U.S. Ninth Circuit Court Denies Hillsboro Airport Third Runway Appeal

The Court negligently ignores the Petitioners' primary argument in ruling in favor of the FAA and Port of Portland

October 11, 2017

Oregon Aviation Watch is disappointed to announce that on 8/3/17, the U.S Ninth Circuit Court of Appeals issued a denial of our petition for review of the Federal Aviation Administration (FAA) and Port of Portland (Port) decision to construct, without an Environmental Impact Statement (EIS), a third runway at the Hillsboro Airport (HIO).

HIO is primarily a flight training facility that recruits many of its prospective pilots from outside the country. During the nearly 90 years HIO has been in existence, it has grown from a grassy airstrip into the largest and most polluting general aviation airport in the State of Oregon. In fact, HIO has earned the dubious distinction of being the number one facility source of lead emissions, a ton or more per year, in the state of Oregon and 21st in the nation among nearly 20,000 U.S. airports.

According to Port and FAA predictions, lead emissions during the landing and take-off phase of flight will increase from 0.8 tons per year in 2016 to 0.9 tons per year by 2021.[1] Pre-flight run-ups, which have been identified by the Environmental Protection Agency (EPA) as a major source of lead emissions at individual airports, were not included in the Port/FAA forecast, thus the actual amount of lead released at HIO is substantially higher than projections indicate. In addition, Port/FAA estimates did not include cruise phase emissions.

In any case, the court's decision was very much in keeping with the pro-corporate, damn the environment attitude the Port, FAA, aviation sector, local governments and Trump administration have routinely displayed towards the environmental degradation caused by airports and other industrial sources of pollution.

Background

In 2011, the Ninth Circuit Court issued a remand in response to Petitioners who challenged the addition of a third runway at HIO. At the time the Court stated that the Port and FAA failed to consider the potential for induced demand from adding a new runway.[2] The Port's response to the Court decision was troubling and deflective. Instead of directly asking the various tenants at the airport, including the predominant user of the airport, the Hillsboro Aero Academy international flight training school, to provide information about their current activities and projected growth over the next 20 years, the Port engaged in a random sampling of pilots and businesses then proceeded to hinge future forecasts on this flawed data.

The Hillsboro Airport Supplemental Environmental Assessment (HIO SEA) on this topic included an anonymous pilot survey. Though several of the respondents stated that they received pilot training at Hillsboro Aviation, now Hillsboro Aero Academy, the actual numbers of all pilots receiving training at this flight school were not included. This is a significant oversight since the majority of operations at HIO are training flights largely on behalf of Hillsboro Aero Academy/Hillsboro Aviation - a business that lays claim to training pilots from over 75 countries.[3] Oregon Aviation Watch and the other Petitioners questioned the accuracy of the survey in both their Opening and Reply briefs and through extensive testimony submitted during the formal hearing proceedings. The Court, however, opted to ignore the detailed information included in the record.

Per the court decision authored by Judge Richard R. Clifton:

"In their reply brief, Petitioners contend that, even if Hillsboro Aviation was included in the survey, the survey did not capture all of the likely growth related to pilot training. Petitioners did not raise this argument in their opening brief, and it is therefore waived."[4]

The judge is clearly mistaken. As noted by Oregon Aviation Watch Vice President Jim Lubischer:

"In fact, this specific argument was raised in Oregon Aviation Watch's Opening brief. Even the federal respondents recognized this in their reply brief. A cynic might think that the easiest way for the judges to rule in favor of the Port and FAA was to ignore Oregon Aviation Watch's primary argument by ruling that the argument had never been raised. In many court cases there are grey areas but this was not the case here."

Petitioners Re-Hearing Request Denied, No Explanation Provided

In response to the Ninth Circuit Court's misapprehension of material facts, Oregon Aviation Watch sought a rehearing, pointing out to the judges that this issue was included in the opening brief. The Court was reminded that when Oregon Aviation Watch submitted hearing testimony asking for the number of operations logged by all businesses located at HIO, the FAA and Port stated that the agencies "do not believe that the information requested by commenters [Petitioners] about flight training details or data about specific companies is necessary to prepare forecasts for the Supplemental Environmental Assessment."[5]

The opening brief also clearly stated that "the Survey did not capture the number of operations from the primary user of the Hillsboro Airport, Hillsboro Aviation." As noted by Sean Malone, the attorney for the Petitioners, this concern was argued in the opening brief and was raised yet again in the reply brief.[6] Nonetheless, without even the mere courtesy of an explanation, the Court chose to ignore these material facts and refused to honor the Petitioner's well articulated request.

