[00:00:05] Speaker 02:
Oh yay, oh yay, oh yay.

[00:00:08] Speaker 02:
All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the Court is now sitting.

[00:00:19] Speaker 02:
God save the United States and its Honorable Court.

[00:00:22] Speaker 02:
Be seated, please.

[00:00:26] Speaker 02:
Case number 18-1022 at L. Jordan Rui at L. Petitioners versus Steven Dixon, Administrator at L. Mr. Steilands?

[00:00:42] Speaker 03:
Good morning.

[00:00:43] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:47] Speaker 03:
On October 30, 2018, our petitioners were awaiting the FAA's brief in case number 18-1022.

[00:00:57] Speaker 03:
We were very curious to see how the FAA would defend its decision to segment this airport expansion project from a then ongoing environmental assessment.

[00:01:09] Speaker 03:
We were very curious to see how the FAA was going to defend its written concurrence in an environmental evaluation that reaffirmed a 2011 analysis.

[00:01:22] Speaker 03:
And we were very interested in seeing how the FAA would defend its denial of our petition for reconsideration.

[00:01:29] Speaker 03:
It looked like a normal NEPA case.

[00:01:30] Speaker 03:
I mean, the kind that this court sees often.

[00:01:34] Speaker 03:
But on October 31, the FAA wrote a letter.

[00:01:38] Speaker 03:
They didn't file a brief.

[00:01:39] Speaker 03:
They wrote a letter, and that letter said that they were withdrawing the concurrence in the written re-evaluation.

[00:01:47] Speaker 03:
And as a result, that changed everything.

[00:01:51] Speaker 03:
Instead of a brief, they filed a motion to dismiss.

[00:01:54] Speaker 03:
The motion to dismiss said that all of our claims were moot.

[00:01:59] Speaker 03:
The motion to dismiss said this court was powerless to grant any kind of relief and that the FAA had provided our petitioners with everything that we could reasonably ask for.

[00:02:12] Speaker 03:
This page and a half analysis of October 31 ignored.

[00:02:17] Speaker 03:
nine years of consistent agency.

[00:02:20] Speaker 05:
Let me ask you this, Mr. Steele.

[00:02:22] Speaker 05:
Does the FAA have a legal obligation under the state block grant program to concur?

[00:02:28] Speaker 05:
No.

[00:02:29] Speaker 03:
They have no legal obligation to do so?

[00:02:31] Speaker 03:
Your Honor, not as I read this.

[00:02:33] Speaker 03:
What the state block grant program does is to remove

[00:02:38] Speaker 03:
any federal action, if you will.

[00:02:41] Speaker 05:
If they had no legal obligation to concur in the written re-evaluation, then what's the harm in withdrawing from it?

[00:02:55] Speaker 05:
Haven't you just made their point that they haven't done anything to harm you?

[00:03:01] Speaker 03:
was in our judgment legally required because this was not a state block grant program and that gets to the confusion that the government has caused because what they've done is they have melded

[00:03:18] Speaker 05:
So you're saying if it was under the state block grant program, then there is no obligation for them to weigh in, and therefore there would be no consequence for them withdrawing.

[00:03:27] Speaker 05:
But you're saying it was not part of the state block grant program.

[00:03:31] Speaker 03:
That is correct.

[00:03:31] Speaker 03:
I am saying, Your Honor, that if you go back and look at how the agency has treated this from 2011, when this program, this project, was listed as a proposed federal action,

[00:03:47] Speaker 03:
And that's at Joint Appendix 124.

[00:03:49] Speaker 03:
In 2015, when the FAH... Which project are you referring to?

[00:03:54] Speaker 05:
I'm referring to the expansion project.

[00:03:56] Speaker 05:
Not the...

[00:03:58] Speaker 05:
I call it the AOC, the airline.

[00:04:03] Speaker 03:
Not the larger project.

[00:04:04] Speaker 03:
Those were both federal actions.

