Communities challenging, or considering a challenge, to the noise and other impacts from low-flying aircraft, enabled in new flight paths and altitudes by the Federal Aviation Administration’s (“FAA”) NextGen Initiative, may find some comfort in the knowledge that they are not alone. Communities from coast to coast, even including communities that are themselves airport proprietors, have recently joined the group of communities that earlier brought legal action against FAA to vindicate their citizens’ interests, some of which suits are only now approaching decision.

First chronologically, the City of Los Angeles, owner and operator of Los Angeles International Airport (“LAX”), brought suit in December 2019, in the United States Court of Appeals for the Ninth Circuit, challenging a southerly shift in flight tracks of departing aircraft from Bob Hope (Hollywood-Burbank) Airport, City of Los Angeles v. FAA, Case No.19-73164, alleging FAA either failed to review the revised flight paths under NEPA, or failed to take action required by law to ensure reasonable compliance with assigned flight tracks. In its opposition, FAA first argued that it is not responsible for the divergence from established flight tracks, but, rather, it is due to “Acts of God,” such as wind, weather, and flocks of birds. It was only months later, when FAA realized that excuse wouldn’t “fly,” that it assumed responsibility by claiming the need to “vector” aircraft off established flight tracks for safety purposes. After Court-supervised mediation efforts were unsuccessful, briefing was completed in September 2020, but no decision has been made by the Court to date. That case is not by any means the end of the story.


Continue Reading Communities Challenging NextGen Are In Good Company

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 


Continue Reading FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

In a monument to political deal making, the United States Congress is today considering, in the House and Senate Aviation Committees, the "FAA Modernization and Reform Act of 2012," H.R. 658 ("Act") to, among other things, "authorize appropriations to the Federal Aviation Administration for fiscal years 2011-2014 . . ." It is, however, the other provisions of the legislation which most profoundly affect the public.   

Purportedly to "streamline programs, create efficiencies, reduce waste and improve safety and capacity," the most recent version of the Act to emerge from the House-Senate Conference Committee exempts all new area navigation ("RNAV") and required navigation performance ("RNP") procedures, which collectively comprise the "Next Generation Air Transportation System" ("NextGen"), Act § 201, Definitions, from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA"). 

The Act, generally, mandates that all "navigation performance and area navigation procedures developed, certified, published or implemented under this section [Section 213] shall be presumed to be covered by a categorical exclusion (as defined in § 1508.4 of Title 40, C.F.R.) under Chapter 3 of FAA Order 1050.1E, unless the Administrator determines that extraordinary circumstances exist with respect to the procedure." Act, § 213(c)(1).   

The Act expands on this mandate in § (c)(2). "NEXTGEN PROCEDURES – Any navigation performance or other performance based navigation procedure developed, certified, published or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace, shall be presumed to have no significant effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure."


Continue Reading FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review

Yet another project at Los Angeles International Airport (“LAX”) has skated under the requirements of the California Environmental Quality Act (“CEQA”). The project, the “American Airlines Commuter Facility Improvement Project,” allegedly constitutes a mere replacement of the facilities once occupied by United Airlines. Not exactly. The project actually includes, but is not limited to: (1) more than doubling the size of the passenger terminal/administration building to add passenger accommodations and office space; (2) addition of an almost 10,000 square foot building for baggage handling, office space and storage; and (3) replacement of a remote gate, accessed by foot or bus, with an enclosed contact gate such as those which are used inside the main terminals.

Despite the expansionary nature of the project, Los Angeles World Airports (“LAWA”), the Department of the owner, City of Los Angeles, responsible for operating LAX does not give so much as a passing nod to compliance with CEQA. If the project could simply be described as “new lease with American Airlines,” as a recent “Transmittal for Review of LAX Tenant Improvement Project” would have the public believe, the omission to conduct environmental review might be justified by a categorical exclusion from CEQA, 14 Cal. Code Regs. section 15301. That exclusion, however, does not apply here. The project, far from being “negligible” in scope, clearly constitutes a massive expansion of the previous passenger hold room and other passenger serving facilities.
 


Continue Reading LAX/American Airlines Commuter Facility Project Avoids Environmental Review