In this case, the Ninth Circuit denied National Parks and Conservation Association's (National Parks) petition for review of the Federal Aviation Administration's (FAA) approval of the expansion of Kahului Airport in Hawaii. The court held that 1) FAA did not violate the National Environmental Policy Act (NEPA) because FAA took the required "hard look" at the environmental consequences of the project; 2) the environmental impact statement (EIS) contained a reasonably thorough discussion of the effect of the alien species on the project; and 3) FAA made an informed decision. In addition, the court rejected National Parks's contention that FAA's actions violated section 4(f) of the Transportation Act and the Airport and Airway Improvement Act (AAIA).
The Hawaii Department of Transportation (HDOT) and FAA planned to extend and repave a runway at Kahului Airport. The agencies prepared an EIS, held public hearings, and received public and agency input. In addition, a panel of experts from federal and state agencies, Maui County, and private organizations prepared a biological assessment (BA), which reviewed the project, surveyed the alien species problem, and proposed mitigation measures. The United States Fish and Wildlife Service (FWS) also prepared a biological opinion (BiOp) in accordance with the Endangered Species Act and concluded that the project did not jeopardize the continued existence of any endangered species on Maui. The BiOp, BA, numerous independent studies, and responses to public comments were incorporated into the final EIS (FEIS). The FEIS concluded that the project by itself would have an insignificant impact on the rate of introduction of alien species. However, due to the existing statewide problem of the introduction of alien species, the cumulative effects of the project would be considered significant.
Under NEPA, a court's evaluation of an EIS is limited to determining if it "contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences of a challenged action." The court only reviews an EIS to determine if the agency took a "hard look" at the environmental consequences of the proposed action. If so, the EIS will be approved.
National Parks argued that FAA would have concluded the project's impact was significant if it had truly taken a "hard look" at the impact of the project on the introduction of alien species into Maui. Specifically, National Parks contended that the expansion project would increase international flights and thereby increase the risk that alien species would be introduced. National Parks relied heavily upon Hughes River Watershed Conservancy v. Glickman (Hughes River). In Hughes River, the Fourth Circuit rejected an EIS that contained only a cursory discussion of the alien species impact of a dam construction project. The evidence in that case showed that construction would introduce the zebra-mussel, an alien species that would cause an identifiable environmental harm.
The Ninth Circuit rejected National Parks's NEPA claim, determining that the EIS revealed that FAA took the required hard look at the alien species problem and made an informed decision based on a reasonably thorough discussion in the EIS. First, the court disputed National Parks's contention that the number of international flights would increase. Studies indicated that the expansion project would not necessarily lead to an increase in international flights because several variables other than runway length contribute to the number of international flights. Furthermore, the EIS contained evidence that the frequency of international flights could increase regardless of the proposed expansion. In addition, unlike in Hughes River, National Parks could not identify a single species that would become established as a result of the expansion. National Parks also failed to point to any specific resources that the expansion would adversely effect. In contrast to Hughes River, the Ninth Circuit noted that the EIS discussed extensively the high level of uncertainty regarding the impact of the project on the introduction of alien species. Because the introduction of alien species was so speculative, the EIS discussed a variety of mitigation measures--all designed to combat varying kinds of alien species. The court found the mitigation plan to be very detailed, clearly satisfying NEPA's mitigation discussion requirements. Thus, the court concluded that although National Parks disagreed with the substantive conclusions of FAA, the agency took the required "hard look" at the problem and made an informed decision; therefore, the court would not interfere with the findings.
National Parks next argued that FAA violated section 4(f) of the Transportation Act. That section imposes requirements on approval of transportation projects that "requir[e] the use of publicly owned land of a public park." In order for this provision to apply, the project must "use" Haleakala National Park near Kahului Airport. National Parks argued the "potential impact of alien species is a sufficient use of the Park to trigger section 4(f)." However, use only occurs when an action "substantially impairs the value of the site in terms of its prior significance and enjoyment." The Ninth Circuit concluded that National Parks could not demonstrate substantial impairment of Haleakala National Park's economic or environmental value; therefore, FAA's determination that there was no "use" of the Park was not arbitrary or capricious.
Finally, the court rejected National Parks's argument that the expansion would violate the AAIA. The AAIA requires "every reasonable step to minimize the adverse effect[s]" if an airport development project has a "significant adverse effect on natural resources." National Parks only identified funding for mitigation measures as a missing "reasonable step." The court concluded that this did not have to be finalized in order for FAA to approve the project.
Judge Fletcher dissented, concluding that FAA failed to comply with NEPA because the agency neglected to take the requisite "hard look" at the impact of the project on the rate of introduction of alien species. Specifically, she found that FAA obscured and misstated the significance of relevant information and failed to evaluate or consider the critical aspects of that information in the FEIS or the record of decision. According to Judge Fletcher, the analysis in the FEIS concentrated on the projected increase of nonstop overseas departures that would result from the runway expansion. However, Judge Fletcher found that as a practical matter the project would dramatically increase the number of nonstop overseas arrivals. Arrivals pose a greater threat to the introduction rate of alien species than do departures. Nevertheless, despite information to this effect in the BA, FAA did not explore the likely environmental consequences of increased nonstop overseas arrivals. Therefore, in the dissent's view, this gap in the discussion in the FEIS violated the FAA's duty under NEPA. FAA is required to prepare a FEIS that "carefully and honestly" evaluates the environmental consequences of its actions, yet FAA "deliberately averted its eyes from a well known environmental problem and from the potential consequences of its proposed action."
 Nat'l Parks & Conservation Ass'n v. United States Dep't of Transp., 222 F.3d 677, 680 (9th Cir. 2000) (quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987) (internal quotes omitted)).