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.

Continue Reading FAA Moves to Insulate Itself from Challenges to Clean Air Act Compliance in Airspace Redesigns