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

In a somewhat surprising turn of events, the Federal Aviation Administration (“FAA”), on April 15, 2022, approved the closure of East Hampton Airport, owned and operated by the Town of East Hampton, Long Island, New York. The airport is scheduled for closing on May 17, 2022. 87 Fed.Reg. 22617. FAA’s acquiescence appears surprising because of its long and strong resistance to the closure of airports in general. See, e.g., City of Santa Monica v. Federal Aviation Administration, 631 F.3d 550 (D.C. Cir. 2011). The Town plans to convert the currently public use airport into a new, publicly owned, private use facility.

A November 2020 letter from the FAA to the Town detailed four options to obtain local control of the airport: continued operation as a public use airport, negotiations of an agreement for mandatory restrictions on aircraft operators, permanent closure of the airport, or closure and subsequent reopening of a new, private use airport. A fifth option emerged in subsequent discussions between the Town and the FAA to transition the airport from public to private use without closure.

Reopening the airport under what the FAA calls a “prior permission required” model, the Town will be able to impose and enforce restrictions limiting air traffic and noise. Under this model, the Town could prohibit certain aircraft, or certain commercial or private users, impose noise limits; and restrict takeoffs and landings at certain times of the day. In determining which aircraft could use the airport, the Town could also take into account certain environmental factors. Electric aircraft might be favored, for example, over those that use leaded aviation fuel. As the prior permission classification applies, those who wish to use the airport will first need clearance from the Town, and that permission could be granted, revised, or withdrawn. Should the restrictions allowed under this model not meet community needs, the Town could still opt to close the airport entirely.

Both the process and the result sound interesting and hopeful to noise impacted communities. But don’t jump to any conclusions.

Continue Reading FAA Defies History by Approving the Closure of East Hampton Airport

It is likely that the public may be somewhat disappointed with Congress’ latest effort to ameliorate the impacts of airport noise on underlying populations. On November 18, 2021, Adam Smith, Member of the House of Representatives from Washington State, introduced the Aviation Noise and Emissions Act, H.R. 6050, a Bill intended to “develop pilot grant programs through the Environmental Protection Agency to research and collect data on aircraft and airport noise and emissions and to use such information and data to develop a mitigation strategy, and for other purposes.” H.R. 6050, p. 1. At its foundation, the Bill calls for a “3-year pilot grant program with eligible entities to measure noise and emissions, including greenhouse gases, particulate matter, ultrafine particles, and other toxic pollutants, in communities near airports or air flight pathways using sophisticated methods and technology that allow tracing of noise and emissions to specific sources . . .,” H.R. 6050, paragraph 2.a., including identifying the primary recipients of such noise such as specific neighborhoods, structures, or impacted areas.

Continue Reading Is H.R. 6050 The Best That Congress Can Do?

In an unprecedented confrontation, the Federal Aviation Administration (“FAA”) and Federal Communications Commission (“FCC”) have been facing off over the imminent implementation of 5-G C Band transmission sought by AT&T and Verizon for their telephones. The issue for FAA is radar altimeters installed in scores of aircraft types, including commercial airlines, some business jets, and many helicopters, including helicopter air ambulances. Radio altimeters supporting these systems operate between 4.2-4.4 GHz; C-Band 5-G operations will initially begin at around 3.7 GHz.

The concerns are not merely the delays and cancelled flights potentially caused by FAA’s issuance of over 1,500 Notices to Airmen (“NOTAM”), restricting use of instrument approaches and other procedures that rely on radar altimeters, principally in bad weather, but also increased weather minimums for Part 91 helicopter operations.
Continue Reading Federal Agencies Go “Head to Head” Over Implementation of 5-G C-Band Implementation

The U.S. Court of Appeals for the District of Columbia Circuit has, in its December 10, 2021 Opinion, Judicial Watch, Inc. v. United States Department of Justice, No. 20-5304, now cut short the federal government’s flagrant overuse of the fifth exemption from production of documents set forth in the Freedom of Information Act, 5 U.S.C. § 552, the so-called “deliberative process privilege.” That exemption from disclosure has been used by federal agencies, over the years, to deny requesters’ access to public documents, on the ground that those documents contain “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

In Judicial Watch, the D.C. Circuit specifically reiterated and adopted the factors the agency invoking the privilege must show, as originally set forth in Senate of Puerto Rico v. DOJ, 823 F.2d 574, 585-86 (D.C. Cir. 1987). These include “(1) ‘what deliberative process is involved,’” and “(2) ‘the role played by the documents in issue in the course of that process.’” Id., quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). In Judicial Watch, the Court added “to ‘assist the court in determining whether th[e] privilege is available,’ the agency should also explain (3) the ‘nature of the decisionmaking authority vested in the officer or person issuing the disputed document,’ and (4) the ‘relative positions in the agency’s chain of command occupied by the document’s author and recipient.’” Id. at 586.

