March 19, 2018

By: Linda Chiem

Culver City, a Santa Monica civic group and local residents told the D.C. Circuit on Friday that the Federal Aviation Administration did not adequately assess noise, air pollution and other environmental factors before implementing new flight paths for Southern California airports as part of its air traffic control modernization program.

The petitioners are challenging the FAA’s August 2016 decision signing off on the environmental reviews for its plan to implement new departure, arrival and approach procedures for 21 airports within the Southern California Metroplex.

In an opening brief to the D.C. Circuit, Culver City and the other plaintiffs said the FAA’s “finding of no significant impact and record of decision” was based on a shoddy National Environmental Policy Act review that used bad metrics to analyze noise and measure greenhouse gas emissions.

The FAA’s alleged failings “seriously prejudice petitioners,” they said. “While petitioners noted the absence of the required analyses, and raised the issues during the administrative process … FAA has never since remedied these deficiencies by fully and accurately informing the public of the scope and degree of the SoCal Metroplex Project’s impacts, or allowed affected parties to comment on those impacts, or given them any opportunity to weigh in on the possibilities of mitigation.”

The project at issue involves shifting about 21 Southern California airports to the FAA’s Next Generation Air Transportation System, or NextGen, a program long in the works that seeks to replace conventional air traffic control procedures with new satellite-based procedures.

Airports in the SoCal Metroplex include the John Wayne-Orange County Airport, Bob Hope Airport in Burbank, Long Beach Airport, Ontario International Airport in San Bernardino County, Palm Springs International Airport, and larger hubs such as the Los Angeles International Airport and San Diego International Airport.

The petitioners claim that the FAA failed to look hard enough at appropriate alternatives to the SoCal Metroplex Project, and they say the agency should not get a “pass” for dropping the ball on its review, according to the brief.

“The deference usually accorded to FAA that often allows it to escape the consequences of deficiencies in its environmental analyses is neither appropriate where, as here, FAA has thumbed its nose at its own regulations and those of its sister agency, EPA, nor justified where FAA has entirely failed to comply with the expressly stated congressional mandate that it consider the ‘public interest,’ by alleviating the noise and pollution impacts on hundreds of thousands, even millions of affected residences and businesses throughout Southern California affected by the SoCal Metroplex Project,” the petitioners say in the brief.

The FAA, which has defended its overhaul of flight paths and arrival and departure procedures at airports across the country, has faced several challenges from cities and interested groups calling the changes ill-conceived and harmful to local communities.

The cities of Laguna Beach and Newport Beach, as well as Orange County, similarly challenged the SoCal Metroplex Project, but they agreed to a settlement with the FAA in January.

The D.C. Circuit docket includes another FAA challenge whose origins are closer to home. In a separate appeal, Georgetown University, the Citizens Association of Georgetown and others seek to stop the FAA from routing airplanes over their historic neighborhood in Washington. They say the agency failed to assess the noise and air pollution effects before implementing new flight paths in 2015.

The flights in question, departing from Ronald Reagan Washington National Airport, had for 70 years taken a straight course up the west side of the Potomac River. That changed in 2015, when the FAA set new, low-altitude, zigzagging flight paths without properly considering the impacts under the National Historic Preservation Act and the National Environmental Policy Act, according to their filing.

The FAA declined to comment on pending litigation.

The petitioners are represented by Barbara E. Lichman and Paul J. Fraidenburgh of Buchalter, Steven M. Taber of Leech Tishman Fuscaldo & Lampl Inc. and attorney Mitchell M. Tsai.

The FAA and other federal defendants are represented by Lane N. McFadden of the U.S. Department of Justice.

The instant consolidated appeal includes Benedict Hills Estates Association et al. v FAA et al, case number 16-1366, Donald Vaughn v. FAA et al, case number 16-1377, Santa Monica Canyon Civic Association v. FAA et al, case number 16-1378, City of Culver City v. DOT et al, case number 17-1010, and Stephen Murray v. FAA et al, case number 17-1029, all in the U.S. Court of Appeals for the D.C. Circuit.

Source Law360