Petition for Writ of Certiorari — County of Delaware, Pennsylvania v. Federal Aviation Administration (Nos. 09-603, 09-607)
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Court, US
Suaroms
FILED
09-603 NOV 17 2009
| een ee OFFICE OF THE CLERK
Wittism Ke Suter Clerk
IN THE
Supreme Court of the United States
COUNTY OF ROCKLAND, NEW YORK, et a/,
Petitioners,
Ws
FEDERAL AVIATION ADMINISTRATION, et a/,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI
BARBARA E. LICHMAN, Ph.D.
Caunsel of Record
BERNE C. HART
STEVEN M. TABER
CHEVALIER, ALLEN & LICHMAN, LLP
695 Town Center Drive
Suite 700
Costa Mesa, CA 92626
(714) 384-6520
Counsel for Petitioners
County of Delaware, Pennsylvania;
The Honorable Andrew J. Reilly;
The Honorable Linda A. Cartisano;
The Honorable Mary Alice Brennan;
(Additional Parties Continued Inside)
The Honorable Michael V. Puppio;
The Honorable John J. Whelan:
Friends of the Heinz Wildlife Refuge at Tinicum, Inc.;
Hank Hox; The Honorable Ron Raymond;
The Honorable Elric C. Gerner;:
The Honorable Geoff Semenuk;
The Honorable Henry A. Eberie, Jr.; Robert J. Willert;
Thomas J. Giancristoforo, Jr.; Michael Sraith;
Frank Samsel; John F. Gresch
i
QUESTIONS PRESENTED
The Clean Air Act, codified at 42 U.S.C. § 7401,
et seqg., Conformity Provision provides that “[nlo
department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or
provide financial assistance for, license or permit, or
approve, any activity which does not conform to an
implementation plan after it has been approved or
promulgated under section 7410 of this title.” 42
U.S.C. § 7506(c)(1). The Court of Appeals for the
District of Columbia Circuit found that, although the
Federal Aviation Administration (FAA) “did not
directly calcuJ«te the level of emissions” resulting from
a redesign of approach and departure paths at five
major airports across five states with five separate
State Implementation Plans (SIPs) in the northeastern
United States, it “did not need to quantify the
reduction [in emissions] in order to conclude the
redesign was exempt from a _ conformity
determination.” The Court of Appeals further found
that, assuming FAA’s omission was error, Petitioners
had failed to prove the error harmful. The questions
presented are:
1) Whether FAA’s violation of the
substantive command of Congress in the Conformity
Provision of the Clean Air Act is the type of error that
has the natural effect of prejudicing Petitioners’
substantial rights, and, thus, may “generally” be
regarded as likely to prove harmful; and
1
2) if so, whether the Court of Appeals erred
in placing the burden of proving harm from FAA’s
error on Petitioners.
iii
PARTIES TO THE PROCEEDING
Petitioners, who were Petitioners in the Court
of Appeals, are County of Delaware, Pennsylvania; The
Honorable Andrew J. Reilly; The Honorable Linda A.
Cartisano; The Honorable Mary Alice Brennan; The
Honorable Michael V. Puppio; The Honorable John J.
Whelan; Friends of the Heinz Wildlife Refuge at
Tinicum, Inc.; Hank Hox, the Honorable Ron
Raymond; The Honorabie Elric C. Gerner; The
Honorable Geoff Semenuk; The Honorable Henry A.
Eberle, Jr.; Robert J. Willert; Thomas J.
Giancristoforo, Jr.; Michael Smith; Frank Samsel; and
John F. Gresch.
Respondents, who were Respondents in the
Court of Appeals, are United States Department of
Transportation; Ma:y E. Peters; Federal Aviation
Administration; Bobby Sturgell; and Manny Weiss.
Parties to cases consolidated in the Court of
Appeals who are not parties to this petition are City of
Elizabeth, N.J.; J. Christian Bollwage; Rockland
County, N.Y.; Board of Chosen Freeholders of Bergen
County, N.J.; NJ Boroughs; New Jersey Coalition
Against Aircraft Noise (NJCAAN); County of Union;
Union County Freeholders Air Traffic and Noise
Advisory Board; Friends of the Rockefeller State Park
Preserve, Inc.; The Timbers Civic Association; The
Clair Manor Maintenance Association; Perth Civic
Association; Northshire-Maplechase Civic Association;
Chalfonte Civic Association; Kennett Pike Association;
The Brandywine Civic Association; the North Graylyn
Crest Civic Association; The Ramblewood Civic
iV
Association; The Village of Arden; The Village of
Ardentown; The Village of Ardencroft; the Honorable
Catherine A. Cloutier; Stephen F. Donato; and Amy K.
Pollock.
CORPORATE DISCLOSURE STATEMENT
All non-governmental petitioners are either
nonprofit organizations or individuals. None of them
has a parent corporation, and no publically-held
company has a 10% or greater ownership interest in
any of those entities.
Vv
TABLE OF CONTENTS
QUESTIONS PRESENTED ................... l
PARTIES TO THE PROCEEDING ............ iii
CORPORATE DISCLOSURE STATEMENT .... iv
yy EP Nie y 8) og 9) ix
CPU URMUMPEUEN UERWY ce ccc ces ccccvesecesce 1
ES 4 ss bk ooh Gk ke 44.6 5 cba a Oo 0 1
STATUTORY AND REGULATORY
re ee a, Soa b's bo 406 000 oes 1
I sd cw de ta 04s 848 oo ORO ON Os 2
The Nationa) Airspace Redesign ......... 4
er ore a ates 14a byrd oa ao 5
I eee Cee wb ks 6 Wee he KE 7
Presumed To Conform Rule ............. 9
a is yd og w eee 11
pe eee eee 12
eg 13
National Airspace Redesign ............ 13
Fe 14
vi
REASONS FOR GRANTING PETITION ...... 15
A. The Appellate Court Disregarded
This Court’s Evolving Precedent
in Finding That the Burden
of Proving Harm from FAA’s
Violation of a Substantive
Provision of the Clean Air Act
Should Fall on Petitioners. ....... 20
1. Compliance with the Clean
Air Act’s Conformity Provision
is a Substantive, Not Merely
Technical, Statutory
pe 25
2. Compliance is Also a
Substantial Right Accorded
to Petitioners Specifically and
the Public in General. ..... 28
3. The Court of Appeals
Therefore Erred in Placing
the Burden of Proving Harm
on Petitioners Where Violation
by a Federal Agency of a
Substantive Command of
Congress Is at Issue. ....... 31
Vl
B. The Issues Raised by This Case
Merit This Court’s Review
Because Congress Showed
Special “Solicitude” For
Enforcement of the Clean Air Act
and its Legislative Scheme. ....... 36
Appendix A - Judgment, United States
Court of Appeals for the District of
Columbia Circuit, Case No. 07-1363,
entered Jume 10, FOUR, on cc ccc rceccccvsnces la
Appendix B - Federal Aviation
Administration Corrected Record of
Decision, New York/New Jersey/Philadelphia
Metropolitan Area Airspace Redesign,
NY GUE) Es 665 ok cd wew esd eaa cies ss 13a
Appendix C - Order, United States Court
of Appeals for the District of Columbia
Circuit, Case No. 07-1363, entered
pe SA rr rere ere 14la
Appendix D - 42 U.S.C. § 7401. ............ 143a
Appendix E - 42 U.S.C. § 7506.............. 145a
Appendix F - 49 U.S.C. § 46110. ............ 16la
Appendix G -5 U.S.C. § 706. .............. 163a
Appendix H - 28 U.S.C. § 2111. ............ 165a
Appendix I - 40 C.F.R. § 93.153(a), (b), (c). ... 166a
Vili
Appendix J - Federal Aviation Administration
Effect of th li
Area Airspace Redesign on Aircraft Fuel
ee veep ks ve ccces ccc. 174a
Appendix K - Statement of Arlene B.
