United States Court of Appeals, District of Columbia Circuit

298 F.3d 997

UNITED STATES AIR TOUR ASSOCIATION, et al., Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION, et al.,Respondents.
Grand Canyon Trust, et al., Intervenors.

No. 00-1201.

No. 00-1212.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2002.

Decided August 16, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED On Petitions for Review of an Order of the Federal Aviation Administration.

William Davis Thode and Joseph F. Becker argued the cause for petitioners United States Air Tour Association, et al. With them on the briefs was William Perry Pendley. Lorraine B. Halloway and Timothy M. Biddle entered appearances.

Alexander E. Dreier argued the cause for petitioners Grand Canyon Trust, et al. With him on the briefs were Michael L. Kidney, Catherine S. Stetson, Jeffrey C. Nelson, and Robert Wiygul.

Ronald M. Spritzer, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Ellen J. Durkee, Attorney.

Michael L. Kidney, Catherine E. Stetson, Alexander E. Dreier, Jeffrey C. Nelson, and Robert Wiygul were on the brief of intervenors Grand Canyon Trust, et al.

Glenn M. Feldman argued the cause and filed the brief for intervenor Hualapai Indian Tribe.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

As part of an ongoing effort to reduce aircraft noise in Grand Canyon National Park, the Federal Aviation Administration (FAA) promulgated a rule limiting the number of air tours permitted to fly over the Park. Two groups of petitioners, one led by the United States Air Tour Association and the other by the Grand Canyon Trust, challenge that rule. We reject the challenges brought by the Air Tour Association, but conclude that the challenges brought by the Trust raise issues that require further consideration by the FAA.

* The history of regulation of aircraft overflights at Grand Canyon National Park is set out inGrand Canyon Air Tour Coalition v. FAA,154 F.3d 455, 460-64 (D.C.Cir.1998) [hereinafterGrand Canyon I]. We recount some of that story here and explain subsequent developments to the extent necessary to give context to the present controversy.

* In 1987, Congress enacted the National Parks Overflights Act, Pub.L. No. 100-91, 101 Stat. 674 (set out at 16 U.S.C.A. § 1a-1 note). Section 3 of the Act declared that "[n]oise associated with aircraft overflights at the Grand Canyon National Park is causing a significant adverse effect on the natural quiet and experience of the park." Overflights Act § 3(a). To address this problem, Congress required the Secretary of the Interior to submit to the Administrator of the FAA:

recommendations regarding actions necessary for the protection of resources in the Grand Canyon from adverse impacts associated with aircraft overflights.The recommendations shall provide for substantial restoration of the natural quiet and experience of the parkand protection of public health and safety from adverse effects associated with aircraft overflights.

Id.§ 3(b)(1) (emphasis added). Congress also required the FAA to "prepare and issue a final plan for the management of air traffic in the air space above the Grand Canyon."Id.§ 3(b)(2). That plan, the Act declared, "shall ... implement the recommendations of the Secretary without change unless the [FAA] determines that implementing the recommendations would adversely affect aviation safety."Id.Finally, Congress directed the Secretary to submit, within two years of the effective date of the plan, "a report discussing (A) whether the plan has succeeded in substantially restoring the natural quiet in the park; and (B) such other matters, including possible revisions in the plan, as may be of interest."Id.§ 3(b)(3).

In response to the Overflights Act, the Secretary of the Interior submitted recommendations to the FAA in December 1987. In May 1988, the FAA implemented those recommendations in the form of Special Federal Aviation Regulation (SFAR) 50-2.SeeSpecial Flight Rules in the Vicinity of the Grand Canyon National Park, 53 Fed. Reg. 20,264 (June 2, 1988). The regulation applied to aircraft flying below 14,500 feet and established, inter alia, flight free zones (areas into which aircraft may not fly), minimum altitudes, and other rules constraining flight paths within the Park. It remained in effect through 1997.

