Malibu and Culver City v. FAA - Standing for NextGen Initiative Challenges

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT CITY OF CULVER C ITY, Petitioner, v. FEDERAL AVIAT ION ADMINISTRAT ION; UN ITED STATES DEPARTMENT OF TRANSPORTATION; PETE BUTTIGIEG; M ICHAEL G. WHITAKER, Respondents. No. 24-2477 Agency No. Federal Aviation Administratio n OPINION CITY OF MALIBU, Petitioner, v. FEDERAL AVIAT ION ADMINISTRAT ION; MICHAEL G. WHITA KER, in his official ca pacity as Administr ator, Feder al Aviation Administration, U.S.; UNITED No. 24-2503 Agency No. Federal Aviation Administratio n

2 C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. STATES DEPARTMENT OF TRANSPORTATION; PETE BUTTIGIEG, in his official capacity as Secret ary, Respondents. On Petition for Review of an Order of the Federa l Aviation Administr ation Argued and Submitted December 10, 2025 Pasaden a, Californi a Filed March 2, 2026 Before: M ILAN D. SM ITH, JR., M ORGAN B. CHRISTEN, AND DAN IELLE J. FORRES T, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.

C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. 3 SUMMARY * Standing The panel dismissed for lack of standing the Cities of Malibu and Culver City, California’s petitions for review of the Fe deral Aviation Administr ation’s publica tion of its Catego rical Ex clusi on/R ecord of Decisi on (CAT EX/R OD) relate d to the implemen tation of th e FAA’s Nex t Gen eration Air Tra nsportation Syste m (NextGen) initiative in the Southern California Metroplex. In 2016, the FAA’s NextGen initiative introduced new and revised air traffic procedures, including the flight procedur es chall enged here. I n 2018, the FAA amended the challenged flight procedures. The panel held that only the Cities’ challenge s to the 2018 Amendments were timely and dismissed as untimely any challenge related to the original 2016 flight procedure s. The Cities alleged that they suffered a procedural injury caused by the FAA’s failure to comply with the National Environmental Policy Act by issuing the CATE X/ROD without articulating an adequate or plausible rationale. The panel he ld that the Cities fail e d to meet their burden of demonstrating standing beca use they failed to show that there was a “reasonable probability” that the 2018 Amendments, not the original 2016 Flight Procedures, threaten ed th eir natur al reso urce in terests. Malibu’s declar ation es tablished standing to challenge only t he 2016 * This s ummary consti tutes no par t of the opi nion of the c ourt. It ha s been pre pared by c ourt staff for the convenie nce of t he reader.

4 C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. Flight Procedures, and Culver City failed to submit an affidavit or other evide nc e showing that it suffered an injury. Accordingly, the panel dismissed the petit ions for lack of standing. COUNSEL Steven M. Taber (argued) and Esther J. Choe, Leech Tishman Nelson Hardiman Inc., Pasadena, California; Barbara E. Lichman (argued) and Marshall L. Olney, Buchalter APC, Irvine, California; Heather S. Baker, City Attorney, City of Culver Ci ty, Culver City, California; f or Petitioners. Justin D. Heminger (argued) and Robert P. S tockman, Attorneys, Environment & Natural Resource s Division; Adam R.F. Gustafson, Acting Assistant Attorney Ge neral; United States Department of Justice, Washington, D.C.; Paul Geier, Assistant Gene ral for Litiga tion and Enforcement, Office o f th e Gene ral Co unsel, United States Dep artment of Transportation, Washington, D.C.; Nicholas A. Steinheimer, Attorn ey; Bret t D. Weing old, Man ager, A ppellat e Pract ice; Office of the Chief Counsel, Federal Aviation Administrati on, W ashington, D.C.; Courtney Adolph, Senior Attorney, Federal Aviation Administration, El Segundo, California; for Respondents.

