Legal Case Summary

Good morning. This morning we have oral argument in the case of the City of Muckeltyo versus the U.S. Department of Transportation Council for the Petitioners. You may proceed. You may proceed, Council. At risk of repeating myself, I'm Barbara Richmond, Councilor for Petitioners City of Muckeltyo, City of Edmund, State of our communities, Michael Moore and Victor Cubez. I'm going to start by cutting to the chase. First issue out of the box. This is not a factual challenge. We do not contest the forecasts made by the Federal Aviation Administration, the respondents. We accept them in whole cloth, including their maximum terminal capacity scenario and their master plan, all of its scenarios. So if you would indulge us, I think we are concerned about a threshold issue and that has to do with whether we have jurisdiction under any number of rubrics, mutants perhaps, but there's also the Wuhan standing problem. And I guess what we need you to tell us is whether this is action that is certainly impending. Your Honor, we don't with all the respect. We don't believe there is a standing problem of any kind whatsoever and I'll explain. First, I don't want to belabor the point, but as you know, there has to be a concrete and particularized injury, which you've emphasized has to be actual and imminent and fairly attributable to the action being challenged and redressable by this court. That being said, clapper which was cited to us in your order has to do with the challenge to a constitutionality of a statute. NEPA and a challenge underneath it is extremely different when it comes to standing. Ironically, this court is, but this is a very unusual situation it seems to me in that the whole agency proceeding took place and not just now, but even when it took place before it was at all clear that anything was actually going to happen. It was kind of a clearance for something to happen, should they decide to have it happen, but because the agency is somewhat peripherally involved in this whole situation, they're not in control of whether it happens. So we don't know that anything's ever going to happen. It's different from a typical NEPA situation where you have for so-called procedural standing, it has certainly a lot looser, but it's not, I haven't seen a situation before if we didn't, it might not be clear what the injury is, but it was clear that something was going to happen

. Well, there's something going to happen here two year on and that is one, the building of a terminal that can accommodate that. That's not what the record shows. The record shows that FAA offered $200,000 to the county to commence the planning study for the building of the terminal and the county refused the $200,000. So at this point, there are no plans to commence construction of the terminal, but it's approved by the FAA and once it's approved, action on two applicants, a legion or horizon, sought to amend their Part 119 certificates in order to permit them to operate their particular sized aircraft out of pain field, nor has the county sought to amend as Part 139 certificate to change the authorization for the operation of the airport. So the four key points of the agency's decision have not come to fruition. So how can we say that action is imminent on this record? Because your honor, whenever the FAA approves a record of decision, the action is not going to take place the next day. Once it's approved, it could take place tomorrow. No agency action at any airport is guaranteed to take place when a ride is on. But that seems to be the interesting part of this, which is that the statute does require that you challenge the decision within what, 60 days. That's exactly correct. So there is some tension between that provision and the usual standing role as to whether something has to be actually going to happen. So what do we do with that? The reason that is taking place. The reason that exists, that tension as you have put it, is because when the FAA issues, a Part 139 certificate to an airport opening it to commercial traffic, any commercial traffic can come there at any time. Now I would point out to you, your own case, California X-Royle and lapse of time between the agency action and the action to actually taking place. But that does not impact standing. And that case was decided on May 27, 2014. But how is this any different from what the Supreme Court said in Wuhan that you have to show something more than someday these actions will occur? And none of them have occurred. And based on the supplementation of the record, a legion said no longer has any interest. And apparently, Alaskan, Horizon are saying we're not coming to paying field unless one of our competitors makes an application to come. So they're not coming. The county's not building the terminal. And the certificate hasn't been amended

. But to me this is Wuhan. It's someday. And that's not imminent certain injury that is likely to occur. Well, another panel of this court found in your California X-Royle Imperial County that did you send in 48G later on that case? Pardon me? Did you send this at 28G later on that case? We weren't on that case. We weren't requested to do a letter brief. We were in the office. But our rules require that if you're citing a case that was not in your briefs, you must provide counsel opposing counsel with notice in what we call a 28J letter. Okay. We have not done that. We did not. If we're just a bit... If you wish us to look at that authority, please take care of that. We will, Your Honor, immediately. Well, let me ask you a slightly related question. How would you be prejudice at this point if we simply dismiss the action and ask the parties to take a wait and see approach to see whether the FAA actually ever implements any of these decisions? Because our statute of limitations has expired. And once that expires, we cannot challenge the actual approval. But that would mean that it would have to be exactly the same players and the same four key points. I'll give you the change in the Part 139 certificate. But you have no evidence that they're building a passenger terminal or have any plans to do so. And one of the applicants has withdrawn

. And the other says they're not interested unless a competitor comes in. So doesn't that mean that the whole process will have to start over again when some new competitor shows up and says we'd now like to start operating commercial passenger service out of pain field? No, Your Honor, because Horizon and Allegiant have not officially withdrawn. And in fact, the subsequent newspaper articles say that they are still unresumbed of this in a supplemental request for judicial notice that they are still interested and they're still proceeding according to their plans. That's not what they said. They're adopting a wait and see approach. That's a different one. That's a different one. That's a different one. That's a different one. We're not interested. So they're out. And Alaska says we're not going to do anything unless a competitor does something. Well Horizon. So how is that certain or imminent action? That actually was not what it was what was said on the newspaper articles of very recently that we submitted to you in support of our supplemental one of our supplemental documents. That's a question in a different way. If one of the if two of the legs of the four part decision are not going to go forward, the construction of the terminal which has to happen before anybody can fly commercial passengers in and out of pain field. And Allegiant is no longer interested. Doesn't that by definition mean that the whole process is going to have to start over again with a new entrance? Not at all, Your Honor. Well, wouldn't a new entrance part 119 certificate have to be amended? Wouldn't a passenger terminal have to be constructed? For the new entrance, yes, but for the passenger terminal, no. Because once this rod is signed, the FAA's approval is on record. They can go forward at any moment of any day. And I would point something out to you

