National Environmental Policy 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.
 


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Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”).  On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services.  The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System.  Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.  


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Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
 
Most important in MMSA’s view is the expansion of the airport.  


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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.
 


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Inspired by Congressional intervention, the Federal Aviation Administration (“FAA”) has begun the process of revising and reorganizing FAA Order 1050.1E, “Environmental Impact: Policies and Procedures” in a new Order, 1050.1F (by the same name).  78 Fed.Reg. 49596-49600 (August 14, 2013).  That in itself would not be particularly notable, except for the importance of the changes that are being made, and their significance for both airport operators and the communities around airports that are the direct recipients of both the disbenefit of the environmental impacts of airport projects, and the potential benefit of the adequate environmental review of those impacts.

The most important of the potential revisions to Order 1050.1E involves FAA’s relief from the burdens of environmental review granted by Congress in the FAA Modernization and Reform Act of 2012, H.R. 658 (112th) (“FMRA”).  Specifically, two legislatively created categorical exclusions are added in 1050.1F, paragraphs 5-6.5q and 5-6.5r, Exemption from NEPA Review which basically give a free pass to changes to air traffic procedures throughout the country.
 


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In a surprising climax to the long controversy concerning helicopter flights and attendant noise impacts on the North Shore communities of New York’s Suffolk County, the FAA, on July 6, issued a “Final Rule,” making mandatory the current voluntary flight path for helicopters one mile offshore, but allowing the “Final Rule” to sunset on August 6, 2014, two years from the effective date, “unless the FAA determines a permanent rule is merited.”  The route commences 20 miles northeast of LaGuardia, near Huntington, New York, and remains approximately one mile offshore until reaching Orient Point, near the eastern end of Long Island, with deviations allowed for safety reasons, and to allow helicopters to transit over land to reach their ultimate destinations. 

The FAA discloses that its decision to promulgate the original voluntary rule arose from the numerous complaints of noise from helicopter overflights brought to its attention by Senator Charles Schumer of New York and Representative Tim Bishop of Long Island’s North Shore in October, 2007.  The subsequent mandatory rule apparently resulted from continued political pressure by residents who are “unbearably and negatively” impacted, particularly during the summer months when the number of helicopters, as well as deviations from the voluntary routing, seem to increase dramatically.  The real surprises in the “Final Rule,” however, are FAA’s rationale for: (1) making the route mandatory, a rationale which seems to apply equally to currently voluntarily procedures at other airports; and (2) the Rule’s sunset provision. 
 


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Challengers to the determinations of Federal agencies do not go to court on a level playing field with their governmental adversaries.  Federal courts have long taken the position that deference is properly accorded to an agency making decisions within its area of technical expertise.  That position may now be changing, at least with respect to two specific sets of legal circumstances. 


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On Tuesday, March 6, 2012, Tinicum Township, Pennsylvania and its partners County of Delaware, Pennsylvania; Thomas J. Giancristoforo; and David McCann (“Petitioners”) took their grievances with the ongoing expansion project at Philadelphia International Airport (“PHL”) to the 3rd Circuit Federal Court of Appeals in Philadelphia.  Petitioners, made up of communities and residents surrounding the airport,

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.
 


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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."


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