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

The FAA recently published the Draft Environmental Impact Statement (DEIS) for its "Capacity Enhancement Project" (CEP) (warning! this is a large file, the DEIS is broken up into Chapters at the end of this post) at the Philadelphia International Airport (PHL).  Comments on the DEIS are due no later than November 10, 2008.  Since, as its title suggests, the FAA seeks to increase capacity at PHL, there is a concomitant increase in environmental effects of the project over what would be considered the "no action" alternative,i.e., not doing the project.  In particular, there will be increases in noise in certain areas and an increase in air pollution created by the airport, not only by the increase in aircraft once the project is finished, but also by the construction created by the Project.

After dismissing several options as not meeting the "Purpose and Need" of the Project, the FAA offers two alternatives, both involve:

• the addition of a new 12,000-foot runway 9C-27C;
• relocating the Air Traffic Control, Tinicum Island Road, Island Avenue, and the UPS terminal;
• closing Hog Island Pier and and extending Fort Mifflin Pier; and,
• closing Conrail line south of the Airport and constructing new rail line northeast of the Airport. 

The major differences between the two alternatives are:

• Alternative B eliminates the 6,500-foot runway, Runway 17-35; and
• Alternative B would tear down the existing terminal and create a terminal system similar to that at Atlanta Hartfield with terminal "islands" connected by a People Mover;

Although the FAA claims that the total population and housing units exposed to DNL 65 dB and greater would decrease substantially under both alternatives, those decreases "would occur primarily north of the Airport in Philadelphia County, Pennsylvania as a result of eliminating Runway 17-35 or significantly reducing its use."  That being said, the FAA admits that there would be "significant impacts" under both alternatives to people and housing units in Delaware County thus shifting the noise contours from Philadelphia County to Delaware County.  In addition, both Camden and Gloucester Counties would experience increases in noise levels during the twelve years of construction.

Likewise, with respect to air quality, the FAA admits that there will be an increase in emissions of pollutants, especially during the construction phase of the project.  This is an increase not only of "criteria pollutants" (i.e., Volatile Organic Compounds, Nitrous Oxides, and Particulate Matter) but also of "Hazardous Air Pollutants" and greenhouse gases.  Moreover, despite recent studies indicating that emission of pollutants above 3,500 feet above ground level has an effect on air pollutant levels on the ground (click here for a summary of the Taubman and the Clark studies, click here (on p.3) for a summary of the University of Maryland study), the FAA ignores the effect that such high level emissions will have.  

Humans will not be the only ones effected by the project.  The DEIS also reports that natural resources such as wetlands, and parks, as well as endangered and threatened species will be impacted by the Project.

A couple of final notes:

• The DEIS does not mention coordination with any local agency outside the City of Philadelphia. This is despite the fact that although the City of Philadelphia operates PHL, most of the Airport is actually located in Delaware County, Pennsylvania.
• Comments on the DEIS are due no later than November 10, 2008.  That being said, it should also be noted that if one were to bring a lawsuit against the FAA after the FAA decides to implement this Project, that person is limited to raising issues before the court that he or she raised before the FAA.  In other words, if no one comments on the Project on a particular issue prior to the FAA making its final decision, that issue may not be raised in a subsequent lawsuit.

More information regarding the Project can be found at the Project web site http://www.phl-cep-eis.com.  Here are links to the separate Chapters, Figures and Appendices, if you do not want to download the entire DEIS.

• Executive Summary
• Abstract
• Chapter 1Introduction and Background
• Chapter 1 Figures
  
• Chapter 2 Purpose and Need
• Chapter 2 Figures
• Chapter 3  Alternatives
• Chapter 3 Figures
• Chapter 4  Affected Environment
• Chapter 4 Figures A
• Chapter 4 Figures B
• Chapter 5  Environmental Consequences
• Chapter 5 Figures A
• Chapter 5 Figures B
• Chapter 5 Figures C
• Chapter 5 Figures D
  
• Chapter 6 Mitigation
• Chapter 6 Figures
• Glossary, Index, References, List of Preparers, and Distribution List
• Appendices