. I hate to cite this case again because I haven't sent some of the 28 H yet. But I will immediately. And that case is very clear that where such a situation is this exists, this tension. This is the absolute example of readressability. Because if you dismiss this case, then we have lost our ability to challenge the terminal. I mean, the question is whether there isn't some more sensible way to handle this, such as either a stay or an assurance that if there comes back that we will invoke the good cause provision or something to that effect, and it doesn't. And on one hand, you have a problem. You're right because of the statute. On the other hand, we have a problem because we have a jurisdictional, a constitutional jurisdictional problem. And to be deciding something which is pretty airy at this point is a problem for us so the question is whether there isn't some practical solution here. Apparently there is. We have discussed Mr. McFadden and I have discussed a potential solution whereby and he can explain it in more detail because it was his solution. But it is basically to ask this court to stay the case pending the action that it desires to see as long as we don't use a statute of limitations on the statute of limitations. Post the stay for because it sounds like on the state of the record it would be an indefinite stay at this point. Well, we could renew it. We could set it specific time and then renew this day after say six months or whatever. My fear, Your Honor, is if this case were dismissed without this solution, the positive solution that we're talking about, then tomorrow morning after this dismissal, every air airline in America could come in there, including Horizon and Allegiant. Well, I guess that is, I mean, you do have a problem, you're slightly overstating it because my understanding is from at least the government's briefing that nowhere a line can come in unless the government approves it first. Except Horizon and Allegiant, which have already been approved. And they can do so by the way with an indefinite number of flights with the same number of aircraft without additional environmental review. But what do we do with the declaration of Timothy Hayward? There's another one as well

. But this one says, as of today, May 21st, no official request for an amendment to arise an airline's operation specification has been received by the FAA. Nothing has happened. Nothing has matured. Well, the Rod was signed, Your Honor, that's about as much maturation as we can go with without complies. But it was a very peculiar, I mean, I guess the Ewerda and an unusual hurry, the FAA, because they approved something that hadn't even applied for. Is that right? No, because at the time it was applied for, they dropped out after it was approved. The Horizon and Allegiant dropped out. They actually applied or they said they were going to apply? No, they did apply. And they were approved. The whole four aspects of the project were approved. At subsequent to that time, there was some dispute between the airport and Horizon and Allegiant, or passengers dropped off or whatever. And Horizon and Allegiant amended their plans. Although, Horizon says that it's still, rather, Allegiant says that it's still operating according to its original plan. So your preference would be for this court to go forward, reach the merits and determine whether or not the FAA acted in an arbitrary and capricious manner when it determined a finding of no significant impact, even though you began your argument with the concession that you have no quarrel with the methodology that the agency applied in reaching that decision. Do you really want us to go there? Would you rather have the state of affairs sort of maintain status quo with the ability to come back in and challenge some future action if it occurs as opposed to getting a ruling from this court on the merits that you might not like? Well, it would, well, that's always a risk. I haven't talked to my colleagues yet, so I'm not sure what their views are, but I have to tell you, frankly, as far as this judge is concerned, you've got an uphill fight on the challenge to the merits of the FAA decision. Well, if I could clarify, and then just, well, maybe it's a good time to go to the merits. That's where you started your argument today, perhaps we can go to that now. If your honor wishes, I will certainly be happy to do so, and I wanted to clarify perhaps of this conception, I judge Coleman, and that is to say, yes, we don't challenge the forecasts. What we do challenge is the absence of the analysis of air quality arising from those forecasts. Well, we know, do we not from the current numbers that those forecasts were wildly overstated? No, we don't. The original one

. The master plan. You mentioned the master plan, which had anticipated far more flight operations than have actually turned out to be true, going clear back when they were forecasting in 2000-2002. But master plans are 20-year forecasts, and master plans often. But they were totally incorrect for the period that already happened, which is most of it. That's because of the economy every airport's master plan. So, I mean, I gather, I mean, to get to the legal issues, that you're essentially saying that the FAA, in making a specific decision many years later, had to rely on the forecast in the master plan. No, not at all. The FAA relied on the final environmental assessment, and its appendix appendix Q, appendix P, appendix K, the Hersch report, and the appendix. So, you're backing out, because in your briefing, you do spend a lot of time relying on the master plan forecasts. But they say in their EA that they were just, they're basically walking away from those forecasts because they proved to be an accurate. Actually, we spent, I believe, you're on a far more time on the EA. About the master plan. Yeah, yeah. That's a good balance. Yes. We also were forgetting the master plans. So, what are we relying on appendix Q and appendix P on the FAA? The FAA, I mean, which seems to be your strongest point, they say, well, look, we're doing this, so you can see what the actual operations would be if we, if the projected terminal were actually used to its fullest, but we see no likelihood that it's going to be, and so that's why we haven't done anything with it. Moreover, we don't even know now if this is going to be a terminal. Well, and that's the point that you raised earlier on standing, and I will go back to that. More specifically, if they're, because of that, we don't, if there's a terminal, we have no idea what it's going to look like. But if, let me point out that the NIPA regulations 40 CFR 1502.22B4 requires that any analysis include the impacts of catastrophic events which may have a low probability

