On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.
Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.
Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.
Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.
A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.