Town of Milton v. Fed. Aviation Admin.

PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL AVIATION ADMINISTRATION

Karis L. North, with whom Murphy, Hesse, Toomey & Lehane, LLP was on brief, for petitioner.

Thomas J. Dougherty on brief for Congressman Stephen F. Lynch, State Senator Walter F. Timilty, and State Representative William J. Driscoll, Jr., amici curiae.

David S. Frankel, Attorney, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice, with whom Todd Kim, Assistant Attorney General, Justin D. Heminger, Attorney, Appellate Section, Environment and Natural Resources Division, Scott E. Mitchell, Assistant Chief Counsel, Federal Aviation Administration, Laura Price, Acting Manager, Airports and Environmental Law, Office of the Chief Counsel, and Evan Baylor, Attorney Advisor, Airports and Environmental Law, Office of the Chief Counsel, were on brief, for respondent.

Cindy L. Christiansen, PhD and John Rowe, pro se, on brief for themselves as amici curiae.

Before Montecalvo, Selya, and Lynch, Circuit Judges.

SELYA, Circuit Judge.

The Federal Aviation Administration (FAA) initiated the process of shifting from ground-based navigation to satellite-based navigation at Boston's Logan International Airport (Logan). This shift, which was aimed at increasing the safety and efficiency of flight procedures, relegated certain approaches and departures at Logan to a narrower swath of airspace that covers the Town of Milton, Massachusetts (the Town). Dismayed by the possibility of heavier air traffic over its terrain, the Town objected to the FAA's proposed course of action and mounted an extensive campaign to block the implementation of the new flight procedure.

The campaign came to naught: the FAA rejected the Town's entreaties and entered a final order authorizing the new flight procedure. The Town, a mostly residential community which is located about ten miles southwest of Logan, now petitions for judicial review of the FAA's final order. Its location, the Town says, subjects it to heavy air traffic, and many residents decry the resulting noise.

In its petition for review, the Town contends that the FAA's environmental analysis of the noise impacts failed to comply with the agency's obligations under the National Environmental Policy Act (NEPA), see 42 U.S.C. §§ 4321 - 4370m-11, and that the noise from this challenged flight procedure disturbs Town residents. We do not reach the merits of these contentions.

The FAA responds that the Town does not have standing to challenge its final order because it failed to satisfy the first prong of the standing test: injury in fact to its own interests. See TransUnion LLC v. Ramirez, 594 U.S. 413, 141 S. Ct. 2190, 2203-04, 210 L.Ed.2d 568 (2021). We agree with the FAA. The harms that the Town asserts are not legally cognizable harms to the Town itself. Consequently, we dismiss the Town's petition for want of Article III standing. In reaching this result, we agree with other courts of appeals that have dismissed municipal NEPA challenges to FAA orders for want of Article III standing because those challenges failed to show cognizable injury to the municipalities themselves. See, e.g., City of N. Miami v. F.A.A., 47 F.4th 1257, 1277 (11th Cir. 2022); Arapahoe Cnty. Pub. Airport Auth. v. F.A.A., 850 F. App'x 9, 11 (D.C. Cir.

2021) (per curiam); cf. City of Olmsted Falls v. F.A.A., 292 F.3d 261, 267-68 (D.C. Cir. 2002) (explaining that municipality had standing only because it showed injury to itself based on Clean Air Act requirements with which it had to comply).

Before turning to the parties' arguments, we briefly rehearse the law on standing. Federal courts are courts of limited jurisdiction that may entertain only "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. "For there to be a case or controversy under Article III, the [petitioner] must have a 'personal stake' in the case — in other words, standing." TransUnion, 141 S. Ct. at 2203 (quoting Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). "As the party invoking federal jurisdiction, the [petitioner] bear[s] the burden of demonstrating that [it has] standing." Id. at 2207-08 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The petitioner "must show (i) that [it] suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the [respondent]; and (iii) that the injury would likely be redressed by judicial relief." Id. (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130).

Concreteness and particularization are independent and necessary prerequisites of the injury in fact requirement. See Spokeo, Inc. v. Robins, 578 U.S. 330, 334, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). To be concrete, "the asserted harm [must have] a 'close relationship' to a harm traditionally recognized as providing a basis for a lawsuit in American courts — such as physical harm, monetary harm, or various intangible harms including . . . reputational harm." TransUnion, 141 S. Ct. at 2200 (quoting Spokeo, 578 U.S. at 340-41, 136 S.Ct. 1540). To be particularized, the harm "must go beyond a generalized grievance[ ] to manifestly affect the [petitioner] in a personal and individual way." Lyman v. Baker, 954 F.3d 351, 361 (1st Cir. 2020) (first alteration in original) (internal quotations omitted); see Save Our Heritage, Inc. v. F.A.A., 269 F.3d 49, 55 (1st Cir. 2001) (explaining that, in order to satisfy the injury in fact requirement, "the petitioner [must be] someone who has suffered or is threatened by injury in fact to a cognizable interest").

In order to satisfy the traceability (causation) and redressability requirements, a petitioner must "allege personal injury [that is] fairly traceable to the [respondent]'s allegedly unlawful conduct and likely to be redressed by the requested relief." California v. Texas, — U.S. —, 141 S. Ct. 2104, 2113, 210 L.Ed.2d 230 (2021) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). If the petitioner fails to show any of these three elements, we cannot review the proffered matter on its merits. See Katz v. Pershing, LLC, 672 F.3d 64, 75-76 (1st Cir. 2012).

Against this backdrop, we proceed to appraise the particulars of the case at hand. The parties' dispute about standing focuses on whether the Town has shown injury in fact. In its opening brief, the Town argues that it has suffered injury because of: "the impact of noise on its residents, including increased annoyance and complaints about noise made both to Town officials and to . . . the FAA"; and the "considerable time and money" that it spent "addressing these issues." We examine each of these arguments but find them wanting.

The Town first argues that it has suffered injury in fact in the form of "the impact of noise on its residents." Black-letter law dictates that harm to others, such as the Town's residents, is insufficient to show an injury that is particularized to the petitioner itself. See Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130 (noting that "the injury must affect the [petitioner] in a personal and individual way" to be "particularized"); Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ("[T]he 'injury in fact' test requires . . . . that the party seeking review be [it]self among the injured."). We first explore the injury in fact requirement in the context of municipal standing, and then we turn to the specifics of some of our prior cases that the Town cites in its defense.

Several cases from other courts of appeals have established that municipalities cannot assert that they have been injured because of an alleged injury to their residents. For example, in City of Olmsted Falls v. FAA, the D.C. Circuit examined whether the City of Olmsted Falls, Ohio, had standing to sue the FAA for its approval of a runway improvement project at Cleveland Hopkins International Airport. See 292 F.3d 261, 265, 267 (D.C. Cir. 2002). Relying in part on harm to its residents, the City contended that the FAA's approval violated, inter alia, NEPA and the Clean Air Act (CAA), see 42 U.S.C. §§ 7401-7671q. See id. at 267.

The D.C. Circuit rejected the City's argument that "it may represent its citizens, much as a private association could represent its members' interests." Id. The court held that this argument "misconceive[d] the very concept of associational standing" as "[t]he City does not have 'members' who have voluntarily associated, nor are the interests it seeks to assert here germane to its purpose." Id. at 267-68 (emphasis in original). Instead, as the court held, "the City [was] effectively attempting to assert the alleged interests of its citizens under the doctrine of parens patriae." Id. at 268. It reasoned...