. Well, this is not catastrophic. This is not catastrophic. If the situation around OKtas troff it's catastrophic here. The end... I crash, as I was just saying. No. The envelope established by the NIPA regulations includes exactly the kind of situation such as this where there's a maximum terminal capacity already calculated, which could occur according to their own calculations as soon as that terminal is opened. OK, but we're talking about a terminal with two gates. Right? I mean, at this point, it's a modular expansion of the existing what I assume is the executive terminal for general aviation use. That's right. And that's only an additional 18,000 square feet on top of about 2,500 square feet. That's right. That's right. That's the tiny change. Except... The airport's operation. Except the maximum terminal capacity relies on the only two gates and talks about six turnarams. We're talking about an airport that currently has 115,000 operations annually and it's going to increase maybe by 8,500 at maximum capacity of this terminal

. I mean, that's less than 5%. And at an airfield that is 33% operating at its maximum capacity now, how can we declare this decision arbitrary and capricious? Well, you're on our if you look at the table in appendix P, you will note that just that 8,500 additional operations throws a amount of conformity under the Clean Air Act. Well, by what? Three metric tons? It's eight, actually, but it doesn't matter. The amount they're over. I live in an account. Every day I drive by Pacific Science Center and we're kicking nine million tons into the air. And we're talking about 103 tons. Here's the deal. The United States Congress said that anything over a hundred tons per year of CO has to be evaluated in a conformity determination. So what does that mean, by the way? Suppose they had done what you wanted them to do, which is to take the maximum terminal for the non-terminal, the maximum terminal capacity and then which they say would have been eight metric tons or whatever over the status level. It's not my machine. And then what do you do next? What's the statute required? The statute says that if you go over conformity and you do not establish conformity in a conformity determination, you can't do it. You can't get any federal money. No federal. They just gave up federal money anyway. For this terminal. I mean, you can't get federal money for what? For anything. Having to do with the project. But right now they're saying that I'm taking the federal money. Maybe that's why they're saying that. But if this court were to dismiss this case, which we've discussed, then they could get federal money tomorrow. The ending problem in the sense that your biggest problem seems to depend on federal money and there may not be any federal money? Well, they've already agreed to give federal money for that terminal

. They've already agreed to fund it. But they just couldn't decline. They declined the federal money. That's the 200,000 I was talking about earlier. But if the rod is allowed to stand, they could agree to it tomorrow. Someday. Anytime they want it tomorrow morning would be fine. I mean, they don't have to wait till someday. They could say, okay. It's not today. We know that. They're not standing there with their hand out for the $200,000 check. But if this case, they're holding their hand up saying, oh, thank you. If this case were cleared, this is like the count. This is the example of redressability. If this case is cleared, it's dismissed. Pressing. I keep I'm back to the standing problem. What's the problem here that you need the court to step in and address? There's nothing happening. They haven't fully disclosed the impacts of this project, specifically the air quality impacts, Your Honor. I can't make me know, project. So I mean, aren't you better off, I mean, to be specific, aren't you better off if we don't do something now? Because what they actually do do could be different and worse, and need a whole new analysis

. And I don't see how it benefits you to have us spinning our wheels on a, when we don't know if this could be federal money, and we don't know what the term was going to look like. We don't know how many flights are going to be. We don't know what it is that they're doing. So, and it seems to me, you're going to want to take the position with whatever they do, that it all has to be done over again anyway. Well, Your Honor, Mr. McFadden has offered a solution to which I have not objected, which you may know, and Mr. McFadden, he will explain it further. But if that's the court's view, and as long as we don't lose our position under the statute of limitations, I mean, that's a perfectly fair position, I understand. We would be willing, potentially, to go along with the court's solution. I just want to make sure we don't lose our position. Perhaps you would like to speak to Mr. McFadden about the details. Thank you, Council. Our questions took you almost two minutes over time. Oh, it's so sorry. Your time has expired. Thank you very much. Mr. McFadden. Good morning, Your Honor. And may it please the court, I am, Wayne McFadden. I represent the federal respondents, the United States Department of Transportation and the Federal Aviation Administration. This court has now twice ordered us to consider whether there isn't some threshold justish ability problem. And I gather from this court's questions this morning that that proves large in your minds and to skepticism about whether these projects will ever proceed in the way they were reviewed in the EAS is appears to us warranted. But at the same time, there are these inklings of continued interest from the relevant third-party actors, allegian airlines. Judge Tomman has suggested that has expressly denied any interest. In fact, they told us that our, we questioned them about it in response to this court's mittens order and they said they're intent as the same as it was two years ago, which we take to mean that they intend to someday go through. I thought that was a slightly coi-answer. A lot of the answers we received were coy. None of them had any details to them. We've learned a couple of other records either. Well, we did submit them to this court, Your Honor, hoping to pin someone down to something. Let me just back up from it. Is this a typical way for these kinds of issues to proceed? That is, with you making a decision, with you being the FAA not you, on something that's not really effer-wish in any way at that point. I mean, I gather at the point that the decision was made, it wasn't clear anything was going to happen. It was just a bunch of permissions, right? It was, it appeared to us clear enough that it was worth embarking on the NEPA process. And FAA's policy, of course, is that they won't conduct a review of some project that doesn't have some real likelihood of occurring. The understanding at the time was, there wasn't a funding issue because the way that these types of proposals are generally funded is through federal grant money, and that's why you see that discussion in the record of decision of their county's eligibility for this fund. That's what we thought was going to happen. Then the county changed its mind about that, and that's what introduced all this uncertainty. This is a very unusual situation for the FAA in this kind of case. This is not a typical problem. No, not at all. And that is why we've wrestled with how to address it in the context of the jurisdiction for this

