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 United States Court of Appeals
            FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 5, 2006                             Decided August 4, 2006

                               No. 05-1383

                 VILLAGE OF BENSENVILLE, ET AL.,
                          PETITIONERS

                                     v.

              FEDERAL AVIATION ADMINISTRATION,
                        RESPONDENT

                        CITY OF CHICAGO,
                   INTERVENOR FOR RESPONDENT


                           Consolidated with
                             No. 05-1456


            On Petitions for Review of an Order of the
                Federal Aviation Administration



    Christopher T. Handman argued the cause for petitioners.
With him on the brief was Robert E. Cohn. Anthony R.
Picarello, Jr., Derek L. Gaubatz, Gregory G. Garre, and Jessica
                                2

L. Ellsworth entered appearances.

   Robert L. Greene was on the brief for amici curiae
Advocates for Faith and Freedom, et al. in support of petitioners.

    Mary A. Thurston, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Todd S. Aagaard and Lisa E. Jones, Attorneys.

    Benna Ruth Solomon argued the cause for intervenor. With
her on the brief were Suzanne M. Loose, Sean H. Donahue,
Michael G. Schneiderman and David T. Goldberg.

    Before: HENDERSON, ROGERS and GRIFFITH, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge ROGERS.

    Opinion concurring in part and dissenting in part filed by
Circuit Judge GRIFFITH.

    ROGERS, Circuit Judge: The principal issue in this appeal is
whether the Religious Freedom Restoration Act (“RFRA”), 42
U.S.C. § 2000bb et seq., requires strict scrutiny of a federal
agency’s approval of an airport layout plan incident to a
determination of eligibility for federal funding if the plan, when
implemented by a subdivision of a state, may burden religious
exercise. Because O’Hare International Airport, by some
measures “the busiest airport in the world,” Suburban O’Hare
Comm’n v. Dole, 787 F.2d 186, 196 (7th Cir. 1986), has been
plagued by delays in recent years, the City of Chicago plans to
expand and reconfigure the airport. The petitioners, two
Chicago suburbs, a church, and several individuals, challenge
the Federal Aviation Administration’s approval of the City’s
plan on the ground that the approval violates RFRA because the
                                3

approved runway configuration, which requires the relocation of
a church cemetery, is not the least restrictive means of satisfying
the government’s compelling interest in reducing delays.

     We hold that any burden on the exercise of religion caused
by the City’s airport expansion plan is not fairly attributable to
the FAA. The Supreme Court has recognized that even in
instances in which the federal government plays some role,
constitutional standards do not attach to conduct by third parties
in which the federal government merely acquiesces. So too, a
federal agency’s determination that a City’s expansion plan is
eligible for federal funding does not render the City’s
implementation of the plan tantamount to federal action that is
the source of the burden on the free exercise of religion. The
expansion plan for the airport, which is owned by the City, was
prepared and will be implemented by the City, which is prepared
to proceed without federal funds if necessary, and RFRA does
not apply to burdens imposed by states or their subdivisions.
Hence, the court need not reach the question whether the FAA
has shown a compelling governmental interest in imposing a
burden on the free exercise of religion.

     Additionally, the court lacks jurisdiction to consider the
petitioners’ challenge to the FAA letter expressing a non-
binding intention to obligate federal funding for the expansion
because the letter is not a final order. Accordingly, because the
petitioners’ remaining contentions are without merit, we deny
the petitions for review.

                                I.

                            A.
    The Airport and Airway Improvement Act, 49 U.S.C. §§
47101 et seq. (“AAIA”), authorizes federal funding for airport
improvement projects and establishes the prerequisites for a
                                4

project to be eligible for funding. Congress established a
national transportation policy aimed at the efficient
transportation of passengers and property to ensure “the
expanding wealth of the United States, the competitiveness of
the industry of the United States, the standard of living, and the
quality of life.” Id. § 47101(b)(2). To those ends, the AAIA
requires that “airport construction and improvement projects that
increase the capacity of facilities to accommodate passenger and
cargo traffic be undertaken to the maximum feasible extent so
that safety and efficiency increase and delays decrease.” Id. §
47101(a)(7).

     To establish a “safe, efficient, and integrated system of
public-use airports,” the Secretary of Transportation must
maintain a public airport development plan that includes the
“kind and estimated cost of eligible airport development.” Id.
§ 47103(a). More pertinently, pursuant to a delegation of
authority from the Secretary, see id. § 106(g), the FAA may
make project grants to a State, public agency, or private owner
of a public-use airport from the Airport and Airway Trust Fund
for airport development. See id. § 47104(a); see also id. §
47105(a), id. § 47102(19). To be eligible for federal grants, the
airport development must comply with standards set by the
FAA. See id. § 47105(b)(3). The FAA may approve an
application only if satisfied that there are funds to cover costs
not paid by the federal government, that the sponsor has
authority to carry out the project, and that the project is
consistent with state agency plans for the areas surrounding the
airport, will contribute to carrying out the AAIA’s purposes, and
will be completed without unreasonable delay. See id. §
47106(a).

    In addition to the statutory requirements for specific
projects, a grant application may not be approved unless the
airport itself operates according to certain standards. See id. §
                                5

47107. Among these standards, the airport owner must
“maintain a current layout plan of the airport” that is approved
by the FAA. Id. § 47107(a)(16). The FAA must approve any
modified airport layout plan (“ALP”) before the owner of the
airport implements any changes. See id. § 47107(a)(16)(B); id.
§ 47104. When the approval of such a plan constitutes a “major
Federal action[] significantly affecting the quality of the human
environment” under the National Environmental Policy Act of
1969, 42 U.S.C. §§ 4321-4347 (“NEPA”), the FAA must
prepare an environmental impact statement (“EIS”) determining
the plan’s effect on the environment and considering reasonable
alternatives. See id. § 4332(C); Communities Against Runway
Expansion v. FAA, 355 F.3d 678, 681 (D.C. Cir. 2004); see also
49 U.S.C. § 47106(c).

     Once an airport owner has an approved ALP, it may apply
for a Letter of Intent (“LOI”) to provide AAIA funding for the
project. Upon such application, the FAA “may issue a letter of
intent to the sponsor stating an intention to obligate from future
budget authority an amount.” Id. § 47110(e)(1). Any such
statement of intention, however, is non-binding on the federal
government. Id. § 47110(e)(3).

                                B.
      In December 2002, the City, which owns and operates
O’Hare, submitted for FAA review an ALP designed to increase
capacity and decrease costly delays that were interfering with
O’Hare’s role as a major connecting hub. The City’s plan called
for realigning three of the seven existing runways and adding an
eighth runway. To accomplish the expansion, the plan would
require the City to acquire 440 acres of adjacent property,
including businesses and homes in the neighboring Villages of
Bensenville and Elk Grove. Further, the plan would require
relocation of two cemeteries: St. Johannes and Rest Haven.
                                6

     Upon receiving the City’s application, the FAA prepared an
EIS that initially screened fifteen alternatives. After rejecting
many of the alternatives as implausible or insufficient means of
addressing the delays at O’Hare, and after a second screening
eliminated three more, the FAA compared the four remaining
alternatives, using computer software to perform simulations
that modeled how well each alternative would enhance capacity
and reduce delays. The FAA concluded that the City’s plan —
Alternative C — with the shortest average delay and $150
million savings in the five years following construction, was
clearly preferable to all others.

     Members of St. Johannes Church and descendants of those
buried at the cemeteries objected that the relocation of the
cemeteries would substantially burden their exercise of religion
because of their belief in the physical resurrection of the bodies
of Christian believers. Citing their rights under RFRA, they
asked the FAA to demonstrate that Alternative C was the least
restrictive means of meeting the government’s compelling
interests in reducing delay and enhancing capacity. Although
expressing uncertainty over whether it was required to comply
with RFRA in this instance because the City was ultimately
responsible for designing and implementing the expansion plan,
the FAA proceeded as if RFRA did apply in order to avoid
litigation over the project. It found that the religious practices
of some petitioners would be substantially burdened if the
cemeteries were acquired and the bodies were relocated by the
City. It concluded — after examining the petitioners’ proposals
for avoiding the relocation of the cemeteries, each of which the
FAA characterized as derivative of the no-build and limited
build alternatives it had already considered and rejected, and
examining derivatives of its own that would limit effects on the
cemeteries, each of which the FAA determined posed significant
difficulties that would interfere with the goal of reducing delays
— that Rest Haven Cemetery could remain at its current location
                                7

by repositioning certain cargo facilities.

