United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided February 3, 2009

No. 07-1385

COUNTY OF DELAWARE, PENNSYLVANIA, A POLITICAL

SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA, ET

AL.,

PETITIONERS

v.

DEPARTMENT OF TRANSPORTATION, ET AL.,

RESPONDENTS

On Petition for Review of an Order 

of the Federal Aviation Administration

Barbara E. Lichman argued the cause for petitioners. With

her on the briefs were Berne C. Hart, Steven M. Taber, and

Jeffrey L. Karlin.

Lane McFadden, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Ellen J. Durkee, Attorney, and Ellen Athas, Attorney, Federal

Aviation Administration. Ronald M. Spritzer, Attorney, U.S.

Department of Justice, entered an appearance. 

Before: SENTELLE, Chief Judge, and RANDOLPH and

GARLAND, Circuit Judges.
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Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: On July 30, 2007, the Federal

Aviation Administration (“FAA”) published a notice in the

Federal Register entitled Federal Presumed to Conform Actions

Under General Conformity (“PTC List”). 72 Fed. Reg. 41,565.

The PTC List, promulgated by the FAA under authority granted

it by the Environmental Protection Agency (“EPA”), see 40

C.F.R. §§ 93.153(f)-(h), set forth a list of 15 categories of FAA

actions that are presumed to conform to state implementation

plans (“SIPs”) of national air quality standards in a particular

local area. One of the categories that the PTC List deemed

“presumed to conform” to any SIP was Category 14: “Air

Traffic Control Activities and Adopting Approach, Departure

and Enroute Procedures for Air Operations.” 72 Fed. Reg. at

41,578. According to the PTC List, alterations in air traffic

control activities at airports are presumed to conform to SIPs if

the airspace alterations “are designed to enhance operational

efficiency (i.e., to reduce delay), increase fuel efficiency, or

reduce community noise impacts by means of engine thrust

reductions.” Id. On September 14, 2007, a group of petitioners

comprised of public entities, associations, and individuals filed

a petition for review with this court, challenging the validity of

the PTC List and the FAA’s reliance on the PTC List in making

alterations to air traffic control routes in two separate instances.

We cannot reach the merits of the petitioners’ challenge,

however, because they have not established that they have met

Article III standing requirements. We therefore dismiss their

petition for review. 

I.

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, establishes

a joint state and federal program to control the country’s air

pollution by establishing national air quality standards. Under
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this program, states must adopt, and submit to the EPA for

approval, SIPs that provide for the implementation,

maintenance, and enforcement of these national standards in

each of their “air quality control regimes.” 42 U.S.C. §

7410(a)(1). Federal agencies must act consistently with these

state plans, and may only engage in or approve activities that

conform to SIPs. See 42 U.S.C. § 7506(c)(1). 

The EPA has promulgated regulations to assist federal

agencies in determining whether their actions conform with

SIPs. See 40 C.F.R. § 93.150 et seq. According to these general

conformity regulations, if an agency’s proposed action affects a

maintenance or nonattainment area, the agency must determine

whether its proposed action conforms to the Clean Air Act. See

40 C.F.R. § 93.153(b). In these instances, an agency must make

a conformity determination for each pollutant when the total

emissions caused by a proposed action would equal or exceed

specified emissions levels or would otherwise be deemed

regionally significant. See 40 C.F.R. §§ 93.153(b), (i). Prior to

making a conformity determination, however, agencies must

first conduct an applicability analysis to determine whether these

thresholds would be exceeded by the proposed action. See 40

C.F.R. § 93.153(c). If the applicability analysis reveals that the

effect would be at or below de minimis levels, then that activity

is exempt from the conformity analysis requirement. 40 C.F.R.

§§ 93.153(c)(1), (2). Such a conformity analysis is therefore

only required if the proposed agency conduct exceeds these de

minimis levels. 

The EPA also promulgated regulations allowing federal

agencies to establish categories of actions that are presumed to

conform to a SIP, and that therefore do not require either an

applicability or conformity determination. See 40 C.F.R. §§

93.153(f)-(h). Following the EPA’s prescription, the FAA

published the PTC List, which set forth 15 categories of actions
4

that are presumed to conform to any applicable SIPs. 72 Fed.

Reg. 41,565 (July 30, 2007). Because the activities listed on the

PTC List were presumed to conform to the SIPs, the FAA

determined that they did not require either a conformity

determination (Section 93.153(b)) or an applicability analysis

(Section 93.153(c)). 72 Fed. Reg. at 41,579. As mentioned

previously, Category 14 of the PTC List presumes that changes

in air traffic control activities at airports conform to the Clean

Air Act if those changes “are designed to enhance operational

efficiency (i.e., to reduce delay), increase fuel efficiency, or

reduce community noise impacts by means of engine thrust

reductions.” 72 Fed. Reg. at 41,578. 

