Other federal courts have ruled that similar agency actions violated Section 106. Indeed, the facts in this case are remarkably similar to those in National Trust for Historic Preservation v. U.S. Army Corps of Engineers, 552 F. Supp. 784 (S.D. Ohio 1982), in which the court held that the Army Corps had failed to comply with Section 106 before issuing a permit for the construction of a barge loading facility adjacent to the historic Anderson Ferry on the Ohio River near Cincinnati. In the National Trust case, as here, the agency began the Section 106 process in a half-hearted fashion, failed to provide adequate information on the project, refused to cooperate in any meaningful way, and essentially abandoned the process when agreement could not be reached in the manner desired by the agency. The Court therefore enjoined construction of the barge loading facility pending compliance with Section 106.

Likewise, in Attakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990), the court held that the Bureau of Indian Affairs (BIA) violated Section 106 by constructing fences and livestock watering facilities on the Hopi Indian Reservation, without adequate consultation under the Advisory Council's regulations. Although the BIA had conducted an archeological survey and realigned the project as a mitigation measure, the court held that the agency was improperly attempting to substitute its own "unilateral determination" for the consultation process that is fundamental to the Council's regulations. "Without consultation," the agency had "no reasonable basis" to determine what identification and mitigation measures may be warranted. Id. at 1407. The Court held that such unilateral determinations "are contrary to the letter and spirit of the [Advisory Council's] regulations, which rely on consultation, particularly with the SHPO, as the principal means of protecting historic resources." 746 F. Supp. at 1407-08.

Here, the FAA approved the undertaking barely one month after initiating the Section 106 process, and before an acceptably documented finding of "no effect" had been submitted to the SHPO and the Council, in violation of the Advisory Council's regulations. The FAA's justification for aborting the Section 106 process -- its assertion that continuing consultation under Section 106 would only lead to "further delay" (App 308) -- provides no justification for ignoring this congressionally mandated process. [FN 11] Such a justification is tantamount to an assertion that the Section 106 process can be ignored at will by federal agencies. Congress has decided that agencies must conform their actions to the procedural requirements of Section 106, and the FAA is not free to alter that judgment. Any other holding would undermine Congress' explicit directive that agencies "take into account" the effects of their undertakings "prior to . . . the issuance of any license." 16 U.S.C. 470f. [FN 12]

[FN 11] This assertion certainly lacks factual support in the record of this proceeding, since, as noted above, the FAA had initiated the Section 106 process only a little over a month earlier. More generally, and contrary to the FAA's apparent belief, courts express surprise as to why an agency would attempt to avoid the Section process. As one Court noted, "It is not expensive or an unduly cumbersome process, and it allows for an informed decision to be made . . . Development is not usually hampered but instead proceeds in a way that preserves historical and cultural values." McMillan Park Committee v. National Capital Planning Commission, 759 F. Supp. 908, 916 (D.D.C. 1991), rev'd on other grounds, 958 F.2d 908 (D.C. Cir. 1992). Moreover, the regulations contain numerous mechanism by which agencies can request expedited consideration. See, e.g., 36 C.F.R. 800.12, 800.14.

[FN 12] The FAA must, once it proceeds to the step of assessing effects under Section 106 consultation, consider not only the incremental impacts associated with Shuttle America's flights to LaGuardia Airport, but also the cumulative impacts of its past actions upgrading Hanscom Field's Part 139 certificate from partial to full and adding Hanscom Field to Shuttle America's operations specifications, which actions were not preceded by any attempt at compliance with Section 106. The Advisory Council's regulations expressly require that, in assessing adverse effects, the undertaking's "cumulative impacts" must be evaluated. 36 C.F.R. 800.5(a)(1) The requirement that cumulative impacts be analyzed is discussed in more detail in the context of the FAA's violation of NEPA, infra, at p. __

A. The FAA's Action Adding LaGuardia Airport to Shuttle America's Operations Specifications Does Not Fall Within the Categorical Exclusion From NEPA Contained in the FAA's Regulations.

The FAA's policies and procedures governing its NEPA responsibilities provide that "[o]perating specifications and amendments thereto which do not significantly change the operating environment of the airport" are categorically excluded from NEPA review." See DOT Order 1050.1D, Appendix 4, Section 4.h. App. 73. However, the regulations also provide that an EA will nonetheless be required for categorically excluded actions under the following circumstances:

Proposed federal actions, normally categorically excluded, which have any of the following characteristics, shall be the subject of an environmental assessment.

a. An action that is likely to have an effect that is not minimal on properties protected under section 106 of the Historic Preservation Act of 1966, as amended, or section 4(f).

b. An action that is likely to be highly controversial on environmental grounds.

