Communities challenging, or considering a challenge, to the noise and other impacts from low-flying aircraft, enabled in new flight paths and altitudes by the Federal Aviation Administration’s (“FAA”) NextGen Initiative, may find some comfort in the knowledge that they are not alone. Communities from coast to coast, even including communities that are themselves airport proprietors, have recently joined the group of communities that earlier brought legal action against FAA to vindicate their citizens’ interests, some of which suits are only now approaching decision.

First chronologically, the City of Los Angeles, owner and operator of Los Angeles International Airport (“LAX”), brought suit in December 2019, in the United States Court of Appeals for the Ninth Circuit, challenging a southerly shift in flight tracks of departing aircraft from Bob Hope (Hollywood-Burbank) Airport, City of Los Angeles v. FAA, Case No.19-73164, alleging FAA either failed to review the revised flight paths under NEPA, or failed to take action required by law to ensure reasonable compliance with assigned flight tracks. In its opposition, FAA first argued that it is not responsible for the divergence from established flight tracks, but, rather, it is due to “Acts of God,” such as wind, weather, and flocks of birds. It was only months later, when FAA realized that excuse wouldn’t “fly,” that it assumed responsibility by claiming the need to “vector” aircraft off established flight tracks for safety purposes. After Court-supervised mediation efforts were unsuccessful, briefing was completed in September 2020, but no decision has been made by the Court to date. That case is not by any means the end of the story.

In March 2020, two actions were filed and still remain pending. In the first, the City of Scottsdale, Arizona sought review in the U.S. Court of Appeals for the District of Columbia Circuit of FAA’s announcement that it has no plans to implement its earlier agreement with the City of Phoenix, reached as the result of a prior lawsuit, City of Phoenix v. FAA, 881 F.3d 932 (D.C. Cir. 2018). In the settlement of the former case, FAA had committed to reach out to the public concerning proposed air traffic procedures that had been the subject of the litigation. Because Scottsdale, located under some of the relocated flight paths, believed such dialogue, and the potential for resulting flight path changes, would be beneficial, it filed a challenge of FAA’s recalcitrance for failure to comply with NEPA. The case was originally sent to mediation, with merits briefing scheduled to have started in January 2021. The case is likely to take a number of months to reach decision.

Finally, Arapahoe County, Colorado, through its Public Airport Authority, filed suit in the D.C. Circuit on March 20, 2020 (Arapahoe County Public Airport Authority, v. FAA, Case No. 20-1075, accompanied by the County Commissioners of Arapahoe County v. FAA, Case No. 20-1085, alleging FAA’s failure to adequately comply with NEPA by performing a full Environmental Impact Statement, rather than the de minimis Finding of No Significant Impact that FAA has filed for all, or almost all, NextGen procedures (with the exception of those for which FAA did no environmental review at all by filing a Categorical Exclusion (see e.g. City of Los Angeles v. Stephen Dickson, Ninth Circuit Case No. 19-71581)). Briefing was scheduled to be completed on February 26, 2021.

In summary, numerous additional jurisdictions are awakening to the long-term impacts of FAA’s largely unanalyzed airspace revisions memorialized in NextGen. The question, of course, is whether the U.S. Courts will finally relinquish their longstanding deference to FAA decision-making. Review the briefing and stay tuned for the upcoming decisions.