BRIEF OF AMICUS CURIAE TWA PILOTS THOMAS L. BROWN,
L.W. BENSEL, ROBERT A. PASTORE AND JACOB P. RAST

IN THE UNITED STATES COURT OF APPEALS
 FOR THE EIGHTH CIRCUIT

NOS. 98-3506; 98-3774; 98-3925

 CITY OF BRIDGETON, MISSOURI, CITY OF ST. CHARLES, MISSOURI
AND ST. CHARLES COUNTY, MISSOURI

 Petitioners,

v.

 RODNEY E. SLATER, in his official capacity as Secretary of Transportation;

 DEPARTMENT OF TRANSPORTATION; JANE F. GARVEY,
in her official capacity as Administrator, Federal Aviation Administration;

JOHN F. TURNER, in his official capacity as Regional Administrator,
Federal Aviation Administration; FEDERAL AVIATION ADMINISTRATION,

Respondents.

 

Robert Schultz
Vicki L. Little
Descher & Schultz
7700 Bonhomme Ave., Suite 325
St. Louis, MO 63105

Telephone: (314) 862-4777

 

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT

On September 30, 1998, the Federal Aviation Administration ("FAA") issued its Record Of Decision approving an Airport Layout Plan and funding for the City of St. Louis’ proposed plan to reconfigure the runway layout at Lambert St. Louis International Airport ("Lambert Airport"). The City of St. Louis’ proposed plan for Lambert, with a price tag of more than $2billion dollars is called Alternative W-1W ("W-1W").

The FAA’s decision to approve the W-1W plan constitutes a final administrative agency action and should be reviewed by this Court of Appeals pursuant to 49 U.S.C. 46110 and 5 U.S.C.704.

The decision of the FAA approving the W-1W plan was arbitrary and capricious and based upon a final Environmental Impact Statement ("EIS") containing crucial assumptions and facts that are false.

If the approved W-1W plan goes forward, the result will be a wasteful expenditure of more than two-billion-dollars for an inefficient, unsafe and more dangerous airport. Thomas L. Brown, L.W. Bensel, Robert A. Pastore, and Jacob P. Rast (collectively the "Pilots") are or have been senior airline pilots and captains for Trans World Airlines. Each of these Pilots relies upon the integrity and safety of Lambert Airport in his flying duties. These Pilots have requested leave to file this Amicus Curiae Brief and have conditionally filed this Brief pursuant to Federal Rule of Appellate Procedure 29.

The Pilots as Amicus Curiae request the opportunity to provide oral argument and 20 minutes in which to do so.

 

TABLE OF CONTENTS

STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

LEGAL ARGUMENT

CONCLUSION

 

 

STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE

 Thomas L. Brown, L.W. Bensel, Robert A. Pastore and Jacob P. Rast are individual TWA Captains submitting this Amicus Curiae Brief under the authority of Rule 29 of the Federal Rules of Appellate Procedure. Their purpose in presenting this brief is to bring to this Court’s attention significant safety issues involved in the proposed W-1W runway re-configuration at Lambert – St. Louis International Airport ("Lambert Airport"). They believe they can provide the Court with unique insight into the effects of the proposed W-1W project and its safety implications.

The Pilots can provide a perspective which the Court cannot expect from the parties arguing this petition as a matter of right. As set forth in their affidavits submitted to this Court, each of the Pilots has flown hundreds of flights into and out of Lambert Airport and each is active in matters relating to the airport and airport safety. Each is familiar with relevant safety standards and regulations and with the implementation of those standards and regulations at airports around the world. Each is also familiar with the planned W-1W re-configuration and is concerned that the proposed plan will result in significantly reduced safety for pilots and their passengers. Unlike the planners of W-1W, the Pilots themselves must actually utilize the runway design in question, entrusting their own lives and those of the passengers and crew for whom they have responsibility, to the wisdom and thoroughness of the designers of that plan. For these reasons, this matter is of significant concern to them and to the public in general.

