D.C. Circuit Court of Appeals Denies Petition for Review of FAA's "Presumed to Conform" Rule
On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.” 72 Fed.Reg. 41565 (July 30, 2007).
Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act to assure that its projects “conform to an implementation plan after it has been approved or promulgated under section 7410" of the Clean Air Act. 42 U.S.C. 7506(c). The FAA used its presumed to conform rule as one of the justifications for its failure to perform a conformity determination in the East Coast airspace redesign.
Although the Court found that the Petitioners did not have standing to bring the petition for review, the petition was successful in at least a couple regards. First, the decision was based on the predicate issue of standing, and did not reach the merits of the Petitioners’ argument that the FAA had not complied with federal law in the promulgation of its presumed to conform rule. Thus, that argument may be raised by the Petitioners in the East Coast airspace redesign litigation now pending before the D.C. Circuit.
Second, by bringing this case, Petitioners exhausted their legal remedies with respect to a "facial" challenge to the FAA's presumed to conform rule. The opinion in this case leaves the validity of the FAA’s presumed to conform rule on the table, ripe for the court’s consideration in the airspace redesign litigation.
That being said, the court’s opinion is not without error. For example, the court states that the “Petitioners challenge two recent FAA actions in which the FAA altered the air traffic control activities at airports . . .” Opinion, p.4. However, that, in fact, is not the case. As stated in the Petitioners’ brief, the issue was whether the FAA followed the rules set out by the EPA in 40 CFR 93.153 in promulgating its presumed to conform rule. By confusing the Petitioners’ facial challenge of the FAA’s presumed to conform rule for an “as applied” challenge, the court mistakenly applied incorrect facts and law to the matter that resulted in error in the outcome.
You can read the pleadings in this matter right here:
In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.
Other blog posts on this topic:
- "FAA's Presumed to Conform Rule Will Affect Communities Around Airports." Posted August 8, 2008.
Is there a similar standing issue in the Redesign case?
The FAA did not raise any standing issues in their brief in the Redesign case. At oral argument in this case, Judge Sentelle, who wrote the opinion, that he believed the Petitioners had standing in the Redesign case. In addition, in the Redesign case, there are not the same issues of causation and redressability that were present, according to the court, in the Presumed to Conform case. That being said, however, the court can raise standing on its own initiative.
Thanks. Will the Redesign case be heard by the same panel of judges that decided this case?
Two of the three judges slated to hear the Redesign case were part of the panel that heard the Presumed to Conform case. The Redesign panel will be Sentelle, (Douglas) Ginsburg, and Randolph. Sentelle and Randolph were on the Presumed to Conform panel (along with Judge Garland).
Two of the three judges slated to hear the Redesign case were part of the panel that heard the Presumed to Conform case. The Redesign panel will be Sentelle, (Douglas) Ginsburg, and Randolph. Sentelle and Randolph were on the Presumed to Conform panel (along with Judge Garland).