[00:04:07] Speaker 03:
Clearly, there's no argument here that when the agency was presented with a proposal to grant commercial operations, that was federal.

[00:04:17] Speaker 03:
That was all federal.

[00:04:18] Speaker 03:
The state had no role in that.

[00:04:21] Speaker 04:
Suppose you're right that the concurrence

[00:04:26] Speaker 04:
was legally required.

[00:04:29] Speaker 04:
Yes sir.

[00:04:30] Speaker 04:
Okay.

[00:04:32] Speaker 04:
You represent environmental petitioners who are opposed to airport expansion.

[00:04:41] Speaker 04:
When the FAA withdraws an approval that is necessary for the projects you oppose to continue,

[00:04:51] Speaker 04:
doesn't harm your clients, that benefits your clients.

[00:04:55] Speaker 04:
It harms the people on the other side of the case who want the airport expansion.

[00:05:00] Speaker 03:
Yes, but as part of that, your honor, if you go back and you take a look at what the agency did in 2014 when they agreed to conduct an environmental review of

[00:05:17] Speaker 03:
the commercial operations, they said there are 18 other connected actions.

[00:05:23] Speaker 03:
One of them is this terminal expansion project.

[00:05:26] Speaker 03:
And our plaintiffs, our petitioners rather, are harmed not just by commercial, but they are harmed because of their long-standing interest in the darter, which lives in the creek adjacent to one of the petitioner's properties

[00:05:45] Speaker 03:
and would be significantly harmed if this project goes forward.

[00:05:52] Speaker 00:
So what would have happened if the FAA had never concurred to begin with?

[00:05:58] Speaker 03:
If the FAA had never concurred to begin with, what would you have done?

[00:06:06] Speaker 03:
what we would have done, what we did there, which is to say that we would have pressed the FAA to say that the reliance on a 2011 environmental analysis that was wrong because it had bad traffic

[00:06:28] Speaker 03:
It was wrong because it ignored the 4F protections.

[00:06:32] Speaker 03:
It was wrong because it ignored impacts on water quality.

[00:06:36] Speaker 03:
We would have said to the FAA, you cannot allow this project to go forward because it's your project.

[00:06:41] Speaker 00:
I mean, you would have said that in correspondence or something.

[00:06:43] Speaker 00:
But I mean, in terms of an actual legal action, would you have filed a cause of action?

[00:06:49] Speaker 00:
Or what would have happened if the FAA had never concurred?

[00:06:53] Speaker 03:
If the FAA had never concurred,

[00:06:56] Speaker 03:
We would have to go back and it would be very difficult, your honor, to reconstruct that because it's tied in with the decision by the FAA to break this project off from the larger study.

[00:07:12] Speaker 04:
Sorry.

[00:07:13] Speaker 04:
What you would have done or had to do is sue the state of Georgia.

[00:07:17] Speaker 04:
because the FAA hasn't approved something, the project is going forward based on a Georgia approval, so your claim is against them for proceeding without all the necessary authorizations.

[00:07:31] Speaker 03:
No, what we would do is we would say that in the absence of an FAA approval, the analysis

[00:07:41] Speaker 03:
of the impact of this expansion project were inadequate.

[00:07:45] Speaker 03:
The FAA was still in charge at that point.

[00:07:48] Speaker 03:
This was still listed as a federal project.

[00:07:52] Speaker 03:
The FAA had not disclaimed any responsibility for it.

[00:07:57] Speaker 04:
There was federal funding, and therefore... Sure, but you need to challenge federal agency action.

[00:08:07] Speaker 00:
In theory, you could bring something for federal agency action unlawfully withheld.

[00:08:11] Speaker 00:
if you thought that the FAA needed to do something.

[00:08:13] Speaker 00:
But I guess the reason I'm asking the question is it seems like what the withdrawal did was take us back to a world as if the concurrence had never happened.

[00:08:21] Speaker 00:
And if the concurrence had never happened, then I'm not sure how you have any claim against the FAA other than something about action that was withheld that should have been taken, which is a different kind of

[00:08:32] Speaker 00:
cause you would have brought.

