NEPA], State and local environmental policy acts, Executive orders, agency regulations and guidance, and other Federal environmental requirements.” Id. § 47128(b)(4).

B.

In 2005, the FAA approved an EA and issued a FONSI on construction of the Paulding Nort hwest Atlanta Airport. The Paulding County Airport Author ity, however, was unable to develop much of the origina lly planned area , leading the Authority to propose the expansion at issue. Because the Georgia Department of Tran sportation (GDOT) joined the FAA’s State block grant pr ogram in 2008, the expansion required GDOT approval. In 2011, GDOT approved a supplemental EA for the expansi on and issued a FONSI. The FAA also approved the supplemen tal EA, but noted that its approval only provided the findings necessary for future action and did not thereby authorize any funding.

Subsequently, the Airport Auth ority became interested in also developing commercial se rvice from the Airport, which requires an Airport Operating Certificate. See 14 C.F.R. §§ 139.1(a), 139.101(a). Because GDOT lacks authority under the State block grant program to grant that certificate, the Airport Authority applied to th e FAA. In April 2014, the FAA announced its proposed EA for the application. See Notice of Intent to Prepare an Environmental Assessment for the Proposed Part 139 Operating Cert ificate and Related Actions5

at Paulding Northwest Atlant a Airport, 79 Fed. Reg. 22,177 (Apr. 21, 2014). According to the notice, the EA would consider the impacts of twenty listed proposed actions, including the expansion, and of actions unrelated to

commercial service bu t expected around the same time. Id. at 22,177–78. In October 2015, the FAA issued a draft EA. See Notice of Availability for Draft Environmental Assessment for the Proposed Part 139 Opera ting Certificate and Related

Actions and Notice for Public Hearing at Paulding Northwest Atlanta Airport, 80 Fe d. Reg. 64,053 (Oct. 22, 2015).

During the FAA’s work on that EA, the Airport Authority and GDOT separately studied the expansion. GDOT, as noted, had already done so in the 2011 supplemental EA, but since more than three years had pa ssed, FAA guidance required a

written re-evaluation. See FAA Order 1050.1F, ¶ 9-1, J.A. 617. In May 2017, the Airport Au thority issued and GDOT approved a written re-evaluat ion, concluding that the 2011 supplemental EA remained vali d and that no new supplemental EA was necessary. In September 2017, the FAA concurred in

that written re-evaluation and withdrew the expansion from the scope of the then-pending EA. See Notice of Modification to Previously Published Notice of Intent to Prepare an Environmental Assessment, 82 Fed. Reg. 42,221, 42,221 (Sept. 6, 2017).

Petitioners, residents living in the vicinity of the Airport who had submitted comments on the draft EA concerning the expansion, requested reconsidera tion of the FAA’s decision to

concur in the written re-evalua tion. Petitioners contended that FAA guidance required a new supplemental EA because the expansion did not conform to the plans studied in the 2011 supplemental EA, certain data underlying it was no longer valid, and significant new in formation relevant to

environmental concerns had come to light.6

In January 2018, the FAA denied reconsideration. The FAA first noted that petitioners’ request “may ha ve been more appropriately directed to [GDOT],” because “the State ha[d] been responsible for most of th e administrative re sponsibilities, including applicable environm ental review requirements,” since joining the State block grant program in 2008. Letter from Michael S. Fineman, FAA, to Peter Steenland, Sidley Austin (Jan. 18, 2018), J.A. 128. The FAA explained that it

had reviewed the written re-evalu ation given its sensitivity, but

“withdrawal of the FAA’s c oncurrence would not require Georgia to withhold bl ock grant funding.” Id. At any rate, the FAA concluded that petitioners had not demonstrated that the

written re-evaluation failed to satisfy agency guidance. In response, petitioners filed a petition for review, which is Case

No. 18-1022 in our court.

