Several groups. individuals, cities, and counties who petitioned the United States Court of Appeals for the District of Columbia to review the FAA’s decision to move forward with its redesign of the New York/New Jersey/Pennsylvania airspace have filed Petitions for Rehearing after the rather surprising D.C. Circuit ruled against them in an opinion that reeks of judicial indifference. See, "D.C. Court of Appeals Decides Against Challenge to East Coast Airspace Redesign," posted June 11, 2009.
In order to obtain a rehearing en banc (i.e., by all of the judges currently sitting on the D.C. Circuit), a petitioner must show:
- The decision of the panel conflicts with the decision of the U.S. Supreme Court or with the decisions of the D.C. Circuit; and/or
- The proceeding involves "one or more questions of exceptional importance."
The standard for obtaining a rehearing by the same panel of three judges who heard the matter the first time is slightly lower. A petition for rehearing will be granted when the court agrees that points of law or fact were overlooked or misapprehended by the panel. FRAP 40. In this case, all three Petitions for Rehearing ask for both a rehearing en banc and a rehearing by the panel.
Delaware County’s Petition for Rehearing
Delaware County’s Petition focuses on the court’s decision that the FAA complied with the conformity provisions of the Clean Air Act by providing a "fuel burn report" instead of a more comprehensive emission inventory According to Delaware County, this position conflicts with the U.S. Supreme Court case of Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) and two D.C. Circuit cases as well: Environmental Defense Fund, Inc. v. EPA, 467 F.3d 1329 (D.C. Cir. 2006) and Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006). These cases, Delaware County argues, require scrupulous compliance with the Clean Air Act as well as the EPA’s implementing regulations.
The court’s failure to hold the FAA to following the letter of the Clean Air Act and the EPA regulations not only conflicts with other decisions, but also presents an issue of exceptional public importance in that it contravenes the express purpose of Congress in enacting the Clean Air Act.The D.C. Circuit recently held in Environmental Defense v. EPA, 467 F.3d 1329, 1336 (D.C. Cir. 2006) that the FAA "may not ‘avoid the Congressional intent clearly expressed in the text simply by asserting that its preferred approach would be better policy.’"
In addition, Delaware County argues that the panel misapprehended several critical facts, not the least of which is the fact that the court based its rejection of one the Petitioners’ critical arguments on the Petitioners not raising the issue in their Opening Brief. The Petition for Rehearing cites the references in the Opening Brief where that issue was raised.
Finally, Delaware County contends that that the panel misapprehends the burden of proof necessary in this matter. Under the holdings of Alabama Power v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979) and Association of Administrative Law Judges v. Federal Labor Relations Authority, 379 F.3d 957 (D.C. Cir. 2005) the burden is on the agency to fully document that an agency’s action falls within a de minimis exemption.
Rockland County, New York, Connecticut Department of Environmental Protection and Friends of Rockefeller State Park’s Petition for Rehearing
Rockland County’s Petition focused on the 4(f) and NEPA aspects of the matter. Rockland County argues that the panel’s decision overlooks the Supreme Court’s decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) regarding the FAA’s responsibilities under 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. sec. 303(c). This provision requires that federal agencies assess the impact their actions will have on publicly owned lands, such as parks and recreation areas.
Secondly, Rockland County claims that the panel misapprehended the law of waiver and overlooked important facts in the administrative record in holding that Petitioners had "forfeited" their claim that FAA had failed to adequately consult with state and local park officials regarding "at least 236 properties."
Third, Rockland County alleges that the panel’s decision misapprehends the public participation requirements of NEPA when it held that the FAA was not obligated to allow for public comment on an important noise impact analysis that was first released at the same time as the Record of Decision, that is after the FAA had already made its decision.
Finally, Rockland County stated a broader concern that the case involves issues of exceptional importance to the public because the panel excused the FAA from complying with important procedural protections under 4(f) and NEPA which has the effect of depriving 30 million people living in 31,180 square miles of five affected states from fully participating in a decision that affects the amount of noise they experience and the parks they enjoy.
New Jersey Coalition Against Aircraft Noise (NJCAAN), Elizabeth, NJ, Counties of Union and Bergen, NJ, and the Boroughs of Emerson, Hilldale, Montvale, Old Tappan, Oradell, Park Ridge, River Vale, Westwood, Woodcliff Lake and Washington, NJ’s Petition for Rehearing
All of the arguments made in the New Jersey Petitioners’ Petition for Rehearing relate to the NEPA aspects of the case. First, the New Jersey Petitioners argue that the panel’s decision failed to cite, and conflicts with, the D.C. Circuit’s decision in Village of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006) relating to FAA’s failure to follow its own rule, FAA Order 1050.1E, and "project the Redesign’s noise impacts for the 2012 year of Project implementation and five to ten years thereafter."
Second, the New Jersey Petitioners contend that the panel failed to address the fact that FAA’s failure to implement "night ocean routing" in the Record of Decision is a significant change in the Project requiring a Supplemental Environmental Impact Statement . The New Jersey Petitioners claim that the panel failure to address this conflicts with other U.S. Court of Appeals decisions.
Third, New Jersey Petitioners argue that panel decision failed to address: (1) their environmental justice argument; (2) why the FAA failed to conduct background noise monitoring; and (3) that the FAA violated its own rules by failing to include a Noise Compliance Monitoring Plan in the Record of Decision.