C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. 5 OPINION M. SMITH, Circuit Judge: The Cities of Malibu and Culver City, Ca lifornia, petition for review of the Fed eral Aviation Ad ministration ’s (FAA) publication of its Categorical Exclusion/Record of Decision (CATEX/ROD) re lated to the implementation of the FAA’ s Next Generation Air Transportation Sys tem (NextG en) initiative in the Sou thern Califor nia Metroplex (Metroplex). The Cities argue that the FAA’s use of a CATEX /ROD in lieu of more fulsome e nvironmental review violated the APA. Because the Cities lack standing, we dismiss their pe titions. FACTUAL BACKG ROUND AND PROCED URAL HISTORY In 2016, the FAA’s NextGen initiative introduced new and revised air traffic proce dures at various airports, including Los Angeles International Airport, relying on satellites in stead of gr ound - based radio signals. At issue in this petition are three fl ight p rocedures: HUULL, IRNMN, and RYDRR (the Challenged Flight Procedures). To comply with its obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the FAA prepared an environmental review in 2016 analyzing all flight procedure s related to the Metroplex, including the Challenged Flight Procedures. That analysis found there would be no significant noise impacts, and the FAA made an official “Finding of No Significant I mpact” for the Metroplex. Culver City and other pa rties petitioned for review of the FAA’s 2016 approval of th e Metroplex in the D.C. Circuit, challenging the noise analysi s as wel l as the

6 C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. evaluati on of ai r emissi ons and climat e change ef fects. The D.C. Circuit denied those petitions. See Vaughn v. FAA, 756 F. App’x 8, 11, 16 (D.C. Cir. 2018) (per curiam). In May 2018, the FAA amended the Ch allenged Flight Procedu res, al tering s om e altit ude and sp eed restr iction s at various waypoints along the routes. 1 Three of th ese chan ges occurred at waypoint over land rather than oc ean: • At the IRNMN waypoint on the amended IRNMN flight procedure (IRNMN TWO), the FAA adjusted the altitude restriction from 16,000 feet from mean sea level to between 12,000 to 16,000 feet. • At the SYMON waypoint on IRNMN TWO, the FAA raised the altitude restriction from between 11,000 and 13,000 feet to between 12,000 and 13,000 feet. • The FAA added new waypoint named BRUKY on the amended HUULL flight procedure (HUULL TWO), with an altitude restriction of about 25,000 feet. Of these three w aypoints, none overfly Culver City and only the SYMON waypoint overflies Malibu. Ther e were no changes to the flight paths, the number of f lights, or the types of planes flying the Challenged Procedures. 1 Waypoint s are “ fixed geog raphic al positi on[s] al ong the f light rout e where pil ots are gi ven inst ructi ons as to di rection, s peed, an d altit ude.”

C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. 7 The City of Los Angeles c hallenged the amended flight procedures (the 2018 Amendments) with Culve r City as intervenor. We previously held that th e FAA had violated NEPA, the National Historic Pre servation Act (NHPA), and Section 4(f) of the Department of Transportation (DOT) Act when it issued the amended flight procedures but r emanded for the FAA to undertake the NEPA analysis and NHP A and DOT Act consultation without vac ating the procedures in the meantime. Se e City of Lo s Angel es v. Di ckson, No. 19 - 71581, 2021 WL 2850586, at *3 (9th Cir. July 8, 2021). NEPA “is a purely procedura l statute that. . . simply requires an agency to prepare an [envir onmental impact statemen t] — in ess ence, a rep ort.” Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 605 U.S. 168, 173 (2025). Its goal is to “inform agency decisionmaking” by exploring the potential environmental consequence s of agency action, without imposing any “ substantive environmental obligations or restrictions. ” See id. at 172 – 73. “NEPA ’ s implementing r egulations pe rmit agencie s to establ ish ‘categ orical excl usion s ’ covering actions that ‘normally do not require either an environmental impact statement or an environmental a ssessment and do not have a significant effect on the human environment.’” Save Our Skies L A v. FAA, 50 F.4t h 854, 859 – 60 (9th Cir. 2022) (quoting 40 C.F.R. § 1507.3(e)(2)(ii)). FAA ’s NEP A regulations permit the use of categorical exclusions fo r FAA actions “[e]stablish[ing] new or revised air traffi c control procedure s conducted a t 3,000 feet or more above ground level ” that do not “have a significant environmental impact” such th at “ext raordin ary circumst ances ” exist. FAA Ord er 1050.1F §§ 5-2, 5-6.5(i). Two years following th at initial decis ion, we grant ed mandamus r elief to the city “to provide some judicial

