D.C. Circuit Court of Appeals Decides Against Challenge to East Coast Airspace Redesign

Posted on June 11, 2009 by Steven Taber

In a per curiam Abbreviated Disposition that will not be published, the U.S. Court of Appeals for the District of Columbia Circuit summarily denied 12 separately-filed petitions for review that questioned the legality of the Federal Aviation Administration’s Environmental Impact Statement for its East Coast Airspace Redesign. The matter, Rockland County v. Federal Aviation Administration, brought 12 lawsuits together that represented a multitude of petitioners from Delaware, Pennsylvania, New Jersey, New York, and Connecticut. The Court kicked all of the citizens’ complaints about the effect the Airspace Redesign would have on their environment to the curb, deferring to the FAA’s analysis.

The Court reached this conclusion without addressing many of the arguments that the Petitioners presented in their briefs and at oral argument. First, with respect to Petitioners’ argument that the EIS violated the National Environmental Policy Act, the court simply stated that it is deferring to the FAA’s reasoning that they did everything they needed to do. Not mentioned in the Court’s cursory and truncated analysis is the fact that the FAA has said that it will not implement the Night Routing part of the EIS’ “Preferred Alternative,” and the effect that failure will have on the environmental impacts of the Airspace Redesign.

Second, the Court also deferred to the FAA in deciding that the EIS sufficiently took into account the state and local parks and parklands that would be affected by the Airspace Redesign. The Court, states that the Petitioners should have engaged in a “battle of the experts” and should have “impugn[ed] the agency’s screening methodology.” Disposition, p.8. In most cases, impugning an agency’s methodology is looked upon in great disfavor by a court.

Finally, the Court decided that the Airspace Redesign fell within the de minimis exception of the Clean Air Act, thereby releasing the FAA from any requirement to perform any type of analysis as to the impact the project will have on the surrounding area’s air quality programs. The Court admitted that the FAA did not follow the procedures set forth by the EPA in 40 CFR 93.153, but the “fuel burn analysis” that the FAA did create was sufficient. This was true, the Court concluded, despite the fact that the “fuel burn analysis” was devoid of any mention of criteria pollutants or indirect emissions as required by EPA’s regulation 40 CFR 93.153. The Court went on to hold that any error that the FAA committed in not following the required air quality procedures was harmless error.

It is obvious why the Court does not want this decision published. It is rudimentary and lacking in analysis of many of the arguments presented by the Petitioners. Moreover, it is cursory in statements of law and fact. For example, on p. 10 of the Disposition, in a footnote, the court states:

The petitioners also argue that the fuel burn analysis failed to show the redesign will reduce emissions in all relevant nonattainment and maintenance areas, see 40 C.F.R. 93.153(b), but that argument is not properly before us because the petitioners failed to raise it until their reply brief, Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000).

In fact, the Petitioners had raised that issue in their opening brief, not once, but twice. See, Petitioners’ Joint Brief, pp. 88 and 93.

In the end, it is sad to see that a Court that prides itself on having many of its members become Supreme Court Justices, hide behind a per curiam decision that is so superficial and so careless. The Petitioners now have 45 days to decide whether to seek a rehearing or a rehearing en banc.

Other Articles on the subject:

Other posts on this blog about the Airspace Redesign:

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East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals

Posted on May 18, 2009 by Barbara E. Lichman

A multi-year challenge to the Federal Aviation Administration’s reorganization of the airspace in four East Coast states culminated on May 11, 2009 with oral argument at the D.C. Circuit Court of Appeals before Chief Judge David Sentelle, and Judges Douglas Ginsberg and Ray Randolph.  The litigation team was made up of 12 law firms representing public entities and environmental organizations from Connecticut, New York, New Jersey and Pennsylvania.  The team designated three of its members to present the oral argument: (1) Richard Blumenthal, Attorney General of the State of Connecticut; (2) Larry Liebesman, of Holland & Knight, representing communities in Rockland County, New York; and (3) Dr. Barbara Lichman of Chevalier, Allen & Lichman, representing Delaware County, Pennsylvania.  The FAA was represented by Department of Justice attorneys Mary Gay Sprague and Lane McFadden.

In the 30 minutes allotted to the opening presentation, the team emphasized the FAA’s failure to adhere to governing statutes and regulations in implementing the Airspace Redesign Project.  Specifically, Attorney General Blumenthal presented the Court with a litany of FAA lapses in conducting the analysis of the project’s noise impacts.  The Attorney General argued that the mistakes and omissions from the analysis resulted in artificial and inaccurate minimization of those impacts.  In addition, the Attorney General challenged FAA’s failure to reveal even the artificially minimized noise impacts to the affected public for review and comment, as it is obligated to do under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. 

Mr. Liebesman, in turn, pointed out to the court that FAA similarly failed to adhere to the requirements of § 4(f) of the Department of Transportation Act in that it did not consult with the proper state officials concerning the project’s potential impacts on natural resources in their states; did not properly target or analyze those impacts; and, ultimately, failed to disclose them to the public. 

