In an unusual alliance, the Southern California cities of Newport Beach and Laguna Beach, as well as Orange County, owner and operator of John Wayne Airport (“JWA”), joined with Culver City to challenge the adequacy of the Federal Aviation Administration’s (“FAA”) Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) for the Southern California Metroplex OAPM (“Project”). The Project is a redesign of the approaches and departures to and from more than a dozen Southern California airports. Its stated purpose is to enhance “safety and efficiency” by consolidating the various flight paths to and from these airports by using area navigation (“RNAV”), instead of ground based radar, which requires the use of “waypoints” that, in turn, require dispersion of the aircraft over large areas, and, consequently, the consumption of more fuel.
The various challenges are generally based on similar issues.
First is FAA’s conclusion of the insignificance of the Project’s noise impacts on populations surrounding airports. To reach that conclusion, FAA used the day-night average sound level (“LDN”) noise metric. LDN is in general use throughout the country except in California where FAA’s regulations require the use of the Cumulative Noise Equivalency Level (“CNEL”) metric. See, e.g., FAA Order 5050.4B, Chapter 1, § 9.n., p. 8. This is a critical difference because CNEL weights noise created between 7:00 p.m. and 10:00 p.m. by an additional 5 decibels, thus resulting in higher, and often more significant, noise levels than those resulting from the use of the LDN metric.
Second is the FAA’s use of the Noise Integrated Routing System (“NIRS”) noise model which FAA had deemed almost a year earlier to be superseded by the Aviation Environmental Design Tool (“AEDT”) model, see FAA Order 1050.1F, Appendix B, § B-1.4, p. B-3, and which FAA requires to be used in the evaluation of other projects involving airports.
Finally, FAA has failed to provide a supportable “cumulative impacts” analysis in that it fails to mention, let alone analyze, a number of “past, present, and reasonably foreseeable,” 40 C.F.R. § 1508.7, or even current actions including the implementation of the Los Angeles International Airport Specific Plan Amendment Study project that contemplates realignment of runways and taxiways to increase capacity, and, thus, the number of aircraft that will be subject to FAA’s airspace control.
Perhaps most surprising is the participation of Orange County, one of the few airport sponsors in the United States that has joined in such a challenge. This is because airports typically obtain the bulk of their development funds from the FAA, the same party Orange County is now challenging. While many airports registered negative comments on FAA’s processes in developing the Project, including: (1) the failure to meet with airports and communities affected before the initial issuance of the Draft EA; and (2) failure to perform a full Environmental Impact Statement (“EIS”) (“EIS”) rather than a FONSI, because of the airspace changes taking aircraft over communities that were not previously overflown, and the concomitant changes in noise and other impacts over those communities, none, except Orange County has courageously embarked on a legal challenge.
In summary, the cases, originally filed in the United States Court of Appeals for the Ninth Circuit, have now been transferred to the District of Columbia Circuit, and the litigation process barely begun. It is anticipated that other affected communities and public entities may attempt to intervene, or, at minimum, file amicus curiae briefs favoring the Petitioners’ positions. Stay tuned here for the latest news.