PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1472

___________

TINICUM TOWNSHIP, PENNSYLVANIA,

an incorporated first class township;

COUNTY OF DELAWARE, PENNSYLVANIA,

a political subdivision of the

Commonwealth of Pennsylvania;

THOMAS J. GIANCRISTOFORO, individually and

in his capacity as President of the Tinicum Township

Board of Commissioners;

DAVID McCANN, an individual,

 Petitioners

v.

UNITED STATES

DEPARTMENT OF TRANSPORTATION;

SECRETARY OF TRANSPORTATION;

FEDERAL AVIATION ADMINISTRATION;

ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION;

CARMINE GALLO,

Regional Administrator, FAA Eastern Region,

 Respondents
2

CITY OF PHILADELPHIA,

Intervenor-Respondent

_______________________

On Petition for Review of an Order of the

United States Department of Transportation,

Federal Aviation Administration

_____________

Argued March 6, 2012

Before: SCIRICA, AMBRO and JORDAN, Circuit Judges.

(Filed: July 6, 2012)

BARBARA E. LICHMAN, ESQUIRE (ARGUED)

Buchalter Nemer

18400 Von Karman Avenue, Suite 800

Irvine, California 92612

SAM S. AUSLANDER, ESQUIRE

Eckell, Sparks, Levy, Auerbach, Monte,

 Sloane, Matthews & Auslander

344 West Front Street, P.O. Box 319

Media, Pennsylvania 19063

Attorneys for Petitioners

LANE N. McFADDEN, ESQUIRE (ARGUED)

MARY G. SPRAGUE, ESQUIRE

United States Department of Justice

Environment & Natural Resources Division
3

P.O. Box 23795, L'Enfant Plaza Station

Washington, D.C. 20026

Attorneys for Respondents

W. ERIC PILSK, ESQUIRE (ARGUED)

Kaplan, Kirsch & Rockwell

1001 Connecticut Avenue, N.W., Suite 800

Washington, D.C. 20036

SCOTT J. SCHWARZ, ESQUIRE

City of Philadelphia, Law Department

One Parkway, 1515 Arch Street

Philadelphia, Pennsylvania 19102

CATHERINE M. VAN HEUVEN, ESQUIRE

Kaplan, Kirsch & Rockwell

1875 Broadway, Suite 2300

Denver, Colorado 80202

Attorneys for Intervenor-Respondent

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

This is an appeal of the Federal Aviation 

Administration’s approval of a significant expansion of 

Philadelphia International Airport. Disputing the FAA’s air 
4

quality analysis, Petitioners1(collectively Tinicum) allege 

violations of the National Environmental Policy Act (NEPA), 

42 U.S.C. §§ 4321 et seq., and the consistency provision of 

the Airport and Airway Improvement Act, 49 U.S.C. §

47106(a)(1). Because we find the Federal Aviation 

Administration’s decision was not “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law,” 

5 U.S.C. § 706(2)(A), we will deny the petition for review. 

I.

A.

Philadelphia International Airport (PHL) is the 

primary commercial airport for the Philadelphia region and 

the ninth busiest airport in the United States. Since 1999, 

PHL has been among the ten most delayed airports in the 

National Airspace System and has contributed to delays at 

airports throughout the United States. The delays arise from

inadequate all-weather airfield capacity at PHL. The Airport’s 

runways are too short, too close together, and too few.

Aware of these shortcomings, the City of Philadelphia, 

which owns and operates PHL, commenced in 2000 a study 

of airport facility needs. The study found that, in its current 

configuration, delays at PHL would increase from an average 

of over ten minutes per operation in 2003, which the FAA 

considers severe, to over nineteen minutes per operation in 

 

1

This petition for review was filed by Delaware County, 

Tinicum Township, and two Township residents.
5

2025. The FAA warns that delays of this magnitude lead both 

passengers and airlines to avoid an airport. To forestall these 

mounting delays and the consequent loss of airlines, the City 

sought FAA approval to expand PHL by extending two 

existing runways and constructing a new runway. 

After receiving the City’s proposal in 2003, the FAA 

decided to prepare an Environmental Impact Statement (EIS) 

in accordance with NEPA. The PHL expansion project was 

designated high priority and slated for expedited 

environmental review under the Aviation Streamlining 

Approval Process Act, 49 U.S.C. §§ 47171-47175, and an 

executive order prioritizing national transportation 

infrastructure projects, Exec. Order No. 13274, 67 Fed. Reg. 

