1. THIS COURT OF APPEALS SHOULD REVERSE AND REMAND THE ADMINISTRATIVE DECISION TO APPROVE THE W-1W PLAN BECAUSE THE DECISION IS ARBITRARY AND CAPRICIOUS UNDER THE FEDERAL ADMINISTRATIVE PROCEDURE ACT FOR THE FOLLOWING INDEPENDENT REASONS:
A. FOR OPERATIONAL REASONS, THE W-1W PLAN WILL NOT PROVIDE DUAL SIMULTANEOUS INDEPENDENT IFR ARRIVAL CAPABILITY;
B. THE PROPOSED NEW W-1W RUNWAY AND PLAN VIOLATE MANY ESTABLISHED FAA SAFETY REGULATIONS AND STANDARDS; AND,
C. NO REAL-TIME OPERATIONS SIMULATION WAS CONDUCTED TO TEST AND VERIFY THE ACTUAL PERFORMANCE OF W-1W.
For air travel, the safety of the traveling public is the most important concern of this nation and of the Federal Aviation Administration. 49 U.S.C. 40101(a)(1).
(1) assigning and maintaining safety as the highest priority in air commerce.
(2) before authorizing new air transportation services, evaluating the safety implecations of those services.
(3) preventing deterioration in established safety procedures, recognizing the clear intent, encouragement, and dedication of Congress to further the highest degree of safety in air transportation and air commerce, and to maintain the safety vigilance that has evolved in air transportation and air commerce and has come to be expected by the traveling and shipping public.
49 U.S.C. 40101(a)(1).
The Federal Administrative Procedure Act requires this Court to set aside administrative agency decisions which are arbitrary or capricious. 5 U.S.C. 706(2)(A); Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998). To determine if an administrative agency decision is arbitrary or capricious federal courts must undertake a "searching and careful" inquiry. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). An administrative agency decision should only be upheld if the decision was based on a consideration of relevant factors and was made on a rational basis. Olmsted Citizens for a Better Community vs. United States, 793 F.2d 201, 203 (8th Cir. 1986).
An administrative decision which is based upon a wrong or incorrect fact is not reasonable and is arbitrary and capricious. See Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 818 (9th Cir. 1987). An administrative decision based upon a wrong or incorrect fact should be reversed by the reviewing court. See Conservation Law Foundation v. Watt, 560 F.Supp. 561, 570 (D.Mass. 1983).
An administrative decision which results in an airport which violates many important safety regulations and standards of the FAA is arbitrary and capricious and dangerous.
In this Court’s judicial review of the administrative decision of the FAA, this Court should focus on the safety of air travel since this is the primary purpose and goal of the FAA. See 49 U.S.C. 40101(a)(1,2,3).
In the FAA’s environmental impact statement the FAA explained its basis for considering some proposed airport plans and for rejecting other proposed runway plans for Lambert.
A. FOR OPERATIONAL REASONS, THE W-1W PLAN WILL NOT PROVIDE DUAL SIMULTANEOUS INDEPENDENT IFR ARRIVAL CAPABILITY.
When the FAA selected the W-1W plan the FAA assumed and believed that the W-1W plan provided for dual simultaneous independent landings during IFR (bad weather) conditions. (Br. App. Page 395.)
However, the truth is that the scheme proposed by the FAA to have dual simultaneous independent landings from the east does not work and does not result in dual independent simultaneous landings.
For Lambert Airport, most of the time the prevailing winds are from the west and planes land from the east into the wind. The FAA proposes that during bad weather (Instrument Flight Rules (IFR) conditions) planes would land on the new W-1W runway (the southernmost runway) and on the northernmost runway with takeoffs occurring concurrently from the center runway. Because FAA standard safety procedures, for runway geometry like W-1W, require arriving planes to be more than two miles from a departing plane as it begins its takeoff roll, departures on the center departure runway are dependent on aircraft approaching both arrival runways.