 

TABLE OF AUTHORITIES

CASES

Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971)

Commonwealth of Massachusetts v. Andrus, 594 F.2d 872 (1st Cir. 1979)

Conservation Law Foundation v. Watt, 560 F.Supp. 561 (D.Mass. 1983)

Dubois v. U.S. Department of Agriculture, 102 F.3d 1273(1st Cir. 1996)

Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992)

Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989)

Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (9th Cir. 1987)

Newton County Wildlife Ass'n v. Rogers, 141 F.3d 803 (8th Cir. 1998)

NRDC v. Callaway, 524 F.2d 79 (2nd Cir. 1975)

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)

Olmsted Citizens for a Better Community vs. United States, 793 F.2d 201 (8th Cir. 1986)

Silva v. Lynn, 482 F.2d 1282 (1st Cir. 973)


 Other Authorities

5 U.S.C. 704

5 U.S.C. 706

42 U.S.C. 4332

49 U.S.C. 40101

49 U.S.C. 46110

40 C.F.R. 1502.14

 

PRELIMINARY STATEMENT

On September 30, 1998, the FAA issued a Record of Decision approving an Airport Layout Plan and funding for the City of St. Louis’ proposed plan to reconfigure the runways at Lambert St. Louis International Airport. The proposed runway reconfiguration would add a new 9000 foot runway beginning at the extreme western edge of Lambert Airport and continuing west for more than a mile outside the present airport boundaries.

The FAA’s Record of Decision constitutes a final order of the FAA, subject to judicial review by this Court of Appeals, pursuant to 49 U.S.C. 46110. The Federal Administrative Procedure Act also authorizes judicial review of final administrative agency action when there is no other remedy provided. The National Environmental Policy Act and the Airport and Airway Improvement Act do not expressly provide a private remedy for judicial review of administrative agency action. Consequently, the FAA’s decisions under the National Environmental Policy Act and the Airport and Airway Improvement Act are subject to independent judicial review according to 704 of the Federal Administrative Procedure Act.

The City of Bridgeton filed a timely Petition for Review on October 5, 1998.

Thomas L. Brown, L.W. Bensel, Robert A. Pastore, and Jacob P. Rast (collectively the "Pilots"), who have conditionally filed this Amicus Curiae Brief, are or were senior pilots and captains for Trans World Airlines, the primary carrier using Lambert Airport.

 

STATEMENT OF THE ISSUES

  1. WHETHER THE FAA ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT APPROVED THE W-1W PLAN, BASED UPON THE MISTAKEN BELIEF THAT THE W-1W PLAN WOULD PROVIDE DUAL SIMULTANEOUS INDEPENDENT ARRIVALS WHEN THIS BELIEF IS UNTRUE AND THE FAA STATED THAT THIS FACT WAS CRUCIAL TO ITS DECISION.

  2. WHETHER THE FAA ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT APPROVED THE W-1W PLAN WHEN THE W-1W PLAN VIOLATES MANY FAA SAFETY REGULATIONS AND STANDARDS.

  3. WHETHER THE FAA ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT PREPARED ITS ENVIRONMENTAL IMPACT STATEMENT AND SELECTED THE W-1W ALTERNATIVE AND SUMMARILY REJECTED OTHER ALTERNATIVES BASED UPON THE MATERIAL MISTAKE OF FACT THAT THE W-1W PLAN WOULD PROVIDE DUAL SIMULTANEOUS INDEPENDENT ARRIVALS.

  4. WHETHER THE FAA ACTED ARBITRARILY AND CAPRICIOUSLY WHEN THE FAA FAILED, IN ITS ENVIRONMENTAL IMPACT STATEMENT, TO DISCUSS OR ANALYZE THE RELATIVE SAFETY OF EACH ALTERNATIVE OR THE SPECIFIC UNSAFE ATTRIBUTES OF THE W-1W PLAN.

 

STATEMENT OF THE CASE

This case is a direct review to the United States Court of Appeals for the Eighth Circuit from the administrative decision of the FAA approving the proposed W-1W runway reconfiguration of Lambert Airport.

This Brief has been prepared by and for four present and former senior pilots and captains for Trans World Airlines, the primary carrier operating out of Lambert Airport. These pilots, as part of their job, fly into and out of Lambert Airport and will continue to do so in the future. This Amicus Brief is the product of their concern that the W-1W plan was improperly approved by the FAA and is unsafe and inefficient.

The City of St. Louis requested the FAA to approve a plan for the reconfiguration of runways at Lambert Airport. The Plan proposed by the City was named W-1W and would add a new 9,000-foot runway beginning on the southwest edge of Lambert and extending west from Lambert away from the existing airport.