Feldman, Regional Administrator for
the Eastern Region, Federal] Aviation
Administration Before the Aviation
Subcommittee of the House Transportation
and Infrastructure Committee on Air
Traffic Departures at Newark International
Airport, November 4, 1999................. 202a
Appendix L - Excerpts from Draft
Environmental Impact Statement,
New York/New Jersey/Philadelphia
Metropolitan a Airspace
Redesign, December 2005, page 4-57. ....... 210a
Appendix M - Excerpts from Final
Environmental Impact Statement,
New York/New Jer hiladelphia
Metropolitan Area Airspace Redesign, July
2007, pages ES-8 through ES-10,
1-1, 3-50 through 3-55. .................2.5 214a
Appendix N - 58 Fed. Reg. 63,229 (1993). .... 240a
Appendix O - 72 Fed. Reg, 6645, 6654 (2007). 246a
Appendix P - 72 Fed. Reg. 41,578 (2007). ..... 257a
ix
Appendix Q - Excerpts from Federal
Aviation Administration Pre-Scoping
Summary Report; New York/
New Jersey Metropolitan Area Airspace
Redesign Program, pages 1,2. ............. 263a
Appendix R - Excerpt from Federal
Aviation Administration New York/
New Jersey/Philadelphia Metropolitan
Area Airspace Redesign Project
Scoping Report, Environmental Impact
Statement, March 2002, page 6............. 266a
Appendix § - Excerpt from 2009-2013
FAA Flight Plan, page 21.................. 269a
X
TABLE OF AUTHORITIES
Cases
Accardi v. Pennsylvania Railroad Company,
Se Ws ED op ccccceecnecees 28, 29
Bruno v. United States,
308 U.S. 287 (1939) ...........26.. 17, 23
Chapman v. California,
ts A ee 34
City of Olmsted Falls v. FaA,
292 F.3d 261 (D.C. Cir. 2002)........... 21
County of Rockland, New York, et al.
v. FAA, et al.,
2009 WL 1791345 (D.C. Cir. 2009)
Ce oo no wy nae hWa ee 608s 6 a8 1, 14
Environmental Defense Fund v. EPA,
167 F.3d 641 (D.C. Cir. 1999)..... 19, 26, 27
Environmental Defense Fund v. EPA,
82 F.3d 451 (D.C. Cir. 1996)............ 27
Environmental Defense, inc. v. Environmental
Protection Agency,
509 F.3d 553 (D.C. Cir. 2007)........... 31
Federal Communications Commission v.
Fox Television Stations, Inc.,
129 S.Ct. 1800 (2009) ....... rare
xi
Kotteakos v. United States,
328 U.S. 750 (1946) ..... 16-18, 22-25, 30-34
O’Neal v. McAninch,
br Boe fe) | 30, 31, 33-36
Palmer v. Hoffman,
DP TURD Sccbccvsecsccesveees 34
Puckett v. United States,
Be es EI cc ccctcvesceseves 28
Robertson v. Methow Valley Citizens Council,
490 U.S. 882 (1989) .............05. 25-27
Shinseki v. Sanders,
129 S.Ct. 1696 (2009) ... 16-19, 22-24, 30, 32,
36-38
United States v. Fior D’Italia, Inc.,
ee GPs ED vce cc cvececevess 36
United States v. Lane,
Pe OP ED ccc sccccescuccece 30-32
Washington Gas Light Co. v. F.E.R.C.,
523 F.3d 928 (D.C. Cir. 2008)........... 33
X11
Statutes
eas eC so eee 6 hn wa kee e's 1
LE Sag. t | ae aera eee 2, 16, 22, 31
> BRST Oe a 25
URS oe oR re eae 1, 23
BE UA, BS TOONS 6 0 bie ec cccvsceeasss 37
ae Or ss TEED ng oe oa Kk wba od ee oS 28, 38
ree ED ng nic oo us oa a eae nen 37
ee i sw ee re eee ees 2
Oa OS bk se cs ec ceyaeeene ewes 21
SPU B.C. STB) occ ck veces 14, 15, 18, 35
BS ULB. © TOCA) 5 go oc crc ees vencuns 30
43 U.S.C. © TOOGCN IMB) 2. nc cease 30
12 U.S.C. § 7506(c)(4) 10
PE x hs 0s oo oe ae bE oe 29
42 U.S.C. § 7604 21
42 U.S.C. § 7607 PRC aoa 21
OSs Ee hk ob eS ele ees 1, 14, 21, 39
ee I ions ooh kv eweneeece ees 32
Sars en OR i os ee bee wea Weewee ye 2
I nc aa use wo Kee + 0 Ae OA 16, 22
os ek be SG ee a Re Ya 21
eee IE 6 oe ce ve eee ao pee eee .
Ree I aos 6s oo eee eee ee ane oo 19
Regulations
BO G.2 es es OE ORE, ok 5 kee ew ne kan 2,8
SOC FE, BOG OOO) 0 ei vdcenes 3, 18, 27, 35, 38
Oe oe ee ik ko ee i ce en eee 3, 27
BOC .O. © BOE) vn cee cs wives 18, 35, 38
40 C.F.R. § 93.153(f)
XIV
Other Authorities
101 Cong.Rec.S 16956
(Daily Ed. Oct. 27,1990) ........ 20, 29, 37
6S Pod. tee. GE ZIACISSS) . ww ok cece cuwes 8
12 Ped.teeg. GE4T (2007)... ccc eee cnnn 10
12 Fed..Reg. 6654 (2007) .. 0... ccc ccc cece eens 10
‘(a FOG. dete. 41, BGG ROOT) «woe ce eee cee seven 10
2 Fed.Meg. 41,5758 (2007)... ccc cece eees 11
Clean Air Conference Report,
136 Cong. Rec. 36,103 (1990) ........... 19
Department of Justice, Attorney General’s
Manual on the Administrative Procedures
SE RP CREE) 8 5 nee CO Ga a eae 16, 22
Federal Rules of Criminal Procedure 8(b) ...... 30
H.R. Rep. No. 913, 65" Congress, 3% Session1 .. 23
1
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of
certiorari to review the Judgment of the United States
Court of Appeals for the District of Columbia Circuit.
OPINIONS BELOW
The opinion of the Court of Appeals is not
reported. It is available at 2009 WL 1791345 and
reproduced in the Appendix to this Petition [App.
infra, la-12a]. The Federal Aviation Administration
September 28, 2007 Corrected Record of Decision for
the New York/New Jersey/Philadelphia Metropolitan
Area Airspace Redesign is reproduced in the Appendix
[App. infra, 13a-140a]. The order denying Petitioners’
petition for rehearing en banc is unreported, and is
reproduced in the Appendix [App. infra, 141a-142a)].
JURISDICTION
The Judgment of the Court of Appeals was
entered on June 10, 2009. A timely petition for
rehearing en banc was denied on August 19, 2009. The
jurisdiction of this Court is invoked under 28 U.S.C. §
1254(1).
STATUTORY AND REGULATORY
PROVISIONS
The relevant provisions of the Clean Air Act, 42
U.S.C. § 7401, et seg., are set forth in the Appendix
[App. infra, 143a-160a]. 49 U.S.C. § 46110 is set forth
2
in its entirety in the Appendix. [App. infra, 16la
162a]. The relevant provisions of the Administrative
Procedures Act, 5 U.S.C. § 500, et seq., are set forth in
the Appendix [App. infra, 163a-164a]. The Federal
harmless error statute, 28 U.S.C. § 2111 is set forth in
the Appendix [App. infra, 165a]. The relevant
provisions of the U.S. Environmental Protection
Agency’s regulations “Determining Conformity of
General Federal Actions to State or Federal
Implementation Plans”, 40 C.F.R. § 93.150 e¢ seq., are
set forth in the Appendix {App. infra, 166a-173a].
STATEMENT
In December, 2007, FAA began implementing
the New York/New Jersey/Philadelphia Metropolitan
Airspace Redesign Project (Project), a reorganization
of air traffic over five states, involving five major and
sixteen satellite airports throughout the Northeastern
United States. In preparation for implementation,
FAA issued a Draft Environmental Impact Statement
(DEIS). The DEIS did not include calculation of
emissions or analysis of potential changes in air
emissions levels resulting from the Project, as required
by the Clean Air Act’s Conformity Provision, 42 U.S.C.