59,449 (Sept. 18, 2002). To comply with this national policy 

priority, the FAA collaborated with the City of Philadelphia, 

the Environmental Protection Agency (EPA), and several

other interested federal and state agencies to develop a 

streamlining agreement that established agency roles, 

milestones for agency actions, and a dispute resolution 

procedure.

As part of the process, the FAA developed an Air 

Quality Analysis Protocol, which set out the scope, models, 

and procedures for its air quality analysis. It circulated a draft 

of the Protocol for input from interested parties in 2005 and 

finalized the Protocol in 2006. In September 2008, having 

completed the studies called for in the Protocol, the FAA 

published a three-volume, 900-page draft EIS. In relevant 

part, the draft set forth the procedures used to analyze the 

project’s air quality impacts and the results of that analysis. It 
6

also incorporated by reference a draft Air Quality Technical 

Report, which further detailed the methodologies and data 

underlying the FAA’s analysis. 

To assess the project’s air quality impacts, the FAA 

conducted a detailed emissions analysis of two potential 

project alternatives (“build” alternatives “A” and “B”) and a 

third alternative of not undertaking the project (the “no-build”

alternative). In a table known as an emissions inventory, the 

FAA estimated the total project-related emissions of six air 

pollutants under the two build alternatives for each of the 

thirteen years of construction. The FAA calculated the future 

impact of the project on PHL’s operational emissions by 

comparing predicted total emissions under the build and nobuild alternatives in two post-construction years, 2025 and 

2030.2To obtain a more detailed assessment of operational 

air quality impacts, the FAA conducted dispersion modeling,

an analytical technique that converts an emissions inventory 

into estimates of outdoor concentrations of pollutants at 

particular locations.

In November 2008, the EPA submitted comments on 

the draft EIS citing alleged data omissions in the FAA’s 

analysis. The FAA considered and responded to each of the 

EPA’s comments in the final EIS, issued on August 20, 2010. 

Some of the FAA’s responses described revisions to the air 

quality analysis it had adopted based on EPA comments. 

 

2

The Project has been delayed because of the longer-thananticipated environmental review process. The FAA does not 

believe this delay affects its emissions estimates. 
7

Others explained the FAA’s decision to stand by its chosen 

analytical approach.

Appended to the final EIS was the FAA’s General 

Conformity Determination, a formal determination under the 

Clean Air Act and related regulations that the project would 

not interfere with Pennsylvania’s compliance with national air 

quality standards. In that document, the FAA summarized its 

findings: (1) operational emissions (i.e., Airport emissions 

after project completion) of volatile organic compounds 

(VOC), nitrogen oxides (NOx), fine particulate matter of less 

than 2.5 micrograms (PM2.5), and sulfur dioxide (SO2) would

be below the de minimis thresholds established by EPA 

regulations; (2) construction emissions of PM2.5 and SO2

would be below the de minimis levels; (3) construction 

emissions of NOx would exceed the de minimis thresholds in 

certain years, but the City of Philadelphia would be required 

to apply Airport Emission Reduction Credits to bring those 

emissions below the threshold;3and (4) VOC emissions 

would exceed de minimis levels during certain years of 

 

3 As required by a provision of the Vision 100—Century of 

Aviation Reauthorization Act, 49 U.S.C. § 47139, the EPA 

and FAA created the Voluntary Airport Low Emission 

Program, which awards Airport Emission Reduction Credits 

for the use of low-emissions vehicles and equipment. These 

credits can be used to offset other airport-related emissions to 

maintain compliance with national air quality standards. The 

City of Philadelphia participates in this program and earns 

sufficient credits to fully offset project-related NOx

emissions. 
8

construction, but the City would be required to fully offset 

those emissions by acquiring and applying Emission 

Reduction Credits.4

The publication of the final EIS concluded the NEPA 

process, but agency discussions on the air quality studies 

continued. On September 27, 2010, the EPA again submitted 

comments on the FAA’s study design. After several weeks of 

dialogue, some differences of opinion remained. On

December 30, 2010, the FAA published its Record of 

Decision, which approved the expansion project and 

delineated the FAA’s reasons for approval. The Record of 

Decision included a finding that the project was “reasonably 

consistent with existing plans of public agencies for 

development of areas surrounding the airport,” as required by 

the consistency provision of the Airport and Airway 

Improvement Act, 49 U.S.C. § 47106(a)(1).