II.

Petitioners challenge two recent FAA actions in which the

FAA altered the air traffic control activities at airports: (1) a

change in departure route at McCarran International Airport in

Las Vegas, Nevada (“Las Vegas Project”), and (2) a revision of

the airspace in the New York/New Jersey/Philadelphia area

(“Airspace Redesign”). The FAA modified its departure

procedures according to the Las Vegas Project on March 20,

2007. Before implementing this procedure, the FAA conducted

a Draft Supplemental Environmental Assessment of the Las

Vegas Project, and later issued a Finding of No Significant

Impact as a result of the Las Vegas Project. Both reports were

issued in November 2006. The reports concluded that the Las

Vegas Project would not result in increased emissions of the

relevant pollutants because the Las Vegas Project would cause

a “decrease in aircraft emissions of all the criteria and precursor

pollutants.” Accordingly, the FAA determined that the Las

Vegas Project had met the de minimis air emission requirement

in Section 93.153(c)(2), and therefore was exempt from the

conformity analysis requirement under Section 93.153(b).

 
5

The FAA implemented the Airspace Redesign on

September 28, 2007. The Airspace Redesign was based on over

nine years of environmental study, presented in a Draft

Environmental Impact Statement in June 2005 and then a Final

Environmental Impact Statement in July 2007. In the July 2007

Final Environmental Impact Statement for the Airspace

Redesign, the FAA noted that the PTC List had been created in

draft form, but was not yet enacted. Accordingly, the FAA

conducted a fuel consumption analysis to determine whether the

Airspace Redesign would result in emissions that would exceed

the applicable de minimis emission levels for the surrounding

areas. This study concluded that airline fuel consumption would

in fact be reduced under the proposed Airspace Redesign, and

that this reduction would in turn reduce emissions rather than

increase them. The FAA determined, unsurprisingly, that a

reduction in emissions was clearly a de minimis impact on the

emission levels for the areas surrounding the Airspace Redesign.

Accordingly, the FAA determined in its Final Environmental

Impact Statement that the Airspace Redesign was exempt, under

Section 93.153(c), from having to conduct an additional

conformity analysis under Section 93.153(b). 

Later, the FAA issued a Corrected Record of Decision when

several errors or omissions not relevant to this case were

discovered. In this Corrected Record of Decision, the FAA

reaffirmed its findings in the Final Environmental Impact

Statement that the Airspace Redesign was exempt, under

Section 93.153(c), from a conformity analysis under Section

93.153(b), because the fuel consumption analysis revealed that

the project “would clearly reduce rather than increase

emissions.” The FAA also noted that, in the time between the

issuance of the Final Environmental Impact Statement and the

Corrected Record of Decision, the FAA had finally promulgated

the PTC List. Accordingly, based on its findings in the Final

Environmental Impact Statement, and the new promulgation of
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the PTC List, the FAA found that the Airspace Redesign was

“either exempt or presumed to conform under” the PTC List. 

Shortly after these two airspace alterations were

implemented, two petitioners (City of Las Vegas and Nevada

Environmental Coalition) and others not represented here filed

a petition for review of the Las Vegas Project in the Ninth

Circuit. That petition is currently awaiting resolution. Twelve

groups of petitioners, including two from this case (County of

Delaware and Heinz Wildlife Refuge), filed with this court a

similar petition for review of the Airspace Redesign. Final

briefs are due in that case by March 3, 2009. 

In the present case, the petitioners do not challenge the

substantive merits of either airspace alteration, or the FAA’s

findings and conclusions in implementing the projects. Rather,

the petitioners challenge the validity of the PTC List, and argue

that the FAA’s reliance on the PTC List in enacting the Las

Vegas Project and the Airspace Redesign caused the FAA to

disregard its obligations under the Clean Air Act to provide a

complete analysis of the potential adverse impacts on the air

quality of the areas surrounding these airspace alterations. This,

in turn, injures the County of Delaware and the City of Las

Vegas (“public entity petitioners”) because they are unable to

determine whether the quality of the air that they govern is in

compliance with their respective SIPs. The remaining

petitioners are also injured because they are at increased risk of

being affected by unquantified aircraft emissions, which could

affect the quality of the air they breathe. 

III.

Article III of the United States Constitution limits the role

of the federal judiciary to resolving cases and controversies.