In October 2018, while that case was pending, the FAA

reversed course and decided to withdraw its concurrence in the

written re-evaluation. In a le tter to GDOT, the FAA reiterated

its view that GDOT is “res ponsible for ad ministering the Airport Improvement Program ,” including “environmental review.” Letter from Elliott Black, Dir., Office of Airport Planning and Programming, FAA, to Russell McMurry, Commissioner, GDOT (Oct. 31, 2018), J.A. 131. The FAA explained that its concurrence had been “a mere gesture of support” and had “no legal effect.” Id. Without commenting

on the written re-evaluation’s validity, the FAA decided to withdraw its concurrence to keep “lines of responsibility and accountability” clear. Id. Petitioners then filed another petition for review, which is Case No. 18-1336 in our court.

The two cases are now consolidated in our court, and together, they present challenges to four FAA actions: (i) the

FAA’s decision to withdraw the expansion from the7

then-pending commercial se rvice EA; (ii) the FAA’s

simultaneous concurrence in GDOT’s written re-evaluation; (iii) the FAA’s denial of recons ideration of that concurrence; and (iv) the FAA’s subsequent decision to withdraw its concurrence. Contending that those actions violate the APA, NEPA, and Section 4(f), petitioners ask us to vacate all four

actions and remand to the FAA for further environmental analysis.

II.

We begin and end with the ques tion of our jurisdiction.

The relevant doctrines are sta nding, which generally turns on the circumstances at the commencement of the suit, and mootness, which generally turns on developments thereafter. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc. , 528 U.S. 167, 189 (2000). Each of those doctrines applies to each form of relief requested. See City of Los Angeles v. Lyons , 461 U.S. 95, 109 (1983) (standing); J.D. v. Azar , 925 F.3d 1291, 1307 (D.C. Cir. 2019) (moo tness). We thus proceed claim by claim, and we ultimate ly conclude that one or the other of the two doctrines requires dismissing each of the

claims before us.

A.

We begin with petitioners’ challenge to the FAA’s

decision to withdraw its c oncurrence in GDOT’s written

re-evaluation. Petitioners lack st anding to pursue that claim.

To satisfy the “irreducible constitutional minimum” of standing, petitioners must have suff ered an “injury in fact” that is both “fairly traceable to the challenged action” and likely to be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61 (1992) (c itation omitted). “The8

party invoking federal jurisd iction bears the burden of establishing [those] elements.” Id. at 561.

Petitioners allege injuries that would flow from construction of the airport expans ion. For instance, petitioners Robert and Mary Board allege th at they live on a section of Bluffy Creek that is home to threatened Cherokee darters, which they spend time obser ving. Petitioner Anthony Avery lives near and engages in hunting and other recreational activities in the Paulding Forest Wildlife Management Area, through which Bluffy Creek flow s. Petitioners aver that construction of the expansion will increase erosion, sedimentation, and turbidity in Bl uffy Creek. They allege that the expansion will harm their recreational and aesthetic interests, through disruption of Cherokee darter habitat, filling of wetlands, and clearing of trees.

Those injuries, while cognizable, are not fairly traceable to the challenged action: th e FAA’s withdrawal of its

concurrence in the written re-e valuation. Petitioners contend

that the FAA’s withdrawal of its concurrence authorizes the expansion. It does not. Instead, it removes the FAA’s

endorsement of GDOT’s environm ental analysis, concluding that responsibility for that an alysis lies sole ly with GDOT. Any injury attendant to constr uction of the expansion thus flows from GDOT’s approval and the Airport Authority’s decision to proceed, not from the FAA’s withdrawal of its approval.

That analysis, in petitioners’ view, improperly wades into

the merits of their claim. To be sure, “in reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the [petitioners], and must therefore assume that on the merits the [p etitioners] would be successful

in their claims.” City of Waukesha v. EPA , 320 F.3d 228, 2359

(D.C. Cir. 2003) (per curiam). Petitioners argue that we

therefore must assume there is “ [f]ederal action” sufficient to trigger NEPA, 42 U.S.C. § 4332( C), and a “transportation program or project” triggering Section 4(f), 49 U.S.C. § 303(c).

