Senate Monitors FAA Airspace Changes Through New Advisory Committee

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.  

 

Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate

Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”).  On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services.  The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System.  Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.  

H.R. 4441 does not directly address the issues of: (1) whether the Federal Aviation Administration (“FAA”) still have the final determination as to whether a change in the ATC System recommended by the corporation is “safe,” or will that determination also be left in private hands; (2) will the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), applicable to the analysis of the environmental impacts of projects sponsored by a federal agency, still apply to changes in the ATC System effectuated by a private corporation; and (3) will federal preemption of local airport noise and access restrictions, conclusively established in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), apply to determinations by a private corporation?  While many questions are left to be clarified, H.R. 4441 does explicitly answer at least one – it provides that federal preemption of local regulation of airline “prices, routes, and service,” originally established in the Airline Deregulation Act of 1978, 49 U.S.C. 41713(b), will remain in place.  Finally, judicial review under the Act is applied differentially, depending on whether a challenge is to FAA’s grant of a proposal, or its denial.  FAA’s approval of a proposal made by the corporation would be subject to the “abuse of discretion” standard, and the deference normally accorded to a governmental entity charged with the administration of a program established by Congress, which is difficult to overcome.  FAA’s denial of such a proposal, however, likely to be challenged only by the corporation, would not be subject to such deference, making the path to a reversal and ultimate approval of the corporation’s recommendations smoother.  

Apparently, the Senate Commerce Committee recognized H.R. 4441’s many unanswered questions, as did the full House of Representatives which has held up approval and caused the House to enact an extension of the FAA’s funding reauthorization to July 15, 2016.  The Senate reacted by passing its version of H.R. 4441 without the privatization provision.  This means that passage of the FAA Reauthorization must wait first until the issue is resolved internally in the House of Representatives.  Even if H.R. 4441 should emerge from the full House including the privatization provision, unless the full Senate should see fit to agree, a Conference Committee will be required and funding for the FAA could be delayed well past the current July 15, 2016 deadline.  
 

Land Trade and Airport Expansion Expected to Put Mammoth Mountain on "Must Ski" Map

Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
 
Most important in MMSA’s view is the expansion of the airport.  

In August, 2014, the Federal Aviation Administration (“FAA”) approved a new Airport Layout Plan (“ALP”) for the Mammoth Yosemite Airport (“Airport”) which includes proposed runway and associated parallel taxiway extensions, land acquisition for those improvements, as well as a terminal expansion.  MMSA believes that “the combination of the Mammoth Mountain land trade and the FAA approval of an expanded commercial airport in Mammoth Lakes is a game changer. . .,” “now, for the first time, the mountain owns the land it resides on and can make improvements it can own.  Plus the new airport will allow for flights from around the country.”

Environmental groups, not unexpectedly, deplore the new events.  Mammoth Mountain is located on the east side of the Sierra Nevada, surrounded by valuable natural resources, including the Owens and Walker Rivers, which are home to a variety of species fast losing habitat elsewhere.  The debate over the expansion will be more clearly articulated during the environmental review process for the land exchange, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), which will start upon the signing of the Bill authorizing the land exchange.  
 
Moreover, the FAA’s approval of the ALP was based on the satisfaction of certain conditions including that: (1) the proposed runway, taxiway extensions and land acquisition are not approved for short term developments; (2) FAA approve a terminal study that includes acceptable forecasts for use of the terminal; and (3) all development must comply with NEPA.  Therefore, development depends not only on the success of the contemplated land purchases, but also upon satisfaction of environmental requirements.  In California, those requirements involve not only NEPA, but also the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) as well, with its much more rigorous analytic requirements.
 
In summary, although the land trade and associated airport expansion may be seen as a long term benefit to real estate development and the skiing public from outside California, the environmental controversy over the protection of the Eastern Sierra Wilderness will rage for many years to come. 
 

FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 

Specifically, the NAC recommended the “Net Noise Reduction Method,” which would “[p]rovide[] for the computation of the number of people who would experience a reduction in noise and the number of people who would experience an increase in noise with a proposed PBN procedure as compared with the existing instrument procedure, at noise levels of DNL [average] 45 dB and higher.”  79 Fed. Reg. 49142.  FAA concluded that this proposal needs further evaluation because it “would introduce a new method for assessing noise … that is different in a number of respects from current noise analysis methodologies,” Id., and because it “does not produce a quantity of noise on a per flight basis,” 79 Fed.Reg. 49143, (i.e., a single event, or SENEL basis), as mandated by Congress, but instead “allows for averaging [of] noise impact on a representative basis,” (closer to the DNL or average noise level), 79 Fed.Reg. 49142, fn. 3.  

The FAA is further concerned about the extent “to which the Net Noise Reduction Method’s reliance on a net reduction in the number of people exposed to noise constitutes a net reduction in noise, since the two reductions are not the same.”  79 Fed.Reg. 49143.  Ironically, communities exposed to high levels of airport noise have been making the same objection to the DNL metric, the 24 hour average noise metric, for decades, on the ground that while such average is the conventional method of establishing noise impact, individuals do not hear “averages” but rather experience noise on a per flight basis, as has now been recognized by Congress.  