U.S. Const. art. III, § 2; see, e.g., Chicago & Grand Truck Ry.
7

Co. v. Wellman, 143 U.S. 339, 345 (1892). “[T]he core

component of standing is an essential and unchanging part of the

case-or-controversy requirement of Article III.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). Accordingly

litigants must show that they have standing to appear before this

court before we may exercise jurisdiction over any of their

claims. Id. 

In order to establish the “‘irreducible constitutional

minimum of standing,’” a party must demonstrate “that it has

suffered a ‘concrete and particularized’ injury that is: [1] actual

or imminent [2] caused by or fairly traceable to the act being

challenged in the litigation, and [3] redressable by the court.”

City of Dania Beach v. FAA, 485 F.3d 1181, 1185 (D.C. Cir.

2007) (citing Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663

(D.C. Cir. 1996) (en banc)); see also Defenders of Wildlife, 504

U.S. at 560-61. According to Defenders of Wildlife, a litigant

may also have standing to challenge an agency’s failure to abide

by a procedural requirement, provided that this requirement was

“designed to protect some threatened concrete interest” of the

litigant. Defenders of Wildlife, 504 U.S. at 573 n.8; see Fla.

Audubon Soc’y, 94 F.3d at 664-65. To demonstrate standing in

such cases, it is not enough to show that the agency omitted

some procedural requirement; to establish a so-called procedural

injury, the plaintiff must also show that it is “substantially

probable that the procedural breach will cause the essential

injury to the plaintiff’s own interest.” Fla. Audubon Soc’y, 94

F.3d at 665. However, a litigant “who alleges a deprivation of

a procedural protection to which he is entitled never has to prove

that if he had received the procedure the substantive result

would have been altered. All that is necessary is to show that

the procedural step was connected to the substantive result.”

Sugar Cane Growers Coop. of Fla v. Veneman, 289 F.3d 89, 94-

95 (D.C. Cir. 2002). This court must dismiss the petition if any

element of constitutional standing is found lacking. In this case,
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the petition for review must be dismissed because it fails to meet

both the causation and redressability requirements. 

Causation

First, the petitioners have failed to establish that their injury

was caused by the FAA’s promulgation of and reliance on the

PTC List in enacting these two airspace alterations. In order to

establish causation sufficient for standing, a plaintiff asserting

procedural injuries must demonstrate that there is a “substantial

probability that the substantive agency action that disregarded

a procedural requirement created a demonstrable risk . . . of

injury to the particularized interests of the plaintiff.” Fla.

Audubon Soc’y, 94 F.3d at 669 (citation omitted); see also Ctr.

for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1167 (D.C.

Cir. 2005) (explaining standard for establishing causation in

procedural injury cases). Here, the petitioners’ affidavits assert

that their alleged injuries are caused by the PTC List because the

FAA relied on the PTC List when it implemented the Airspace

Redesign and the Las Vegas Project, which in turn increased the

risk of potentially adverse effects that these two airspace

alterations would have on the areas in which the petitioners live.

This argument has no support in the record. The record

reveals that the FAA did not rely on the promulgated PTC List

in issuing either airspace alteration, and that the applicability

analyses supporting an exemption for both airspace alterations

predated the promulgation of the PTC List. The PTC List was

officially promulgated on July 30, 2007. 72 Fed. Reg. 41,565.

Based on this fact alone, the FAA clearly did not—and could

not—rely on the finalized PTC List in undertaking the two

airspace alterations. In fact, the Las Vegas Project predates the

promulgation of the PTC List by eight months. Both the Final

Supplemental Environmental Assessment and the Record of

Decision for the Las Vegas Project were issued in November
9

2006. Similarly, the Final Environmental Impact Statement for

the Airspace Redesign was issued in July 2007, prior to the

promulgation of the final PTC List later that month. 

The petitioners point to two statements by the FAA as

evidence that the PTC List did not, in fact, predate the issuance

of the Las Vegas Project or the Airspace Redesign, and that,

consequently, the FAA’s reliance on the PTC List caused the

petitioners’ injuries. First, the petitioners point to the FAA’s

statement in an opposition brief in the Ninth Circuit challenge

to the Las Vegas Project asking the Ninth Circuit to apply the

PTC List in that matter. Petitioners argue that this is evidence

that the FAA believed the PTC List applied when it issued the

Las Vegas Project. This argument is ludicrous. An agency

relies on a rule at the point that the rule is final, not before. It is

undisputed that the Las Vegas Project was enacted eight months

before the PTC List was promulgated. A statement from a

parties’ brief in a wholly separate matter, taken out of context,

does not alter this finding. Therefore, the petitioners have

not—and cannot—establish a causal link between the PTC List

and the issuance of the Las Vegas Project. 

