On May 17, 2012, FAA published in the Federal Register a “Notice of Proposed Rulemaking (NPRM); Reopening of Comment Period” for “Rules of Practice for Federally Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” first published in March, 2012. In plain language, FAA is making substantial changes to the procedures for bringing a challenge to airports’ compliance with FAA grant assurances under 14 C.F.R. Part 16. “Grant assurances” are those commitments made by airport sponsors in return for receipt of federal funding of airport projects, as required by 49 U.S.C. § 47107. Any changes in the procedures for enforcing grant assurances are of significant interest not only to the airports, which may benefit from a relaxation in the procedures for challenging their actions, but also to airport users, such as fixed-base operators (“FBO”), airlines, and other airport related businesses. The proposed changes are broad in scope and purportedly made for the purpose of, among other things, becoming consistent with the Federal Rules of Civil Procedure.
As we reported yesterday in our blog titled “FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review,” Congress is set to act on the conference version of H.R. 658 (“Act”), a Bill the nominal purpose of which is to fund the Federal Aviation Administration (“FAA”) for 2011-2014, a task Congress has been unable or unwilling to accomplish for the last two years.
The legislation goes far beyond funding, however. Toward another stated purpose – to “streamline programs” – the Act sets out the parameters for establishment and operation of FAA’s Next Generation Transportation System (“NextGen”). Not stopping there, it also “creates efficiencies” by exempting the NextGen program from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), Act, § 213. Thus, whole communities around at least 30 “core” airports might be newly impacted by aircraft overflights seemingly without the opportunity for public review and comment before the NextGen project is implemented, and without an avenue of leverage in the courts afterwards. All is not yet lost, however.
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."