After several months of delays, the FAA filed its Brief for Federal Respondents in the East Coast Airspace Redesign case that is pending before the U.S. Court of Appeals for the District of Columbia Circuit. As expected, the brief alleges simply that the FAA performed the Environmental Impact Study for the airspace redesign "adequately" – which is all that is required under NEPA – "adequately" addressing cumulative impacts, "adequately" analyzing noise impacts, and "properly" assessing environmental justice impacts.
There is one interesting note contained in the Brief. The FAA argues that the Airspace Redesign is "presumed to conform" with the Clean Air Act (Brief, p.108). If the project is "presumed to conform" the FAA can forego its duty under the Clean Air Act from performing a conformity applicability analysis. This position is contrary to the position that the FAA took in a lawsuit brought by Delaware County, Pennsylvania, in which the FAA argued the Airspace Redesign project did not rely on the presumed to
conform rule. See, p.13 of Respondents’ Brief in Delaware County v. Dept. of Transportation, ("Thus, the FAA’s conclusion that the Airpsace Redesign project did not require a full conformity determination. . . has a basis independent of the Presumed to Conform List: it is based on the fact that the project will reduce air emissions by reducing fuel consumption"). The FAA held to this position in oral argument on the matter:
JUDGE GARLAND: Yes, but the Record of Decision [in the Airspace Redesign] doesn’t mention [the Presumed to Conform Rule] except to note that it’s there, but it doesn’t say you rely on it. It says you relied on — it says based upon the EIS and the clarification in the footnote below. It doesn’t say based upon the final rule.
MR. MCFADDEN: That’s true. . .
Transcript, p.29. Now, the FAA claims that it did in fact rely on the Presumed to Conform rule. On p. 108 of the Brief, the FAA states that the FAA found "that a conformity determination was not required for the Project because it was presumed to conform to any applicable SIP, as described by FAA’s own Presumed to Conform List." Brief, p. 108. It seems that the FAA’s position on this topic shifts with the wind.