By Lawson Fite, AFRC General Counsel

The Ninth Circuit’s decision in Barnes v. FAA upheld an agency finding that constructing a new airport runway does not require an EIS. This is a stark contrast to recent district court decisions requiring an EIS for modest forestry projects, such as the Goose Project which would conduct largely thinning treatment on 2,100 acres, or the White Castle timber sale involving 187 acres of variable retention harvest. Unsurprisingly, the effects of a major construction project exceed the effects of these modest projects. Construction also involves dealing with air quality issues where there is more uncertainty than any analysis of the effects of standard forestry techniques. This case shows just how far NEPA decisions on forestry have departed from the law.

In terms of airport operations (the number of takeoffs and landings), Hillsboro Airport has been Oregon’s busiest airport since 2008. To create the capacity for continued growth, the Port of Portland began planning to add a new runway, measuring 3,600 feet long (0.7 miles) and 60 feet wide. The project also includes construction of taxiways, relocation of a helipad, and associated infrastructure improvements. The new runway would slightly increase storm water runoff, impact some 70 acres of vegetation, result in permanent loss of 2.22 acres of wetlands, affect some 50 acres of prime farmland or farmland of statewide importance, and raise electricity use slightly. After a remand from a first round of litigation, the Port and the FAA produced an EA which predicted that Hillsboro would have 11,350 more takeoffs and landings each year with the new runway than it would without the new runway. The EA estimated that the new runway would result in the annual emission of an additional 0.03 ton of lead in 2016 and the annual emission of an additional 0.02 ton of lead in 2021 – an increase of four percent. The project budget is approximately $16.5 million.

Environmental groups petitioned for review in the Ninth Circuit, claiming that the construction of the runway required an EIS. The court, in the first round of litigation, rejected claims that uncertainty of climate change effects required an EIS. It noted that there is not substantial scientific uncertainty relating to the causal connection between greenhouse gas emissions and global warming. However, the Court found because Hillsboro “represents less than 1 percent of U.S. aviation activity, greenhouse emissions associated with existing and future aviation activity at HIO are expected to represent less than 0.03 percent of U.S.-based greenhouse gases. Because this percentage does not translate into locally-quantifiable environmental impacts given the global nature of climate change, the EA’s discussion of the project’s in terms of percentages is adequate.” It also held that the decision did not create “precedent” that a runway does not require an EIS because runway EAs are site-specific.

In the second round of litigation, the court rejected arguments that effects from increased lead emissions would present unique risks due to effects on children’s health, or that effects were highly controversial or uncertain, because the FAA and the Port had quantified the “de minimis” increase in emissions. By contrast, district courts in Oregon have found “significant” effects requiring an EIS even in a project, such as White Castle, that would take no northern spotted owls.

Barnes was the right decision and it shows the path forward the Ninth Circuit can and should take in evaluating forestry projects.