Doing so, however, only underscores the lack of a causal relationship between the claime d injuries and the challenged action. Assuming without deci ding that the expansion is federal in character and requi res the FAA’s approval, the

FAA’s withdrawal of its concurrence makes clear that the agency has not given that appr oval. If anything, the FAA’s withdrawal makes the expansi on, and in turn petitioners’ injuries, less likely under petitioners’ view of the merits. Tellingly, petitioners themselves sought that withdrawal in their request for reconsideration of the FAA’s concurrence, and

indeed still seek it here.

Perhaps petitioners could challenge some other FAA action approving or funding the expansion. But the FAA’s

withdrawal of its concurrenc e does the opposite: that action revokes the agency’s ostensible approval. Because petitioners’ injuries are not fairly traceable to that action, petitioners lack standing to challenge it.

B.

Petitioners’ remaining challenges concern the FAA’s concurrence in GDOT’s written re-evaluation, the FAA’s

denial of reconsider ation of that concu rrence, and the FAA’s withdrawal of the airport e xpansion from the then-pending

commercial service EA. Those challenges are all moot.

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a le gally cognizable interest in the

outcome.” Cty. of L.A. v. Davis , 440 U.S. 625, 631 (1979)10

(citation omitted). Mootness prevents federal courts from deciding controversies when “events have so transpired that the decision will neither presently af fect the parties’ rights nor have a more-than-speculative chan ce of affecting them in the

future.” Transwestern Pipeline Co. v. FERC , 897 F.2d 570, 575 (D.C. Cir. 1990). Thus, “if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual re lief whatever,” the appeal is moot. Church of Scientology of Cal. v. United States , 506 U.S. 9, 12 (1992) (citation omitted).

During the pendency of petitioners’ challenges to the

FAA’s concurrence in the written re-evaluation and denial of reconsideration, the FAA withdrew its concurrence, mooting those challenges. A challenge se eking an agency’s withdrawal

of a notice becomes moot when the agency withdraws the

notice. See Cierco v. Mnuchin , 857 F.3d 407, 415 (D.C. Cir. 2017). Here, petitioners acknow ledge that a remand to the

FAA to withhold its concurren ce would relieve any injuries stemming from it. That is exactly what the FAA has already done administratively through its withdrawal. Because we cannot grant any relief beyond that already afforded, petitioners’ challenges are moot.

Petitioners contend that, because they also challenge the

FAA’s withdrawal of its concu rrence, their challenges to the

concurrence and denial of r econsideration are not moot. Petitioners suggest that we can vacate the mooting circumstance, restoring the F AA’s concurrence. We cannot. Petitioners lack standing to request vacatur of the withdrawal.

Similarly, while petitioners’ challenge to the FAA’s

decision to consider the e xpansion separa tely from the commercial service EA was pending, the FAA notified the Airport Authority that it had cl osed its file on the EA due to11

insufficient progress and deemed the Authority’s application for an Airport Operating Certif icate withdrawn. Accordingly, the FAA no longer needs nor inte nds to prepare a commercial service EA, as no application for an Operating Certificate remains pending. It follows th at the issues presented by petitioners’ challenge to the F AA’s decision to consider the expansion separately from the commercial service EA are no longer live.

Petitioners’ challenge relies on the rule against segmentation, which prevents “an agency [from] avoid[ing] the NEPA requirement that an [env ironmental impact statement] be prepared for all major federal actions with significant environmental impacts by divi ding an overall plan into component parts, each involving action with less significant

environmental effects.” Taxpayers Watchdog, Inc. v. Stanley

, 819 F.2d 294, 298 (D.C. Cir. 1987) (per curiam). But no alleged avoidance persists when, as here, there is no longer any interrelated action contemplated. Nor have petitioners provided any reason to believe th at any new application for an Airport Operating Certificate is impending. As a result, whether the airport expansion and introduction of commercial service are too interrelated to be considered separately is a hypothetical issue. Any opinion addressing it would “neitherpresently affect the parties’ rights nor have a more-thanspeculative chance of affectin g them in the future.” Transwestern Pipeline , 897 F.2d at 575. Pe titioners’ challenge

thus has become moot.

* * * * *

For the foregoing reasons, we dismiss the petitions for lack of jurisdiction.

So ordered

.