United States Court of Appeals

For the First Circuit

No. 00-2340

SAVE OUR HERITAGE, INC., ET AL.,

Petitioners,

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent,

and

SHUTTLE AMERICA CORPORATION and MASSACHUSETTS PORT AUTHORITY,

Intervenors.

ON PETITION FOR REVIEW OF AN ORDER OF

THE FEDERAL AVIATION ADMINISTRATION

Before

 Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Andrea C. Ferster for petitioners.

Elizabeth S. Merritt, Associate General Counsel, Paul W.

Edmondson, General Counsel, Anita C. Canovas, Assistant General

Counsel, National Trust for Historic Preservation, Frances

Gould, Special Assistant Attorney General for the Commonwealth

of Massachusetts, Massachusetts Historical Commission, Neil T.

Proto, Patricia A. Deem and Verner Liipfert Bernhard, McPherson

and Hand on brief for National Trust for Historic Preservation,

Commonwealth of Massachusetts, Honorable Congressman Marty

Meehan, Historic Concord, Inc., and Freedom's Way Heritage

Association, Amici Curiae.
M. Alice Thurston, Environment and Natural Resources

Division, Department of Justice, with whom John C. Cruden,

Acting Assistant Attorney General, James C. Kilbourne,

Environment and Natural Resources Division, Department of

Justice, and Daphne A. Fuller, Manager, Environmental Law

Branch, Federal Aviation Administration, were on brief for

respondent. 

Roscoe Trimmier, Jr. with whom Richard J. Lettieri, M.

Concetta Burton, Amy E. Serino, Ropes & Gray, David S. Mackey,

Ira

M. Wallach and Michael P. Sady were on brief for intervenor

Massachusetts Port Authority.

H. Bissell Carey, III, Clive D. Martin and Robinson & Cole

LLP on brief for intervenor Shuttle America Corporation.

October 23, 2001
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BOUDIN, Chief Judge. The Federal Aviation

Administration ("FAA") authorized Shuttle America Airlines

("Shuttle America") to provide scheduled passenger service to

New York's LaGuardia Airport ("LaGuardia") from Hanscom Field

("Hanscom"), a general aviation airport that lies 15 miles

northwest of Boston abutting the towns of Bedford, Concord,

Lexington, and Lincoln. The petitioners--two preservationist

organizations, three of the four towns (Bedford is an

intervenor), and stewards of several nearby historic sites--seek

review of the FAA decision on the ground that the agency did not

adequately consider the adverse effect of the additional Shuttle

America flights on historic and natural resources near Hanscom.

Hanscom has been a major aviation facility since 1940,

when the Commonwealth of Massachusetts first acquired the site

to accommodate the U.S. Army Air Corps. In 1973 the

Massachusetts Port Authority ("MassPort") converted a portion of

the site into a general aviation facility serving corporate

aviation, flight schools, air charter operations, light cargo,

and private business and recreational flights. (The U.S. Air

Force uses the remainder as Hanscom Air Force Base.) In 1995,

there were about 95,000 general aviation and military flights

(defined as a departure and an arrival) at Hanscom.
-4-

In recent years, MassPort and the FAA have expanded

commercial passenger service at Hanscom, seeking to lessen

congestion at Boston's Logan International Airport. These steps

have concerned community groups who fear that the increased

noise, air pollution, and surface traffic from the additional

flights will harm the natural and historic resources near

Hanscom. These sites include Minute Man National Historic Park,

Walden Pond, and the homes of eminent American authors such as

Ralph Waldo Emerson and Louisa May Alcott. The main access road

to Hanscom is a part of Route 2A, which runs through the heart

of Minute Man National Park. 

In July 1999, MassPort backed a plan to let Shuttle

America--a commuter airline then operating out of several

airports on the East Coast--provide scheduled passenger service

at Hanscom. To this end, Shuttle America asked the FAA to add

Hanscom to the list of airport destinations in its operating

specifications. MassPort asked the FAA to upgrade Hanscom's

operating certificate to a "full Part 139 certificate," which

allows use of planes with greater than 30 seats. See generally

14 C.F.R. Part 139 (2000). 

The FAA granted both requests in September 1999, and

Shuttle America immediately commenced passenger service out of

Hanscom, with four daily round-trip flights. The FAA determined
1The four Hanscom-area towns unsuccessfully sued in

Massachusetts state court to enjoin MassPort's application on

the ground that it violated promises made in MassPort's 1978

Hanscom Master Plan. Hanscom Area Towns Comm. v. Mass. Port

Auth., CIV No. 99-04461-F (Mass. Sup. Ct. 1999).

