Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

In a per curiam Abbreviated Disposition that will not be published, the U.S. Court of Appeals for the District of Columbia Circuit summarily denied 12 separately-filed petitions for review that questioned the legality of the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:

• Delaware County Press Release, June 11, 2009.
• Conn. AG loses first round in flight fight,  The Hour.
• Blumenthal Loses First Round In Flight Fight, Hartford Courant
• CT Attorney General: seeks rehearing in FAA Southwestern Ct case
  Hartford Courant
• DC Circuit Sides with FAA in Airspace Redesign Dispute, The BLT: Blog of Legal Times.

Other posts on this blog about the Airspace Redesign:

• East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals, posted May 18, 2009
• Petitioners File Reply Brief in East Airspace Redesign Case, posted March 8, 2009
• FAA Files Its Brief in the East Coast Airspace Redesign Lawsuit, posted January 13, 2009
• New Jersey Attorney General Files Amicus Brief in the Airspace Redesign Litigation, posted September 12, 2008.
• Sens. Specter and Dodd File a Joint Amicus Brief in the East Coast Airspace Redesign Litigation, posted September 8, 2008.
• Petitioners' Opening Brief, posted September 3, 2008.
• Update of Airspace Redesign Litigation, posted April 28, 2008.
• Airspace Redesign May Not Reduce Fuel Consumption for the Airlines as FAA Claims, posted March 18, 2008

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

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

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

Petitioners' statements regarding the court's ruling:

• Port Authority of New York and New Jersey
• Air Transport Association of America

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

Previous blog posts regarding slot auctions:

• FAA Proposes Congestion Management Rule for JFK and Newark (May 21, 2008)
• FAA Issues Order Limiting Scheduled Operations at Newark Liberty (May 21, 2008)
• FAA Suspends Auction of Flight Slots at Newark (August 29, 2008)
• GAO Declares that the FAA Does Not Have Legal Authority to Auction Slots (October 1, 2008)
• Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, LaGuardia and Newark (October 12, 2008)
• Legal Analysis of FAA's Slot Auction Rule for JFK and Newark, Part 1 (October 26, 2008)
• Legal Analysis of FAA's Slot Auction Rule for JFK and Newark, Part 2 (October 28, 2008)

Other news articles:

• The New York Times, Court Order Delays Auction of Landing Slots at Airports
• Business Week, Court blocks FAA plan to auction NYC-area slots
• The Dallas Morning News, Court blocks auction of NY airport slots
• The Associated Press, Court blocks FAA auction of airport slots
• The Wall Street Journal, Court Blocks Plan to Auction Landing Slots at New York Airports

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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.

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