B.

PHL lies on the boundary between the City and 

County of Philadelphia on the east and Tinicum Township, 

Delaware County, on the west. The expansion project calls 

for the acquisition of land to the west of the Airport and will 

result in the displacement of a number of residences and 

businesses in Tinicum Township.

 

4

Emissions Reduction Credits are off-airport reduction 

credits that the City will purchase through a state program. 
9

Tinicum petitioned for review of the Record of 

Decision, which constituted final agency action subject to 

review under the Administrative Procedures Act (APA). See 

49 U.S.C. § 46110. We review the FAA’s action under the 

APA’s arbitrary and capricious standard. 5 U.S.C. § 

706(2)(A) (requiring that a reviewing court “hold unlawful 

and set aside agency action, findings, and conclusions found 

to be arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law”). We confine our 

review to the administrative record upon which the FAA’s 

Record of Decision was based. See C.K. v. N.J. Dep’t of 

Health & Human Servs., 92 F.3d 171, 182 (3d Cir. 1996) 

(citing Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 

402, 420 (1971)).5

II.

A.

The FAA conducted the air quality analysis at issue to 

meet the overlapping requirements of NEPA and the Clean 

 

5 Respondents urge us to consider a letter the EPA submitted 

on April 26, 2011, four months after the FAA issued its 

Record of Decision. In that letter, the EPA clarified its final 

views on the EIS, dropping several of its objections to the air 

quality analysis conducted by the FAA. We will consider the 

April 26 letter for the limited purpose of evaluating 

Petitioners’ argument that new information, obtained from 

two supplemental emissions studies and described in the 

letter, mandates a supplemental EIS.
10

Air Act. “NEPA is a procedural statute that does not mandate 

particular substantive results.” N.J. Dep’t of Envtl. Prot. v. 

U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 133 (3d Cir. 

2009). NEPA’s procedural requirements aim to ensure that an 

agency “consider[s] every significant aspect of the 

environmental impact of a proposed action” and “inform[s]

the public that it has indeed considered environmental 

concerns in its decisionmaking process.” Id. at 134 (quoting 

Baltimore Gas & Elec. Co. v. NRDC., 462 U.S. 87, 97 (1983) 

(internal quotation marks omitted)). 

In reviewing the adequacy of an agency’s 

Environmental Impact Statement under NEPA, “[w]e make a 

pragmatic judgment whether the [EIS’s] form, content and 

preparation foster both informed decision-making and 

informed public participation.” Concerned Citizens Alliance, 

Inc. v. Slater, 176 F.3d 686, 705 (3d Cir. 1999) (citation and 

quotation marks omitted). We ask whether the agency took a 

“hard look” at the potential environmental impacts of its 

action. Id. We do not, however, “substitute [our] judgment for 

that of the agency.” Prometheus Radio Project v. FCC, 373 

F.3d 372, 389 (3d Cir. 2004) (quoting Motor Vehicle Mfrs. 

Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983)). NEPA entrusts agencies with the role of determining 

“whether and to what extent to prepare an EIS based on the 

usefulness of any new potential information to the 

decisionmaking process.” Dep’t of Transp. v. Public Citizen, 

541 U.S. 752, 767 (2004). In the air quality analysis on 

review, the FAA reasonably considered the “usefulness” of 

additional information on the project’s air quality impacts in 

light of the national air quality policy priorities and standards 
11

articulated in the Clean Air Act, 42 U.S.C. §§ 7401-7671q, 

and related regulations. In fact, Council on Environmental 

Quality (CEQ) regulations call on federal agencies to 

integrate the NEPA process with the Clean Air Act analysis. 

40 C.F.R. § 1502.25(a) (“To the fullest extent possible, 

agencies shall prepare draft environmental impact statements 

concurrently with and integrated with environmental impact 

analyses and related surveys and studies required by . . . other 

environmental review laws . . . .”). 