[FN 13] By contrast, the FAA regulations that categorically exclude "Part 139 certificates" do not provide a similar exception for "extraordinary circumstances" See DOT Order 5050.4A, Chapter 3, ¶ 23(b)(7).

[FN 14] Instead, this assertion is followed by the non sequitur that "the petition for review filed in the Second Circuit Court of Appeals [raising NEPA issues with respect to the granting of slot exemptions at LaGuardia and John F. Kennedy Airports] is not in opposition to the proposed action by Shuttle America Airlines." App. 312.

1. The Amendment Will Have More than A Minimal Impact on Protected Historic Properties.

The FAA's October 27, 2000 "categorical exclusion" for the amendment of Shuttle America's operations specifications asserted that there were no "extraordinary circumstances warranting the preparation of an Environmental Assessment." App. 312. However, the Categorical Exclusion itself made no findings concerning whether the proposed amendment would have "more than a minimal impact on properties protected by Section 106 or Section 4(f)." Instead, the only place in the record where a finding of "no effect" on historic properties can be found is in the FAA's September 15, 2000, letter to the MHC. App. 234. This finding is not supported by substantial evidence in the record.

First, as discussed above, the MHC expressly declined to concur in this finding of "no effect" because the finding was unsupported by project-specific studies or analysis, and failed to identify potentially affected historic properties. App. 265. As noted above, the FAA's response was to simply abort the Section 106 process and approve the amendment to Shuttle America's operations specifications rather than perform the studies needed to assess the impacts on historic properties. As a result, any conclusion regarding the effect of the FAA's action on properties protected by Section 106 lacks credibility, since this conclusion was made without compliance with Section 106.

To the contrary, there is substantial evidence in the record contradicting the FAA's finding that Shuttle America's new LaGuardia flights would not have the potential to affect historic properties. As the National Park Service pointed out in its comments, one of the most serious threats to nearby historic properties is the surface traffic that will be generated by instituting and expanding scheduled passenger service at Hanscom Field, since every flight operation (take off and landing) has the potential to generate new vehicle trips and vehicle miles traveled for each passenger on the flight. App. 28. According to the National Park Service, this increased traffic "would have serious detrimental impacts on major historic resources" in the MMNHP, by requiring significant upgrades to the historic Battle Road that runs through the Park and is the major roadway serving Hanscom Field. Id.

The FAA made no attempt to calculate the number of trips or vehicle miles traveled that will result from increased passenger flight operations out of Hanscom Field, or to quantify the secondary impacts associated with this traffic (degradation of air quality, noise, vibrations, and congestion that stresses the existing road infrastructure). The FAA's response (also set forth in its letter to the MHC) was simply that only one Shuttle America flight would occur during the "peak" traffic hour, and the surface traffic accompanying this flight traffic would "be a minimal increaseþ to peak hour traffic, and therefore þwould not produce a perceptible increase in the peak hour noise level," or in air quality. App. 209-10.

It should be noted, at the outset, that there is no support for the FAA's failure to evaluate the traffic impacts associated with Shuttle America's 12 to 18 daily flight operations that will not occur during the AM or PM "peak" traffic hours. As one Court noted, the FAA's assessment of impacts must be "relevant to the value, significance, and enjoyment of the lands at issue." Allison v. Department of Transportation, 908 F.2d at 1029. Visitation to the MMNHP and other area historic resources occurs throughout the day, not just during "peak" traffic hours, and these properties serve as a places where visitors can appreciate the historical events that occurred in a setting that is undisturbed by the noises and machinery associated with our modern lifestyles. Additional traffic can disturb that experience regardless of whether such traffic occurs in the "peak" traffic hour.

Nor is there any support for the FAA's decision to confine its traffic analysis to the intersections of three roadways with Hanscom Drive, the entry point to the airport. The FAA has not presented any trip origination data or analysis, and thus there is no basis for limiting the traffic evaluation simply to the intersections at Hanscom Drive. [FN 15]

[FN 15] Indeed, there is no support for the FAA's assertion that each "peak" hour flight will only generate "70 vehicle trips (35 in and 35 out)." App. 208. Even accepting the FAA's "conservative" assumption of a 70 percent "load" factor for Shuttle America's 50-seat planes, the assumption of two vehicle trips per passenger assumes that each passenger will drive, as opposed to be driven, to the airport. If, however, passengers are driven to and picked up from the airport, then each passenger would generate four vehicle trips.

