Less than two weeks ago, the United States Supreme Court took the first of several actions meant to close the door on what has become a standard in opposing citizens’ efforts to challenge the missteps of administrative agencies, i.e. Judicial Deference to agency decision-making. Specifically, Judicial Deference has guided the Courts into accepting an agency determination “based on a reasonable interpretation of an ambiguous statute Congress has tasked the Agency with implementing.” Chevron vs. NRDC, 467 U.S. 837 (1984).

On May 1, 2023, the Court agreed to accept certiorari in the case of Loper Bright vs. Raimundo in which herring fisheries challenged a regulation issued by the Marine Fisheries unit of the Commerce Department, requiring private payment by boat owners of monitors mandated by the agency to be located on individual fishing boats to prevent over-fishing In accepting the case for review, the Court, for the first time, agreed to confront the concept of Judicial Deference head-on.

Continue Reading Supreme Court May Have Dealt Death Blow to Judicial Deference

In a split decision, the Ninth Circuit Court of Appeals rejected the FAA panel’s decision approving the construction of a new passenger terminal at Hollywood Burbank Airport based on a flawed Environmental Impact Statement (EIS). City of Los Angeles, California v. Fed. Aviation Admin., 63 F.4th 835 (9th Cir. 2023) [hereinafter City of Los Angeles]. The City of Los Angles had challenged the FAA’s decision approving the new terminal complex, parking structure, fire station, and maintenance and cargo buildings on two grounds. First, the City challenged the Environmental Impact Statement (EIS) based on fundamental flaws in the study. The second argument was that the FAA did not consider all reasonable alternatives such that the outcome was predetermined. The court rejected the second argument but found in favor of the City in the first argument. Accordingly, the court remanded the case back to the FAA panel since the plan failed to comply with the National Environmental Policy Act (NEPA). 

The court determined that the FAA had a fundamental flaw in the EIS because it failed to consider the reasonable possibility that equipment running simultaneously would have increased noise levels beyond the acceptable thresholds. Courts generally give deference to the FAA’s fully informed and well-considered decision. City of Los Angeles, 63 F.4th at 849 citing Audubon Soc’y of Portland v. Haaland, 40 F.4th 967 (9th Cir. 2022). However, the court is permitted to take a hard look at the EIS when the FAA relies upon incorrect assumptions or data. City of Los Angeles, 63 F.4th at 849-50 citing Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005). Here, the court determined that the EIS failed to account for the cumulative effects of the simultaneous equipment operation. Simultaneous equipment operation was not a remote possibility but a certainty. The FAA should have foreseen that equipment could operate simultaneously since project phases overlapped. Had the FAA made such adjustments, it would have increased the noise level in neighboring communities to a level that would have resulted in the project not being approved. Thus, the court determined that the FAA failed to meet its burden and a second look was warranted.

Continue Reading Flawed Data in EIS Noise Calculation Requires the FAA to Take a Second Look at the Airport Development Project at Burbank

Stirring from their usual slumber, in the face of increasing community dissatisfaction with respect to noise and emissions from aircraft overflight, the Federal Aviation Administration (“FAA”) and United States Congress each took some action in recent months. First, FAA awarded more than $19 million to various universities and other organizations through the “ASCENT” program, a cooperative aviation research organization founded in 2014 (but apparently only lightly funded until now).

The primary purpose of the grants was to allow the universities to study ways to reduce aviation noise. Many of those awards were for noise resulting from episodic impacts of: (1) uncrewed aircraft; (2) supersonic aircraft; and (3) advanced air mobility or AIM. However, giving some thought to more “mundane” causes, FAA gave nearly $2 million to Boston University to study the relationship between aircraft noise, sleep, mental health, and cardiovascular health. Similarly, the University of Pennsylvania received slightly over $1 million to study the way in which noise from aircraft affects sleep. All of these latter grants go to the fundament of impacted communities’ concerns.

Continue Reading FAA and Congress Finally Awaken to Citizens’ Discontent with Aircraft Noise Impacts

Since our February 1, 2023 blog, concerning the California Court of Appeals tentative decision in Make UC a Good Neighbor vs. Regents of Univ. of California, et al., that Court has taken the definitive step of confirming its tentative decision, on the critical ground that “UC Berkeley failed to assess potential noise impacts from loud student parties in residential neighborhoods near campus, a long-standing problem that the [environmental review] improperly dismissed as ‘speculative.’”

Anyone who has ever been a student at a university, and lived off-campus (probably including the judges), understands the reality of the Court’s conclusion. Nevertheless, the Regents continued to argue, unsuccessfully, that “social noise” is not an impact subject to CEQA.  On that basis, the Regents continued to loudly excoriate the Court, saying, among other things, that the Court had armed “the NIMBY neighbors with additional weapons to obstruct development of all new urban housing.”  

On the contrary, however, the Court’s argument is neither new nor does it “dramatically expand CEQA.” As the Court responded “[t]he regents must analyze the potential noise impacts relating to loud student parties. Their decision to skip the issue, based on the unfounded notion that the impacts are speculative, was a prejudicial abuse of discretion and requires them to now do the analysis that they should have done at the outset.” The Court reached that decision on a plethora of prior judicial decisions such as Keep Our Mountains Quiet v. County of Santa Clara, 236 Cal. App. 4th 714, 734 (2015) [substantial evidence exists that crowd noise might have significant noise impacts on surrounding residents].

