As if it didn’t have enough to do, the Federal Aviation Administration (“FAA”) is now proposing to expand the definition of “Aeronautical Activities”, which currently includes “any activity that involves, makes possible, is required for the operation of an aircraft/vehicle, or that contributes to, is required for, the safety of such operations” FAA Order 5190.6B
On June 13, 2023, a bipartisan Committee of the United States Senate jointly proposed legislation, S. 1939, to amend the Federal Aviation Act, 49 U.S.C. Section 40101 et. seq., the stated purpose of which legislation is to “authorize appropriations for the Federal Aviation Administration for fiscal years 2024 through 2028, and for other purposes.”…
Less than two weeks ago, the United States Supreme Court took the first of several actions meant to close the door on what has become a standard in opposing citizens’ efforts to challenge the missteps of administrative agencies, i.e. Judicial Deference to agency decision-making. Specifically, Judicial Deference has guided the Courts into accepting an agency determination “based on a reasonable interpretation of an ambiguous statute Congress has tasked the Agency with implementing.” Chevron vs. NRDC, 467 U.S. 837 (1984).
On May 1, 2023, the Court agreed to accept certiorari in the case of Loper Bright vs. Raimundo in which herring fisheries challenged a regulation issued by the Marine Fisheries unit of the Commerce Department, requiring private payment by boat owners of monitors mandated by the agency to be located on individual fishing boats to prevent over-fishing In accepting the case for review, the Court, for the first time, agreed to confront the concept of Judicial Deference head-on.Continue Reading Supreme Court May Have Dealt Death Blow to Judicial Deference
In a split decision, the Ninth Circuit Court of Appeals rejected the FAA panel’s decision approving the construction of a new passenger terminal at Hollywood Burbank Airport based on a flawed Environmental Impact Statement (EIS). City of Los Angeles, California v. Fed. Aviation Admin., 63 F.4th 835 (9th Cir. 2023) [hereinafter City of Los Angeles]. The City of Los Angles had challenged the FAA’s decision approving the new terminal complex, parking structure, fire station, and maintenance and cargo buildings on two grounds. First, the City challenged the Environmental Impact Statement (EIS) based on fundamental flaws in the study. The second argument was that the FAA did not consider all reasonable alternatives such that the outcome was predetermined. The court rejected the second argument but found in favor of the City in the first argument. Accordingly, the court remanded the case back to the FAA panel since the plan failed to comply with the National Environmental Policy Act (NEPA).
The court determined that the FAA had a fundamental flaw in the EIS because it failed to consider the reasonable possibility that equipment running simultaneously would have increased noise levels beyond the acceptable thresholds. Courts generally give deference to the FAA’s fully informed and well-considered decision. City of Los Angeles, 63 F.4th at 849 citing Audubon Soc’y of Portland v. Haaland, 40 F.4th 967 (9th Cir. 2022). However, the court is permitted to take a hard look at the EIS when the FAA relies upon incorrect assumptions or data. City of Los Angeles, 63 F.4th at 849-50 citing Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005). Here, the court determined that the EIS failed to account for the cumulative effects of the simultaneous equipment operation. Simultaneous equipment operation was not a remote possibility but a certainty. The FAA should have foreseen that equipment could operate simultaneously since project phases overlapped. Had the FAA made such adjustments, it would have increased the noise level in neighboring communities to a level that would have resulted in the project not being approved. Thus, the court determined that the FAA failed to meet its burden and a second look was warranted.Continue Reading Flawed Data in EIS Noise Calculation Requires the FAA to Take a Second Look at the Airport Development Project at Burbank
Stirring from their usual slumber, in the face of increasing community dissatisfaction with respect to noise and emissions from aircraft overflight, the Federal Aviation Administration (“FAA”) and United States Congress each took some action in recent months. First, FAA awarded more than $19 million to various universities and other organizations through the “ASCENT” program, a cooperative aviation research organization founded in 2014 (but apparently only lightly funded until now).
The primary purpose of the grants was to allow the universities to study ways to reduce aviation noise. Many of those awards were for noise resulting from episodic impacts of: (1) uncrewed aircraft; (2) supersonic aircraft; and (3) advanced air mobility or AIM. However, giving some thought to more “mundane” causes, FAA gave nearly $2 million to Boston University to study the relationship between aircraft noise, sleep, mental health, and cardiovascular health. Similarly, the University of Pennsylvania received slightly over $1 million to study the way in which noise from aircraft affects sleep. All of these latter grants go to the fundament of impacted communities’ concerns.Continue Reading FAA and Congress Finally Awaken to Citizens’ Discontent with Aircraft Noise Impacts
On March 9, 2023, the Ninth Circuit Court of Appeals granted the “Motion to Enforce Judgment” filed by co-Petitioners Cities of Los Angeles and Culver City (“Cities”) in City of Los Angeles, et.al. v. Stephen Dickson, et.al. The Order found the Federal Aviation Administration (“FAA”) in blatant violation of the National Environmental Policy Act, 42…
No matter what objection or challenge the United States taxpayers bring in response to Federal Aviation Administration (“FAA”) initiatives, FAA’s defense is always the same: changes are required for “safety and efficiency.” While that may be true in some instances, FAA’s global resort to such an excuse (e.g., justification for changes to flight paths over populated areas without notice or environmental review) is belied by the recent responses of both the United States Congress, and the agency’s ultimate leadership, the Secretary of Transportation.