[00:08:34] Speaker 00:
But the world is as if the concurrence never existed.

[00:08:37] Speaker 00:
And in that case, it's hard to see what the claim is against the FAA.

[00:08:40] Speaker 03:
The claim against the FAA would be that the agency has failed to comply with its duties, its environmental duties, and other obligations in supervising this project.

[00:08:55] Speaker 04:
But you're positing a world in which they haven't

[00:08:59] Speaker 04:
approved.

[00:09:00] Speaker 04:
They haven't given a necessary environmental assessment.

[00:09:04] Speaker 04:
That harms the developers who want the project, not the environmentalists.

[00:09:09] Speaker 03:
I don't think so, Your Honor.

[00:09:11] Speaker 03:
If we go back and we look, what we see is that the FAA played a critical role throughout here.

[00:09:17] Speaker 03:
The FAA approved the issuance of the draft environmental assessment in 2015.

[00:09:23] Speaker 03:
That's a federal document.

[00:09:26] Speaker 04:
Suppose the FAA had said,

[00:09:29] Speaker 04:
We are just not going to approve this environmental assessment.

[00:09:34] Speaker 04:
I don't care what the facts are, just not going to do it.

[00:09:37] Speaker 04:
Who does that harm?

[00:09:38] Speaker 04:
Does that harm your clients or the developers?

[00:09:41] Speaker 03:
It harms the developers.

[00:09:43] Speaker 03:
And the reason for that is because under that scenario, the state of Georgia would not go forward.

[00:09:51] Speaker 04:
But if it harms the developers, what's your injury from their failure to

[00:09:59] Speaker 04:
approve an EA on these facts.

[00:10:03] Speaker 03:
If they fail to approve the EA, that stops the project.

[00:10:06] Speaker 03:
We're benefited.

[00:10:08] Speaker 03:
And under that scenario, we get all the relief that we need.

[00:10:12] Speaker 03:
That's what we're asking for here.

[00:10:15] Speaker 04:
That theory would give you standing to challenge an approved environmental assessment, which is exactly the opposite of what we have.

[00:10:28] Speaker 03:
Well, no, because we need to go back and we need to look at the history of this.

[00:10:34] Speaker 03:
This is, in essence, an abandonment after eight years of consistent federal practice where the FAA has treated

[00:10:46] Speaker 03:
this proposed action as a federal enterprise and what the FAA is saying is that when we get to the really hard questions, we don't want to answer those.

[00:10:56] Speaker 03:
What we're going to do is we're just going to relegate it all to the state.

[00:11:00] Speaker 03:
We're going to dump it off on GDOT and for us,

[00:11:05] Speaker 03:
That's a terrible consequence because there is no valid remedy with GDOT.

[00:11:11] Speaker 03:
Despite the SPOT state block grant program, judicial review is not available.

[00:11:16] Speaker 03:
We lose the benefit of NEPA, we lose the benefit of judicial review, and we continue to be harmed.

[00:11:22] Speaker 05:
Just so I make sure I understand your argument, all this argument turns on your view that this was part of the

[00:11:32] Speaker 05:
airport operation certificate, the larger project, that was a federal project, and that the FAA didn't have the authority to carve out the expansion project and treat that as if that was being run by the state, because that's my understanding of how the dynamics here, at least what they're trying to establish.

[00:11:52] Speaker 03:
It certainly began in that fashion, but when the FAA looked at

[00:11:59] Speaker 03:
the component that we're concerned about today, the expansion project.

[00:12:03] Speaker 03:
That was still a federal project.

[00:12:05] Speaker 03:
It was identified in the draft environmental assessment.

[00:12:09] Speaker 05:
So if we disagreed with you, if that wasn't the case, if it was part of the state block grant program, then your case goes away.

[00:12:17] Speaker 03:
Yes, sir.

[00:12:18] Speaker 03:
That is true.

