Because the Federal Aviation Administration’s (“FAA’) airspace redesign projects throughout the United States have apparently negatively impacted hundreds of thousands, even millions, of people, and because we have received a number of requests for a discussion of the bases for the currently pending challenge to the FAA’s SoCal Metroplex airspace redesign project, a copy of the Opening Brief of Petitioners City of Culver City, California; Santa Monica Canyon Civic Association; Donald Vaughn; and Stephen Murray in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) can be accessed by clicking here. Also filing briefs as Amici Curiae, or friends of the court, in support of Petitioners are the City of Los Angeles and the West Adams for Clear Skies.
The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment. Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.
On September 8 and October 8, 2015, the Cities of Culver City and Inglewood, California, filed original and supplemental comments, respectively, with the Federal Aviation Administration (“FAA”) concerning the adequacy of its Draft Environmental Assessment (“DEA”) for the Southern California Metroplex (“SoCal Metroplex”) Optimization of Airspace and Procedures in the Metroplex (“OAPM”) (“Project”). The OAPM is one in a long line of airspace redesigns being implemented by FAA throughout the nation, for the purpose of narrowing the flight paths of approach and departure procedures around airports to facilitate use of satellite, rather than ground based, navigation, and thereby save fuel for the airlines. The critical problem, as set forth in the attached comments, is that FAA failed to fully evaluate the noise, air quality and other impacts of these changes on communities surrounding airports.
The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.
A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
As if seven years of wrangling were not enough, the Federal Aviation Administration (FAA) is now proposing changes to the current airspace utilization at Kennedy and Philadelphia International Airports.
From 2002 to 2009, governmental and private entities from Connecticut to Pennsylvania, including the State of Connecticut, various local jurisdictions in New York State, environmental organizations in New Jersey, and the County of Delaware, Pennsylvania negotiated with, and ultimately challenged, a comprehensive redesign of the airspace affecting approaches and departures to every airport in the North Eastern United States. Of greatest concern, were new flight paths over dense populations and numerous parks and nature preserves without even a cursory nod to required noise or air quality analysis.
After much contention, FAA got its way. Apparently, however, the East Coast Airspace Redesign didn’t quite work out, because FAA is at it again. First, ostensibly because of persistent delays at Newark, JFK and LaGuardia that were supposed to have been remedied by the panacea of the East Coast Airspace Redesign, hundreds of additional flights will be rerouted from JFK over residential areas in Northern and Central New Jersey. To add insult to injury, the changes will be made through an FAA rulemaking process, and not through the formal processes that characterized the first round of redesigns.
Similarly, the FAA is proposing a modification of the Class B airspace surrounding Philadelphia International Airport that will expand areas impacted by overflight to an even greater extent than did the East Coast Airspace Redesign.
In short, those who are looking down the barrel of these changes should take the opportunity to comment on FAA’s proposals, not only to foster dialogue with FAA concerning the ongoing, increasing and apparently inadequately studied procedures and their impacts, but also to exhaust administrative remedies for a legal challenge should FAA continue to “gild the lily” of the East Coast Airspace Redesign with additional enhancements, to the detriment of already impacted residents and businesses on the ground.
In a recent report entitled Civil Aviation Growth in the 21st Century, the Aerospace Industries Association (AIA) recommended that the Federal Aviation Administration (FAA) develop strategies to integrate National Environmental Policy Act (NEPA) review into the FAA’s Next Generation Air Transportation System (NextGen) implementation planning process in a way that would make NextGen environmental reviews less costly and time-consuming.
In the report, the AIA acknowledges that: (1) redesign of terminal airspace by the FAA requires compliance with NEPA; (2) airspace redesign typically has potentially negative environmental impacts and does not qualify as a “categorical exclusion”; and (3) most often, airspace redesigns require an Environmental Assessment (EA). Every EA must result in either a ‘finding of no significant impact” (FONSI) or a more detailed “environmental impact statement” (EIS). Citing the historical duration and cost of FAA actions involving EAs and EISs, the AIA reports that industry stakeholders in NextGen are frustrated with the time-consuming and costly nature of the NEPA review process, consider it a major impediment to the timely rollout of the system, and would like to see additional efforts to expedite the NEPA process. Although the report does not expressly state that all NextGen EAs should result in a FONSI, it could reasonably be read to suggest that approach in order to save costs and fast-track the NEPA review process.