The Clean Air Act establishes a joint federal and state 

program to limit air pollution by setting national ambient air 

quality standards (NAAQS). See 42 U.S.C. § 7409. The EPA 

sets the NAAQS for specified pollutants, including sulfur 

dioxide, carbon monoxide, ozone, lead, nitrogen dioxide, 

coarse particulate matter of less than ten micrometers in 

diameter (PM10), and fine particulate matter of less than 2.5 

micrometers in diameter (PM2.5). Each state then must adopt 

and submit to EPA for approval a plan—called a State 

Implementation Plan (SIP)—to meet the national standards. 

42 U.S.C. § 7410. Federal agencies, in turn, must ensure that 

their actions conform to the applicable SIP. 42 U.S.C. § 

7506(c)(1). EPA regulations set forth specific requirements 

for this conformity determination. 40 C.F.R. §§ 93.150-

93.160. Agency actions that will result in emissions below the 

de minimis levels set by EPA regulations do not require a 

formal conformity determination. See 40 C.F.R. § 93.153(b).

Because the EPA is charged with administering and 

implementing the Clean Air Act and has significant

responsibilities under the National Environmental Policy Act, 
12

Tinicum urges us to defer to its comments on the FAA’s air 

quality analysis under Chevron U.S.A. Inc. v. Nat’l Res. Def.

Council, Inc., 467 U.S. 837 (1984). We extend Chevron 

deference to an agency action if Congress intended the action 

to “carry the force of law.” Swallows Holding, Ltd. v. 

Comm’r of Internal Revenue, 515 F.3d 162, 169 (3d Cir. 

2008). In urging deference here, Tinicum misapprehends the 

EPA’s role in commenting on the FAA’s Environmental 

Impact Statement. CEQ regulations require the lead agency, 

the FAA in this case, to “[o]btain the comments of any 

Federal agency” that has “jurisdiction” or “special expertise” 

or “is authorized to develop and enforce environmental 

standards,” including the EPA here. 40 C.F.R. § 1503.1(a)(1). 

The EPA and other relevant agencies then review and 

comment on the EIS. 40 C.F.R. § 1503.2. Responding, the 

lead agency may: modify the alternative action it has 

reviewed; develop and evaluate new alternative actions; 

“supplement, improve, or modify its analyses[;]” “make 

factual corrections[;]” or “[e]xplain why the comments do not 

warrant further agency response . . . .” 40 C.F.R. § 1503.4(a). 

And if, in its review of an agency action, the EPA determines 

that it “is unsatisfactory from the standpoint of public health 

or welfare or environmental quality[,]” the Clean Air Act

directs the EPA to refer the matter to the Council on 

Environmental Quality. 42 U.S.C. § 7609(b). Significantly, 

the EPA did not do so here.

Under this statutory and regulatory framework, the 

EPA’s comments do not carry the force of law and do not 

warrant Chevron-style deference. See Mercy Catholic Med. 

Ctr. v. Thompson, 380 F.3d 142, 154-55 (3d Cir. 2004) 
13

(noting that Chevron deference is inapplicable to agency

interpretations rendered in “opinion letters, policy statements, 

agency manuals, and enforcement guidelines”). As the D.C. 

Circuit noted in similar circumstances, “[the FAA] does not 

have to follow the EPA’s comments slavishly—it just has to 

take them seriously.” Citizens Against Burlington, Inc. v. 

Busey, 938 F.2d 190, 201 (D.C. Cir. 1991). Accordingly, we 

review whether the FAA gave sufficient consideration to the 

EPA’s comments.

B.

Citing the EPA’s comments, Tinicum alleges five 

technical errors in the FAA’s air quality analysis that 

purportedly render its environmental review inadequate under 

NEPA. Each allegation pertains to a category of data 

excluded from the FAA analysis. While additional data might 

enable a more detailed environmental analysis, NEPA does 

not require maximum detail. Rather, it requires agencies to

make a series of line-drawing decisions based on the 

significance and usefulness of additional information.

Coalition on Sensible Transp. Inc. v. Dole, 826 F.2d 60, 66 

(D.C. Cir. 1987). With this in mind, we review the FAA’s air 

quality analysis, considering each of the alleged technical 

defects.