The Court found none of those factors to have been addressed by the DOJ in Judicial Watch, and, consequently, remanded the case to the District Court “to review [the requested documents] in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative.”

Continue Reading D.C. Circuit Court of Appeals Puts the Brakes on Federal Government’s Use of the “Deliberative Process Privilege” to Avoid FOIA Disclosure

It appears that some members of Congress have not given up the fight to bring relief from airport noise impacts to their constituents. Since the beginning of August, 2021, at least eight (8) “Aviation Noise Bills” have been introduced in an attempt to lessen the burden on some communities from aircraft overflight, particularly in the wake of implementation of the Federal Aviation Administration’s (“FAA”) NextGen initiative, which resulted, in many cases, in the consolidation of flight paths, often over communities not previously overflown at all, thus also increasing noise over those and other communities.

Several of these legislative efforts are particularly notable, some for being remarkably ambitious, and others for being wish lists, without a strong chance for passage.

Continue Reading Congress Continues to Search for Relief From Airport Noise Impacts

On Thursday, July 8, 2021, the City of Culver City and its co-Petitioner, City of Los Angeles, prevailed in the case of City of Los Angeles, et.al. v. Stephen Dickson, et al. against the Federal Aviation Administration (“FAA”) on substantially all claims, an almost unprecedented outcome for local governments against a federal agency acting within its area of expertise. In that case, Petitioners challenged FAA’s failure to perform any environmental review, as required by the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”) before implementing changes in aircraft flight tracks that lowered altitudes and consolidated flight tracks over residential areas not previously overflown, resulting in continuing and vociferous community opposition. That challenge was brought in the U.S. Court of Appeals for the Ninth Circuit under its original jurisdiction, 49 U.S.C. § 46110, in the adjudication of challenges to FAA actions.

Because these operational changes were part of a larger national program of airspace changes called FAA’s NextGen project, aimed at reducing distances aircraft must fly on arrival to airports, Petitioners’ victory has implications for communities throughout the nation over which FAA has persisted in implementing flight track changes under the guise of the NextGen Project, in each and every case without the benefit of required environmental review.

Continue Reading Buchalter Wins National Victory

On April 21, 2021, the Federal Aviation Administration (“FAA”) took the next step toward what it calls the “further integration of Unmanned Aircraft (UA) in the National Airspace System.” However, that description somewhat understates the impact of FAA’s action. By amending 14 C.F.R. Part 107 to allow previously prohibited operation over unrelated populations and moving vehicles, both during the day and at night, FAA may have opened the flood gates to UA without adequate consideration of their impacts on underlying populations.

Specifically, FAA has divided UA into categories based upon size, construction and regulatory requirements.

Continue Reading FAA Loosens Restrictions on Drone Flights Over People, Automobiles, and at Night

The citizens’ organization, Quiet Skies, made up of communities around the nation impacted by airport operations, is making its views about the increasing impacts of the Federal Aviation Administration’s (“FAA”) NextGen initiative known to new Secretary of Transportation Buttigeig at the very dawn of his tenure. Alison Pepper, a Quiet Skies activist, has drafted a letter to the new Secretary in which she argues the steady worsening of NextGen’s noise, air quality, and other environmental impacts on diverse regions around the United States; the absence of benefits to safety and efficiency of air operations originally promised as the justification for NextGen’s initiation; and the origin of these problems in the symbiotic relationship between FAA and the airline industry.

Quiet Skies solicited readers to send the attached letter to their Representatives, and, independently to Secretary Buttigeig.

The goal is to ensure their understanding of the geographic scope and severity of NextGen’s impacts, which have thus far been handled by affected communities through the courts on a case by case basis. Stay tuned for the results of this widespread effort to inform decision makers and thereby gain relief.