While it is true that NEPA review is costly and time-consuming, there should be no different, attenuated NEPA review process for NextGen than for any other Federally sponsored or funded project. To subject some arbitrarily chosen Federal projects to less stringent review than NEPA prescribes would require an amendment of NEPA (a highly unlikely eventuality). NextGen is no different than any other Federal effort, and the Congress has clearly spoken about the precise protocols that must be followed. Any initiative to the contrary, without a NEPA amendment, would be contrary to law.
On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.
Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.
Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.
Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.
A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.
A summary review of Aviation and Airport Development related news and information that was made public during the past week.
- FAA Administrator Babbitt’s Pilot Fatigue Advisory Committee delivers its recommendations. An advisory committee on pilot fatigue,convened by Administrator Babbitt, delivered its recommendations to the Federal Aviation Administration late Tuesday, September 1, 2009. Committee members said the FAA had asked them not to make their recommendations public. Although FAA Administrator Randy Babbitt has promised to vet the recommendations swiftly and turn them into a formal proposal by the FAA, the process will take months to complete. 09/02/09, Denver Post, http://bit.ly/4wAugf
- FAA gives Southwest until December 24, 2009, to replace unapproved parts. The FAA will require Southwest Airlines to replace unapproved parts associated with hinge fittings for the exhaust gate assembly–and which help protect aircraft flaps from engine heat–by December 24, 2009. All other unapproved parts made by the same vendor must also be located and disposed of, and results of aircraft inspections must be sent to the FAA daily. 09/01/09, FAA Press Release, http://bit.ly/5PAe6
- FAA tells Haines, Alaska, it cannot designate flight paths for helicopters. Haines Borough, Alaska, is looking to eliminate flight-path restrictions and expand the number of clients that companies are permitted for commercial helicopter and heli-skiing activities. The FAA has told the borough that it does not have the authority to regulate airspace, but borough leaders respond that they are only designating flight paths as a condition of a borough permit. 08/27/09, Chilkat Valley News, http://bit.ly/CmFqj
- Connecticut Governor furious about low-flying F-18s. Connecticut Governor Jodi Rell was incensed about a low-flying F-18 when neither the state of Connecticut nor the FAA had received advance notice about its flight. A spokesman for Naval Air Force Atlantic stated that the aircraft operated in accordance with all FAA-approved visual flight rules and remained within speed and altitude restrictions. 08/29/09, Hartford Courant, http://bit.ly/P4waO.
- Expansion of Aero Country Airport in McKinney, Texas Causes Problems. McKinney City Council in Texas has approved development on the east side of the Aero Country Airport that could double its size; nearby residents oppose the expansion plans. City By laws state that the City Council cannot reverse its decision, and Mayor Pro Tem Pete Huff seems unconcerned about homeowners who say they will move if the city does not halt the expansion, citing that the airport is part of the town. 08/27/09, NBCDFW.com, http://bit.ly/3vk14h.
- FAA Announces $2.5M grant to soundproof homes in Key West. The Federal Aviation Administration this week approved a $2.5 million grant to soundproof 38 homes impacted by noise at Key West International Airport. 08/29/09, KeysNet.com, http://bit.ly/phcK7
- FAA gives Miami-Dade $4.2M to extend main runway at Kendall-Tamiami Executive Airport. The FAA gave Miami-Dade $4.2 million to extend the main runway at Kendall-Tamiami Executive Airport, which would allow heavier planes to use the airport to travel to and from destinations in Central America, South America, and the Caribbean. With an extended runway Kendall-Tamiami would be able to receive flights that would normally go to Miami International Airport. 08/28/09, South Florida Business Journal, http://bit.ly/sqmn5.