In the normal mix of arrival and departures, the arrivals must be "paired" in order to provide a slot in which no arriving aircraft is within two miles from the end of the departure runway so that a departure can be initiated. The "pairing" of aircraft, by definition, is a dependent operation, since the position of an aircraft approaching one runway is dependent on the position of another aircraft approaching the other arrival runway: a paired set of aircraft. (Br. App. Page 2153.)
For this reason, W-1W does not provide for dual independent simultaneous arrivals, and the W-1W plan fails Tier 1 of the FAA standards set forth in the FAA EIS.
The FAA Flight Technologies and Procedures Division in Washington, D.C. has confirmed in writing that the arriving flights under the W-1W plan are dependent and not the independent as stated in the EIS. Consequently, since the FAA was plainly wrong, in the EIS, in considering bad weather (IFR) arrivals as independent, and since this factor was so important that it formed the primary test for considering which plans would be analyzed by the FAA in its EIS, this mistake renders the decision by the FAA approving W-1W as arbitrary and capricious.
It is arbitrary and capricious for the FAA to approve a plan which does not meet the Tier 1 test the FAA states in it EIS.
It is arbitrary and capricious for the FAA to reject other plans because the other plans do not provide independent IFR arrivals when the plan selected (W-1W) also does not meet the Tier 1 criteria.
Therefore because it is arbitrary and capricious for the FAA to select the W-1W plan based upon a major mistake of fact, and because it is arbitrary and capricious for the FAA to summarily reject other plans for consideration because they do not provide for independent IFR arrivals, this Court should reverse the FAA’s decision and remand this case for further proceedings by the FAA.
B. THE PROPOSED NEW W-1W RUNWAY AND PLAN VIOLATE MANY ESTABLISHED FAA SAFETY REGULATIONS AND STANDARDS.
Safety must be the paramount goal of the FAA in this case and in any decision the FAA renders. See 49 U.S.C. 40101(a)(1, 2, 3). Safety must be the central criteria used to determine whether the FAA’s decision in this case is arbitrary and capricious.
The W-1W plan approved by the FAA is not safe and violates many standards of safety in the airline industry.
First, the FAA prohibits the use of runways by jet aircraft when a runway is located within 10,000 feet of a landfill. (Br. App. Page 1545.) This prohibition increases aircraft safety by reducing the possibility of bird strikes, common over landfills, and birds being ingested into jet engines and causing the engines to fail. The new runway in the W-1W plan is within 10,000 feet of the Laidlaw Landfill.
This runway cannot be used according to FAA regulations and standards yet the FAA approved its construction. The FAA decision to violate its own safety regulation, standards, and prohibitions is arbitrary and capricious.
The danger provided by the Laidlaw Landfill is exacerbated by the proposed W-1W departure procedures intended to reduce overflights over the City of St. Charles. (Br. App. Page 518.) The FAA proposes that aircraft departing to the west on the new W-1W runway would execute an immediate left (south) turn to avoid St. Charles but such action would route aircraft almost directly over the Laidlaw Landfill at low altitude, low airspeed, and high bank angle.
Second, the Runway Protection Zone ("RPZ") is a requirement of FAA regulations that an area around the runway be clear of concentrated or congested groups of people. (FAA Advisory Circular 150-5300-13). The RPZ on the East end of the new W-1W runway is not free of congestion and includes the most heavily traveled interstate highway in Missouri: I-70. During several hours per day, I-70 is severely congested. During night operations, automobile and highway lights, particularly in poor weather, can be a hazardous distraction to pilots.
Third, the use of "power in" and "power out" parallel gates in front of the C Concourse create new safety dangers. The airliners would be parked parallel to the terminal, one behind the other, rather than parked with the aircraft pointing toward the terminal. The parked aircraft would use their own engines to maneuver from the gate rather than being towed from the gate by ground equipment as is the case today. Jet engine blast and jet exhaust fumes pose a risk to ground personnel, passengers in jetways, and equipment parked or moving behind maneuvering the airliner.
Fourth, C Concourse, in the W-1W plan, also features parallel taxi ways which have only 225 feet centerline to centerline spacing.
