08 July 2020

Fourth Circuit Rejects NEPA Challenge as Untimely

On July 1, 2020, the U.S. Court of Appeals for the Fourth Circuit dismissed Howard County, Maryland’s, petition to review the Federal Aviation Administration’s approval (FAA) of construction at Baltimore-Washington International (BWI) Airport as inconsistent with the National Environmental Policy Act (NEPA). NEPA requires the federal agencies to conduct environmental assessments of federally licensed projects to determine whether the project will have significant environmental effects. In 1994, Congress provided for a 60-day limitations period covering challenges to certain projects. This limitations period includes challenges to the adequacy of the NEPA review (NEPA does not contain a statute of limitations provision). 49 U.S.C. § 46110(a).

The Maryland Aviation Authority (MAA), which owns and operates BWI, obtained FAA’s approval for a federally licensed project — expanding a cargo facility at the airport. On November 8, 2018, MAA publicly announced, via its website and The Baltimore Sun, that FAA had authorized the project. Five days later, on November 13, MAA emailed the notice to Howard County. The county filed its petition for review on January 14, 2019 — 67 days after MAA published notice of the project but 60 days after Howard County received the emailed notice (accounting for weekends). Howard County argued that the email date should control, as that was the date that it (as an interested party) received notice. The Fourth Circuit disagreed. It held that where, as here, the public at large is the interested party, the date on which notice was publicly provided controls. Because Howard County filed its petition more than 60 days after that public notice, the Fourth Circuit dismissed the petition. The court went on to note that failure to file within 60 days can be excused where the agency is at fault but not where the petitioner is at blame for the delay.

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