Finally, and despite FAA’s disclaimer that “[a] CATEX is not an exemption or waiver of NEPA review,” a categorical exemption is exactly what it purports to be: an exclusion from the normally applicable requirement to perform review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  Apparently recognizing this, Congress enacted the caveat that a categorical exemption will not apply where “the Administrator determines that extraordinary circumstances exist with respect to the procedure.”  FMRA § 213(c)(1), although what precisely constitutes an “extraordinary circumstance” is not explained in the proposed rule.  

In summary, Congress has now mandated the development of a per flight noise metric for PBN procedures, and FAA will be required to adjust its traditional metric to conform.  FAA is giving the public, including affected communities, their first opportunity to weigh in on this important regulatory distinction by September 18, 2014.  Comments identified by ‘‘Docket Number FAA–2014–0510’’ may be sent either by mail to Docket Operations, M–30, U.S.  Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12–140, West Building Ground Floor, Washington, DC 20590–0001 or electronically to the Federal eRulemaking Portal at http://www.regulations.gov.  

Update:  On September 11, 2014, FAA extended the comment period to October 20, 2014 (79 Fed. Reg. 54342).  

 

FAA Changes the Rules for National Environmental Policy Act Review

Inspired by Congressional intervention, the Federal Aviation Administration (“FAA”) has begun the process of revising and reorganizing FAA Order 1050.1E, “Environmental Impact: Policies and Procedures” in a new Order, 1050.1F (by the same name).  78 Fed.Reg. 49596-49600 (August 14, 2013).  That in itself would not be particularly notable, except for the importance of the changes that are being made, and their significance for both airport operators and the communities around airports that are the direct recipients of both the disbenefit of the environmental impacts of airport projects, and the potential benefit of the adequate environmental review of those impacts.

The most important of the potential revisions to Order 1050.1E involves FAA’s relief from the burdens of environmental review granted by Congress in the FAA Modernization and Reform Act of 2012, H.R. 658 (112th) (“FMRA”).  Specifically, two legislatively created categorical exclusions are added in 1050.1F, paragraphs 5-6.5q and 5-6.5r, Exemption from NEPA Review which basically give a free pass to changes to air traffic procedures throughout the country.
 

These are: (1) Area Navigation/Required Navigation Performance (“RNP”) procedures proposed for “core” (large hub) airports, or any medium or small hub airports located in the same metroplex, and for RNP procedures proposed at 35 non-core airports to be selected by the Administrator; and (2) for any navigation performance or other performance based navigational procedure “developed, certified, published or implemented that in the determination of the Administrator would result in unreasonable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis as compared to aircraft operations that following existing instrument flight rules . . . in the same airspace irrespective of the altitude.”  78 Fed.Reg. 49599 [emphasis added].

In other words, Congress has exempted FAA from the responsibility to review the environmental impacts, and specifically those of noise and air quality, of the new GPS based procedures being implemented throughout the United States.  The rationale for this exemption is clearly to pave the way for the modernization of the air traffic system with satellite based technology.  The result, however, is less benign.  To the extent these procedures allow for the increasing geographical focus of arrivals and departures, their impacts are also increasingly focused over certain communities.  This means that specific populations are, or will, experience far more intense noise and air quality effects from arrivals and departures, while others will be relieved.  Ironically, this is the very change in the distribution of impacts that the National Environmental Policy Act (“NEPA”) was enacted to disclose. 

Finally, the good news is that, aside from excusing the RNP projects from environmental review, new Order 1050.1F also elevates certain additional categories of projects to EIS status.  For example, Order 1050.1F requires an EIS for, among other things: (1) location of a new commercial service airport in a MSA; (2) a new runway to accommodate air carrier aircraft at a commercial service airport in a MSA; and (3) major runway extensions. 

In summary, new FAA Order 1050.1F appears to follow in the footsteps of its predecessor in smoothing FAA’s path to project approval by eliminating the hard bumps in the process of environmental review.  Interested parties may submit comments by September 30, 2013 by internet at http://www.regulations.gov; by mail at U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC  20590-0001; and by fax at (202)493-2251.
 

Federal Court Finds that Judicial Deference Does Not Mean "Do Everything Federal Entity Requests"

Challengers to the determinations of Federal agencies do not go to court on a level playing field with their governmental adversaries.  Federal courts have long taken the position that deference is properly accorded to an agency making decisions within its area of technical expertise.  That position may now be changing, at least with respect to two specific sets of legal circumstances. 

The first set of circumstances deals with settlements.  In SEC v. Citigroup Global Markets, Inc., 2011 W.L. 5903733 (S.D.N.Y.), Judge Jed S. Rakoff rejected a $285 million settlement between the Securities and Exchange Commission (“SEC”) and Citigroup which he believe had not been adequately supported.  Specifically, the Judge found the settlement was vague concerning the rationale for a charge of negligence in what was clearly a well thought out scheme of “shorting” dubious investments it had just sold to investors; the total losses suffered by investors; and the penalty amount that would have been imposed. 

