Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

Citizens appear to have at least three remaining means to obtain relief.  First, H.R. 658 is set for Congressional consideration at 5:30 p.m., Monday, February 6, 2012.  However, if communities around airports throughout the United States weigh in en masse with their Senators and Congressmen, between now and then, by e-mail, the legislation’s summary consideration may be considerably lengthened.  With enough vocal opposition from the public, it is even possible, though not probable, that the offending § 213 may be deleted. 

Another strategy for overcoming the obstacle to environmental relief being established by Congress involves response to the solicitation of comments on proposed changes to FAA regulations, 14 Code of Federal Regulations § 91, 121, 125, 129 and 135, 76 Fed.Reg. 77,939 (December 15, 2011), adding regulations governing NextGen.  The Congressional exemption from NEPA allows for the Administrator to exercise discretion in deciding whether “extraordinary circumstances exist with respect to the procedure,” such that the presumption of no significant environmental effect may be abrogated.  § 213(c)(1) and (2).  Thus, relevant comments on the new regulations would include an exhortation to the Administrator to expand the parameters of the “extraordinary circumstances,” from the already existing factors of increased fuel consumption, carbon dioxide emissions and noise, to include revision in flight paths that bring aircraft over communities not previously overflown, and which substantially lower altitudes over communities that are currently overflown.

Finally, and hopefully as a last resort, there remains recourse to other Federal statutes as a basis for court action.  A categorical exclusion under NEPA does not excuse FAA from complying with its obligations under other environmental statutes.

In short, what is critically important in the short run is: (1) a massive and focused campaign to convince our Congressional representatives that the public health and welfare should be as well protected as administrative “efficiencies;” and (2) a well-orchestrated set of comments on the regulatory revisions governing NextGen to take advantage of the loopholes in the Federal legislation.

Certainly some of the duplication will be removed in the Act's final version. But the bottom line will remain. Dramatic changes in the configuration of the national airspace system, to be implemented throughout the United States during the next few years, will be relegated to "a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations . . . and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R. § 1508.4. This is so despite the fact that, in many cases, the new NextGen procedures will implicate numerous communities never before overflown, or never overflown at the same low altitudes. Newly affected populations will thereby be deprived of an avenue of redress in the courts through NEPA on which they have come to depend to level the playing field usually dominated by governmental action. The fundamental intent of NEPA, to allow the public a chance to review and comment on governmental actions before they are taken, will effectively be bypassed by the Act. 

Nor do the conditions on a finding of categorical exclusion, such as the requirement for a measurable reduction in fuel consumption, carbon dioxide or noise, mitigate the adverse impacts of the exemption, as the determination that those conditions exist is within the exclusive discretion of the FAA Administrator, the same party charged with implementing the NextGen program.   

There are two potential courses of action still available to interested parties and affected populations. The first is short term: to call Senators and Congressmen to express opposition to the apparent end run around NEPA's protections. The second is longer term, and involves other statutes that can be applied to take up where NEPA protections will now leave off. The next few days will determine whether the legal strategy in alternative two will eventually be required. First, it's time for the affected public to weigh in with its political leaders to protect its best interests. Stay tuned for the next chapter.

For example, the Draft RTP anticipates that, after the “urban capacity constrained airports of Los Angeles International (“LAX”), Bob Hope, Long Beach and John Wayne Airports (sic)” all meet their “defined legally allowable or physical capacity constraints,” the remainder of the demand will be served at “suburban airports with ample capacity to serve future demand, including Ontario International, San Bernardino International, March Inland Port, Palmdale Regional, Southern California Logistics and Palm Springs airports.” Draft RTP, p. 58. While SCAG is correct about the availability of unused capacity at Ontario International (“ONT”) (which is at its lowest passenger level since 1987 despite ample facilities including a new, unused, terminal), SCAG is flat wrong in the assumption that: (1) the other named airports actually have usable capacity; and (2) the “remainder of the demand” will automatically be siphoned off to airports more remote than ONT (which is actually an urban airport in the midst of a highly developed and developing Inland Empire). For example, San Bernardino International Airport (“SBIA”), while sporting a new, completely empty, terminal with apparently ample groundside capacity, has serious airspace conflicts with ONT, as well as a $4,000 foot high mountain at the end of its principal runway.

The Draft RTP further opines that “congested airports have an interest in shifting traffic to less congested airports.” Draft RTP, p. 61. No they don’t. Airports earn revenue by, among other things, airline landing fees and concessions revenues like food and parking, which in turn depend on increasing numbers of passengers. The favored (although not always desirable) solution for congested airports is to simply create more capacity which is largely funded by Federal dollars appropriated by the Federal Aviation Administration (“FAA”), with little or no downside to the local operator.

