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.

Communities challenging, or considering a challenge, to the noise and other impacts from low-flying aircraft, enabled in new flight paths and altitudes by the Federal Aviation Administration’s (“FAA”) NextGen Initiative, may find some comfort in the knowledge that they are not alone. Communities from coast to coast, even including communities that are themselves airport proprietors, have recently joined the group of communities that earlier brought legal action against FAA to vindicate their citizens’ interests, some of which suits are only now approaching decision.

First chronologically, the City of Los Angeles, owner and operator of Los Angeles International Airport (“LAX”), brought suit in December 2019, in the United States Court of Appeals for the Ninth Circuit, challenging a southerly shift in flight tracks of departing aircraft from Bob Hope (Hollywood-Burbank) Airport, City of Los Angeles v. FAA, Case No.19-73164, alleging FAA either failed to review the revised flight paths under NEPA, or failed to take action required by law to ensure reasonable compliance with assigned flight tracks. In its opposition, FAA first argued that it is not responsible for the divergence from established flight tracks, but, rather, it is due to “Acts of God,” such as wind, weather, and flocks of birds. It was only months later, when FAA realized that excuse wouldn’t “fly,” that it assumed responsibility by claiming the need to “vector” aircraft off established flight tracks for safety purposes. After Court-supervised mediation efforts were unsuccessful, briefing was completed in September 2020, but no decision has been made by the Court to date. That case is not by any means the end of the story.

Continue Reading Communities Challenging NextGen Are In Good Company

On January 13, 2021, the Federal Aviation Administration (“FAA”) published, in the Federal Register, Vol. 86, No. 8, Docket No. FAA-2021-0037, p. 2722, a necessary, if somewhat belated, “summary to the public of the research programs it sponsors . . . that could potentially inform future aircraft noise policy.” While the “spirit” appears willing, the “execution” is weak.

FAA first claims, by way of “background,” that “the number of people living in areas exposed to SIGNIFICANT levels of aircraft noise in the United States has declined from roughly 7 million to just over 400,000 today.” Id., at 2723 [emphasis added]. FAA credits that reduction principally to “phased transition to quieter aircraft;” efforts by local governments to reduce the number of people living in close proximity to airports through planning; sound insulation; and, perhaps most ironically, the introduction of Performance Based Navigation (“PBN”), or RNAV procedures which consolidate flight corridors, thus reducing the NUMBER of persons overflown, while, at the same time, increasing noise for residents under the newly consolidated flight tracks.

FAA’s conclusions are skewed by reliance on outdated assumptions.
Continue Reading FAA Research on Environmental Issues Ignores Significant Factors in Public Discontent

Members of the Congressional Quiet Skies Caucus, composed of Congresspersons throughout the United States whose constituents are significantly impacted by aircraft noise, have expressed deep concern, in a letter of September 23, 2020, to the Federal Aviation Administration (“FAA”) about the inadequacy of the FAA’s statutorily mandated evaluation of “alternative metrics to the current average day-night level [“DNL”] standard, such as the use of actual noise sampling and other methods, to address community airplane noise concerns.” See FAA Reauthorization Act of 2018, P.L. 115-254, §§ 173, 188 (“Report”). Caucus members catalogue a variety of insufficiencies.

Continue Reading Congress Members Express Concern with FAA Noise Metric Report

In a June 19, 2020 Findings of Fact, Conclusions of Law, and Judgment (“Judgment”), the District Court of Jefferson County, Colorado, in Board of Commissioners of Adams County v. City and County of Denver, recounted in detail the expert testimony offered by Adams County, that fatally undercuts the traditional reliance by the City of Denver, operator of Denver International Airport (“DIA”), and airport operators in general, on “noise modeling” in place of “noise monitoring” to determine the impacts of the aircraft noise on surrounding communities.

The Judgment exhaustively recounted evidence offered by Adams County, detailing the flaws in the noise modeling utilized by DIA to document compliance with the noise provisions of the “Intergovernmental Agreement [for a new airport], (‘IGA’),” originally entered into between the two parties on April 21, 1988, when the plan for development of the new Denver airport was being initiated.