-5-

that it did not need to perform an environmental analysis for

the two approvals because they were categorically excluded from

review under the National Environmental Policy Act of 1969

("NEPA"), 42 U.S.C. § 4321 et seq. (1994). It also concluded

that the categorical exclusion under NEPA obviated the need for

consultation under Section 106 of the National Historic

Preservation Act of 1966 ("NHPA"), 16 U.S.C. § 470f (1994).

The Advisory Council on Historic Preservation, which

is authorized to enforce NHPA, see 16 U.S.C. § 470s, questioned

the FAA's reading of NHPA, and petitioner Save Our Heritage

unsuccessfully sought reconsideration and rehearing of both the

Part 139 certification and the addition of Hanscom to Shuttle

America's operating specifications. However, no party sought

timely judicial review of either of the FAA's decisions; such

review is now time-barred. 49 U.S.C. § 46110(a) (1994).1

In May 2000, Shuttle America applied for the operating

specifications amendment at issue in this case--an amendment to

add LaGuardia to its list of approved airport destinations. It

proposed to make seven round-trip flights between Hanscom and

LaGuardia, with the possibility of eventually expanding the
2Since that time, Shuttle America has entered into Chapter

11 reorganization proceedings, but it continues to maintain one

LaGuardia flight daily and has stated that it hopes eventually

to reinstate its previous level of service.

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service to ten flights a day. The FAA expressed doubt that NHPA

consultation was required, but in light of the Advisory

Council's earlier concerns, it decided it would be "prudent" to

consult provisionally with the Massachusetts Historical

Commission, which the Commonwealth had designated as its NHPA

consulting agency. After conducting an environmental analysis,

the FAA proposed a finding that the additional flights to

LaGuardia would have no potential adverse effect on historic

properties.

Petitioners Save Our Heritage and the Hanscom-area

towns sent the FAA detailed criticisms of its proposed finding,

and the Massachusetts Historical Commission also refused to

concur. After providing additional documentation in an

unsuccessful effort to persuade the Commission, the FAA

terminated the consultation and, on October 27, 2000, issued the

amendment ("the LaGuardia amendment"). Shuttle America began

commercial service from Hanscom to LaGuardia with five roundtrip flights per day, later reaching a peak of seven daily

round-trip flights in January 2001.2 
3Cotter v. Mass. Ass'n of Minority Law Enforcement Officers,

219 F.3d 31, 33 (1st Cir. 2000), cert. denied, 531 U.S. 1072

(2001); Town of Norwood, Mass. v. Fed. Energy Reg. Comm'n, 202

-7-

On direct review, 49 U.S.C. § 46110(a), petitioners now

ask us to set aside and enjoin the LaGuardia amendment on the

grounds the FAA decision violated NEPA, NHPA, and Section 4(f)

of the Department of Transportation Act of 1966, 49 U.S.C. §

303(c) (1994) (originally codified at 49 U.S.C. § 1653(f)

(1970)). The statutory requirements are described below. The

gist of the FAA's position is that its "effects" determination--

that the addition of seven to ten flights a day would have no

significant environmental impact--exempted the amendment from or

otherwise satisfied these requirements.

At the threshold, the FAA and supporting intervenors

raise two objections to our consideration of the case. The

first is that the petitioners lack Article III standing, and the

second is that the petitions are effectively out-of-time attacks

on prior agency orders. Because the first challenge is

constitutional, we start with it. 

The basic requirements for Article III standing are

that the petitioner is someone who has suffered or is threatened

by injury in fact to a cognizable interest, that the injury is

causally connected to the defendant's action, and that it can be

abated by a remedy the court is competent to give.3 What
F.3d 392, 405-06 (1st Cir.), cert. denied, 531 U.S. 818 (2000).

-8-

constitutes a "cognizable interest" can present vexing problems,

see Chemerinsky, Federal Jurisdiction § 2.3, at 68-74 (3d ed.

1999), but here the FAA and supporting intervenors concede that

aesthetic and environmental injury are cognizable, see Sierra

Club v. Morton, 405 U.S. 727, 734 (1972).