Finally, the Draft RTP opines that “for airports like LAX which has a significant component of international traffic that generates more revenue than domestic flights, it may be more efficient to limit domestic flights that could be accommodated at other airports in the region, thereby freeing up capacity for more lucrative international flights.” Draft RTP, p. 61. As an organization charged with understanding transportation laws and regulations, SCAG should be aware that it is not up to the airport or the local jurisdiction that operates it to “limit domestic flights” or any flights for that matter. “The United States government has exclusive sovereignty of airspace of the United States,” 49 U.S.C. § 40103(a)(1), including the type of aircraft allowed to fly and where they may land. While other laws such as the Airport Noise and Capacity Act of 1990 (49 U.S.C. § 47521, et seq.) circumscribe the Federal government’s preemptive sovereignty to some extent, the local airport operator may only choose to construct, or not to construct, facilities to accommodate aircraft operations. Once such facilities exist, a local operator may not choose between operations based on their ultimate destinations.

In summary, while the Draft RTP’s general conceptual framework, analyzing transportation as a regional and cooperative issue among regional jurisdictions is supportable, the Draft RTP entirely omits from its aviation analysis reference to, or consideration of, the third party with the real power to make a difference in the allocation of regional air transportation resources – the FAA. Without such consideration, the Draft RTP’s aviation policies amount to nothing more than a wish list. The comment period on the Draft RTP extends until February 14, 2012.
 

The first issue, that of standing, is jurisdictional in the Federal Appellate Courts. That is, if the petitioner cannot show, at the most basic level, that the challenged action caused injury to its own interests; that “the injury is fairly traceable to the challenged action,” Id. at * 2; and that a favorable decision by the court could likely redress, or remedy, that injury, the court does not have jurisdiction to hear the case.

The FAA disclaimed both causation and redressability. The Court held, however, that, while “FAA’s hazard determinations, by themselves, have ‘no enforceable legal effect,’” Id., quoting BFI Waste Systems v. FAA, 293 F.3d 527, 530 (D.C. Cir. 2002), in this case, the Department of Interior (“DOI”), the ultimate arbiter of whether the wind farm receives government approval, had “repeatedly assigned the FAA a significant role in the decision making process,” Id., by, among other things: (1) requiring Cape Wind Associates, the project sponsor, not begin construction until receipt of FAA’s final hazard determination; and (2) requiring that Cape Wind comply with all FAA proposed mitigation measures, even those imposed after the signing of the lease for the required property with DOI.

Ultimately, the Court held that “given Interior’s incorporation in the lease of all past and prospective mitigation measures proposed by FAA, its conditioning of initial construction on the final FAA decision, and its persistent attention to the safety mandate in its authorizing statute . . . we find it likely, as opposed to merely speculative that the Interior Department would rethink the project if faced with a FAA determination that the project posed an unmitigatable hazard.” Id. at * 5. Thus, the Court found the FAA’s action redressable by an order of the Court sending the project back to FAA for reanalysis using correct procedures, even if the results of the reanalysis were within the FAA’s discretion and might not be different than the original no hazard determination.

Perhaps most surprising is the Court’s analysis on the second issue. Using as a benchmark the FAA’s own Handbook, the Court found that the FAA had improperly relied on only one standard in the Handbook for determining a hazard, that set forth in § 6-3-8(c)1 which states: “A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within two statute miles of any regularly used VFR route.”

The Court then pointed to various other standards for determining whether a project would have an “adverse effect,” including those articulated in § 6-3-3. Finally, the Court found that the record was replete with evidence that the wind farm would have an “adverse effect” on Visual Flight Rule (“VFR”) operations, causing them to be re-routed, or to fly in closer proximity to the wind farm structures than the minimum 500 foot distance permitted by FAA regulation 14 C.F.R. § 91.119.

What distinguishes this case from most of its predecessors is the Court’s deviation from the traditional deference accorded to determinations by a government agency acting within the course and scope of its authority. The reason why the issue of deference did not arise is that, cannily, the petitioners did not pit their own experts’ opinions against those of the FAA, or engage in a “battle of the experts.” Instead, petitioners turned the Court’s attention to the FAA’s misapplication of its own guidance, and the study conducted by its own consultant, Mitre Corporation, for the proposition that numerous flights would be at an altitude of 1,000 feet or less over the area in which the turbines would be built, Id. at * 6, and that, once built, the flights would be at less than the 500 foot minimum altitude over the structures.

In summary, while the Court offered no guarantees that the FAA or DOI would eventually reach different conclusions, it opined that the evidence in the record showed “the project may very well be such a hazard,” Id. at * 7, and held the FAA to the “standard requirement of reasoned decisionmaking,” rather than “catapulting over the real issues and the analytic work required by the Handbook.” Id. Prospective petitioners can only hope that this analysis by the Court will guide it when faced with similar FAA deviations from its own guidance in the future.
 

The conventional wisdom is that the legislative proposal will meet stiff resistance in the House of Representatives, with a predominance of members wary of increased government regulation, and from helicopter trade groups such as the Helicopter Association International which has already expressed skepticism for such a “legislative fix.”

However, the legislative road may be less bumpy in the Senate, where only earlier this year Senator Charles Schumer of New York gained approval of an amendment to an FAA bill which would require the agency to adopt rules limiting helicopter noise over residential areas on Long Island.