[00:12:19] Speaker 03:
And what is terribly important here is for us to remember that when we're talking about jurisprudence or jurisdiction,

[00:12:29] Speaker 03:
We have to separate the merits from the allegations.

[00:12:33] Speaker 03:
That city of Waukesha, that Supreme Court jurisdiction, you have to accept our allegations as correct.

[00:12:40] Speaker 03:
That we have a credible case and we have a reason to prevail.

[00:12:44] Speaker 03:
Under those circumstances, we are injured.

[00:12:46] Speaker 03:
We are injured when the FAA washes its hands of a project that it has supervised for eight years, whether it's the big project or the smaller one.

[00:12:56] Speaker 03:
Under any circumstance,

[00:12:59] Speaker 03:
and fails to articulate a reason for doing so.

[00:13:03] Speaker 03:
That's the critical thing.

[00:13:05] Speaker 03:
What we have here is not only a factual error, but we have a decision in a page and a half

[00:13:13] Speaker 03:
that reverses eight years of agency practice with no reasoning.

[00:13:16] Speaker 03:
Now maybe they can do it.

[00:13:18] Speaker 03:
Maybe it's possible for the FAA to explain this, but they haven't done so so far.

[00:13:25] Speaker 03:
Certainly not reconsideration, certainly not in this court.

[00:13:29] Speaker 03:
And the reason they haven't done it is because there's no explanation for either

[00:13:36] Speaker 03:
Either the notion that we're wrong and the hypothetical listed by Judge Griffith is correct.

[00:13:44] Speaker 03:
It was always a state block grant program.

[00:13:47] Speaker 03:
Maybe we're wrong, but they haven't said that.

[00:13:49] Speaker 00:
Haven't explained it.

[00:13:50] Speaker 00:
You asked for reconsideration.

[00:13:52] Speaker 00:
Yes.

[00:13:53] Speaker 00:
If that had been granted,

[00:13:56] Speaker 00:
Wouldn't you be in exactly the same place as now?

[00:14:00] Speaker 03:
No, because the FAA was in charge.

[00:14:03] Speaker 03:
They had the hat on that was supervising the program.

[00:14:06] Speaker 03:
If there had been reconsideration...

[00:14:09] Speaker 03:
What the FAA would have had to, in our favor, the FAA would have concluded that the environmental analysis for this specific project was outdated, obsolete, and inadequate under any standard.

[00:14:24] Speaker 03:
That it was using old data, that the alternatives selected were tainted, and that it needed to be updated with an analysis, not just under... Well, suppose they just grant reconsideration and then just don't say anything.

[00:14:38] Speaker 03:
They grant reconsideration and don't say anything.

[00:14:40] Speaker 03:
What they've done presumably is to invalidate their earlier approvals.

[00:14:46] Speaker 03:
And then what would happen is that you couldn't segment this.

[00:14:52] Speaker 03:
And this project would have either met the same fate as the rest of it when the FAA pulled the plug nine months later, or they would have had to conduct their own analysis

[00:15:06] Speaker 03:
separate and apart that looked at this project in terms of is there still a purpose and need or is this just a place to dump dirt.

[00:15:16] Speaker 03:
The request for reconsideration was a request to the FAA to get its facts straight and to make a different decision.

[00:15:26] Speaker 03:
Because the FAA was in charge, that would have meant

[00:15:31] Speaker 03:
that the airport authority could not go forward.

[00:15:34] Speaker 03:
Now let me make one final point here because I think it's important.

[00:15:38] Speaker 03:
And we should have developed it more in our brief.

[00:15:41] Speaker 03:
There's repeated reference to the role of the state in all this.

[00:15:46] Speaker 03:
And we see this in various environmental documents and things like that.

[00:15:50] Speaker 03:
But in the FAA context, the state wears two hats.

[00:15:55] Speaker 03:
One hat is when they regulate and use the block grant program.

[00:15:59] Speaker 03:
That's one hat.