Continue Reading Colorado Court Judgment Finds Noise Modeling Significantly Understates Aircraft Noise

In a momentous shift of its normally conciliatory relationship with aircraft manufacturers, the United States Senate, on June 17, 2020, introduced the “Aircraft Safety and Reform Act,” legislation that will, if enacted, effectively reverse the provisions of the Federal Aviation Administration Reauthorization Act of 2018 (“2018 FAA Act”) which allow aircraft manufacturers to perform, with a minimum of FAA oversight, the certification for safety purposes, of the aircraft it manufactures.

The proposed, bipartisan, legislation, seeks to control both the performance of the industries to which were delegated the aircraft safety certification responsibilities (“ODA”) under the 2018 FAA Act, and the FAA personnel charged with overseeing their compliance.

Continue Reading Proposed Legislation Repudiates Congress’ Hands Off Policy Toward Aircraft Certification

Airport sponsors and their legal counsel have been forced by the COVID-19 pandemic to exercise judgment and make tough decisions regarding the financial accommodations they will offer their commercial aeronautical tenants to help them weather the current storm. In many ways, these decisions have mirrored the difficult decisions employers have had to make to pare down their workforces in order to survive in the wake of this public health emergency and the resultant economic downturn. Airport sponsors are highly motivated to support their valued commercial tenants and to negotiate mutually beneficial financial terms (including rent abatement). But federally-obligated airports must also balance their regulatory obligations to maintain an economically self-sustaining airport and to treat similarly situated tenants equally.

Buchalter’s airport regulatory attorneys have developed the following best practices airport sponsors should consider as they navigate the growing tidal wave of negotiations with commercial aeronautical tenants.

Continue Reading Financial Accommodations for Airport Tenants in Response to COVID-19

On June 4, 2020, President Trump issued an Executive Order, “EO On Accelerating the Nation’s Economic Recovery from the Covid-19 Emergency by Expediting Infrastructure Investments and Other Activities” (“EO”) for the expressed purpose of forestalling “the likelihood of a potentially protracted economic recovery with persistent high unemployment,” EO, Sec. 1, resulting from the business closures necessitated by the onslaught of Covid-19. Predicated on the authority granted in the National Emergencies Act, 50 U.S.C. § 1601, et seq., and the Stafford Act, 42 U.S.C. § 5191(b), § 501(b), the President found that the Covid-19 outbreak in the United States constitutes “a national emergency that posed a threat to our national security.” EO, Sec. 1.

In order to “facilitate the Nation’s economic recovery,” EO, Sec. 2, the EO seeks to “speed infrastructure investments,” EO, Sec. 2, that will “strengthen the economy and return Americans to work, EO, Sec. 2, by, among other things, “expediting the delivery of transportation infrastructure projects, EO, Sec. 3, and civil works projects within the purview of the Army Corps of Engineers, EO, Sec. 4.

All these are laudable goals. The potential problem, however, is in the simultaneous abrogation of environmental protections in such statutes as the Endangered Species Act, 16 U.S.C. § 1531, et seq., and Clean Water Act, 33 U.S.C. § 1344, et seq., as well as other statutes administered by the Army Corps of Engineers. The most notable of these is the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”).

Continue Reading Executive Order Presents a Trade-Off Between Infrastructure Investment and Environmental Regulation

In the FAA Reauthorization Act of 2018, Pub. L. 115254, § 188, Congress required the Federal Aviation Administration (“FAA”) to “evaluate alternative noise metrics to current average day-night level standard, such as the use of actual noise sampling to address community airplane noise concerns.” In its April 14, 2020 Report to Congress (“Report”), FAA thumbed its nose at that mandate, and chose instead to enumerate the various available metrics, without any attempt at comparative analysis of their efficacy at representing real world noise impacts when compared to Day/Night Average Sound Level (“DNL”), currently required by FAA for analysis of airport noise impacts.

Continue Reading FAA Sidesteps Congressional Mandate to Evaluate Alternative Noise Metrics