En Banc Review Sought for Panel's Refusal to Review FAA's Northeast Airspace Redesign Plan

AUGUST 2, 2009

Five New Jersey petitioners are seeking en banc review of a June 10 decision to deny judicial review of the FAA's approval of its Northeast Airspace Redesign Plan. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit summarily dismissed the petition for review sought by a variety of communities affected by the plan.

The New Jersey petitioners consist of the New Jersey Coalition Against Aircraft Noise, the City of Elizabeth, the Union County Freeholders, Bergen County Freeholders, and a group of towns in the Pascack Valley in northern New Jersey.

The petition, filed July 27, cites failure of the FAA to project growth beyond 2011 as required by FAA rules; failure to commit to midnight ocean routing, despite using this as the basis for final noise results; inadequate treatment of environmental justice issues; failure to conduct background noise monitoring in Elizabeth, despite acknowledging the need for assessing cumulative noise impacts; and failing to follow through with compliance monitoring for noise mitigations, despite committing to do this in the Environmental Impact Study (EIS).

Two other petitions for en banc review were filed a week ahead of the New Jersey filing. One was filed by the State of Connecticut, Rockland County, New York, and attorneys representing the Rockefeller State Park Preserve in New York. It focuses on FAA failure to properly consider state parks and historic sites. The petition cites failure to consider previous Supreme Court actions, FAA regulations, and misinterpretation of statutory public participation requirements. The other petition was filed by various Pennsylvania entities, including Delaware County. It focuses on air quality issues, citing conflict with prior Supreme Court rulings, failure to follow Congressional intent, and misinterpretation of the record.

If the majority of the justices of the District of Columbia Circuit agree that dismissal of the original petition for judicial review of the FAA's decision was improper, then the case will be reheard by the entire court. The time frame for action by the court is not known at this time.