[00:16:00] Speaker 03:
The other hat is when it's a federal program because under FAA procedures, if you're doing an environmental assessment,

[00:16:12] Speaker 03:
It's the applicant.

[00:16:13] Speaker 03:
It's the state that has the primary responsibility for doing things, and the FAA reviews, approves, and concurs.

[00:16:23] Speaker 03:
In this case, where we see consistent state action

[00:16:28] Speaker 03:
That's because they're wearing not the state block grant hat, they're wearing the other one where they're submitting things to the FAA for approval and concurrence.

[00:16:40] Speaker 04:
Just one more from me.

[00:16:42] Speaker 04:
Suppose Judge Griffith is right that one essential element of your success in this case is that

[00:16:53] Speaker 04:
these approvals are outside the scope of the block grant.

[00:17:00] Speaker 04:
Is there any procedural bar to our considering that question?

[00:17:07] Speaker 04:
You said that standing and merits are different.

[00:17:10] Speaker 04:
That's right.

[00:17:10] Speaker 04:
Just clearly right.

[00:17:12] Speaker 04:
But we're here on review of final agency action.

[00:17:17] Speaker 04:
It's not like we're up on a 12B1 as opposed to a 12B6.

[00:17:21] Speaker 04:
Wouldn't we just

[00:17:23] Speaker 04:
answer that question now if we think the case turns on it?

[00:17:29] Speaker 03:
I think what we need to realize there, Judge Katz, is that the state and the Georgia Department of Transportation works hand in glove with the FAA.

[00:17:39] Speaker 03:
It's another state agency.

[00:17:41] Speaker 03:
It's going to respect any decision of the FAA.

[00:17:44] Speaker 03:
And so if the determination of this court is that the FAA's analysis under federal law was flawed,

[00:17:54] Speaker 03:
It would be remarkable to have a state agency say, never mind, we're going to use state money, and we're going to build this thing anyway.

[00:18:01] Speaker 03:
I don't think that would happen.

[00:18:03] Speaker 03:
And so I think we would get relief.

[00:18:06] Speaker 03:
We surely are injured, and I think it's redressable.

[00:18:09] Speaker 03:
And I'd like a minute, if I may, for rebuttal.

[00:18:12] Speaker 03:
Thank you.

[00:18:16] Speaker 01:
Good morning.

[00:18:18] Speaker 01:
I'm David Gunter from the Department of Justice here on behalf of FAA.

[00:18:22] Speaker 01:
I'd like to begin my argument by explaining to the court what's really at stake in this case, but I can't do that.

[00:18:28] Speaker 01:
There's no more controversy here.

[00:18:29] Speaker 01:
This case is not occurring on October 30th, 2018.

[00:18:33] Speaker 01:
It's occurring in 2019 after the withdrawal letter has been issued.

[00:18:36] Speaker 01:
And as of today, FAA is no longer a part of the dispute that these petitioners have with their neighbor airport.

[00:18:42] Speaker 01:
They asked us to reconsider our concurrence in the disputed NEPA analysis here.

[00:18:46] Speaker 01:
We did so.

[00:18:46] Speaker 01:
We withdrew our concurrence.

[00:18:49] Speaker 01:
And so as of today, there's no existing FAA decision that allows this project to be built.

[00:18:53] Speaker 05:
Why did the FAA get involved in it at all?

[00:18:56] Speaker 01:
under your theory.

[00:18:57] Speaker 05:
You have no legal obligation to under your theory, right?

[00:19:00] Speaker 01:
That's right.

[00:19:01] Speaker 01:
There are a couple of reasons, and one of them is that this goes back to when the airport first opened in 2005 when Georgia was not a participant in the block grant program.

[00:19:09] Speaker 01:
And so FAA has been involved in this site continually over the years, but its role has changed.

[00:19:15] Speaker 01:
In 2008, Georgia was authorized to participate in the block grant program, and the block grant agreement, which the court can read in the joint appendix, explicitly gives it the authority to approve airport layout plans.