. This court has now twice ordered us to consider whether there isn't some threshold justish ability problem. And I gather from this court's questions this morning that that proves large in your minds and to skepticism about whether these projects will ever proceed in the way they were reviewed in the EAS is appears to us warranted. But at the same time, there are these inklings of continued interest from the relevant third-party actors, allegian airlines. Judge Tomman has suggested that has expressly denied any interest. In fact, they told us that our, we questioned them about it in response to this court's mittens order and they said they're intent as the same as it was two years ago, which we take to mean that they intend to someday go through. I thought that was a slightly coi-answer. A lot of the answers we received were coy. None of them had any details to them. We've learned a couple of other records either. Well, we did submit them to this court, Your Honor, hoping to pin someone down to something. Let me just back up from it. Is this a typical way for these kinds of issues to proceed? That is, with you making a decision, with you being the FAA not you, on something that's not really effer-wish in any way at that point. I mean, I gather at the point that the decision was made, it wasn't clear anything was going to happen. It was just a bunch of permissions, right? It was, it appeared to us clear enough that it was worth embarking on the NEPA process. And FAA's policy, of course, is that they won't conduct a review of some project that doesn't have some real likelihood of occurring. The understanding at the time was, there wasn't a funding issue because the way that these types of proposals are generally funded is through federal grant money, and that's why you see that discussion in the record of decision of their county's eligibility for this fund. That's what we thought was going to happen. Then the county changed its mind about that, and that's what introduced all this uncertainty. This is a very unusual situation for the FAA in this kind of case. This is not a typical problem. No, not at all. And that is why we've wrestled with how to address it in the context of the jurisdiction for this. There's a jurisdiction problem on the one hand. There's a limitations burden that's jatched on the other. I mean, she really does have a problem. If she goes, if we challenge this and have standards, she may never get to challenging. Yeah, that is a concern, Your Honor. I mean, 60 days is not a long time. The government's position that once the record of decision is made, and I ticked off the four key decision points that the agency approved, the amendment of the various certificates and the construction of the terminal, is the government's position that that record of decision stands for all time, or if nothing happens in 10 years, would there have to be a due over of the environmental assessment? The whether there has to be a due over is something retained to the agency's discretion, but we would in 10 years say yes. General Department of Transportation. So, yes and years are yes. We have to do it all over again. Yes, we have to do it all over again. There's General Department of Transportation Guidance, which I can provide this court, which governs NEPA documents. And it's general rule currently is that a NEPA document is valid for about three years. And then it has to be up to three years or close at this point. We're 18 months, I think, was December 2012. But more than that, this document was based on a very specific set of plans. It is based on forecasts from the representations that were made by the airlines about what their plans were. And that was, and that's the central issue in this case, substantively, which is what is reasonably foreseeable. Well, isn't that just out, I mean, necessarily no longer valid? I mean, there are tell you a thing they still be interested, but there's no medication or Richardson to say they're interested in. And the county is no longer taking the money. Isn't this just simply, isn't it inevitable that you're going to have to do it over again? I personally, we don't think that it is inevitable. I mean, if there was to inevitable

. There's a jurisdiction problem on the one hand. There's a limitations burden that's jatched on the other. I mean, she really does have a problem. If she goes, if we challenge this and have standards, she may never get to challenging. Yeah, that is a concern, Your Honor. I mean, 60 days is not a long time. The government's position that once the record of decision is made, and I ticked off the four key decision points that the agency approved, the amendment of the various certificates and the construction of the terminal, is the government's position that that record of decision stands for all time, or if nothing happens in 10 years, would there have to be a due over of the environmental assessment? The whether there has to be a due over is something retained to the agency's discretion, but we would in 10 years say yes. General Department of Transportation. So, yes and years are yes. We have to do it all over again. Yes, we have to do it all over again. There's General Department of Transportation Guidance, which I can provide this court, which governs NEPA documents. And it's general rule currently is that a NEPA document is valid for about three years. And then it has to be up to three years or close at this point. We're 18 months, I think, was December 2012. But more than that, this document was based on a very specific set of plans. It is based on forecasts from the representations that were made by the airlines about what their plans were. And that was, and that's the central issue in this case, substantively, which is what is reasonably foreseeable. Well, isn't that just out, I mean, necessarily no longer valid? I mean, there are tell you a thing they still be interested, but there's no medication or Richardson to say they're interested in. And the county is no longer taking the money. Isn't this just simply, isn't it inevitable that you're going to have to do it over again? I personally, we don't think that it is inevitable. I mean, if there was to inevitable. To provide a little bit more factual context I have. On Monday morning, there was a letter sent to the county, which is the airport sponsor, from a New York-based investment firm, indicating they'd be in negotiations and they wanted to continue with those negotiations over the next 30 days to privately finance the same modular criminal facility that's approved in the rod. And so that would be, if that deal was struck and it has not been, then that would provide for the building and construction of that same facility that's already gotten environmental approval from FAA. Back to the airlines, either both of them are some other airlines and get some projections about how many flights they they're talking about. And then you'd have to see whether they're close enough to what you've already looked at to be a good match. When forcibility is the whole issue here. How many flights are there to be, right? That's the central question. I agree. And it has called into question the foreseeability of this whole project. That's why I do think. Well, as I understand the record, the negotiations broke down over the county's insistence that the generators pay for the construction of the terminal or there was discussion about who was going to pay and the concern was we don't want to have one carrier who owns the terminal because then that carrier can exclude anybody else from using a building that it owns. And apparently the county wasn't willing to fund a $3 million cost of building the terminal itself. Although you indicate apparently there's some federal money that might be available from the FAA to pay for the construction of the terminal. Well, not federal money, but private money that there be a finance agreement from an investment company that is an airport investment company that does this professionally. This is there. There's one of those. Is this the group that you're talking about the central letter on Monday? Yes. So this would be kind of an independent third party owner building a terminal for anybody who wants to pay them to make use of it. So they're going to go back to Judge Berzons' question. Wouldn't the next step be to ask the airlines, would you be willing to operate passenger aircraft out of a facility owned by this third party entity? Wouldn't they want to know what it would cost them to use that privately owned terminal? Yes. I mean, this is all speculation and speculation. The investment company isn't going to build this until

