Case Studies on Community Challenges to Airport Development (2010)

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43 Authority permission to collect and use PFCs for the light rail project. The petitioners argued that each seg- ment of the light rail project must be evaluated sepa- rately under a cost/benefit analysis and that under that analysis, one segment of the system lacked adequate justification. The court noted that the statute itself does not explain what is meant by “adequate justification,” but suggested that the legislative history indicated an intent to give the FAA discretion in deciding whether a project is adequately justified. Further, the court con- cluded that the FAA’s interpretation of the PFC statute was reasonable and consistent with the statute’s pur- pose. VII. OTHER STATUTORY CHALLENGES A. Religious Freedom Restoration Act In the case of Village of Bensenville v. FAA,504 the D.C. Circuit held that the burden on religious exercise allegedly resulting from the expansion of O’Hare Inter- national Airport could not be attributed to FAA for pur- poses of RFRA. In this case, two suburbs of the City of Chicago, members of St. Johannes Church, and indi- viduals petitioned for review of an FAA order approving an airport expansion plan that required the relocation of a church cemetery, claiming that approval violated the RFRA.505 The City of Chicago, which owned and op- erated the airport, intervened. RFRA provides that “Government shall not substantially burden a person’s exercise of religion”506 unless application of the burden “is the least restrictive means of furthering [a] compel- ling governmental interest.”507 RFRA requires strict scrutiny of a federal agency’s approval of an airport layout plan incident to a determination of eligibility for federal funding if the implementation of the plan may burden religious exercise. Petitioners argued that the FAA approval violated RFRA because the approved runway configuration, which required relocation of the cemetery, was not the least compelling means of satisfy- ing the government’s interest in reducing delays. The court observed that, while the FAA is undenia- bly an agency of the United States for purposes of RFRA, it questioned whether the FAA’s approval of the city’s airport layout plan is properly the source of what the petitioners contend is the substantial burden placed on the free exercise of religion. The court concluded that it was not the FAA, but rather the City of Chicago, as owner and operator of the airport, which was responsi- ble for the imposition of the claimed burden on religious exercise. The court declined to apply RFRA broadly, but rather looked to the intent of RFRA, the enactment of which was to reestablish a constitutional test with the expectation that the courts would look to constitutional precedence for guidance. The court narrowed its analy- 504 457 F.3d 52, 372 U.S. App. D.C. 406 (D.C. Cir. 2006). 505 42 U.S.C. § 2000bb et seq. 506 42 U.S.C. § 2000bb-1(a). 507 42 U.S.C. § 2000bb-2(1). sis of one necessary to determine whether FAA could be held responsible for the infringement of constitutional rights. The court limited its inquiry into whether there is a sufficiently close nexus between the federal gov- ernment and the challenged action of the city so that the actions of the city can be fairly treated as those of the federal government. The specific burden that the petitioners challenge is the seizure and relocation of St. Johannes Cemetery; the court needed to decide if the FAA’s role in the potential disinterment was “mere ap- proval of or acquiescence in the city’s plan, or whether the FAA has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the FAA.”508 The court concluded that the FAA’s peripheral role in the relocation of St. Johannes is not sufficient to hold the FAA responsible for purposes of RFRA. VIII. CONCLUSION The volume of case law regarding community chal- lenges to airport development and operations clearly indicates that litigation is always a threat from munici- palities and community groups seeking to modify or prevent airport expansion and development. Neverthe- less, airport proprietors have managed to avoid such litigation through prior planning and buffering, positive community relations and local government support, and compliance with environmental regulation. Strategi- cally, airport proprietors are well advised to pursue a proactive relationship with parties of interest in the community as part of their airport development plan- ning. Certain airport litigation may be unavoidable, and a comprehensive review of the case law shows that most, although not all, community challenges to airport de- velopment will fall into the general categories of federal environmental challenges and local zoning challenges. Federal environmental challenges arise under the pro- cedural requirements of NEPA or directly under “spe- cial purpose laws” such as the ESA, the National His- toric Preservation Act of 1966, the AAIA, Section 4(f) of the Transportation Act, the CAA, and the CWA. To meet the arbitrary and capricious standard applied in the circuit courts hearing these cases, an airport project sponsor needs to ensure that it has effectively and com- prehensively met or exceeded the procedural require- ments of NEPA. FAA guidance is available to assist in this undertaking. In states with “mini-NEPA” laws, 508 See Bensenville, 457 F.3d at 64; citations omitted. Key to the court’s decision was the following passage from Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 197, 290 U.S. App. D.C. 371 (D.C. Cir. 1991), which describes the FAA’s role in airport development: “In the present system of federalism, the FAA does not determine where to build and develop civilian airports, as an owner/operator. Rather, the FAA facilitates airport development by providing federal financial assistance, and reviews and approves or disapproves revisions to Airport Layout Plans at federally funded airports.”

44 sponsors of airport projects need to be equally cognizant of applicable state law and regulatory requirements. State law challenges very often arise out of zoning regulations that apply directly to airport development. These ordinances must be complied with, or variances obtained from them, for an airport operator or devel- oper to legally proceed with airport development pro- jects. Federal preemption has not proven to be a suc- cessful argument against community challenges involving local land use regulations. If an airport pro- ject sponsor is unable to comply with local law or obtain a variance, it may be that its only recourse is a preemp- tive state law change. As the experience of the City of Chicago has proven, NEPA and local zoning regulation may not be the only hurdles presented by community challenges to airport development. Other challenges may include federal and state constitutional challenges and other challenges brought under applicable law, such as the RFRA. Pro- jects that impact cemeteries and other religious proper- ties must proceed with caution and an eye toward all available alternatives. Again, the best course of action will be to do the work required in advance of the project to involve community members, businesses, organiza- tions, and local officials in the airport planning and development process.