The Government Accountability Office (GAO) has issued its long awaited "FAA Airspace Redesign:  An Analysis of the New York/New Jersey/Pennsylvania Project."  Although the GAO promised to publish the report by August 1, 2008, it waited until the same day the Petitioners in the Airspace Redesign litigation filed their opening brief to publish the Report.  Although the GAO promised members of Congress to examine "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review" (p.3), it failed to take into two important aspects of the FAA’s environmental review of its Airspace Redesign project, namely the Clean Air Act and section 4(f) of the Department of Transportation Act (for a full treatment of these issues, see the Joint Brief filed by the 12 sets of Petitioners in the Airspace Redesign litigation).

The GAO, making several critical assumptions about the Project, found, in general, that the FAA’s approach, at least with respect to NEPA, was "reasonable."  First, the GAO found that the statement of the project’s purpose and need, which, according to the GAO, was to increase the efficiency and reliability of the airspace while maintaining safety and reducing delays, was reasonable.  Most importantly, the GAO concluded that the FAA "reasonably excluded noise reduction."  Second, the GAO found that the FAA developed a reasonable range of alternatives.  Third, the FAA acted reasonably in not analyzing the indirect environmental effects of potential growth, the GAO said, resulting from the redesign.  Next, the GAO opined that the FAA reasonably involved the public throughout the environmental review process.  Finally, the GAO found that the FAA satisfied environmental justice directives in Executive Order 12898 and implementing CEQ guidance and DOT Order.

The GAO did identify some limitations to the FAA’s methodology, but concluded that the FAA was not required by law to address them.  These "limitations" included the fact that because the FAA assumed that traffic demand and flight operations would not increase in response to airspace system improvements, the FAA did not account for the potential effect of the system improvements in its operational analysis.  Second, the FAA did not fully assess the uncertainty associated with each alternative estimated impacts.  And when the purported benefit of the Project is only a 0.8% reduction in fuel burnt, that "limitation" becomes more important.  Finally, the GAO believed that the FAA should have undertaken an analysis of the economic impacts using both an uncertainty analysis and a benefit-cost analysis.

What the GAO Report did not take into account are two important statutory requirements that are outside of NEPA’s procedural requirements.  First, the GAO failed to take into account the fact that the FAA did not perform a "conformity applicability analysis" as required by the Clean Air Act, EPA regulations, and FAA orders.  The air quality in the areas around Philadelphia and New York are subject will be affected by the Airspace Redesign and there is no analysis anywhere in the FAA’s environmental review regarding air quality.  Second, the GAO did not report on the FAA’s failure to properly take section 4(f) of the Department of Transportation Act into account.  Section 4(f) protects federal, state and local natural areas from the environmental effects of Federal transportation projects.  The GAO Report did not mention the FAA’s failure to properly identify and account for the environmental effects of the Project on those natural areas.

In the end, then, the GAO failed to answer the first question posed by Congress:  "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review?"  Without a discussion of the Clean Air Act and 4(f), the Report is incomplete.

It is being reported by several news outlets that the FAA has suspended its auction of flight slots at Newark Airport.  The auction was slated for September 3, 2008.  According to Bloomberg News the Order, issued by FAA Chief Counsel, Kerry Long, stated that "[t]he protesters have demonstrated compelling reasons to maintain the status quo” pending a study of their objections. 

This is just the latest in a series of events that all relate to the FAA’s redesign of the airspace in the New Yor, New Jersey and Philadelphia area.  It began with the Airspace Redesign decision last September, continued through the "congestion management" rules for JFK and Newark as well as  for LaGuardia, and on the "written re-evaluation" of those rules that the FAA tied back to the Airspace Redesign.

The Order was in response to a Protest filed five major airlines, Northwest, Delta, Continental, US Air, and United, along with the Air Transport Association (ATA) with the FAA’s Office of Dispute Resolution for Acquisition. Click here for the New York Times article.  Click here for the Forbes article.

The Air Transport Association issued the following statement in response to Chief Counsel Long’s Order:

We are pleased that the FAA Office of Dispute Resolution Acquisition has granted our request for suspension of the September 3 auction of two slots at Newark airport and fully expect that the process will result in a determination that FAA lacks the legal authority to conduct the auction.

The Air Transport Association had previously, on August 11, 2008, filed a Petition for Review in the D.C. Circuit asking the court to overturn the FAA’s decision to hold slot auctions for Newark.

Secretary of Transportation Mary Peters issued a statement through her spokeman, Brian Turmail, indicating that "[t]oday’s disappointing delay means travelers will have to wait a little longer for relief from the high fares, stagnant service and limited competition."  However, the FAA "remain[s] highly confident of a speedy and favorable ruling in this matter.”

 

 

In February, 2007, almost as an after-thought, theFAA included changes to air traffic control procedures to its Presumed to Conform rule. This last minute addition has the potential to seriously impact communities around the airports where these changes to air traffic control procedures take place. 

