The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment. Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.
The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown. Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”). The City of Phoenix instituted a two-prong approach in disputing this determination. It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
For one thing, the legislation calls only for the establishment of an “advisory committee” to:
(1) Review practices and procedures of the FAA with regard to “airspace [changes] that affect airport operations, airport capacity, the environment for communities in the vicinity of airports;” including
(A) An assessment of whether there is sufficient consultation between various FAA offices involved in the changes; and
(B) Between FAA and affected entities including “airports, aircraft operators, communities, and state and local governments;”
(2) Recommend revisions to procedures;
(3) Conduct a review of FAA data systems used to evaluate obstructions to air navigation, as defined in 14 C.F.R. Part 77; and
(4) Ensure that the data described in section 3 is made publicly accessible.
The aims of the legislation may be virtuous, but the procedures used to achieve those ends may be viewed with a grain of salt. Specifically, the “advisory committee” mandated by the legislation is composed of: (1) air carriers; (2) general aviation, including business aviation and fixed-wing aircraft and rotorcraft; (3) airports of various sizes and types; (4) air traffic controllers; and (5) state aviation officials, section 2506(c), but does not include any representative of an “affected community,” the very constituency the legislation’s purpose is to assist. The result is that the interests of those communities will be represented by surrogates, many of whom have interests directly antithetical to those of the communities. What can be said is that the legislation is a good start at making the FAA more accountable for its decisions with regard to airspace changes. What is needed now is a next step, perhaps in an amendment to the existing legislation, bringing the affected communities actively into the conversation.