The FAA divided its analysis of the project’s air 

quality impacts into two time periods: the construction period 

and the post-construction operational period. In its study of 

construction period emissions, the FAA compiled an 

emissions inventory that detailed, for each year of 
14

construction, all project-related emissions of sulfur dioxide

(SO2), nitrogen oxides (NOx), volatile organic compounds 

(VOCs), and fine particulate matter of less than 2.5 

micrometers in diameter (PM2.5). The inventory included

anticipated emissions from construction vehicles and 

equipment, asphalt paving, fugitive dust, the vehicles of 

commuting construction workers, and additional aircraft 

emissions due to delays caused by construction. The FAA 

compared total project-related emissions against the de 

minimis emissions levels set by the EPA’s conformity 

regulations under the Clean Air Act and found that during the 

construction period emissions of SO2 and PM2.5 would be 

below the de minimis thresholds set by EPA regulations. But 

the FAA also found that emissions of VOC would exceed the

de minimis threshold in the fifth, sixth, and eighth years of 

construction and that emissions of NOx would exceed the 

threshold in the second, fifth, and sixth years. Accordingly, 

the Record of Decision calls on the City of Philadelphia to 

acquire and apply emissions credits to fully offset VOC and 

NOx emissions during those particular years.

Citing an EPA comment, Tinicum claims that NEPA 

required the FAA to go further and model the dispersion of 

these construction period emissions to show how they would 

affect local ambient concentrations of pollutants in the area. 

We disagree. As the FAA explained, aside from emissions of 

two pollutants over short periods of time, emissions levels 

during construction would fall below the de minimis

thresholds defined by the EPA’s conformity regulations. 

Those levels have been set to reflect “activities [that] by 

definition could not threaten a state’s attainment of the goals 
15

in its SIP.” Envtl. Def. Fund, Inc. v. EPA., 82 F.3d 451, 467 

(D.C. Cir. 1996). Meanwhile, the emissions of two pollutants 

that would exceed de minimis thresholds for a short period of 

time would be fully offset by emissions credits for reductions 

in emissions at PHL and elsewhere. Moreover, the FAA’s

approach to construction emissions was consistent with the 

Air Quality Analysis Protocol agreed to by the FAA and the 

EPA. For these reasons, the FAA’s decision to stop short of 

dispersion modeling for the construction period was not 

arbitrary or capricious.

We reach the same conclusion in our review of the 

FAA’s analysis of operational emissions upon completion of 

the project. To evaluate post-project operational emissions, 

the FAA prepared an inventory of anticipated airport 

emissions for the years 2025 and 2030. Using the anticipated

emissions under the no-build alternative as a point of 

comparison, the FAA found the expansion project would 

initially decrease operational emissions by significantly 

reducing the time that delayed aircraft spent waiting and

taxiing on congested runways. Five years after project 

completion, emissions of certain pollutants would increase 

slightly relative to the no-build alternative as airlines made

use of additional runway capacity. Significantly, the FAA 

determined that any increase in emissions would fall well 

below the de minimis thresholds. Although this finding was 

sufficient to satisfy the conformity regulations, the FAA 

decided to conduct dispersion modeling of the project’s 

operational emissions to better analyze and disclose the 

project’s ongoing impact on ambient concentrations of air 

pollutants. 
16

The EPA commented that this modeling did not 

include nearby sources of PM2.5

6

and suggested that this 

omission conflicts with EPA guidance on air quality 

modeling.7 But the FAA had already demonstrated that the 

project’s impact on operational emissions was de minimis,

and no modeling at all was required under the conformity 

regulations. See 40 C.F.R. § 93.153. Further, in its response to 

the EPA, the FAA noted that the dispersion modeling it had 

conducted was intended to assess the project’s impact on 

ambient concentrations near PHL. Because the project would 

not affect emissions from nearby sources, adding those 

sources to its dispersion model would not help assess that 

impact.

The EPA also questioned the FAA’s decision not to 

model the effect of building downwash (i.e., the tendency of 

buildings to generate a downdraft that pulls pollutants toward 

the ground) on the dispersion of emissions from boilers. But 

as the FAA explained, boiler emissions were a trivial 

contributor to total project emissions. Furthermore, at this 

stage of project planning, the size and location of boilers and 

buildings had yet to be determined. After those aspects of the 

 

6

Fine particulate matter emissions are of concern because the 

area surrounding the Airport is designated a nonattainment 

area for PM2.5, meaning ambient levels of PM2.5 already 

exceed the National Ambient Air Quality Standards.

