Seeking to Overturn the Dismissal of its Challenge to the East Coast Airspace Redesign, Delaware County, Pennsylvania, Files Petition for Certiorari to the U. S. Supreme Court

Posted on November 19, 2009 by Barbara E. Lichman

On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.

Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.

Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.

Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.

A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.

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

Posted on May 18, 2009 by Barbara E. Lichman

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.
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