Why will this obscure regulatory change affect communities? First, a little background on the subject will be helpful. Air quality and noise are the primary concerns of communities around airports. Since Federal law severely limits the ability of communities to affect the amount of noise produced at airports, many communities have focused on protecting their air quality. The conformity provisions of the Clean Air Act provide a useful tool in that regard. They require that all Federal agencies ensure that their projects will not affect the State Implementation Plan (SIP), which is a plan drafted by the state and approved by the EPA in order to come into compliance with other provisions of the Clean Air Act. This “conformity determination” provides communities around airports with needed data concerning the effect the agency’s action will have on the air quality. Moreover, if the Federal agency fails to perform a conformity determination or fails to do it properly, then that it is grounds for the community to object to the Federal agency’s action as a whole.

 

Continue Reading FAA’s Presumed to Conform Rule Will Affect Communities Around Airports

During July, the Government Accounting Office issued several reports regarding various aviation topics.  One of the topics not covered was the East Coast Airspace Redesign, which was supposed to be issued at the end of July, but now probably will not be issued until the end of August.

Of particular interest was the issuance, on July 15, 2008, of the testimony of Ms. Susan Fleming, the GAO Director of Physical Infrastructure, National Airspace System: DOT and FAA Actions Will Likely Have a Limited Effect on Reducing Delays during Summer 2008 Travel Season given to the U.S. Senate Subcommittee on Aviation Operations, Safety, and Security.  Over the past decade, there has been a steady increase in flight delays and cancellations, such that a delay at O’Hare or Hartsfield would have a ripple effect across the National Airspace System. The DOT estimated that more than one in four flights either arrived late or was canceled in 2007, making it one of the worst years for delays in the last decade. As a result of the East Coast Airspace Redesign, the delays and cancellations evident at the three New York metropolitan commercial passenger airports–Newark Liberty International (Newark), John F. Kennedy International (JFK), and LaGuardia caused the FAA to propose and promulgate several actions in attempt to reduce congestion and delays. 

Ms. Fleming’s testimony addresses (1) the trends in the extent and principal sources of flight delays and cancellations over the last 10 years, (2) the status of federal government actions to reduce flight delays and cancellations, and (3) the extent to which these actions may reduce delays and cancellations for the summer 2008 travel season. This statement is based on an analysis of DOT data on airline on-time performance, a review of relevant documents and reports, and interviews with officials from DOT, FAA, airport operators, and airlines, as well as aviation industry experts and associations. DOT and FAA provided technical comments which were incorporated as appropriate.

Of particular interest is the fact that Ms. Fleming’s testimony states that "to reduce delays and congestion beginning in summer 2008, DOT and FAA are implementing several actions that for the purposes of this review GAO is characterizing as capacity-enhancing initiatives and demand management policies." Some of these actions are already in effect, such as 11 of the 17 short-term initiatives designed to improve capacity at the airport or system level and the hourly schedule caps on operations at the New York area airports.  

In a rather odd, unusual statement, the FAA issued on July 31, 2008, a "Record of Decision and Written Re-Evaluation of the New YorkNew JerseyPhiladelphia Metropolitan Area Airspace Redesign Final Environmental Impact Statement."  In response to several requests for supplemental EIS to deal with the congestion management orders for JFK, LaGuardia and Newark, the FAA prepared the "Written-Re-Evaluation" "to consider whether these Orders Limiting Scheduled Operations and the new rates and charges amendments, either affected the purpose and need for the Airspace Redesign project, or altered the reported environmental impacts."  To no one’s surprise, the FAA concluded that there is no "significant new information warranting preparation of a new or supplemental EIS for the Airspace Redesign project."  Since this strange document, coming 11 months after the initial Record of Decision and 29 days before the Petitioners’ Brief in the Airspace Redesign litigation is due, is a "Record of Decision," anyone objecting to the ROD may file a Petition for Review within sixty days of July 31, 2008.

What remains to be seen is what effect this document will have on the on-going litigation, the GAO report (which was due out July 31, 2008, but probably will not be issued until the end of August), and the increasing political pressure that is being put on the FAA to reconsider the entire project.

Yesterday, June, 11, 2008, the House Aviation Subcommittee heard testimony (click on link for video the hearing) on a situation that is becoming more dire as every day passes – Air Traffic Controllers are retiring, leaving a dearth of qualified, trained controllers to take their places.  The House Aviation Subcommittee convened the hearing to find out what can be done about the situation.

First up in Panel 1, were the bureaucrats.  Hank Krakowski from the FAA, Patrick Forrey from the National Air Traffic Controllers Association, along with Dr. Gerald Dillingham from the GAO, Calvin Scovey from the Department of Transportation Office of the Inspector General and David Conley of the FAA Managers Association.  Predictably, Mr. Krakowski downplayed any crisis, stating in his prepared remarks that the FAA was on top of the situation:  hiring 2000 controllers this year, seeking ways to retain retirement-eligible controllers, and working on a contract with NATCA.  

