United States Court of Appeals For the First Circuit
No. 22-1521
TOWN OF MILTON, MASSACHUSETTS,
Petitioner,
v.
FEDERAL AVIATION ADMINISTRATION and BILLY NOLEN, Acting Administrator of the Federal Aviation Administration,
Respondents.
PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL AVIATION ADMINISTRATION
Before
Montecalvo, Selya, and Lynch, Circuit Judges.
Karis L. North, with whom Murphy, Hesse, Toomey & Lehane, LLP was on brief, for petitioner. Thomas J. Dougherty on brief for Congressman Stephen F. Lynch, State Senator Walter F. Timilty, and State Representative William J. Driscoll, Jr., amici curiae. David S. Frankel, Attorney, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice, with whom Todd Kim, Assistant Attorney General, Justin D. Heminger, Attorney, Appellate Section, Environment and Natural Resources Division, Scott E. Mitchell, Assistant Chief Counsel, Federal Aviation Administration, Laura Price, Acting Manager, Airports and Environmental Law, Office of the Chief Counsel, and Evan Baylor, Attorney Advisor, Airports and Environmental Law, Office of the Chief Counsel, were on brief, for respondent. Cindy L. Christiansen, PhD and John Rowe, pro se, on brief for themselves as amici curiae. November 30, 2023 SELYA, Circuit Judge. The Federal Aviation
Administration (FAA) initiated the process of shifting from
ground-based navigation to satellite-based navigation at Boston's
Logan International Airport (Logan). This shift, which was aimed
at increasing the safety and efficiency of flight procedures,
relegated certain approaches and departures at Logan to a narrower
swath of airspace that covers the Town of Milton, Massachusetts
(the Town). Dismayed by the possibility of heavier air traffic
over its terrain, the Town objected to the FAA's proposed course
of action and mounted an extensive campaign to block the
implementation of the new flight procedure.
The campaign came to naught: the FAA rejected the Town's
entreaties and entered a final order authorizing the new flight
procedure. The Town, a mostly residential community which is
located about ten miles southwest of Logan, now petitions for
judicial review of the FAA's final order. Its location, the Town
says, subjects it to heavy air traffic, and many residents decry
the resulting noise.
In its petition for review, the Town contends that the
FAA's environmental analysis of the noise impacts failed to comply
with the agency's obligations under the National Environmental
Policy Act (NEPA), see 42 U.S.C. §§ 4321 - 4370m-11, and that the
noise from this challenged flight procedure disturbs Town
residents. We do not reach the merits of these contentions.
- 3 - The FAA responds that the Town does not have standing to
challenge its final order because it failed to satisfy the first
prong of the standing test: injury in fact to its own interests.
See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203-04 (2021).
We agree with the FAA. The harms that the Town asserts are not
legally cognizable harms to the Town itself. Consequently, we
dismiss the Town's petition for want of Article III standing. In
reaching this result, we agree with other courts of appeals that
have dismissed municipal NEPA challenges to FAA orders for want of
Article III standing because those challenges failed to show
cognizable injury to the municipalities themselves. See, e.g.,
City of N. Miami v. F.A.A., 47 F.4th 1257, 1277 (11th Cir. 2022);
Arapahoe Cnty. Pub. Airport Auth. v. F.A.A., 850 F. App'x 9, 11
(D.C. Cir. 2021) (per curiam); cf. City of Olmsted Falls v. F.A.A.,
292 F.3d 261, 267-68 (D.C. Cir. 2002) (explaining that municipality
had standing only because it showed injury to itself based on Clean
Air Act requirements with which it had to comply).
I
Before turning to the parties' arguments, we briefly
rehearse the law on standing. Federal courts are courts of limited
jurisdiction that may entertain only "Cases" or "Controversies."
U.S. Const. art. III, § 2, cl. 1. "For there to be a case or
controversy under Article III, the [petitioner] must have a
'personal stake' in the case — in other words, standing."