8 C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. oversight of the FAA’s timely compliance with our decisi on.” Ord er 1 -2, Di ckson, No. 19 - 71581 (9th Cir. Mar. 9, 2023). The FAA e ventually conducted the required NEPA review and statutory consultation. This included consulting with Culver City, Malibu, Los Angeles, and tribal groups. In conducting the NEPA revie w, the FAA employed a noise threshold known as the “Schultz Curve,” which marks a Day - Night Average Sound Level of 65 d ecibel s as the threshold for adverse community impacts. FAA’s environmental review resulted in a Record of Decision concluding that the 2018 Amendme nts “qualified for a categori cal excl usion that a pplies to the establishment of revised flight procedures conducted at or above 3,000 feet above ground level.” The FAA determined there were no “extrao rdinary circum stances” warranti ng addi tional environmental review. ANALYSIS I. Only the Cities’ challenges to the 2018 Amen dments a re timel y. “Congress has limited our jurisdiction over petitions for review of FA A orders to those petitions that are ‘ filed not later than 60 days after the ord er is issued’ or for which ‘reasonable grounds’ excuse the delay in filing.” Save O ur Skies L A, 50 F.4th at 859 (quoting 49 U.S.C. § 46110(a)). The Cities di d not challenge the original 2016 Flight Procedures within 60 days of the relevant FAA order, as required by statute absent “reasonable grounds for not filing by the 60th day.” 49 U.S.C. § 46110(a). T he 60- day period during which t he Ci ties m ay hav e ch allenged the 20 16 Flight Procedures expired in 2016. Indeed, C ulver City did successfully petition within that period, and the D. C. Circuit upheld the FAA’s decision. S ee Vaughn, 756 App ’x 8 at 13 –

C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. 9 16 (holding that the FAA had ra tionally analyzed noise and other environmental impacts from the 2016 F light Procedures). Save Our S kies is direct ly on point. In that case, the petitioner challenged a different set of flight p rocedures arising out of the same Metroplex project as the Challenged Flight Procedures here. Save Our S kies L A, 50 F.4t h at 857. The FAA subsequently made certain changes to the procedures, and the petitioners challenged both the original flight procedures and those amended procedures. Id. at 859. While the court analyzed the petitioner’ s claims as to the amended p rocedu res as tim ely fil ed, id. at 859 – 61, it held that rev iew of t he original flight procedures was precl uded by Section 46110’s 60 - day limita tion. Id. at 861 (“Our jurisdiction extends only to the orders directly and timely challeng ed by a peti tioner.”). Th e “rea s onable grounds” exception, the court explained, did not extend to “petitioner’s own mistake,” “filing in the wrong court, ” or “a delay of the petitioner’s own making.” Id. at 862. The court further r ejected t he ide a that t he APA’s more gene ral 6 - yea r limitations period could supersede the more specific 60 - day period in Section 46110. Id. at 865. Ultimately, the court addressed (and denied) only the petitioner’s claims filed within the 60 - day period, dismissi ng as untimely those claims directed at earli er - promulgated versions of the flight procedures. Id. The reasoning of Save Our Skies controls. We accordingly addr ess only the 2018 Am endments and dismiss as untimely any challeng e related to the original 2016 Flight Procedu res.