[FN 16] The FAA's own environmental regulations require the FAA to describe, in assessing impacts, "[a]ny special significant visual impacts . . ., particularly in areas of natural beauty or historic or architectural significance. Consideration of aesthetics, design, art, and architecture should be documented, . . . ." DOT Order 1050.1D, Attachment 2, Change 3, ¶ 20. App. 92. The Advisory Council's include as one "criteria of adverse effect," the "[introduction of visual . . . elements that diminish the integrity of the property's significant historic features." 36 C.F.R. 800.5(a)(2)(v). There is no evidence whatsoever in the record that the FAA considered the visual impacts of increased traffic to and from the airport on historic resources.

The HATS subcommittee also pointed out that the 1995 GEIR does a very poor job of evaluating impacts on historic properties. For example, the GEIR does not evaluate the impacts on Battle Road/Route 2A, despite its status as a major element of the Minute Man National Historical Park. App. 277. Indeed, the National Park Service is on record as criticizing the 1995 GEIR as "seriously flawed," particularly with regard to its overall conclusion that there will be no impacts on the Minute Man National Historical Park, stating that "[a]ll of the hypothetical scenarios will add to those impacts and would bring significant to devastating impacts to this National Park and to the substantial public investment here." FAA Certified Index, Document 66. Accordingly, the record shows that the Shuttle America's proposed Hanscom-to-LaGuardia Service will have more than a minimal impact on historic properties, and the FAA's finding to the contrary is not supported by substantial evidence.

2. The Amendment of Shuttle America's Operations Specifications Is Highly Controversial on Environmental Grounds.

As noted above, the FAA's regulations provide that an Environmental Assessment will be prepared for actions that are normally categorically excluded where the action is likely to be highly controversial on environmental grounds." See FAA Order 1050.1D, Chapter 3, ¶ 32. App. 65. As one Court explained, "[t]he term "controversial" apparently refers to cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use, the effect of which is relatively undisputed." Hanley v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).

Here, the FAA's "categorical exclusion" simply stated that "the FAA has complied with NEPA by reviewing the potential impact areas and level of controversy." App. 312. This finding has no support in the record. To the contrary, the actions of two federal agencies with specific expertise in assessing the impacts of federal projects on historic properties -- the Advisory Council on Historic Preservation and the National Park Service -- compellingly demonstrate the highly controversial nature of the dispute over the impacts of the FAA's approval of Shuttle America's request to fly to LaGuardia Airport.

Specifically, Robert Stanton, Director of the National Park Service, wrote to the FAA expressing "the National Park Service's grave concern for the future of Minute Man National Historical Park as the Federal Aviation Administration considers and approves actions that support growth at Hanscom Field." App. 227. [FN 18] Likewise, the Advisory Council on Historic Preservation, the federal agency charged by Congress to enforce federal historic preservation policy, took the unusual step of entering the Section 106 consultation. App. 258-59. The Advisory Council's regulations specifically provide that the Council will enter the Section 106 consultation only when certain criteria are met, such as "adverse effects on properties that posses a national level of significance," or a case that "presents important questions of policy and interpretation." 36 C.F.R. Part 800, Appendix A.

[FN 18] This letter included a request by the National Park Service for status as a "consulting party" to the Section 106, a request that was ignored by the FAA.

[FN 19] See also Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1030 (2d Cir. 1983) ("[T]he court may properly be skeptical as to whether an EIS's conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting view of other agencies having pertinent expertise."); Hughes River Conservancy v. Glickman, 81 F.3d 437, 443, 445 (4th Cir. 1996) (agency failed to take a hard look under NEPA when it failed to address, in environmental document, comments of EPA and Fish & Wildlife Service); Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987) (court deferred to the "more appropriate expertise" of Fish & Wildlife Service, rather than Army Corps, regarding protection of endangered species from highway and flood control project): State of Alaska v. Andrus, 580 F.2d 465, 477 n. 44 (D.C. Cir. 1978) (heightened obligation to respond to the contrary views of "mission oriented Federal agencies"); Florida Key Deer v. Stickney, 864 F. Supp. 1222, 1231-38 (S.D. Fla. 1994) (court deferred to Interior Department rather than FEMA in an Endangered Species Act dispute, due to Interior's paramount expertise, even though Interior was assessing the impacts of a FEMA project.).