In a hearing on those questions, counsel for the SEC took the position that the Judge had no business assessing the “public interest” in the settlement, as it was not part of the applicable standard of review.  The Judge firmly disagreed.  Analogizing the applicability of the public interest standard in settlements to its applicability in injunctive relief, the Court held that it could not be asked to “exercise my power and not my judgment,” particularly where Supreme Court authority held that a court cannot grant injunctive relief without considering the public interest.  Ultimately, refusing to be “a mere handmaiden to a settlement privately negotiated on the basis of unknown facts,” the Court ordered the parties to trial in July, 2012.

The second circumstances under which deference may be attenuated in the future occurs mainly in actions involving the National Environmental Policy Act, 42 U.S.C. § 4321 (“NEPA”).  In typical NEPA cases, courts give almost total deference to the adequacy of a project’s environmental review by a Federal agency that has been delegated by Congress with the authority to promulgate rules implementing Congress’ clearly expressed statutory purpose.  U.S. v. Mead Corp., 533 U.S. 218, 227-228 (2001).  However, in a very recent, untypical case, Tinicum Township, et al. v. U.S. Department of Transportation, et al., still pending in the United States 3rd Circuit Court of Appeals, the Federal agency delegated with that rulemaking and implementation power, the United States Environmental Protection Agency (“EPA”) took strong and unchanging issue with the adequacy of the review by the Federal Aviation Administration (“FAA”) of the Philadelphia International Airport Capacity Enhancement Project (“Project”).  Tinicum Township is the first, if not the only, case in which the challenger has pled that, even though FAA is the agency delegated to perform environmental review, it is EPA that deserves deference in its conclusion that the Project’s review was inadequate. 

As can be seen from the above situations, the concept of deference may be in transition.  From a specific perspective, this change could most notably affect the level of judicial review of settlements and NEPA compliance.  More generally, the transition could implicate cognizable separation of powers issues between the Executive and Judicial branches of government.
 

Tinicum Township, Pennsylvania's Challenge to the Philadelphia International Airport Expansion Project Goes to Court

On Tuesday, March 6, 2012, Tinicum Township, Pennsylvania and its partners County of Delaware, Pennsylvania; Thomas J. Giancristoforo; and David McCann (“Petitioners”) took their grievances with the ongoing expansion project at Philadelphia International Airport (“PHL”) to the 3rd Circuit Federal Court of Appeals in Philadelphia.  Petitioners, made up of communities and residents surrounding the airport, expressed their concern with the Federal Aviation Administration’s (“FAA”) often-ignored failure to adequately disclose and analyze the project’s air quality and land use impacts. 

Relying most heavily on consistent objections to the project by the Environmental Protection Agency (“EPA”) the Federal agency delegated by Congress with the power to promulgate and enforce regulations governing Clean Air Act compliance, Petitioners asserted that their claims are based on: (1) FAA’s failure to comply with the disclosure and analysis requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”); (2) the EPA’s right to receive deference from the Court to its negative views of the project because, in the 3rd Circuit, “deference follows delegation,” see, e.g., Chao v. Community Trust Company, 474 F.3d 75, 85 (3rd Cir. 2007); and (3) FAA’s violation of the Airport Airway Improvement Act, 49 U.S.C. § 47101, et seq., (“AAIA”) requirement that airport projects be reasonably consistent with the existing plans of jurisdictions authorized by the State in which the airport is located to plan for the development of the area surrounding the airport.  49 U.S.C. § 47106(a)(1).  FAA disagreed with Petitioners’ assertions of deference and claimed that they had complied with the AAIA by relying on the plans of the Delaware Valley Regional Planning Commission.  (See Philadelphia Inquirer, March 6, 2012 and Delaware County Daily Times, March 7, 2012 for catalog of FAA arguments.)

The three judge panel expressed satisfaction with the scope of the oral argument, but is not subject to any specific time period within which to render its decision.
 

There May Still Be Time to Weigh in on the Congressional Action to Exempt the NextGen Technologies from NEPA Review

As we reported yesterday in our blog titled “FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review,” Congress is set to act on the conference version of H.R. 658 (“Act”), a Bill the nominal purpose of which is to fund the Federal Aviation Administration (“FAA”) for 2011-2014, a task Congress has been unable or unwilling to accomplish for the last two years. 

The legislation goes far beyond funding, however.  Toward another stated purpose - to “streamline programs” - the Act sets out the parameters for establishment and operation of FAA’s Next Generation Transportation System (“NextGen”).  Not stopping there, it also “creates efficiencies” by exempting the NextGen program from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), Act, § 213.  Thus, whole communities around at least 30 “core” airports might be newly impacted by aircraft overflights seemingly without the opportunity for public review and comment before the NextGen project is implemented, and without an avenue of leverage in the courts afterwards.  All is not yet lost, however.
 

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.

FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review

In a monument to political deal making, the United States Congress is today considering, in the House and Senate Aviation Committees, the "FAA Modernization and Reform Act of 2012," H.R. 658 ("Act") to, among other things, "authorize appropriations to the Federal Aviation Administration for fiscal years 2011-2014 . . ." It is, however, the other provisions of the legislation which most profoundly affect the public.   