The FAA’s Airport Design Advisory Circular 150-5300-13 sets a minimum standard of 267 feet centerline to centerline for such taxi ways in order to accommodate the largest airliners which will be using these two taxi ways.
Fifth, placing the new W-1W runway to the extreme west side of Lambert and running the runway still farther to the west creates an active airport 4 miles long from west to East. In bad weather, air traffic controllers will not be able to see airliners which have landed on the new W-1W runway. This situation increases the danger of ground collisions and runway incursions since the controllerdirecting traffic may not be able to visually see the traffic.
These unsafe conditions which are characteristic of W-1W were approved by the FAA without discussion in the EIS. The FAA’s approval was arbitrary and capricious in light of the statutory mandate that safety is the paramount concern. Therefore, because of the numerous unsafe and dangerous aspects of the W-1W plan, this Court should reverse the FAA’s decision and remand this case for further proceedings by the FAA.
C. NO REAL-TIME OPERATIONS SIMULATION WAS CONDUCTED TO TEST AND VERIFY THE ACTUAL PERFORMANCE OF
W-1W.
The City of St. Louis predicts that the W-1W plan will cost more than two-and-one-half-billion dollars to construct.
A real-time study was not done for the W-1W plan. A real-time study is a simulation where live air traffic controllers direct and control simulated aircraft traffic. The controllers work at actual radar screens directing aircraft targets that are "flown" or maneuvered by persons acting as pilots and which respond to controller commands like real aircraft. The FAA’s Office of System Capacity maintains that real-time studies provide the best method of determining capacity when human factors are an issue.
According to FAA estimates a real-time study for W-1W would cost approximately $60,000.00. The FAA stated that it did not conduct a real-time study for W-1W because previous studies of staggered runways for Denver’s new airport made a real-time study for W-1W unnecessary. However, Denver’s new airport is grossly different from W-1W. Denver’s study evaluated three parallel arrival runways which were widely spaced (12000 feet), all independent. The Denver Study considered only arrivals on all three runways without any consideration of departures.
W-1W,on the other hand, has two closely spaced (4100 feet) arrival runways and between them a closely spaced departure runway.
In the Denver tests only the final approaches to the runways were evaluated. To be of any significant operational value, the W-1W testing would require analysis of the entire approach airspace not just the final approaches as was done for Denver.
With a project predicted to cost more than two-and-one-half billion dollars, the request of the Air Line Pilots Association and the National Air Traffic Controllers Association for a $60,000.00 real-time study should have been granted. It is unreasonable, arbitrary, and capricious for the FAA to approve a 2.6 billion dollar project without employing what the FAA itself states is the best method of determining appropriate operational procedures and capacity.
Therefore, because the FAA acted arbitrarily and capriciously in approving a multi-billion dollar airport reconfiguration without conducting an inexpensive real-time study, this Court should reverse the FAA’s decision and remand this case for further proceedings by the FAA.
2. THIS COURT OF APPEALS SHOULD REVERSE AND REMAND THE ADMINISTRATIVE DECISION TO APPROVE THE W-1W PLAN BECAUSE THE DECISION IS ARBITRARY AND CAPRICIOUS UNDER THE FEDERAL ADMINISTRATIVE PROCEDURE ACT AND THE NATIONAL ENVIRONMENTAL POLICY ACT FOR THE FOLLOWING INDEPENDENT REASONS:
A. THE FAA’S EIS IS CONCERNED WITH COST AND CAPACITY ISSUES AND NOT WITH SAFETY WHICH IS THE PRIMARY STATUTORY GOAL AND POLICY OF THE FAA.
B. FOR OPERATIONAL REASONS, THE W-1W PLAN WILL NOT PROVIDE DUAL SIMULTANEOUS INDEPENDENT IFR ARRIVAL CAPABILITY, AND, THE FAA ARBITRARILY, CAPRICIOUSLY, AND INCORRECTLY CONSIDERED THE W-1W PLAN AND REJECTED WITHOUT ADEQUATE STUDY OF OTHER ALTERNATIVE PLANS.