B. The FAA Failed to Consider the Cumulative Impacts of Its Actions on The Many Historic and Natural Resources Surrounding Hanscom Field.

The FAA's environmental regulations specifically require that, when assessing the significance of a federal action for purposes of NEPA, the FAA consider "the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." See FAA Order 1050.1D, Chapter 3, ¶ 34. App. 66 (citing 40 C.F.R. 1508.7). This regulation further states that such "[c]umulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. The placement of this regulation immediately after the section discussing "exceptional circumstances" that take an action out of a categorical exclusion, and the fact that a nearly identical discussion of "cumulative impacts" is provided in the section of the FAA's regulations dealing specifically with determining whether to prepare an EIS after an EA is prepared (FAA Order 1050.1D, Chapter 3, ¶ 37(b), App. 67-68), strongly suggests that this regulation intended the FAA to undertake a cumulative impact analysis in determining the applicability of a categorical exclusion.

Here, however, the FAA never attempted to evaluate the cumulative impact of amending Shuttle America's operations specifications to provide expanded service to and from Hanscom Field. Instead, the FAA only evaluated the incremental increase in flights proposed by the carrier at the time each proposed action was presented to the FAA. First, the FAA determined that allowing Shuttle America to begin scheduled passenger service at Hanscom Field was categorically excluded from NEPA review, based on the explicit premise that this action would result in only four flights per day. App. 127. [FN 20] As the FAA later acknowledged, Shuttle America required no further approval by the FAA to increase the number of flights out of Hanscom Field "so long as it is continuing to use the aircraft listed on its approved operation specification." App. 200. As the FAA also acknowledged, within a year of obtaining permission to commence scheduled service out of Hanscom Field, Shuttle America increased the number of flights from four to ten a day, without any environmental review of the impacts of this increased activity by the FAA. Id. Clearly, this increased level of service was a foreseeable future action which should have been evaluated by the FAA, "regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. 1508.7.

[FN 20] It is worth noting that the FAA's regulations implementing NEPA provide that "Approval of operations specifications authorizing an operator to use turbojet airplanes for scheduled passenger service into an airport when that airport has not previously been serviced by any scheduled passenger turbojet airplanes," is a type of action identified as normally requiring the preparation of an environmental assessment. See FAA Order 1050.1D, Appendix 4, ¶ 3.d.(1). App. 71-72. Here, however, the FAA approved Shuttle America's 1999 application to fly turbojet airplanes into Hanscom Field without preparing an EA, despite the fact that Hanscom Field had not at that point been previously serviced by scheduled passenger service. Nor did the FAA prepare an EA or an EIS prior to upgrading Hanscom Field from a "limited" to a "full" airport operating certificate in September, 1999, thereby permitting Hanscom Field to receive scheduled passenger service, based on the view that "[t]he FAA's issuance of an Airport Operating Certificate does not authorize scheduled commercial service." App. 135.

In short, the FAA's focus on only current rather than cumulative increases in flights has allowed the FAA to evade its NEPA, Section 106, and Section 4(f) obligations altogether with respect to this dramatic increase in commercial aviation service at Hanscom Field. Using this approach, the FAA will continue to incrementally approve the use of Hanscom Field by other carriers (and/or allow Shuttle America to add new airports to receive Hanscom flights), without any environmental review. This is directly contrary to Congress' explicit directive that agencies apply NEPA "to the fullest extent possible." 42 U.S.C. 4332. As one Court explained, "when deciding the potential significance of a single proposed action (i.e., whether to prepare an EIS at all), a broader analysis of cumulative impacts is required. The regulations clearly mandate consideration of the impacts from actions that are not yet proposals and from actions -- past, present, or future -- that are not themselves subject to the requirements of NEPA." Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir. 1985).