On September 12, 1994, the National Park Service (the Park Service or NPS), on behalf of the Secretary of the Interior, submitted the report to Congress required by section 3 of the Overflights Act.SeeNPS, U.S. Dep't of the Interior, Report on the Effects of Aircraft Overflights on the National Park System (published in 1995) [hereinafter 1994 NPS Report]. In that report, the Park Service made several foundational determinations. First, it decided that the appropriate measure for quantifying aircraft noise was the percentage of time that aircraft are audible.See id.at 60. Second, the Park Service concluded that the key statutory phrase, "substantial restoration of the natural quiet," required that "50% or more of the park achieve `natural quiet' (i.e., no aircraft audible) for 75-100 percent of the day."Id.at 182. Subsequently, the agencies determined that an aircraft was audible at three decibels above the average natural ambient sound level.SeeFAA, U.S. Dep't of Transp., Environmental Assessment: Special Flight Rules in the Vicinity of Grand Canyon National Park 4-4 to 4-5 (1996) [hereinafter 1996 Environmental Assessment].

Applying these principles, the agencies concluded that, under SFAR 50-2, only 31% of the Park enjoyed "a substantial restoration of natural quiet" — by which they meant that only 31% of the Park experienced natural quiet for at least 75% of the day. Special Flight Rules in the Vicinity of Grand Canyon National Park, 61 Fed.Reg. 69,302, 69,317 (Dec. 31, 1996) [hereinafter 1996 Final Rule].1Moreover, the agencies predicted that without revisions to the existing regulations, projected growth in the number of air tours would cause the percentage of the Park enjoying substantial restoration of natural quiet to drop to less than 10% by the year 2010.Id.

On December 31, 1996, the FAA issued a final rule that adopted the definitions contained in the 1994 NPS Report, including the definition of substantial restoration of the natural quiet.See1996 Final Rule, 61 Fed.Reg. at 69,305-10. Among other things, the 1996 Final Rule also established new flight free zones, instituted flight curfews, and set a cap on the number of aircraft that could fly over the park — although not on the number of flights.See id.at 69,317, 69,332. In addition to the 1996 Final Rule, the FAA proposed two further rules: one to modify flight paths in the Park; the other to require operators to use quieter aircraft.SeeProposed Air Tour Routes for the Grand Canyon National Park, 61 Fed.Reg. 69,356 (Dec. 31, 1996); Noise Limitations for Aircraft Operations in the Vicinity of Grand Canyon National Park, 61 Fed.Reg. 69,334 (proposed Dec. 31, 1996). The FAA predicted that the 1996 Final Rule, in conjunction with the two proposed rules, would meet the statutory goal of substantial restoration of the natural quiet by the year 2008.SeeNoise Limitations for Aircraft Operations, 61 Fed.Reg. at 69,329.

In October 1997, the FAA discovered that it had significantly underestimated the number of tour aircraft operating in the Park, and that as a consequence the 1996 Final Rule would be less effective than it had thought.SeeSpecial Flight Rules in the Vicinity of Grand Canyon National Park, 62 Fed.Reg. 58,898, 58,899 (Oct. 31, 1997). After oral argument inGrand Canyon I,the FAA informed the court that it was considering placing a cap on the number of flights, in addition to the 1996 Final Rule's cap on the number of aircraft.See Grand Canyon I,154 F.3d at 464.

InGrand Canyon I,several groups of petitioners challenged provisions of the 1996 Final Rule. The principal challenges came, as they do here, from a group of air tour operators (the Air Tour Coalition) that included members of petitioner Air Tour Association, and from a group of environmental organizations led by petitioner Grand Canyon Trust. The air tour operators argued that the rule did "too much, too soon," while the Trust argued that it did "too little, too late."Grand Canyon I,154 F.3d at 459-60. We upheld the rule against both challenges.

In the course of our decision, we affirmed — against challenges from both the Coalition and the Trust — the Park Service's definition of "substantial restoration of the natural quiet" as "50% or more of the park achiev[ing] `natural quiet' (i.e., no aircraft audible) for 75-100 percent of the day." That definition, we said, was a reasonable construction of an ambiguous statutory phrase.Id.at 466-67 (citingChevron U.S.A., Inc. v. Natural Res. Def. Council,467 U.S. 837, 841-43, 104 S.Ct. 2778, 2780-82, 81 L.Ed.2d 694 (1984)). We also upheld as reasonable the agencies' three-decibels-above-ambient measure of audibility, and we rejected the Air Tour Coalition's contention that the agencies had ignored their statutory obligation to consider the actual experience of Park visitors.Id.at 465-67, 469. We did not need to decide whether there was such a statutory obligation, because it was clear that the agencies' definition and audibility measure were specifically developed to address and to enhance the experience of Park visitors.Id. Grand Canyon Ialso observed that the Overflights Act "clearly divides the institutional responsibilities between" the FAA and the Park Service.Id.at 468. Because the Act directs the FAA to "implement the recommendations of the Secretary without change" unless they would adversely affect aviation safety, we held that the FAA "had no choice but to adopt the Park Service's recommendations" regarding substantial restoration of the natural quiet.Id.

