L.A. Wins a Battle in War Over New Burbank Terminal
Ninth Circuit Says FAA Must Reconsider Its Determination That Construction Would Not Subject Neighborhoods in City of Los Angeles to Excessive Noise; Rejects Other Contentions
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday handed the City of Los Angeles a partial victory in its challenge to an administrative decision giving the green light to construction of a new terminal at the Hollywood Burbank Airport.
Fifth U.S. Circuit Court of Appeals Judge Stephen A. Higginson, sitting by designation, authored the majority opinion which grants, in part, the City of Los Angeles’s petition for review of an order of the Federal Aviation Administration (“FAA”) and remands the matter for further consideration by the agency. The opinion rejects the bulk of contentions by Los Angeles but agrees with it that the FAA failed to provide support for its conclusion that construction noise would not adversely affect neighborhoods within the petitioner’s boundaries.
Although the airport is primarily situated in Burbank, approximately 100 of its 555 acres are located in Los Angeles and Los Angeles neighborhoods abut the facility.
No ‘Hard Look’
“Because FAA failed to take a hard look at noise impacts from construction and based its cumulative impacts analysis on its inadequately considered conclusions about construction noise, we grant the petition on those limited grounds,” Higginson wrote, adding:
“Having considered the rest of Los Angeles’s objections to FAA’s impact analysis and found them meritless. we deny the petition on all other grounds.”
The visiting jurist found meritorious the assertion by Los Angeles “that FAA failed to account for the simultaneous operation of construction equipment, failed to consider whether a significant impact would likely occur because of the combined effects of sound sources, and failed to perform the necessary calculations to conclude otherwise.”
He instructed that “because FAA’s noise analysis was deficient, on remand, FAA should reconsider whether the Project is consistent with Los Angeles’s noise standards.”
Impact on Minorities
Higginson said in a footnote:
“Since FAA’s conclusion that ‘there would be no disproportionate noise impacts on minority populations’ is predicated in part on the agency’s inadequate study of construction noise impacts, FAA should reconsider this analysis after correcting the construction noise analysis.”
The city contended in its opening brief that the FAA’s environmental impact statement (“EIS”) “unreasonably underestimates the percentage of potentially impacted minority, and likely, low-income residents,” adding:
“By failing to provide definitive information identifying the impacted minority population (or to explain why such information cannot be provided), the EIS fails to take a hard look at the disproportionate impacts to the minority and low-income populations.”
The city commented:
“The percentage of minority populations reported in the EIS do not comport with the City’s knowledge of the City neighborhoods surrounding the Airport nor with common knowledge that municipal airports are regularly surrounded by low-income communities of color….”
The majority’s opinion rejects the city’s contention that the EIS fails to set forth the required “detailed statement” of “alternatives to the proposed action,” including the possibility of a new airport.
The FAA “considered a reasonable range of alternatives,” Higginson wrote, detailing what the agency studied.
His opinion was signed by Ninth Circuit Judge Morgan Christen. Ninth Circuit Judge Patrick J. Bumatay dissented, saying: “The majority remands for the FAA’s reconsideration of the proposed project’s construction noise impacts. In doing so, the majority ignores the FAA’s reasonable assumptions about noise effects. Because the FAA’s construction noise analysis was not arbitrary or capricious, I respectfully dissent from granting the petition.”
The case is City of Los Angeles v. FAA, 21-71170.
The airport was opened in 1930, initially known as the United Airport. It has had various names through the years, but was the Hollywood-Burbank Airport from 1967 until 1978 when ownership passed from Lockheed to the Burbank–Glendale–Pasadena Airport Authority which still owns it.
It became the Burbank–Glendale–Pasadena Airport, was renamed the Bob Hope Airport in 2003, and was renamed the Hollywood Burbank Airport in 2017 in order to lend it a geographical identity.
The Airport Authority has been involved in various other legal disputes, including a suit against the California High Speed Rail Authority challenging an environmental impact report on the impact of a proposed high-speed rail project on the airport’s operations.
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