§ 7506. In July, 2007, in response to numerous
comments, FAA issued a Final Environmental Impact
Statement (FEIS) which included Appendix R, “Effect
of New York/New Jersey/Philadelphia Airspace
Redesign on Aircraft Fuel Consumption” (Fuel Burn
Report). The Fuel Burn Report purported to show that
the Project would reduce fuel burn, on average,
throughout the entire Northeast Project area, although
fuel burn would increase at some individual airports.
3
The Fuel Burn Report therefore concluded that
emissions would decrease, on average, because of the
decrease in fuel burned resulting from the Project,
and, thus, the Project would be exempt from the
conformity requirement as having a de minimis
impact.
The Fuel Burn Report did not calculate or
analyze emissions; did not address the Clean Air Act’s
express requirement that conformity be determined
with respect to each State Implementation Plan (SIP);
and did not apply the regulations promulgated by the
Environmental Protection Agency (EPA) (to which
Congress delegated responsibility for implementing
the Clean Air Act), for determining whether a project
is subject to a de minimis exemption from conformity,
40 C.F.R. § 93.153(c) and (b). Despite the absence of
relevant analysis to support FAA’s conclusion, the
Court of Appeals opined that FAA “did not need to
quantify the reduction [in emissions] in order to
conclude the redesign was exempt from a conformity
determination,” [App. infra, 12a]. It further opined
that, even assuming FAA erred in failing to inventory
emissions, Petitioners had “failed to identify any way
in which the error was or might have been harmful.”
[App. infra, 11a].
The FAA’s omission and the subsequent Court
of Appeals ruling give rise to significant issues, both
legal and practical. From a legal perspective, the
Court of Appeals’ ruling fails to take into account the
evolution of this Court’s jurisprudence concerning: (1)
whether violation by a Federal agency of the
substantive, rather than technical/procedural,
4
provisions of a civil statute have the “natural effect” of
prejudicing a petitioner’s “substantial rights,” an issue
previously addressed by this Court in the context of
criminal statutes; and (2) if so, whether the Court of
Appeals erred in placing the burden of proving harm
from FAA’s lack of compliance with the Conformity
Provision on Petitioners, rather than placing the
burden on the agency to prove absence of harm.
From a practical perspective, the appellate
ruling opens the flood gates to Federal agencies
seeking relief from the draconian, yet, as Congress
decided, important, substantive requirements of the
Conformity Provision, at a time when air quality and
its impact on climate change, have taken a prominent
place in the national consciousness. It also risks a
clash between the intent of Congress as expressly set
forth in the Act, and a contrary construction by the
Executive and Judicial Branches. For those reasons,
and, because these questions will remain unanswered
in the absence of any other avenue of review from the
Court of Appeals’ original jurisdiction over challenges
to FAA actions, this Court’s grant of the Petition for
Writ of Certiorari is imperative.
The National Airspace Redesign
In April, 1998, then FAA Administrator, Jane
Garvey, announced the “National Airspace Redesign
Project.” “The goals of the [airspace] redesign .. .
[were] to maintain and improve system safety; improve
the efficiency of the air traffic management and reduce
delays; increase system flexibility and predictability;
and seek to reduce adverse environmental effects on
5
communities in and around our Nation’s airports.”
Statement Of Arlene B. Feldman, Regional
Administrator, Eastern Region, Federal Aviation
Administration, Before the Aviation Subcommittee of
The House Transportation and Infrastructure
Committee on Air Traffic Departures at Newark
International Airport, November 4, 1999 (Feldman
Statement) [emphasis added]. [App. infra, 207a]. The
New York/New Jersey/Philadelphia Metropolitan
Airspace Redesign Project that is the subject of this
lawsuit, became the flagship of the national effort.
The Project
The Project entails changes in air traffic control
procedures and flight paths affecting aircraft
operations at airports in a 31,180 square mile, five-
state region in the New York/New Jersey/Philadelphia
metropolitan area. FEIS, p. ES-8 [App. infra, 216a].
There are over 8,000 flights a day into and out of the
New York/New Jersey/Philadelphia metropolitan
areas, more than any other major metropolitan area in
the U.S., accommodating 300,000 passengers and
10,000 tons of cargo. Feldman Statement [App. infra,
207a-208a]. The Project focuses on five major airports
and 16 satellite airports in the Study Area. The five
major airports are:
- John F. Kennedy International (JFK) - New
York
LaGuardia (LGA) - New York
Newark Liberty International (EWR) - New
Jersey
. Teterboro (TEB) - New Jersey
6
° Philadelphia International (PHL) -
Pennsylvania
FEIS, pp. ES-8, 9 [App. infra, 217al.
In testimony before Congress, the FAA stated
that one of the Preiect’s goals “is to enhance the
environment to the degree consistent with safety and
efficiency, both with noise abatement and
improvements in air quality.” Feldman Statement
(emphasis added). [App. infra, 208a]. In addition to
promising Congress that the Project would reduce
adverse environmental impacts, the FAA made the
same promise to the public. An FAA “Pre-Scoping
Summary Report” stated, among other things: “Some
of the benefits of a major redesign include: ... ©
Reduced adverse environmental impacts such as noise
and air emissions ...,” Pre-Scoping Summary Report,
§ 1-1, Purpose and Need for Airspace Redesign
Program, pp.1-2 [emphasis added] [App. infra, 265a}.
The Project was officially initiated on January
22, 2001 when FAA issued a Notice of Intent to
prepare an Environmental Impact Statement (EIS).
FEIS at 1-1. |/App. infra, 224a]. After receiving
comments and holding several public meetings, the
FAA developed a “Scoping Report” in March 2002. In
the 2002 Scoping Report, the FAA stated with respect
to “air emissions” that:
Air Emissions Many of the scoping
comments listed air emissions from
aircraft as a concern that should be
addressed during the Airspace Redesign
7
Project and EIS development. The
majority of the comments concerning air
emissions were generated from the
following areas: northern New Jersey
(including areas west of Newark airport
and along the northern New Jersey
shoreline), areas surrounding JFK
airport in New York and areas
surrounding both Wilmington (DE) and
Philadelphia airports.
EIS Amalysis: It is neither within the
FAA’s regulatory authority nor expertise
to carry out a health-effects type study of
air quality in the study area for this EIS.
However, the required air quality
analysis will be done.
2002 Scoping Report, p. 6 [emphasis added] [App.
infra, 267a-268a]. Having promised the citizens of the
Study Area a second time that the required air quality
analysis would be done, the FAA moved on to develop
its DEIS.
DEIS
In December, 2005, the FAA issued its DEIS.
The Project, as depicted in the DEIS, mirrored the
description in the Pre-Scoping Summary Report.
Aside from listing counties in the study area as non-
attainment and maintenance areas for criteria
pollutants, the DEIS did not contain any of the
promised air quality analysis. Instead, the DEIS
relied on a purported exemption for “Air Traffic
8
Control Activities and Adop‘ing Approach, Departure
and Enroute Procedures for Air Operations” derived
from the preamble to the EPA’s General Conformity
Rule, 40 C.F.R. § 93.150, et seg. See, 58 Fed.Reg.
63,214, 229 (1993) [App. infra, 242a]. The DEIS
states, in pertinent part:
The FAA met with the representatives of
EPA Regions 1, 2 and 3 to discuss the
Proposed Action alternatives and
analysis of air quality impacts. (EPA
Regions 1, 2, and 5 have jurisdiction over
areas with the Study Area.) During these
meetings the FAA indicated that no air
quality analysis would be undertaken.
Several reasons were provided to explain
the FAA’s assertion that no detailed air
quality analysis was required and that no
significant air quality impacts would
result from the implementation of the
Proposed Action. These reasons were:
0 The Proposed Action
alternatives examined in
this Draft EIS are exempt
from analysis under the
General Conformity Rule.
The final rule _ for
Determining Conformity of
Genera! Federal Actions to
State and Federal
Implementation Plans was
published in the Federal
Register in 1993. In Section
9
§1.853 (c)(1), the
Environmental Protection
Agency (EPA) lists actions
that are de minimis and,
thus, do not require an
applicable analysis under
this rule. EPA states in the
preamble to this regulation
that it believes, “air traffic
control activities and
adopting approach,
departure, and en route
procedures for air
operations” are illustrative
of de minimis actions.
