Less than two weeks ago, the United States Supreme Court took the first of several actions meant to close the door on what has become a standard in opposing citizens’ efforts to challenge the missteps of administrative agencies, i.e. Judicial Deference to agency decision-making. Specifically, Judicial Deference has guided the Courts into accepting an agency determination “based on a reasonable interpretation of an ambiguous statute Congress has tasked the Agency with implementing.” Chevron vs. NRDC, 467 U.S. 837 (1984).

On May 1, 2023, the Court agreed to accept certiorari in the case of Loper Bright vs. Raimundo in which herring fisheries challenged a regulation issued by the Marine Fisheries unit of the Commerce Department, requiring private payment by boat owners of monitors mandated by the agency to be located on individual fishing boats to prevent over-fishing In accepting the case for review, the Court, for the first time, agreed to confront the concept of Judicial Deference head-on.Continue Reading Supreme Court May Have Dealt Death Blow to Judicial Deference

In a split decision, the Ninth Circuit Court of Appeals rejected the FAA panel’s decision approving the construction of a new passenger terminal at Hollywood Burbank Airport based on a flawed Environmental Impact Statement (EIS). City of Los Angeles, California v. Fed. Aviation Admin., 63 F.4th 835 (9th Cir. 2023) [hereinafter City of Los Angeles]. The City of Los Angles had challenged the FAA’s decision approving the new terminal complex, parking structure, fire station, and maintenance and cargo buildings on two grounds. First, the City challenged the Environmental Impact Statement (EIS) based on fundamental flaws in the study. The second argument was that the FAA did not consider all reasonable alternatives such that the outcome was predetermined. The court rejected the second argument but found in favor of the City in the first argument. Accordingly, the court remanded the case back to the FAA panel since the plan failed to comply with the National Environmental Policy Act (NEPA). 

The court determined that the FAA had a fundamental flaw in the EIS because it failed to consider the reasonable possibility that equipment running simultaneously would have increased noise levels beyond the acceptable thresholds. Courts generally give deference to the FAA’s fully informed and well-considered decision. City of Los Angeles, 63 F.4th at 849 citing Audubon Soc’y of Portland v. Haaland, 40 F.4th 967 (9th Cir. 2022). However, the court is permitted to take a hard look at the EIS when the FAA relies upon incorrect assumptions or data. City of Los Angeles, 63 F.4th at 849-50 citing Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005). Here, the court determined that the EIS failed to account for the cumulative effects of the simultaneous equipment operation. Simultaneous equipment operation was not a remote possibility but a certainty. The FAA should have foreseen that equipment could operate simultaneously since project phases overlapped. Had the FAA made such adjustments, it would have increased the noise level in neighboring communities to a level that would have resulted in the project not being approved. Thus, the court determined that the FAA failed to meet its burden and a second look was warranted.Continue Reading Flawed Data in EIS Noise Calculation Requires the FAA to Take a Second Look at the Airport Development Project at Burbank

Since our February 1, 2023 blog, concerning the California Court of Appeals tentative decision in Make UC a Good Neighbor vs. Regents of Univ. of California, et al., that Court has taken the definitive step of confirming its tentative decision, on the critical ground that “UC Berkeley failed to assess potential noise impacts from

On March 9, 2023, the Ninth Circuit Court of Appeals granted the “Motion to Enforce Judgment” filed by co-Petitioners Cities of Los Angeles and Culver City (“Cities”) in City of Los Angeles, et.al. v. Stephen Dickson, et.al.  The Order found the Federal Aviation Administration (“FAA”) in blatant violation of the National Environmental Policy Act, 42

The U.S. Court of Appeals for the District of Columbia Circuit has, in its December 10, 2021 Opinion, Judicial Watch, Inc. v. United States Department of Justice, No. 20-5304, now cut short the federal government’s flagrant overuse of the fifth exemption from production of documents set forth in the Freedom of Information Act, 5 U.S.C. § 552, the so-called “deliberative process privilege.” That exemption from disclosure has been used by federal agencies, over the years, to deny requesters’ access to public documents, on the ground that those documents contain “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

In Judicial Watch, the D.C. Circuit specifically reiterated and adopted the factors the agency invoking the privilege must show, as originally set forth in Senate of Puerto Rico v. DOJ, 823 F.2d 574, 585-86 (D.C. Cir. 1987). These include “(1) ‘what deliberative process is involved,’” and “(2) ‘the role played by the documents in issue in the course of that process.’” Id., quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). In Judicial Watch, the Court added “to ‘assist the court in determining whether th[e] privilege is available,’ the agency should also explain (3) the ‘nature of the decisionmaking authority vested in the officer or person issuing the disputed document,’ and (4) the ‘relative positions in the agency’s chain of command occupied by the document’s author and recipient.’” Id. at 586.

The Court found none of those factors to have been addressed by the DOJ in Judicial Watch, and, consequently, remanded the case to the District Court “to review [the requested documents] in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative.”Continue Reading D.C. Circuit Court of Appeals Puts the Brakes on Federal Government’s Use of the “Deliberative Process Privilege” to Avoid FOIA Disclosure

On Thursday, July 8, 2021, the City of Culver City and its co-Petitioner, City of Los Angeles, prevailed in the case of City of Los Angeles, et.al. v. Stephen Dickson, et al. against the Federal Aviation Administration (“FAA”) on substantially all claims, an almost unprecedented outcome for local governments against a federal agency acting within its area of expertise. In that case, Petitioners challenged FAA’s failure to perform any environmental review, as required by the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”) before implementing changes in aircraft flight tracks that lowered altitudes and consolidated flight tracks over residential areas not previously overflown, resulting in continuing and vociferous community opposition. That challenge was brought in the U.S. Court of Appeals for the Ninth Circuit under its original jurisdiction, 49 U.S.C. § 46110, in the adjudication of challenges to FAA actions.