- 4 - TransUnion, 141 S. Ct. at 2203 (quoting Raines v. Byrd, 521 U.S.
811, 819 (1997)). "As the party invoking federal jurisdiction,
the [petitioner] bear[s] the burden of demonstrating that [it has]
standing." Id. at 2207-08 (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992)). The petitioner "must show (i) that [it]
suffered an injury in fact that is concrete, particularized, and
actual or imminent; (ii) that the injury was likely caused by the
[respondent]; and (iii) that the injury would likely be redressed
by judicial relief." Id. (citing Lujan, 504 U.S. at 560-61).
Concreteness and particularization are independent and
necessary prerequisites of the injury in fact requirement. See
Spokeo, Inc. v. Robins, 578 U.S. 330, 334 (2016). To be concrete,
"the asserted harm [must have] a 'close relationship' to a harm
traditionally recognized as providing a basis for a lawsuit in
American courts — such as physical harm, monetary harm, or various
intangible harms including . . . reputational harm." TransUnion,
141 S. Ct. at 2200 (quoting Spokeo, 578 U.S. at 340-41). To be
particularized, the harm "must go beyond a generalized grievance[]
to manifestly affect the [petitioner] in a personal and individual
way." Lyman v. Baker, 954 F.3d 351, 361 (1st Cir. 2020) (first
alteration in original) (internal quotations omitted); see Save
Our Heritage, Inc. v. F.A.A., 269 F.3d 49, 55 (1st Cir. 2001)
(explaining that, in order to satisfy the injury in fact
- 5 - requirement, "the petitioner [must be] someone who has suffered or
is threatened by injury in fact to a cognizable interest").
In order to satisfy the traceability (causation) and
redressability requirements, a petitioner must "allege personal
injury [that is] fairly traceable to the [respondent]'s allegedly
unlawful conduct and likely to be redressed by the requested
relief." California v. Texas, 141 S. Ct. 2104, 2113 (2021)
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
If the petitioner fails to show any of these three elements, we
cannot review the proffered matter on its merits. See Katz v.
Pershing, LLC, 672 F.3d 64, 75-76 (1st Cir. 2012).
II
Against this backdrop, we proceed to appraise the
particulars of the case at hand. The parties' dispute about
standing focuses on whether the Town has shown injury in fact. In
its opening brief, the Town argues that it has suffered injury
because of: "the impact of noise on its residents, including
increased annoyance and complaints about noise made both to Town
officials and to . . . the FAA"; and the "considerable time and
money" that it spent "addressing these issues." We examine each
of these arguments but find them wanting.
A
The Town first argues that it has suffered injury in
fact in the form of "the impact of noise on its residents." Black-
- 6 - letter law dictates that harm to others, such as the Town's
residents, is insufficient to show an injury that is particularized
to the petitioner itself. See Lujan, 504 U.S. at 560 n.1 (noting
that "the injury must affect the [petitioner] in a personal and
individual way" to be "particularized"); Sierra Club v. Morton,
405 U.S. 727, 734-35 (1972) ("[T]he 'injury in fact' test
requires . . . . that the party seeking review be [it]self among
the injured."). We first explore the injury in fact requirement
in the context of municipal standing, and then we turn to the
specifics of some of our prior cases that the Town cites in its
defense.
Several cases from other courts of appeals have
established that municipalities cannot assert that they have been
injured because of an alleged injury to their residents. For
example, in City of Olmsted Falls v. FAA, the D.C. Circuit examined
whether the City of Olmsted Falls, Ohio, had standing to sue the
FAA for its approval of a runway improvement project at Cleveland
Hopkins International Airport. See 292 F.3d 261, 265, 267 (D.C.
Cir. 2002). Relying in part on harm to its residents, the City
contended that the FAA's approval violated, inter alia, NEPA and
the Clean Air Act (CAA), see 42 U.S.C. §§ 7401-7671q. See id. at
267.
