Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
The City of Chicago (Chicago or City) has conceived a $6.6 billion program to modernize O'Hare International Airport, which consistently ranks as one of our nation's busiest and most delayed airports. To fund the initial component of the program — the preparation of an Environmental Impact Statement (EIS) regarding the modernization program — Chicago sought and received from the Federal Aviation Administration (FAA) approval to impose a $4.50 facility fee on passengers enplaning at O'Hare. Now three Chicago suburbs, the Villages of Bensenville and Elk Grove and the City of Park Ridge, petition for review of the FAA's decision, alleging that, in approving Chicago's application, it violated the Federal Aviation Act of 1958, 49 U.S.C. §§ 40101 et seq., the Administrative
The FAA may authorize an "eligible agency," i.e., a public agency controlling a commercial airport, see 49 U.S.C. § 40117(a)(2), to impose a "passenger facility fee" of from one to three dollars "on each paying passenger of an air carrier" to be used to finance "an eligible airport-related project," id. § 40117(b)(1). An "eligible airport-related project" includes "a project for airport development or airport planning." Id. § 40117(a)(3)(A). Once the FAA determines that an agency's passenger facility fee application is substantially complete, it must advise the public of its decision by letter and give notice in the Federal Register of its intent to rule on the application and invite public comment thereon. See id. § 40117(c)(3); 14 C.F.R. § 158.27(b)-(c). The FAA has 120 days after receiving the application to approve or deny it, in whole or in part. See 49 U.S.C. § 40117(c)(4); 14 C.F.R. § 158.27(c)(4).
Before authorizing any passenger facility fee, however, the FAA must make three specific findings based on the application. See 49 U.S.C. § 40117(d). The FAA must find that the proposed passenger facility fee will not generate excessive revenue, that is, revenue constituting "more than the amount necessary to finance the specific project." Id. § 40117(d)(1). Additionally, the FAA must find that the specific project is an eligible airport-related project that will maintain or improve the "capacity, safety, or security of the national air transportation system"; reduce airport noise; or improve conditions for competition "between or among air carriers and foreign air carriers." Id. § 40117(d)(2)(A)-(C). Finally, the FAA must find that the application includes an "adequate justification" for the specified project. Id. § 40117(d)(3).
The FAA may also authorize, under a different standard, a higher passenger facility fee of $4.00 or $4.50. Id. § 40117(b)(4). "[I]n the case of an airport that has more than .25 percent of the total number of annual boardings in the United States," the higher fee can be imposed if the FAA finds that the project "will make a significant contribution to improving air safety and security, increasing competition among air carriers, reducing current or anticipated congestion, or reducing the impact of aviation noise on people living near the airport."
In October 2002, Chicago's Department of Aviation (Department) applied to the FAA for authority to impose and use a passenger facility fee of $4.50 to fund a "Runway Formulation Project," the initial component of the City's O'Hare modernization program. Joint Appendix (J.A.) 54, 69, 71-72. In its application, the Department explained that the modernization program would cost $6.6 billion and provide for the "phased reconfiguration of the
As for the Runway Formulation Project itself, the Department explained that it involved the "[c]ompletion of all technical, physical and operational planning, as well as environmental processing" needed for the modernization program, "with a particular focus on the impacts and requirements for" the first phase of the modernization program.
J.A. 71-72. The Department initially estimated that the Runway Formulation Project would cost $200 million, but — in response to the FAA's concerns about the project's scope — later downsized the project and concomitantly lowered its estimated cost to $121 million.
In support of its modernization program generally and its Runway Formulation Project specifically, the Department explained that O'Hare consistently ranks as one of the nation's busiest and most delayed airports. The modernization program addresses these conditions, the Department explained, because it "has been formulated to preserve and enhance the capacity of the national air transportation system." J.A. 72. The Department further stated that "[t]he justification for this capital investment lies in the operational benefits (reduced delays and airfield capacity enhancement) that will result from the design and construction of the [modernization program]." J.A. 73. Turning to the subject of its application, i.e., the Runway Formulation Project, the Department explained that it will "preserve and enhance the capacity and safety of the national air transportation system by providing for projects which reduce delays and congestion at O'Hare" and that "[t]he analysis to be performed through this project is necessary to support environmental processing." J.A. 72 (emphasis in original).
The FAA deemed Chicago's passenger facility fee application substantially complete on November 27, 2002. Accordingly, the FAA published notice in the Federal Register of its intent to rule on Chicago's
In February 2003, the FAA partially approved Chicago's application. See Final Agency Decision, City of Chicago, Dep't of Aviation, Chicago, IL, Feb. 28, 2003, reprinted in J.A. 353-78. In its order, the FAA authorized Chicago to impose and use a $4.50 passenger facility fee to fund a Runway Formulation Project with a total estimated cost of over $220 million, a sum intended to be divided equally between the cost of the EIS itself and associated financing and interest costs.
The municipalities now petition for review of the FAA's order approving Chicago's passenger facility fee. For the reasons set forth below, we grant their petition and remand the case to the FAA for further consideration.
Before discussing the merits, we must address the FAA's two contentions that we lack jurisdiction to do so. Specifically, the FAA alleges that the municipalities lack standing to bring their petition and, in any event, they brought it too soon. We disagree with both contentions.