The FAA prepared an Environmental Impact Statement pursuant to the National Environmental Policy Act. The final version of the FAA Environmental Impact Statement was certified on December 19, 1997 (Bridgeton Appendix Page 241). On September 30, 1998, the FAA issued its Record of Decision approving the W-1W plan for reconfiguring the runways at Lambert. (Bridgeton Appendix Page 1511.)

The National Air Traffic Controllers Association and the Air Line Pilots Association opposed the W-1W Plan because it would reduce safety, would increase flight dangers at Lambert Airport, and was inefficient. (Br. App. Pages 1858-1872, 1853, 1854, 1812-1815.)

The FAA considered eight runway configurations. These runway configuration alternatives were labeled N-1, NE-1, NE-1a, W-1W, W-1E, W-2, S-1, and C-1. (Br. App. Pages 374-383.)

The FAA in its EIS did not rigorously explore and objectively evaluate all eight of these runway configuration alternatives. In the EIS the FAA only analyzed three alternatives: the S-1 plan, the W-1W plan, and the do-nothing plan. (Br. App. Pages 392-396.)

The FAA used a tiering or filtering system to select the few alternatives for which a detailed Environmental Impact Statement would be prepared. Only the alternatives that passed all three tests would have an environmental analysis performed in the EIS.

Tier 1 of the FAA EIS required each alternative to have the following characteristics:

A. Increase runway capacity to levels that would safely and efficiently accommodate the forecasted operations for the year 2015;

B. Allow for dual independent simultaneous Instrument Flight Rules ("IFR") arrival operations;

C. Substantially reduce projected aircraft delay times;

D. Benefit the national aviation system by increasing capacity; and,

E. Maintain an airline hub at Lambert and meet other St. Louis regional goals. (Br. App. Pages 349-350.)

Tier 2 of the FAA EIS required each alternative to have the following characteristics:

A. Buildable without overwhelming construction problems or interference with airline hubbing operations at Lambert; and

B. The savings in aircraft operating costs (compared to the No-Action Alternative) must exceed the construction costs of the plan.

For Tier 3, the FAA evaluated the surviving alternatives to select the best representative of each "family" of alternatives based upon relative costs, environmental impact, and operations performance. (Br. App. Page 380.)

The FAA concluded that NE-1a would not allow independent simultaneous IFR operations so the FAA concluded that NE-1a failed the Tier 1 test and was not considered further. No full environmental impact statement analysis was conducted for NE-1a. (Br. App. Page 375.)

The FAA concluded that NE-1 did not meet the Tier 2 requirements because construction would create major interference with Lambert hubbing operations. (Br. App. Page 375.) No full environmental impact statement analysis was conducted for NE-1.

The FAA concluded that N-1 did not meet the Tier 2 requirements because construction would create major interference with Lambert hubbing operations and because the cost of N-1 exceeded its benefits. (Br. App. Page 375.) Again, no full environmental impact statement analysis was conducted for N-1.

The FAA concluded that C-1 did not meet the Tier 2 requirements because construction would create major interference with Lambert hubbing operations at Lambert Airport. (Br. App. Page 383.) No full environmental impact statement analysis was conducted for C-1.

The FAA concluded that W-1W, W-1E, and W-2 met all Tier 1 and Tier 2 requirements but selected W-1W, in Tier 3, as the "best in family" because of higher construction costs and higher environmental impacts of W-1E and W-2. (Br. App. Page 377, 381.) No full environmental impact statement analysis was conducted for W-1E and W-2. A full environmental impact statement analysis was conducted for W-1W.

However, the FAA was wrong. W-1W fails the Tier 1 test because W-1W will not provide simultaneous independent IFR arrival capability in the predominant west flow whenever departures must be made concurrently with arrivals.

The FAA concluded that S-1 met all Tier 1, Tier 2,and Tier 3 standards. (Br. App. Page 386.) A full environmental impact statement analysis was conducted for S-1.

The cost of the W-1W plan is expected to exceed 2 billion dollars. The FAA approved the W-1W plan without conducting a real-time simulation, which would cost approximately $60,000.00, to determine the problems associated with the operation of W-1W as described in the FGIS. A real-time simulation using live controllers to direct airport operations using simulated arrivals and departures, is the best method to determine the actual operational characteristics of a proposed runway and airport configuration.

Continued in Part Two