7

The EPA found this omission problematic because the 

Airport was situated near sources of substantial particulate 

matter emissions, including a coal fired power plant and at 

least four oil refineries within five kilometers.
17

project are established, a more accurate assessment of 

building downwash may be conducted as part of the 

Pennsylvania Department of Environmental Protection 

permitting process. For these reasons, the FAA’s omission of 

the building downwash effect was not arbitrary or capricious. 

Turning to the project’s impacts on traffic volume and 

automobile emissions, Tinicum cites another EPA comment 

to contest the size of the study area. Consistent with the Air 

Quality Analysis Protocol, the FAA defined the boundaries of 

its regional study area to include a section of I-95 near PHL 

and the roadway system immediately surrounding the Airport. 

In its comments, the EPA cautioned that the expansion

project would cause traffic volume to increase beyond the 

FAA’s designated study area. But as the FAA noted in 

response, the broader regional effects on traffic volumes 

would be considered as part of the regional travel demand 

analysis prepared by the Delaware Valley Regional Planning 

Commission. Fittingly, the conformity regulations 

contemplate this regional approach. 40 C.F.R. § 93.158 

(conformity regulations are satisfied for portions of a project 

that are included in a valid transportation improvement plan). 

Accordingly, the FAA’s decision to forgo a broader regional 

examination of the project’s impact on automobile emissions 

in the EIS was neither arbitrary nor capricious.

Finally, Tinicum cites another EPA comment to argue 

that the FAA exaggerated the emissions under the no-build

alternative by adopting the assumption that airlines would 

“upgauge” (i.e., use larger aircraft) if the airport did not 

expand. Because the EIS assessed project emissions relative 
18

to the no-build alternative, Tinicum argues that this 

assumption understates the project’s emissions impact. This

argument lacks merit. The FAA anticipated increased 

passenger demand at PHL whether or not the expansion 

project proceeded, and we accord deference to the FAA’s 

demand forecasts. See St. John’s United Church of Christ v. 

FAA, 550 F.3d 1168, 1172 (D.C. Cir. 2008). Given increasing 

passenger demand and no increase in runway capacity under 

the no-build alternative, airlines would appear to have little 

choice but to fly larger planes. The FAA’s Air Quality 

Technical Report explains this aspect of its analysis in detail, 

documenting the mix of aircraft that the FAA anticipated 

under the no-build alternative and the FAA’s preferred-build

alternative. The FAA’s “upgauging” assumption was both 

reasonable and adequately disclosed.

In sum, the FAA gave serious consideration and 

reasonable responses to each of the EPA’s concerns.8 As the 

lead agency, the FAA has some latitude to determine the level

of analytical detail necessary to support an informed decision 

 

8 As Tinicum points out, CEQ regulations call on the lead 

agency to “[u]se the environmental analysis and proposals of 

cooperating agencies with jurisdiction by law or special 

expertise, to the maximum extent possible consistent with its 

responsibility as lead agency.” 40 C.F.R. § 1501.6(a)(2). This 

regulation was intended “to emphasize agency cooperation 

early in the NEPA process.” 40 C.F.R. § 1501.6. The FAA 

fulfilled its responsibility as lead agency by seeking the 

EPA’s input and by offering considered responses to the 

EPA’s comments.
19

and to adequately disclose air quality impacts to the public.

The technical errors alleged by Tinicum do not render the 

FAA’s air quality analysis arbitrary or capricious.

C.

Even if the EIS was adequate when issued, Tinicum 

demands a supplemental EIS based on two post-decision air 

quality studies referenced in a letter the EPA submitted to the 

FAA on April 26, 2011, four months after the Record of 

Decision was issued. Council on Environmental Quality

regulations require a supplemental EIS if “[t]he agency makes 

substantial changes in the proposed action that are relevant to 

environmental concerns” or if “[t]here are significant new 

circumstances or information relevant to environmental 

concerns and bearing on the proposed action or its impacts.” 

40 C.F.R § 1502.9(c)(1). We review an agency’s decision not 

to supplement an EIS under the arbitrary and capricious 

standard. Marsh v. Oregon Natural Res. Council, 490 U.S. 

360, 375-76 (1989).