Petitioner's Opening Brief Statements on Flight Training

Concerns related to the flight school and the deficiency of the survey to accurately forecast potential induced demand were raised on pages 24 through 28 of the Petitioner's Opening Brief under the section entitled Failure to account for the single largest operator at HIO. An excerpt from this argument reads as follows:

"As noted above, the FAA relied on the pilot survey to formulate the 'remand forecast,..but the survey omitted the single largest general aviation operator at HIO, Hillsboro Aviation...The omission is significant because Max Lyons, President of Hillsboro Aviation, submitted a letter in support of the application to fund the Project, stating that the third runway will allow the airport and its tenants to continue expanding as the impact of the current recession subsides."[7]

This section of the brief also includes excerpts from a Vertical Magazine interview with Max Lyons. According to the article which was included in the record,

"Since Lyons took leadership of Hillsboro Aviation in 1992, the company has had a continual emphasis on building partnerships in China in order to grow and support the country's aviation industry. As the open skies policy takes effect in China over the coming months and years, Hillsboro Aviation is well positioned to nurture the country's general aviation industry through the training of Asian pilots and representing aviation products in Asia."[8]

The article also stated, "Hillsboro Aviation has trained thousands of airplane and helicopter pilots from Asia..." and went on to include the following quote from Lyons, "As general aviation continues to grow and expand in China, we want to have a role in its growth and support this industry with the experience and resources we have developed over our 30-year history with Asia."[9]

Hillsboro Aviation Flight Training Concerns Submitted at Formal Hearing

Detailed concerns regarding the inadequacy of the pilot survey were submitted into the record. during the formal hearing. The Petioners' analysis was prepared by Oregon Aviation Watch vice president, Jim Lubischer.[10] Per Dr. Lubischer,

"The survey is deficient for not searching for and identifying primary users of HIO runways...The identification of primary users of the HIO runways is critical, as any 'estimated induced demand' is likely to hinge on those particular users. Not ensuring that the primary users are included in the survey is a critical mistake and any conclusions based on the Survey are not valid."[11]

Petitioners' Reply Brief Statements on Flight Training

The Petitioner's Reply Brief on pages 13-15 also includes a section entitled Failure to account for the single largest operator at HIO. As pointed out by, Sean Malone, the attorney for the Petitioners, "This information is of the utmost importance because flight training accounts for the vast majority of operations at the airport."[12]

Obviously the Petitioners emphasized concerns about the survey throughout the entire proceedings. It was not that the issues were not raised, but rather that the Court chose to blatantly ignore this very pivotal issue.

Court Grants Port and FAA Latitude to Increase HIO Lead Emissions to 25 Tons Per Year

Another chilling aspect of the decision was the Court's unwillingness to fully address the fact that even without a third runway, during the landing and take-off phase of flight, HIO is releasing close to a ton of lead into the air each year. Additional lead is released during engine run-ups. Despite the inclusion of this information in the record, the Court ignored the extensive data on this topic and chose to base its decision solely on the additional lead emissions predicted by the Port and FAA to result from adding a third runway. Per the decision,

"The SEA demonstrated that the new runway would have little effect on lead in the area around HIO. The Remand Forecast estimated that the new runway would result in the annual additional 0.03 ton of lead in 2016 (from 0.83 ton under the Constrained Forecast to 0.86 ton under the Remand Forecast) and the annual emission an additional 0.02 ton of lead in 2021 (from 0.90 ton under the Constrained Forecast to 0.92 ton under the Remand Forecast). These predictions represent an increase in lead emissions of less than four percent."[13]

Please note that neither the Port of Portland nor the Oregon Department of Environmental Quality or the EPA have ever actually measured lead emissions on the airport property or downwind of the facility where lead emissions are likely to be highest.

And it gets even worse. In arriving at their decision, the Court choose to discount the warnings issued by the Centers for Disease Control (CDC) that there is no safe level of lead in a child's blood as well as evidence that lead is a neurotoxin and probable carcinogen that can be harmful at very low exposure levels. The Court then went on to side with the Port and FAA's argument that until lead emissions from a federal action reach 25 tons annually, EPA regulations do not require an evaluation of the regional impact. At this point a reasonable reader might wonder what the difference is between EPA environmental policy as cited by the attorneys hired by the FAA and Governor appointed Board of Port of Portland Commissioners versus a government promoted institutionalized death camp mentality.

Health Impacts of Lead

The Petitioners' opening brief contained extensive documentation on the negative health impacts of lead exposure. Lead is a potent neurotoxin that can damage the blood, kidneys, and central nervous system. It can retard fetal development and cause reproductive problems. Even very low levels of lead can cause deficits in intelligence, reaction time, visual motor integration, fine motor skills, and executive functioning.[14]

Oregon Aviation Watch testimony in the record included the following,

"Lead is a potent neurotoxin. The Agency for Toxic Substances and Disease Registry lists 275 toxic substances on the 'Substance Priority List.' Arsenic is number one on the list. Lead is number two. The Centers for Disease Control (CDC) has stated that 'no level of lead in a child's blood can be specified as safe.' Furthermore, the CDC has stated that, '...because no level of lead in a child's blood can be specified as safe, primary prevention must serve as the foundation of the effort [to prevent childhood lead poisoning]. Efforts to eliminate lead exposures through primary prevention have the greatest potential for success.' Primary prevention means not putting lead into our environment. Rather than increase the lead in our children's environment we should be reducing the lead emitted from non-essential aircraft. Morally, any increase in lead cannot be considered de minimis."[15]

Sadly, the Port of Portland, the FAA, the State of Oregon, local government officials and now the Court have chosen to minimize and ignore the serious environmental and public health threat posed by Hillsboro Airport and have instead given this facility free reign to continue poisoning this community with the noise and pollution generated by private flight training companies.