To satisfy Article III's "irreducible constitutional minimum of standing," a party must demonstrate injury-in-fact, causation and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); see also Rainbow/PUSH Coalition v. FCC, 330 F.3d 539, 542 (D.C.Cir.2003). To meet the injury-in-fact requirement, a party must show some "invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (citations and internal quotation marks omitted). Accordingly, "[t]he burden on a party challenging an administrative decision in the court of appeals is `to show a substantial probability that it has been injured, that the defendant caused its injury, and that the court could redress that injury.'" Rainbow/PUSH Coalition, 330 F.3d
That the municipalities will not suffer their alleged injury alone — Chicago plans to charge all passengers enplaning at O'Hare — does not, as the FAA alleges, render their injury insufficient to confer standing. Cf. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) ("[W]hen the asserted harm is a `generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction."). The injury the municipalities complain of is no mere "generalized grievance" akin to the one alleged by the citizens in Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 220, 94 S.Ct. 2925, 2930, 2931-32, 41 L.Ed.2d 706 (1974), or by the federal taxpayer in United States v. Richardson, 418 U.S. 166, 175-77, 180, 94 S.Ct. 2940, 2945-47, 2948, 41 L.Ed.2d 678 (1974), but a specific injury shared by a specific — albeit large — group of air travelers, to which their officers and employees belong. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365-66, 31 L.Ed.2d 636 (1972) ("[T]he fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."); Common Cause v. DOE, 702 F.2d 245, 251 (D.C.Cir.1983) ("[T]he widespread character of an alleged injury does not demean the standing of those who are in fact injured.").
Nor do we think the municipalities' alleged injury too attenuated or distant to represent a constitutionally-sufficient injury-in-fact, as the FAA asserts, by virtue of the fact that Chicago will not start collecting the passenger facility fee the FAA authorized until 13 years from now. That Chicago intends to spend today what it is authorized to collect tomorrow does not render the municipalities' alleged injury "conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (internal quotation marks omitted). The FAA's order is final and, absent action by us, come 2017 Chicago will begin collecting the passenger facility fee; accordingly, "the impending threat of injury [to the municipalities] is sufficiently real to constitute injury-in-fact and afford constitutional standing." Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 51 (D.C.Cir.1999); cf. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ("A threatened injury must be certainly impending to constitute injury in fact." (internal quotation marks omitted)). So, too, is the municipalities' petition ripe for our review now.
The ripeness doctrine requires us to consider "the fitness of the issues for judicial review and the hardship to the parties of withholding court consideration."
Finding that the municipalities have standing to petition for review of the FAA's action and did not jump the gun in doing so now, we accordingly turn to the merits of their petition. We agree that the FAA acted arbitrarily, capriciously and contrary to law in authorizing Chicago's Runway Formulation Project with an estimated total cost of over $220 million — half to pay for the EIS, half to cover financing and interest costs. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). Before authorizing the City's passenger facility fee, the FAA must find, based on Chicago's application, that the amount it proposes to impose and use "is not more than the amount necessary to finance the specific project." 49 U.S.C. § 40117(d)(1). The FAA failed to do so, however, which error is fatal to its approval of the fee application. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2866-67.
One thing the parties appear to agree on is that over $110 million for an airport project EIS is an extraordinarily high estimate.
The municipalities have an explanation of their own for Chicago's eye-popping EIS estimate. They point out that Chicago's initial "clarification" of its passenger facility fee application estimated that "Project Formulation," including the "[c]ompletion of all planning [and] environmental processing," would cost $42 million, while preliminary engineering — "[t]o transition from initial planning concepts into formal design" — and runway design would cost an additional $45 and $99 million, respectively. J.A. 254 (emphasis added). In response to the FAA's concerns about the scope of the project, however, the City clarified its application again less than one week later, this time purporting to limit the project to the tasks necessary to prepare an EIS. See J.A. 255-58 ("[W]e have spent a good deal of time clarifying the information we sent previously, and reconsidering the level of [passenger facility fee] resources needed in support of the environmental process."). But in the City's second clarification, it estimated that "Program Formulation," again including planning and environmental processing as well as "[p]reliminary engineering in support of [the] environmental review process," would total $93.1 million.
Why did Chicago's cost estimate for planning and environmental processing balloon in less than a week from $42 million to over $93 million? The municipalities allege that the cost of planning and environmental processing in fact did not change — Chicago merely moved the preliminary engineering work to support the formal design of the modernization program that the FAA questioned — as well as
By statute, the FAA's factual findings are "conclusive" if based on "substantial" record evidence. See 49 U.S.C. § 46110(c). Despite Chicago's extraordinarily high cost estimate of its proposed EIS and the FAA's express statutory duty, however, the FAA made not one finding regarding the necessity of over $110 million to prepare an EIS for the modernization program. The FAA simply concluded that the fee "will not result in revenue that exceeds the amount necessary to finance the projects." J.A. 358. But in these circumstances, such a simple recitation of the statutory standard neither satisfies the statute, see 49 U.S.C. § 40117(d)(1), nor assures us that the agency's decision is rational. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2866-67.
Seeking to assure us that the authorized sum is necessary, the FAA counsel claims that "[t]he amount of funds necessary to perform air transportation projects is a quintessential example of the type of decision that falls within an agency's expertise and as to which this Court defers." Respondent's Br. at 36. We have no quarrel with this general principle; it is true that we owe considerable deference to an agency's exercise of its judgment and expertise in estimating costs.
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For the foregoing reasons, we grant the municipalities' petition for review and remand the matter to the Federal Aviation Administration for its further consideration