In short, despite the Regents loud protests, CEQA has not changed as a result of the Court’s ruling.  What may have changed, however, is a strengthening of the will of the legislature to protect its new-found priority on the construction of housing in a State long, and increasingly, deficient in that asset. However, even their victory does not mean that petitioners reject the effort to increase the supply of housing.  As stated by Petitioners, “we want UC to build housing, just not in a totally inappropriate location. Based on the publicity already surrounding this decision, that issue is still open.

On March 9, 2023, the Ninth Circuit Court of Appeals granted the “Motion to Enforce Judgment” filed by co-Petitioners Cities of Los Angeles and Culver City (“Cities”) in City of Los Angeles, et.al. v. Stephen Dickson, et.al.  The Order found the Federal Aviation Administration (“FAA”) in blatant violation of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), as well as the Court’s prior Order of  July 2021, requiring FAA to compensate for its original violation by performing environmental review of the newly established North Downwind Arrivals to Los Angeles International Airport (“LAX”), over heavily populated areas of  the Cities.

Normally finding FAA immune from judicial intervention on the ground of FAA’s responsibility for “safety and efficiency” of aircraft operations, this time, the Court found FAA’s “recalcitrance” in failing to initiate environmental review for more than five years after implementation of the procedures, and 19 months after the Court’s original Order in July 2021, totally “unreasonable” on the ground that “human health and welfare are at stake.”  The Court’s recognition of FAA’s flagrant violations led to the highly unusual step of mandating that FAA: (1) immediately submit to Court a timeline for completion of environmental review; and (2) file a status report on FAA’s progress every 90 days until it has fully complied with the Court’s order.  

This ruling may give impacted communities some hope that FAA is not immune from judicial oversight, and cannot get away with thumbing its nose at the law and court orders. It should be remembered, however, that, in this case, FAA displayed more than its usual hubris by failing and refusing to do ANY environmental review. The question remains open as to whether the courts will act similarly where FAA performs “inadequate” review rather than none at all.  Stay tuned.

No matter what objection or challenge the United States taxpayers bring in response to Federal Aviation Administration (“FAA”) initiatives, FAA’s defense is always the same: changes are required for “safety and efficiency.”  While that may be true in some instances, FAA’s global resort to such an excuse (e.g., justification for changes to flight paths over populated areas without notice or environmental review) is belied by the recent responses of both the United States Congress, and the agency’s ultimate leadership, the Secretary of Transportation.

First, the General Accounting Office (“GAO”) criticizes FAA for failing “to develop a comprehensive strategy” to guide the integration of drones into the national airspace system.  GAO-23-105189, January 26, 2023.  Specifically, the GAO claims that FAA’s plans so far lack the “important elements – such as goals, objectives, and milestones – that would help FAA manage more effectively.”  It would appear difficult, if not impossible, to promote and support “safety and efficiency” in a changing system utterly lacking in the critical elements of the system itself. 

Second, and certainly not less important, also on January 26, 2023, the United States Congress passed the NOTAM Improvement Act of 2023 in response to the unprecedented breakdown of the air traffic system caused by the failure of the Notice to Air Missions (“NOTAM”) component of that system, allegedly resulting from an accidental deletion of a file.  The new Act calls for a task force to be appointed by the FAA Administrator to review and reform the system.  Although there is the taint of “fox guarding the hen house” in this structure, the task force will also be made of up pilots, airline executives, union officials, air traffic controllers and computer system experts (notably lacking members of the public) to give a broader based view of necessary information to be included in the NOTAM system, as well as the most effective method of transmitting that information to pilots.  The question remains, of course, why the FAA’s current structure was unable to effectuate those changes, and thus maintain the “safety and efficiency” and even the operational capacity, of the system. 

Continue Reading Washington Takes FAA to Task on Lack of “Safety and Efficiency” in the U.S. Air Traffic System

Public concerns have been running amuck on the internet regarding the recent tentative decision by the California Court of Appeal for the First Appellate District in Make UC a Good Neighbor v. Regents of the University of California, et.al., Case No. A165451 (Trial Court Case No. RG21110142). The case involves a challenge under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) to the adequacy of the Environmental Impact Report (“EIR”) for the Long Range Development Plan for the former “Peoples’ Park” in Berkeley, an historical icon to the student war  protests of the 1960s. A portion of the Long Range Plan involves construction of more than a thousand units of residential housing for university students, and acknowledges potential increases in population ancillary to the student body such as faculty and staff who will not receive access to the housing, but will be forced to compete with local residents for existing housing supplies.

The public’s concern appears to arise not merely from the project itself, but the Court’s purported expansion of the scope of CEQA to incorporate not merely the physical impacts of the project itself (e.g., traffic, emissions, etc.), but also impacts caused later by the users and/or occupants of the development, in this case the students, including “social noise” from late night parties and pedestrians.