Rather, the objections to standing are threefold. The

first, and least persuasive, is the suggestion that even if some

individuals or organizations are adversely affected by the

increased flights, none of the petitioners or identified members

of petitioner organizations have shown that they are among those

injured. Admittedly, a specified petitioner or identified

member must be within the affected group. See Friends of the

Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 181-84

(2000).

Here, the petitioners comprise nonprofit environmental

or preservationist associations such as Save Our Heritage; the

towns located near Hanscom; and at least two petitioners that

own nearby historic sites: the Walden Woods Project, which owns

part of the Walden Woods site and operates a Thoreau research

and educational facility on it; and the Louisa May Alcott

Memorial Association, which manages the writer's home. It is

sufficient for the case to proceed if at least one petitioner
4Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7

(1992); Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir.

1995), cert. denied, 516 U.S. 1042 (1996).

-9-

has standing, Wash. Legal Found. v. Mass. Bar Found., 993 F.2d

962, 971-72 (1st Cir. 1993).

There is little reason to doubt that the two nonprofit

landowners (Walden Woods Project and the Alcott Association)

would be affected by both noise and air pollution, given their

function and proximity to Hanscom; and it is likely, although

unnecessary to decide, that the three towns themselves would

have a direct interest, e.g., in traffic congestion.4 We need

not resolve whether the petitioner associations have established

standing based on the rather sparse allegations of injury to the

interests of their individual members. See Int'l Union, United

Auto., Aero. & Agric. Implement Workers of Am. v. Brock, 477

U.S. 274, 281-82 (1986).

Next, the FAA says that there is no actual or

threatened adverse effect on any petitioner because, according

to the FAA's findings, the small number of additional flights

will have no significant environmental impact. At first blush,

this appears to be a question of the merits rather than one of

standing; the petitioners certainly allege substantial effects

and challenge both the FAA's contrary findings and the

procedures used to reach them.
-10-

We need not rule out the possibility of cases where the

claim of impact is so specious or patently implausible that a

threshold standing objection might be appropriate. See, e.g.,

Town of Norwood, 202 F.3d at 406; Florida Audubon Soc'y v.

Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996). But beyond that, we

think that the likelihood and extent of impact are properly

addressed in connection with the merits and issues of harmless

error. Breyer & Stewart, Administrative Law and Regulatory

Policy 1107 (2d ed. 1985); cf. Bell v. Hood, 327 U.S. 678, 681-

84 (1946). A reasonable claim of minimal impact is enough for

standing even though it may not trigger agency obligations. 

Third, the FAA points out that the order here under

review did not increase the number of flights that Shuttle

America is authorized to operate at Hanscom. Given prior orders

that are now beyond review, Shuttle America was and is entitled

to fly an unlimited number of flights to its other, alreadyapproved airports regardless of the outcome of this case. Thus,

says the FAA, the order permitting flights to LaGuardia cannot

be the cause of the alleged injury to petitioners, because it

could fly the same number of flights even if the order were

overturned.

If the same number of flights carrying the same number

of passengers would be flown regardless of the present order,
-11-

the order would hardly be the but-for cause of any impact due to

more flights or ground traffic. But as a matter of common

sense, Shuttle America likely sought authorization for LaGuardia

because it would generate some additional traffic over and above

its existing demand. Shuttle America has not shown or offered

to show that the number of flights and the amount of car traffic

would be identical even without the authorization. Petitioners

asserting standing are not required to negate every possibility

that the outcome might be the same under highly unusual

circumstances. 

The FAA makes a separate and quite different threshold

objection. It says that petitioners are making out-of-time

attacks on prior orders. It points out that the statute imposes

a 60-day limit on direct review, 49 U.S.C. § 46110(a), and, no

petition for review having been filed within that time, it

argues that it is not open to petitioners now to challenge the

orders entered in September 1999 allowing Shuttle America to

operate from Hanscom and Hanscom to handle commercial flights

using larger planes.

No doubt much of the impact on nearby natural and

historic sites, assuming the allegations are true, stems from

these earlier orders and not from the authorization to add a

limited number of flights to LaGuardia. Nevertheless, the
-12-

petitioners are entitled to claim that an additional impact will

be felt from the now-authorized LaGuardia flights, over and

above the effects of the prior orders. Whether or not the

plausible added effects are so slight as to justify the

shortcuts taken by the FAA is a merits issue yet to be

addressed; but it does not make an attack on this alleged

incremental impact an attack on the wrong order.

