Because the Federal Aviation Administration’s (“FAA’) airspace redesign projects throughout the United States have apparently negatively impacted hundreds of thousands, even millions, of people, and because we have received a number of requests for a discussion of the bases for the currently pending challenge to the FAA’s SoCal Metroplex airspace redesign project, a copy of the Opening Brief of Petitioners City of Culver City, California; Santa Monica Canyon Civic Association; Donald Vaughn; and Stephen Murray in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) can be accessed by clicking here. Also filing briefs as Amici Curiae, or friends of the court, in support of Petitioners are the City of Los Angeles and the West Adams for Clear Skies.
On Friday, March 16, 2018, Petitioners in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) filed an Opening Brief in their challenge to the Federal Aviation Administration (“FAA”) in its realignment of flight paths over heavily populated neighborhoods throughout Southern California. The challengers strongly object to FAA’s emphasis on efficiency (i.e., savings in fuel consumption) by the airlines, to the exclusion of any consideration of the noise and emissions tradeoffs necessary to achieve the efficiency benefits of that tradeoff. A more complete discussion of the basis for the challenge is set forth in an article published by Law360 on March 19, 2018, and can be accessed by clicking here.
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.
On September 8 and October 8, 2015, the Cities of Culver City and Inglewood, California, filed original and supplemental comments, respectively, with the Federal Aviation Administration (“FAA”) concerning the adequacy of its Draft Environmental Assessment (“DEA”) for the Southern California Metroplex (“SoCal Metroplex”) Optimization of Airspace and Procedures in the Metroplex (“OAPM”) (“Project”). The OAPM is one in a long line of airspace redesigns being implemented by FAA throughout the nation, for the purpose of narrowing the flight paths of approach and departure procedures around airports to facilitate use of satellite, rather than ground based, navigation, and thereby save fuel for the airlines. The critical problem, as set forth in the attached comments, is that FAA failed to fully evaluate the noise, air quality and other impacts of these changes on communities surrounding airports.
As if seven years of wrangling were not enough, the Federal Aviation Administration (FAA) is now proposing changes to the current airspace utilization at Kennedy and Philadelphia International Airports.
From 2002 to 2009, governmental and private entities from Connecticut to Pennsylvania, including the State of Connecticut, various local jurisdictions in New York State, environmental organizations in New Jersey, and the County of Delaware, Pennsylvania negotiated with, and ultimately challenged, a comprehensive redesign of the airspace affecting approaches and departures to every airport in the North Eastern United States. Of greatest concern, were new flight paths over dense populations and numerous parks and nature preserves without even a cursory nod to required noise or air quality analysis.
After much contention, FAA got its way. Apparently, however, the East Coast Airspace Redesign didn’t quite work out, because FAA is at it again. First, ostensibly because of persistent delays at Newark, JFK and LaGuardia that were supposed to have been remedied by the panacea of the East Coast Airspace Redesign, hundreds of additional flights will be rerouted from JFK over residential areas in Northern and Central New Jersey. To add insult to injury, the changes will be made through an FAA rulemaking process, and not through the formal processes that characterized the first round of redesigns.
Similarly, the FAA is proposing a modification of the Class B airspace surrounding Philadelphia International Airport that will expand areas impacted by overflight to an even greater extent than did the East Coast Airspace Redesign.
In short, those who are looking down the barrel of these changes should take the opportunity to comment on FAA’s proposals, not only to foster dialogue with FAA concerning the ongoing, increasing and apparently inadequately studied procedures and their impacts, but also to exhaust administrative remedies for a legal challenge should FAA continue to “gild the lily” of the East Coast Airspace Redesign with additional enhancements, to the detriment of already impacted residents and businesses on the ground.
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 less costly and time-consuming.
In the report, the AIA acknowledges that: (1) redesign of terminal airspace by the FAA requires compliance with NEPA; (2) airspace redesign typically has potentially negative environmental impacts and does not qualify as a “categorical exclusion”; and (3) most often, airspace redesigns require an Environmental Assessment (EA). Every EA must result in either a ‘finding of no significant impact” (FONSI) or a more detailed “environmental impact statement” (EIS). Citing the historical duration and cost of FAA actions involving EAs and EISs, the AIA reports that industry stakeholders in NextGen are frustrated with the time-consuming and costly nature of the NEPA review process, consider it a major impediment to the timely rollout of the system, and would like to see additional efforts to expedite the NEPA process. Although the report does not expressly state that all NextGen EAs should result in a FONSI, it could reasonably be read to suggest that approach in order to save costs and fast-track the NEPA review process.
While it is true that NEPA review is costly and time-consuming, there should be no different, attenuated NEPA review process for NextGen than for any other Federally sponsored or funded project. To subject some arbitrarily chosen Federal projects to less stringent review than NEPA prescribes would require an amendment of NEPA (a highly unlikely eventuality). NextGen is no different than any other Federal effort, and the Congress has clearly spoken about the precise protocols that must be followed. Any initiative to the contrary, without a NEPA amendment, would be contrary to law.
Senator Arlen Specter (R-Pa.) and Senator Christopher Dodd (D-Conn.) filed a amicus curiae brief on Friday, September 5, 2008.
