United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2019 Decided July 7, 2020 

No. 18-1022 

JORDAN LOUIE, ET AL., 

PETITIONERS

v. 

STEPHEN DICKSON, ADMINISTRATOR AND FEDERAL AVIATION 

ADMINISTRATION, 

RESPONDENTS

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 Attorney General. 

Before: SRINIVASAN, Chief Judge, and GRIFFITH and 

KATSAS, Circuit Judges. 
2 

Opinion for the Court filed by Chief Judge SRINIVASAN. 

SRINIVASAN, Chief Judge: Petitioners, residents living 

near the Paulding Northwest Atlanta Airport, seek review of 

several Federal Aviation Administration actions related to a 

proposed airport expansion. Petitioners contend that those 

actions violate the Administrative Procedure Act, the National 

Environmental Policy Act, and the Department of 

Transportation Act. We dismiss the petitions for lack of 

jurisdiction because none of petitioners’ challenges involves an 

ongoing case or controversy. 

I. 

A. 

The Airport and Airway Improvement Act, 49 U.S.C. 

§§ 47101 et seq., authorizes funding for airport development 

and improvement projects. For a project to be eligible, the 

Secretary of Transportation must have received written 

assurances that the airport owner or operator “will maintain a 

current layout plan of the airport” 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 here, can implicate two statutes 

pertaining to environmental considerations: (i) the National 

Environmental Policy Act (NEPA), and (ii) Section 4(f) of the 

Department of Transportation Act. 

First, should approval constitute a “major Federal action[] 

significantly affecting the quality of the human environment,” 

NEPA requires preparation of an environmental impact 
3 

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 significant 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 “proposed 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 substantially 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 may also implicate Section 

4(f) of the Department of Transportation Act, which applies to 

approvals of a “transportation program or project.” 49 U.S.C. 

§ 303(c). Under that provision, 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 feasible alternative to using that 

land” and the project includes “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 responsibility for all airport grant amounts.” Id.

§ 47128(a). To be eligible, a State must have “agreed to 

comply with United States Government standard requirements 

for administering the block grant, 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 Northwest Atlanta Airport. The 

Paulding County Airport Authority, however, was unable to 

develop much of the originally planned area, leading the 

Authority to propose the expansion at issue. Because the 

Georgia Department of Transportation (GDOT) joined the 

FAA’s State block grant program in 2008, the expansion 

required GDOT approval. In 2011, GDOT approved a 

supplemental EA for the expansion and issued a FONSI. The 

FAA also approved the supplemental EA, but noted that its 

approval only provided the findings necessary for future action 

and did not thereby authorize any funding. 

Subsequently, the Airport Authority became interested in 

also developing commercial service 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 the 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 Certificate and Related Actions 
5 

at Paulding Northwest Atlanta 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 but 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 Operating Certificate and Related 

Actions and Notice for Public Hearing at Paulding Northwest 

Atlanta Airport, 80 Fed. 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 passed, FAA guidance required a 

written re-evaluation. See FAA Order 1050.1F, ¶ 9-1, J.A. 617. 

In May 2017, the Airport Authority issued and GDOT 

approved a written re-evaluation, concluding that the 2011 

supplemental EA remained valid 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 reconsideration of the FAA’s decision to 

concur in the written re-evaluation. 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 information relevant to 

environmental concerns had come to light. 
6 

In January 2018, the FAA denied reconsideration. The 

FAA first noted that petitioners’ request “may have been more 

appropriately directed to [GDOT],” because “the State ha[d] 

been responsible for most of the administrative responsibilities, 

including applicable environmental 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-evaluation given its sensitivity, but 

“withdrawal of the FAA’s concurrence would not require 

Georgia to withhold block 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 letter to GDOT, the FAA reiterated 

its view that GDOT is “responsible for administering 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 the 
7 

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

simultaneous concurrence in GDOT’s written re-evaluation; 

(iii) the FAA’s denial of reconsideration 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 question of our jurisdiction. 

The relevant doctrines are standing, 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) (mootness). We thus proceed 

claim by claim, and we ultimately 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 concurrence in GDOT’s written 

re-evaluation. Petitioners lack standing to pursue that claim. 

To satisfy the “irreducible constitutional minimum” of 

standing, petitioners must have suffered 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) (citation omitted). “The 
8 

party invoking federal jurisdiction bears the burden of 

establishing [those] elements.” Id. at 561. 

Petitioners allege injuries that would flow from 

construction of the airport expansion. For instance, petitioners 

Robert and Mary Board allege that they live on a section of 

Bluffy Creek that is home to threatened Cherokee darters, 

which they spend time observing. Petitioner Anthony Avery 

lives near and engages in hunting and other recreational 

activities in the Paulding Forest Wildlife Management Area, 

through which Bluffy Creek flows. Petitioners aver that 

construction of the expansion will increase erosion, 

sedimentation, and turbidity in Bluffy 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: the FAA’s withdrawal of its 

concurrence in the written re-evaluation. 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 environmental analysis, concluding 

that responsibility for that analysis lies solely with GDOT. 

Any injury attendant to construction 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 [petitioners] would be successful 

in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235 
9 

(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 claimed injuries and the challenged 

action. Assuming without deciding that the expansion is 

federal in character and requires the FAA’s approval, the 

FAA’s withdrawal of its concurrence makes clear that the 

agency has not given that approval. If anything, the FAA’s 

withdrawal makes the expansion, 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 concurrence 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 reconsideration of that concurrence, and the FAA’s 

withdrawal of the airport expansion 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 legally 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 affect the parties’ rights nor 

have a more-than-speculative chance 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 relief 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 seeking 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 acknowledge that a remand to the 

FAA to withhold its concurrence 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 concurrence, their challenges to the 

concurrence and denial of reconsideration are not moot. 

Petitioners suggest that we can vacate the mooting 

circumstance, restoring the FAA’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 expansion separately from the 

commercial service EA was pending, the FAA notified the 

Airport Authority that it had closed its file on the EA due to 
11 

insufficient progress and deemed the Authority’s application 

for an Airport Operating Certificate withdrawn. Accordingly, 

the FAA no longer needs nor intends to prepare a commercial 

service EA, as no application for an Operating Certificate 

remains pending. It follows that the issues presented by 

petitioners’ challenge to the FAA’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 [environmental impact statement] 

be prepared for all major federal actions with significant 

environmental impacts by dividing 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 that 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 “neither 

presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.” 

Transwestern Pipeline, 897 F.2d at 575. Petitioners’ challenge 

thus has become moot. 

* * * * * 

For the foregoing reasons, we dismiss the petitions for lack 

of jurisdiction. 

So ordered.