D.C. Circuit Court of Appeals Stays Slot Auctions at JFK, LaGuardia and Newark

Posted on December 9, 2008 by Chevalier, Allen & Lichman, LLP

The U.S. Court of Appeals for the District of Columbia Circuit granted a stay of the slot auctions that were scheduled to take place on January 12, 2009, pending arguments on whether the FAA has the legal authority to auction the slots.

Although the court's order does not go into any details as to why it is granting the Motion for Stay beyond stating that the Petitioners "have satisfied the stringent standards required for a stay pending court review," this is a significant victory for the Petitioners.  First, in order to obtain a stay one must show, among other things, "irreparable injury" and "likelihood of success on the merits."  This standard is a high one that is rarely surmounted.  Thus, it is an indication that the court is looking favorably upon the Petitioners' case.

Second, it pushes the date for the first slot auctions beyond the change of administrations.  The opponents of the slot auctions fervently hope that the Obama Administration will be more receptive to their pleas that slots auctions will not solve the problems at the New York/New Jersey airports.  With the change of administrations, there is hope among the opponents of the slot auctions that "a new, workable plan to reduce flight delays and give New York's airspace and airports the upgrade they need and deserve."

Petitioners' statements regarding the court's ruling:

Neither the Department of Transportation nor the FAA have any press release or statement on their websites regarding the court's ruling.  However, the wire services and newspapers are reporting that Sarah Echols, a spokeswoman for the Department of Transportation, said:  "Today's court decision is bad news for travelers seeking a better flying experience in and out of the New York region.  We are committed to our goal of protecting travelers, giving passengers more options and improving the air travel experience, and will continue to assess our options to provide relief."

Previous blog posts regarding slot auctions:

Other news articles:

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FAA's Response to Congress: You Want Safety? We'll Give You Safety!

Posted on April 11, 2008 by Barbara E. Lichman, Ph.D., J.D.
The Federal Aviation Administration’s recent paroxysm of safety concern-- forcing airlines to immediately cancel thousands of MD-80 flights because of a 1/4 inch deviation in the location of an electrical bundle in the wheel well -- reveals at least two “inconvenient truths”: (1) despite it repeated use of the safety rationale to justify repeated violations of Congressional mandates such as compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and the Clean Air Act, 42 U.S.C. 7401 et.seq., the FAA has long been neglecting its primary responsibility of ensuring the safety of airline travel; and (2) FAA is willing to sacrifice the welfare and convenience of air travelers and even the sacrosanct protection of  Interstate Commerce ensured by the Bill of Rights to cover up its own past non-feasance.

Whenever FAA wants to approve an airport development project, or, more recently, an airspace redesign, despite those projects patent potential for creating significant environmental impacts, FAA falls back on the time worn mantra of its safety mandate. This is happening even now in the FAA’s sponsorship of a relocation of Runway 24R, the northern most runway  at Los Angeles International Airport, much closer to surrounding communities, with concomitantly increased adverse noise and air quality impacts, and even though other reasonable and patently safe alternatives exist.

Despite the FAA’s lip service to safety, FAA has apparently been giving short shrift to it in practice.  Even though its directive requiring inspection of MD-80s’ purported  wiring problem was issued in 2006, FAA did nothing to ensure compliance until last week, when 2 FAA safety inspectors/whistle blowers revealed FAA’s cavalier attitude toward safety to a Congressional committee.

Overnight, FAA changed its stripes.  Instead of allowing aircraft to be inspected in groups, over time, FAA required that they be instantly taken off-line for inspection; and if so much as a 1/4 inch deviation was found, taken off-line immediately for repair. Sounds good, except that hundreds of thousands of paying passengers have been delayed and displaced, through no fault of their own and at great cost to them in terms of time and money expended for overnight accommodations, food, and even additional costs of seats on other airlines, victims of the FAA’s new-found sense of responsibility.

In short, if those aircraft were dangerous, the FAA knew it, and  the planes should have been taken out of service two years ago when FAA first found out about the problem.  If  the planes are not dangerous, a reasoned, gradual approach to inspection and repair would have been appropriate.  Instead of those rational alternatives, FAA chose a path that does not remedy its nonfeasance, but, rather, calls it to the attention of the public, and , hopefully to their Congressional overseers.

Please be sure to tell your Congressman and the Committee Chairs how you feel.  The Chair of the Commerce, Science and Transportation Committee is Sen. Daniel K. Inouye (dinouye@senate.gov) and the Chair of the Aviation Operations, Safety and Security is Sen. John D. Rockefeller IV (jrockefeller@senate.gov).  On the House side, Rep. James L. Oberstar (joberstar@house.gov) is the Chair of the Transportation and Infrastructure Committee and Rep. Jerry F. Costello (jcostello@house.gov) is the Chair of the Aviation Subcommittee.
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