      Therefore, in the final EIS, the FAA proposed to conclude
that Alternative C, as modified to protect Rest Haven Cemetery,
was the least restrictive means of achieving the federal
government’s compelling interest in increasing capacity and
reducing delay. After receiving additional comments, the FAA
reviewed the conclusions of the EIS in the Record of Decision
(“ROD”) and concluded that the approval of Alternative C as
modified satisfied RFRA because “it clearly performs so much
better than any other alternative.” The issuance of the ROD on
September 30, 2005 cleared the way for the City to implement
its plan without relocating Rest Haven Cemetery. Additionally,
in response to the City’s February 15, 2005 request for a LOI for
$300 million of Airport Improvement Program (“AIP”) funds
and $55.8 million of entitlement funds to go toward the first
construction the City would be doing to implement the ALP, the
FAA, upon making statutory findings, on November 21, 2005
issued a LOI expressing its intention to fund about $300 million
in discretionary funds and $37.2 million in entitlement funds
over a 15-year period. These petitions for review followed.

                                II.

     The petitioners’ central challenge to the FAA’s approval of
the City’s ALP depends upon RFRA. In 1990, the Supreme
Court held in Employment Division v. Smith, 494 U.S. 872
(1990), that the Free Exercise Clause of the First Amendment to
the Constitution does not prohibit burdens on the exercise of
religion imposed by neutral laws of general applicability. See
id. at 879. In so doing, the Court declined to apply the
compelling interest balancing test set forth in Sherbert v. Verner,
374 U.S. 398 (1963), which required that governments
demonstrate that laws substantially burdening religious exercise
are supported by a compelling interest. See Smith, 494 U.S. at
                                  8

882-85. Congress, seeking to secure a wider berth for religious
exercise, enacted RFRA, which aimed to reinstate the
compelling interest test in place of the neutrality standard
pronounced by the Court. See Religious Freedom Restoration
Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (prior
to 2000 amendment); see also S. REP. NO. 103-111, at 8 (1993),
as reprinted in 1993 U.S.C.C.A.N. 1892, 1897-98; H.R. REP.
103-88 (1993). In City of Boerne v. Flores, 521 U.S. 507
(1997), the Supreme Court held that RFRA was unconstitutional
as applied to the states because it was beyond Congress’s
remedial power to regulate states under Section 5 of the
Fourteenth Amendment to the Constitution. See id. at 536.
RFRA’s compelling interest test remained in effect as to the
federal government.1



        1
            In response to City of Boerne, Congress passed the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
see Pub. L. No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C.
§ 2000cc et seq.), which again applies the compelling interest standard
to action by the states, but only as to the limited categories of
regulations affecting land use or institutionalized persons. Congress
grounded RLIUPA in its Commerce Clause and Spending Clause
authority. See 42 U.S.C. §§ 2000cc(a)(2)(A)-(B), 2000cc-1(b)(1)-(2).
Some of its applications have been upheld against constitutional
challenge. See Cutter v. Wilkinson, 544 U.S. 709 (2005). In RLIUPA,
Congress also amended RFRA to remove references to state and local
governments while preserving the law’s application to the federal
government. See 114 Stat. at 806; see also Cutter, 544 U.S. at 715
n.2. A RLIUPA claim against the City for its plan to acquire St.
Johannes Cemetery was dismissed by the District Court for the
Northern District of Illinois and is now pending before the Seventh
Circuit Court of Appeals. See St. John’s United Church of Christ v.
City of Chicago, 401 F. Supp. 2d 887 (N.D. Ill. 2005); St. John’s
United Church of Christ v. City of Chicago, No. 05-4418 (7th Cir.
filed Dec. 30, 2005).
                                 9

      RFRA provides that “Government shall not substantially
burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-
1(a), unless application of the burden “is the least restrictive
means of furthering [a] compelling governmental interest,” id.
§ 2000bb-1(b)(2). “Government” is defined as “a branch,
department, agency, instrumentality, and official (or other
person acting under color of law) of the United States.” Id. §
2000bb-2(1). The petitioners maintain that the relocation of St.
Johannes Cemetery would substantially burden the religious
exercise of some of the petitioners by interfering with a sacred
site of worship and with the physical resurrection of those buried
there. In approving a new O’Hare ALP that would require the
cemetery’s relocation as eligible for federal funding, the FAA
violated RFRA, petitioners contend, because the FAA did not
demonstrate that Alternative C (even as modified) is the least
restrictive means of furthering the governmental interest in
increasing capacity and reducing delay.

      As the FAA is undeniably an “agency . . . of the United
States,” id. § 2000bb-2(1), it is prohibited from substantially
burdening a person’s exercise of religion except when it can
meet the compelling interest test. Whether that prohibition is
implicated, however, depends on whether the FAA’s approval
of the City’s ALP is properly characterized as the source of what
the petitioners contend is a substantial burden placed on the free
exercise of religion.2 The City, as intervenor, in addition to
objecting that its plan does not burden petitioners under First
Amendment precedent, contends that the relocation of the


        2
          The City maintains that there is no burden on petitioners
under relevant First Amendment precedent. See, e.g., Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450
(1988). We need not decide that question, but will assume for
purposes of our analysis that the relocation of St. Johannes Cemetery
imposes a substantial burden.
                                 10

cemetery does not implicate RFRA because the City, not the
FAA, is responsible for the imposition of the claimed burden on
religious exercise. Although “[i]ntervenors may only argue
issues that have been raised by the principal parties,” and the
petitioners object that the City’s contention that RFRA is not
implicated by the FAA’s action is not properly before this court,
the court retains “discretion [to] entertain arguments raised only
by an intervenor on review if they have been ‘fully litigated in
the agency proceedings and [are] potentially determinative of
the outcome of judicial review.’” Nat’l Ass’n of Regulatory
Util. Comm’rs v. ICC, 41 F.3d 721, 729-30 (D.C. Cir. 1994)
(quoting Synovus Fin. Corp. v. Bd. of Governors of the Fed.
Reserve Sys., 952 F.2d 426, 433 (D.C. Cir. 1991)). The court is
particularly solicitous of intervenors’ arguments in cases in
which the intervenor’s success before the agency forecloses it
from petitioning for review and the issue raised logically
precedes the issues in dispute between the principal parties. See
id. at 730. The City, and the issue it raises, satisfy those criteria.
The court, therefore, will consider the FAA’s responsibility for
the burden on religious exercise.

     To determine whether the burden on religious exercise can
be properly attributed to the FAA, the petitioners suggest that
the court look to the fact that the FAA’s role in approving the
ALP constitutes a “major Federal action[]” for purposes of
NEPA. 42 U.S.C. § 4332(C); see 40 C.F.R. § 1508.18(b)(4).
From this perspective, because the FAA must answer for the
effects of its decision on the environment, it must also answer
for the effects on religious exercise. NEPA broadly applies to
all “projects and programs entirely or partly financed, assisted,
conducted, regulated, or approved by federal agencies.” 40
C.F.R. § 1508.18(a). “Major Federal action” is defined to
“includ[e] actions with effects that may be major and which are
potentially subject to Federal control and responsibility,”
“includ[ing] the circumstance where the responsible officials fail
                               11

to act.” Id. § 1508.18. Applying NEPA’s sweeping definitions
would undoubtedly subject the FAA’s approval of the City’s
ALP and its intention to provide partial funding for the O’Hare
expansion to the strictures of RFRA.

     This approach has some facial appeal. In aviation, as in
many fields, the federal government plays a significant role. Cf.
Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944).
The Illinois legislature noted as much when endorsing the
O’Hare expansion plan in “recogniz[ing] that . . . the planning,
construction, and use of the O’Hare Modernization Program will
be subject to intensive regulatory scrutiny by the United States
and that no purpose would be served by duplicative or redundant
regulation of the safety and impacts of the airport or the O’Hare
Modernization Program.” 620 ILL. COMP. STAT. 65/5(a)(8)
(2003). Given the FAA’s authority to guide airport development
nationwide, one might be tempted to use NEPA to hold the FAA
accountable for nearly every aspect of development at the
airports that it regulates. But the Supreme Court has instructed
that “courts must look to the underlying policies or legislative
intent in order to draw a manageable line between those causal
changes that may make an actor responsible for an effect and
those that do not.” Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 774 n.7 (1983). Under that analysis, it
becomes clear that NEPA’s broad application is ill-suited to
RFRA’s statutory regime.