Continue Reading Public Concern Grows Over Broad-Based CEQA Decision

New York Governor Kathy Hochul has brought an abrupt end to the aspirations of New York State Legislators, lead by Senator Brad Hoylman, to reduce the noise created by sightseeing helicopters overflying his District in Manhattan.  On or about December 16, 2022, Governor Hochul vetoed SB 7493A, colloquially called “Stop the Chop,” which would have, among other things, allowed “any person who shall have suffered interference with the use and enjoyment of private property or public parkland by a rotorcraft used in a manner that creates an unreasonable level of sustained noise at ground level including the interior, balcony, or other outdoor area of a building, shall have a right of action against any person, except a passenger with no control of the operation of the rotorcraft . . .”  The purpose of the legislation was to reduce the noise caused by the approximately 165 helicopter operations that overfly Manhattan on sightseeing excursions and airport transportation each weekend. 

The basis of Governor Hochul’s veto, anathema to so many voters, was federal preemption.  “Airspace is regulated by the federal government, not by the state [and] certain elements of this Bill violate the federal law that regulates airports and airspace.”  In that assertion, Governor Hochul is correct.  Specifically, Congress has mandated that “the United States Government has exclusive sovereignty over the airspace of the United States.”  49 U.S.C. § 40103(a)(1).  Moreover, “a citizen of the United States has a public right of transit through the navigable airspace,” 49 U.S.C. § 40103(a)(2), and only “the Administrator [of FAA] shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitude) for . . . protecting individuals and property on the ground.”  49 U.S.C. § 40103(b)(2)(B). 

Therefore, leaving aside the issues of the annoyance caused by the noise from low flying helicopters, and even taking into account ambient noise omnipresent in Lower Manhattan, the dominance of the federal government and its constitutional prerogative in the Interstate Commerce Clause of the United States Constitution, justifies Governor Hochul’s action.  The thwarted Legislators have threatened to enact additional legislation banning helicopter terminals from New York parks.  Stay tuned for the outcome of that effort. 

Since the publication of the above-entitled article on April 28, 2022, events have occurred that raised further questions about the immediacy of the closure of East Hampton Municipal Airport on the South Shore of Long Island, New York, owned and operated by the Town of East Hampton.

Specifically, the most recent related cases are Friends of East Hampton Airport, Inc., et al. v. Town of East Hampton, U.S. District Court for the Eastern District of New York Case No. 2:15-cv-02246, and National Business Aviation Association, Inc. v. Town of East Hampton, U.S. District Court for the Eastern District of New York Case No. 2:22-cv-02824, challenging the Town’s plans to expedite the closure, by closing the airport on the night of Tuesday, May 17, and reopening it on the morning of Thursday, May 19, as a private use airport. That plan was halted by the grant of a temporary restraining order by U.S. District Judge Joanna Seybert in 2017, and confirmed on May 17, 2022 by State Supreme Court Justice Paul Baisley. That motion for temporary restraining order was brought on the ground, among others, that the closure would violate the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., by providing no opportunity for enforcement of that statute after the closure. Finally, an emergency administration action, under 14 C.F.R. Part 16 was brought at the Federal Aviation Administration, FAA Docket No. 16-22-05 Notice, on largely the same ground. The Notice appears to have been accompanied by FAA’s statement that the FAA “has not reviewed or approved of [the Town’s] proposed prior permission required restrictions at the airport, if such approval is required. The FAA strongly recommends that [the Town] suspend implementation of its prior permission required restrictions framework until this matter has been considered resolved.” [Emphasis in original].

In short, the prospective closure, both short and long term, faces numerous hurdles which it will take some time to resolve. Stay tuned for the outcome from both the court and the agency.

On May 20, 2022, the Council on Environmental Quality (“CEQ”) will implement revisions to current regulations governing the environmental analyses under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”). Specifically, CEQ will revise 40 C.F.R. § 1502.13, restoring detailed “purpose and need statements” in environmental impact statements (“EIS”); 40 C.F.R. § 1507.3, removing language that could be construed to limit local governmental agencies flexibility to develop and revise NEPA procedures to implement local agency specific programs; and 40 C.F.R. § 1508.1, definition of “environmental effects,” to restore the distinction between “direct, indirect and cumulative” effects.

The reason for the proposed changes lies with the dueling political and environmental concepts of the immediate past and current presidential administrations. In 2017, then President Trump issued Executive Order 13807, requiring CEQ to propose certain changes to then existing regulations. In January 2020, CEQ issued the new rules, making wholesale revisions to the original regulations that limit their applicability, and became effective on September 14, 2020. Immediately thereafter, on January 20, 2021, the new Administration issued Executive Order 13990 revoking the previous Administration’s Executive Order, and requiring CEQ to review and revise all regulations implemented between 2017 and 2020, i.e., those issued during the Trump Administration, to become consistent with later Executive Order 13990. The following constitutes the results of CEQ’s efforts toward “rectifying” the limitations on previous regulations, consistent with the intent underlying the original 1978 implementing regulations.

Continue Reading The CEQ Tries to “Make a Silk Purse from a Sow’s Ear” by Revising NEPA Regulations