Finally, Dr. Lichman argued that FAA entirely failed to comply with the Clean Air Act’s conformity provision, 42 U.S.C. § 7506, which states, unequivocally, that no Federal action may be implemented that does not comply with the Air Quality Implementation Plans developed and implemented by individual states (“SIP”).  Dr. Lichman asserted that FAA not only failed to adequately establish that the project would conform as required, but had entirely failed to conduct any air quality analysis at all. 

Predictably, FAA responded to Petitioners’ arguments by reminding the Court of the nine years of preparation that went into the project, and its public relations efforts to reach the massive populations of those states, as well as by claiming the lack of impacts resulting from an airspace action which FAA opines will not be accompanied by increase in the number of aircraft using the airspace. 

Just as predictably, the Court focused less on the adequacy of FAA’s analyses, where evidence of such analyses exists in the Administrative Record, and more on the absence from the Administrative Record of any evidence of compliance with the trifecta of statutes upon which Petitioners’ challenge relied.  For example, Judge Ginsburg articulated the Court’s traditional reluctance to substitute its own judgment concerning the adequacy of FAA’s forecasting of the project’s growth inducing, and consequent noise impacts for the expertise of the FAA, the agency charged with responsibility for regulation of airspace. 

Similarly, Chief Judge Sentelle questioned Petitioners’ claims concerning the adequacy of FAA’s analysis of the project’s impacts on state and local parks, on the ground that state officials knew of the project over its nine year preparation time and, thus, had a reciprocal responsibility to notify FAA of the potential impacts of the project on the state’s resources.

The Court seemed somewhat more receptive, however, to Petitioners’ argument that: (1) FAA had performed no analysis whatever of emission from the project; (2) absent such analysis the project’s conformity could not be established; and (3) absent an analysis of the project’s conformity position, the Clean Air Act prohibits the project’s continued implementation.  FAA responded that it had performed an analysis, the Fuel Burn Report, FEIS, App. R, demonstrating that the project would reduce aircraft fuel burn, and, thus, by extension, emissions.  The Court questioned that unsupported conclusion on, among others, the ground that FAA’s Fuel Burn Report showed the project increased fuel burn at some airports. 

While it is usually fruitless to attempt to second guess the Court, Petitioners believe the Court approached the issues fairly, objectively and knowledgeably, and Petitioners are guardedly optimistic that some of their principal arguments hit home.  A final decision from the Court may take a number of months.
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Petitioners File Reply Brief in East Airspace Redesign Case

Posted on March 8, 2009 by Steven Taber

On Friday, March 6, 2009, the Joint Petitioners in the East Coast Airspace Redesign case now pending in the D.C. Circuit Court of Appeals, filed their Reply Brief, arguing that the FAA failed to comply with 4(f) of the Department of Transportation Act, the Clean Air Act and NEPA.

The Reply Brief takes the FAA to task for failing to consult with the state and local authorities regarding the tremendous impact that the Airspace Redesign will have on "4(f) properties," that is, state and local parks, and wildlife preserves.  It also points out that the FAA is in violation of the Clean Air Act, because it failed to establish that the Airspace Redesign would conform with the Clean Air Act.  Finally, the Reply Brief, argues that the FAA violated NEPA by not following its own regulations concerning aircraft noise in assessing the noise impacts of the Airspace Redesign.

Briefing for the case is now completed and oral argument is scheduled for 9:30 a.m.. on May 11, 2009, in front Judges Sentelle, Ginsburg, and Randolph at the E. Barrett Prettyman United States Courthouse, 333 Constitution Ave. NW, Washington, D.C..  Senators Dodd (D - Conn.) and Specter (R - Pa.) filed a amicus curiae brief supporting the Petitioners' Petition for Review to have the Airspace Redesign vacated and remanded back to the FAA.  The New Jersey Attorney General, Anne Milgram also filed an amicus brief in support of the Petitioners.

Other Posts regarding this Litigation:

 

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Draft Environmental Impact Statement for the "Capacity Enhancement Project" at Philadelphia International Airport is Published

Posted on October 18, 2008 by Steven Taber

The FAA recently published the Draft Environmental Impact Statement (DEIS) for its "Capacity Enhancement Project" (CEP) (warning! this is a large file, the DEIS is broken up into Chapters at the end of this post) at the Philadelphia International Airport (PHL).  Comments on the DEIS are due no later than November 10, 2008.  Since, as its title suggests, the FAA seeks to increase capacity at PHL, there is a concomitant increase in environmental effects of the project over what would be considered the "no action" alternative,i.e., not doing the project.  In particular, there will be increases in noise in certain areas and an increase in air pollution created by the airport, not only by the increase in aircraft once the project is finished, but also by the construction created by the Project.

