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.

Indeed, the geographic size of rail projects implicates the greater scope of legal applicability. Rail projects, even if, like the current “high speed rail,” limited to within the borders of California, will, of necessity, be recipients of Federal funding. Consequently, Federal environmental statutes, including the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and the Federal Clean Air Act, 42 U.S.C. § 7501, et seq., apply. Thus, while the California legislature may attenuate the CEQA process, the rail projects will still remain hostage to NEPA.

Finally, even if rail projects could proceed without Federal funding, which they most likely cannot, where they cross state lines, the Interstate Commerce Clause of the United States Constitution is implicated, and Federal law will apply. In short, to attenuate the environmental review process for major transportation projects will require a different legislative template, at a different legislative forum, the United States Congress.
 

Moreover, simply articulating “generalized environmental comments at public hearings . . . [cites omitted]; relatively . . . bland and generalized references to environmental matters . . . [cites omitted]; . . . or isolated and unelaborated comments will not suffice.” Sierra Club v. City of Orange, 163 Cal.App.4th 523, 535-36 (2008). Instead, “the objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.” Id. Finally, “the petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” Id. at 536.

Two recent California cases illustrate the ways in which two courts apply these strictures to arrive at diametrically opposing decisions. In Citizens for Responsible Equitable Environmental Development v. City of San Diego, 196 Cal.App.4th 515 (May 19, 2011), a citizens group challenged the Environmental Impact Report (“EIR”) for a residential development on the grounds that CEQA’s mandated Water Supply Assessment (“WSA”) was deficient. The court rejected the petitioners’ claim of having exhausted administrative remedies as a “perfunctory or skeleton showing . . .,” Id., at 528, where the petitioners rested their claim on: (1) a DVD submitted to the respondent city containing “thousands of documents,” Id., and (2) an accompanying letter referencing “evidence on water supply,” Id., but not specifically mentioning the word “drought.”

The court also rejected petitioners’ argument that they could rely on a statement by an unaffiliated party made at the public hearing that did reference “drought.” Even though “a petitioner may allege as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings,” Id. quoting Bakersfield Citizens for Local Control, supra, 124 Cal.App.4th at 119, the court found that the testimony of a former councilman upon which the petitioners intended to rely was not specific enough, because, while petitioners claimed that the EIR’s analytic deficiencies required recirculation of a Supplemental Environmental Impact Report (“SEIR”), the councilman “never argued an EIR was necessary.” Citizens for Responsible Equitable Environmental Development, supra, 196 Cal.App.4th at 528. NEPA varies materially from CEQA on the issue of the required specificity of comments. Under NEPA, a would-be challenger must have raised the specific issue upon which it wishes to base its challenge during the administrative process.

Just one month later, another Appellate Court decided the issue differently, by relying on a variant of the exhaustion standard. In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita, 197 Cal.App.4th 1042 (June, 2011), the court found that petitioner had adequately “papered the record,” even though the petitioner had not previously, among other lapses, provided explicit examples of the numerous mitigation measures it claimed in its challenge the city should have considered in the EIR’s analysis of the project’s global warming impacts. The court acknowledged that the petitioner had not been as specific as desirable. However, it found, despite some reservations about the petitioners’ alleged naiveté about CEQA’s procedural requirements, Id. at 1051, that “less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding,” Id., quoting Citizens Association for Sensible Development of Bishop Area v. County of Inyo, 172 Cal.App.3d 151, 163 (1985). This was because “[parties] generally are not represented by counsel. To hold such parties to knowledge of the technical rules of evidence and to the penalty of waiver for failure to make a timely and specific objection would be unfair to them.” Citizens Association for Sensible Development of Bishop Area, supra, 172 Cal.App.3d at 163.

In short, courts can make radically disparate decision on the adequacy of exhaustion of administrative remedies, based on similar sets of facts and arguments. The solution is: (1) to engage an experienced attorney who can provide educated counsel concerning the issues in the environmental analysis most vulnerable to challenge; (2) to comment early and often on those and other issues, preferably starting with the Notice of Preparation of the Environmental Impact Report (“NOP”), including comments on the Draft Environmental Impact Report (“DEIR”), which is proforma, and ending only with the last document in the environmental analysis available for review, normally the Final Environmental Impact Report (“FEIR”); and (3) to make comments as technically specific as possible, even if this involves the expenditure for a technical consultant. It is only through those three steps that a would-be petitioner can successfully withstand the “exhaustion of administrative remedies” defense that is all but certain to arise in environmental litigation.
 

The National Environmental Policy Act (NEPA) has similar requirements. NEPA also requires establishment of a baseline against which to compare the impacts of the proposed project. And, as with CEQA, the NEPA baseline usually consists of the pre-project environmental conditions. The Ninth Circuit Court of Appeals considered the baseline issue in American Rivers v. Federal Energy Regulatory Commission, 187 F.3d 1007 (9th Cir. 1999), where it held that use by the Federal Energy Regulatory Commission of existing environmental conditions at a hydroelectric power facility to evaluate a re-licensing proposal was the proper baseline, rather than a “theoretical reconstruction” of what the river basin would have been like if projects had never existed, as argued by several conservation and environmental organizations.

As shown in Communities For a Better Environment and American Rivers, project proponents often confuse “baseline” with the “no-action” alternative. Both CEQA and NEPA require that an EIR/EIS include an analysis of the environmental effects if the project is not approved or implemented, i.e., a “no action” alternative. However, the purpose of the no-action analysis is to compare alternatives, not to establish a baseline. The definition of the no-action alternative will vary depending on the nature of the proposed project. For some projects, the existing environment will not change if the project is not approved, and the no-action alternative and baseline will be the same. For other projects, rejection of the project will not preserve existing environmental conditions, and the no-action alternative will be different from the baseline.

Public agencies preparing environmental documents and agencies, organizations and others reviewing environmental documents should understand this important distinction between the environmental baseline and the no-action alternative.