Conclusion

In justifying their refusal to require an Environmental Impact Statement by citing EPA regulations, more specifically the archaic 25 tons de minimis statement, it's worth remembering that it was once legal to put lead in paint and automotive fuel - a practice that was discontinued due to the significant environmental and health risks posed by this toxic substance. It was once legal to own slaves but this practice was also discontinued because it was brutal and inhumane. It was once legal to ban women from voting but this practice was discontinued because it was discriminatory and misogynistic. It was once legal to ban black people from frequenting white only diners and restrooms but thankfully this practice, too, was discontinued because it was blatantly racist and dehumanizing.

In a similar vein, this country is sorely in need of laws that protect fetuses, infants, toddlers, kindergarteners, school children, pregnant women, the elderly, disabled individuals and ultimately the entire population from being assaulted daily by lead pollution, especially the lead released by the aviation sector which is responsible for over 50% of airborne lead emissions in this country. Moreover legislation, or at the very least a significant change in the way the courts interpret existing laws, is needed to protect residents from the judicial, legislative and executive branches of government that perpetuate, rather than seek to solve, this very serious problem. Sadly the laws of this country are all too often bereft of any semblance of either morality or ethics.

Many U.S. federal, state and local laws have historically been established by a greedy, self-serving dominant class whose primary intent is to accumulate corporate and industry profits by gouging and exploiting public sources of money at every turn. As a result, it should come as no surprise that the EPA, FAA, State of Oregon and Port policies that pollute the air, degrade the environment and compromise the health of current and future generations are promoted and upheld by the judicial system. What a travesty!

Sources

[1] Hillsboro Airport Parallel Runway 12L/30R Final Supplemental Environmental Assessment. Prepared for the Federal Aviation Administration by the Port of Portland. Volume 1. Pg. 29-30. (February 2014).

[2] Barnes et al vs. US Dept. of Transportation, FAA, and Port of Portland. US Ninth Circuit Court Opinion #10-70718. (Filed 10/25/11). Pgs. 16285 to 16286 and 16297. Available on-line at http://www.oregonaviationwatch.org/docs/NinthCircuitCourtOpinion-10-70718.pdf.

[3] Hillsboro Aero Academy website. Last accessed on 10/4/17 at http://flyhaa.com/.

[4] Barnes et al v. the FAA and Port of Portland. No. 14-71180. U.S. Ninth Circuit Court of Appeals Opinion. (8/3/17) Pg. 10, Footnote. Available on-line at http://www.oregonaviationwatch.org/docs/NinthCircuitCourtOpinion-14-71180.pdf.

[5] Hillsboro Airport Parallel Runway 12L/30R Final Supplemental Environmental Assessment. Prepared for the Federal Aviation Administration by the Port of Portland. Volume 2 of 2 Appendices G and I. Pg. G. 9-45. (February 2014).

[6] Barnes et al v. the FAA and Port of Portland No. 14-71180. Petitioners' Petition for a Re-hearing (8/25/17) Available on-line at http://www.oregonaviationwatch.org/docs/NinthCircuitCourtOpinion-10-70718.pdf.

[7] Barnes et al v. the FAA and Port of Portland No. 14-71180. Petitioners' Opening Brief. (8/11/14) Pg. 24. Available on-line at http://www.oregonaviationwatch.org/docs/HIO_2014-24-1-Opening_Brief.pdf.

[8] Hillsboro Aviation Prepared to Support General Aviation Growth in China. Vertical Mag. (3/5/11). Last accessed on-line on 10/4/17 at https://www.verticalmag.com/features/hillsboro-aviation-prepared-to-support-general-aviation-growth-in-china-html/.

[9] Ibid.

[10] Lubischer, J. Analysis of the General Aviation Survey Report Summary. OAW Hearing Testimony. Submission. Available on-line at http://www.oregonaviationwatch.org/docs/Analysis_of_DSEA_SURVEY.pdf.

[11] Ibid. Pg. 7.

[12] Barnes et al v. the FAA and Port of Portland No. 14-71180. Petitioners' Reply Brief. (12/02/14) Pg. 15 Available on-line at http://www.oregonaviationwatch.org/docs/HIO_2014-41-1-Reply_Brief.pdf.

[13] Barnes et al v. the FAA and Port of Portland. No. 14-71180. U.S. Ninth Circuit Court of Appeals Opinion. (8/3/17) Pg. 11. Available on-line at http://www.oregonaviationwatch.org/docs/NinthCircuitCourtOpinion-14-71180.pdf.

[14] Barnes et al v. the FAA and Port of Portland No. 14-71180. Petitioners' Opening Brief. (8/11/14) Pg. 10-12. Available on-line at http://www.oregonaviationwatch.org/docs/HIO_2014-24-1-Opening_Brief.pdf.

[15] Lubischer, J. Analysis of the General Aviation Survey Report Summary. Pg. 1. Available on-line at http://www.oregonaviationwatch.org/docs/Analysis_of_DSEA_SURVEY.pdf.