A sharply divided three-judge panel of the Ninth Circuit Court of Appeals has upheld an environmental impact statement prepared for expansion of the Kahului Airport in Maui, Hawaii. The court majority ruled that the Federal Aviation Administration had taken the "hard look" at the project's impact on native habitat required by the National Environmental Policy Act, while a dissenting judge called the FAA's study inadequate and deceptive.
The FAA and the Hawaii Department of Transportation proposed repaving, strengthening and lengthening the runway at Kahului. (The project has since been put on hold.) The current runway can accommodate any size arriving airplane, but it cannot handle departures of the largest fully loaded jets. Environmentalists worried that the expanded airport would increase the number of flights, especially international flights, thus raising the chances that exotic species would be introduced to Maui's delicate ecosystem. The FAA and HDOT prepared an environmental impact statement that included a biological assessment technical panel's report and a U.S. Fish & Wildlife Service report on impacts to endangered species on Maui.
The EIS concluded the proposed project in and of itself would have an insignificant impact but would contribute to a significant cumulative impact. The EIS made, and the FAA accepted, a number of mitigations, including additional inspectors, visitor education and a future study of impacts.
Two environmental groups, the National Parks & Conservation Association and Malama Pono, sued. They argued that the FAA's examination of exotic species issues was lacking. But the two-judge majority of the Ninth Circuit sided with the FAA. The court rejected arguments that the airport project would necessarily increase the number of international arrivals and that those flights would boost the risk of alien species introductions.
The court dismissed the FAA's projections that international flights would increase from 50 per year to 1,200 per year as "little more than guesses," and pointed out that even 1,200 flights would amount to only 3% of annual air traffic at Kahului. The court further said that environmentalists "cannot identify a single species that will become established as a result of the project, nor can they pinpoint a particular resource that will be adversely impacted."
Environmentalists "seek too much from the EIS," Judge Alex Kozinksi wrote. "While they may disagree with the FAA's substantive conclusions as to the alien species impact of the project, NEPA does not guarantee substantive results. So long as the agency has made an informed decision, we cannot intervene. … Because the EIS contains the requisite hard look at the alien species problem, it satisfies NEPA."
In a dissent, Judge William Fletcher was sharply critical of the FAA and his colleagues. "The central flaw in the Final EIS is that the FAA failed to admit or analyze the likely environmental consequences of increases nonstop overseas arrivals resulting from the proposed runway extension," he wrote.
Fletcher noted that the FAA projected 1,100 arriving airplanes from Asia, compared with none now. Yet the FAA couched its study of this in hypothetical terms, and the FAA's promise of a future assessment cannot be considered part of the EIS, he added. He called the majority's skepticism of the FAA's flight projections "convenient."
"Rather than taking a hard look at the possible environmental consequences, the FAA has deliberately averted its eyes from a well known environmental problem and from the potential consequences of its proposed action. … Because the FAA has failed in its duty, and because the majority of this panel has acquiesced in that failure, we will never know what decision a properly informed political process would have produced," Fletcher concluded.
The Case:
National Parks & Conservation Association v. U.S. Department of Transportation, No. 98-71268, 00 C.D.O.S. 6196, filed July 26, 2000.
The Lawyers:
For NPCA: Deborah Sivas, Earthlaw, (650) 723-0325.
For The U.S.: M. Alice Thurston, Department of Justice, Washington, D.C., (202) 514-2000.
Property rights advocates won a potentially far-reaching victory with a First District Court of Appeals ruling regarding San Francisco's hotel conversion ordinance. In a takings lawsuit filed by a hotel owner, the court held that the "heightened scrutiny" test applies to the San Francisco law, meaning there must be a close relationship between the exaction and the project's impact.
The court ruled that the lawsuit filed by owners of the San Remo Hotel should proceed in trial court. The hotel owners ar...
An appellate court has ruled against environmentalists in a California Environmental Quality Act lawsuit because the project in question was not approved and because environmentalists did not exhaust their administrative remedies.
In a peculiar case from Rancho Cucamonga, the Fourth District Court of Appeal, Division Two, ruled that the lawsuit brought by opponents of a 40-home subdivision was moot because the city denied the developer's design review application for a previously approved su...
In a major victory for developers of Playa Vista, the Ninth Circuit Court of Appeal has reinstated an Army Corps of Engineers permit to fill 16 acres of wetlands. The unanimous three-judge appellate panel overturned a district court ruling that the Corps did not adequately consider environmental impacts of the overall project.
The Ninth Circuit held that the Corps did not need to complete an environmental impact statement and that the Corps was correct to review only the wetlands portion o...
In an important water rights ruling, the state Supreme Court has held that farmers' long-standing water rights superceded water claims by downstream cities. The unanimous court ruled in favor of seven alfalfa and dairy farmers in the Mojave Valley that had refused to join a pact that allocated water to more than 200 farmers, cities and other entities without regard to historical water rights. "This preserves the farmers' position at basically the top of the water chain," Robert Dougherty, t...
The State Supreme Court decertified a Second District Court of Appeal opinion that overturned portions of Santa Monica's rent control law.
The appellate court ruled that Santa Monica could not modify conditions established by state law under which landlords can increase rents for voluntarily vacated units. The court also held that the city cannot demand more information than state law requires when registering rent-controlled units. (See CP&DR Legal Digest, June 2000.)
In reviewing the Cos...
Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit.
The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."
A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay.
The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP).
A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.
A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.
A City of West Hollywood moratorium on new multi-family housing development has been declared invalid by the Second District Court of Appeal. The court ruled that the city had not made required findings for the moratorium.
The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.
A state appellate court has struck down a California Environmental Quality Act exemption for an air district rule permitting new power plants to offset emissions by paving roads. The court found that the Mojave Desert Air Quality Management District did not have adequate evidence to support its finding that the rule could not have a negative impact on the environment.
A developer is not entitled to reimbursement or damages from a consultant hired by a local government to complete an environmental impact report, the First District Court of Appeal has ruled. Even when the consultant fails to complete an EIR in a timely manner, the consultant owes no contractual duty to the developer that paid for the consultant, the court concluded.