     Although RFRA speaks broadly of “government,” with
RFRA Congress intended to “restore” the standard by which
federal government actions burdening religion were to be
judged, see 42 U.S.C. § 2000bb(b)(1); City of Boerne, 521 U.S.
at 532, not to expand the class of actions to which the standard
would be applied, see Hall v. Am. Nat. Red Cross, 86 F.3d 919,
921 (9th Cir. 1996) (quoting S. REP. NO. 103-111, at 12, as
reprinted in 1993 U.S.C.C.A.N. at 1901). The Senate Judiciary
                               12

Committee reported that “the purpose of [RFRA] is only to
overturn the Supreme Court’s decision in Smith,” not to
“unsettle other areas of the law.” S. REP. NO. 103-111, at 12, as
reprinted in 1993 U.S.C.C.A.N. at 1902. RFRA was not meant
to “expand, contract or alter the ability of a claimant to obtain
relief in a manner consistent with the Supreme Court’s free
exercise jurisprudence under the compelling governmental
interest test prior to Smith.” Id. To the extent RFRA was
designed to restore a legal standard rather than to extend the
compelling interest test to the far reaches of government
activities, importing NEPA’s applicability into RFRA would
give the statute far greater breadth than Congress ever intended.
See Hall, 86 F.3d at 921.           Moreover, to do so would
fundamentally recast federal-state relations in a manner that
Congress has yet to indicate that it intended.

     RFRA was enacted to reestablish a constitutional test with
the expectation that courts would look to constitutional
precedent for guidance. See S. REP. NO. 103-111, at 8, as
reprinted in 1993 U.S.C.C.A.N. at 1898. The petitioners can
point to no indication of a contrary expectation and we have
found none. Given that background, it is not surprising then that
the proper inquiry is one classically reserved for constitutional
jurisprudence. Whether the federal government can be
characterized as responsible for the relocation of St. Johannes
Cemetery under RFRA requires the same analysis normally
necessary to determine whether the FAA could be held
responsible for an alleged infringement of constitutional rights.
Cf. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). Modified
to apply to this inquiry, the question the court must decide is
whether “there is a sufficiently close nexus between the [federal
government] and the challenged action of [the City] so that the
action of the latter may be fairly treated as that of the [federal
government] itself.” Blum v. Yaretsky, 457 U.S. 991, 1004
(1982) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,
                                  13

351 (1974)). “The purpose of this requirement,” the Supreme
Court explains, “is to assure that constitutional standards are
invoked only when it can be said that the State [here, the FAA]
is responsible for the specific conduct of which the plaintiff
complains.” Id. Similarly, by conducting a state action inquiry
here, the court can assure that RFRA’s heightened standard is
only applied when it can be said that the federal government is
responsible for the burden on religious exercise. See Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 834-35 (9th Cir.
1999); see also Hall, 86 F.3d at 921-22.3


        3
           Our dissenting colleague, although agreeing the court must
look to pre-Smith Free Exercise Clause cases in determining RFRA’s
bounds, misreads those cases, stretching them beyond reason to
eliminate virtually any limit on RFRA’s application. Relying
primarily on pre-Smith cases barring “indirect” burdens on free
exercise, see Dissenting Op. at 4-5, the dissent fails to acknowledge
that the word “indirect” in those cases referred to the nature of the
burden imposed on religious exercise, not to the identity of the entity
imposing the burden. In Sherbert, the Supreme Court held that the
government’s denial of benefits to an individual because of conduct
demanded by her religious beliefs constituted a burden despite the fact
that the burden was only “an indirect result” as “no criminal sanctions
directly compel[led]” her to violate her religious beliefs. 374 U.S. at
403. “[T]he fact that no direct restraint or punishment [was]
imposed,” id. at 404 n.5, was immaterial because “the pressure upon
her to forego [her religious] practice [was] unmistakable,” id. at 404.
This view of what constitutes an “indirect” burden was confirmed in
Thomas v. Review Bd. of the Indiana Employment Security Division,
450 U.S. 707 (1981), in which the Court explained, “Where the state
conditions receipt of an important benefit upon conduct proscribed by
a religious faith, . . . thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a burden
upon religion exists. While the compulsion may be indirect, the
infringement upon free exercise is nonetheless substantial.” Id. at
717-18; accord Hobbie v.Unemployment Appeals Comm’n of Fla.,
480 U.S. 136, 141 (1987). These cases tell us that before Smith the
                                  14

     This case presents an unusual state action question because
the regulated party is a separate sovereign rather than a private
entity. Despite the rarity of this situation (inasmuch as federal
and state governments are generally bound by the same
constitutional standards), the analysis proceeds with the same
“necessarily fact-bound inquiry,” Lugar v. Edmonson Oil Co.,
457 U.S. 922, 939 (1982), as if the federal government were
regulating the decision of a private entity, with the City standing
in the place of a private party. See, e.g., Kitchens v. Bowen, 825
F.2d 1337 (9th Cir. 1987), cert. denied, 485 U.S. 934 (1988).4


government was not free to burden religious exercise through less
direct restraints than criminal sanctions or fines. They tell us nothing
about the constitutional values in play when such a restraint is
imposed by a third party who is, in turn, regulated by the government.
In the cited cases, there were only two actors: the government and the
individual protesting a burden on religious liberty. Therefore, pre-
Smith free exercise cases do not support creative exploitation of the
ambiguity of the word “indirect” to make the government responsible
for a burden imposed by another that the government does not lift.
        4
           Our colleague’s conclusion that the state action doctrine is
not useful in cases where the government is directly sued, see
Dissenting Op. at 2-3, is undermined by the Supreme Court’s use of
the state action inquiry not only to determine whether a third party’s
actions should be held to government standards, see, e.g., Moose
Lodge v. Irvis, 407 U.S. 163 (1972), but also to determine whether the
government, when challenged directly, should be held responsible for
the actions of a third party, see, e.g., Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961); Public Utils. Comm’n v. Pollak, 343
U.S. 451, 461-63 (1952); see also Kitchens v. Bowen, 825 F.2d 1337
(9th Cir. 1987). The dissent provides no alternative limiting principle,
concluding only that “indirect” burdens on religious exercise are
sufficient, see Dissenting Op. at 2, and that “approval” of a third
party’s actions constitutes an indirect burden, see id. at 5-6. In a
system of pervasive licensing and regulation by the federal
government, our colleague’s unbounded approach would mean that as
                                    15

     The Supreme Court has held that “[t]he mere fact that a
business is subject to state regulation does not by itself convert
its action into that of the State.” Jackson, 419 U.S. at 350.
Furthermore, “a State normally can be held responsible for a
private decision only when it has exercised coercive power or
has provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of the
State.” Blum, 457 U.S. at 1004. “Mere approval of or
acquiescence in the initiatives of a private party is not sufficient
to justify holding the State responsible for those initiatives . . .
.” Id. at 1004-05; see also Am. Mfrs. Mutual Ins. Co. v.
Sullivan, 526 U.S. 40, 52 (1999); Moose Lodge v. Irvis, 407 U.S.
163, 177 (1972). The receipt of public funds, even of “virtually
all” of an entity’s funding, is not sufficient to fairly attribute the
entity’s actions to the government. See Rendell-Baker, 457 U.S.
at 840-41 (citing Blum, 457 U.S. at 1011).

     In analyzing whether the alleged burden on religious
exercise is fairly attributable to the FAA, we “begin[] by
identifying ‘the specific conduct of which the plaintiff
complains.’” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 51 (quoting
Blum, 457 U.S. at 1004). The specific conduct that the
petitioners challenge is the seizure and relocation of St.
Johannes Cemetery. Consequently, the court must decide



individuals whose religious exercise was burdened by private parties
grasped for a federal decision somewhere in the vicinity they could
deem to be the “indirect” cause of the burden, every federal licensee
would become the state for purposes of RFRA, as the government
through its inaction granted “approval” to their decisions. The specter
of endless application of strict scrutiny to private actions will not be
illusory if those potential plaintiffs are as willing as the dissent to label
government involvement as “extensive[],” id. at 1, or “intense[],” id.
at 7, even when the private party invents, designs, advocates, and
implements the action that imposes the burden on free exercise.
                               16

whether the FAA’s role in the potential disinterment at St.
Johannes is “[m]ere approval of or acquiescence in” the City’s
plan or whether the FAA “has exercised coercive power or has
provided such significant encouragement, either overt or covert,
that the choice must in law be deemed to be that of the [FAA].”
Blum, 457 U.S. at 1004. Fairly characterizing the level of
federal governmental involvement can be accomplished “[o]nly
by sifting facts and weighing circumstances.” Moose Lodge,
407 U.S. at 172. “[A]bsent government coercion or significant
government encouragement of the measure under inspection,”
Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577,
1581 (D.C. Cir. 1984), the Supreme Court has held that the
federal government may not be held responsible for a measure
taken by a private actor.

