Appellate Law

CA1: Logan gets to build its taxiway

By S. COTUS

Winthrop, MA v. Federal Aviation Administration, No. 07-1953 rejects a challenge to an order by the FAA letting Logan Airport build a new taxiway.  This seems to all come down to a question of whether the FAA properly decided not to prepare a supplemental Environmental Impact Statement under NEPA 42 U.S.C. § 4332(c).   There are some interesting issues there regarding what makes airports late and loud.  The new taxiway is already being built.

After finding Art. III standing, the First finds that it wasn?t arbitrary and capricious to conclude that the FAA wasn?t presented with significant new information.  The rest seems to be affirmed largely on the facts regarding what noise models to use.

Then the first concludes by bashing the petitioners when they move to supplement the record with additional documents.  But, in doing so, the First does some funny stuff.

It writes:

the petitioners would like included forty-six documents which the FAA has withheld in response to a Freedom of Information Act ("FOIA") request filed by petitioners. In an entirely separate proceeding regarding this FOIA request, a district judge has reviewed those forty-six documents in camera and agreed with the FAA that the documents pertain to internal deliberative processes and were properly exempted from disclosure under FOIA. Petitioners have appealed that ruling as a separate matter, not presently before us. Documents pertaining to internal deliberative processes are irrelevant to this petition.

Wait?  Is the First really saying that even though the FAA refused to produce some documents, and the petitioners are proceeding under FOIA, it can?t hear this issue.  I mean, what if these documents show that the FAA wasn?t exactly playing with a good deck.

Full post as published by Appellate Law and Practice on July 23, 2008 (boomark / email).