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

- 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,

(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.,

, 1277 (11th Cir. 2022);

Arapahoe Cnty. Pub. Airport Auth. v. F.A.A.,

, 11

(D.C. Cir. 2021) (per curiam); cf. City of Olmsted Falls v. F.A.A.,

(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,

(quoting Raines v. Byrd,

(1997)). "As the party invoking federal jurisdiction,

the [petitioner] bear[s] the burden of demonstrating that [it has]

standing."

at 2207-08 (citing Lujan v. Defs. of Wildlife,

(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."

(citing Lujan,

).

Concreteness and particularization are independent and

necessary prerequisites of the injury in fact requirement. See

Spokeo, Inc. v. Robins,

(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,

(quoting Spokeo,

). 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,

(1st Cir. 2020) (first

alteration in original) (internal quotations omitted); see Save

Our Heritage, Inc. v. F.A.A.,

(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,

, 2113 (2021)

(quoting DaimlerChrysler Corp. v. Cuno,

(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,

(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,

n.1 (noting

that "the injury must affect the [petitioner] in a personal and

individual way" to be "particularized"); Sierra Club v. Morton,

(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.

1

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

(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

-7671q. See

.

- 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."

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."

(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."

. 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

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,

(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

, 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

, 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."

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."

. 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

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]."

(emphasis supplied) (citing City of Los Angeles v.

Nat'l Highway Traffic Safety Admin.,

, 484-85 (D.C.

Cir. 1990), overruled on other grounds by Florida Audubon Soc'y v.

Bentsen,

(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

2

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.,

(1st Cir. 2008);

Town of Winthrop v. F.A.A.,

(1st Cir. 2008); Save

Our Heritage, Inc. v. F.A.A.,

(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."

; see Webb v. Injured Workers Pharmacy, LLC,

(1st Cir. 2023).

- 10 - "direct interest" (that is, injury from the FAA's ruling). Save

Our Heritage,

. 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."

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

. 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

. The municipal

petitioner there brought a claim under the National Historic

Preservation Act, see

- 470x-6 (2000) (current

version at

- 320303), which clearly imposes

some obligations concerning historic sites in and around a

municipality. See Marshfield,

. 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,

, 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

, 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,"

, 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,

(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.,

(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.,

(9th Cir. 2021); see Havens Realty Corp. v. Coleman,

(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,

(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.,

(1st Cir. 1990) (explaining that argument not raised until

appellant's reply brief is deemed waived); see also United States

v. Zannino,

(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 -