DEIS p. 4-57 (emphasis added]. (App. infra, 211a-
212a)].
Presumed To Conform Rule
After the DEIS was published, the FAA took
advantage of a provision in the EPA’s General
Conformity Rule’ and developed a list of FAA actions
it “presumed” would conform to the applicable SIPs.’
“Notwithstanding other requirements of this
subpart, actions specified by individual Federal agencies that have
met the criteria set forth in either paragraph (g)(1) or (g2) of this
section and the procedures set forth in paragraph (h) of this
section are presumed to conform, except as provided in paragraph
(j) of this section. 40 C.F.R. § 93.153(f).
Petitioners have twice raised the issue of the
Presumed to Conform Rule’s unconstitutional delegation of
10
On or about February 12, 2007, the FAA published its
Draft Federal Presumed to Conform Actions Under
General Conformity in the Federal Register. [72
Fed.Reg. 6641-6656 (2007)] (“Draft Presumed to
Conform Rule”).
The Draft Presumed to Conform Rule contained
a list of fifteen Airport Project categories which the
FAA “presumes” to conform to applicable SIPs, without
the need for individual conformity review and analysis
prior to the implementation of each project within the
specified category. Project Category No. 14, Air Traffic
Control Activities and Adopting Approach Departure
Enroute Procedures for Air Operations, stands out from
among all of the others in that it is the only Project
Category that: (1) involves aircraft operations and
engine emissions; (2) extends off-airport; and (3) had
not been subject to analysis in some form to determine
the level of emissions. 72 Fed.Reg. 6654 (2007 [App.
infra, 251a-254a]. On July 30, 2007, the FAA
published a Final Presumed to Conform Rule in the
Federal Register. 72 Fed.Reg. 41,565-580 (2007).
Although some changes were made to the text
discussing Category 14, the substance, i.e., that
changes in air traffic control activities would be
legislative authority from EPA to other federal agencies where
Clean Air Act § 7506(c)(4) specifically states that the EPA
Administrator exclusively “shall promulgate criteria and
procedures for determining conformity” while the EPA’s Presumed
to Conform provision allows any Federal! agency to develop a list
of exempt project categories. In both instances, the Court of
Appeals declined to rule on the constitutionality of the EPA’s
Presumed to Conform rules.
11
“presumed to conform,” was not modified in any way.
72 Fed. Reg. 41,578 (2007) [App. infra, 257a).
FEIS
In July, 2007, the FAA released the FEIS. In
the FEIS, FAA addressed numerous comments it
received concerning its failure in the DEIS to study air
quality impacts. Most notably, the FAA disclosed that
“(slince issuance of the DEIS, the FAA was advised by
the EPA that it should not use the Preamble to the
(General Conformity Rule] to determine de minimis
actions for ‘air traffic control activities and adopting
approach, departure, and en route procedures for air
operations.” [FEIS, p. ES-10] [App. infra, 221la]. The
FEIS further stated:
Recently, the FAA has determined that it
can not rely on the preamble and on
February 12, 2007 issued a Draft Federal
Notice Federal Presumed to Conform
Actions Under General Conformity
[Federal Register6: February 12, 2007
(Volume 72, Number 28)] which formally
defines these types of actions above 1,500
feet above ground level (AGL) as de
minimis. .. To reinforce the FAA
presumption that the Proposed Action
would be de minimis a fuel burn analysis
was completed for the FAA’s Preferred
Alternative with and without mitigation,
both versions of the Preferred Alternative
reduced fuel burn when compared to the
Future No Action Alternative.
12
Additionally, the Airspace Redesign will
not increase traffic over the Future No
Action. Lastly the project will not cause a
new violation, worsen an_ existing
violation, or delay meeting the National
Ambient Air Quality Standards.
Notably missing, however, was any calculation of
emissions, or anzilysis of the effect that the emissions
from the Project would have on the various SIPs in the
study area.
Fuel Burn Report
The FEIS rested its conformity conclusion on
the Fuel Burn Report, FEIS, App. R, which was
prepared after issuance of the DEIS. The Fuel Burn
Report purported to translate operational mo7eling
into units of fuel consumption. See id. at 1 [App. infra,
181la]. It concluded that the modeled delay reduction
at high levels uf operational demand for the year 2011
would produce an average reduction in fuel
consumption of less than 1%. Id. at 7, 9 [App. infra,
189a, 192a-193a]. While the Fuel Burn Report did not
“directly calculate the level of emissions,” as
acknowledged by the Court of Appeals [App. infra,
10a], it indicated that at least at two airports
(Teterboro, one of the five major airports, and
Morristown Municipal, one of 16 satellite airports)
there would be an increase in fuel burn. Fuel Burn
Report at pp. 7-8 [App. infra, 189a-190a]. The Fuel
Burn Report does not analyze the way in which the
increase in fuel burn at Teterboro and Morristown
translates into an increase in emissions and the effect
13
that would have on the SIP for the surrounding area,
since Bergen and Morris Counties, in which the two
airports are located, are maintenance areas for carbon
monoxide and non-attainment areas for ozone and
PM2.5. FEIS, pp.3-50, 3-52, and 3-55 [App. infra,
225a-226a, 231a, 237a-238a].
Record of Decision
On September 5, 2007, FAA issued its Record of
Decision (ROD) for the Project. On September 28,
2007, FAA issued a “Corrected” ROD (Corrected ROD)
[App. infra, 138a-140a], which did not change the
conclusions in the ROD, including FAA’s bases for its
conformity decision.
The Corrected ROD concluded that the “selected
project conforms with the purposes of the SIPs in the
six [sic] States within the Study Area,” [Corrected
ROD, p. 56 (App. infra, 133a]! on the ground that
“(blased upon the EIS and the clarification in the
footnote below regarding regional significance, the
proposed airspace redesign alternatives and the
selected project are either exempt or presumed to
conform under the General Conformity Rule.”
Corrected ROD, pp.43-44 [App. infra, 105a-106al.
National Airspace Redesign
The Project is the first major, regional airspace
redesign in the U.S. Currently, the airspace over
Florida, Llinois, the District of Columbia, and the
Southwest, including California and Arizona, are in
planning for redesign according to FAA’s 2009-2013
14
Flight Plan. FAA’s Flight Plan also indicates that in
fiscal year 2009 FAA intends to redesign the airspace
of San Francisco, Las Vegas, Charlotte, in addition to
New York, Philadelphia, Chicago and Los Angeles.
[2009-2013 FAA Flight Plan, p. 21 [App. infra, 270a].
Each of these cities over which FAA plans to redesign
the airspace contains at least one nonattainment or
maintenance area that are part of a State
Implementation Plan. Thus, the Conformity Provision
will arise as an issue in each of those projects.
Litigation History
On September 14, 2007, Petitioners filed a
Petition for Review, purs'sant to 49 U.S.C. § 46110, in
the United States Court of Appeals for the Third
Circuit. The Petition for Review was subsequently
consolidated with other petitions for review in the
United States Court of Appeals for the District of
Columbia Circuit, under the caption County of
Rockland, New York, et al. v. FAA, et al., Case No. 07-
1363. In their Joint Brief, filed August 29, 2008,
Petitioners argued, inter alia, that FAA had failed to
analyze the emissions created by the Project and thus,
failed to analyze the Project’s impacts in each of the
maintenance and non-attainment areas within each
SIP pursuant to the requirements of the Clean Air
Act’s Conformity Provision, 42 U.S.C. § 7506(c)(1).
On May 11, 2009, the D.C. Circuit held oral
argument, and on June 10, 2009, issued its per curiam
opinion, dismissing all of the Petitions for Review
[App. infra, la-12a]. The Court of Appeals summarily
concluded that the Project is “exempt from a
15
conformity determination under the de minimis
exemption” because, even though FAA “did not directly
calculate the level of emissions resulting from the
project,” [App. infra, 10a}, FAA reasonably “concluded
the redesign” will reduce emissions in the study area.