    In Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190
(D.C. Cir. 1991), this court quoted an EIS that described the
FAA’s role in airport development:

         In the present system of federalism, the FAA does not
         determine where to build and develop civilian airports,
         as an owner/operator. Rather, the FAA facilitates
         airport development by providing Federal financial
         assistance, and reviews and approves or disapproves
         revisions to Airport Layout Plans at Federally funded
         airports. Id. at 197.

That quotation accurately depicts the FAA’s involvement here,
where it reported that “[t]he FAA did not design the [ALP], nor
can it compel the City to implement some or all of it.” If the
owner or operator proposing to modify an airport’s layout wants
to qualify for federal funding, certain requirements must be met.
Under the AAIA, ALPs must “be in a form the [FAA]
prescribes,” 49 U.S.C. § 47107(a)(16)(A), and the airport’s
operator may “not make or allow any alteration in the airport or
                               17

any of its facilities if the alteration does not comply with the
plan the [FAA] approves,” id. § 47107(a)(16)(C); see also
Communities Against Runway Expansion, 355 F.3d at 681.
Therefore, if the City wishes to receive any federal funding, it
cannot relocate the cemetery without the approval of the FAA.

     But the FAA’s peripheral role in the City’s relocation of St.
Johannes is not sufficient to hold the agency responsible for
purposes of RFRA. Even under NEPA, “a ‘but for’ causal
relationship is insufficient to make an agency responsible for a
particular effect.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.
752, 767 (2004). The City — not the FAA — is the cause of
any burden on religious exercise because of its role as inventor,
organizer, patron, and builder of the O’Hare expansion. The
City designed the ALP with its attendant impact on the
cemeteries. The City submitted the plan to the FAA to retain
O’Hare’s eligibility for federal funding. Before the FAA, the
City fought for approval of its plan. The City will provide the
lion’s share of the funding for the modernization project; the
federal government will cover only twelve percent of the cost of
Phase I. The City intends to provide all of the funding through
other sources if the federal funds are not forthcoming. And at
the end of the day, the City will carry out the seizure and
physical relocation of St. Johannes Cemetery.

     Our dissenting colleague would find that the FAA did more
than merely approve the ALP because of its thorough
consideration of alternatives pursuant to NEPA. See Dissenting
Op. at 6-7. It is true that the FAA was careful in reviewing the
harms to the environment and the benefits to the flying public of
approving the City’s plan. But the measured approach the FAA
took in approving the City’s ALP does not make the City’s plan
an action of the federal government. The Supreme Court has
never held that the government becomes responsible for the
actions of a third party due to the length or intensity of its
                                   18

attention to the actions of the party before approval. Now that
the FAA has approved the ALP, the FAA has no authority to
demand that the City build the projects described therein.
Earlier in the process, there is no indication that the FAA
“exercised coercive power” or “provided . . . significant
encouragement,” Blum, 457 U.S. at 1004, that provoked the City
to choose a plan that would harm the cemetery. Indeed, the only
significant modification to the ALP encouraged by the FAA was
the rescue of Rest Haven Cemetery spurred by the FAA’s
assumption that it was bound by RFRA. Had this course of
events played out differently, with the FAA ordering the change
responsible for the burden or playing some greater role in the
design of the ALP, perhaps there might be a valid claim under
RFRA. But that level of responsibility is not present here.5

     To the contrary, the FAA’s role as regulator is similar to
that in many cases where the Supreme Court has declined to find


        5
            In focusing on the fact that RFRA extends without limit
because it “applies to all federal law, and the implementation of that
law,” 42 U.S.C. § 2000bb-3(a), and that the FAA’s approval of the
City’s ALP as eligible for federal funding was “implementation of” a
federal statute, the AAIA, the dissent begs the question whether the
FAA’s approval can be fairly characterized as responsible for the
burden designed and imposed by the City. At no point does the
dissent grapple with the question “whether government has placed a
substantial burden on the observations of a central religious belief or
practice,” Hernandez v. CIR, 499 U.S. 677, 699 (1989), or whether
some other actor should bear the blame for that burden. Rather than
“try[ing] to plot a line between state action subject to . . . scrutiny and
private conduct (however exceptional) that is not,” Brentwood
Academy v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288, 295
(2001), the dissent has eviscerated that line in toto. Fortunately, the
Supreme Court has applied the state action inquiry in a number of
contexts, noting that “examples may be the best teachers,” id. at 296,
providing this court with guidance with which to address this question.
                                 19

state action. See, e.g., Rendell-Baker, 457 U.S. at 841-42. For
instance, in Moose Lodge, 407 U.S. 163, the Court held that a
state’s issuance of a liquor license to a private club was
insufficient to attribute the club’s refusal to serve an
African-American to the state. See id. at 176-77. And in
Jackson v. Metropolitan Edison Company, the Court held that
the state’s utilities commission was not sufficiently connected
with a privately owned utility’s decision to terminate electric
service to apply constitutional standards. See Jackson, 419 U.S.
at 358-59. The Supreme Court observed that “governmental
regulation of private utilities is such that a utility may frequently
be required by the state regulatory scheme to obtain approval for
practices a business regulated in less detail would be free to
institute without any approval from a regulatory body,” and that
approval “where the commission has not put its own weight on
the side of the proposed practice by ordering it, does not
transmute a practice initiated by the utility and approved by the
commission into ‘state action.’” Id. at 357. “At the most,” the
Court labeled the commission’s action a “failure to overturn this
practice” that gave the utility the freedom to decide whether to
employ it. Id. Similarly, despite the FAA’s broad regulatory
power to approve ALPs as an incident to determining a
development project’s eligibility for federal funding, the City’s
“exercise of the choice allowed by [the FAA] where the
[challenged] initiative comes from [the City] and not from the
[FAA] does not make its action in doing so ‘state action.’” Id.
(citation omitted).

     In analyzing cases in which the Supreme Court found no
state action in the choices of heavily regulated entities, this court
found critical “the interposition of the independent judgment of
a private party between the act that allegedly resulted in a
constitutional deprivation and the decision of the state to accept
that decision and continue funding the private activities.”
Kolinske v. Lubbers, 712 F.2d 471, 480 (D.C. Cir. 1983). Here,
                                 20

it was the “conduct of [the City] exercising independent
judgment that yielded the contested result.” Id. Where the FAA
“cannot be said to in any way foster or encourage,” Moose
Lodge, 407 U.S. at 176-77, the burden on religious exercise, “the
simple device of characterizing the [FAA]’s inaction as
‘authorization’ or ‘encouragement,’” Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 164-65 (1979), is insufficient to justify
imposition of RFRA’s compelling interest test. See also Am.
Mfrs. Mut. Ins. Co., 526 U.S. at 53-54. The burden imposed on
religious exercise by the City’s choices with the mere approval
or acquiescence of the FAA does not require the FAA to
demonstrate a compelling interest. See Blum, 457 U.S. at 1004.