After dismissing several options as not meeting the "Purpose and Need" of the Project, the FAA offers two alternatives, both involve:

  • the addition of a new 12,000-foot runway 9C-27C;
  • relocating the Air Traffic Control, Tinicum Island Road, Island Avenue, and the UPS terminal;
  • closing Hog Island Pier and and extending Fort Mifflin Pier; and,
  • closing Conrail line south of the Airport and constructing new rail line northeast of the Airport. 

The major differences between the two alternatives are:

  • Alternative B eliminates the 6,500-foot runway, Runway 17-35; and
  • Alternative B would tear down the existing terminal and create a terminal system similar to that at Atlanta Hartfield with terminal "islands" connected by a People Mover;

Although the FAA claims that the total population and housing units exposed to DNL 65 dB and greater would decrease substantially under both alternatives, those decreases "would occur primarily north of the Airport in Philadelphia County, Pennsylvania as a result of eliminating Runway 17-35 or significantly reducing its use."  That being said, the FAA admits that there would be "significant impacts" under both alternatives to people and housing units in Delaware County thus shifting the noise contours from Philadelphia County to Delaware County.  In addition, both Camden and Gloucester Counties would experience increases in noise levels during the twelve years of construction.

Likewise, with respect to air quality, the FAA admits that there will be an increase in emissions of pollutants, especially during the construction phase of the project.  This is an increase not only of "criteria pollutants" (i.e., Volatile Organic Compounds, Nitrous Oxides, and Particulate Matter) but also of "Hazardous Air Pollutants" and greenhouse gases.  Moreover, despite recent studies indicating that emission of pollutants above 3,500 feet above ground level has an effect on air pollutant levels on the ground (click here for a summary of the Taubman and the Clark studies, click here (on p.3) for a summary of the University of Maryland study), the FAA ignores the effect that such high level emissions will have.  

Humans will not be the only ones effected by the project.  The DEIS also reports that natural resources such as wetlands, and parks, as well as endangered and threatened species will be impacted by the Project.

A couple of final notes:

  • The DEIS does not mention coordination with any local agency outside the City of Philadelphia. This is despite the fact that although the City of Philadelphia operates PHL, most of the Airport is actually located in Delaware County, Pennsylvania.
  • Comments on the DEIS are due no later than November 10, 2008.  That being said, it should also be noted that if one were to bring a lawsuit against the FAA after the FAA decides to implement this Project, that person is limited to raising issues before the court that he or she raised before the FAA.  In other words, if no one comments on the Project on a particular issue prior to the FAA making its final decision, that issue may not be raised in a subsequent lawsuit.

More information regarding the Project can be found at the Project web site http://www.phl-cep-eis.com.  Here are links to the separate Chapters, Figures and Appendices, if you do not want to download the entire DEIS.

 

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FAA's Presumed to Conform Rule Will Affect Communities Around Airports

Posted on August 8, 2008 by Steven Taber

In February, 2007, almost as an after-thought, theFAA included changes to air traffic control procedures to its Presumed to Conform rule. This last minute addition has the potential to seriously impact communities around the airports where these changes to air traffic control procedures take place. 

Why will this obscure regulatory change affect communities? First, a little background on the subject will be helpful. Air quality and noise are the primary concerns of communities around airports. Since Federal law severely limits the ability of communities to affect the amount of noise produced at airports, many communities have focused on protecting their air quality. The conformity provisions of the Clean Air Act provide a useful tool in that regard. They require that all Federal agencies ensure that their projects will not affect the State Implementation Plan (SIP), which is a plan drafted by the state and approved by the EPA in order to come into compliance with other provisions of the Clean Air Act. This “conformity determination” provides communities around airports with needed data concerning the effect the agency’s action will have on the air quality. Moreover, if the Federal agency fails to perform a conformity determination or fails to do it properly, then that it is grounds for the community to object to the Federal agency’s action as a whole.

 

The EPA promulgated regulations in 1993 detailing how the Federal agencies should go about proving their actions conform. Included in those regulations is a provision that, until 2007, had not been used by any Federal agency. That provision (40 C.F.R. sec. 93.153(f)) allows a Federal agency, under certain conditions, to list a series of activities it deems “presumed to conform.” Intended to be used for actions in which the emissions are minimal, such as land transfers and or transactional actions, the FAA in included in its 2007 “presumed to conform” rule, “air traffic control activities and adopting approach, departure and enroute procedures for air operations.” What this rule does is eliminate the need for the FAA to provide the communities around airports with data about the impact actions like the airspace redesign in the Philadelphia/New York/Newark area will have on the area’s air quality. Without the FAA performing a conformity determination, there will be no air quality data available to the communities around airports, despite the growing research that shows that aircraft emissions contribute to problems in air quality.

The County of Delaware, located at the end of the runways of Philadelphia International Airport, has petitioned the U.S. Court of Appeals in Washington D.C. to put an end to the FAA’s rule, at least with respect to changes in air traffic control procedures. You can read the pleadings in this matter right here:

Oral argument in this matter will be held in Washington D.C. on October 7, 2008.

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.
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