D.C. Circuit Court of Appeals Denies Petition for Review of FAA's "Presumed to Conform" Rule

Posted on February 5, 2009 by Chevalier, Allen & Lichman, LLP

On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act to assure that its projects “conform to an implementation plan after it has been approved or promulgated under section 7410" of the Clean Air Act.  42 U.S.C. 7506(c).  The FAA used its presumed to conform rule as one of the justifications for its failure to perform a conformity determination in the East Coast airspace redesign.

Although the Court found that the Petitioners did not have standing to bring the petition for review, the petition was successful in at least a couple regards.  First, the decision was based on the predicate issue of standing, and did not reach the merits of the Petitioners’ argument that the FAA had not complied with federal law in the promulgation of its presumed to conform rule.  Thus, that argument may be raised by the Petitioners in the East Coast airspace redesign litigation now pending before the D.C. Circuit.

Second, by bringing this case, Petitioners exhausted their legal remedies with respect to a "facial" challenge to the FAA's presumed to conform rule.  The opinion in this case leaves the validity of the FAA’s presumed to conform rule on the table, ripe for the court’s consideration in the airspace redesign litigation.

That being said, the court’s opinion is not without error.  For example, the court states that the “Petitioners challenge two recent FAA actions in which the FAA altered the air traffic control activities at airports . . .” Opinion, p.4.  However, that, in fact, is not the case.  As stated in the Petitioners’ brief, the issue was whether the FAA followed the rules set out by the EPA in 40 CFR 93.153 in promulgating its presumed to conform rule.  By confusing the Petitioners’ facial challenge of the FAA’s presumed to conform rule for an “as applied” challenge, the court mistakenly applied incorrect facts and law to the matter that resulted in error in the outcome.

You can read the pleadings in this matter right here:

In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.

Other blog posts on this topic:

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FAA Files Its Brief In The East Coast Airspace Redesign Lawsuit

Posted on January 13, 2009 by Chevalier, Allen & Lichman, LLP

After several months of delays, the FAA filed its Brief for Federal Respondents in the East Coast Airspace Redesign case that is pending before the U.S. Court of Appeals for the District of Columbia Circuit.  As expected, the brief alleges simply that the FAA performed the Environmental Impact Study for the airspace redesign "adequately" - which is all that is required under NEPA - "adequately" addressing cumulative impacts, "adequately" analyzing noise impacts, and "properly" assessing environmental justice impacts.

There is one interesting note contained in the Brief.  The FAA argues that the Airspace Redesign is "presumed to conform" with the Clean Air Act (Brief, p.108).  If the project is "presumed to conform" the FAA can forego its duty under the Clean Air Act from performing a conformity applicability analysis.  This position is contrary to the position that the FAA took in a lawsuit brought by Delaware County, Pennsylvania, in which the FAA argued the Airspace Redesign project did not rely on the presumed to

conform rule. See, p.13 of Respondents' Brief in Delaware County v. Dept. of Transportation, ("Thus, the FAA's conclusion that the Airpsace Redesign project did not require a full conformity determination. . . has a basis independent of the Presumed to Conform List:  it is based on the fact that the project will reduce air emissions by reducing fuel consumption").  The FAA held to this position in oral argument on the matter:

       JUDGE GARLAND:  Yes, but the Record of Decision [in the Airspace Redesign] doesn’t mention [the Presumed to Conform Rule] except to note that it’s there, but it doesn’t say you rely on it.  It says you relied on -- it says based upon the EIS and the clarification in the footnote below.  It doesn’t say based upon the final rule.

        MR. MCFADDEN:  That’s true. . .

Transcript, p.29.  Now, the FAA claims that it did in fact rely on the Presumed to Conform rule.  On p. 108 of the Brief, the FAA states that the FAA found "that a conformity determination was not required for the Project because it was presumed to conform to any applicable SIP, as described by FAA's own Presumed to Conform List."  Brief, p. 108.  It seems that the FAA's position on this topic shifts with the wind.

 
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FAA's Presumed to Conform Rule Will Affect Communities Around Airports

Posted on August 8, 2008 by Chevalier, Allen & Lichman, LLP

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.

