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
Federal Aviation Administration (FAA)
Washington Takes FAA to Task on Lack of “Safety and Efficiency” in the U.S. Air Traffic System
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. …
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Update – FAA Defies History by Approving the Closure of East Hampton Airport
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…
FAA Defies History by Approving the Closure of East Hampton Airport
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.…
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Is H.R. 6050 The Best That Congress Can Do?
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.
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Federal Agencies Go “Head to Head” Over Implementation of 5-G C-Band Implementation
In an unprecedented confrontation, the Federal Aviation Administration (“FAA”) and Federal Communications Commission (“FCC”) have been facing off over the imminent implementation of 5-G C Band transmission sought by AT&T and Verizon for their telephones. The issue for FAA is radar altimeters installed in scores of aircraft types, including commercial airlines, some business jets, and many helicopters, including helicopter air ambulances. Radio altimeters supporting these systems operate between 4.2-4.4 GHz; C-Band 5-G operations will initially begin at around 3.7 GHz.
The concerns are not merely the delays and cancelled flights potentially caused by FAA’s issuance of over 1,500 Notices to Airmen (“NOTAM”), restricting use of instrument approaches and other procedures that rely on radar altimeters, principally in bad weather, but also increased weather minimums for Part 91 helicopter operations.
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Congress Continues to Search for Relief From Airport Noise Impacts
It appears that some members of Congress have not given up the fight to bring relief from airport noise impacts to their constituents. Since the beginning of August, 2021, at least eight (8) “Aviation Noise Bills” have been introduced in an attempt to lessen the burden on some communities from aircraft overflight, particularly in the wake of implementation of the Federal Aviation Administration’s (“FAA”) NextGen initiative, which resulted, in many cases, in the consolidation of flight paths, often over communities not previously overflown at all, thus also increasing noise over those and other communities.
Several of these legislative efforts are particularly notable, some for being remarkably ambitious, and others for being wish lists, without a strong chance for passage.…
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Buchalter Wins National Victory
On Thursday, July 8, 2021, the City of Culver City and its co-Petitioner, City of Los Angeles, prevailed in the case of City of Los Angeles, et.al. v. Stephen Dickson, et al. against the Federal Aviation Administration (“FAA”) on substantially all claims, an almost unprecedented outcome for local governments against a federal agency acting within its area of expertise. In that case, Petitioners challenged FAA’s failure to perform any environmental review, as required by the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”) before implementing changes in aircraft flight tracks that lowered altitudes and consolidated flight tracks over residential areas not previously overflown, resulting in continuing and vociferous community opposition. That challenge was brought in the U.S. Court of Appeals for the Ninth Circuit under its original jurisdiction, 49 U.S.C. § 46110, in the adjudication of challenges to FAA actions.
Because these operational changes were part of a larger national program of airspace changes called FAA’s NextGen project, aimed at reducing distances aircraft must fly on arrival to airports, Petitioners’ victory has implications for communities throughout the nation over which FAA has persisted in implementing flight track changes under the guise of the NextGen Project, in each and every case without the benefit of required environmental review.…
New Transportation Secretary Pete Buttigeig Gets Education on FAA’s NextGen Issues
The citizens’ organization, Quiet Skies, made up of communities around the nation impacted by airport operations, is making its views about the increasing impacts of the Federal Aviation Administration’s (“FAA”) NextGen initiative known to new Secretary of Transportation Buttigeig at the very dawn of his tenure. Alison Pepper, a Quiet Skies activist, has drafted a…
Communities Challenging NextGen Are In Good Company
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.…
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