|AIRPORT NOISE LAW|
NOVEMBER 17, 2017
The City of Phoenix and others have won their lawsuit against the FAA over the agency's high-handed and secretive manner in which new arrival and departure routes were drawn for the city's SkyHarbor Airport. The U.S. Court of Appeals for the District of Columbia Circuit announced the decision of a panel of three justices in the case on August 29 (see City of Phoenix v. FAA). Petitions for review of the FAA's decision were filed with the court in 2015.
The FAA is engaged in rerouting air traffic at airports throughout the U.S. as part of its "NextGen" program of improving air traffic management. The FAA’s NextGen program uses a satellite-based global positioning system (GPS) and sophisticated computers to guide aircraft until they are very close to their destination airports. The system is intended to track aircraft more precisely than current radar-based technology, freeing up congested corridors and allowing pilots to make shorter flights to their destinations. (See About NextGen at the FAA website.)
Plaintiffs challenged the FAA's manner of redrawing arrival and departure routes at SkyHarbor Airport, alleging that the FAA did not act transparently, as required by law. In particular, plaintiffs showed that the FAA did not consult with Phoenix officials or the general public. The court found that in this respect the FAA acted contrary to the law.
In addition, plaintiffs alleged that the FAA abused a loophole in the National Environmental Policy Act (NEPA) that allows an agency to forego hard analysis of environmental impacts under certain circumstances. Under NEPA federal agencies must assess and disclose the environmental impacts of “major actions" prior to taking those actions. However, an agency may categorically exclude certain actions (known as "categorical exclusions") from environmental review based on criteria established by the Congress, as long as extraordinary circumstances do not exist. Under the FAA’s own regulations, extraordinary circumstances exist when an action’s effects “are likely to be highly controversial on environmental grounds” (FAA Order No. 1050.1E, Environmental Impacts: Policies and Procedures, ¶ 304i, 2004).
When designing new routes for Sky Harbor Airport, the FAA determined that the new routes were “not likely to be highly controversial on environmental grounds,” and thus determined that no extraordinary circumstances existed. The court found that determination arbitrary and capricious. It thus vacated the FAA's order implementing the new flight routes and procedures at Sky Harbor, and remanded the matter to the FAA for further proceedings consistent with its opinion.
The court's rulings in this case emphasize important principles for the FAA as it moves forward with implementation of NextGen procedures throughout the country. First, engagement with local communities must be taken seriously. The court's majority opinion contains some sharp reprimands of the FAA for "keeping the public in the dark," witholding critical details of the new arrival and departure routes from city officials until the last minute, and dealing only with a few low-level employees of the city who did not have authority to make commitments for the city.
Second, the court made it clear that, in light of the FAA's handling of the development of new routes for SkyHarbor Airport, the agency's application of "categorical exclusions" will come under greater scrutiny in future challenges to NextGen flight routes.
Many commentators on this case have said that the court's opinion provides detailed legal guidance to other communities who are struggling with the FAA over the noise impacts of NextGen changes in arrival and departure routes at their local airport. (See for example Phoenix Airport Noise Case May Provide Roadmap for Challenging the FAA at Sea-Tac Airport, and Appeals Court Nixes FAA Flight Path Changes in Early Court Test.)
Court: U.S. Ct. App. for District of Columbia Circuit, case 15-1158 (consolidated with 15-1247), decided August 29, 2017
Plaintiff's attorneys: John E. Putnam and Peter J. Kirsch (both of Kaplan Kirsch & Rockwell) for City of Phoenix; Matthew G. Adams and Peter L. Gray (both of Dentons) for Story Preservation Association, et al.
Phoenix Neighborhood Groups Challenge FAA's Finding of "No Noise Impacts" from NextGen Flight Paths (Aug. 3, 2015).
"Overview of U.S. Legal Issues in Noise and NextGen Procedures," John E. Putnam, presentation at Legal Committee Workshop, Airports Council International - North America, September 17, 2017 (see page for John Putnam at KaplanKirsch.com.)