Because these operational changes were part of a larger national program of airspace changes called FAA’s NextGen project, aimed at reducing distances aircraft must fly on arrival to airports, Petitioners’ victory has implications for communities throughout the nation over which FAA has persisted in implementing flight track changes under the guise of the NextGen Project, in each and every case without the benefit of required environmental review.Continue Reading Buchalter Wins National Victory

Communities challenging, or considering a challenge, to the noise and other impacts from low-flying aircraft, enabled in new flight paths and altitudes by the Federal Aviation Administration’s (“FAA”) NextGen Initiative, may find some comfort in the knowledge that they are not alone. Communities from coast to coast, even including communities that are themselves airport proprietors, have recently joined the group of communities that earlier brought legal action against FAA to vindicate their citizens’ interests, some of which suits are only now approaching decision.

First chronologically, the City of Los Angeles, owner and operator of Los Angeles International Airport (“LAX”), brought suit in December 2019, in the United States Court of Appeals for the Ninth Circuit, challenging a southerly shift in flight tracks of departing aircraft from Bob Hope (Hollywood-Burbank) Airport, City of Los Angeles v. FAA, Case No.19-73164, alleging FAA either failed to review the revised flight paths under NEPA, or failed to take action required by law to ensure reasonable compliance with assigned flight tracks. In its opposition, FAA first argued that it is not responsible for the divergence from established flight tracks, but, rather, it is due to “Acts of God,” such as wind, weather, and flocks of birds. It was only months later, when FAA realized that excuse wouldn’t “fly,” that it assumed responsibility by claiming the need to “vector” aircraft off established flight tracks for safety purposes. After Court-supervised mediation efforts were unsuccessful, briefing was completed in September 2020, but no decision has been made by the Court to date. That case is not by any means the end of the story.Continue Reading Communities Challenging NextGen Are In Good Company

In a June 19, 2020 Findings of Fact, Conclusions of Law, and Judgment (“Judgment”), the District Court of Jefferson County, Colorado, in Board of Commissioners of Adams County v. City and County of Denver, recounted in detail the expert testimony offered by Adams County, that fatally undercuts the traditional reliance by the City of Denver, operator of Denver International Airport (“DIA”), and airport operators in general, on “noise modeling” in place of “noise monitoring” to determine the impacts of the aircraft noise on surrounding communities.

The Judgment exhaustively recounted evidence offered by Adams County, detailing the flaws in the noise modeling utilized by DIA to document compliance with the noise provisions of the “Intergovernmental Agreement [for a new airport], (‘IGA’),” originally entered into between the two parties on April 21, 1988, when the plan for development of the new Denver airport was being initiated.Continue Reading Colorado Court Judgment Finds Noise Modeling Significantly Understates Aircraft Noise

During the week of August 19, 2019, both the Appellate and Supreme Courts of California issued decisive opinions clarifying the parameters of agency action subject to environmental review under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq., (“CEQA”). The courts were responding to repeated efforts by public entities to circumvent their CEQA obligations by redefining the actions that constitute a “project” subject to analysis under CEQA. Those public entities which have attempted to so minimize their exposure under CEQA include several airports in California, most notably, Los Angeles International Airport (“LAX”). In its environmental review of the Specific Plan Amendment Study of several years ago, LAX relied on precisely the Project Definition soundly rejected by the California courts as set forth below.
Continue Reading California Courts Close Loopholes in Definition of “Project” Under CEQA

On June 21, 2019, the Supreme Court, in a decision by Chief Justice John Roberts, chose to overrule a lower Appellate Court and almost a century of precedent which purportedly required property owners whose property is “taken” by state or local government agencies, either through regulation or physical incursion, to go through local and state legal processes before turning to the federal courts for relief under the Fifth Amendment to the United States Constitution.

Under the new ruling in Knick v. Township of Scott, Pennsylvania, 588 U.S. ___ (2019), the court majority (consisting of Roberts, Alito, Gorsuch, Thomas and Kavanaugh) ruled that property owners may bring Fifth Amendment claims for compensation as soon as their property has been taken, “regardless of any post-taking remedies that may be available to the property owner,” citing Jacobs v. United States, 290 U.S. 13, 17 (1933), under state or local law.

The Fifth Amendment to the United States Constitution states categorically “nor shall private property be taken for public use, without just compensation.” The devil, of course, is in the definitions. The Supreme Court has broadened its interpretation of the term “taking” over the years, from “physical occupation of property,” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); to regulation that comes close to physical occupation by conditioning the grant of a government approval upon a relinquishment of some or all of property interest, e.g., an easement, over real property, Nollan v. California Coastal Commission, 483 U.S. 825 (1987); to a regulation that deprives property of all of its economically viable use, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

The dissent, however, chose to agree with the lower court and to rely on precedent purportedly establishing that: “‘[A] Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation’ (emphasis in original)). If the government has not done both, no constitutional violation has happened.” See, e.g., Horne v. Department of Agriculture, 569 U.S. 513, 525-26 (2013).

Based on the assertion that no taking has occurred if the possibility of compensation still exists, the dissent proceeds to the second question: “At what point has the government denied a property owner just compensation, so as to complete a Fifth Amendment violation?” Knick, supra, 588 U.S. at p. 3. The dissent found the answer in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), in which the court found that the property owner had improperly sued a local planning commission in federal court under 42 U.S.C. § 1983 for an alleged taking, before availing itself of available state law remedies.

The Knick majority firmly rejected the dissent’s position.Continue Reading Supreme Court Lightens Property Owners’ Procedural Burdens in “Taking” Cases