Mr. Forrey, had a different view.  He stated that “this country is facing an air traffic control staffing crisis” leading to “an unacceptable compromise in safety.”  First and foremost, to him, the FAA needs to return to the bargaining table with the NATCA to work on a contract.  That will lead to a higher retention rate of both experienced controllers and new hires.

Subcommittee members in their questioning sought to resolve the differences between the FAA and NATCA and implored the GAO and DOT-IG to assist in that effort.  Both the FAA and NATCA say they want a contract, but how they are going to get there is the open question.

The second panel was where the rubber hit the road.  Three air traffic controllers, Don Chapman from Philadelphia, Steven Wallace from Miami and Melvin S. Davis from Los Angeles testified about the problems they are facing at each of their facilities.  Although each mentioned specific challenges their facilities faced, they all came back to three major issues:  inadequate staffing (which raises safety concerns); inadequate training of new hires (which also raises safety concerns); and controller fatigue because the first two issues.  The Subcommittee seemed to take to these men and their "view from the front line."

(It should be mentioned that the Blog, "The Potomac Current and Undertow," offered an e-mail sent to FAA Air Traffic District Managers to find Air Traffic Controllers who would support the FAA’s position that things are headed in the right direction.  Since only Messrs. Chapman, Wallace and Davis were the only controllers who appeared as witnesses, their effort seemed to fall short.)

The Government Accountability Office published the testimony that Dr. Gerald Dilllingham gave to the  House Subcommittee on Aviation regarding the FAA’s efforts to hire and train more air traffic controllers. 

The Dr. Dillingham’s testimony, entitled "FAA’s Efforts to Hire, Staff and Train More Air Traffic Controllers Are Generally on Track, but Challenges Remain" addresses the FAA’s efforts to hire and train nearly 17,000 controllers over the next decade to replace over 15,000 current controllers, most of whom will be retiring. The challenge to the FAA is assuring that the Air Traffic Control facilities are adequately staffed with a proper mix of new trainees and fully certified controllers.  Dr. Dillingham, as well as the NTSB, strongly believe that having controllers work more overtime will lead to serious consequences.

Moreover, this massive hiring effort will occur as FAA begins to implement the next generation air transportation system (NextGen), which will integrate new technologies and procedures into air traffic operations and fundamentally change the role of air traffic controllers from controlling individual aircraft to managing air traffic flow. Hence, FAA will need to train experienced controllers to use the new technologies at the same time that it hires and trains new controllers to operate both the current and the new technologies.

Here are a few court  decisions that have come down recently regarding aviation and airport development law:

  1. Nadal v. FAA, Case No. 08-9509 (10th Cir., April 30, 2008).  Petitioner sought review of a NTSB order affirming the forty-day suspension of his pilot certificate.  The court concluded that his petition for review was not timely filed and he did not show reasonable grounds for the failure, so it dismiss the petition for lack of jurisdiction.
  2. Clark County v. FAA, Case No. 06-1377 (D.C. Cir., April 18, 2008).  County petitioned for review of FAA’s decision that a proposed windfarm would not obstruct airspace near the proposed Ivanpah Valley airport by interfering with radar systems at the new airport.  The court held that the FAA did not have sufficient evidence in the record to support its conclusion in its order and therefore did not satisfy the reasoned decionsmaking requirement.  To the contrary, the court pointed out that the only evidence in the record supported conclusion that the windfarm turbines would exceed the FAA’s obstruction standards and would interfere with radar systems at the new airport.
  3.  BMI Salvage Corp. v. FAA, Case No. 07-12058 (11th Cir., April 8, 2008).  Tenant and sublessee filed complaint alleging that airport unjustly discriminated against it in violation of the airport’s grant assurances by awarding long-term development leases to other tenants, but not to it.  The court held that there was insufficient evidence in the FAA’s record to support a finding that differences between aircraft demolition business and aircraft repair business justified airport’s disparate treatment and that there was insufficient evidence to support FAA’s finding that aeronautical service providers were not “similarly situated.”
  4. St. John’s United Church of Christ v. FAA, Case No. 06-1386 (D.C. Cir., March 21, 2008).  FAA gave the City of Chicago a grant under the Airport Improvement Project for Chicago’s expansion of O’Hare airport.  A group of villages and other entities in the surrounding area petitioned for review of the FAA’s grant.  The court held that the petitioners lacked standing to challenge the grant, since they failed to show that the grant had caused their injuries or that the court redress any injuries that they might incur, since the the federal money played a “minor role.”
  5. R/T 182, LLC v. FAA, Case no. 07-3678 (6th Cir., March 11, 2008).  The owner of an airplane appealed the decision of the FAA that allowed a local airport to charge maintenance fee for based aircraft, but did not charge the fee to transient users.  The court decided that there was substantial evidence to support the FAA’s determination that airport’s based-users were not similarly situated to transient users and that since the process resulting in the FAA’s order was adjudicatory in nature, it was not subject to notice -and-comment procedures under the Administrative Procedures Act.