[00:19:28] Speaker 01:
Now, as the program got ramped up, FAA signed things, and so in this instance, we signed the written reevaluation, frankly, because the state asked us to.

[00:19:38] Speaker 01:
Our guidance documents and advisory circulars that implement the state block grant program say that we will continue to provide advice to the state and consult with them.

[00:19:45] Speaker 01:
We have more NEPA expertise on airport issues than Georgia has.

[00:19:50] Speaker 01:
But this court has said that providing advice to a state on NEPA issues doesn't put the federal agency.

[00:19:57] Speaker 05:
In that capacity, was FAA acting on an application for the airport operating certificate or was it acting

[00:20:08] Speaker 05:
Was it acting at a time when the state block grant was the operative authority?

[00:20:16] Speaker 01:
Which is it?

[00:20:17] Speaker 01:
In 2011, at the time of the supplemental EA and at the time of the written re-evaluation, the state had block grant authority.

[00:20:23] Speaker 01:
But if the court goes back and looks at FAA's record of decision from 2011 and the papers that Georgia and the applicant submitted in support of that, they were trying to get their airport operating, I'm sorry, not an airport operating certificate, airport layout plan.

[00:20:37] Speaker 01:
The airport operating certificate pertains to commercial service.

[00:20:40] Speaker 01:
They were trying to get their airport layout plan approved, and that was the state's responsibility.

[00:20:44] Speaker 01:
But those documents say that we are seeking federal improvement so that the state can compete for state or, I'm sorry, so that the airport can compete for state or federal funding.

[00:20:54] Speaker 01:
There may have been follow-on actions that involved some exercise of federal discretion, and it's good for FAA to participate in the environmental analysis so that it can get its ducks in a row if there are later applications for that kind of thing.

[00:21:06] Speaker 01:
That's not unusual.

[00:21:06] Speaker 05:
Do you agree that if FEA, at the time of the written re-evaluation, was acting on an application for airport operating certificate, that that's a federal action?

[00:21:21] Speaker 01:
Yes.

[00:21:23] Speaker 05:
So what were you doing at that time?

[00:21:25] Speaker 05:
What was FAA doing at that time?

[00:21:26] Speaker 01:
We were not acting on an application for an airport operating certificate.

[00:21:30] Speaker 01:
We have never done that.

[00:21:31] Speaker 05:
How do you explain the difference with your friend?

[00:21:32] Speaker 05:
Your friend says it differently.

[00:21:34] Speaker 01:
Well, I think that he is conflating a number of actions that, under the block grant program, are treated separately.

[00:21:41] Speaker 01:
This is a general aviation airport.

[00:21:42] Speaker 01:
It does not have commercial service.

[00:21:44] Speaker 01:
And under the block grant agreement, the state has authority to approve changes to the airport layout plan for that airport.

[00:21:51] Speaker 01:
If commercial service is introduced, then FAA has the responsibility to approve that action and to issue the airport operating certificate.

[00:21:59] Speaker 01:
And as the court knows, these actions were happening in parallel.

[00:22:04] Speaker 01:
So in 2014, the FAA published a federal register notice that said we are going to do an EA for the commercial service airport operating certificate and we're going to consider these actions.

[00:22:13] Speaker 01:
And that federal register notice said some of these actions are connected

[00:22:17] Speaker 01:
to the airport operating certificate, and some of them are not connected, but we're going to look at them because they happen to be occurring at Pauling Airport at about the same time.

[00:22:26] Speaker 01:
But in the end, the Part 139 airport operating certificate EA fell behind this general aviation project.

[00:22:35] Speaker 01:
The airport wanted to move forward with the general aviation project, and so it asked Georgia and FAA to look at that project separately, which we agreed to do.

[00:22:43] Speaker 01:
Now that is not a NEPA violation for two reasons.

[00:22:49] Speaker 01:
One is that the Federal Register notices don't do anything.

[00:22:53] Speaker 05:
Your argument is the FEA didn't need to get involved at that point.