     Our dissenting colleague errs in concluding that mere
approval is sufficient to hold the government responsible for the
actions of a third party. It is plainly incorrect to state that “both
the Supreme Court and this [c]ourt held, prior to Smith, that a
federal agency’s approval can be the ‘source’ of a burden on
religious exercise.” Dissenting Op. at 5. In the cases cited by
the dissent – Lyng v. Northwest Indian Cemetery Protective
Ass’n, 485 U.S. 439 (1988), and Wilson v. Block, 708 F.2d 735
(D.C. Cir. 1983) – the courts held that the government action did
not constitute a burden on religious exercise within the meaning
of the First Amendment. Lyng, 485 U.S. at 447; Wilson, 708
F.2d at 745. Not even the quoted dicta from those decisions
supports the notion that government acquiescence in another
actor’s decision justifies finding that the government has
violated the Constitution. In Lyng, the federal government
proposed building a road and harvesting timber on federal land
where Indians traditionally practiced their religion. See Lyng,
485 U.S. at 442-43. The Supreme Court merely noted “that the
Government’s proposed actions will have severe adverse effects
on the practice of their religion.” Id. at 447. The Court never
addressed the question that the dissent claims that it did: whether
“approval by a federal agency of third party action can be
                               21

subject to a free exercise challenge.” Dissenting Op. at 6. And
the Court had no reason to do so, because the case had nothing
to do with “approval by a federal agency of a third party action.”
Lyng never mentions any party besides the government, because
“the Forest Service [would] build a 6-mile paved segment”
through the sacred area, id. at 442, and “the Forest Service
adopted a management plan allowing for the harvesting of
significant amounts of timber,” id. at 443. No third party was
involved.

     Similarly, Wilson involved a challenge to a federal
governmental decision about what to do with federal land.
There, the federal government proposed to allow private
interests to develop ski facilities on federal land used for
religious practice by several Indian tribes. See Wilson, 708 F.2d
at 738. This court merely noted that the “construction approved
by the [government] . . . will cause the plaintiffs spiritual
disquiet.” Id. at 742. Lyng and Wilson involved the
government’s use of its own land rather than the government’s
regulation of a third party’s use of the third party’s land.
Therefore, even if Lyng and Wilson had dealt with the question
of who was responsible for the burden on religious exercise
(which they did not), they would not apply here. The Supreme
Court “has never held that a [government]’s mere acquiescence
in a private action converts that action into that of the
[government].” Flagg Bros., 436 U.S. at 164. We decline our
dissenting colleague’s invitation to do so today.

    That the regulated party here is a government (i.e., a part of
a sovereign State,) heightens our hesitancy to apply RFRA’s
compelling interest test. To do so would subject the City’s
airport-building plans to “the most demanding test known to
constitutional law.” City of Boerne, 521 U.S. at 534. In this
case, state and local governments would again be hampered by
RFRA’s “intrusion into the States’ traditional prerogatives and
                               22

general authority to regulate for the health and welfare of their
citizens.” Id. In City of Boerne, the Supreme Court rejected
RFRA’s “intrusion at every level of government,” id. at 532,
observing that RFRA would exact substantial costs “both in
practical terms of imposing a heavy litigation burden on the
States and in terms of curtailing their traditional general
regulatory power,” id. at 534. Applying RFRA indirectly, by
forcing the FAA rather than the courts to curtail the state’s
traditional powers, would exact those costs just as surely as
applying RFRA directly to the states. Whether Congress might
exact those costs through its power to regulate commerce or
place conditions on federal spending is a question the court need
not decide because Congress has not attempted such a feat. See
O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir.
2003). If Congress seeks to alter so dramatically the balance of
power between states and the federal government, it must state
clearly its intention to do so. See Vermont Agency of Natural
Res. v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000);
Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991). Because the
relocation of St. Johannes Cemetery cannot be fairly attributed
to the actions of the FAA, the petitioners’ RFRA claim fails.

                              III.

     The petitioners also seek vacation of the Letter of Intent
expressing the FAA’s intention to obligate federal funds to carry
out the O’Hare expansion once the City submits grant
applications for approval. The petitioners contend the FAA
failed to make essential findings mandated by statute.

     To begin, the court must determine whether it has
jurisdiction to address a challenge to the LOI. See Citizens for
the Abatement of Aircraft Noise v. Metro. Wash. Airports Auth.,
917 F.2d 48, 53 (D.C. Cir. 1990). Section 46110(a) of the
AAIA provides that “a person disclosing a substantial interest in
                                 23

an order issued by the Secretary of Transportation . . . in whole
or in part under . . . part B . . . may apply for review of the order
by filing a petition in [this court].” A LOI is issued under Part
B. See id. § 47110(e). The question remains, however, whether
a LOI is an “order” at all, much less a final order subject to
judicial review.

     Few courts have had the opportunity to address what
constitutes an “order” under § 46110(a), but many, including
this one, see City of Rochester v. Bond, 603 F.2d 927, 932-33
(D.C. Cir. 1979), have interpreted the statutory section’s
predecessor, 49 U.S.C. § 1486 (1976). See Aerosource, Inc. v.
Slater, 142 F.3d 572, 577 (3d Cir. 1998) (collecting cases). In
doing so, the courts have concluded that an “order” must possess
the quintessential feature of agency decisionmaking suitable for
judicial review: finality. See Aerosource, 142 F.3d at 577-78;
see also City of Rochester, 603 F.2d at 932-33; Air Cal. v. Dep’t
of Transp., 654 F.2d 616, 622 (9th Cir. 1981). The Supreme
Court has explained:

         As a general matter, two conditions must be satisfied
         for agency action to be “final”: First, the action must
         mark the “consummation” of the agency’s
         decisionmaking process, Chicago & Southern Air
         Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
         (1948) — it must not be of a merely tentative or
         interlocutory nature. And second, the action must be
         one by which “rights or obligations have been
         determined,” or from which “legal consequences will
         flow,” Port of Boston Marine Terminal Assn. v.
         Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71
         (1970).

Bennett v. Spear, 520 U.S. 154, 177-178 (1997). Therefore, the
outcome of this inquiry depends upon the place of the LOI in the
                               24

FAA’s decisionmaking process and upon its precise legal effect.


     A LOI is an odd creature of statute that, unlike other more
definitive agency decisions, merely “stat[es] an intention to
obligate from future budget authority an amount.” 49 U.S.C. §
47110(e)(1). “A letter of intent . . . is not an obligation of the
Government . . . and the letter is not deemed to be an
administrative commitment for financing.” Id. § 47110(e)(3).
Instead, a LOI is a planning document that “establish[es] a
schedule under which the [FAA] will reimburse the sponsor for
the Government’s share of allowable project costs, as amounts
become available.” Id. § 47110(e)(1). It does not complete the
agency’s decisionmaking process, as the City is required to file
a further grant application for approval before the FAA will be
obligated to disburse the funds described in the LOI. See id. §
47105. Thus, not only is the funding decision contingent on
congressional appropriation, it also will require further
administrative process. It follows that the LOI is non-final
because it “does not itself adversely affect [the petitioners] but
only affects [their] rights adversely on the contingency of future
administrative action.” DRG Funding Corp. v. Sec’y of Hous.
and Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (quoting
Rochester Tel. Corp. v. United States, 307 U.S. 125, 130
(1939)).

     Moreover, the LOI is non-final because it does not impose
an obligation, deny a right, or otherwise fix some legal
relationship. See Reliable Automatic Sprinkler Co. v. Consumer
Prod. Safety Comm'n, 324 F.3d 726, 731 (D.C. Cir. 2003). The
statutory text is clear in this regard. When asked during oral
argument what the LOI meant to the City, counsel for the City
helpfully responded that it is a planning tool that enables the
City to approach financial partners for private funding for the
development plan. Although airports and their financiers may
                                 25

rely on LOIs as planning tools, this provides the court with no
basis to conclude that the LOI establishes a right or obligation
when the statute explicitly denies that the LOI is an “obligation”
or a “commitment.” Id. § 47110(e)(3). “Finality resulting from
the practical effect of an ostensibly non-binding agency
proclamation is a concept we have recognized in the past,” but
“if the practical effect of the agency action is not a certain
change in the legal obligations of a party, the action is non-final
for the purpose of judicial review.” Nat’l Ass’n of Home
Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005). The LOI
has no effect absent two conditions precedent: FAA approval of
a further grant application by the City and congressional
appropriation of funds. The noncommittal language of § 47110
deprives a LOI of the force necessary to make it a final order
that may be judicially reviewed because it has no “direct and
appreciable legal consequences.” Bennett, 520 U.S. at 178.
Therefore, the court is without jurisdiction to review issuance of
the LOI under 49 U.S.C. § 46110.

     Even were the nature of the commitment evidenced by the
LOI such that the court could find that it had jurisdiction, the
petitioners’ injury is not redressable by a decision vacating the
LOI because the O’Hare ALP would go forward without the
LOI funds. “The redressability inquiry poses a simple question:
‘If plaintiffs secured the relief they sought, would it redress their
injury’?” Wilderness Soc. v. Norton, 434 F.3d 584, 590 (D.C.
Cir. 2006) (quoting Mountain States Legal Found. v. Glickman,
92 F.3d 1228, 1233 (D.C. Cir. 1996)) (alterations omitted).
Thus, for purpose of determining the petitioners’ standing, the
court must decide whether “the practical consequence of
[vacating the LOI] would amount to a significant increase in the
likelihood that [the petitioners] would obtain relief that directly
redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464
(2002). Or in concrete terms, would the City develop O’Hare as
planned without the $337 million in federal funding set forth in
                                26

the LOI?