Purportedly to "streamline programs, create efficiencies, reduce waste and improve safety and capacity," the most recent version of the Act to emerge from the House-Senate Conference Committee exempts all new area navigation ("RNAV") and required navigation performance ("RNP") procedures, which collectively comprise the "Next Generation Air Transportation System" ("NextGen"), Act § 201, Definitions, from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA"). 

The Act, generally, mandates that all "navigation performance and area navigation procedures developed, certified, published or implemented under this section [Section 213] shall be presumed to be covered by a categorical exclusion (as defined in § 1508.4 of Title 40, C.F.R.) under Chapter 3 of FAA Order 1050.1E, unless the Administrator determines that extraordinary circumstances exist with respect to the procedure." Act, § 213(c)(1).   

The Act expands on this mandate in § (c)(2). "NEXTGEN PROCEDURES - Any navigation performance or other performance based navigation procedure developed, certified, published or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace, shall be presumed to have no significant effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure."

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.

Legislature Asked to Grant CEQA Relief for Rail Projects

Following in the footsteps of his colleagues, on January 6, 2012, Assemblyman Mike Feuer introduced legislation that would give rail projects the same type of relief from California Environmental Quality Act (“CEQA”) requirements that were received in the last session by the proposed NFL stadium in Los Angeles, and some renewable energy projects. Notably, the CEQA amendments enacted for the NFL stadium include a very short time frame of 175 days for resolution of CEQA issues. While current CEQA litigation may extend to two years or more, depending on the complexity of the project and workload of the court, it stands to reason that issues surrounding local projects such as the stadium, with local traffic, noise and air quality impacts, may potentially be resolved within the 175 day timeframe. Rail projects are of far different scope, geographic extent, and are subject to a different set of laws.

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.
 

Don't Procrastinate: Make Your Comments on Environmental Analyses Early and Often

Recent appellate cases have once again brought to the fore the critical importance of the “exhaustion of administrative remedies” for any potential challenger to an agency action based on noncompliance with the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act (“NEPA”) and other laws meant to protect the environment and public.

In California, as example, public projects such as road construction, airport development, and power facilities, as well as private projects such as shopping centers are challenged on the basis of the failure to exhaust administrative remedies, or to present the alleged grounds of noncompliance “to the public agency orally or in writing . . . during the public comment period provided by this division or prior to the close of the public hearing . . .” Cal. Pub. Res. Code § 21177.

All too often, individuals, environmental organizations and public agencies wait to make their decisions to challenge the analysis of a project’s environmental impacts until their frustration peaks, and the time for filing a legal challenge arrives. [The usual time for filing a CEQA challenge is very short – 30 days from the filing by the agency of its Notice of Determination (“NOD”) which marks the final agency action in the CEQA process. NEPA is normally 60 days from the signing of the Record of Decision (“ROD”).] By that time, however, it is too late, because “exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184, 1199 (2004).
 

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.
 

National Environmental Policy Act (NEPA) Review of the Federal Aviation Administration's Next Generation Air Transportation System (NextGen)

In a recent report entitled Civil Aviation Growth in the 21st Century, the Aerospace Industries Association (AIA) recommended that the Federal Aviation Administration (FAA) develop strategies to integrate National Environmental Policy Act (NEPA) review into the FAA’s Next Generation Air Transportation System (NextGen) implementation planning process in a way that would make NextGen environmental reviews less costly and time-consuming.

 

In the report, the AIA acknowledges that: (1) redesign of terminal airspace by the FAA requires compliance with NEPA; (2) airspace redesign typically has potentially negative environmental impacts and does not qualify as a “categorical exclusion”; and (3) most often, airspace redesigns require an Environmental Assessment (EA). Every EA must result in either a ‘finding of no significant impact” (FONSI) or a more detailed “environmental impact statement” (EIS). Citing the historical duration and cost of FAA actions involving EAs and EISs, the AIA reports that industry stakeholders in NextGen are frustrated with the time-consuming and costly nature of the NEPA review process, consider it a major impediment to the timely rollout of the system, and would like to see additional efforts to expedite the NEPA process. Although the report does not expressly state that all NextGen EAs should result in a FONSI, it could reasonably be read to suggest that approach in order to save costs and fast-track the NEPA review process.

While it is true that NEPA review is costly and time-consuming, there should be no different, attenuated NEPA review process for NextGen than for any other Federally sponsored or funded project. To subject some arbitrarily chosen Federal projects to less stringent review than NEPA prescribes would require an amendment of NEPA (a highly unlikely eventuality). NextGen is no different than any other Federal effort, and the Congress has clearly spoken about the precise protocols that must be followed. Any initiative to the contrary, without a NEPA amendment, would be contrary to law.