[00:22:58] Speaker 01:
We did not need to be involved in the airport layout plan approval.

[00:23:02] Speaker 05:
Why were you?

[00:23:05] Speaker 05:
Why sign the concurrence?

[00:23:07] Speaker 05:
I don't get that.

[00:23:08] Speaker 05:
I mean, one argument is that you had a legal obligation to do so, which is Mr. Steenberg's argument.

[00:23:15] Speaker 05:
What's the argument to the contrary?

[00:23:17] Speaker 01:
We were trying to do our best to assist the state in carrying out its NEPA obligations, which are its responsibility under the block grant statute and under its agreement.

[00:23:26] Speaker 00:
I mean, your basic idea is...

[00:23:28] Speaker 00:
It's as if Georgia called up somebody in the FAA and said, hey, we've done this.

[00:23:33] Speaker 00:
Can you just take a quick look at us and a quick look at it and make sure we didn't do anything that leaps out to you as egregiously wrong?

[00:23:39] Speaker 00:
And then on the phone, the person says, I took a quick look at it.

[00:23:41] Speaker 00:
Yeah, it looks all right to me.

[00:23:43] Speaker 00:
And that's what you think was encapsulated by the signed concurrence.

[00:23:46] Speaker 01:
Yes, so we think that the state would have been able to go forward without the signed concurrence from us.

[00:23:52] Speaker 01:
But if the state does need our concurrence, as some of the court's questioning has indicated, they don't have it.

[00:23:59] Speaker 01:
Let's assume that FAA is required to participate in this decision.

[00:24:03] Speaker 01:
In that case, the withdrawal letter unambiguously makes this case moot by taking away any concurrence that the FAA might once have provided.

[00:24:11] Speaker 01:
So even if you assume their view of the merits, which the court is required to do on this jurisdictional question, their view of the merits is our ONEPA concurrence is required and they don't have it and therefore they are not injured by any FAA action.

[00:24:26] Speaker 04:
Yeah, I get that.

[00:24:28] Speaker 04:
But on the other hand, your friend says that what's underlying

[00:24:37] Speaker 04:
this dispute is a disagreement about whether federal approval is necessary for this category of projects or whether people should be addressing these issues before the federal agency or the state agency.

[00:24:58] Speaker 04:
and you all have said the answer is before the state agency.

[00:25:04] Speaker 04:
How do they tee up judicial review of that question?

[00:25:09] Speaker 01:
Georgia has an APA, a state APA that allows for review of state agency actions, and that would be an appropriate place for them to challenge.

[00:25:17] Speaker 04:
How do they tee it up as against FAA?

[00:25:20] Speaker 01:
I'm not sure that FAA has anything to say about that.

[00:25:22] Speaker 01:
I mean, FAA does review.

[00:25:24] Speaker 04:
Well, their legal theory is that you're the regulator.

[00:25:28] Speaker 01:
In that case, they can sue the state and they can say the state doesn't have authority under its block grant agreement to do this kind of action on its own.

[00:25:36] Speaker 01:
The state courts would interpret the block grant agreement and would either agree with that or disagree with that.

[00:25:43] Speaker 01:
Now FAA also exercises supervision over block grant participants to make sure they are complying with the terms of the block grant program.

[00:25:50] Speaker 01:
Those provisions are also in the joint appendix and we can permanently suspend or temporarily suspend a state that we find not to be in compliance.

[00:25:59] Speaker 01:
Generally, then, we try and work with them to get them back into compliance.

[00:26:02] Speaker 01:
And that's where FAA's role as a sort of NEPA consultant comes in.

[00:26:06] Speaker 01:
We are trying to help the state understand its NEPA obligations and carry them out and comply with them when it takes actions that are delegated to it under the state block grant program.

[00:26:16] Speaker 01:
And I think that Congress intended for that to happen.

[00:26:18] Speaker 01:
If the court looks at the block grant statute, which is 49 USC 47128, it requires FAA to ensure that a state will be able to carry out NEPA responsibilities.