- FAA signs ROD for Columbus (OH) Regional Airport Authority’s plan to move Columbus Airport’s runway farther south. Columbus Regional Airport Authority’s plans to relocate Port Columbus International Airport’s runway farther south along with other improvements has been approved by the FAA, contingent upon environmental remediation in the area. The next issue for the airport is a decision from the FAA on the level it will be funding the project; the government’s intent to fund only a smaller portion might require the airport authority to reapply. 08/28/09, Columbus Business First, http://bit.ly/flHYd.
- NTSB suggests to FAA new altitudes for Hudson Corridor. The NTSB recommended new altitudes to the FAA for helicopters and planes over the Hudson Corridor to prevent something like the Aug. 8 midair collision that killed nine people from reoccurring. In the past, the FAA has often failed to heed NTSB suggestions, with many outstanding recommendations up to 10-15 years old. 08/27/09, The New York Times, http://bit.ly/rFOqg
- Connecticut Attorney General Blumenthal says he will take Airspace Redesign fight to Supreme Court. Connecticut Attorney General Richard Blumenthal is disappointed that the U.S. Court of Appeals for the D.C. Circuit has denied an Aug. 19 request to reconsider its refusal to halt the new FAA airspace redesign project. Mr. Blumenthal is preparing an appeal to the U.S. Supreme Court asking it to overturn the ruling and override the FAA, since the FAA used defective data on noise and traffic and failed to follow its own rules and procedures. 08/26/09, acorn-online.com, http://bit.ly/2UUXRs
- FAA investigates Southwest regarding use of unauthorized parts. FAA air-safety regulators are investigating unauthorized parts installed on at least 42 Southwest Airlines jets and why the carrier’s maintenance-control procedures failed to identify the problem. The suspect parts do not pose an “immediate safety issue” but planes were temporarily grounded. The controversy exemplifies continuing friction between airlines and federal regulators on how to deal with minor maintenance lapses. 08/26/09, Wall Street Journal, http://bit.ly/4n2Srj.
- Houston receives $8.8 million in grants from the FAA. The City of Houston Dept. of Aviation received $8.8 million in grants from the FAA to install new state-of-the-art equipment at George Bush Intercontinental Airport (IAH). The grants, awarded through the FAA’s Airport Improvement Program (AIP) and Voluntary Airport Low Emission (VALE) program, will allow the purchase of equipment and vehicles that are expected to reduce emissions by up to 60 percent. 08/25/09, PRNewswire, http://bit.ly/4hcaM9.
In a per curiam Abbreviated Disposition that will not be published, the U.S. Court of Appeals for the District of Columbia Circuit summarily denied 12 separately-filed petitions for review that questioned the legality of the Federal Aviation Administration’s Environmental Impact Statement for its East Coast Airspace Redesign. The matter, Rockland County v. Federal Aviation Administration, brought 12 lawsuits together that represented a multitude of petitioners from Delaware, Pennsylvania, New Jersey, New York, and Connecticut. The Court kicked all of the citizens’ complaints about the effect the Airspace Redesign would have on their environment to the curb, deferring to the FAA’s analysis.
The Court reached this conclusion without addressing many of the arguments that the Petitioners presented in their briefs and at oral argument. First, with respect to Petitioners’ argument that the EIS violated the National Environmental Policy Act, the court simply stated that it is deferring to the FAA’s reasoning that they did everything they needed to do. Not mentioned in the Court’s cursory and truncated analysis is the fact that the FAA has said that it will not implement the Night Routing part of the EIS’ “Preferred Alternative,” and the effect that failure will have on the environmental impacts of the Airspace Redesign.
Second, the Court also deferred to the FAA in deciding that the EIS sufficiently took into account the state and local parks and parklands that would be affected by the Airspace Redesign. The Court, states that the Petitioners should have engaged in a “battle of the experts” and should have “impugn[ed] the agency’s screening methodology.” Disposition, p.8. In most cases, impugning an agency’s methodology is looked upon in great disfavor by a court.