The Brief makes three arguments: how the FAA did not give appropriate weight to noise reduction in balancing the alternatives for the Airspace Redesign Project, how the FAA failed to give appropriate weight to noise reduction, which is inconsistent with Congressional Intent, and how the FAA’s current interpretation that safety and efficiency are much more important than noise reduction is inconsistent with its prior interpretations of the relevant statutes.
The Senators in their brief point to several instances where Congress directed the FAA to protect exposed populations from the harm of aircraft noise, concluding that "given this history, the FAA’s policy of considering noise mitigation only ‘where feasible’ cannot withstand scrutiny." Likewise, the Senators point out that members of Congress have "criticized the FAA for the lack of weight afforded to noise reduction as a goal of the redesign plan." Thus, the Senators conclude, the FAA "failed to heed its mandate to integrate noise reduction with its other laws, regulations, and policies for the redesign plan.
The FAA’s Brief is due December 12, 2008.
News Articles regarding the amicus Brief by Sens. Specter and Dodd:
In a rather odd, unusual statement, the FAA issued on July 31, 2008, a "Record of Decision and Written Re-Evaluation of the New YorkNew JerseyPhiladelphia Metropolitan Area Airspace Redesign Final Environmental Impact Statement." In response to several requests for supplemental EIS to deal with the congestion management orders for JFK, LaGuardia and Newark, the FAA prepared the "Written-Re-Evaluation" "to consider whether these Orders Limiting Scheduled Operations and the new rates and charges amendments, either affected the purpose and need for the Airspace Redesign project, or altered the reported environmental impacts." To no one’s surprise, the FAA concluded that there is no "significant new information warranting preparation of a new or supplemental EIS for the Airspace Redesign project." Since this strange document, coming 11 months after the initial Record of Decision and 29 days before the Petitioners’ Brief in the Airspace Redesign litigation is due, is a "Record of Decision," anyone objecting to the ROD may file a Petition for Review within sixty days of July 31, 2008.
What remains to be seen is what effect this document will have on the on-going litigation, the GAO report (which was due out July 31, 2008, but probably will not be issued until the end of August), and the increasing political pressure that is being put on the FAA to reconsider the entire project.
Here are quick takes on recent news items concerning aviation and airport development during the past week.
- FAA Bans Pilots and Air Traffic Controllers From Using the Anti-Smoking Drug Chantix. Apparently, the smoking cessation drug may cause serious side effects, including psychiatric disorders, including suicide. FAA felt that they were serious enough to ban pilots and air traffic controllers from using the drug. Many bloggers picked up the story. Here are just a sample of the many blogs that picked up this story:
- FAA Tests New Systems For Detecting Ground Debris. The FAA has begun to test several different systems around the country to ensure that the runways are debris-free. Debris, if sucked into jet engines can cause severe damage. Whether this is separate and apart from the NextGen technology, remains to be seen.
- In the Good News/Bad News department: Flight Delays Cost $41billion in 2007 to the industry and to passengers; and New Air Traffic Software is proven to save $27 million in delays. The disparity between the two numbers is astounding! Granted, the new software is only one portion of the "new technology" effort to cut down on delays. Blogs:
- Citing lessons learned from reports submitted by the Federal Aviation Administration and American Airlines in response to last month’s grounding of hundreds of MD-80 aircraft, the U.S. Secretary of Transportation called on the FAA and airlines to better ensure mutual understanding of what constitutes compliance with an Aviation Directive. Blogs:
- American Airlines and FAA differ about April groundings. The finger-pointing has begun. American claims that although the maintenance shortcomings did not justify canceling all of the flights, they were told by a FAA inspector to keep the planes on the ground. FAA says the decision to cancel the flights was solely American’s. Interesting story to watch as the FAA and the airlines develop a new relationship post-MD80 Wiring debacle. Blogs:
- FAA declares proposed Boston Tower too tall. FAA declares that 1000 foot tower in downtown Boston might be an obstruction, possibly in the flight path of a plane aborting a landing at Logan and unexpectedly veering off over downtown Boston at low altitude. As property near airports becomes more and more desirable, this sort of problem will only increase. Blogs:
- FAA Misses Deadline in Mechanic’s Probe. The FAA has failed for the third time to provide records to federal investigators conducting a probe into how the agency tracked falsely certified airplane mechanics. This comes at a time when the FAA has little or no political capital to spend on Capitol Hill to straighten things out. Blogs:
In both the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the New York/New Jersey/Philadelphia Airspace Redesign, the FAA states that there will be a decrease in emissions from aircraft as a result of the airspace redesign because the aircraft will burn less fuel. To support this theory, the FAA relies upon a cobbled-together "Fuel Burn Analysis" that is nowhere to be found in any of the FAA’s orders or procedures.
However, even with the ginned-up fuel burn analysis, it is now becoming apparent that there may be no savings in fuel to be derived from instituting the Airspace Redesign’s preferred alternative. Using the information provided in the Appendix R of the Final Environmental Impact Statement and the TAAM output files that were included in the Administrative Record as document 9285, Clean Air Act consultant Dan Meszler, of Meszler Engineering Services, concluded that the "Preferred Alternative" would seemingly increase fuel consumption.
On the following page is an excerpt from Mr. Meszler’s Report, along with a table showing the differences between fuel consumption reported in the FEIS and fuel consumption based on the TAAM data that was included in the Administrative Record.