The safety of the traveling public is the most important concern of this nation and of the Federal Aviation Administration. 49 U.S.C. 40101(a)(1, 2, 3).
The National Environmental Policy Act ("NEPA") requires federal agencies to prepare an environmental impact statement for all major actions that will significantly affect the quality of the human environment. See 42 U.S.C. 4332 (2)(C); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). It is undisputed that an environmental impact statement is required for the FAA’s administrative decision in this case.
The environmental impact statement must discuss and analyze the costs and benefits (environmental, technical, and economic) of each alternative. Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109, 1113 and 1123 (D.C. Cir. 1971). The environmental impact statement must make "full disclosure" of all costs and benefits. Calvert Cliff’s Coordinating Committee, 449 F.2d at 1113; Conservation Law Foundation v. Watt, 560 F.Supp. 561, 570 (D.Mass. 1983).
All significant impacts of the proposed action must be discussed in an environmental impact state. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 816 (9th Cir. 1987). An environmental impact statement must discuss in detail the facts and analysis behind its conclusion. 42 U.S.C. 4332(2); Commonwealth of Massachusetts v. Andrus, 594 F.2d 872, 883-884 (1st Cir. 1979). The environmental impact statement cannot contain conclusory statements without explanation. Commonwealth of Massachusetts v. Andrus, 594 F.2d at 883-884.
It cannot be composed of statements too vague, too general and too conclusory.
Finally, and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.
A conclusory statement unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind not only fails to crystallize issues, but affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives.
Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response.
Commonwealth of Massachusetts v. Andrus, 594 F.2d at 883-884 (citations and quotation marks omitted); accord Silva v. Lynn, 482 F.2d 1282, 1284-1285 (1st Cir. 1973); Conservation Law Foundation v. Watt, 560 F.Supp. at 569.
An environmental impact statement which contains errors of fact is inadequate and invalid. Conservation Law Foundation, 560 F.Supp. at 570. An environmental impact statement which does not consider and analyze in detail every viable alternative is inadequate and invalid. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 210, 815 (9th Cir. 1987).
Every environmental impact statement must rigorously explore and evaluate all reasonable alternatives. 40 C.F.R. 1502.14(a); Dubois v. U.S. Department of Agriculture, 102 F.3d 1273, 1286 (1st Cir. 1996), cert denied, 117 S.Ct. (1997); NRDC v. Callaway, 524 F.2d 79, 92 (2nd Cir. 1975).
[Every EIS must] [r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated. 40 C.F.R. 1502.14; accord Dubois v. U.S. Department of Agriculture, 102 F.3d 1273, 1286 (1st Cir. 1996); NRDC v. Callaway, 524 F.2d 79, 92 (2nd Cir. 1975).
The failure to consider the environmental impacts of a reasonable alternative renders an environmental impact statement inadequate and invalid. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).
A. THE FAA’S EIS IS CONCERNED WITH COST AND CAPACITY ISSUES AND NOT WITH SAFETY WHICH IS THE PRIMARY STATUTORY GOAL AND POLICY OF THE FAA.
According to Congress the primary concern of the Federal Aviation Administration in its duties, regulations, and administrative decisions is the safety of the traveling public. 49 U.S.C. 40101(a)(1, 2, 3). Yet, for the FAA in its EIS, the predominant concern and standards used to distinguish between alternatives is cost, capacity, and convenience.
Safety is the most important FAA concern and essentially ignored in the FAA EIS. No study or analysis of safety occurs in the EIS. The degree of safety in design can be analyzed in reference to FAA design and operational criteria.
The Alternatives were never compared for safety. The safety problems with the W-1W plan raised in this Brief and previously raised by the experts (Air Line Pilots Association and National Air Traffic Controllers Association) to the FAA were ignored and not discussed in the FAA EIS. (Br. App. Page 1812-1815, 1853-1854, 1858-1872.)