. To provide a little bit more factual context I have. On Monday morning, there was a letter sent to the county, which is the airport sponsor, from a New York-based investment firm, indicating they'd be in negotiations and they wanted to continue with those negotiations over the next 30 days to privately finance the same modular criminal facility that's approved in the rod. And so that would be, if that deal was struck and it has not been, then that would provide for the building and construction of that same facility that's already gotten environmental approval from FAA. Back to the airlines, either both of them are some other airlines and get some projections about how many flights they they're talking about. And then you'd have to see whether they're close enough to what you've already looked at to be a good match. When forcibility is the whole issue here. How many flights are there to be, right? That's the central question. I agree. And it has called into question the foreseeability of this whole project. That's why I do think. Well, as I understand the record, the negotiations broke down over the county's insistence that the generators pay for the construction of the terminal or there was discussion about who was going to pay and the concern was we don't want to have one carrier who owns the terminal because then that carrier can exclude anybody else from using a building that it owns. And apparently the county wasn't willing to fund a $3 million cost of building the terminal itself. Although you indicate apparently there's some federal money that might be available from the FAA to pay for the construction of the terminal. Well, not federal money, but private money that there be a finance agreement from an investment company that is an airport investment company that does this professionally. This is there. There's one of those. Is this the group that you're talking about the central letter on Monday? Yes. So this would be kind of an independent third party owner building a terminal for anybody who wants to pay them to make use of it. So they're going to go back to Judge Berzons' question. Wouldn't the next step be to ask the airlines, would you be willing to operate passenger aircraft out of a facility owned by this third party entity? Wouldn't they want to know what it would cost them to use that privately owned terminal? Yes. I mean, this is all speculation and speculation. The investment company isn't going to build this until... All solution. To do something similar, I provided the court with petitioners permission with an order from the DC circuit in a case we had several years ago or something similar happened. It was an airport strafford versus the FAA. Yes, Your Honor. There was an expansion proposed of the airport there in Connecticut. The FAA conducted a DNEPA review and approved it. But it was contingent on acquiring and developing some land that was owned by the Army at the time. And the Army had not at the time of the FAA's decision figured out what it was going to do with that property. So it was unclear if that was ever going to happen. No one briefed standing but the DC circuit asked us about it at oral argument. And after oral argument stayed the case, asked us to file status reports and then said, you can notify us when there's some final decision that indicates this injury is imminent and at the time you can file short briefs under a restriction and we'll resume consideration of the case. And that's precisely what happened ultimately the Army did make a decision. It took about a year and then the DC circuit did issue a final opinion in that matter and a judgment. We think that's a resolution here that avoids the concerns the petitioners have expressed about losing the opportunity to comply with their 60 day statute of limitations, the challenge of FAA decision that was now issued in December of 2012 and which, while as a practical matter seems to no one to be realistic, as a legal matter remains extended, remains a valid approval if the airlines decide to change their mind and go forward. What's your proposal? How long a period would you suggest that we stay and evade this case? Well, I think at the outside, I think a year and a half would be the longest. At that point, at that point, the agency would have to reconsider whether further environmental review is necessary and of course if it is necessary, then that'll be conducted and that's a new final agency action. I'm hopeful for you to supply the authority for that, the fact that the determination is going to lapse. Yes, you're going to be happy to do that. And I apologize for not sending an Italy adj about the town of Stratford, but I'll certainly do that as well to get it on the record. I mean, as I hope the parties understand, we have an independent obligation under the Constitution to make sure that we actually have a case or controversy pending before us and the state of the record was such that we had a serious question as to whether the case or controversy requirement under the Constitution isn't that