- 7 - The D.C. Circuit rejected the City's argument that "it
may represent its citizens, much as a private association could
represent its members' interests." Id. The court held that this
argument "misconceive[d] the very concept of associational
standing" as "[t]he City does not have 'members' who have
voluntarily associated, nor are the interests it seeks to assert
here germane to its purpose." Id. at 267-68 (emphasis in
original). Instead, as the court held, "the City [was] effectively
attempting to assert the alleged interests of its citizens under
the doctrine of parens patriae." Id. at 268. It reasoned that,
because "a state may not sue the federal government on behalf of
its citizens as parens patriae,"1 municipalities, which "derive
their existence from the state and function as political
subdivisions of the state," also "presumably" cannot sue the
federal government under this doctrine.2 Id.
In City of North Miami v. FAA, the Eleventh Circuit
endorsed this reasoning and held that the municipal petitioners
A state cannot sue the federal government, asserting the 1
interests of its citizens as parens patriae, because "it is the United States, and not the state, which represents [a state's citizens] as parens patriae." Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923).
In Arapahoe County Public Airport Authority v. FAA, the D.C. 2
Circuit recently reaffirmed its reasoning in Olmsted Falls and rejected the municipal petitioners' NEPA challenge to an FAA order, which claimed standing based on harms, such as noise impacts, to residents. See 850 F. App'x 9, 11 (D.C. Cir. 2021) (per curiam).
- 8 - did not have standing to challenge the FAA's alleged failure to
comply with NEPA based on impacts, such as increased noise, to
their residents. See 47 F.4th 1257, 1277 (11th Cir. 2022). The
court concluded that, "[b]y invoking the interests of their
residents, the municipalities are attempting to sue the FAA under
a parens patriae theory." Id.
The Town attempts an end-run around this body of case
law by disclaiming any intent to represent its residents as parens
patriae. Relatedly, it denies that it "bas[es] its claims of harm
on individual impacts to citizens." In defense of these
contentions, the Town mistakenly relies on language in Olmsted
Falls, in which the court, "[t]aking a generous reading of the
petitioner's materials," held that the City had "alleged harm to
its own economic interests based on the environmental impacts of
the [FAA-]approved project." 292 F.3d at 268. Unlike the Town,
the City in Olmsted Falls showed injury to itself because the CAA
imposed a requirement on the City to comply with air quality
standards. See id.
In reaching this conclusion, the D.C. Circuit cited a
prior opinion in which it had blessed a showing of injury in fact
by municipal petitioners on the theory that new federal automobile
fuel economy standard would "adversely affect[] air quality in
their urban areas, making it more difficult for them to comply, as
they must, with the air quality standards imposed upon them by the
- 9 - [CAA]." Id. (emphasis supplied) (citing City of Los Angeles v.
Nat'l Highway Traffic Safety Admin., 912 F.2d 478, 484-85 (D.C.
Cir. 1990), overruled on other grounds by Florida Audubon Soc'y v.
Bentsen, 94 F.3d 658 (D.C. Cir. 1996)). This alleged increase in
difficulty complying with CAA standards inflicted a
"constitutionally cognizable injury." City of Los Angeles, 912
F.2d at 485. Here, however, the Town sued only under NEPA, which
— unlike the CAA — does not impose standards with which a
municipality must comply.3
In further defense of its position, the Town cites a
line of cases in which we reviewed municipal challenges to FAA
actions based on harms such as increased traffic congestion. See,
e.g., Town of Marshfield v. F.A.A., 552 F.3d 1 (1st Cir. 2008);
Town of Winthrop v. F.A.A., 535 F.3d 1, 7 (1st Cir. 2008); Save
Our Heritage, Inc. v. F.A.A., 269 F.3d 49, 55 (1st Cir. 2001).
