Appeals Court nixes FAA flight-path changes in early court test

A federal appeals court in Washington, D.C. on Tuesday overturned the Federal Aviation Administration’s controversial rerouting of flight paths in Phoenix, Arizona, calling the agency’s approval of its NextGen flight-procedures program at Sky Harbor International Airport “arbitrary and capricious.”

The 2-1 ruling from the U.S. Court of Appeals for the District of Columbia Circuit could potentially set the stage for other cases against NextGen, in instances where changing flight paths was deemed by the FAA as not contentious or of minimal impact without any real public review.

Congress mandated the FAA to overhaul the country’s aviation system, but the resulting program has sparked outrage nationwide because of increased aircraft noise and new flight paths over communities that previously did not have many planes overhead. The Phoenix case has been closely watched by anti-airplane noise groups and municipalities.

Santa Clara County Supervisor Joe Simitian, who chaired the former Select Committee on South Bay Arrivals, which wrote a report to the FAA of recommended changes on Bay Area flights, said the court’s decision was very pointed and somewhat surprising.

“I think it can only be helpful to Palo Alto and the surrounding area,” he said by phone. “For a court to determine that a government decision was arbitrary and capricious is very unusual. That is a very high threshold, and they made it here and on the merits of an argument that the level of noise increase was not controversial (as the FAA had claimed).

“It gives the FAA reason to take a step back and say, ‘What have we done and where do we go from here?'” Simitian said.

He did not think the decision would necessarily be a legal precedent that anyone can draw on. He said the court’s decision was largely fact-specific and highly procedural, but once it got past the procedural discussions, the tone was decisive and pointed, he noted, quoting the judges’ narrative of events:

“The public’s reaction was swift and severe: the planes supplied the sound, the public provided the fury.”

Jennifer Landesmann, a member of local watchdog group Sky Posse Palo Alto, said the decision could yield important leverage for the city. The FAA is assessing 54 potential modifications recommended last November by the 12-member Select Committee on South Bay Arrivals. She noted that the court stressed the need for careful assessment of proposed changes and alternatives.

In the Bay Area, the FAA’s initial “Finding of No Significant Impact” for the Northern California Optimization of Airspace & Procedures in the Metroplex, which sets the procedures and routes into and out of San Francisco International Airport, was done with an assessment that did not specify where the routes would fly over, how many jets or at what altitudes, Landesmann noted.

In Phoenix, the FAA made a blanket decision that the flight changes would not have a significant impact in Phoenix, which the court said was ludicrous. The city also presented alternatives, but the court found the FAA did not consider them.

U.S. Appeals Judges Judith W. Rogers and Thomas B. Griffith found the FAA violated the National Historic Preservation Act. It did not account for the effect on historic structures eligible for the National Register of Historic Places, the judges wrote. Under that law, agencies must consult with representatives of local governments and other “stakeholders” to determine that historic structures would not be adversely affected by the agency’s actions. The agency is obligated to present relevant documentation — even if it has determined there would not be an adverse impact, the court noted.

The FAA consulted with only low-level employees in the city’s aviation department who were not experts and were never designated as city representatives. The FAA also did not provide documentation to the city about its finding of no adverse impacts, the court said.

“By keeping the public in the dark, the agency made it impossible for the public to submit views on the project’s potential effects — views that the FAA is required to consider,” the court noted.

The FAA also failed to disclose the environmental impacts of a “major” action prior to implementing the NextGen program, as required under the National Environmental Policy Act. It also violated its own rules under the FAA Modernization and Reform Act of 2012 by categorically excluding the procedures from environmental review, even though the actions are likely to be highly controversial on environmental grounds. Instead, the court wrote, the FAA found the NextGen procedures were not likely to be highly controversial for the environment and therefore did not merit an environmental review.

The court found the determination arbitrary and capricious. The FAA had admitted its failure to notify local citizens and community leaders of the proposed new routes before they went into effect. The FAA’s proposal would increase by 300 percent the number of aircraft flying over 25 historic neighborhoods and buildings and 19 public parks, with 85 percent of the new flight traffic coming from jets, the court said.