[App. infra, 10a, 11a]. Moreover, the Court of Appeals
concluded that even if FAA erred in failing to comply
with the Clean Air Act by inventorying emissions, “the
petitioners still have failed to identify any way in
which the error was or might have been harmful.”
[App. infra, 11a}.
Petitioners filed a Petition for Rehearing and
Rehearing En Banc on July 23, 2009. The Court of
Appeals denied Petitioners’ Petition for Rehearing on
August 19, 2009. [App. infra, 141a-142a].
REASONS FOR GRANTING PETITION
In deciding this case, the Court of Appeals
encroached on the prerogatives reserved to Congress
under the Constitution and delegated to the EPA when
Congress enacted the Clean Air Act. The Court of
Appeals did so by placing upon Petitioners the burden
of proving harm from FAA’s failure to comply with the
substantive command of Congress that “([njo
department, agency, or instrumentality of the Federal
Government shall engage in, support in any way, or
provide financial assistance for, license or permit, or
approve, any activity which does not conform to an
implementation plan after it has been approved or
promulgated under section 7410 of this title.” 42
U.S.C. § 7506(c)(1). In reaching its decision, the Court
of Appeals relied on the scope of review in the
16
Administrative Procedures Act, 5 U.S.C. § 706 (APA).
But it made that decision in a vacuum, without
guidance by this Court which has hitherto declined to
consider in a civil context the question first raised in
Kotteakos v. United States, 328 U.S. 750, 760-761
(1946) in a criminal context: whether a governmental
action that violates a substantive, rather than
technical or procedural command of Congress may
generally be regarded as having the “natural effect” of
prejudicing “a litigant’s substantial rights,” such that
the burden should rest with government to prove the
harmlessness of its action.
This Court has been consistent in defining the
term “prejudicial error” as used in the APA as:
“intended to ‘su{m] up in succinct fashion the
“harmless error” rule applied by the courts in the
review of lower court decisions as well as of
administrative bodies.” Shinsekiv. Sanders, 129S.Ct.
1696, 1704 (2009), quoting Department of Justice,
Attorney General’s Manual on the Administrative
Procedures Act 110 (1947) [emphasis in original]. This
Court has been further guided by the Federal
“harmless errcr” statute, 28 U.S.C. § 2111, which it
has found applicable in both civil and administrative
contexts. Shinseki, 129 S.Ct. at 1704. (“The fedeal
‘harmless error’ statute, now codified at 28 U.S.C. §
2111, tells courts to review cases for errors of law
‘without regard to errors’ that do not affect the parties’
‘substantial rights,” id. at 1705, quoting 28 U.S.C. §
2111.)
The assignment of the burden of proving that a
prejudicial error has occurred has, however, not
17
always been consistent. “... {[Clourts have correlated
review of ordinary administrative proceedings to
appellate review of civil cases . . . Consequently, the
burden of showing that an error is harmful normally
falls upon the party attacking the agency
determination.” Jd. at 1706. Courts adjudicating
criminal cases, however, recognized long ago that a
court may not disregard a right Congress gave a
defendant. Bruno v. United States, 308 U.S. 287, 293
(1939).
In Kotteakos, also a criminal case, Justice
Rutledge, while holding that the usual incidence of the
burden applies where “technical errors” are being
challenged, Kotteakos, 328 U.S. at 760, went further to
hold that “this burden does not extend to all errors,”
Id. Rather, “[i]fthe error is of such a character that its
natural effect is to prejudice a litigant’s substantial
rights, the burden of sustaining a verdict will... rest
upon the one who claims under it [the verdict].” IJd.,
quoting Bruno, 308 U.S. at 294. The Kotteakos court
then asserted in dictum that, while the usual incidence
of the burden on the one challenging the verdict should
apply where an error had a “very slight effect,” Jd. at
764, an “exception” would lie “perhaps where the
departure is from a constitutional norm or a specific
command of Congress.” Id. at 764-65, quoting Bruno,
308 U.S. at 294.
Ultimately, this Court, in deciding S/inseki,
supra, moved further toward qualifying the traditional
assignment of the burden of proof under the harmless
error rule in two “important” ways. First, it declined
to “decide the lawfuiness of the use by the Veteran
18
Court of what it called the ‘natural effects’ of certain
kinds of notice errors,” id. at 1706-07, and held that
“courts may sometimes make empirically based
generalizations about what kinds of errors are likely,
as a factual matter, to prove harmful.” Jd. at 1707
citing Kotteakos, 328 U.S. 760-761. Second, this Court
“recognized” that Congress has expressed “special
solicitude” for certain causes, id., (in Shinseki, the
cause of veterans’ right to disability benefits).
Shinseki did not, however, clarify whether the
violation of a specific Congressional command in the
substantive provisions of a civil statute is the type of
error that may generally be regarded as having the
“natural effect” of prejudicing a litigant’s “substantial
rights,” as suggested in Kotteakos.
In this case, the Court of Appeals placed the
burden on Petitioners to establish prejudice from
FAA’s failure to comply with the specific, substantive
commands cf Congress which apply to all Federal
agencies - to analyze emissions with the goal of
achieving conformity within each nonattainment or
maintenance area included in the scope of the Project;
to comply with each applicable SIP, 42 U.S.C. §
7506(c)(1); or, in the alternative, to establish
exemption from the conformity requirement through
compliance with regulations promulgated by the EPA,
40 C.F.R. §§ 93.153(c)(1) and (b).
In misapprehending the import of FAA’s error,
the Court of Appeals disregarded this Court’s evolving
precedent with respect to proof of harm. Moreover, it
placed an unreasonable evidentiary burden on
Petitioners, analogous to the one this Court held
19
impermissible when placed upon the Veterans’
Administration in Shinseki, 129 S.Ct. at 1705. In that
case, the statutory framework utilized by the Veteran’s
Court required the court to find a notice error harmful
unless, among other things, “the VA ‘[Veterans’
Administration] demonstrates (1) that the claimant’s
‘actual knowledge’ cured the defect,” id.. The court
held that requiring the Secretary of the Veterans
Administration to ascertain a claimant’s “state of
mind,” id., would “often prove difficult, perhaps
impossible.” Jd. That burden is even more
unreasonable here where the evidence is entirely
within the control of FAA and there is a total absence
of data in the Administrative Record, the only evidence
admissible in a case brought under the APA from
which Petitioners might establish harm. 5 U.S.C. §
706(2)(E). The question of the incidence of the burden
of proving harm from violation of a substantive, rather
than procedural, statute begs for clear and final
determination by this Court.
The decision below raises critical practical as
well as legal issues. The Court of Appeals’ unfiltered
application of the traditional harmless error rule, even
to violations of unequivocal Congressional direction in
circumstances where compliance is a_ ciear
Congressional priority, see Environmental Defense
Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999), citing
Clean Air Conference Report, 136 Cong. Rec. 36,103,
36,105-06 (1990), threatens not only the substantial
rights of Petitioners to receive the benefits granted by
Congress, but also the fundamental integrity of
Congress’ legislative scheme, enacted with the clear
20
goal of “healthy and safe air for every American.” 101
Cong.Rec.S 16956 (Daily Ed. Oct. 27, 1990).
Moreover, the Court of Appeals’ rationale for its
decision, i.e., that another method of analyzing air
quality, an unauthorized Fuel Burn Report, was an
adequate surrogate for the procedures mandated by
Congress and EPA, has serious practical implications
for future compliance. This is true for FAA that is
even now embarked on planning for airspace redesign
projects similar to the one at issue here across the
United States, as well as for other Federal agencies
that may construe the Court of Appeals’ liberal
approach as a “free pass” to rewrite the rules for
compliance with Congress’ unequivocal mandate to
achieve conformity.
This Court’s review is, therefore, crucial to
resolving the issue of the incidence of burden of proof
of prejudice in the context of violation of a substantive
civil statute, thereby ensuring consistent direction
from Congress and the courts for compliance with the
Clean Air Act.
A. The Appellate Court Disregarded
This Court’s Evolving Precedent in
Finding That the Burden of Proving
Harm from FAA’s Violation of a
Substantive Provision of the Clean
Air Act Should Fall on Petitioners.
