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.
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