     The petitioners maintain that the LOI funding is vital
because although the major airlines at O’Hare have agreed to the
Phase I business plan, the airlines’ final approval is contingent
on the City receiving $300 million in AIP discretionary funds.
Indeed, the FAA’s Inspector General reported, “If the AIP funds
are not granted, the City will have to renegotiate approval of
Phase 1 with the airlines.” That same report makes clear,
however, that “[i]f any shortfalls in funding or increases in
project costs materialize, the City has indicated it plans to make
up the funding/cost difference by issuing additional bonds.” The
FAA maintains that vacating the LOI would not affect the City’s
ability to complete the project because practically, the LOI funds
only represent a tenth of the funding of the Phase I Airfield, and
legally, nothing would preclude the City from buying the
property and asking for a federal reimbursement grant later. See
49 U.S.C. § 47110(c)(1); Respondent’s Br. at 72. Even if the
City were permanently deprived of federal funds, it could issue
more revenue bonds, which would increase its costs by a
relatively insignificant margin. Based on a number of studies of
the project’s financial feasibility, the FAA has determined that
removing the LOI funds would not imperil the project. The City
agrees, stating that other traditional sources of airport financing
are sufficient to fund the project even if the LOI funds are
withdrawn.

     Although the City’s agreement with the major airlines at
O’Hare might require further negotiations were the LOI vacated,
renegotiations with the airlines do not create “a significant
increase in the likelihood,” Utah v. Evans, 536 U.S. at 464, that
the project would be scuttled altogether rather than merely
delayed. The relatively minor role of the LOI dollars in funding
Phase I of the O’Hare expansion, the fact that the City could
return to the FAA for a grant in a new application, and the
                               27

existence of alternative sources of funding means that vacating
the LOI is unlikely to redress the petitioners’ injury. Therefore,
because the petitioners do not satisfy the redressability
requirement of Article III standing, the court cannot reach the
merits of their challenge to the LOI.

                               IV.

     Finally, the petitioners present a variety of administrative
law challenges to the FAA’s decisionmaking process. They
contend that the FAA (1) used stale and unreliable data in a
manner arbitrary, capricious, and contrary to law under the
Administrative Procedure Act, 5 U.S.C. §§ 701-706, and NEPA,
and (2) violated the Due Process Clause of the Fifth Amendment
by denying them fair decisionmaking procedures. Neither
contention has merit.

                               A.
     “A party seeking to have a court declare an agency action
to be arbitrary and capricious carries ‘a heavy burden indeed.’”
Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745
(D.C. Cir. 2001)(quoting Transmission Access Policy Study
Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). It must
show that the agency has failed to consider relevant factors, see
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971), has made a clear error in judgment, see id., or has
failed to “articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found and the
choice made,’” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).

    The petitioners contend that the FAA erred in using an
unreasonably short period of evaluation to gauge delay savings
                                28

benefits by ending its evaluation in 2018, just five years after the
project’s planned completion. They maintain that a five-year
time horizon is at odds with FAA Order 1050.1E, which states
that the FAA “usually select[s]” a timeframe lasting until “5 to
10 years after implementation.” Needless to say, a “build out
plus five year” timeframe is consistent with an order
recommending timeframes “5 to 10 years after implementation.”
But the petitioners also contend quite reasonably that a longer
timeframe is desirable for a project of this size and note that
longer time horizons have been used to assess other airport
development projects. They fail to note, however, that the
O’Hare modernization plan will take many years to complete,
naturally pushing any useful timeframe far into the future. As
it will take eleven years to complete the O’Hare project, the
FAA’s projection extends sixteen years into the future. The
FAA determined that predictions any further along would be of
questionable reliability, which would defy the FAA’s NEPA
obligation to determine “reasonably foreseeable” impacts. 40
C.F.R. §§ 1508.25(c); 1508.8. The petitioners present no
grounds on which the court could question that judgment. The
timeframe used was in keeping with FAA precedent and
reasonable under the circumstances.

     The petitioners also contend that the FAA should have used
the 2003 rather than the 2002 Terminal Area Forecast (“TAF”)
in its computer modeling. Using the more recent forecast,
according to the petitioners, would have demonstrated that the
ALP was ineffective in preventing delays from returning to
O’Hare. The 2002 forecast was the most recent available at the
time the FAA began its work. In the ROD, the FAA provided
three reasons for relying on the 2002 TAF: its belief in the
accuracy of the representation provided by the 2002 forecast, the
administrative necessity of cutting off new data at some point,
and its ability to take account of the 2003 and 2004 TAF
projections by other means. The record demonstrates that the
                                 29

FAA conducted analyses to determine how significantly
variations in the 2003 and 2004 TAFs would affect its modeling
and that it determined the variations would not affect its
conclusions. However desirable it may be for agencies to use
the most current and comprehensive data available when making
decisions, the FAA has expressed its professional judgment that
the later data would not alter its conclusions in the EIS or the
approval of Alternative C, and it is reasonably concerned that an
unyielding avalanche of information might overwhelm an
agency’s ability to reach a final decision. Cf. W. Coal Traffic
League v. ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984). The
method that the FAA chose, creating its models with the best
information available when it began its analysis and then
checking the assumptions of those models as new information
became available, was a reasonable means of balancing those
competing considerations, particularly given the many months
required to conduct full modeling with new data.

     Similarly, there is no merit to the petitioners’ claims that the
FAA improperly relied on other outdated information. The
petitioners contend that the FAA used outdated airport operating
procedures to construct its base case, rendering its comparison
of alternatives invalid. But as the FAA explains, these
operational procedures remain in place.                The FAA’s
assumptions regarding airline behavior in response to the
restrictions are typical of the predictive judgments to which
courts defer and the petitioners fail to show that they were not
reasonable. See Public Utils. Comm’n of Cal. v. FERC, 24 F.3d
275, 281 (D.C. Cir. 1994). The petitioners also contend that the
FAA should have altered its baseline forecast to account for
delay improvements caused by the FAA’s 2004 scheduling order
limiting the number of flights at O’Hare. The FAA reasonably
explains that it did not use those numbers in the base case
because they did not appear until after the FAA began its
analysis and because it would be inappropriate to choose as the
                               30

baseline a set of conditions only achieved by imposing limits
that Congress has deemed to be detrimental to the public
interest. See 49 U.S.C. § 47101(a)(9). Again, these judgments
regarding the development of the baseline against which
alternatives would be assessed are the sorts of expert analytical
judgments to which courts typically defer. See Public Citizen,
Inc. v. FAA, 988 F.2d 186, 196-97 (D.C. Cir. 1993). The
petitioners have not provided any ground to doubt the
reasonableness of those judgments in this instance.

      The petitioners further contend that the FAA established an
unprecedented acceptable delay level of fifteen minutes that
made Alternative C appear better than it is at reducing delays.
To begin, the petitioners fail to point out where the FAA
determines that fifteen minute delays are acceptable. Perhaps
the petitioners are referring to the fact that, in comparing the
“No Action” alternative to other alternatives, the “No Action”
alternative was constrained so as to produce between fifteen and
eighteen minutes of delay. The FAA explained that such
constraints were necessary to generate comparative operational
and environmental impacts. The petitioners present nothing to
call this judgment into doubt, and given the deference accorded
the FAA in forecasting air transportation demand and capacity,
see City of Olmstead Falls v. FAA, 292 F.3d 261, 272 (D.C. Cir.
2002), the court concludes that the FAA was neither arbitrary
nor capricious in establishing this baseline.

    This litany of arbitrary and capricious challenges is
thoroughly rebutted by the FAA, which appears to have acted
with great care in conducting its analyses for the EIS and ROD.
Without more from the petitioners, the court has no basis to
conclude that the FAA’s methods were less than rational.