The Clean Air Act’s Conformity Provision
admonishes that “[nlo department, agency, or
instrumentality of the Federal Government shall
21
engage in, support in any way or provide financial
assistance for, license or permit, or approve, any
activity which does not conform to an implementation
plan after it has been approved or promulgated under
section 7410 of this title.”» 42 U.S.C. § 7506(c).
Because the Clean Air Act’s judicial review provisions
extend only to violation of a specific emissions
standard or limit, 42 U.S.C. § 7604, or a challenge to
an action by the EPA Administrator, 42 U.S.C. § 7607,
challenges to compliance by FAA are brought under
the Administrative Procedures Act, City of Olmsted
Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002). 49
U.S.C. § 46110 places original jurisdiction over
challenges to FAA actions in the Courts of Appeals.
The scope of review properly applied by the
Court of Appeals is found in 5 U.S.C. § 706(2). It
instructs a reviewing court to, inter alia,
hold unlawful and set aside agency
action, findings, and conclusions found to
be -- (A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law; (B) contrary to constitutional
right, power, privilege, or immunity; (C)
in excess of statutory jurisdiction,
authority, or limitations, or short of
statutory right.
;
Section 7410 establishes procedures for
implementation of “state implementation plans for national
primary and secondary ambient air quality standards.”
22
See also, Federal Communications Commission v. Fox
Television Stations, Inc., 129 S.Ct. 1800, 1823 (2009),
Justice Kennedy, concurring in part and concurring in
the judgment[“and, of course, the agency must not be
‘in excess of statutory jurisdiction, authority or
limitations, or short of statutory right.” § 706(2)(C)].
Section 706 further directs a reviewing court that, “[i]n
making the foregoing determinations, the court shall
review the whole record or those parts of it cited by a
party, and due account shall be taken of the rule of
prejudicial error.”
The APA does not specifically define either the
term “due account” or “prejudicial error.” This Court,
however, has weighed in on both. In Shinseki, supra,
129 S.Ct. at 1704, this Court held that “the APA’s
reference to ‘prejudicial error’ is intended ‘to su{m] up
in succinct fashion the ‘harmless error’ rule applied by
the courts in the review of lower court decisions as well
as of administrative bodies,” Id., quoting Department
of Justice, Attorney General’s Manual on
Administrative Procedures Act 110 (1947) [emphasis in
original]. This Court has further taken advantage of
a relevant analogy to the more descriptive “federal
‘harmless error’ statute, now codified at 28 U.S.C.
2111,” Shinseki, 129 S.Ct. at 1705, which “tells courts
to review cases for errors of law, ‘without regard to
errors’ that do not affect the parties ‘substantial
rights.” Id., quoting Kotteakos, supra, 328 U.S. at 760.
The Kotteakos court, referring to 28 U.S.C. §
2111's predecessor’s statute, “Section 269 of the
Judicial Code, as amended, 28 U.S.C. § 391, 28
23
U.S.C.A 391,” Id. at 756, relied on the legislative
intent enunciated in H.R. Rep. No. 913, 65" Congress,
3™ Session 1 in holding that the fundamental purpose
of § 269 was “to cast upon the party seeking a new
trial the burden of showing that any technical errors
he may complain of have affected his substantial
rights, otherwise they are to be disregarded.” Jd. at
760. “Whether the burden of establishing that the
error affected substantial rights, or, conversely, the
burden of sustaining the verdict shall be imposed,
turns on whether the error is ‘technical’ or is such that
‘its natural effect is to prejudice a litigant’s substantial
rights,” Jd.
The Kotteakos court went further, however, and
relied upon additional Congressional intent language
for the proposition that “if the error is of such a
character that its natural effect is to prejudice a
litigant’s substantial rights, the burden of sustaining
a verdict will, not withstanding this legislation, rest
upon the one who claims under it [the verdict] ,” Jd. at
761-62, citing, inter alia, Bruno, 308 U.S. at 294. This
Court’s subsequent decision in Shinseki referred to the
Kotteakos standard in opining that “[clourts may
sometimes make empirically based generalizations
about what kinds of errors are likely, as a factual
matter, to prove harmful,” Shinseki, 129 S.Ct. at 1707,
citing Kotteakos, 328 U.S. at 760-761.
While this Court specified certain “factors that
inform a reviewing court’s ‘harmless error’
24
determination,” Shinseki, 129 S.Ct. at 1707,‘ it also
held that it is the court of original jurisdiction (here
the Court of Appeals) “that sees sufficient, case-specific
raw material .. . to enable it to make empirically-
based, nonbinding generalizations about ‘natural
effects’. ..” Id.
Ultimately, the Kotteakos court both clarified
and qualified its holding:
If, when all is said and done, the
conviction is sure that the error did not
influence the jury, or had but a very
slight effect, the verdict and the
judgment should stand, except perhaps
:
oS Co ao NE NTT ‘tutional fi
mm n [citation omitted]
. . . The inquiry cannot be merely
whether there was enough to support the
result, apart from the phase affected by
the error. It is rather, even so, whether
the error itself had substantial influence.
If so, or if one is left in grave doubt, the
conviction cannot stand.
* These “case specific factors” include “an estimation
of the likelihood that the result would have been different, an
awareness of what body (jury, lower court, administrative agency)
has th: authority to reach that result, a consideration of the
error’s likely effects on the perceived fairness, integrity or public
reputation of judicial proceedings, and a hesitancy to generalize
too broadly about particular kinds of errors when the specific
factual circumstances in which the error arises may well make all
the difference.” Shinseki, 129 S.Ct. at 1707.
25
Id. at 765 [emphasis added].
The first unanswered question before this Court
is, therefore, whether the facial violation of the
substantive provision of a civil statute, by a Federal
agency, is that sort of error which has the “natural
effect” of prejudicing a litigant’s “substantial rights,”
and, thus, may “generally” be regarded as “likely to
prove harmful.”
i. Compliance with the Clean Air
Act’s Conformity Provision isa
Substantive, Not Merely
Technical, Statutory
Requirement.
This Court has long recognized that the
substantive provisions of a statute do not merely
require following a “necessary process” prescribed in
the statute, Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989), but rather the
achievement of “result-based standards,” Jd. at 353. In
Robertson, petitioners argued that the National
Environmental Policy Act, 42 U.S.C. § 4321, et seq.,
required that each Federal agency include in an EIS,
among other things, a fully developed plan to mitigate
environmental harm. The Ninth Circuit agreed, but
this Court reversed and remanded, holding that while
NEPA’s “action forcing” procedures “are almost certain
to affect the agency’s substantive decision, it is now
well settled that NEPA itself does not mandate
particular results, but simply prescribes the necessary
process.” Jd. at 350. In short, this Court found a
“fundamental distinction . . . between a requirement
26
that mitigation be discussed in sufficient detail to
ensure that environmental consequences have been
fairly evaluated, on the one hand, and a substantive
requirement that a complete mitigation plan be
actually formulated and adopted on the other.” Id. at
352.
This Court’s distinction in Robertson confirms
the Conformity Provision’s substantive nature. The
Court of Appeals in Environmental Defense Fund v.
EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (“EDF II”] has
described the Clean Air Act’s substantive mandate:
The Clean Air Act establishes a joint
state and federai program for regulating
the nation’s air quality. The Act
requires EPA to establish national
ambient air quality standards ((NAAQS’)
for various pollutants. See, 42 U.S.C. §
7409 (1994). It also requires each state
to adopt a State Implementation Plan
(known as a ‘SIP’) that ‘provides for
implementation, maintenance and
enforcement of [NAAQS] in each air
quality contro! region (or portion thereof)
within such State.’ Jd. § 7410(a)(1). SIPs
must include ‘enforceable emission
limitations and other control measures,
means or techniques . . ., as well as
schedules and timetables for compliance,
as may be necessary or appropriate’ to
meet the NAAQS. 7d. § 7410(a)(2)(A).
(Emphasis added.]
27
Environmental Defense Fund, 167 F.3d at 643. The
Conformity Provision further “requires each federal
agency to determine that a proposed activity in a
‘nonattainment’ or ‘maintenance’ area conforms to an
applicable SIP...” Environmental Defense Fund v.
