Split Ninth Circuit Panel Upholds FAA’s Approval of Amazon Air Cargo Facility

A Ninth Circuit majority opinion declined arguments by environmental groups and the State of California challenging the decision to allow Amazon to build an air cargo facility at the San Bernardino International Airport after the Federal Aviation Administration (FAA) found no significant environmental impacts would result from its construction and operation. In dissent, Circuit Judge Johnnie B. Rawlinson argued that the decision “reeked of environmental racism,” and that the project would never have been approved if it were located near the home of the multi-billionaire owner of Amazon.

Petitioners, two individuals and the Center For Community Action and Environmental Justice, Sierra Club, and Teamsters Local 1932 (collectively, CCA) asked for review of the decision. They took issue with multiple aspects of the FAA’s Environmental Assessment (EA) that evaluated the environmental effects of the project pursuant to the National Environmental Policy Act (NEPA). In one instance, the CCA questioned whether the agency had satisfied its obligation to consider the projects’ cumulative impacts, like an assessment of its “additional 80-plus projects,” resulting in 168,493 average daily trips in the first year of project operations.

Yet, the court held, the fact that CCA could not point to any specific cumulative impacts that the FAA failed to consider suggested that there were none. As such CCA did not prove that the FAA failed its NEPA obligations.

For California’s part, it contended that the FAA was obligated to prepare an environmental impact statement (EIS) because a California Environmental Impact Report found that the project could have significant impacts on air quality, greenhouse gas emissions, and noise. The panel ultimately rejected California’s concerns for failure to raise a substantial question as to whether the project would have environmental effects great enough to trigger the preparation of an EIS.

The ruling also overrode contentions that the FAA violated the Administrative Procedure Act by failing to take certain factors, like the number of truck trips per day, into account and failed to assess whether the project met the air quality standards under the California Clean Air Act. In summary, the panel stood by the FAA’s record of decision, finding it sound to withstand the challenges.

Judge Johnnie B. Rawlinson wrote a scathing dissent, citing environmental racism concerns, namely, “‘the creation, construction, and enforcement of environmental laws that have a disproportionate and disparate impact upon a particular race.’” The dissenting judge sided with the petitioners in viewing the EA as flawed and determining that the FAA’s finding of no significant impact could be explained by its failure to take the requisite “hard look” at the facts.

Judge Patrick J. Bumatay wrote a concurrence noting that no party raised racially motivated accusations. He opined that the dissent’s assertions were unfair to the employees of the FAA and the Department of Justice accused of ratifying racist actions while having no chance to defend themselves.Earthjustice argued for the non-profit petitioners, the California Office of the Attorney General for the state, and the Department of Justice for the respondents.