Several groups. individuals, cities, and counties who petitioned the United States Court of Appeals for the District of Columbia to review the FAA’s decision to move forward with its redesign of the New York/New Jersey/Pennsylvania airspace have filed Petitions for Rehearing after the rather surprising D.C. Circuit ruled against them in an opinion that reeks of judicial indifference.  See, "D.C. Court of Appeals Decides Against Challenge to East Coast Airspace Redesign," posted June 11, 2009.


In order to obtain a  rehearing en banc (i.e., by all of the judges currently sitting on the D.C. Circuit), a petitioner must show:

  • The decision of the panel conflicts with the decision of the U.S. Supreme Court or with the decisions of the D.C. Circuit; and/or
  • The proceeding involves "one or more questions of exceptional importance."

Federal Rules of Appellate Procedure (FRAP) 35.  The intent of the rule is to "secure and maintain uniformity of the court’s decisions."  Id.

The standard for obtaining a rehearing by the same panel of three judges who heard the matter the first time is slightly lower.  A petition for rehearing will be granted when the court agrees that points of law or fact were overlooked or misapprehended by the panel.  FRAP 40.  In this case, all three Petitions for Rehearing ask for both a rehearing en banc and a rehearing by the panel.

Delaware County’s Petition for Rehearing

Delaware County’s Petition focuses on the court’s decision that the FAA complied with the conformity provisions of the Clean Air Act by providing a "fuel burn report" instead of a more comprehensive emission inventory  According to Delaware County, this position conflicts with the U.S. Supreme Court case of Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) and two D.C. Circuit cases as well:  Environmental Defense Fund, Inc. v. EPA, 467 F.3d 1329 (D.C. Cir. 2006) and Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006).  These cases, Delaware County argues, require scrupulous compliance with the Clean Air Act as well as the EPA’s implementing regulations. 

The court’s failure to hold the FAA to following the letter of the Clean Air Act and the EPA regulations not only conflicts with other decisions, but also presents an issue of exceptional public importance in that it contravenes  the express purpose of Congress in enacting the Clean Air Act.The D.C. Circuit recently held in Environmental Defense v. EPA, 467 F.3d 1329, 1336 (D.C. Cir. 2006) that the FAA "may not ‘avoid the Congressional intent clearly expressed in the text simply by asserting that its preferred approach would be better policy.’"

In addition, Delaware County argues that the panel misapprehended several critical facts, not the least of which is the fact that the court based its rejection of one the Petitioners’ critical arguments on the Petitioners not raising the issue in their Opening Brief.  The Petition for Rehearing cites the references in the Opening Brief where that issue was raised.

Finally, Delaware County contends that that the panel misapprehends the burden of proof necessary in this matter.  Under the holdings of Alabama Power v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979) and Association of Administrative Law Judges v. Federal Labor Relations Authority, 379 F.3d 957 (D.C. Cir. 2005) the burden is on the agency to fully document that an agency’s action falls within a de minimis exemption.

Continue Reading Three Petitions for Rehearing Filed in Airspace Redesign Matter

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

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. 

Continue Reading East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals

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

On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA’s 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

Continue Reading FAA’s 2009-2013 Flight Plan Includes 5 More Airports Due for an Airspace Redesign

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