... All solution. To do something similar, I provided the court with petitioners permission with an order from the DC circuit in a case we had several years ago or something similar happened. It was an airport strafford versus the FAA. Yes, Your Honor. There was an expansion proposed of the airport there in Connecticut. The FAA conducted a DNEPA review and approved it. But it was contingent on acquiring and developing some land that was owned by the Army at the time. And the Army had not at the time of the FAA's decision figured out what it was going to do with that property. So it was unclear if that was ever going to happen. No one briefed standing but the DC circuit asked us about it at oral argument. And after oral argument stayed the case, asked us to file status reports and then said, you can notify us when there's some final decision that indicates this injury is imminent and at the time you can file short briefs under a restriction and we'll resume consideration of the case. And that's precisely what happened ultimately the Army did make a decision. It took about a year and then the DC circuit did issue a final opinion in that matter and a judgment. We think that's a resolution here that avoids the concerns the petitioners have expressed about losing the opportunity to comply with their 60 day statute of limitations, the challenge of FAA decision that was now issued in December of 2012 and which, while as a practical matter seems to no one to be realistic, as a legal matter remains extended, remains a valid approval if the airlines decide to change their mind and go forward. What's your proposal? How long a period would you suggest that we stay and evade this case? Well, I think at the outside, I think a year and a half would be the longest. At that point, at that point, the agency would have to reconsider whether further environmental review is necessary and of course if it is necessary, then that'll be conducted and that's a new final agency action. I'm hopeful for you to supply the authority for that, the fact that the determination is going to lapse. Yes, you're going to be happy to do that. And I apologize for not sending an Italy adj about the town of Stratford, but I'll certainly do that as well to get it on the record. I mean, as I hope the parties understand, we have an independent obligation under the Constitution to make sure that we actually have a case or controversy pending before us and the state of the record was such that we had a serious question as to whether the case or controversy requirement under the Constitution isn't that. I agree, Your Honor. I mean, there is clearly an imminent question here, but we can't say with confidence that it is impossible that it will happen. And as a new opposing counsel, agree as to that particular point. Yes. On the Wuhan issue. We do. And I would say we should get to the merits and decide whether this ROD was arbitrary and capricious. Thank you, Your Honor. I'd be happy to discuss the merits. In fact. You know, in doing that, it seems to me that all of these events give some more credence to the petitioner's position than might otherwise be the case. Because I mean, if we are given the fact that this is also amorphous and unclear about what's going to actually happen, the real question is whether if everybody's plans are different than the ones that you are projecting on, why doesn't it make most sense for you to have looked at the maximum use, possible usage of the turbo instead of what people were telling you which all turns out to be wrong anyway? Well, the answer to that question, Your Honor, is that to the extent there's evidence that what we had reviewed in the final EA isn't going to happen, that evidence all points to fewer operations than what were had been contemplated, not more. No other airline has come out and said we're going to fill that terminal to capacity as evaluated in appendix P. Well, apparently Alaska Airlines has some interest in the Alaska Airlines as a big airline. I mean, maybe they're going to show up and decide to have ten flights today. I gather that they would have to be separately approved. That's correct. They would. In review. I mean, I also gather that as long as there are good airline and there's a place for them. You don't have much choice but to approve them, is that right? Well, there's the question of approving their operation specifications amendment which is a safety issue. And then there's also the issue of whether that proposal we reviewed underneath it, which it would

. I agree, Your Honor. I mean, there is clearly an imminent question here, but we can't say with confidence that it is impossible that it will happen. And as a new opposing counsel, agree as to that particular point. Yes. On the Wuhan issue. We do. And I would say we should get to the merits and decide whether this ROD was arbitrary and capricious. Thank you, Your Honor. I'd be happy to discuss the merits. In fact. You know, in doing that, it seems to me that all of these events give some more credence to the petitioner's position than might otherwise be the case. Because I mean, if we are given the fact that this is also amorphous and unclear about what's going to actually happen, the real question is whether if everybody's plans are different than the ones that you are projecting on, why doesn't it make most sense for you to have looked at the maximum use, possible usage of the turbo instead of what people were telling you which all turns out to be wrong anyway? Well, the answer to that question, Your Honor, is that to the extent there's evidence that what we had reviewed in the final EA isn't going to happen, that evidence all points to fewer operations than what were had been contemplated, not more. No other airline has come out and said we're going to fill that terminal to capacity as evaluated in appendix P. Well, apparently Alaska Airlines has some interest in the Alaska Airlines as a big airline. I mean, maybe they're going to show up and decide to have ten flights today. I gather that they would have to be separately approved. That's correct. They would. In review. I mean, I also gather that as long as there are good airline and there's a place for them. You don't have much choice but to approve them, is that right? Well, there's the question of approving their operation specifications amendment which is a safety issue. And then there's also the issue of whether that proposal we reviewed underneath it, which it would. NEPA would apply to that approval. And the agency would be- Doesn't that become an incremental problem, i.e. every time you have something, the next thing is only a little bit. So if you or it, so it's not the same approval because it's not being done cumulatively. Well, of course, cumulatively impacts underneath are limited by regulation to the reasonably foreseeable future actions. No, I'm saying backwards. If you were to go ahead with what you have now and arise in a region we're actually there and then Alaska shows up and says we want to do some flights too, the only thing you would be looking at at that point is the impact of the Alaska increment, isn't that right? Well, that's right. I mean, your honor is asking whether the environmental baseline would change, which of course it does, in all future decisions. In all applications of NEPA, there is always some future project which relies on past project and past project has to be applied. Well, it is slightly different way. Suppose a third airline comes in or suppose Horizon decides to bring more flights in those with it where specifically addressed in the EA or the Fonsi. Would that trigger the necessity then for a new ROD and the EA? If it, I'm sorry, your honor. If the new airline comes in and has exactly the same proposal. Well, this was done on the basis of two airlines. Right. Now, it's both the third airline, United Delta, whoever decides they want to join the Frey here. Does that trigger a new requirement for an environmental assessment or an NEPA action? It does trigger the requirement for a new NEPA action. Any new airline, even if their proposal is identical. And so as a result, the NEPA analysis may turn out to be the same, but it also may not. I mean, here we are speculating. But you would never, the less, have a public disclosure of those impacts prior to the agency's approval

