The Honorable Fernando J. Gaitan, Jr., United States District Judge for th e 1 Western District of Missouri, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 95-2292

_____________ City of Richfield, Minnesota, * a municipal corporation, * * Petitioner, * On Petition for Review * From Order of the v. * Federal Aviation Administration. * Federal Aviation Administration; * Metropolitan Airports Commission, * * Respondents. *

_____________ Submitted: June 10, 1998 Filed: August 17, 1998

_____________ Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN, District Judge. 1

_____________ BOWMAN, Chief Judge.
Th e Metropolitan Airports Commission (MAC), which operates th e Minnea polis-St. Paul International Airport, proposes building a taxiway and alterin g flight patter

ns at the airport, for the purpose of shifting departing flights and the noise that comes with them from areas northwest of the airport to areas to the airport' s southwest. As part of this project, MAC proposes implementing noise mitigation-2-

measures, such as soundproofing homes, southwest of the airport. The Federal Aviation Administrationapproved this proposal on the basis of an environmental impac t stateme nt (EIS) that the FAA prepared with the Minnesota Department o f Transportation. The city of Richfield, Minnesota, which lies immediately west of the airport , appeals the FAA's decision. Richfield contends that the EIS did not compl y with 4 2 U.S.C. § 4332(2)(C) (1994), part of the National Environmental Policy Ac t (NEPA), 42 U.S.C. §§ 4321 - 4370d. An EIS complies with NEPA so long as it takes a genuinely "hard look" at

the environmental impact of a proposal. See Baltimore Gas & El ec. Co. v. Natural Resources Defense Council, Inc. , 462 U.S. 87, 97 (1983 ) (citation to quoted case omitted). First Richfield argues that the EIS did not adequately examine se veral factors that could prevent the project from shifting a significant number of departures to the airport's southw est. Richfield speculates that MAC might fund the noise mitigation progra m southwes t

of the airport with money that, were the project not implemented, MA C would i nstead spend on noise mitigation northwest of the airport. If MAC were to do so, a nd if Richfield is correct that the project in fact will shift very few flights to th e southwest, then the project would spend millions of dollars on noise mitigation in the southwest, where most of the noise never will be, and would prevent the i mplementation of noise mitigation measures in the northwest, where most of the noise will remain.

We need not determine whether the EIS adequately considered the factors that Richfield cites, because we conclude that it did not need to do so. An EIS, true to its
na me, must examine the environmental impact of a proposal. See 42 U.S.C

. § 4332(2)(C). Richfield, ho wever, does not contend that the EIS failed to examine the proje ct's impact. Instead Richfield contends that the EIS failed to examine th e pos sibility that full implementation of the project will prove infeasible and that th e project thus will have no significant impact at all but rather will leave the status qu o essentially unchanged. Richfield cites no au thority for the proposition that an EIS mustIn this case the FAA determined that the project in fact would shift a significant 2 number of flights--up to 82 per day--to the airpo rt's southwest. This determination, the analysi s underlying which is discussed in Appendix C to the EIS, was based o n substantial evidence and was not arbitrary or capricious, regardless of whether the FAA considered e ach of Richfield's particular points. Having made that determination, the FAA's duty in preparing the EIS was to examine the impact of the project on th e environment, not to continue to debate the extent to which the project will do what it is intended to do. -3- examine the ways in which a project might fail to affect the environment, and we reject this novel i dea. It is axiomatic that, if a project will not significantly affect th e envi ronment, an agency need not prepare an EIS at all. See id. (EIS required for a pr oject "significantly affecting the quality of the human environment"); Missour i Mining, Inc. v. Intersta

te Commerce Comm'n , 33 F.3d 980, 983 (8th Cir. 1994). Thus if Richfield is correct that this project will no t shift a significant number of flights to the sout hwest, then the FAA need not have prepared any EIS, much less one that exhaus tively examines all the reasons why the project will leave the environmen t unaltered. We conclude that the E IS did not need to examine the factors that Richfield believes wi ll prevent the project from shifting a substantial number of flights to th e airport's southwest. 2
In a related argument, Richfield contends that the EIS should have examined the possibility of instituting noise mitigation measures northwest of the airport as a n alterna tive to the proposed project. Under NEPA, an EIS must examine "reasonabl e al ternatives" to a project. 40 C.F.R. § 1502.14(a) (1997) (regulation implementin g NEPA). Similarly, the Airpor t and Airway Improvement Act requires consideration of any "possi ble and prudent alternative." 49 U.S.C. § 47106(c)(1)(C) (1994). A n alternative is unreasonable if it does not fulfill the purpose of the project. See Citizens Against Burlington, Inc. v. Busey , 938 F.2d 190, 195 (D.C. Cir. ), cert. denied , 502 U.S. 994 (1991); National Wildlife Fed'n v. Federal Energy Regulatory Comm'n , 912 F.2d 1471, 1484-85 (D.C. Cir. 1990). Richfield's suggested alternative, soundproofing-4-

homes n orthwest of the airport, would not fulfill the project's purpose of equitabl y redistributing noise. Unlike MAC's project, which the FAA has determined w ill actually shift noise, sound

proofing homes would merely limit noise impact, and would have no effect wh atsoever on noise outdoors or inside buildings other than the soundproofe d homes. Thus Richfield's soundproofing alternative could not possibly fu lfill the project's purpose, and it therefore is unreasonable for purposes of NEPA. Accordingly, the EIS did not need to consider it. Finally Richfield argues that, for se veral reasons, the EIS was nothing more than a post-hoc rationalization of a decision the FAA already had made. We have considered all of Richfield's arguments on this point, and we find them to be without merit. Th e recor dshows that the FAA did not approve this project until the completion of a n extensive review process tha t included ample opportunity for public comment. During this process, Richfield made numerous comments to the FAA, and the FAA carefully respo ndedto Richfield's points. Richfield's arguments to this Court give us n o per suasive reason for concluding that the EIS was a post-hoc justification of a fo reordaineddecision, or that the EIS was anything but a serious and thoroug h consideration of the impact of this proposal on the environment.

We deny Richfield's petition for review and thus uphold the FAA's orde r approving the project.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.