[00:26:28] Speaker 01:
So this is not a situation where Congress ordered us to just step away and let the state do everything.

[00:26:34] Speaker 01:
No, FAA is involved in the record here because we are supposed to be lending our expertise and exercising some supervision over this kind of thing.

[00:26:41] Speaker 01:
But that doesn't mean that we supervised this project.

[00:26:47] Speaker 01:
Action, approval of the airport layout plan that the state has authorities undertake on its own.

[00:26:51] Speaker 01:
And if the state had undertaken it on its own without our concurrence, we believe it could have done that.

[00:26:57] Speaker 01:
When we gave our concurrence, in our view, that did not affect any legal rights or obligations.

[00:27:02] Speaker 01:
That's the final agency action argument in our brief.

[00:27:04] Speaker 01:
But the court doesn't even need to get there.

[00:27:06] Speaker 01:
It can decide the case simply on the fact that we've now withdrawn our concurrence.

[00:27:10] Speaker 01:
So if there was ever any injury from FAA's action here,

[00:27:14] Speaker 01:
that injury is now resolved.

[00:27:15] Speaker 01:
We've essentially given them administratively the very same relief that they're asking for from the court.

[00:27:22] Speaker 01:
Now, Mr. Seeland says if this had come before FAA originally, they would have pressed FAA to say that Georgia's NEPA analysis is inadequate.

[00:27:31] Speaker 01:
And that just shows the kind of relief that they're seeking here.

[00:27:35] Speaker 01:
But the court can't order FAA to pass judgment on a state NEPA analysis.

[00:27:40] Speaker 01:
All it can do is review FAA orders.

[00:27:42] Speaker 01:
And we've withdrawn that order here.

[00:27:45] Speaker 01:
That should end this case.

[00:27:46] Speaker 01:
The case is moot and they're no longer injured by any FAA action.

[00:27:52] Speaker 01:
unless the court has further questions.

[00:27:54] Speaker 01:
Thank you.

[00:27:57] Speaker 03:
Thank you, Your Honor.

[00:28:06] Speaker 03:
Really quickly, if you take a look at the appendix where the FAA concurred

[00:28:17] Speaker 03:
in this written re-evaluation.

[00:28:19] Speaker 03:
What you will see is a document where the state signs off, the feds sign off, and in its letter, this is Joint Appendix page 20, in its letter the FAA said, oh, well, this was merely a gesture of support.

[00:28:41] Speaker 03:
There's no indication that the FAA was anything other than an equal partner.

[00:28:46] Speaker 03:
Our primary claim, Your Honor, is that for years the FAA treated

[00:28:53] Speaker 03:
the expansion project as a federal project with federal funds.

[00:28:59] Speaker 03:
Federal funds?

[00:29:00] Speaker 03:
Look at page 669 of the Joint Appendix, where there's federal money set aside for this project.

[00:29:07] Speaker 03:
If it was a state block grant program, there would be no money there because it would be paid for out of the state block grant.

[00:29:13] Speaker 03:
And so under any circumstances, we think you need to remand this

[00:29:20] Speaker 03:
Council, as customarily and as you can expect, did a magnificent job explaining the government's view.

[00:29:27] Speaker 03:
None of that is in this letter.

[00:29:31] Speaker 03:
We need to have the FAA look at it.

[00:29:33] Speaker 03:
We need to have the FAA explain in detail the interrelationship, how it really intends to run this program in Georgia, where

[00:29:42] Speaker 03:
Judicial review occurs only if you petition the state within 30 days of the state action and you're in state court.

[00:29:50] Speaker 03:
So the state block grant program implementing NEPA, there's no judicial review.

[00:29:56] Speaker 03:
We can't come here.

[00:29:58] Speaker 03:
Thank you, Your Honors.

[00:29:58] Speaker 03:
Thank you very much.

[00:29:59] Speaker 03:
We have your argument.

[00:29:59] Speaker 03:
The case is submitted.