. NEPA would apply to that approval. And the agency would be- Doesn't that become an incremental problem, i.e. every time you have something, the next thing is only a little bit. So if you or it, so it's not the same approval because it's not being done cumulatively. Well, of course, cumulatively impacts underneath are limited by regulation to the reasonably foreseeable future actions. No, I'm saying backwards. If you were to go ahead with what you have now and arise in a region we're actually there and then Alaska shows up and says we want to do some flights too, the only thing you would be looking at at that point is the impact of the Alaska increment, isn't that right? Well, that's right. I mean, your honor is asking whether the environmental baseline would change, which of course it does, in all future decisions. In all applications of NEPA, there is always some future project which relies on past project and past project has to be applied. Well, it is slightly different way. Suppose a third airline comes in or suppose Horizon decides to bring more flights in those with it where specifically addressed in the EA or the Fonsi. Would that trigger the necessity then for a new ROD and the EA? If it, I'm sorry, your honor. If the new airline comes in and has exactly the same proposal. Well, this was done on the basis of two airlines. Right. Now, it's both the third airline, United Delta, whoever decides they want to join the Frey here. Does that trigger a new requirement for an environmental assessment or an NEPA action? It does trigger the requirement for a new NEPA action. Any new airline, even if their proposal is identical. And so as a result, the NEPA analysis may turn out to be the same, but it also may not. I mean, here we are speculating. But you would never, the less, have a public disclosure of those impacts prior to the agency's approval. So if we were to just, this is hypothetically, if we were to determine that this particular Fonsi did not show arbitraryness or capriciousness, and therefore, in effect, deny the PFR, if it turns out that future operations are much greater than those projected here, that would perhaps result in a Fonsi or some other conclusion. That's right. It changes by these airlines and their city payers or routes with trigger that requirement. If a new airline wanted to do it, that would trigger the requirement. The consequence of switching the baseline. I mean, isn't the consequence of that point that there is, as I was saying before, you're looking at the increment and not at the total? No, your honor, because the cumulative impacts analysis, which is required, is retrospective and so when you're looking at the incremental increase, you're looking at what that does when it's combined with all of the past actions and all the past approvals. So if there is some tipping point at which there are just too many operations at Pay and Fuel for some environmental reason, that is accounted for in the cumulative impacts analysis of past actions that have been approved. And so the future NEPA review is not constrained only that little increase. There are various threshold NEPA steps, as I understand it. Do we have to do an EA at all and then do we have to anything? Step one and step two. This semi EIS, the EA process. In those determinations, I mean, I can't believe that if horizon airlines came back and said, now we're going to use a new plane, that you would actually get to the point of as much investigation as you did here. That may be said. There are categories. Is this the second avenue impact we're not doing anything? Well, that's not right. That would require another amendment to their part 119 certificate. Let's say that even though they don't own any, horizon decided it wanted to fly 747s in and out of Pay and Fuel. They were manufactured at the end of the field. That would require a reopening, would it not? Because this is a different type of aircraft than what the MD83s that they were proposing to you. You're both right. The change to the operation specifications, different plane, different routes, would trigger the requirement of the FAA reviewing it for NEPA purposes. But as Judge Bereson points out, step one of that purposes is look to see whether any categorical exclusion applies and it's possible, although I'm not sure, that there might be one for applies that agency may say our NEPA analysis is that no further review is required

