Paul J. Fraidenburgh

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Less than two weeks ago, the United States Supreme Court took the first of several actions meant to close the door on what has become a standard in opposing citizens’ efforts to challenge the missteps of administrative agencies, i.e. Judicial Deference to agency decision-making. Specifically, Judicial Deference has guided the Courts into accepting an agency determination “based on a reasonable interpretation of an ambiguous statute Congress has tasked the Agency with implementing.” Chevron vs. NRDC, 467 U.S. 837 (1984).

On May 1, 2023, the Court agreed to accept certiorari in the case of Loper Bright vs. Raimundo in which herring fisheries challenged a regulation issued by the Marine Fisheries unit of the Commerce Department, requiring private payment by boat owners of monitors mandated by the agency to be located on individual fishing boats to prevent over-fishing In accepting the case for review, the Court, for the first time, agreed to confront the concept of Judicial Deference head-on.Continue Reading Supreme Court May Have Dealt Death Blow to Judicial Deference

Stirring from their usual slumber, in the face of increasing community dissatisfaction with respect to noise and emissions from aircraft overflight, the Federal Aviation Administration (“FAA”) and United States Congress each took some action in recent months. First, FAA awarded more than $19 million to various universities and other organizations through the “ASCENT” program, a cooperative aviation research organization founded in 2014 (but apparently only lightly funded until now).

The primary purpose of the grants was to allow the universities to study ways to reduce aviation noise. Many of those awards were for noise resulting from episodic impacts of: (1) uncrewed aircraft; (2) supersonic aircraft; and (3) advanced air mobility or AIM. However, giving some thought to more “mundane” causes, FAA gave nearly $2 million to Boston University to study the relationship between aircraft noise, sleep, mental health, and cardiovascular health. Similarly, the University of Pennsylvania received slightly over $1 million to study the way in which noise from aircraft affects sleep. All of these latter grants go to the fundament of impacted communities’ concerns.Continue Reading FAA and Congress Finally Awaken to Citizens’ Discontent with Aircraft Noise Impacts

Since our February 1, 2023 blog, concerning the California Court of Appeals tentative decision in Make UC a Good Neighbor vs. Regents of Univ. of California, et al., that Court has taken the definitive step of confirming its tentative decision, on the critical ground that “UC Berkeley failed to assess potential noise impacts from…

On March 9, 2023, the Ninth Circuit Court of Appeals granted the “Motion to Enforce Judgment” filed by co-Petitioners Cities of Los Angeles and Culver City (“Cities”) in City of Los Angeles, et.al. v. Stephen Dickson, et.al.  The Order found the Federal Aviation Administration (“FAA”) in blatant violation of the National Environmental Policy Act, 42…

Public concerns have been running amuck on the internet regarding the recent tentative decision by the California Court of Appeal for the First Appellate District in Make UC a Good Neighbor v. Regents of the University of California, et.al., Case No. A165451 (Trial Court Case No. RG21110142). The case involves a challenge under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) to the adequacy of the Environmental Impact Report (“EIR”) for the Long Range Development Plan for the former “Peoples’ Park” in Berkeley, an historical icon to the student war  protests of the 1960s. A portion of the Long Range Plan involves construction of more than a thousand units of residential housing for university students, and acknowledges potential increases in population ancillary to the student body such as faculty and staff who will not receive access to the housing, but will be forced to compete with local residents for existing housing supplies.

The public’s concern appears to arise not merely from the project itself, but the Court’s purported expansion of the scope of CEQA to incorporate not merely the physical impacts of the project itself (e.g., traffic, emissions, etc.), but also impacts caused later by the users and/or occupants of the development, in this case the students, including “social noise” from late night parties and pedestrians.Continue Reading Public Concern Grows Over Broad-Based CEQA Decision

Since the publication of the above-entitled article on April 28, 2022, events have occurred that raised further questions about the immediacy of the closure of East Hampton Municipal Airport on the South Shore of Long Island, New York, owned and operated by the Town of East Hampton.

