On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act

After several months of delays, the FAA filed its Brief for Federal Respondents in the East Coast Airspace Redesign case that is pending before the U.S. Court of Appeals for the District of Columbia Circuit.  As expected, the brief alleges simply that the FAA performed the Environmental Impact Study for the airspace redesign "adequately" – which is all that is required under NEPA – "adequately" addressing cumulative impacts, "adequately" analyzing noise impacts, and "properly" assessing environmental justice impacts.

There is one interesting note contained in the Brief.  The FAA argues that the Airspace Redesign is "presumed to conform" with the Clean Air Act (Brief, p.108).  If the project is "presumed to conform" the FAA can forego its duty under the Clean Air Act from performing a conformity applicability analysis.  This position is contrary to the position that the FAA took in a lawsuit brought by Delaware County, Pennsylvania, in which the FAA argued the Airspace Redesign project did not rely on the presumed to

Continue Reading FAA Files Its Brief In The East Coast Airspace Redesign Lawsuit

In 1968, Garrett Hardin, a professor of Human Ecology at University of California at Santa Barbara, wrote an influential article for the journal Science that described a dilemma in which multiple individuals acting independently in their own self-interest can ultimately destroy a shared resource even where it is clear that it is not in anyone’s long term interest for this to happen.  Prof. Hardin titled this dilemma and his article the “Tragedy of the Commons.”  The current situation at this country’s busiest airports, a shared resource, is a graphic example of the Tragedy of the Commons.

In Prof. Hardin’s article, the central theme is that herders share a common parcel of land, i.e., the commons, on which they are all entitled to let their cattle graze.  It is in each herder’s interest to put as many cattle as possible onto the commons, even if it is damaged as a result.  The herder receives all of the benefits from the additional cattle, but damage to the commons is shared by the entire group.  If all the herders make this individually rational decision, however, the commons is destroyed.

A parallel can be drawn to the sttructure of the United States air transportation system with respect to congestion management.  It is in the each airline’s interest to schedule as many flights as possible during the busiest time of day, even if those flights are substantially delayed as a result thereby overloading the airspace system and the airport, taxing customers’ patience, and damaging the airline’s reputation.  Each of the airlines receives benefits from the additional flights, but the damage to the airport, the airspace system and the airlines is shared by the entire group. 

Continue Reading The “Tragedy of the Commons” and Airport Congestion Management

On September 10, 2008, Anne Milgram, the New Jersey Attorney General filed an amicus curiae brief in support of the Petitioners in the Airspace Redesign litigation currently pending in Court of Appeals for the District of Columbia Circuit.  In it, the New Jersey Attorney General emphasizes the impact that the Airspace Redesign will have on New

Senator Arlen Specter (R-Pa.) and Senator Christopher Dodd (D-Conn.) filed a amicus curiae brief on Friday, September 5, 2008

The Brief makes three arguments: how the FAA did not give appropriate weight to noise reduction in balancing the alternatives for the Airspace Redesign Project, how the FAA failed to give appropriate weight to

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