. So if we were to just, this is hypothetically, if we were to determine that this particular Fonsi did not show arbitraryness or capriciousness, and therefore, in effect, deny the PFR, if it turns out that future operations are much greater than those projected here, that would perhaps result in a Fonsi or some other conclusion. That's right. It changes by these airlines and their city payers or routes with trigger that requirement. If a new airline wanted to do it, that would trigger the requirement. The consequence of switching the baseline. I mean, isn't the consequence of that point that there is, as I was saying before, you're looking at the increment and not at the total? No, your honor, because the cumulative impacts analysis, which is required, is retrospective and so when you're looking at the incremental increase, you're looking at what that does when it's combined with all of the past actions and all the past approvals. So if there is some tipping point at which there are just too many operations at Pay and Fuel for some environmental reason, that is accounted for in the cumulative impacts analysis of past actions that have been approved. And so the future NEPA review is not constrained only that little increase. There are various threshold NEPA steps, as I understand it. Do we have to do an EA at all and then do we have to anything? Step one and step two. This semi EIS, the EA process. In those determinations, I mean, I can't believe that if horizon airlines came back and said, now we're going to use a new plane, that you would actually get to the point of as much investigation as you did here. That may be said. There are categories. Is this the second avenue impact we're not doing anything? Well, that's not right. That would require another amendment to their part 119 certificate. Let's say that even though they don't own any, horizon decided it wanted to fly 747s in and out of Pay and Fuel. They were manufactured at the end of the field. That would require a reopening, would it not? Because this is a different type of aircraft than what the MD83s that they were proposing to you. You're both right. The change to the operation specifications, different plane, different routes, would trigger the requirement of the FAA reviewing it for NEPA purposes. But as Judge Bereson points out, step one of that purposes is look to see whether any categorical exclusion applies and it's possible, although I'm not sure, that there might be one for applies that agency may say our NEPA analysis is that no further review is required. Now, that has limitations extraordinary circumstances such as increase in emissions or noise would mean you would not be allowed to use that categorical exclusion. You'd need to environmental assessment. And if you're changing your flight to use much bigger, much heavily-political planes, perhaps that would be the result. And you would, in fact, get, as your honor said, the level of analysis you got here. But I think at your position is that under the existing environmental assessment, even though we now know a legion in horizon are not coming in imminently, that the development of the terminal could still proceed even though it's a different entity funding the terminal, then perhaps everyone thought at the time that the record of decision was released. That's right. The agency's environmental review of the terminal, and remember no construction impacts are being challenged here. There's no allegation that there's environmental harm from the building of the terminal. What's contingent on a specific plan, and if the private funding builds that specific plan, there's no role for FAA to play in further review or approval of that capacity. Perhaps that would have to be the same 18,000-foot modular expansion. It would have to be the same design in the same place. If the FAA, if there's no federal money in the terminal, then what do they have to do anything? Why is the federal government involved at all in terms of environmental review? Well, the construction of the... They're involved in the usage issues, but as to the... Suppose they just decided to build a building on the airport somewhere in the airport. Does that have to be reviewed by the federal government? I admit I don't fully know the answer to that question. In this case, it was reviewed because it was a reasonably foreseeable concept. The area was going to be federally funded. Well, in that plus, the fact that the proposal to amend a certificate and allow these flights required a facility that didn't exist yet

. Now, that has limitations extraordinary circumstances such as increase in emissions or noise would mean you would not be allowed to use that categorical exclusion. You'd need to environmental assessment. And if you're changing your flight to use much bigger, much heavily-political planes, perhaps that would be the result. And you would, in fact, get, as your honor said, the level of analysis you got here. But I think at your position is that under the existing environmental assessment, even though we now know a legion in horizon are not coming in imminently, that the development of the terminal could still proceed even though it's a different entity funding the terminal, then perhaps everyone thought at the time that the record of decision was released. That's right. The agency's environmental review of the terminal, and remember no construction impacts are being challenged here. There's no allegation that there's environmental harm from the building of the terminal. What's contingent on a specific plan, and if the private funding builds that specific plan, there's no role for FAA to play in further review or approval of that capacity. Perhaps that would have to be the same 18,000-foot modular expansion. It would have to be the same design in the same place. If the FAA, if there's no federal money in the terminal, then what do they have to do anything? Why is the federal government involved at all in terms of environmental review? Well, the construction of the... They're involved in the usage issues, but as to the... Suppose they just decided to build a building on the airport somewhere in the airport. Does that have to be reviewed by the federal government? I admit I don't fully know the answer to that question. In this case, it was reviewed because it was a reasonably foreseeable concept. The area was going to be federally funded. Well, in that plus, the fact that the proposal to amend a certificate and allow these flights required a facility that didn't exist yet. So someone was going to have to build something and the FAA could not ignore that in its review. So before your time expires, come back to the point of conflict between you and the petitioner. It has to do with air quality. You heard what Ms. Lichman had to say. What's the government's response? Well, expect an air quality. For one thing, the air quality analysis is complete in the FAA, iffy, the final EA and is not being challenged. The only challenge is we think that the maximum terminal capacity scenario is the more likely one. Our conflict is that we think that is completely unlikely. It explains on its face, you can see it, SCR 104, why other reasons are that was highly speculative. It was only given because so many commenters that come to us and said, were concerned that once you would change the certificate, there'll be an unlimited amount of commercial air traffic that this airport has never had before. And while that's not true for legal reasons, we thought that in the interest of full public disclosure, we could provide this worst case scenario for them to look at. The ultimate injury they're alleging is that if they were right that the appendix P forecast was reasonably foreseeable, that that is a reasonably foreseeable outcome or an indirect effect. These would be indirect emissions. It would be over the 100 tons a year of carbon monoxide by some thin margin. That would trigger the requirement under the clean air act, perform a conformity analysis, which is just what it sounds like. It may not necessarily require any mitigation or further action on the agency's part. But a formal determination, consistent with EPA regulations, would have to be conducted and published and EPA might require some mitigation it might not. There's going to be a stay and nothing's going to happen. Maybe it may just go ahead and do it and then we won't have an issue. And if we were led to believe during the stay that more flights than we've been, anyone has ever proposed, we're going to happen. Yes, we would consider that

. And we do, as your honours pointed out, have an expression of interest from Alaska that has also gone nowhere, which was filed after this decision was issued by FAA. But maybe they will change their mind in those like Alphonse guests. If your honours are, it all interested in the idea of staying, pending some resolution, the jurisdictional issue. We propose that you place the case in the mediation office of the circuit to allow the parties to have discussions with the media here. About what events we think would happen, would have to happen to trigger this court's jurisdiction to have us resubmitted to you for judgment. Thank you very much, counsel. The case just argued will be submitted for decision and the court will adjourn