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

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

Since our February 1, 2023 blog, concerning the California Court of Appeals tentative decision in Make UC a Good Neighbor vs. Regents of Univ. of California, et al., that Court has taken the definitive step of confirming its tentative decision, on the critical ground that “UC Berkeley failed to assess potential noise impacts from

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

Public concerns have been running amuck on the internet regarding the recent tentative decision by the California Court of Appeal for the First Appellate District in Make UC a Good Neighbor v. Regents of the University of California, et.al., Case No. A165451 (Trial Court Case No. RG21110142). The case involves a challenge under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) to the adequacy of the Environmental Impact Report (“EIR”) for the Long Range Development Plan for the former “Peoples’ Park” in Berkeley, an historical icon to the student war  protests of the 1960s. A portion of the Long Range Plan involves construction of more than a thousand units of residential housing for university students, and acknowledges potential increases in population ancillary to the student body such as faculty and staff who will not receive access to the housing, but will be forced to compete with local residents for existing housing supplies.

The public’s concern appears to arise not merely from the project itself, but the Court’s purported expansion of the scope of CEQA to incorporate not merely the physical impacts of the project itself (e.g., traffic, emissions, etc.), but also impacts caused later by the users and/or occupants of the development, in this case the students, including “social noise” from late night parties and pedestrians.Continue Reading Public Concern Grows Over Broad-Based CEQA Decision

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