Finally, we noted the Trust's complaint that, using the Park Service's definition and the FAA's recent reevaluation of its data, neither the 1996 Final Rule nor the two additional proposed rules would achieve Congress' goal of substantially restoring natural quiet in the Park. We agreed that it would be arbitrary and capricious for the government not to intend to achieve the congressional goal on any timetable at all.Id.at 477. We accepted, however, the FAA's assurance that it still "anticipates meeting the goal of substantial restoration by 2008" through implementation of the two proposed rules and consideration of a cap on the total number of overflights.Id.at 478. In so doing, we emphasized that the Trust could raise its claim again if "the FAA does not issue additional regulations reasonably promptly, or if those regulations do not appear likely to achieve the statutory goal on a reasonable timetable."Id.

On April 4, 2000, the FAA published two additional rules governing flights over the Grand Canyon. One of those rules (the Airspace Rule), not at issue here, modifies air flight paths in the Park.2The second rule, the Limitations Rule, is the subject of the petitions for review filed in this case. That rule imposes a cap on the total number of commercial air tours that operators may run in the Park.SeeCommercial Air Tour Limitation in the Grand Canyon National Park Special Flight Rules Area, 65 Fed.Reg. 17,708 (April 4, 2000) (codified at 14 C.F.R. §§ 93.303-.325) [hereinafter Limitations Rule]. Under the Limitations Rule, an air tour operator may not conduct more flights in the Park than it conducted during the base year of May 1, 1997 through April 30, 1998. 14 C.F.R. § 93.319(a), (b).

In developing the Limitations Rule, the FAA and the Park Service issued three associated documents that detailed the methodology they used to quantify noise levels in the Park and to measure progress toward the goal of substantial restoration of the natural quiet. First, the Park Service announced in July 1999 that it was changing the threshold at which it would regard aircraft noise as audible in part of the Park.SeeChange in Noise Evaluation Methodology for Air Tour Operations Over Grand Canyon National Park, 64 Fed.Reg. 38,006 (July 14, 1999) [hereinafter Change in Noise Evaluation Methodology]. As discussed above, the agencies had previously adopted a threshold of three decibels above the average natural ambient sound level, a measure of audibility we affirmed inGrand Canyon I.In the Change in Noise Evaluation Methodology, the Park Service divided the Park into two zones: Zone One, encompassing about one-third of the Park, includes the more developed areas; Zone Two, encompassing two-thirds, contains the backcountry. The Park Service announced that in Zone One it will continue to consider aircraft audible at three decibels above the average natural ambient level. 64 Fed.Reg. at 38,006-08. For Zone Two, however, the Park Service determined that aircraft noise is audible if it is eight decibels below the average natural ambient level.Id.

Second, in January 2000, the Park Service issued a review of its Change in Noise Evaluation Methodology. NPS, Dep't of the Interior, Review of Scientific Basis for Change in Noise Impact Assessment Method Used at Grand Canyon National Park (2000) [hereinafter 2000 NPS Review]. The review explained in detail the acoustic model used in assessing noise impacts in the Park. It also reaffirmed the Park Service's 1994 definition of "substantial restoration of the natural quiet" as: "Fifty percent or more of the Park achieving `natural quiet' (i.e., no aircraft audible) for 75-100 percent of the day."Id.at 16. And it stated that "[t]his definition is a threshold not to be exceeded on any given day ... and refers to ... the 12 hour daylight period ... during which air tours occur."Id.;accord id.at 4-5.