Finally, the Court decided that the Airspace Redesign fell within the de minimis exception of the Clean Air Act, thereby releasing the FAA from any requirement to perform any type of analysis as to the impact the project will have on the surrounding area’s air quality programs. The Court admitted that the FAA did not follow the procedures set forth by the EPA in 40 CFR 93.153, but the “fuel burn analysis” that the FAA did create was sufficient. This was true, the Court concluded, despite the fact that the “fuel burn analysis” was devoid of any mention of criteria pollutants or indirect emissions as required by EPA’s regulation 40 CFR 93.153. The Court went on to hold that any error that the FAA committed in not following the required air quality procedures was harmless error.
It is obvious why the Court does not want this decision published. It is rudimentary and lacking in analysis of many of the arguments presented by the Petitioners. Moreover, it is cursory in statements of law and fact. For example, on p. 10 of the Disposition, in a footnote, the court states:
The petitioners also argue that the fuel burn analysis failed to show the redesign will reduce emissions in all relevant nonattainment and maintenance areas, see 40 C.F.R. 93.153(b), but that argument is not properly before us because the petitioners failed to raise it until their reply brief, Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000).
In fact, the Petitioners had raised that issue in their opening brief, not once, but twice. See, Petitioners’ Joint Brief, pp. 88 and 93.
In the end, it is sad to see that a Court that prides itself on having many of its members become Supreme Court Justices, hide behind a per curiam decision that is so superficial and so careless. The Petitioners now have 45 days to decide whether to seek a rehearing or a rehearing en banc.
Other Articles on the subject:
- Delaware County Press Release, June 11, 2009.
- Conn. AG loses first round in flight fight, The Hour.
- Blumenthal Loses First Round In Flight Fight, Hartford Courant
- CT Attorney General: seeks rehearing in FAA Southwestern Ct case
- DC Circuit Sides with FAA in Airspace Redesign Dispute, The BLT: Blog of Legal Times.
Other posts on this blog about the Airspace Redesign:
- East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals, posted May 18, 2009
- Petitioners File Reply Brief in East Airspace Redesign Case, posted March 8, 2009
- FAA Files Its Brief in the East Coast Airspace Redesign Lawsuit, posted January 13, 2009
- New Jersey Attorney General Files Amicus Brief in the Airspace Redesign Litigation, posted September 12, 2008.
- Sens. Specter and Dodd File a Joint Amicus Brief in the East Coast Airspace Redesign Litigation, posted September 8, 2008.
- Petitioners’ Opening Brief, posted September 3, 2008.
- Update of Airspace Redesign Litigation, posted April 28, 2008.
- Airspace Redesign May Not Reduce Fuel Consumption for the Airlines as FAA Claims, posted March 18, 2008
A multi-year challenge to the Federal Aviation Administration’s reorganization of the airspace in four East Coast states culminated on May 11, 2009 with oral argument at the D.C. Circuit Court of Appeals before Chief Judge David Sentelle, and Judges Douglas Ginsberg and Ray Randolph. The litigation team was made up of 12 law firms representing public entities and environmental organizations from Connecticut, New York, New Jersey and Pennsylvania. The team designated three of its members to present the oral argument: (1) Richard Blumenthal, Attorney General of the State of Connecticut; (2) Larry Liebesman, of Holland & Knight, representing communities in Rockland County, New York; and (3) Dr. Barbara Lichman of Chevalier, Allen & Lichman, representing Delaware County, Pennsylvania. The FAA was represented by Department of Justice attorneys Mary Gay Sprague and Lane McFadden.
In the 30 minutes allotted to the opening presentation, the team emphasized the FAA’s failure to adhere to governing statutes and regulations in implementing the Airspace Redesign Project. Specifically, Attorney General Blumenthal presented the Court with a litany of FAA lapses in conducting the analysis of the project’s noise impacts. The Attorney General argued that the mistakes and omissions from the analysis resulted in artificial and inaccurate minimization of those impacts. In addition, the Attorney General challenged FAA’s failure to reveal even the artificially minimized noise impacts to the affected public for review and comment, as it is obligated to do under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.