The citizens’ organization, Quiet Skies, made up of communities around the nation impacted by airport operations, is making its views about the increasing impacts of the Federal Aviation Administration’s (“FAA”) NextGen initiative known to new Secretary of Transportation Buttigeig at the very dawn of his tenure. Alison Pepper, a Quiet Skies activist, has drafted a
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.
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.
Exemption of NextGen procedures from environmental review is not the only issue raised by the FAA Reauthorization legislation set to be approved by the United States Senate on Monday, February 6 at 5:30 p.m. EST. Section 505 of the Conference Version of the Bill allows a public entity taking private residential properties by eminent domain for airport purposes to pay the value of the property after its value has been diminished by the pendency of the project itself, and by any delay by the public entity in purchasing the property. In other words, the Congress is overriding the long held judicial precept that “temporary takings are as protected by the Constitution as are permanent ones.” See, e.g., First Evangelical Lutheran Church of Glendale v. Los Angeles County, California, 482 U.S. 304, 318 (1987).
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."
The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.
A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
In a recent report entitled Civil Aviation Growth in the 21st Century, the Aerospace Industries Association (AIA) recommended that the Federal Aviation Administration (FAA) develop strategies to integrate National Environmental Policy Act (NEPA) review into the FAA’s Next Generation Air Transportation System (NextGen) implementation planning process in a way that would make NextGen environmental reviews…
Although originally billed as a Senate hearing on FAA Reauthorization, because another continuing resolution was passed last week, the Senate Subcommittee on Aviation Operations, Safety and Security switched the focus of the hearing from Reauthorization to NextGen and "the Benefits of Modernization."
Essentially, this hearing was a scaled-down version of the hearing that the House held last week. (See, "U.S. House Subcommittee on Aviation Holds Hearing on FAA’s NextGen and ATC Modernization Efforts," posted March 22, 2009). Indeed, the written testimony of Dr. Dillingham is almost word for word identical to the written testimony presented to the House Subcommittee. Likewise, the written testimony of Dale Wright, NATCA’s Director of Safety and Technology, was in most respects the same as Patrick Forrey’s last week. As Sen. John D. Rockefeller, IV, Chairman of the full Committee stated in his opening statement, this hearing was a first step to "move the U.S. past Mongolia in the ranking of air traffic control systems."
It was also Sen. Rockefeller who summed up the problems the FAA has been having not only with respect to NextGen, but many other issues as well: "[r]ivalries in the aviation community have hampered the industry’s ability to speak with one voice for far too long. Without that one voice, you will fail." The simmering labor disputes between the Air Traffic Controllers and the FAA; the mistrust between the Pilots and General Aviation; the airlines’ position with the FAA have all made it difficult for anything to be resolved, even if everyone agrees that some form of NextGen is an absolute necessity.
Thus, the hearing had Hank Krakowski, Chief Operating Officer of the Air Traffic Organization at the FAA, patting FAA on the back for getting ATC Modernization off of GAO’s "High Risk List," (see, "GAO Removes FAA Air Traffic Control Modernization Program From Its High Risk List," posted January 22, 2009) and generally touting how invested the FAA is in working with all stakeholders to achieve the goals. In counterpoint, NATCA’s Wright, talked about the human cost of NextGen, and telling the Subcommittee that the "FAA must collaborate meaningfully with stakeholders" pointing out that "to date [NATCA has] received no indication from the FAA that the Agency has any intention of meaningfully collaborating with NATCA."
Likewise, T.K. Kallenbach of Honeywell Aerospace lauded the environmental benefits of Continuous Descent, which is possible with the new NextGen technology. Meanwhile United Airlines’ Joe Kolshak understandably lobbied hard for NextGen, since the airlines anticipate a huge drop in fuel costs, although the airlines might be looking for some assistance to get the required technology installed into the cockpits. And finally, Dr. Dillingham once again told a Congressional panel that the "FAA faces challenges in resolving human capital," research and development, and facilities issues.