Schumer’s, and now Berman’s, legislation may serve as the proverbial “camel’s nose under the tent” for communities subjected to frequent helicopter overflights. While both are geographically specific, and targeted at their own constituencies, both pieces of legislation may set a precedent for increased regulation of currently substantially uncontrolled helicopter overflight.
 

Currently, to escape from these requirements, the project proponent must perform a “Conformity Applicability Analysis” to determine if the project’s emissions will fall below the de minimis emissions levels established in Environmental Protection Agency (“EPA”) regulation 93.153(c).

The FAA Reauthorization, if enacted, will allow FAA to avoid all of its Clean Air Act responsibilities, and implement airspace redesign procedures that, even if they meet the state goal of reducing delay and thereby reducing aircraft emissions alone, will also increase airport capacity. Increased capacity, or increased number of operations passing through the airport, will potentially give rise to increased emissions impacts not offset by the initial calculation of emissions savings from delay reduction permitted by the Amendment.

In short, FAA is determined to avoid the same legal hurdle it faced in implementing the massive East Coast Airspace Redesign (which is currently being partially redesigned as ineffective). In a challenge to that action, County of Rockland, New York, et al. v. Federal Aviation Administration, et al., United States Court of Appeals for the District of Columbia Circuit, Case No. 07-1363, numerous public and private entities, including Delaware County, Pennsylvania and the State of Connecticut contested, among other deficiencies, FAA’s total absence of compliance with the Clean Air Act’s conformity provision. The District of Columbia Circuit Court of Appeals confirmed the absence of compliance, but found it to be a “nonprejudicial error,” because FAA had, in the Final EIS, performed an analysis of purported emissions reductions resulting from alleged delay reductions from the project.

FAA does not want to take the chance that another court may view complete failure to comply with Congress’ detailed enactment in the Clean Air Act as nonprejudicial error, and may require, instead, scrupulous compliance. The most effective avenue at this point is to contact your Senatorial representative and ask them to delete the onerous earmark from the House version of the Reauthorization.
 

Under the new rule, the FAA will, over a 3-year period, terminate the registration of all aircraft registered before October 1, 2010, and require re-registration of each aircraft in order to retain U.S. civil aircraft status. The rule will establish a 3-year recurrent expiration and renewal system for all aircraft registration certificates issued on or after October 1, 2010, and also provide standards for timely cancellation of registration numbers (N-numbers) for unregistered aircraft. Aircraft owners who keep their registration address current will receive two timely reminder notices before the scheduled date for expiration of their aircraft’s registration. The FAA will post lists on its Registry website showing aircraft as they move through re-registration and renewal stages.

The 3-year re-registration period will clear the Civil Aviation Registry database of questionable registrations. The FAA estimates that the 3-year re-registration scenario will reduce the error rate for questionable or erroneous aircraft registrations from the current rate of approximately 36.5% to approximately 5.7% The FAA also points out that the FAA and manufactures will realize cost savings when mailing emergency airworthiness directives, safety notices and surveys to aircraft owners, and that more reliable notification regarding safety matters should improve aviation safety.

Finally, the Aircraft Registration Application, AC Form 8050-1 cannot be used for re-registration. A separate re-registration form will be available on the Registry website. At present, online re-registration and renewal is available only when no changes are required. If changes are required, paper forms must be used. However, the FAA is exploring options to accept all registration information online in the future. Forms and additional aircraft registration information are available at http://registry.faa.gov/renewregistration.

To ensure that they are included in the Registry early notification, registration and registration renewal program, and to avoid cancellation of registration numbers for unregistered aircraft, aircraft owners should ensure that their correct address is on file with the Civil Aviation Registry. There is no fee for updating an address.

The FAA received more than 800 comments on the NPRM from aviation trade groups, the Town of East Hampton and individuals. Some asked the FAA to consider alternative minimum altitudes and other routes, including a South Shore alternative. Many claimed that the FAA failed to conduct a proper environmental analysis. The FAA refused requests to extend the period for commenting on the NPRM, which ended on June 25, 2010, but has stated that it will consider late-filed comments “if [it is] possible to do so without incurring expense or delay.”

The FAA determined that this action is excluded from environmental review under a FAA Order 1050.1E “Environmental Impacts: Policies and Procedures” categorical exclusion which applies to “[r]egulations, standards, and exemptions (excluding those which if implemented may cause a significant impact on the human environment.)” The FAA determined that implementation of the North Shore Route is not expected to result in significant adverse environmental impacts. This action, which is in response to noise complaints, follows on the heels of the FAA’s New York/New Jersey/Philadelphia Metropolitan Area Airspace Redesign Project, which was recently challenged in the U.S. Court of Appeals for the District of Columbia Circuit on, among other grounds, noise impacts.

The NPRM also expressly states that the proposed rule would not involve any of the “extraordinary circumstances” listed in Order 1050.1E which would require environmental analysis. One such circumstance is when the environmental effects of a proposed action “are likely to be highly controversial,” i.e., “. . . when reasonable disagreement exists over the project’s risks of causing environmental harm.” It remains to be seen if, after political pressure and receiving over 800 comments on the NPRM, the FAA will implement the North Shore Helicopter Route proposed in the NPRM with no environmental analysis.