Only to the extent that petitioners are actually

seeking redress from the effects of the present orders are their

petitions timely, and this limitation must be borne in mind in

considering the arguments. Admittedly, there is some language

in the briefs that appears to attack the earlier orders because

of alleged infirmities in its findings or procedures. But the

possibility that some of the petitioners' arguments are timebarred does not defeat those actually directed to the more

recent order.

This brings us to the merits. Although the claims can

be segmented in several ways, the underlying issues basically

reduce themselves to two: whether the FAA erred substantively in

concluding that the additional flights--up to ten new round

trips a day--would have a de minimis environmental impact and

whether, regardless of impact, the FAA erred procedurally in

failing to consult further with governmental agencies concerned
5FAA Order 1050.1D, which was in effect at the time of the

LaGuardia amendment, is the FAA's formal rule for implementing

all three statutes implicated in this case. 49 Fed. Reg. 28,501

(July 12, 1984). A proposed revision to the order is not

relevant here. See 64 Fed. Reg. 55,526 (Oct. 19, 1999). 

-13-

with historic preservation. We begin with the "substantive"

issue which arises, in slightly different frameworks, under

three different statutes.

The most familiar is NEPA, which requires agencies to

develop a detailed environmental impact statement (an "EIS")

before undertaking "major Federal actions significantly

affecting the quality of the human environment." 42 U.S.C. §

4332(2)(C). The NEPA regulations permit agencies to conduct a

less demanding "environmental assessment" to determine whether

an EIS is required; if not, the agency must explain its

determination in a "finding of no significant impact." 40

C.F.R. §§ 1501.4 (2000). 

In a regulation whose validity is not in dispute, the

FAA effectively concedes that the LaGuardia amendment qualifies

as a major federal action. Dep't of Transp., Fed. Aviation

Admin. Order 1050.1D, "Policies and Procedures for Considering

Environmental Impacts," App. 4, ¶ 3(e).5 However, a categorical

exclusion excuses the FAA from preparing either an EIS or an

environmental assessment for "operating specifications and

amendments thereto which do not significantly change the
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operating environment of the airport." FAA 1050.1D, App. 4, ¶

4(h). 

This exclusion is itself qualified by an "extraordinary

circumstances" provision which requires at least an

environmental assessment for an otherwise excluded action if the

action is, inter alia, "likely to have an effect that is not

minimal on properties protected under Section 106 of [NHPA] or

Section 4(f) [of the Transportation Act of 1966]," or "likely to

be highly controversial on environmental grounds." FAA Order

1050.1D, ¶ 32. Petitioners rely on both of these exceptions and

argue that the additional flights have more than minimal effects

and were highly controversial. 

NHPA and Section 4(f) impose different requirements

than NEPA, in the service of somewhat more focused interests;

but the requirements of concern here--with one possible

qualification regarding an obligation to consult--both turn (as

with NEPA) on whether the agency action poses a plausible

environmental threat. A brief description of the two statutes

makes this clear.

NHPA, heavily relied on by petitioners, is designed to

protect certain "historic properties," which indisputably

include sites near Hanscom. Section 106 of the statute requires

that prior to a proposed federal "undertaking," the agency must
-15-

"take into account the effect" on such properties and allow the

Advisory Council on Historic Preservation a "reasonable

opportunity to comment." 16 U.S.C. § 470f. The act thus

imposes both a substantive obligation to weigh effects in

deciding whether to authorize the federal action and a

procedural obligation to consult. See generally 36 C.F.R. Part

800 (2000).

The grant of a permit such as the LaGuardia

authorization can certainly qualify as an undertaking. 16

U.S.C. § 470w(7)(C); 36 C.F.R. § 800.16(y) (2000); see also

Sugarloaf Citizens Ass'n v. Fed. Energy Reg. Comm'n, 959 F.2d

508, 515 (4th Cir. 1992). But even if the approval of the

LaGuardia flights is assumed to be an undertaking, the

substantive obligation to "take into account the effect" of the

flights on historic properties is beside the point if there is

no potential adverse effect. See 36 C.F.R. § 800.3(a)(1)

(2000). To that extent, the question under NEPA and under NHPA

is the same: whether the FAA erred in finding that any impact of

the newly authorized flights on the surrounding area was de

minimis. 

