In a monument to political deal making, the United States Congress is today considering, in the House and Senate Aviation Committees, the "FAA Modernization and Reform Act of 2012," H.R. 658 ("Act") to, among other things, "authorize appropriations to the Federal Aviation Administration for fiscal years 2011-2014 . . ." It is, however, the other provisions of the legislation which most profoundly affect the public.
Purportedly to "streamline programs, create efficiencies, reduce waste and improve safety and capacity," the most recent version of the Act to emerge from the House-Senate Conference Committee exempts all new area navigation ("RNAV") and required navigation performance ("RNP") procedures, which collectively comprise the "Next Generation Air Transportation System" ("NextGen"), Act § 201, Definitions, from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA").
The Act, generally, mandates that all "navigation performance and area navigation procedures developed, certified, published or implemented under this section [Section 213] shall be presumed to be covered by a categorical exclusion (as defined in § 1508.4 of Title 40, C.F.R.) under Chapter 3 of FAA Order 1050.1E, unless the Administrator determines that extraordinary circumstances exist with respect to the procedure." Act, § 213(c)(1).
The Act expands on this mandate in § (c)(2). "NEXTGEN PROCEDURES – Any navigation performance or other performance based navigation procedure developed, certified, published or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace, shall be presumed to have no significant effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure."
Certainly some of the duplication will be removed in the Act’s final version. But the bottom line will remain. Dramatic changes in the configuration of the national airspace system, to be implemented throughout the United States during the next few years, will be relegated to "a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations . . . and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R. § 1508.4. This is so despite the fact that, in many cases, the new NextGen procedures will implicate numerous communities never before overflown, or never overflown at the same low altitudes. Newly affected populations will thereby be deprived of an avenue of redress in the courts through NEPA on which they have come to depend to level the playing field usually dominated by governmental action. The fundamental intent of NEPA, to allow the public a chance to review and comment on governmental actions before they are taken, will effectively be bypassed by the Act.
Nor do the conditions on a finding of categorical exclusion, such as the requirement for a measurable reduction in fuel consumption, carbon dioxide or noise, mitigate the adverse impacts of the exemption, as the determination that those conditions exist is within the exclusive discretion of the FAA Administrator, the same party charged with implementing the NextGen program.
There are two potential courses of action still available to interested parties and affected populations. The first is short term: to call Senators and Congressmen to express opposition to the apparent end run around NEPA’s protections. The second is longer term, and involves other statutes that can be applied to take up where NEPA protections will now leave off. The next few days will determine whether the legal strategy in alternative two will eventually be required. First, it’s time for the affected public to weigh in with its political leaders to protect its best interests. Stay tuned for the next chapter.