The California Supreme Court Clarifies Environmental Review Baselines Under the California Environmental Quality Act (CEQA)

The California Supreme Court recently weighed in on the critical issue of the proper baseline to be used in assessing the environmental impacts of a proposed project under the California Environmental Quality Act (CEQA). [Agencies must use a “baseline” from which to determine whether a project’s environmental effects will be “significant.”]  In Communities For a Better Environment v. South Coast Air Quality Management District, et al., 48 Cal. App. 4th 310 (2010), ConocoPhillips Company argued that the proper baseline for environmental analysis of a project at a petroleum refinery employing existing equipment should be the maximum permitted operating capacity of the equipment, even if the equipment is operating below those levels at the time the environmental analysis is commenced. The Court rejected that argument, holding that the baseline for CEQA analysis must be the “existing physical conditions in the effected area” (i.e., “real conditions on the ground”), rather than the level of development or activity that “could” or “should” have been present according to a plan or regulation. This confirms the California CEQA Guidelines requirement that the baseline consist of the physical environmental conditions in the vicinity of the project as they exist at the time the notice of preparation of the EIR is published or at the time the environmental analysis begins. 14 Cal. Code Regs. §15125(a).
 

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.

Proposed Project to Close "710 Gap" Will Require Environmental Review

On Thursday, May 27th, the Los Angeles County Metropolitan Transportation Authority (MTA) will consider approving the preparation of a comprehensive State Route 710 corridor study, which will include alternatives and environmental impacts of a project that would close the 4 mile gap in the Long Beach (710) Freeway between Alhambra and Pasadena. Alternatives will include improvements to surface streets, construction of a surface freeway and a series of tunnels. The project would be subject to environmental review under the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). The 710 Freeway Project would also have to comply with the Clear Air Act, Clean Water Act and Historic Preservation Act. The tunnels alternative[s] will present unique issues concerning groundwater, contaminated soils and active fault lines.

The 710 Freeway was originally planned to extend from Long Beach to Pasadena. The Long Beach to Valley Boulevard segment was opened in 1965. However, since that time the segment between Valley Boulevard and Pasadena has been stalled by public controversy and court actions, resulting in the “710 gap.” Opponents argued that completion of the Valley View to Pasadena segment would require destruction of hundreds of homes and some historic properties. Residents in other areas complained about noise and air pollution caused by heavier traffic on other freeways and surface streets because of 710 gap, and supported completion of the freeway. In 1999 a U.S District Court Judge ruled that the project, as then proposed, violated the Clear Air Act, NEPA and the Historic Preservation Act. Rather than remedy the violations, the Federal Highways Administration (FHWA) rescinded its Record of Decision (ROD) and the California Transportation Commission withdrew its Notice of Determination.

Wind Farm Projects - Federal and Local Environmental and Legal Issues

In the midst of much debate as to whether a threat of “global warming” and “global climate change” actually exists and, if it does, further debate as to whether wind-generated energy would reduce carbon-dioxide emissions sufficiently to have a measurable impact on global temperatures, one thing is certain – wind farms are here, and more are planned. And, as with all forms of energy generation, the siting, construction and operation of wind farms present a number of Federal and local environmental and legal issues.

At the Federal level, wind farm projects may be subject to environmental review under the National Environmental Policy Act (NEPA). They may also be subject to challenge under the Clean Water Act, Endangered Species Act, Migratory Bird Treaty Act, Rivers and Harbors Act and the Outer Continental Shelf Lands Act. (The Mineral Management Services (MMS) has authority to regulate alternative energy projects on the Outer Continental Shelf.) Other regulatory issues include Bureau of Land Management (BLM) policies for wind energy projects proposed for land managed by BLM, and U.S. Forest Service (USFS) special use permit requirements for wind energy projects proposed on USFS managed land. Wind farm projects proposed near airports or military airfields must be evaluated by the Federal Aviation Administration (FAA) to determine if they would be an obstruction or hazard to air navigation or interfere with surveillance radar. Wind farm projects can sometimes impact tribal rights.

Potential state and local issues include state environmental review, project siting, permitting and licensing, zoning and surrounding land uses, land leases and easements, turbine noise, vibration (“aerodynamic modulation”), shadow flicker, visual impacts and aesthetic concerns, perceived health effects of wind turbines, interference with electromagnetic transmissions (radio, television and cell phone signals) and claims for declines in tourism and property values. There can also be issues concerning technical requirements, safety, insurance and liabilities on the part of developers, landowners and operators.

These and other wind farm related issues are being litigated, and will continue to be litigated in increasing numbers, in state and Federal courts. The litigation ranges from a case pending in a North Dakota District Court, in which the City of Wishek is seeking to force a homeowner to remove a single wind turbine from his yard, to the 130-turbine Cape Wind project, located in waters five miles off Cape Cod and recently approved by the FAA and the Department of Interior, which opponents have vowed will “be in litigation for years.”

CEQ's Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

 

The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEPA.  It provides practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger a quantitative analysis, and instructs agencies how to assess the effects of climate change on the proposed action and their design.  The draft guidance does not apply to land and resource management actions and does not propose to regulate greenhouse gases. 