The last of the three statutes--Section 4(f) of the

Department of Transportation Act--is even more stringent where

it applies. It protects certain public parks and historic
-16-

sites, again indisputably including some near Hanscom, from any

"transportation program or project" requiring the "use" of such

park or land, unless certain quite restrictive tests have been

met. To proceed in the teeth of such a "use," the agency must

find that there is no feasible alternative to using that land

and that the program or project includes all possible planning

to minimize harm. 49 U.S.C. § 303(c). 

At first blush, one might think that Section 4(f) could

have nothing to do with authorizing new flights from an

existing, physically unaltered airport; but the statute has been

read to apply not only to a physical use or occupancy of

protected parks or land but also to activities that will have a

serious indirect impact on the protected park or land--a socalled "constructive use." 23 C.F.R. § 771.135(p)(1)(iii)

(2000); Morongo Band of Mission Indians v. Fed. Aviation Admin.,

161 F.3d 569, 583 (9th Cir. 1998). Once again, the FAA's

finding that the LaGuardia flights would have only a de minimis

effect would avoid the statute if the finding were to be upheld.

Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982).

What, then, underpins the FAA's finding of de minimis

impact in this case? The starting point is that independent of

the LaGuardia flights, Hanscom handled just under 100,000

flights in 1999, and the disputed LaGuardia flights would add,
-17-

at a maximum, ten more flights per day. The more realistic

estimate of seven flights, according to the FAA, would produce

an annual increase in Hanscom flights of about 2.5 percent--a

number that absent special circumstances would approach the

trivial.

This figure might at first appear to understate the

potential environmental effect because most existing Hanscom

flights are private aircraft, which are somewhat smaller and

carry fewer passengers than even the modest 50 passenger

turboprop planes used by Shuttle America. On the other hand,

some of the resulting ground traffic occurs in non-peak periods

where existing levels are light, and the new flights use

turboprop aircraft considerably quieter than the corporate jets

and other civilian aircraft currently using the airport. Thus,

certain effects of the additional flights may be less than the

already small percentage increase in the number of flights. 

But we need not rely on such inferences because here

the FAA directly studied the three types of potential effects

from the additional flights: noise, fuel emissions, and surface

traffic from passenger travel to and from the airport. As

background for considering the effects, the FAA extrapolated

from MassPort's 1995 Generic Environmental Impact Report ("the

GEIR"), actually completed in 1997, which projected and
-18-

extensively assessed the noise, emissions, and traffic effects

of future Hanscom operations under zero, modest, and robust

growth scenarios for commercial aviation. It also relied on a

surface traffic study performed in 2000 for the adjacent Hanscom

Air Force Base. 

The FAA summarized its findings in two letters (on

September 15, 2000 and October 6, 2000) to the Massachusetts

Historical Commission. The FAA first compared the actual number

of flights in 1999 (prior to the LaGuardia authorization) with

the GEIR's 1999 projections under the modest growth scenario,

and found that the GEIR's forecast was nearly exact

(approximately 99,000 flights). This both confirmed the

accuracy of the GEIR and, since the GEIR indicated no

significant environmental concerns under the modest growth

scenario, showed that pre-amendment baseline conditions were

acceptable. 

The FAA then conducted its own studies, which found

that the additional LaGuardia flights would not exacerbate

environmental conditions. As to noise, the FAA found that the

additional flights would have a 1 percent or less increase in

the 65 DNL dB noise contour, which indicates noise levels

compatible with all land uses, see 14 C.F.R. Part 150, App. A,

Tbl. 1 (2001), under a test in which a 17 percent increase is
6These noise contour lines demarcate the land area enclosed

within a particular level of noise, measured in "day-night

average sound level" ("DNL") units, which represent the average

decibel level at a particular location over a 24-hour period. 

-19-

deemed significant. It also found that the 65 DNL dB noise

contour would continue to remain "almost completely on airport

property" and that most of Minute Man National Park and Walden

Woods would fall outside the 55 DNL dB line.6 It thus concluded

that the area around Hanscom "should not experience appreciable

increases in aircraft noise or overflights" as a result of the

added air traffic.

For air quality effects, the FAA used a model that took

account of emissions both from aircraft (accounting for factors

such as equipment type and including take-off, taxi, and idling

time) and surface vehicles (both passenger traffic and ground

support equipment). The FAA concluded that the potential

emissions associated with the LaGuardia flights were "below de

minimis levels" as to both of the two critical ozone-producing

pollutants and that the new flights would not undercut the

state's implementation plan for air quality.