So, where does that leave us? Two "foundational" and "critical" hearings in which the same people are saying essentially the same thing that they (or their agencies/organizations) have been saying for at least the past two years. With FAA Reauthorization stalled in the House (see "User Fees Issues Probably Will Force Short-Term Extension of FAA’s Authorization Instead of Full Reauthorization," posted March 16, 2009), and the Obama administrative set to present its proposal in Mid-April, it seems unlikely that anything will get rolling anytime soon.
A list of the witnesses and their written testimonies follows.
On March 18, 2009, the U.S. House Subcommittee on Aviation held a hearing entitled "Air Traffic Control Modernization and the Next Generation Air Transportation System: Near-Term Achievable Goals." The Subcommittee and the FAA are placing much of their hopes and dreams on the viability and success of NextGen and Air Traffic Control Modernization. In opening comments, it seemed that if ATC Modernization and NextGen are fully implemented all of the current ills of the FAA will be resolved and world peace will be achieved: safety will be improved, delays will be diminished, air traffic controllers will be able to handle more operations more quickly and more efficiently, pilots will be able to fly better, and, oh, it is good for the environment, too. While, only being a tad sarcastic, it seems that many dreams have been placed on NexGen’s shoulders.
There can be no doubt that NextGen is needed. All of the technical witnesses testified that ATC modernization and NextGen are absolutely critical to maintaining the U.S.’s airspace. Captain Rory Kay, Executive Air Safety Chairman of ALPA, stated that:
NextGen has the potential to revolutionize the National Airspace System and our air transportation system . . . Forecasted increases in air traffic of two to three times today’s traffic cannot be met in today’s NAS.
So what are the problems? First and foremost, it is a question of funding. As former FAA Administrator Marion Blakey stated, in testimony as President and CEO of Aerospace Industries Association:
Much of what is needed for NextGen falls under the category of "new starts" which, as you well know, are prohibited under funding extensions. A large number of FAA NextGen pre-implementation issues – including development and acquisition decisions, have been adversely affected.
Now that FAA Reauthorization has been put on the back burner with the passage of yet another continuing resolution, do not look for these new NextGen projects to see the light of day any time soon.
Another issue is human resources. NextGen represents a fundamental shift in the responsibilities and practices of pilots and air traffic controllers. As Patrick Forrey, President of National Air Traffic Controllers Association, stated:
Under the proposed system, air traffic control would shift to what the FAA is euphemistically referring to as "Trajectory Management." Essentially, air traffic controllers would discontinue active air traffic control and shift instead to air traffic monitoring and route management. This could have serious implications for the safety of the NAS.
NATCA worries that "air traffic managers" would rely heavily on an automated system and not how to handle an emergency situation should the automated system go down.
For the airlines and general aviation, the problem with NextGen is the "equipage." NextGen relies on up-to-date technology not only on the ground, but on the aircraft. In the early 2000’s, for example, American Airlines retrofitted its fleet to install the Controller Pilot Data Link Communication system only to have FAA abandon its efforts in 2004. Airlines probably will be reluctant to equip their fleets until the FAA is able to effectively address the legitimate concern that the technology is good investment. And that is difficult to do when the funding for the programs to develop the technology is not in place and has not been in place for the past 2 years.
All this assumes that the FAA has in place the management infrastructure to effectively manage and implement NextGen. Although the GAO pulled ATC Modernization off of its "High-Risk" list, NextGen, as soon as its implementation begins will land on the list. The GAO has found that the JPDO and ATO have made progress in planning for and developing NextGen, but much is left to do. As Calvin Scovel, the Department of Transportation Inspector General pointed out, the FAA needs to :
(1) establish[ ] priorities and Agency commitments with stakeholders and reflecting them in budget and plans; (2) manage[ ] NextGen initiatives as portfolios and establish[ ] clear lines of responsibility, authority, accountability; (3) acquire[ ] the necessary skill mix for managing and executing NextGen; and (4) examine[ ] what can reasonably be implemented in given time increments.
Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) stated that this was a "foundational" hearing on a topic of importance. While Congress debates FAA Reauthorization, NextGen and ATC Modernization must move forward.
Lists of Hearing Witnesses and Links to their written testimonies can be found by clicking on the "Continue Reading" link.