As a result, this case is very different from that in City of Grapevine v. FAA, 17 F.3d 1502, 1505 (D.C. Cir. 1994), cert. denied, 513 U.S. 1043 (1994), in which the FAA's categorical exclusion of certain elements of an airport layout plan from NEPA review were challenged based on, among other things, the FAA's failure to consider the cumulative impacts of these actions. In that case, the FAA had prepared an Environmental Impact Statement for an airport plan, and the Court found that this document had, in fact, considered the cumulative impacts of the "categorically excluded" elements. Here, by contrast, the FAA has prepared no environmental document, not even an environmental assessment, in connection with its actions, and is likely to continue to evade any environmental review while its incremental approvals even more significantly increase the number of carriers and flights serving Hanscom Field.

Accordingly, not only did the FAA fail to consider as the cumulative impacts of the FAA's prior amendment to Shuttle America's operations specifications, but the categorical exclusion for the present FAA action authorizing Shuttle America's flights to LaGuardia lacked regulatory support. Instead, this amendment to Shuttle America's operations specifications clearly fell within the class of actions identified by the FAA as requiring an environmental assessment because the cumulative impacts of this action, in addition to the impacts of the FAA's prior actions, would certainly have more than a minimal impact on Section 106 and Section 4(f) properties.

III. The FAA Violated Section 4(f).

Section 4(f) is the most stringent federal historic preservation law ever enacted, and reflects Congress' directive that the protection of historic properties, parks, and wildlife and waterfowl refuges be given "paramount" importance in transportation planning. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412-13 (1971). Section 4(f) states that the Secretary of Transportation "shall not approve any program or project which require the use of" land from a Section 4(f)-protected site unless there are no prudent or feasible alternatives to the project, and the project incorporates all possible planning to minimize harm to the property. 49 U.S.C. 303(c).

Here, the FAA made no findings concerning the extent to which Shuttle America's new flights would result in a "use" of the many Section 4(f)-protected properties that surround Hanscom Field. As a result, there is simply not sufficient data to enable the FAA (or a reviewing court) to determine whether the FAA complied with Section 4(f). See Los Angeles v. USDOT, 103 F.3d 1027 (D.C. Cir. 1997) (agency action was arbitrary and capricious where supported by no evidence and agency failed to inquire into relevant factors).

The FAA cannot rely on its September 15, 2000, proposed finding of "no effect" on historic properties to avoid its responsibilities to evaluate whether or not its actions would result in a "use" of Section 4(f)-protected historic sites. This proposed finding was made in violation of Section 106, and over the express objections of the MHC. As the MHC found, the documentation submitted by the FAA failed to support the FAA's proposed findings that there would be no effect on the two historic properties identified by the FAA as within the "area of potential" affects. Moreover, as the MHC pointed out, the FAA only evaluated the impacts on properties that were already listed in the National or State Registers of Historic Places, and made no efforts to identify National Register-eligible properties within its identified area of effect. App. 264. The MHC noted that "[s]taff of the MHC . . . have identified over 100 inventoried historic properties in or near the area of effect." Id. There is no data whatsoever in the administrative record indicating the effect of the FAA's approval on these unidentified historic properties.

As the D.C. Circuit has held, "[b]ecause the historic properties protected by Section 106 are similarly defined, it follows that the [transportation agency] must complete its section 106 determinations before it can comply with section 4(f)." See Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 371 (D.C. Cir. 1999) (emphasis added). Here, the FAA has failed to complete even the most basic first step of the Section 106 of identifying historic properties potentially affected by Shuttle America's new flight activity. Moreover, as noted above, its "no effect" determination with respect to the Minute Man National Historical Park, which directly abuts the airfield, is particularly suspect since the Park's historic Battle Road is the primary access to Hanscom. App. 206. As a result, no conclusions are possible at this juncture as to whether the amendment to Shuttle America's operations specifications will "use" Section 4(f)-protected properties. Accordingly, the FAA's approval of the amendment to Shuttle America's operations specifications is invalid, because the FAA cannot discharge its Section 4(f) obligations until the Section 106 process is completed.

[FN 21] Moreover, Runway 11-29, which is the primary runway used by Shuttle America, points directly at the Great Meadows National Wildlife Refuge and at the North Bridge. App. 279.

For the foregoing reasons, this petition for review should be granted, and the FAA's decision should be reversed and remanded to the FAA for compliance with Section 106, NEPA and Section 4(f).

Respectfully submitted,

________________________________
Andrea C. Ferster
1100 17th Street, N.W., 10th Fl.
Washington, D.C. 20036
(202) 974-5142
(202) 331-9680 (fax)
aferster@transact.org

Attorney for Petitioners
Date