As for surface traffic, the FAA found that none of the

flights would affect peak morning traffic and only one would

affect peak evening traffic. Estimating that each flight would

generate 70 additional vehicle trips, it concluded that, at
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worst, the peak evening flight would increase traffic at several

intersections on Route 2A by only about 2.65 percent, which the

FAA deemed minimal and within the GEIR projection already found

to be tolerable. As for noise increase, it found that the

increased traffic volume would raise the peak level by less than

0.3 dB, "which is not a perceptible increase." See 23 C.F.R. §

771.135(p)(5)(iii) (2001). 

Remarkably, in their lengthy submissions, petitioners

make no direct attack on the aircraft noise or air pollution

conclusions. Petitioners say only that any reliance on the GEIR

was "inappropriate" because it was prepared for "unrelated"

operations and is out of date. But in fact, the FAA verified

the GEIR's accuracy by finding that the actual growth at Hanscom

as of 1999 coincided almost exactly with the GEIR "modest

growth" scenario whose environmental effects had already been

considered. 

The FAA's surface traffic analysis gets more attention,

but even here their discussion is limited to a few pages and is

confined to three brands of criticism: highly general claims

that the agency's analysis is inadequate (e.g., that the FAA

should have discussed non-peak hour traffic or other

intersections); criticisms of the agency's factual assumptions

(e.g., that the FAA underestimated the number of vehicle trips
-21-

that each passenger would take); or abstract statements of

disagreement by other entities (e.g., claims by the National

Park Service that increased traffic would have "serious

detrimental impacts"). 

Under settled doctrine, the FAA's factual findings are

conclusive if supported by substantial evidence, 49 U.S.C. §

46110(c), and its reasoning is tested for reasonableness under

an arbitrary and capricious standard. 5 U.S.C. § 706(2)(A);

Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d

713, 718-20 (1st Cir. 1999). Further, it is up to those who

assail its findings or reasoning to identify the defects in

evidence and the faults in reasoning. Lomak Petroleum, Inc. v.

Fed. Energy Reg. Comm'n, 206 F.3d 1193, 1198 (D.C. Cir. 2000).

Where the agency is dealing with a very complicated and

technical subject, this takes a lot of work by lawyers in

culling the record and organizing the information for the

reviewing court, but it can be done. Here, the FAA's final

assessment--that a tiny percentage increase in flights would

have a de minimis effect--is presumptively inviting but, in

principle, can be overcome by a sustained and organized

rebuttal. Nothing offered by petitioners approaches such an

effort. Gauzy generalizations and pin-prick criticisms, in the
-22-

face of specific findings and a plausible result, are not even

a start at a serious assault.

There is one obvious concern, and it is not about the

impact of this extremely modest increase in Shuttle America

flights. Conceivably, Shuttle America or another airline could

appear with a succession of new-destination proposals, each

modest in size and in impact; and yet the cumulative effect of

the FAA approvals could be major even though no one approval was

significant in itself. Either a clear plan for such successive

steps or proof that such a succession was foreseeable could

conceivably require an overall prospective assessment. 40

C.F.R. §§ 1508.4, 1508.27(b)(7) (2000). 

But we are not faced with any such developed claim in

this case, nor do the known facts suggest any such thing. At

the time of Shuttle America's application, commercial service at

Hanscom had been a repeated failure, and there was no reason to

believe, at that point, that demand would dramatically increase.

Now, Shuttle America has reduced its operations and is under the

protection of the bankruptcy court. If Shuttle America or other

airlines undertake a series of proposed expansions, it will be

time enough to consider whether new and projected activities

need to be considered together. 
-23-

Petitioners say that even if the minimal effects

finding stands, the FAA's own regulations still required at

least an environmental assessment under NEPA because the

proposed action was "highly controversial on environmental

grounds." FAA Order 1050.1D ¶ 32(b). The FAA's regulations,

read literally, indicate that this test is met if the "action"

in question is "opposed on environmental grounds by a Federal,

State, or local government agency or by a substantial number of

the persons affected." FAA Order 1050.1D, ¶ 17. Although the

federal and state agencies did not formally oppose the LaGuardia

flights (instead simply asking for more study), the four

adjoining towns flatly opposed the new flights.

