On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act

After several months of delays, the FAA filed its Brief for Federal Respondents in the East Coast Airspace Redesign case that is pending before the U.S. Court of Appeals for the District of Columbia Circuit.  As expected, the brief alleges simply that the FAA performed the Environmental Impact Study for the airspace redesign "adequately" – which is all that is required under NEPA – "adequately" addressing cumulative impacts, "adequately" analyzing noise impacts, and "properly" assessing environmental justice impacts.

There is one interesting note contained in the Brief.  The FAA argues that the Airspace Redesign is "presumed to conform" with the Clean Air Act (Brief, p.108).  If the project is "presumed to conform" the FAA can forego its duty under the Clean Air Act from performing a conformity applicability analysis.  This position is contrary to the position that the FAA took in a lawsuit brought by Delaware County, Pennsylvania, in which the FAA argued the Airspace Redesign project did not rely on the presumed toContinue Reading FAA Files Its Brief In The East Coast Airspace Redesign Lawsuit

In February, 2007, almost as an after-thought, theFAA included changes to air traffic control procedures to its Presumed to Conform rule. This last minute addition has the potential to seriously impact communities around the airports where these changes to air traffic control procedures take place. 

Why will this obscure regulatory change affect communities? First, a little background on the subject will be helpful. Air quality and noise are the primary concerns of communities around airports. Since Federal law severely limits the ability of communities to affect the amount of noise produced at airports, many communities have focused on protecting their air quality. The conformity provisions of the Clean Air Act provide a useful tool in that regard. They require that all Federal agencies ensure that their projects will not affect the State Implementation Plan (SIP), which is a plan drafted by the state and approved by the EPA in order to come into compliance with other provisions of the Clean Air Act. This “conformity determination” provides communities around airports with needed data concerning the effect the agency’s action will have on the air quality. Moreover, if the Federal agency fails to perform a conformity determination or fails to do it properly, then that it is grounds for the community to object to the Federal agency’s action as a whole.

Continue Reading FAA’s Presumed to Conform Rule Will Affect Communities Around Airports

On April 11, 2008, a group of concerned cities, companies and citizens filed comments regarding the EPA’s proposed revisions to the General Conformity Regulations (see earlier post "EPA Proposes Revisions to General Conformity Rules).  To see the Group’s actual Comment letter as filed, click here.

The General Conformity Rules, which the EPA promulgated in 1993 and has not substantially updated since then, require Federal agencies to evaluate the effect their actions will have on air quality prior to their taking any such action.  The Group expressed concern that the revisions that the EPA was suggesting took away some of the protection that the Clean Air Act granted citizens in section 176 (42 U.S.C. 7506).  In addition, the Comment letter stated that the EPA:

  • should not allow Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
  • should not allow Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
  • should not allow the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
  • should add a definition of applicability analysis.
  • should delete the "presumed to conform" program, since only one agency has taken advantage of it in 15 years and it most likely violates the Clean Air Act and the Constitution.

Continue Reading Group of Concerned Cities, Companies and Citizens Files Comments Regarding EPA’s Proposed General Conformity Revisions