While some courts have already held that climate change and greenhouse gas emissions must be considered in the NEPA process. See, “Greenhouse Gases Should Be Considered in All EISs and EAs;” see also, Center for Biological Diversity v. NHTSA, 508 F.3d 522 (9th Cir. 2008), Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003). To these courts, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS.

What the draft guidance does explain, however, that is not present in the case law are the “practical tools for agency reporting.” That is, it sets a de minimis level of 25,000 metric tons of CO2e before the proposed action would trigger quantitative analysis, which may eliminate many federal projects from the guidance.

The public comment period for this draft Guidance is 90 days. Comments may be submitted electronically from the CEQ’s website: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit?topic=Consideration%20of%20Greenhouse%20Gases. In addition, at the end of the draft Guidance, the CEQ asks several questions that it would like to have addressed by the public:

1. How should NEPA documents regarding long-range energy and resource management programs assess GHG emissions and climate change impacts?

2. What should be included in specific NEPA guidance for projects applicable to the federal land management agencies?

3. What should be included in specific NEPA guidance for land management planning applicable to the federal land management agencies?

4. Should CEQ recommend any particular protocols for assessing land management practices and their effect on carbon release and sequestration?

5. How should uncertainties associated with climate change projections and species and ecosystem responses be addressed in protocols for assessing land management practices?

6. How should NEPA analyses be tailored to address the beneficial effects on GHG emissions of Federal land and resource management actions?

7. Should CEQ provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes. At what level should GHG emissions be considered to have significant cumulative effects. In this context, commenters may wish to consider the Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Draft Guidance on the Appropriateness of “Findings of No Significant Impact” Tightens Monitoring and Reporting Restrictions

When Finding of No Significant Impact (FONSI) is issued for a Federal action, the need for a detailed Environmental Impact Statement is obviated. Many Federal agencies attempt to mitigate the environmental impact of their actions as part of the NEPA process so that they can reach a FONSI and not be required to draft an EIS. However, in many cases, the follow-up on mitigation activities promised is lacking. Thus, the draft guidance seeks to clarify that although the environmental impacts of a proposed action may be mitigated to the point when the agency make a FONSI determination, the agency must make the mitigation requirements public and perform the necessary monitoring and reporting.

Revised Draft Guidance Clarifying Use of Categorical Exclusions

Many Federal actions do not have significant effects on the environment.  When these actions fall into broad categories of activities, agencies may apply a “categorical exclusion” from further NEPA review.  The CEQ originally released a draft guidance to clarify and promote the use of categorical exclusions on September 17, 2006. 71 Fed.Reg. 54816 (Sept. 17, 2006). This action would revise that draft guidance and clarify the rules for categorical exclusions and ensures that there is a concise public record when agencies apply them.  While CEQ previously has sought public comments on this matter, this guidance provides additional clarifications, so it will seek additional public comment for 45 days.

Greenhouse Gases Should Be Considered in All EISs and EAs

On 40th Anniversary of the National Environmental Policy Act (NEPA), Jim Tankersley of the Los Angeles Times wrote that

The White House is poised to order all federal agencies to evaluate any major actions they take, such as building highways or logging national forests, to determine how they would contribute to and be affected by climate change, a step long sought by environmentalists.

The Presidential Order would most likely issue from the Council on Environmental Quality, an organization set up by NEPA to oversee the NEPA process. Mr. Tankersley’s article goes on to report that that

The head of the White House Council on Environmental Quality, Nancy Sutley, said in an interview this week that federal agencies "should think about both the effect of greenhouse gas emissions, and the effects of climate change, on decisions they make."

She added that the administration's decision was not yet final.

The White House was originally petitioned in 2008 to formally recognize climate considerations under NEPA, but the White House has not taken any action since then.

However, federal agencies may already be required to include an analysis of climate in their Environmental Impact Statements (EISs) and Environmental Assessments (EAs). NEPA does not mention specific areas that federal agencies must analyze to complete EISs and EAs. Instead, it states that the federal agency shall analyze the effect the federal project will have on the environment, without specifically mentioning any particular areas that need to be examined. Thus, it could be argued that federal agencies should already be examining the effect of the federal project on climate change since that is an “environmental effect” within the purview of NEPA.

As Mr. Tankersley’s article points out, some federal agencies have already taken upon themselves to consider effects on climate. Moreover, there is a growing body of caselaw indicating that the courts are beginning to rule that federal agencies should consider the effect their projects will have on the environment. The U.S. Circuit Court of Appeals for the Ninth Circuit recently held in Center for Biological Diversity v. National Highway Transportation Safety Administration that the NHTSA was required to examine in its EIS the effect of greenhouse gas emissions from the federal project. In coming to that conclusion, the 9th Circuit summarized the following findings from International Panel on Climate Change reports and other sources:

Carbon dioxide concentrations increasing over the 21st century are virtually certain to be mainly due to fossil-fuel emissions;

The average earth surface temperature has increased by about 0.6 degrees;

There have been severe impacts in the Arctic due to warming, including sea ice decline;

Global warming will affect plants, animals, and ecosystems around the world. Some scientists predict that it will cause 15 to 37 percent of species in certain regions to be extinct;

Global warming will cause serious consequences for human health, including the spread of infections and respiratory diseases;

Climate change is associated with increasing variability and heightened intensity of storm such as hurricanes;

Climate change may be non-linear, meaning there are positive feedback mechanisms that may push global warming past a dangerous threshold (the“tipping point”).