First, the General Accounting Office (“GAO”) criticizes FAA for failing “to develop a comprehensive strategy” to guide the integration of drones into the national airspace system. GAO-23-105189, January 26, 2023. Specifically, the GAO claims that FAA’s plans so far lack the “important elements – such as goals, objectives, and milestones – that would help FAA manage more effectively.” It would appear difficult, if not impossible, to promote and support “safety and efficiency” in a changing system utterly lacking in the critical elements of the system itself.
Second, and certainly not less important, also on January 26, 2023, the United States Congress passed the NOTAM Improvement Act of 2023 in response to the unprecedented breakdown of the air traffic system caused by the failure of the Notice to Air Missions (“NOTAM”) component of that system, allegedly resulting from an accidental deletion of a file. The new Act calls for a task force to be appointed by the FAA Administrator to review and reform the system. Although there is the taint of “fox guarding the hen house” in this structure, the task force will also be made of up pilots, airline executives, union officials, air traffic controllers and computer system experts (notably lacking members of the public) to give a broader based view of necessary information to be included in the NOTAM system, as well as the most effective method of transmitting that information to pilots. The question remains, of course, why the FAA’s current structure was unable to effectuate those changes, and thus maintain the “safety and efficiency” and even the operational capacity, of the system. Continue Reading Washington Takes FAA to Task on Lack of “Safety and Efficiency” in the U.S. Air Traffic System
Since the publication of the above-entitled article on April 28, 2022, events have occurred that raised further questions about the immediacy of the closure of East Hampton Municipal Airport on the South Shore of Long Island, New York, owned and operated by the Town of East Hampton.
Specifically, the most recent related cases are Friends…
In a somewhat surprising turn of events, the Federal Aviation Administration (“FAA”), on April 15, 2022, approved the closure of East Hampton Airport, owned and operated by the Town of East Hampton, Long Island, New York. The airport is scheduled for closing on May 17, 2022. 87 Fed.Reg. 22617. FAA’s acquiescence appears surprising because of its long and strong resistance to the closure of airports in general. See, e.g., City of Santa Monica v. Federal Aviation Administration, 631 F.3d 550 (D.C. Cir. 2011). The Town plans to convert the currently public use airport into a new, publicly owned, private use facility.
A November 2020 letter from the FAA to the Town detailed four options to obtain local control of the airport: continued operation as a public use airport, negotiations of an agreement for mandatory restrictions on aircraft operators, permanent closure of the airport, or closure and subsequent reopening of a new, private use airport. A fifth option emerged in subsequent discussions between the Town and the FAA to transition the airport from public to private use without closure.
Reopening the airport under what the FAA calls a “prior permission required” model, the Town will be able to impose and enforce restrictions limiting air traffic and noise. Under this model, the Town could prohibit certain aircraft, or certain commercial or private users, impose noise limits; and restrict takeoffs and landings at certain times of the day. In determining which aircraft could use the airport, the Town could also take into account certain environmental factors. Electric aircraft might be favored, for example, over those that use leaded aviation fuel. As the prior permission classification applies, those who wish to use the airport will first need clearance from the Town, and that permission could be granted, revised, or withdrawn. Should the restrictions allowed under this model not meet community needs, the Town could still opt to close the airport entirely.
Both the process and the result sound interesting and hopeful to noise impacted communities. But don’t jump to any conclusions.Continue Reading FAA Defies History by Approving the Closure of East Hampton Airport
It is likely that the public may be somewhat disappointed with Congress’ latest effort to ameliorate the impacts of airport noise on underlying populations. On November 18, 2021, Adam Smith, Member of the House of Representatives from Washington State, introduced the Aviation Noise and Emissions Act, H.R. 6050, a Bill intended to “develop pilot grant programs through the Environmental Protection Agency to research and collect data on aircraft and airport noise and emissions and to use such information and data to develop a mitigation strategy, and for other purposes.” H.R. 6050, p. 1. At its foundation, the Bill calls for a “3-year pilot grant program with eligible entities to measure noise and emissions, including greenhouse gases, particulate matter, ultrafine particles, and other toxic pollutants, in communities near airports or air flight pathways using sophisticated methods and technology that allow tracing of noise and emissions to specific sources . . .,” H.R. 6050, paragraph 2.a., including identifying the primary recipients of such noise such as specific neighborhoods, structures, or impacted areas.
Continue Reading Is H.R. 6050 The Best That Congress Can Do?