Second, the petitioners point to a sentence in the FAA’s

Corrected Record of Decision for the Airspace

Redesign—which was issued in September 2007, after the PTC

List was promulgated—as proof that the FAA relied on the PTC

List in enacting the Airspace Redesign. In the Corrected Record

of Decision, the FAA stated that “[b]ased upon the

[Environmental Impact Statement, issued in July 2007,] . . . the

proposed airspace redesign alternatives and the selected project

are either exempt or presumed to conform under the [nowfinalized PTC List].” This statement, the petitioners argue,

clearly establishes that the FAA relied on the PTC List in

enacting the Airspace Redesign, at least in part, because the

FAA stated that the Airspace Redesign was “presumed to
10

conform” under the PTC List. The only reason that such a

presumption would be used in this way would be if the

presumption were part of a finalized rule, and the FAA relied on

that rule. Therefore, the petitioners argue that their injuries

arising out of the Airspace Redesign were caused by the PTC

List because the FAA relied on the presumption of conformity

set forth therein when it issued the Corrected Record of Decision

for the Airspace Redesign.

 

The court is not moved. In its Corrected Record of

Decision for the Airspace Redesign, the FAA indicated that the

Airspace Redesign’s presumption of conformity was but one of

two alternative grounds on which it based its finding that there

was no significant adverse environmental impact caused by the

Airspace Redesign. As mentioned previously, the FAA also

conducted an independent fuel burn analysis of the previous air

traffic design versus that under the proposed Airspace Redesign.

Based on this analysis, the FAA concluded that the Airspace

Redesign “would clearly reduce rather than increase emissions.”

As a result, the FAA determined that the Airspace Redesign was

exempt under Section 93.153(c) from conducting a full

conformity analysis under Section 93.153(b). The petitioners

have not challenged either the validity of these findings or the

FAA’s conclusions from it. Accordingly, we must assume that

both the study and the FAA’s conclusions are valid. See City of

Cleveland, Ohio v. FERC, 773 F.2d 1368, 1374 (D.C. Cir.

1985). We must also assume, at least for the purposes of this

standing analysis, that the FAA’s unchallenged finding that the

Airspace Redesign was exempt under Section 93.153(c) was

valid. Because the FAA rested its finding on a valid ground that

did not involve the PTC List, it is irrelevant whether the FAA

found in the alternative that it did not have to conduct a full

conformity analysis because the PTC List allowed it. Even if

this alternative determination were incorrect, and we do not

speak to whether it is, the FAA’s valid finding that the Airspace
11

Redesign was exempt under Section 93.153(c) establishes that

the FAA’s approval of the Airspace Redesign without

conducting a full conformity analysis would still stand.

Accordingly, the petitioners cannot establish that their alleged

injuries were caused by the FAA’s reliance on the PTC List in

enacting the two airspace alterations at issue. 

Redressability

Finally, the petitioners have also failed to establish that this

court can, in this action, actually redress any injury to the

petitioners that might have been caused by the FAA’s

promulgation of the PTC List. We reach this conclusion for the

same reasons set forth in our discussion of the causation

element. 

In order to determine redressability, the court must examine

“whether the relief sought, assuming that the court chooses to

grant it, will likely alleviate the particularized injury alleged.”

Fla. Audubon Soc’y, 94 F.3d at 663-64 (footnote omitted) (citing

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38-39

(1976)). Here, the petitioners seek to overturn the PTC List and

remand the FAA’s two airspace redesigns so that the FAA may

be forced to conduct additional analyses surrounding the two

redesigns. Accordingly, the court’s redressability determination

depends on whether overturning the PTC List would likely

alleviate the petitioners’ injuries.

 

Overturning the PTC List will not redress the petitioners’

harm. As mentioned previously, the FAA did not—and could

not—rely on the PTC List in enacting the Las Vegas Project or

the Airspace Redesign. Rather, the FAA relied on other

independent analyses to support its decision to enact the two

redesigns without conducting an additional and more

encompassing conformity analysis under Section 93.153(b).
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Therefore, even if this Court were to overturn the PTC List, the

FAA would still not be required to conduct additional analyses,

because the FAA already conducted these analyses and found

them to be sufficient support for enacting the two redesigns.

The law does not require them to do more. See 40 C.F.R. §

93.153(c). If the petitioners have redress, it must be by a direct

challenge to the merits of the two redesigns—something the

petitioners have already undertaken in both the Ninth Circuit

and this Circuit. Accordingly, the petitioners also lack standing

because their injuries cannot be redressed here. 

IV.

Because the petitioners have failed to establish that they

have standing to appear before this court, their petition for

review of the PTC List is hereby dismissed.