Center for Biological Diversity v. NHTSA, 508 F.3d at 522-23. To the Court, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS. See also, Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).

In addition, NEPA contains a provision that could be taken to require federal agencies to consider the impact of the greenhouse gas emissions created by the federal project. Section 102(F) of NEPA, 42 U.S.C. 4332(F) states that “all agencies of the Federal government shall:”

Recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.

To be sure, an order from the White House would be beneficial in establishing a nationwide policy and prompt recalcitrant agencies to require consideration of climate change in their EISs and EAs. At least in the Ninth and Eighth Circuits, however, one could argue that the courts have taken the view that NEPA already requires exactly what the order would seek to implement.

D.C. Circuit Court of Appeals Decides Against Challenge to East Coast Airspace Redesign

In a per curiam Abbreviated Disposition that will not be published, the U.S. Court of Appeals for the District of Columbia Circuit summarily denied 12 separately-filed petitions for review that questioned the legality of the Federal Aviation Administration’s Environmental Impact Statement for its East Coast Airspace Redesign. The matter, Rockland County v. Federal Aviation Administration, brought 12 lawsuits together that represented a multitude of petitioners from Delaware, Pennsylvania, New Jersey, New York, and Connecticut. The Court kicked all of the citizens’ complaints about the effect the Airspace Redesign would have on their environment to the curb, deferring to the FAA’s analysis.

The Court reached this conclusion without addressing many of the arguments that the Petitioners presented in their briefs and at oral argument. First, with respect to Petitioners’ argument that the EIS violated the National Environmental Policy Act, the court simply stated that it is deferring to the FAA’s reasoning that they did everything they needed to do. Not mentioned in the Court’s cursory and truncated analysis is the fact that the FAA has said that it will not implement the Night Routing part of the EIS’ “Preferred Alternative,” and the effect that failure will have on the environmental impacts of the Airspace Redesign.

Second, the Court also deferred to the FAA in deciding that the EIS sufficiently took into account the state and local parks and parklands that would be affected by the Airspace Redesign. The Court, states that the Petitioners should have engaged in a “battle of the experts” and should have “impugn[ed] the agency’s screening methodology.” Disposition, p.8. In most cases, impugning an agency’s methodology is looked upon in great disfavor by a court.

Finally, the Court decided that the Airspace Redesign fell within the de minimis exception of the Clean Air Act, thereby releasing the FAA from any requirement to perform any type of analysis as to the impact the project will have on the surrounding area’s air quality programs. The Court admitted that the FAA did not follow the procedures set forth by the EPA in 40 CFR 93.153, but the “fuel burn analysis” that the FAA did create was sufficient. This was true, the Court concluded, despite the fact that the “fuel burn analysis” was devoid of any mention of criteria pollutants or indirect emissions as required by EPA’s regulation 40 CFR 93.153. The Court went on to hold that any error that the FAA committed in not following the required air quality procedures was harmless error.

It is obvious why the Court does not want this decision published. It is rudimentary and lacking in analysis of many of the arguments presented by the Petitioners. Moreover, it is cursory in statements of law and fact. For example, on p. 10 of the Disposition, in a footnote, the court states:

The petitioners also argue that the fuel burn analysis failed to show the redesign will reduce emissions in all relevant nonattainment and maintenance areas, see 40 C.F.R. 93.153(b), but that argument is not properly before us because the petitioners failed to raise it until their reply brief, Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000).

In fact, the Petitioners had raised that issue in their opening brief, not once, but twice. See, Petitioners’ Joint Brief, pp. 88 and 93.

In the end, it is sad to see that a Court that prides itself on having many of its members become Supreme Court Justices, hide behind a per curiam decision that is so superficial and so careless. The Petitioners now have 45 days to decide whether to seek a rehearing or a rehearing en banc.

Other Articles on the subject:

Other posts on this blog about the Airspace Redesign:

East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals

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.

Petitioners File Reply Brief in East Airspace Redesign Case

On Friday, March 6, 2009, the Joint Petitioners in the East Coast Airspace Redesign case now pending in the D.C. Circuit Court of Appeals, filed their Reply Brief, arguing that the FAA failed to comply with 4(f) of the Department of Transportation Act, the Clean Air Act and NEPA.

The Reply Brief takes the FAA to task for failing to consult with the state and local authorities regarding the tremendous impact that the Airspace Redesign will have on "4(f) properties," that is, state and local parks, and wildlife preserves.  It also points out that the FAA is in violation of the Clean Air Act, because it failed to establish that the Airspace Redesign would conform with the Clean Air Act.  Finally, the Reply Brief, argues that the FAA violated NEPA by not following its own regulations concerning aircraft noise in assessing the noise impacts of the Airspace Redesign.