 

The EPA promulgated regulations in 1993 detailing how the Federal agencies should go about proving their actions conform. Included in those regulations is a provision that, until 2007, had not been used by any Federal agency. That provision (40 C.F.R. sec. 93.153(f)) allows a Federal agency, under certain conditions, to list a series of activities it deems “presumed to conform.” Intended to be used for actions in which the emissions are minimal, such as land transfers and or transactional actions, the FAA in included in its 2007 “presumed to conform” rule, “air traffic control activities and adopting approach, departure and enroute procedures for air operations.” What this rule does is eliminate the need for the FAA to provide the communities around airports with data about the impact actions like the airspace redesign in the Philadelphia/New York/Newark area will have on the area’s air quality. Without the FAA performing a conformity determination, there will be no air quality data available to the communities around airports, despite the growing research that shows that aircraft emissions contribute to problems in air quality.

The County of Delaware, located at the end of the runways of Philadelphia International Airport, has petitioned the U.S. Court of Appeals in Washington D.C. to put an end to the FAA’s rule, at least with respect to changes in air traffic control procedures. You can read the pleadings in this matter right here:

Oral argument in this matter will be held in Washington D.C. on October 7, 2008.

In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.
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Group of Concerned Cities, Companies and Citizens Files Comments Regarding EPA's Proposed General Conformity Revisions

Posted on April 13, 2008 by Chevalier, Allen & Lichman, LLP
On April 11, 2008, a group of concerned cities, companies and citizens filed comments regarding the EPA's proposed revisions to the General Conformity Regulations (see earlier post "EPA Proposes Revisions to General Conformity Rules).  To see the Group's actual Comment letter as filed, click here.

The General Conformity Rules, which the EPA promulgated in 1993 and has not substantially updated since then, require Federal agencies to evaluate the effect their actions will have on air quality prior to their taking any such action.  The Group expressed concern that the revisions that the EPA was suggesting took away some of the protection that the Clean Air Act granted citizens in section 176 (42 U.S.C. 7506).  In addition, the Comment letter stated that the EPA:
  • should not allow Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
  • should not allow Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
  • should not allow the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
  • should add a definition of applicability analysis.
  • should delete the "presumed to conform" program, since only one agency has taken advantage of it in 15 years and it most likely violates the Clean Air Act and the Constitution.

At the public hearing on this matter on March 14, 2008, William Becker, Executive Director for the National Association of Clean Air Agencies, an organization of state and local air pollution agencies, gave testimony.  Mr. Becker stated that the revisions assured "the virtual elmination of what little effectiveness there is in this already weak rule."  His comments mirrored the comments made by the Group.  In addition, he stated that the organization objected to:
  • allowing project applicants to segregate project emissions among two different air quality management areas;
  • changing the definition of "temporary" to apply to activities as long as five years;
  • eliminating "regional signficance," instead the 10% threshold should be lowered "to a more meaningful level;"
  • exempting emissions from aircraft operations above 3,000 feet.
  For a full list of other comments by other Commenters, click here.
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EPA Proposes Revisions to General Conformity Rules

Posted on March 7, 2008 by Chevalier, Allen & Lichman, LLP

On January 8, 2008, the United States Environmental Protection Agency published its proposed revisions to the General Conformity Rules.  Under the Clean Air Act, a State develops a State Implementation Plan (SIP), which is the State’s plan for bringing sections of the state which do not comply with the Clean Air Act into compliance. Before any Federal agency takes or funds any action, it must ensure that the project will not interfere with the SIP – that is, it must assure that the Federal action is in “conformity” with the SIP. The General Conformity regulations are the regulations, promulgated by the EPA, implementing the Clean Air Act's "conformity provision.

The General Conformity regulations have become critical to communities around airports because the FAA’s conformity determination is often the only analysis that the FAA will perform with respect to how its projects will affect the air quality in the area around the airport. Thus, we have sought to keep these regulations strong so that Federal agencies, such as the FAA, have to provide the communities around airports with information about the effect their projects have on air quality and ensure that the actions of the Federal agencies dop not adversely impact air quality in the communities.

The EPA’s proposed revisions, the way we read them, weaken those principles in the following ways:

  • By allowing Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
  • By allowing the Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
  • By allowing the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.

Comments on the proposed revisions are due April 14, 2008, one month after a public hearing held in Washington D.C. on March 14, 2008.  We will post our comments as soon as they are submitted to the EPA.

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