EPA, 82 F.3d 451, 454 (D.C. Cir. 1996) (‘EDF I”]. And,
EPA’s regulaticns implementing the Conformity
Provision establish “tonnage thresholds of emissions
below which the conformity of a federal action is
presumed,” id. at 465, thus establishing a result-
based standard for determining exemption from the
conformity requirement for “de minimis” impacts.
The contrast between this Court’s analysis of
NEPA in Robertson and the analysis of the Court of
Appeals in the EDF cases, supra, clearly demonstrates
the Conformity Provision’s “result based,” substantive
nature, which requires compliance with the specific
“tonnage thresholds” in a SIP to establish conformity,
as well as compliance with the specific tonnage
thresholds in § 93.153(b) to establish exemption from
conformity.” Thus, far from constituting a mere
procedural template, the Conformity Provision
provides that “action be taken .. .,” Robertson, 490
U.S. at 347, and prescribe with reference to each
state’s air quality standards memorialized in its SIP,
“particular results” to be met. Jd. at 350.
§
Section 93.153(c) states in part: “The requirements
of this subpart shall not apply to the following Federal Actions: (1)
actions where the total of direct and indirect emissions are below
the emissions levels specified in paragraph (b) of this section.”
28
2. Compliamce is Also a
Substantial Right Accorded to
Petitioners Specifically and
the Public in General.
This Court has typically addressed the issue of
“substantial rights” in the context of criminal cases.
See, e.g., Puckett v. United States, 129S.Ct. 1423, 1429
(2009) [“[elrror must have affected the appellant’s
substantial rights, which in the ordinary case means
he must demonstrate that it ‘affected the outcome of
the district court proceedings.”] This Court’s analysis
of the circumstances giving rise to “substantial rights”
is not, however, limited to criminal cases. In Accardi
v. Pennsylvania Railroad Company, 383 U.S. 225
(1966), petitioners, World War II Veterans and former
employees of the Pennsylvania Railroad, brought an
action under the Selected Training and Service Act of
1940, on the ground that the railroad had denied them
seniority rights due to them under the Act. This Court
held that where an act of Congress “clearly manifests
a purpose and desire on the part of Congress .. .,” Id.
at 228, the party at whom that purpose is directed
possesses “substantial rights guarazteed by the Act.”
Id. at 229. This was so despite the fact that “(t]he
term ‘seniority’ is nowhere defined in the Act, but it
derives its content from private employment practices
and agreements.” Id.
In this case, as in Accardi, the Clean Air Act
clearly manifests a purpose and desire on the part of
Congress “to protect and enhance the quality of the
Nation’s air resources so as to promote the public
health and welfare...” 42 U.S.C. § 7401(b)(1). The
29
scope of the term “welfare” is explicitly and broadly
defined at 42 U.S.C. § 7602(h). ([“All language
referring to effects on welfare includes, but is not
limited to, effects on soils, water, crops, vegetation,
manmade materials, animals, wildlife, weather,
visibility, and climate, damage to and deterioration of
property, and hazards to transportation, as well as
effects on economic values and on personal comfort
and well-being, whether caused by transformation,
conversion, or combination with other air poliutants.”]
The specific Congressional purpose underlying
the Conformity Provision is no less explicit. The
Record of Congressional debate concerning the 1990
Clean Air Act amendments illustrates Congress’ view
of the substantiality of the rights conferred by the
Conformity Provision. “The experience of the last
thirteen years has shown that it is necessary to do
more than simply consider applicable control
measures; they must be implemented as well,” 101
Cong.Rec.S 16956 (Daily Ed. Oct. 27, 1990) in order to
achieve the Bill’s goals of “healthy and safe air for
every American,” Jd. But unlike Accardi, Congress, in
creating the Conformity Provision, did not simply rely
on the general term “Conformity.” Instead, it defined
“Conformity” specifically to mean:
Conformity to an implementation plan
means - (A) conformity to an
implementation plan’s purpose of
eliminating or reducing the severity and
number of violations of the national
ambient air quality standards and
achieving expeditious attainment of such
30
standards; and (B) that such activities
will not - (i) cause or contribute to any
new violation of any standard in any
area; (ii) increase the frequency or
severity of any existing violation of any
standard in any area; or (iii) delay timely
attainment of any standard or any
required interim emission reduction or
other milestones in any area.
42 U.S.C. § 7506(c)(1)(A) and (B) [emphasis added].
That Congress defined subparts (A) and (B) in the
conjunctive clearly indicates that conformity must be
achieved to both the purpose of a SIP and to at least
one of the explicit listed standards.
Finally, this Court has repeatedly invoked the
Kotteakos test to define the circumstances under which
prejudice to a party's “substantial rights” is implicated.
See, e.g., Shinseki, supra; O’Neal v. McAninch, 513
U.S. 482, 437 (1995). “But if one cannot say, with fair
assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error,
it is impossible to conclude that substantial rights
were not affected.” Kotteakos, supra, 328 U.S. at 765.
In United States v. Lane, 474 U.S. 438 (1986),
this Court, relying on Kotteakos, defined prejudice in
the context of a criminal case involving misjoinder of
offenses pursuant to Federal Rules of Criminal
Procedure 8b). It held that “an error involving
misjoinder ‘affects substantial rights’ and requires
reversal if the misjoinder results in actual prejudice
31
because it ‘had substantial and injurious effect or
influence in determining the jury’s verdict.” Jd. at 449
[emphasis added.] This Court has since held, citing 28
U.S.C. § 2111, the same statute relied upon in the
Kotteakos analysis, “[t]hat statute, by its terms,
applied to both civil and criminal cases and Kotteakos
made no distinction...” O’Neal v. McAninch, 513 U.S.
at 441.
FAA’s error in relying on an unauthorized
surrogate, the Fuel Burn Report, was determinative of
the outcome of FAA’s action in a manner contrary to
Congress’ specifically defined purpose, as well as
EPA’s implementing procedures. If the Court of
Appeals’ decision is allowed to stand, “[t]he statutory
prohibition on projects that cause delays in attaining
emissions standards would effectively be stripped of
almost any impact and be inconsistent with Congress’
intent that pollution production be prevented by
forward planning.” Environmental Defense, Inc. v.
Environmental Protection Agency, 509 F.3d 553, 561
(D.C. Cir. 2007).
3. The Court of Appeals
Therefore Erred in Placing the
Burden of Proving Harm on
Petitioners Where Violation by
a Federal Agency of a
Substantive Command of
Congress Is at Issue.
In its prior decisions, this Court addressed the
propriety of “empirically based, non-binding
generalizations” about whether the “natura! effects” of
32
an error, Shinseki, 129 S.Ct. at 1707, have had
“substantial and injurious effect or influence in
determining an outcome,” Lane, supra, 474 U.S. at
449. While this Court construed the Kotteakos
holding as confirming a “congressional preference for
determining ‘harmless error’ without the use of
presumptions, Shinseki, 129 S.Ct. at 1705, citing
Kotteakos, 328 U.S. at 760, those warnings are not
contravened by reliance on such “generalizations.”
Through such _ reliance “a court might “properly
influence, though not control, future determinations,”
Shinseki, 129 S.Ct. at 1707, in that the
“generalizations” would still require a predicate
evaluation of the statutory provisions’ substantive,
rather than purely technical, nature, as well as the
substantiality of the rights conferred, and the
influence of the error on the outcome of the case.
The principal import of applying such “non-
binding, case specific generalizations” is on the
incidence of the burden of harm. While this Court has
opined “[t]o say that the claimant has the ‘burden’ of
showing that an error was harmful is not to impose a
complex system of ‘burden shifting’ rules or a
particularly onerous requirement,” Shinseki, 129 S.Ct.
at 1706, the Court was referring to “ordinary civil
appeals.” Jd. A challenge to an administrative
agency's violation of a substantive legislative command
is not an “ordinary civil appeal” for several reasons.
First, the Court of Appeals in this case was the
court of original jurisdiction. 49 U.S.C. § 46110(a).
Petitioners have no recourse for appellate vindication
other than that which resides in this Court. Second,
33
like other cases involving challenges to administrative
actions, but very unlike an “ordinary civil appeal,” this
case was tried entirely on the Administrative Record
created by, and completely within the control of, FAA.