Briefing for the case is now completed and oral argument is scheduled for 9:30 a.m.. on May 11, 2009, in front Judges Sentelle, Ginsburg, and Randolph at the E. Barrett Prettyman United States Courthouse, 333 Constitution Ave. NW, Washington, D.C..  Senators Dodd (D - Conn.) and Specter (R - Pa.) filed a amicus curiae brief supporting the Petitioners' Petition for Review to have the Airspace Redesign vacated and remanded back to the FAA.  The New Jersey Attorney General, Anne Milgram also filed an amicus brief in support of the Petitioners.

Other Posts regarding this Litigation:

 

New Jersey Attorney General Files Amicus Brief in Airspace Redesign Litigation

On September 10, 2008, Anne Milgram, the New Jersey Attorney General filed an amicus curiae brief in support of the Petitioners in the Airspace Redesign litigation currently pending in Court of Appeals for the District of Columbia Circuit.  In it, the New Jersey Attorney General emphasizes the impact that the Airspace Redesign will have on New Jersey's air quality and the FAA's abject failure to address those air quality issues.

The amicus brief "concurs with and joins" in Petitioners' argument that the Airspace Rdesign is not exempt from the Clean Air Act or EPA regulations, that FAA's presumption of conformity for air traffic control procedures is not applicable to the Airspace Redesign; and that neither FAA's regulations nor the record in this matter supports FAA's "fuel burn study."  The amicus brief goes on to state that the issues that face New Jersey as a result of the FAA' decision, including inhibiting New Jersey's ability to comply with the NAAQS under the Clean Air Act.

The brief also mentions that the FAA violated the National Environmental Policy Act (NEPA) because the Airspace Redesign was approved on the basis of an inadequate environmental impact statement.  In particular, the brief argues that the EIS failed "to adequately inform the public of the noise impacts of the Airspace Redesign."

This brief, coupled with the brief that Sen. Arlen Specter (R-Pa.) and Sen. Christopher Dodd (D-Conn.) filed on September 5, 2008, provide the court with additional reasons why the EIS must be remanded back to the FAA for further consideration.

FAA Issues "Written Re-Evaluation" of East Coast Airspace Redesign Record of Decision

In a rather odd, unusual statement, the FAA issued on July 31, 2008, a "Record of Decision and Written Re-Evaluation of the New York\New Jersey\Philadelphia Metropolitan Area Airspace Redesign Final Environmental Impact Statement."  In response to several requests for supplemental EIS to deal with the congestion management orders for JFK, LaGuardia and Newark, the FAA prepared the "Written-Re-Evaluation" "to consider whether these Orders Limiting Scheduled Operations and the new rates and charges amendments, either affected the purpose and need for the Airspace Redesign project, or altered the reported environmental impacts."  To no one's surprise, the FAA concluded that there is no "significant new information warranting preparation of a new or supplemental EIS for the Airspace Redesign project."  Since this strange document, coming 11 months after the initial Record of Decision and 29 days before the Petitioners' Brief in the Airspace Redesign litigation is due, is a "Record of Decision," anyone objecting to the ROD may file a Petition for Review within sixty days of July 31, 2008.

What remains to be seen is what effect this document will have on the on-going litigation, the GAO report (which was due out July 31, 2008, but probably will not be issued until the end of August), and the increasing political pressure that is being put on the FAA to reconsider the entire project.

Update on East Coat Airspace Redesign Litigation

As is well known, the FAA's Record of Decision on September 5, 2007 (and subsequently amended on October 5, 2007) regarding the NY/NJ/PA Airspace Redesign generated a host of litigation.  Twelve Petitions for Review were filed in three different Federal Circuit Courts of Appeal. Seven petitions from counties, municipalities and organizations in Pennsylvania, Delaware and New Jersey were filed in the Third Circuit, located in Philadelphia. Three petitions from the State of Connecticut as well as towns and groups of towns in Connecticut were filed in Second Circuit, located in New York. And two petitions from one county in New York and a New York organization were filed in the D.C. Circuit. Because the first petition filed was in the D.C. Circuit, the Court, by  orders on February 14, 2008 and on March 10, 2008, consolidated all of the petitions in the D.C. Circuit.

Since all of the petitions were consolidated, the D.C. Circuit requested that all of the petitioners devise a proposal as to the format for briefing on this matter. Pursuant to the D.C. Circuit Court of Appeals'
March 18, 2008, Order, on April 17, 2008, all of the Petitioners filed a Joint Proposal for Briefing with the court.  Following the court's strict guidelines, the Petitioners suggested to the court that they file one brief covering all of the issues presented by all of the Petitioners that is substantially longer than a normal brief.  Contained in the one brief, however, will be the specific complaints of each of the petitioners. In addition, the Petitioners set out a briefing schedule that took into account the fact that twelve groups of attorneys would be working on a single brief. Thus, the Petitioners suggested that their brief be due on August 1, 2008, the FAA’s brief to be due on October 31, 2008, and the Petitioners’ Reply brief be due on December 19, 2008. These dates and the format of the briefs were agreed to by the Department of Justice, who is representing the FAA in all of the matters.