                           B.
    Invoking the Fifth Amendment’s Due Process Clause, the
                                31

petitioners assert that the FAA denied it a right to a fair hearing
in several ways: by creating financial incentives that drive FAA
employees and officials to approve runway projects, by
employing individuals who formerly worked for the City or its
consultants, and by withholding thousands of documents that
would help them establish this procedural misconduct. Like the
FAA, the court has difficulty responding to these assertions
because they are vague and conclusory, and the petitioners’
failure to provide any greater detail in their reply brief suggests
the weakness of these claims. Clearly, “administrative decisions
made by adjudicators with a pecuniary interest in the results of
the proceeding may suffer reversal,” Jonal Corp. v. District of
Columbia, 533 F.2d 1192, 1197 (D.C. Cir. 1976) (citing Gibson
v. Berryhill, 411 U.S. 564, 579 (1973), and Tumey v. Ohio, 273
U.S. 510 (1927)), but what the petitioners describe appears to be
a fairly standard performance-based compensation system and
the FAA has advised that its bonuses are not directly linked to
individual performance or runway approvals. See Respondent’s
Br. at 61-62. As to the claim that some FAA employees
formerly worked for the City or its consultants, the petitioners
do not identify a single employee who might have such a
conflict of interest from prior employment, so the court cannot
determine whether their role in FAA decisionmaking was central
enough to question the integrity of the process. Both of these
claims of employee bias “fall[] far short of demonstrating that
the [FAA] had ‘a fixed opinion—a closed mind on the merits of
the case.’” Pharaon v. Bd. of Governors of Fed. Reserve Sys.,
135 F.3d 148, 155 (D.C. Cir. 1998) (quoting Throckmorton v.
NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992)) (internal quotation
marks omitted). Regardless, “[c]laims of bias must ‘be raised as
soon as practicable after a party has reasonable cause to believe
that grounds for disqualification exist,’” id. (quoting Marcus v.
Dir., Office of Workers' Comp. Programs, 548 F.2d 1044, 1051
(D.C. Cir. 1976)), and it does not appear that petitioners raised
these claims before the agency, thus waiving them here. Finally,
                              32

as to the petitioners’ assertion that the FAA has withheld
thousands of documents, they point to nothing in the record to
justify this claim. In addition, the voluminous administrative
record, much of which includes specific responses to points
raised by the petitioners, their lawyers, and their consultants,
belies the claim that they have been denied “a reasonable
opportunity to know the claims of the opposing party and to
meet them.” Morgan v. United States, 304 U.S. 1, 18 (1938).

    Accordingly, we deny the petitions for review.
     GRIFFITH, Circuit Judge, concurring in part and
dissenting in part.

     Although the Federal Aviation Administration (“FAA”)
has conceded that the plan it screened, studied, chose,
modified, and approved would substantially burden
petitioners’ religious exercise, the majority nevertheless
concludes that the FAA’s involvement in the relocation of St.
Johannes Cemetery is “peripheral” and “not sufficient to hold
the agency responsible for purposes of RFRA [the Religious
Freedom Restoration Act].” Maj. Op at 16-17. The majority
reaches this result after an extensive analysis of cases
addressing when a party may be treated as a state actor. The
majority presses these “state action” cases into service to
determine that a federal agency need not consider an
individual’s free exercise rights under RFRA even though it is
extensively involved in a state or local project. See Maj. Op.
at 12-13 (citing Sutton v. Providence St. Joseph Med. Ctr.,
192 F.3d 826, 834-35 (9th Cir. 1999) and Hall v. Am. Nat’l
Red Cross, 86 F.3d 919, 921 (9th Cir. 1996)).

    RFRA, however, requires an altogether different analysis.
By its plain terms, RFRA mandates that we use the free
exercise jurisprudence decided before Employment Division v.
Smith, 494 U.S. 872 (1990), to determine whether the FAA’s
actions burden religious exercise. See 42 U.S.C.
§ 2000bb(a)(4)-(5), (b)(1).1 These cases establish that free


       1
           Section 2000bb of Title 42, U.S. Code, provides:

       (a) Findings. The Congress finds that—

                              ***
                               2

exercise rights may be violated where the federal government
directly—or indirectly—burdens religious exercise. Although
the majority’s approach may have some value where a
petitioner attempts to bring a non-federal entity within reach
of RFRA—as was the case in Sutton, where an employee
brought a RFRA claim against a private hospital, and Hall,
where an employee brought a RFRA claim against the Red
Cross—petitioners here have not brought suit against the City
of Chicago or any other non-federal entity. Petitioners do not
claim that the City of Chicago is “subject to suit under”
RFRA because its “alleged infringement of federal rights [is]
fairly attributable to the [FAA],” Sutton, 192 F.3d at 835, or
that the City of Chicago should be “considered [a]
government actor[] under the First Amendment” because it
has “a sufficient structural or functional nexus to the [FAA],”


           (4) in Employment Division v. Smith, 494 U.S. 872
           (1990) the Supreme Court virtually eliminated the
           requirement that the government justify burdens on
           religious exercise imposed by laws neutral toward
           religion; and

           (5) the compelling interest test as set forth in prior
           Federal court rulings is a workable test for striking
           sensible balances between religious liberty and
           competing prior governmental interests.

       (b) Purposes. The purposes of this chapter are—

           (1) to restore the compelling interest test as set forth
           in Sherbert v. Verner, 374 U.S. 398 (1963) and
           Wisconsin v. Yoder, 406 U.S. 205 (1972) and to
           guarantee its application in all cases where free
           exercise of religion is substantially burdened . . . .
                               3

Hall, 86 F.3d at 921. Rather, petitioners challenge actual and
concrete action by the FAA. See Pet.’s Br. at 9 (“This case
involves challenges to two separate and distinct FAA
decisions.”).

     RFRA’s substantial reach encompasses both the FAA,
see 42 U.S.C. § 2000bb-2(1) (RFRA applies to an “agency . . .
of the United States”), and its required involvement with the
Airport Layout Plan under the Airport and Airway
Improvement Act, see id. § 2000bb-3(a) (RFRA “applies to
all federal law, and the implementation of that law, whether
statutory or otherwise”). Execution of this plan requires the
relocation of St. Johannes Cemetery, which the FAA concedes
will substantially burden petitioners’ religious exercise.
Despite the FAA’s concession, the majority contends that the
FAA is not the “source” of that substantial burden. See Maj.
Op. at 9.

    Where the party being challenged is the federal
government and the action at issue is the implementation of
federal law, RFRA itself tells us how to determine if the
federal government has burdened religious exercise: “the
compelling interest test as set forth in Sherbert v. Verner, 374
U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972).” 42 U.S.C. § 2000bb(b)(1).            As the majority
acknowledges, we must turn to pre-Smith free exercise cases
to apply RFRA. See Maj. Op. at 11-12 (“RFRA was not
meant to ‘expand, contract or alter the ability of a claimant to
obtain relief in a manner consistent with the Supreme Court’s
free exercise jurisprudence under the compelling
governmental interest test prior to Smith.’”) (quoting S. Rep.
No. 103-111, at 12, as reprinted in 1993 U.S.C.C.A.N. at
1901). This is the very approach taken by our Court and other
courts. See, e.g., Henderson v. Kennedy, 253 F.3d 12, 17
(D.C. Cir. 2001) (“[t]o our court, ‘substantial burden’ in
                                4

RFRA is what the Supreme Court had in mind in its pre-Smith
opinion in [Jimmy Swaggart Ministries v. Bd. of Equalization,
493 U.S. 378 (1990)]”); Droz v. C.I.R., 48 F.3d 1120, 1122
n.2 (9th Cir. 1995) (“[b]ecause the RFRA restored the test
used to consider free exercise challenges before Smith, we
rely on pre-Smith decisions under the Free Exercise Clause”).

     I am aware of no decision by the Supreme Court or this
Court that has declined to apply a free exercise analysis to a
government actor extensively involved in the restraint of
religious exercise. Indeed, in Sherbert, the landmark case that
created the compelling interest test RFRA requires us to
follow here, the Supreme Court held even indirect burdens by
government can implicate the Free Exercise Clause:

    We turn first to the question whether the
    disqualification for benefits imposes any burden on
    the free exercise of appellant’s religion. We think it
    is clear that it does. . . . For ‘if the purpose or effect
    of a law is to impede the observance of one or all
    religions or is to discriminate invidiously between
    religions, that law is constitutionally invalid even
    though the burden may be characterized as being
    only indirect.’

