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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Airspace Redesign May Not Decrease Fuel Consumption For The Airlines As The FAA Claims

Posted on March 18, 2008 by Steven Taber

In both the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the New York/New Jersey/Philadelphia Airspace Redesign, the FAA states that there will be a decrease in emissions from aircraft as a result of the airspace redesign because the aircraft will burn less fuel.  To support this theory, the FAA relies upon a cobbled-together "Fuel Burn Analysis" that is nowhere to be found in any of the FAA's orders or procedures.

However, even with the ginned-up fuel burn analysis, it is now becoming apparent that there may be no savings in fuel to be derived from instituting the Airspace Redesign's preferred alternative.  Using the information provided in the Appendix R of the Final Environmental Impact Statement and the TAAM output files that were included in the Administrative Record as document 9285, Clean Air Act consultant Dan Meszler, of Meszler Engineering Services, concluded that the "Preferred Alternative" would seemingly increase fuel consumption.

On the following page is an excerpt from Mr. Meszler's Report, along with a table showing the differences between fuel consumption reported in the FEIS and fuel consumption based on the TAAM data that was included in the Administrative Record.

EXCERPT FROM MESZLER ENGINEERING'S FEBRUARY 18, 2008 REPORT:

"There is no way to know whether [the files included in Administrative Record document 9285] are associated with an average demand day (consistent with the Appendix R fuel burn analysis) or a high demand day (consistent with the Airspace Redesign operational analysis).  I assume that they reflect the latter, but they are still useful for evaluating the potential significance of the fuel burn corrections.  Additionally, since most of the modeling scenarios reflected in the TAAM output files represent simulations of greater than 24 hours duration (some cover a period as long as 48 hours), I extracted TAAM fuel burn data for only the first 24 hours of each simulation.  [The following table] presents the resulting data.

Estimated Aircraft Fuel Consumption (kg/day, unless otherwise specified)

 FEIS Appendix R Table 2.1 (Corrected)  24 Hour TAAM Output (High Capacity)  24 Hour TAAM Output (Low Capacity) 

No Action 2011  IA w/ICC 2011  Benefit 2011  No Action 2011  IA w/ICC 2011  Benefit 2011  No Action 2011  IA w/ICC 2011  Benefit 2011 
EWR  6,640,480 6,583,252 57,229 8,231,348 8,433,572 -202,224 8,270,887 8,584,092 -313,205
PHL  4,743,119 4,686,764 56,355 5,059,038 5,093,444 -34,406 5,100,858 5,107,540 -6,682
JFK  8,328,735 8,287,755 40,980 7,192,802 7,199,415 -6,613 7,254,175 7,264,835 -10,660
LGA+HPN  2,874,567 2,841,432 33,135 4,119,612 4,150,003 -30,391 4,157,711 4,216,465 -58,754
Internals  57,175 42,943 14,232 0 0 0 0 0 0
ISP  278,473 265,729 12,745 0 0 0 0 0 0
TEB+MMU  527,269 537,024 -9,755 1,122,974 1,137,327 -14,353 1,162,440 1,149,415 13,024




Total  23,449,818 23,244,898 204,920 25,725,774 26,013,761 -287,987 25,946,071 26,322,348 -376,277
Pct. Change 

0.90%

-1.10%

-1.50%
Gallons/day 

66,436

-93,367

-121,991
 
1. The total fuel consumption in FEIS Appendix R Table 2.1 is reported to be 16,809,338 for the no action alternative and 16,661,646 for the IA with ICC alternative. These values erroneously exclude EWR and have been corrected for this table. The total reported benefits in FEIS Appendix R Table 2.1 were correct and are, therefore, unchanged in this table.      
2. The gallons per day benefit reported in FEIS Appendix R is 66,840. The value reported in this table is marginally lower and the difference is undoubtedly the result of differing conversion factors. For this table, it was assumed that the density of aviation fuel was 6.8 pounds per gallon and that there are 2.2046 pounds per kilogram. The specific assumptions employed in FEIS Appendix R are not reported.      
3. The TAAM data reported in this table are based on the only TAAM output files included in the Administrative Record. It is suspected that the files are for high demand scenarios (as opposed to average demand scenarios). The only adjustment made to the TAAM output is that only fuel consumption data for the first 24 hours of each TAAM scenario are considered. Since the context of these data in this evaluation are solely to demonstrate basic fuel consumption relationships and not absolute values, the use of high demand scenarios should be irrelevant.      
4. Negative benefits signify a net increase in fuel consumption.      


The first three data columns of the table simply reproduce the fuel burn data presented in Table 2 of Appendix R.  As indicated, Appendix R estimates a modest fuel consumption decrease of just under 1 percent for the preferred IA w/ICC (Integrated Airspace with Integrated Control Center) alternative.  This impact derives from the basic fuel consumption estimates of TAAM combined with EDMS and fuel-flow integrator adjustments.  The next three data columns depict corresponding data derived from the high capacity runway configuration TAAM output files of Administrative Record document 92 85.  The rightmost three data columns depict corresponding data derived from the low capacity runway configuration TAAM output files of Administrative Record document 9285.

The results indicate that the adjustments to the basic TAAM-estimated fuel consumption may provide the entire rationale for concluding that fuel consumption will be reduced under the preferred alternative.  As indicated, the basic TAAM scenarios preduct fuel consumption increases of 1.1 percent under the high capacity runway configurations and 1.5 percent under the low capacity configurations.  The predictions are directly consistent across all airports (i.e., all show increases), but are most pronounced at EWR, which accounts for 70-85 percent of the total change."
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