10 C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. II. The Cities lack standing to challenge the 2018 Amen dments. Article III require s plaintiffs to establish standing for each clai m they raise by showing (1) an “i njury i n fact ” that is bot h “concrete an d part iculari zed” and “actual or imminent”; (2) a “causal connection between the injury and the conduct complained of”; and (3) tha t a favorable decision will redress their injury. Lujan v. De fs. of Wildlife, 504 U.S. 555, 560 (1992) (citatio n modified). “The party invoking federal jurisdiction bears the burden of establishing these el ements. ” Id. at 5 61. The Cit ies ass ert t hat th ey hav e suff ered a proced ural injury caused by the FAA’s fa ilure to comply with NEPA by issuing the CAT EX/ROD without “ articulating [an] adequate or plausible r ationale between the facts FAA found and its decision.” In the ir view, a favorable decision would redress their injuries because va catur would prevent further “degradation” of natural resources and a full environment analysis would more appropriately b alance the FAA’s goals with the Cities n eeds as cities. Where petitioners assert a procedural injury, as he re, for standing purposes they must allege tha t (1) the agency committed a procedural violation, (2) the pr ocedures in question “protect a plaint iff’s con crete in terests,” and (3) “it is reaso nabl y probab le that the challeng ed action will threat en thei r concret e in terest s.” San Luis & Delta - Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1232 (9th Cir. 2017), as corr ected (Mar. 23, 2017) (citation modified); City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (standing for claimed failure to abide by NEPA only when “the p laint iff also alleges a ‘co ncrete ’ int erest —such as an aes theti c or recreati onal interes t — that is threat ened by

C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. 11 the proposed action ” (emphasis added)). “A fr ee - floating assertion of a procedural violation, without a concrete link to the interest protected by the procedural rules, does not constitute an injury in fact.” Ashley Creek Phosph ate Co. v. Norton, 420 F.3d 934, 938 (9th Cir. 2005) T here is no question that NEPA is designed to protect the natural resour ce interest s t he Cities describe, see Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1499 (9th Cir. 1995), so we consider onl y whe ther the Cities have satisfie d the second step of the procedural inj ury analysis. Namely, wh ether th ey have shown that there is a “reasonable probability” that the 2018 Amendments, not the original 2016 Flight Pr ocedures, threaten their natural res ource int erest s. The C ities must meet this burden by sub mitting “affidavits or other evide nce showing, through specific fac ts” that they suffered an injury. Lujan, 504 U.S. at 561, 56 3 (e xplaining that at the summary judgment stage a plaintiff may no longer rest on “mere allegations” but must adduce specific evidence of injury); Nat’l Fam. Farm Coal. v. E. P.A, 966 F.3d 893, 90 8 (9th Cir. 2020) (holding that petitioners ar e subject to the same standing burden as a plaintiff at summary judgment). The Cit ies hav e not met their burde n her e. Malibu submitted a de claratio n from its City Mana ger stating that there has b een an “inc rease [] [in] fli ghts along with an increas e in aircraf t nois e over noi se - sensit ive are as” own ed by the city and that the “ New Flight Pa ths” made it diffic ult to preser ve the envi ronm ental, aestheti c, and r ecreati onal qualities of its propertie s. But those flight paths and the increa se in flights (along with any resulti ng increas e in noise) stem fro m the or iginal 2016 Flight P r ocedures, which increased the number of flights over specific areas, and not from the 2018 Amendments, whic h did not. Therefor e, Malibu’s decl aration establishes standing to challenge only

12 C ITY OF C ULVER C IT Y V. F ED. A VIAT ION A DMIN. the 2016 Flight Procedures, which, as discussed above, is untimely. Culver City, by contrast, failed to submit any affidav it or “other evidence showing, through specific facts,” that it suffer ed an inj ury. Lujan, 504 U.S. at 563. Accordingly, th e Cities hav e failed to establish standing to challenge the 2018 Amendments. See Wittman v. Personhuballah, 578 U.S. 539, 545 (2016) (holding that a party cannot satisfy standing by “simply alleg[ing] a nonobvious harm, without more”); see also Sierra Club v. E.P.A., 292 F.3d 895, 899 – 900 (D.C. Cir. 2002) (explaining that where a co mplainant is the objec t of the agency action, injury is typically apparent, but where injury is not self - evident, the petitioner must supplement the record as necessary to demonstrate standing). PETITION DISMISSED f or lack of standing.