“The idea that a change with these effects would not be highly controversial is ‘so implausible’ that it could not reflect reasoned decision making,” the court noted.

The FAA also erred by deviating from its usual practice of assessing when new flight routes are likely to be highly controversial. In the past, when assessing proposed route changes at airports in Northern California; Boston, Massachusetts; Charlotte, North Carolina; and Atlanta, Georgia, the FAA has relied on its general observation that a proposal is likely to be highly controversial if it would increase sound levels by five or more decibels in an area already experiencing average levels of 45 to 60 decibels, the court noted. The FAA did not explain how the Phoenix plan could be less likely to stir controversy than other plans that had the same projected impact, the court wrote.

The Transportation Act also calls for “special efforts” to preserve the natural beauty of public parks and recreation lands and historic sites. The FAA’s failure to consult with all local officials over those areas when assessing noise impacts violates that requirement, the court noted. But the FAA argued the Phoenix sites are not generally recognized as quiet settings because of their urban location. The court disagreed.

“That isn’t enough. Even in the heart of a city, some neighborhoods might be recognized as quiet zones,” the judges wrote.

The FAA asked the court to dismiss the case. The plaintiffs had not petitioned for a Court of Appeals review of the FAA order within the 60 days required by law, but rather six months too late. But the court found there were “reasonable grounds” for extending the review deadline under the “timeliness exception.” The FAA had said it might change its final order, giving the plaintiffs the impression that the rule was still open. The plaintiffs, therefore, had reasonable grounds for delaying their court filing, the court found.

“To conclude otherwise would encourage the FAA to promise to fix a problem just long enough for sixty days to lapse and then to argue that the resulting petitions were untimely,” Judges Rogers and Griffith concluded.

But in his dissenting opinion, Senior Circuit Judge David B. Sentelle argued that the timeliness exception for allowing the case to be filed later than 60 days was not met. He did not address the other merits of the case, but only his opposition to extending the court-filing time.

Lane McFadden, a U.S. Department of Justice attorney who argued the case, declined to comment on the court’s ruling. He said his office is still weighing their options regarding further appeals. Asked if the ruling might affect NextGen programs in other jurisdictions, he said, “I don’t know that it would.”

Likewise, the FAA is reviewing its options.

“We will carefully review the decision before deciding on our next steps,” the FAA said in a statement provided by spokesman Ian Gregor.

City Attorney Molly Stump said in an email that her office will consider the ruling from all angles.

“While the specific facts in the Phoenix case are different than what has developed in our region, we are reviewing the Court’s decision carefully and will be working closely with the City Council and community with respect to potential impacts and what this might mean for Palo Alto,” she said.

Landesmann said that for local residents, a takeaway from the Phoenix case is the importance of strong city government advocacy. She noted the role of the city of Phoenix, even as the airport owner, which “appealed the process with hard data and vigorously represented the interests of their citizens.”

She added, “Every Palo Alto resident should read the court’s decision because it can help inform the upcoming formation of a new representative body to address jet noise with the FAA.

“Standing community aircraft forums have for years presided over significant changes to our airspace without focusing on environmental reviews when they should have had them. It’s also time to modernize the way impacts for these environmental reviews are assessed and the metrics employed to assess changes. Local agencies are not constrained to do meaningful assessments to help inform the situation, as the City of Phoenix did.”

Simitian said he plans to go to Washington, D.C., next week after Congress returns from its recess, and while there he will seek a meeting with Rep. Anna Eshoo, a member of the Quiet Skies Caucus, who co-convened the Select Committee on South Bay Arrivals. Simitian said he would also seek an appointment with the FAA.

Eshoo, who is still on recess, said in a statement to the Weekly that she has followed up with the FAA to ask how they plan to respond to the Appeal Court’s decision and to inquire how this will impact the Bay Area.