These cases are inapposite, and our decision in Save Our Heritage
illustrates the point. There, we declined to decide whether the
municipal petitioners themselves had standing based on their
3The determination of the Olmsted Falls court that the municipal petitioner had standing to advance all its statutory grievances, predicated on injury under only one of those statutes, predated TransUnion. This timing bears mention because the TransUnion court stated that "standing is not dispensed in gross; rather, [petitioners] must demonstrate standing for each claim that they press." 141 S. Ct. at 2208; see Webb v. Injured Workers Pharmacy, LLC, 72 F.4th 365, 372 (1st Cir. 2023).
- 10 - "direct interest" (that is, injury from the FAA's ruling). Save
Our Heritage, 269 F.3d at 55. We recognized that deciding the
issue was unnecessary because two joint petitioners (non-profit
landowners) "would be affected by both noise and air pollution,"
and "[i]t is sufficient for the case to proceed if at least one
petitioner has standing." Id. Any statements about the likely
standing of the municipal petitioners were merely dictum.
Nor is the Town's argument supported by our decision in
Winthrop, which also featured two local residents as individual
petitioners (both of whom had standing). See 535 F.3d at 3. In
contrast, the Town is the sole petitioner seeking standing here —
and there are no individual resident petitioners.
So, too, our decision in Marshfield does not bear the
weight that the Town piles upon it. See 552 F.3d 1. The municipal
petitioner there brought a claim under the National Historic
Preservation Act, see 16 U.S.C. §§ 470 - 470x-6 (2000) (current
version at 54 U.S.C. §§ 300101 - 320303), which clearly imposes
some obligations concerning historic sites in and around a
municipality. See Marshfield, 552 F.3d at 5. For that reason,
there was no need for a discussion of standing. Here, unlike in
Marshfield, the Town has not identified any concrete harm to a
municipally owned site within its borders.4 The case before us
Although the Town makes a passing reference to "pollution 4
impacts" on the Town itself, it neither elaborates on the nature
- 11 - remains factually and legally distinct from the cases to which the
Town alludes.
The Town, in a footnote in its reply brief, points to
one more case that it says found that a municipality may sue to
recover damages on behalf of itself and "other similarly injured
and situated persons," at least under Mass. Gen. Laws ch. 93A,
§ 11. Town of Randolph v. Purdue Pharma L.P., No. 19-10813, 2019
WL 2394253, at *5 (D. Mass. June 6, 2019). That decision is not
binding authority and — in any event — fails to advance the Town's
cause. First, because Randolph already required a remand to state
court on other jurisdictional grounds, see id. at *5, a standing
discussion would have been superfluous. Second, the complaint
there sought damages for "decreased tax revenue and diminished
property values" as well as "'municipal expenditures' resulting
from the opioid epidemic," id. at *1, which are substantially
different than the injuries that the Town has alleged here. Thus,
Randolph furnishes no comfort for the Town's standing argument.
B
The Town next argues that it has suffered concrete
economic injury as a result of the expenses it incurred in
challenging the new flight procedure. The Town describes these
costs, which derive from assorted activities: Town officials
of these impacts nor identifies any facts that we could construe as supporting such a theory of harm.
- 12 - devoted "considerable time and money [to] addressing" residents'
noise complaints; Town officials attempted to coordinate with
Logan personnel, the FAA, and state and federal elected officials;
the Town formed an advisory committee on airplane noise composed
of Town residents; the Town purchased noise monitors, which Town
residents staffed as volunteers; and the Town retained lawyers to
represent it both at the administrative level and in this
proceeding.5 These activities, the Town complains, constituted
injury to the Town because they diverted "precious municipal
resources" from other core functions that the Town must perform.
We reject this theory of standing, which again fails to
pass muster upon consideration of the first element of the standing
inquiry: injury in fact. Inasmuch as the municipal government
exists to support its citizens, any action that it takes inherently
serves that purpose and cannot be an injury to it. Put another
way, a municipality cannot claim that reallocating municipal
resources to address one of its residents' concerns is an injury
because this decision simply represents a policy preference to
prioritize one government function over another. Cf. Conn.
Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 447 (2d Cir.