Federal law requires a discussion of detriments of a project, especially when the detriments are raised by experts and concern the central purpose of the agency. The FAA violated Federal law and attempted to ignore safety by providing no good faith, reasoned analysis in response to the dangerous characteristics of W-1W which were previously pointed out by the Air Line Pilots Association and the National Air Traffic Controllers Association. Because there is no discussion or analysis of the dangerous or unsafe attributes of W-1W or of any of the alternatives, the FAA EIS is inadequate and invalid. See Commonwealth of Massachusetts v. Andrus, 594 F.2d 872, 883-884 (1st Cir. 1979); Silva v. Lynn, 482 F.2d 1282, 1284-1285 (1st Cir. 1973); Conservation Law Foundation v. Watt, 560 F.Supp. 561, 569 (D.Mass. 1983).
Consequently, the FAA, in its decision to approve W-1W and in its EIS, employs illegitimate factors and acts arbitrarily, capriciously, and in violation of law in not obeying Congress’ command that safety is the paramount goal and policy of the FAA. Cost, capacity, and convenience may be important but the most important concern of the FAA is safety and safety was not a primary factor in the FAA’s Record of Decision or in the FAA’s EIS.
Therefore, because the FAA acted arbitrarily, capriciously, and unlawfully in approving W-1W and in failing to consider alternatives in the EIS, and in virtually ignoring safety, this Court should reverse the FAA’s decision and remand this case for further proceedings by the FAA.
B. FOR OPERATIONAL REASONS, THE W-1W PLAN WILL NOT PROVIDE DUAL SIMULTANEOUS INDEPENDENT IFR ARRIVAL CAPABILITY, AND, THE FAA ARBITRARILY,
CAPRICIOUSLY, AND INCORRECTLY CONSIDERED THE W-1W PLAN AND REJECTED WITHOUT
ADEQUATE STUDY OF OTHER ALTERNATIVE PLANS.
Now in the FAA’s EIS the FAA discarded and did not study or consider the NE-1a plan because the NE-1a plan, according to the FAA, did not provide for dual independent simultaneous IFR (bad weather) landings. (FAA EIS at 3-32).
The FAA incorrectly concluded that W-1W did provide and found that the W-1W plan satisfied all three tiers of analysis and surpassed the S-1 plan. However, the FAA made a serious error of fact in that the W-1W plan does not provide dual independent simultaneous IFR (bad weather) landings. Consequently, because the FAA EIS contains a serious error of fact, which if corrected removes the W-1W plan from contention and means the S-1 would be the correct plan, the EIS it invalid and incorrect. The wrong plan was studied and approved and other plans which according to the FAA met Tiers 1 and 2 needed in depth environmental impact statement analyses.
Because, in fact, the FAA made a serious error of fact and selected a plan which, for operational reasons brought about by its runway geometry, cannot provide dual independent simultaneous IFR (bad weather) landings, the NE-1a plan needs to be reconsidered since it was rejected and not studied because it did not provide independent simultaneous IFR (bad weather) landings.
The FAA cannot rely upon its EIS which has a serious factual error, which incorrectly discarded alternatives without the in-depth analysis required by the National Environmental Policy Act, and which selected an alternative which does not satisfy the first tier of standards set forth by the FAA.
Therefore, because the FAA acted arbitrarily, capriciously, and unlawfully in approving W-1W, and in rejecting without in depth study alternatives in the EIS, and by making a serious factual error which distorts the alternatives studied, this Court should reverse the FAA’s decision and remand this case for further proceedings by the FAA.
This Court should reverse the administrative decision of the Federal Aviation Administration to approve the W-1W reconfiguration of runways at Lambert-St. Louis International Airport for the following independent reason:
Respectfully
Submitted,
DESCHER & SCHULTZ
By:
Robert Schultz, #35329
Vicki L. Little, #36012
7700 Bonhomme Ave., Suite 325
St. Louis, Missouri 63105-1924
Phone: (314) 862-4777
Fax: (314) 862-2880