On Thursday, July 8, 2021, the City of Culver City and its co-Petitioner, City of Los Angeles, prevailed in the case of City of Los Angeles, et.al. v. Stephen Dickson, et al. against the Federal Aviation Administration (“FAA”) on substantially all claims, an almost unprecedented outcome for local governments against a federal agency acting within its area of expertise. In that case, Petitioners challenged FAA’s failure to perform any environmental review, as required by the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”) before implementing changes in aircraft flight tracks that lowered altitudes and consolidated flight tracks over residential areas not previously overflown, resulting in continuing and vociferous community opposition. That challenge was brought in the U.S. Court of Appeals for the Ninth Circuit under its original jurisdiction, 49 U.S.C. § 46110, in the adjudication of challenges to FAA actions.

Because these operational changes were part of a larger national program of airspace changes called FAA’s NextGen project, aimed at reducing distances aircraft must fly on arrival to airports, Petitioners’ victory has implications for communities throughout the nation over which FAA has persisted in implementing flight track changes under the guise of the NextGen Project, in each and every case without the benefit of required environmental review.Continue Reading Buchalter Wins National Victory

In a decision of October 21, 2019, the Federal Aviation Administration (“FAA”) defied its own regulations, federal law, and logic in determining that the City of Santa Monica had properly expended airport revenues in the demolition of 3,500 feet of the runway at Santa Monica Municipal Airport (“SMO”), for the express purpose of limiting access by turbojet aircraft.

In its decision, FAA stated “[w]e conclude that airport revenue may be used to fund the payment removal, pavement pulverization, and hydro-seeding project, including the work within the Runway Safety Area, at SMO. The removal of the subject pavements, pavement pulverization and reuse, and the soil stabilization at SMO appears justified as an airport operating cost.” [Emphasis added]. Existing law and governing regulations would, however, appear to lead to the contrary conclusion.Continue Reading FAA Ignores Its Own Regulations in Allowing Expenditure of Airport Revenue to Demolish Runway at Santa Monica Municipal Airport

The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
 

Continue Reading City of East Hampton May Be “A Day Late and a Dollar Short” in Challenging the Airport Noise and Capacity Act

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.   

The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown.  Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  The City of Phoenix instituted a two-prong approach in disputing this determination.  It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.  
 
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
 

Continue Reading Senate Monitors FAA Airspace Changes Through New Advisory Committee