Third, in February 2000, the FAA issued a Final Supplemental Environmental Assessment in which it analyzed the effects that it expected the Limitations Rule to have on noise in the Park.SeeFAA, U.S. Dep't of Transp., Final Supplemental Environmental Assessment: Special Flight Rules in the Vicinity of Grand Canyon National Park (2000) [hereinafter FSEA]. Of particular importance here, the FSEA stated that the FAA intended to use an "average annual day" standard when determining the percentage of "the day" that is restored to natural quiet at a given location.See id.at 4-12, 4-18, F-4. The assessment also made clear that the FAA's noise model only accounts for noise from tour aircraft, and does not consider noise from other aircraft that fly over the Grand Canyon, including commercial jets, general aviation, and military flights.Id.app. G, at 40.

Applying these standards, the FAA concluded that the Limitations Rule would make "significant steps towards substantially restoring natural quiet," Limitations Rule, 65 Fed.Reg. at 17,713, although the combined effect of all of the agency's rulemakings would still not achieve the goal of having 50% of the Park experience natural quiet for at least 75% of the day,id.at 17,711. The FAA estimated that only 32% of the Park currently achieved that mark, and that if no further action were taken, future air tour growth would reduce that to 25% of the Park in nine to ten years.Id.at 17,724. Adding the new 2000 rules, the FAA predicted, would increase the percentage of the Park experiencing the substantial restoration of natural quiet to above 41% and maintain that level in the future.Id.;seeFSEA at 4-18 (predicting substantial restoration of 43.6% of the Park through 2003 and 43.5% in 2008). But the agency recognized that additional steps, including implementation of the still-pending quiet technology rule, would be necessary to achieve Congress' goal in the Overflights Act. Limitations Rule, 65 Fed. Reg. at 17,714.

As noted above, two groups of petitioners have filed challenges to the Limitations Rule. The first is led by the United States Air Tour Association, a trade organization whose members fly air tours over the Park. The second, led by the Grand Canyon Trust, is a group of six environmental organizations. Petitioners level a number of challenges at the rule, raising questions of statutory construction, regulatory interpretation, and the rationality of the agencies' methodologies and policy choices.

As to questions of statutory construction, where legislation is "silent or ambiguous with respect to [a] specific issue," we are obligated to defer to an agency's interpretation as long as it is "based on a permissible construction of the statute."Chevron,467 U.S. at 843, 104 S.Ct. at 2782. Similarly, we defer to an agency's reading of its own regulation, unless that reading is "plainly erroneous or inconsistent with the regulation."Auer v. Robbins,519 U.S. 452, 461, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted). We also examine agency regulations to determine whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Administrative Procedure Act, 5 U.S.C. § 706(2)(A). In that regard, the question for the court is whether the agency has considered the relevant factors and articulated a "`rational connection between the facts found and the choice made.'"Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quotingBurlington Truck Lines, Inc. v. United States,371 U.S. 156, 168, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962)). Finally, by statute the FAA's findings of fact "are conclusive" if they are "supported by substantial evidence." 49 U.S.C. § 46110(c).

We apply these principles to our analysis of the Air Tour Association's challenges to the Limitations Rule in Part II below, and to those of the Grand Canyon Trust in Part III.

The Air Tour Association asks this court to hold the Limitations Rule unlawful for five principal reasons: (i) it was prompted by an improper change in the definition of "natural quiet"; (ii) the acoustic methodology that justifies the rule is scientifically flawed; (iii) the FAA arbitrarily and capriciously issued the rule without first promulgating a quiet technology rule; (iv) in promulgating the rule, the FAA violated the Regulatory Flexibility Act, 5 U.S.C. § 601et seq.; and (v) the rule arbitrarily and capriciously ignores the needs of the elderly and disabled. These five contentions are considered in the following sections.

* In determining the need for the Limitations Rule, as well as its predicted impact on noise in the Park, the FAA employed the standards announced in the Park Service's 1999 Change in Noise Evaluation Methodology. Although the new methodology continues to use the three-decibels-above-ambient threshold for measuring audibility in the more-developed areas of the Park, it substitutes an eight-decibels-below-ambient threshold for use in backcountry areas. The Air Tour Association contends that this reflects a new interpretation of the statutory term "natural quiet." It argues that while the previous interpretation was based on "noticeability," measuring sounds that a person not engaged in active contemplation of the Park likely would notice, the new interpretation substitutes a "detectability" standard, measuring any sound that is detectable to a vigilant observer.