Citing a number of cases, the FAA argues that whether

a project is environmentally controversial does not depend on

whether vocal opponents exist but on whether reasonable

disagreement exists over the project's risk of causing

environmental harm. See, e.g., Found. for N. Am. Wild Sheep v.

U.S. Dep't of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982).

Otherwise, says the FAA, projects could be bogged down by a

"heckler's veto" despite the lack of a genuine environmental

threat. The FAA says that its own assessment here that the

project is not objectively controversial is entitled to

deference.
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The FAA's approach certainly makes sense on policy

grounds, but it is in some tension with the wording of its own

regulation, which seems to make official opposition to the

proposed "action" the trigger. By contrast, the decisions on

which the FAA relies interpret "controversial" as used in other

regulations, where the term modifies "effects"--phrasing more

helpful to the FAA's reading. See, e.g., id. (interpreting 40

C.F.R. § 1508.27(b)(4)).

We need not decide whether the latitude allowed to the

agency in interpreting its own regulations, see Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 512 (1994), stretches to a

reading that may make policy sense but appears at odds with the

language. (Certainly the FAA might wish expressly to clarify

its language for future cases.) Rather, we think that even if

the "controversial" action regulation is read in petitioners'

favor, it makes no sense to remand for an environmental

assessment where, as here, the FAA has already made a reasoned

finding that the environmental effects are de minimis. In a

nutshell, the failure to make a more formal assessment was

harmless error.

The doctrine of harmless error is as much a part of

judicial review of administrative action as of appellate review

of trial court judgments. Indeed, the Administrative Procedure
7Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir. 1965)

(Friendly, J.). See also Steel Mfrs. Ass'n v. EPA, 27 F.3d 642,

649 (D.C. Cir. 1994) (failure to allow comment in hazardous

waste standard case was harmless error); Illinois Commerce

Comm'n v. ICC, 848 F.2d 1246, 1257 (D.C. Cir. 1988) (order to

prepare an environmental assessment or an EIS would be "a

meaningless gesture"); Gerber v. Babbitt, 146 F. Supp. 2d 1, 4-5

(D.D.C. 2001) (failure in NEPA case to make site location and

map public was harmless procedural error).

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Act, 5 U.S.C. § 706, says that in reviewing agency action, the

court "shall" take due account of "the rule of prejudicial

error," i.e., whether the error caused actual prejudice. And

while many of the decisions involve harmless substantive

mistakes, no less an authority than Judge Friendly has applied

the harmless error rule to procedural error, as has the circuit

that most often reviews agency action.7

Obviously, a court must be cautious in assuming that

the result would be the same if an error, procedural or

substantive, had not occurred, and there may be some errors too

fundamental to disregard. But even in criminal cases involving

constitutional error, courts may ordinarily conclude that an

admitted and fully preserved error was "harmless beyond a

reasonable doubt." Chapman v. California, 386 U.S. 18, 24

(1967). Agency missteps too may be disregarded where it is

clear that a remand "would accomplish nothing beyond further

expense and delay." Kerner, 340 F.2d at 740.
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We will assume that an environmental assessment and

finding of no significant impact might look somewhat different

in form and follow somewhat more complicated procedures than the

study and findings by the FAA in this case. See generally 40

C.F.R. §§ 1501.4, 1508.9, 1508.13 (2000). But this case does

not involve a simple refusal to study environmentally

problematic consequences. On the contrary, even though only

seven to ten flights a day are realistically at issue, the FAA

examined each of the three principal possible negative effects

and found each to be de minimis, and petitioners have provided

no basis for serious doubt about those findings.

Under these circumstances, the presence of

"controversy" is beside the point. Ultimately, the entire NEPA

process is designed to make certain that significant negative

effects are taken into account. See Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 348-50 (1989). Remanding for a

differently named assessment, where the project's negative

consequences have already been analyzed and found to be absent

and the findings have been disclosed to interested parties, is

a waste of time. If there was error in denominating the

assessment, it was patently harmless. 

The same is true of petitioners' argument that the FAA

committed a procedural error by failing to consult adequately
8Assuming an adverse effect is found, the agency must

consult with the state officer and other consulting parties to

develop and evaluate mitigation measures. 36 C.F.R. § 800.6

(2000). The process is then completed either by a "memorandum

of agreement" between the agency and the consulting parties,

which then governs the federal undertaking, 16 U.S.C. § 470h2(l), or by termination of the consultation by the agency

followed by the issuance of formal comments by the Advisory

Council, 36 C.F.R. § 800.7 (2000).