Id. at 403-404 (quoting Braunfeld v. Brown, 366 U.S. 599,
607 (1961)) (emphasis added; footnote and alteration
omitted); see United Christian Scientists v. First Church of
Christ, Scientist, 829 F.2d 1152, 1166 n.67 (D.C. Cir. 1987)
(“Government is permitted, and at times required, to
accommodate religious practice when government itself,
directly or indirectly, places a burden on religious exercise.”)
(citations omitted and emphasis added). As the majority
concedes, Sherbert and the pre-Smith cases “tell us that . . .
the government was not free to burden religious exercise
                               5

through less direct restraints than criminal sanctions or fines.”
Maj. Op. at 13-14 n.3.

     Indeed, both the Supreme Court and this Court held, prior
to Smith, that a federal agency’s approval can be the “source,”
see Maj. Op. at 9, of a burden on religious exercise. In Lyng
v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439
(1988), the Supreme Court applied the Free Exercise Clause
to the U.S. Forest Service’s authorization of third party
commercial logging and road projects in areas allegedly
sacred to a Native American tribe. Id. at 451. The Court did
not hesitate to find that the Forest Service’s approval of
commercial logging caused harm to plaintiffs’ religious
exercise, id. at 447, 451. The Court stated that “the
Government’s proposed action will have severe effect on the
practice of [plaintiffs’] religion,” id. at 447 (emphasis added).
The Court found, however, that this burden did not trigger
strict scrutiny because it neither coerced plaintiffs into
violating their religious beliefs nor penalized them for their
religious exercise, id. at 449.

     In Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert.
denied, 464 U.S. 1056 (1983), we scrutinized the Forest
Service’s decision to grant a permit to private interests
seeking to expand and develop a ski area. Plaintiffs filed suit
and alleged that the proposed development would burden their
religious exercise by impairing “their ability to gather sacred
objects and conduct ceremonies.” Id. at 740. We concluded
that the Forest Service, in granting a permit for private
development, was responsible for the alleged burden on
religious exercise. See id. at 742 (the “construction approved
by the Secretary is, indeed, inconsistent with the plaintiffs’
beliefs, and will cause the plaintiffs spiritual disquiet”). We
ultimately found, however, that “such consequences [did] not
state a free exercise claim,” id. at 742, because they were
                                  6

insufficient to trigger strict scrutiny, id. at 745.

     Because the federal agency action in both Lyng and
Wilson consisted of approval of third party action, the
inescapable conclusion is that both the Supreme Court and
this Court have found such action to be the “source” of a
burden on religious exercise. That is, approval by a federal
agency of third party action can be subject to a free exercise
challenge.

     Thus I cannot accept the majority’s premise that the
FAA’s conduct here does not impose the type of burden on
petitioners’ religious exercise that RFRA was enacted to
address, especially considering that the FAA’s actions go
beyond the mere approval found sufficient in Lyng and
Wilson. The FAA initially “screened” fifteen alternative
development proposals, Resp.’s Br. at 8, eventually selecting
four alternatives “for more intensive study,” id. at 11. The
FAA, in its own words, then “conducted extensive public
outreach and coordination with other governmental and non-
governmental entities,” id., and an “intensive, nine-month
review” that involved over one-hundred modeling
experiments, id. at 13. From the four remaining alternatives,
one of which did not require the relocation of St. Johannes
Cemetery, the FAA, as stated in its brief, “chose Alternative C
as its preferred alternative”—an alternative that required the
relocation of not only St. Johannes but also Rest Haven,
another nearby cemetery, id. at 14-15 (emphasis added). The
FAA then “examined” thirteen additional alternative
proposals—eight submitted by petitioners and five created by
the FAA itself—that would “avoid or minimize the effects”
on the cemeteries, id. at 15-16. The FAA rejected all of these
alternatives and instead, as recited in its brief, “issued a
proposed resolution that would modify Alternative C so that
only St. Johannes but not Rest Haven would have to be
                                7

relocated,” id. at 17 (emphasis added). Accepting its own
modification, the FAA approved this new version of
Alternative C in a 492-page Record of Decision. Id. at 19.
Thus, by its own admission, the FAA screened, studied,
chose, modified, and eventually approved the plan to relocate
St. Johannes Cemetery.        Contrary to the majority’s
suggestion, the FAA’s involvement here can hardly be said to
be “mere approval or acquiescence” in another actor’s
decisions, Maj. Op. at 20.

     The FAA’s requirement that St. Johannes Cemetery be
relocated in order for the project to go forward causes a
burden on religious exercise just as surely as the denial of
benefits in Sherbert, 374 U.S. at 403-404, the approval of
commercial logging in Lyng, 485 U.S. at 447, 451, and the
approval of private development in Wilson, 708 F.2d at 742.
The FAA’s extensive involvement in the plan to relocate St.
Johannes Cemetery would not have escaped the reach of the
Free Exercise Clause before Smith and should not escape the
reach of RFRA now.

     The majority claims that this approach is “unbounded”
and would mean that an “individual[] whose religious
exercise [is] burdened by private parties” would “grasp[] for a
federal decision somewhere in the vicinity [she] could deem
to be the ‘indirect’ cause of the burden” and that “every
federal licensee would become the state for purposes of
RFRA, as the government through its inaction granted
‘approval’ to their decisions.” Maj. Op. at 14 n.4. The
“unbounded approach” the majority decries is a straw man of
its own making, stuffed and dressed and tied together with
hypothetical scenarios that may justifiably raise alarms in
other settings, but not here, not on the facts of this case. Here,
the federal government was intensely involved in the plan to
relocate St. Johannes Cemetery. That involvement was not a
                               8

mere “federal decision somewhere in the vicinity” nor was it
“the government through its inaction grant[ing] ‘approval’.”
The FAA approved a plan that it had screened, studied, chose,
and modified—a plan that it concedes substantially burdens
petitioners’ religious exercise. Such actions, no less than the
actions by the Government in pre-Smith cases, entitle
petitioners to the protection of RFRA and require us to review
the FAA’s actions through the lens of strict scrutiny.

     Under RFRA’s strict scrutiny test, the government must
demonstrate a “compelling governmental interest,” and use
the “least restrictive means” of furthering that interest. 42
U.S.C. § 2000bb-1(a), (b). Here, the FAA advances two
compelling interests: delay reduction and increased capacity.
The FAA claims that its “Preferred Alternative,” which
requires the relocation of St. Johannes Cemetery, would
produce the greatest delay reduction and increased capacity.
Petitioners proffered several alternatives that they claim
would achieve those same interests while saving St. Johannes
Cemetery. For example, they argued that shifting one runway
350 feet would preserve the cemetery and still achieve the
FAA’s objectives.

     Under the demands of strict scrutiny, when “a plausible,
least restrictive alternative is offered . . . , it is the
Government’s obligation to prove that the alternative will be
ineffective to achieve its goals.” United States v. Playboy
Entm’t Group, 529 U.S. 803, 816 (2000). “A governmental
body that imposes a ‘substantial’ burden on a religious
practice must demonstrate, and not just assert, that the
[decision] at issue is the least restrictive means of achieving a
compelling governmental interest.” O’Bryan v. Bureau of
Prisons, 349 F.3d 399, 401 (7th Cir. 2003).

    The FAA offered only conclusory responses to
                              9

petitioners’ proposed alternatives. The FAA, however, must
“show with . . . particularity how its admittedly strong
interest[s] . . . would be adversely affected by” the various
alternatives that would spare St. Johannes Cemetery from
relocation. See Yoder, 406 U.S. at 236 (emphasis added).
Without such a showing, we cannot determine if any of these
alternatives are a less restrictive means of satisfying the
FAA’s compelling interests. Thus, I would remand this case
to the FAA to make such a showing.

     Today, the majority holds that a federal agency’s intense
involvement in a plan that substantially burdens religious
exercise does not create a burden recognizable under RFRA.
I find it difficult to reconcile this outcome with either the
plain language of RFRA or the free exercise jurisprudence
that guides its interpretation. In enacting RFRA, Congress
intended to reach “all cases where free exercise of religion is
substantially burdened” by the Federal Government, 42
U.S.C. § 2000bb(b)(1) (emphasis added), with the purpose of
“restor[ing] the compelling interest test” established in
Sherbert and Yoder, id. The majority’s holding today
improperly narrows the reach and frustrates the purpose of
RFRA. Accordingly, I respectfully dissent from Part II of the
Court’s opinion but otherwise concur.