We summarily disregard this final assertion of harm because 5
attorneys' fees cannot constitute injury in fact. See Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1619 (2020) (explaining that attorneys' fees did not give petitioners a "concrete stake in the lawsuit").
- 13 - 2021) (holding that a non-profit organization's allocation of
resources to effectuate responsibilities in furtherance of its
mission cannot constitute injury in fact because this action does
not divert resources from its "current activities").
The Town asseverates that it has been injured by
allocating its "limited funds" to advocate against the imposition
of the new flight procedure over the Town rather than to carry out
other "statutory responsibilities and obligations." Yet, the Town
also denies that this asseveration relies on an associational
standing theory. It concedes that "a municipality is not like an
advocacy organization" and "engagement with the FAA is not its
mission." To the Town's credit, a municipality in many ways is
unlike organizations to which the associational standing cases
refer. It is not a voluntary association of members with common
interests. Nor is the Town an association whose purpose is to
represent and advance a common interest of its members. After
all, the Town was not formed under Massachusetts law to pursue an
ideological mission.
These differences, though, mean that a municipality will
have more difficulty running the standing gauntlet than an
organization. A resource-diversion argument is available only to
petitioners who allege associational standing6 — and only to those
Here, we use the term "associational standing" to include 6
"organizational standing."
- 14 - who have shown that "the challenged conduct frustrated their
organizational missions and that they diverted resources to combat
that conduct." Friends of the Earth v. Sanderson Farms, Inc., 992
F.3d 939, 942 (9th Cir. 2021); see Havens Realty Corp. v. Coleman,
455 U.S. 363, 379 (1982) (holding that an organization suffers
injury in fact when its key activities are "perceptibly impaired"
and its resources "consequent[ly] drain[ed]"); Equal Means Equal
v. Ferriero, 3 F.4th 24, 29-30 (1st Cir. 2021) (rejecting
associational standing predicated on organizations' expenditure of
"additional resources to ensure that the law [benefitting their
members] will be treated as having legal effect"). As we have
discussed, the Town is not an association that can represent its
members' interests. Thus, its reliance on principles from
associational standing case law is misplaced.
The Town acknowledges the force of this comparison but
counters that these differences suggest that a municipality has a
stronger justification for a resource-diversion theory of harm.
It maintains that its efforts exceed "mere advocacy," pointing to
"the cost of purchasing and deploying its own field noise monitors,
attended by Town volunteers." We fail to see how this example
materially differs from the type of work that an advocacy
organization might perform.
- 15 - III
In its reply brief, the Town for the first time argues
a new form of alleged injury: that it was "harmed when residents
s[old] their homes and move[d] away from Milton because of noise
impacts, which" caused fiscal and reputational harm. Because the
Town did not raise this argument in a timely and complete manner,
we deem it waived. See Sandstrom v. ChemLawn Corp., 904 F.2d 83,
86 (1st Cir. 1990) (explaining that argument not raised until
appellant's reply brief is deemed waived); see also United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that
argument made "in a perfunctory manner, unaccompanied by some
effort at developed argumentation, [is] deemed waived").
The newly asserted injury assumes that an exodus of
residents hurts the Town's financial interests and reputation in
a legally cognizable manner, but introducing these assumptions
extends the argument well beyond that which the Town advanced in
its opening brief. Moreover, that the Town's coffers are shrinking
(the financial injury that the new theory seems to assert) is a
wholly different harm than the Town having to reallocate existing
funds from core functions to challenge the new flight procedure
(the only theory of financial injury set forth in the Town's
opening brief). Introducing this asserted harm, coupled with the
new assertion of reputational harm, plainly extends the argument
beyond that which the Town advanced in its opening brief. It
- 16 - follows that the Town's new standing argument is both legally and
factually distinct from the arguments advanced in its opening
brief. Given these facts, we deem this argument waived.
IV
We need go no further. For the reasons elucidated above,
we dismiss the Town's petition for want of Article III standing.
Each party shall bear its own costs.
Dismissed.
- 17 -