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California Seeks En Banc Review of Ninth Circuit Decision Paving Way to Airport Expansion

  • California AG Rob Bonta filed a petition for a rehearing en banc before the U.S. Court of Appeals for the Ninth Circuit in Center for Community Action & Environmental Justice et al. v. Federal Aviation Administration et al., Nos. 20-70272 and 20-70464, seeking to overturn a three-judge panel decision denying two petitions to review of the Federal Aviation Administration’s environmental review under the National Environmental Policy Act for the construction and operation of an air cargo facility at the San Bernardino International Airport.
  • The petition argues that the panel’s decision conflicts with Ninth Circuit precedent because it creates a new burden of proof for petitioners challenging agency decisions under NEPA, and that the decision conflicts with both Ninth Circuit and Supreme Court precedent because it allows an agency to base project approval on a flawed environmental analysis without appropriate study of the project’s impacts.
  • The petition further argues that the decision should be reviewed en banc because it presents policy questions of exceptional importance regarding environmental justice and NEPA’s mandate for government transparency in environmental reviews.