Specifically, the most recent related cases are Friends…

On May 20, 2022, the Council on Environmental Quality (“CEQ”) will implement revisions to current regulations governing the environmental analyses under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”). Specifically, CEQ will revise 40 C.F.R. § 1502.13, restoring detailed “purpose and need statements” in environmental impact statements (“EIS”); 40 C.F.R. § 1507.3, removing language that could be construed to limit local governmental agencies flexibility to develop and revise NEPA procedures to implement local agency specific programs; and 40 C.F.R. § 1508.1, definition of “environmental effects,” to restore the distinction between “direct, indirect and cumulative” effects.

The reason for the proposed changes lies with the dueling political and environmental concepts of the immediate past and current presidential administrations. In 2017, then President Trump issued Executive Order 13807, requiring CEQ to propose certain changes to then existing regulations. In January 2020, CEQ issued the new rules, making wholesale revisions to the original regulations that limit their applicability, and became effective on September 14, 2020. Immediately thereafter, on January 20, 2021, the new Administration issued Executive Order 13990 revoking the previous Administration’s Executive Order, and requiring CEQ to review and revise all regulations implemented between 2017 and 2020, i.e., those issued during the Trump Administration, to become consistent with later Executive Order 13990. The following constitutes the results of CEQ’s efforts toward “rectifying” the limitations on previous regulations, consistent with the intent underlying the original 1978 implementing regulations.Continue Reading The CEQ Tries to “Make a Silk Purse from a Sow’s Ear” by Revising NEPA Regulations

In a somewhat surprising turn of events, the Federal Aviation Administration (“FAA”), on April 15, 2022, approved the closure of East Hampton Airport, owned and operated by the Town of East Hampton, Long Island, New York. The airport is scheduled for closing on May 17, 2022. 87 Fed.Reg. 22617. FAA’s acquiescence appears surprising because of its long and strong resistance to the closure of airports in general. See, e.g., City of Santa Monica v. Federal Aviation Administration, 631 F.3d 550 (D.C. Cir. 2011). The Town plans to convert the currently public use airport into a new, publicly owned, private use facility.

A November 2020 letter from the FAA to the Town detailed four options to obtain local control of the airport: continued operation as a public use airport, negotiations of an agreement for mandatory restrictions on aircraft operators, permanent closure of the airport, or closure and subsequent reopening of a new, private use airport. A fifth option emerged in subsequent discussions between the Town and the FAA to transition the airport from public to private use without closure.

Reopening the airport under what the FAA calls a “prior permission required” model, the Town will be able to impose and enforce restrictions limiting air traffic and noise. Under this model, the Town could prohibit certain aircraft, or certain commercial or private users, impose noise limits; and restrict takeoffs and landings at certain times of the day. In determining which aircraft could use the airport, the Town could also take into account certain environmental factors. Electric aircraft might be favored, for example, over those that use leaded aviation fuel. As the prior permission classification applies, those who wish to use the airport will first need clearance from the Town, and that permission could be granted, revised, or withdrawn. Should the restrictions allowed under this model not meet community needs, the Town could still opt to close the airport entirely.

Both the process and the result sound interesting and hopeful to noise impacted communities. But don’t jump to any conclusions.Continue Reading FAA Defies History by Approving the Closure of East Hampton Airport

It is likely that the public may be somewhat disappointed with Congress’ latest effort to ameliorate the impacts of airport noise on underlying populations. On November 18, 2021, Adam Smith, Member of the House of Representatives from Washington State, introduced the Aviation Noise and Emissions Act, H.R. 6050, a Bill intended to “develop pilot grant programs through the Environmental Protection Agency to research and collect data on aircraft and airport noise and emissions and to use such information and data to develop a mitigation strategy, and for other purposes.” H.R. 6050, p. 1. At its foundation, the Bill calls for a “3-year pilot grant program with eligible entities to measure noise and emissions, including greenhouse gases, particulate matter, ultrafine particles, and other toxic pollutants, in communities near airports or air flight pathways using sophisticated methods and technology that allow tracing of noise and emissions to specific sources . . .,” H.R. 6050, paragraph 2.a., including identifying the primary recipients of such noise such as specific neighborhoods, structures, or impacted areas.
Continue Reading Is H.R. 6050 The Best That Congress Can Do?