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The Government Accountability Office (GAO) has issued its long awaited "FAA Airspace Redesign:  An Analysis of the New York/New Jersey/Pennsylvania Project."  Although the GAO promised to publish the report by August 1, 2008, it waited until the same day the Petitioners in the Airspace Redesign litigation filed their opening brief to publish the Report.  Although the GAO promised members of Congress to examine "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review" (p.3), it failed to take into two important aspects of the FAA's environmental review of its Airspace Redesign project, namely the Clean Air Act and section 4(f) of the Department of Transportation Act (for a full treatment of these issues, see the Joint Brief filed by the 12 sets of Petitioners in the Airspace Redesign litigation).

The GAO, making several critical assumptions about the Project, found, in general, that the FAA's approach, at least with respect to NEPA, was "reasonable."  First, the GAO found that the statement of the project's purpose and need, which, according to the GAO, was to increase the efficiency and reliability of the airspace while maintaining safety and reducing delays, was reasonable.  Most importantly, the GAO concluded that the FAA "reasonably excluded noise reduction."  Second, the GAO found that the FAA developed a reasonable range of alternatives.  Third, the FAA acted reasonably in not analyzing the indirect environmental effects of potential growth, the GAO said, resulting from the redesign.  Next, the GAO opined that the FAA reasonably involved the public throughout the environmental review process.  Finally, the GAO found that the FAA satisfied environmental justice directives in Executive Order 12898 and implementing CEQ guidance and DOT Order.

The GAO did identify some limitations to the FAA's methodology, but concluded that the FAA was not required by law to address them.  These "limitations" included the fact that because the FAA assumed that traffic demand and flight operations would not increase in response to airspace system improvements, the FAA did not account for the potential effect of the system improvements in its operational analysis.  Second, the FAA did not fully assess the uncertainty associated with each alternative estimated impacts.  And when the purported benefit of the Project is only a 0.8% reduction in fuel burnt, that "limitation" becomes more important.  Finally, the GAO believed that the FAA should have undertaken an analysis of the economic impacts using both an uncertainty analysis and a benefit-cost analysis.

What the GAO Report did not take into account are two important statutory requirements that are outside of NEPA's procedural requirements.  First, the GAO failed to take into account the fact that the FAA did not perform a "conformity applicability analysis" as required by the Clean Air Act, EPA regulations, and FAA orders.  The air quality in the areas around Philadelphia and New York are subject will be affected by the Airspace Redesign and there is no analysis anywhere in the FAA's environmental review regarding air quality.  Second, the GAO did not report on the FAA's failure to properly take section 4(f) of the Department of Transportation Act into account.  Section 4(f) protects federal, state and local natural areas from the environmental effects of Federal transportation projects.  The GAO Report did not mention the FAA's failure to properly identify and account for the environmental effects of the Project on those natural areas.

In the end, then, the GAO failed to answer the first question posed by Congress:  "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review?"  Without a discussion of the Clean Air Act and 4(f), the Report is incomplete.

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In February, 2007, almost as an after-thought, theFAA included changes to air traffic control procedures to its Presumed to Conform rule. This last minute addition has the potential to seriously impact communities around the airports where these changes to air traffic control procedures take place. 

Why will this obscure regulatory change affect communities? First, a little background on the subject will be helpful. Air quality and noise are the primary concerns of communities around airports. Since Federal law severely limits the ability of communities to affect the amount of noise produced at airports, many communities have focused on protecting their air quality. The conformity provisions of the Clean Air Act provide a useful tool in that regard. They require that all Federal agencies ensure that their projects will not affect the State Implementation Plan (SIP), which is a plan drafted by the state and approved by the EPA in order to come into compliance with other provisions of the Clean Air Act. This “conformity determination” provides communities around airports with needed data concerning the effect the agency’s action will have on the air quality. Moreover, if the Federal agency fails to perform a conformity determination or fails to do it properly, then that it is grounds for the community to object to the Federal agency’s action as a whole.

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