The two post-decision studies do not require a 

supplemental EIS. As the EPA noted in its April 26 letter, 

these two studies confirmed the conclusions the FAA reached 

in its Record of Decision and did not indicate any significant 

environmental impacts not contemplated in the EIS. Where 

new information merely confirms the agency’s original 

analysis, no supplemental EIS is indicated. See Town of 

Winthrop v. FAA, 535 F.3d 1, 10 (1st Cir. 2008) (citing Vill. 

of Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006)).
20

III.

Tinicum contends the FAA failed to comply with the 

consistency requirement of the Airport and Airway 

Improvement Act (AAIA), which provides that the FAA may 

only approve an airport project if it is “consistent with plans 

(existing at the time the project is approved) of public 

agencies authorized by the State in which the airport is 

located to plan for the development of the area surrounding 

the airport.” 49 U.S.C. § 47106(a)(1). Citing plans of the 

Delaware Valley Regional Planning Commission (DVRPC), 

the state-authorized metropolitan planning organization and 

comprehensive land use planning agency for the Delaware 

Valley region, the FAA found the PHL expansion project 

“reasonably consistent” with public agency development 

plans for the area. We review the FAA’s compliance with the 

AAIA under the arbitrary and capricious standard. See 

Communities Against Runway Expansion, Inc. v. FAA, 355 

F.3d 678, 689-90 (D.C. Cir. 2004). Tinicum challenges this 

finding on two grounds: first, that the FAA applied too lenient 

a standard in finding the project “reasonably consistent” with 

local development plans, since the statutory language requires 

that the project be “consistent” with such plans; and second, 

that the relevant public agencies for this consistency 

determination are Tinicum Township and Delaware County, 

not the DVRPC. We reject both contentions.

A 1964 amendment to the Federal Airport Act required 

an airport project to be “reasonably consistent” with agency 

development plans for the surrounding area. Pub. L. No. 88-

280, § 8(e), 78 Stat. 158, 161 (1964). In 1994, Congress 
21

recodified certain transportation laws, including the

consistency provision. Pub. L. No. 103-272, 108 Stat. 745 

(1994). The recodified provision omitted the word 

“reasonably.” But the law’s text expressly dispels Tinicum’s 

contention that this changed the provision’s meaning. Pub. L. 

No. 103-272, § 6(a), 108 Stat. at 1378 (1994) (“Sections 1-4 

of this Act restate, without substantive change, laws enacted 

before July 1, 1993, that were replaced by those sections. 

Those sections may not be construed as making a substantive 

change in the laws replaced.”). Furthermore, the legislative 

history recites that the word “reasonably” was “omitted as 

surplus.” H.R. Rep. No. 103-180, at 398 (1993). Accordingly, 

this change was semantic, not substantive. The FAA’s use of 

a reasonable consistency standard does not render its 

determination arbitrary, capricious, or otherwise not in 

accordance with law. 

Nor did the FAA err in basing its consistency 

determination on the plans of the DVRPC. The DVRPC was 

created in 1965 by the Delaware Valley Urban Area 

Compact. See 73 P.S. § 701; N.J. Rev. Stat. §§ 32:27-1, et 

seq. The Compact designates the DVRPC as an 

“instrumentality of the Commonwealth of Pennsylvania and 

the State of New Jersey exercising a government function.” 

Art. VI, § 1. As such, the DVRPC qualifies as a public 

agency under the Airport and Airway Improvement Act. See 

49 U.S.C. § 47102(20) (defining “public agency” to mean, 

inter alia, “a State or political subdivision of a State” or a 

“tax-supported organization”). The DVRPC’s plans are 

particularly relevant to the FAA’s consistency determination 

because of its role in conducting transportation planning for 
22

the region surrounding PHL. In the Compact, Pennsylvania 

and New Jersey granted the DVRPC authority “to organize 

and conduct a continuing, comprehensive, coordinated 

regional planning program for the area, including but not 

limited to transportation planning for the interests and 

purposes . . . of the agencies of Pennsylvania and New Jersey 

. . . as well as for the purposes of the local governments and 

their planning agencies.” Art. I, § 3. The FAA reasonably 

looked to the DVRPC’s plans in making its consistency 

determination. Accordingly, that determination was neither 

arbitrary nor capricious.

IV. 

For the foregoing reasons, we will deny the petition for 

review.