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.