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with the Massachusetts Historical Commission. As already noted,

NHPA imposes an obligation not only to take account of adverse

effects of an "undertaking" on historic properties but also to

permit the federal Advisory Council a "reasonable opportunity to

comment." This might sound like an obligation easily

discharged, but that is far from the case.

On the contrary, the Advisory Council's regulations,

once they are triggered, impose a complex consultative process.

See generally 36 C.F.R Part 800 (2000). Although the choice

whether to approve the undertaking ultimately remains with the

agency, it must consult with the state historic preservation

officer--here, the Massachusetts Historical Commission--and

other "consulting parties" about adverse effects on historic

properties, document any no- effect finding, and submit the

effects issue to binding review by the Advisory Council if the

state officer and the federal agency disagree. 36 C.F.R. §§

800.4, 800.5 (2000). If adverse effects are established, even

more complex steps are entailed.8
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Understandably, agencies are loath to submit to this

cumbersome process, and the NHPA regulation in effect at the

time the FAA acted contained a categorical exemption from the

consultation process where "the undertaking does not have the

potential to cause effects on historic properties." 36 C.F.R.

§ 800.3(a)(1) (2000). No consultation was required for this

decision. 64 Fed. Reg. 27,063 (1999). The FAA found that the

LaGuardia flights had no such potential and, after some

consultation with the state officer, discontinued the process,

relying on the regulation's exemption.

As already explained, petitioners make nothing close

to a colorable attack on the FAA's finding that the ten or fewer

LaGuardia flights in question would not adversely affect nearby

historic sites in any substantial way. Nevertheless,

petitioners argue that under section 800.3(a)(1) of the

regulations, it is enough to trigger the consultation process

that the FAA action is a "type of activity"--a change in

operating specifications--that in some other case could have a

potential adverse affect.

The main support for this reading comes from the

language in the overarching paragraph (section 800.3(a)) and the

Advisory Council's amendment of section 800.3(a)(1) following

the FAA decision in this case, 65 Fed. Reg. 77,698, 77,726 (Dec.
9Prior to the amendment, 36 C.F.R. § 800.3(a) (2000) read as

follows:

(a) The Agency Official shall determine

whether the proposed Federal action is an

undertaking . . . and, if so, whether it is

a type of activity that has the potential to

cause effects on historic properties. . . .

(1) If the undertaking does not have the

potential to cause effects on historic

properties, the Agency Official has no

further obligations under section 106. 

The amendment changed section 800.3(a)(1) to read "If the

undertaking is a type of activity that does not have the

potential to cause effects on historic properties. . . ." 65

Fed. Reg. 77,698, 77,728 (Dec. 12, 2000). 

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12, 2000), both of which employ the "type of activity" language.9

The Advisory Council claims that the amendment reflects what the

regulation always meant. Although it is not the most natural

reading of the original regulation, a definitive judgment as to

meaning would have to allow some deference to an agency's

clarification. See Thomas Jefferson Univ. 512 U.S. at 512.

At the same time, the current regulation could make the

exemption useless to the FAA--at least, if the FAA continues to

view "operating specifications" as the category to which "type"

refers. One could easily think of some change in operating

specifications--as to equipment, frequency or other variables--

that could have a significant environmental effect. Of course,

the current regulation does not define the notion of a "type";

conceivably, the FAA could still distinguish among "types" of
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amendments so as to preserve some role for the categorical

exception.

We need not resolve any of these questions. The

consultative process under NHPA, like the process of creating an

EIS or environmental assessment under NEPA, is intended in the

end to identify and measure the adverse effects of a proposed

action on a protected interest (historic properties for NHPA,

the environment for NEPA) so that those effects can be

considered by the responsible agency. 

Here, the FAA did make specific findings that the

effects on the environment and on historic properties from ten

or so daily flights, against the backdrop of nearly 100,000

flights a year, would be de minimis. If the question were at

all close and if plausible doubts had been raised, requiring a

more elaborate assessment with more extensive consultation might

serve some useful purpose. But neither is the case and, in

these circumstances, the error (if there was one) is harmless.

The petition for review is denied.