Petitioners had no access to evidence of air quality
analysis other than that adduced by FAA in the
Administrative Record before the Court of Appeals.
Typically, any attempt by Petitioners to introduce
contradictory evidence would have been foreclosed by
the substantial deference afforded a government
agency in the area of its expertise (in the case of the
FAA, aircraft operations which include the amount of
“fuel burn”), Washington Gas Light Co. v. F.E.R.C.,
523 F.3d 928, 930 (D.C. Cir. 2008) [when considering
an agency’s evaluation of data within its technical
expertise, courts afford the agency “an extreme degree
of deference.”], and by the limitations on introduction
of evidence from outside the administrative record
created by the agency. See, e.g., Esch v. Yeutter, 876
F.2d 976, 991 (D.C. Cir. 1989) [when substantive
soundness of agency decision is under scrutiny, judicial
review of agency actions is normally confined to the
administrative record .. .”}.
For those reasons, the circumstances of this case
are closely akin to those addressed by this Court in
O’Neal, supra. In O’Neal, this Court held that “[w]hen
an errors natural effect is to prejudice substantial
rights and the court is in grave doubt about the
harmlessness of that error, the error must be treated
as if it had a ‘substantial and injurious effect’ on the
verdict.” Id. at 444, citing Kotteakos, 328 U.S. at 764-
34
765.° O’Neal, like this case, did not involve “a judge
who shifts a ‘burden’ to help control the presentation
of evidence at a trial,” Jd. at 436, but one who, like the
Court of Appeals here, “applies a legal standard
(harmlessness) to a record that the presentation of
evidence is no longer likely to affect.” Id.
This Court pointed out that “the original
common-law harmless-error rule put the burden on the
beneficiary of the error [here the State] . . . to prove
that there was no injury...” Id. at 437, citing
Chapman v. California, 386 U.S. 18, 24 (1967). It then
proceeded to distinguish its holding to the contrary in
Palmer v. Hoffman, 318 U.S. 109, 116 (1943) (“He who
seeks to have a judgment set aside because of an
erroneous ruling carries the burden of showing that
prejudice resulted.”] as “pre-Kotteakos,” and confirmed
that Palmer, like Kotteakos, referred to “mere technical
errors” for its contrary holding. O’Neal, 513 U.S. at
439.
After having analyzed the equivalence of
criminal and civil cases in this regard, id. at 440, this
Court ultimately held that “[W]Jhen reviewing errors
from acriminal proceeding, this Court has consistently
held that, if the harmlessness of the error is in grave
doubt, relief must be granted.” Jd. Acknowledging
the identity of the harmless error standards in civil
and criminal cases, this Court stated conclusively,
“(C]ivil and criminal harmless-error standards do not
6
Like the case at issue here, O’Neal was a “civil
case” because habeas corpus petitions are technically “civil”
actions. /d. at 440.
35
differ in their treatment of grave doubt as to the
harmlessness of errors affecting substantial rights.”
Id. at 441.
In summary, this case and O’Neal share salient
characteristics. Both deal with the government’s
violation of a substantive civil statute. Both are cases
in which the harmless error standard was applied to a
“closed record.” Most important, however, both deal
with a situation where grave doubt exists as to the
true harmlessness of a governmental error. Not a
shred of data or analysis exists in the Record provided
by the FAA relating to emissions, let alone their
impacts. The Fuel Burn Report relied upon by the
Court of Appeals concluded that reduced fuel burn was
equivalent to reduced emissions on average across the
entire northeast region, without taking into account
either the requirements of each state’s SIP, or that at
least two airports located within the jurisdiction of the
New Jersey SIP would experience an increase in fuel
burn as a result of the Project. Nor, as acknowledged
by the Court of Appeals, did the Fuel Burn Report
contain a direct calculation of emissions [App. infra,
10a]; a comparison of emissions to the thresholds
permitted for conformity in the applicable SIPs, as
required by 42 U.S.C. § 7506(c)(1); or any analysis
pursuant to EPA Conformity Rule §§ 93.153(c)(1) and
(b) which are required for the establishment of an
exemption from the conformity requirement.
Therefore, under this Court’s decision in O’Neal,
the total absence of evidence in the Record made the
Court of Appeals conclusive determination of the
harmlessness of FAA’s error impossible. As “the
36
burden of proving a fact is said to be put on the party
who presumably has peculiar means of knowledge,”
United States v. Fior D'Italia, Inc., 536 U.S. 238, 257,
n.4 (2002), under this Court’s established
jurisprudence, “the uncertain judge should treat the
error, not as if it were harmless, but as if it affected
the verdict (i.e. , as ifit had a ‘substantial and injurious
effect or influence in determining the jury’s verdict’),”
O’Neal, 513 U.S. at 435. As the party with
“knowledge” in actions brought under the APA is the
Federal agency, the burden should fall on Federal
agencies generally, and FAA in this case specifically,
to prove that the substantial rights conferred by a
statute’s substantive provisions have not been so
undermined as to contravene the stated intent and
specific result-based mandates of Congress.
B. The Issues Raised by This Case Merit
This Court’s Review Because
Congress Showed Special
“Solicitude” For Enforcement of the
Clean Air Act and its Legislative
Scheme.
This case gives rise to important practical as
well as legal justification for this Court’s grant of
certiorari. First, in Shinseki, supra, this Court not
only qualified its “normal” standard for the incidence
of the burden of proof to acknowledge the possibility of
“empirically based generalizations about what kinds of
37
errors are likely, as a factual matter, to prove
harmful,” id. at 1707, but also acknowledged “that
Congress has expressed special solicitude” for certain
“cause[s].” Jd. Congress has expressed just such
“solicitude” for enforcement of the Clean Air Act.
In the Clean Air Act, Congress expressed its
deep concern that
the growth in the amount and complexity
of air pollution brought about by
urbanization, industrial development,
and the increasing use of motor vehicles,
has resulted in mounting danger to the
public health and welfare, including
injury to agricultural crops and livestock,
damage to and the deterioration of
property, and hazards to air and ground
transportation.
Id. at 7401(a)(2). It established as the primary goal of
the Act “to encourage or otherwise promote reasonable
Federal, State, and local governmental actions,
consistent with the provisions of this chapter, for
pollution prevention.” 42 U.S.C. § 7401(c). Congress
then articulated the fundamental intent of the
Conformity Provision to give life to this goal by giving
“clear legislative direction to incorporate air quality
criteria into the review and approval of transportation
plans as well as projects,” 101 Cong.Rec.S 16956
(Daily Ed. Oct. 27, 1990), and in doing so, “protect and
38
enhance the quality of the Nation’s air resources so as
to promote the public health and welfare and the
productive capacity of its population;” 42 U.S.C. §
7401(b)(1).
Thus, the face of the Clean Air Act, as well as
the stated intent of Congress behind it, demonstrates
Congress’ deep concern, not merely for the plight of the
individual, as in Shinseki, supra, but the impact of
emissions on the public and the environment. The
Court of Appeals’ decision in this case strikes at the
heart of both the Congressional purpose behind
conformity and its goal, in that it excused not merely
FAA, but by extension, all Federal agencies from strict
compliance with the legislative standards
unequivocally mandated by the Conformity Provision.
The import of the Court of Appeals’ decision is that
any report or summary purporting to support a
conformity analysis will withstand judicial scrutiny,
whether or not it analyzes and documents a project’s
compliance with an applicable SIP; and whether or not
it follows the step-by-step procedures required to
establish an exemption from the conformity
requirement for a project with e minimis impacts, see,
40 C.F.R. 93.153(c)(1) and (b). The Court of Appeals
thus opens the door to a wholesale abrogation of the
conformity requirement, at a time when the issue of
emissions impacts has become even more prominent
(and more threatening) as a principal contributor to
the problem of climate change.
39
Nor is this scenario as far fetched as it may
sound. FAA is intending to implement airspace
redesigns similar to the Project throughout the nation.
As 49 U.S.C. § 46110 places original jurisdiction over
a challenge to an FAA action in the Courts of Appeals,
this issue is likely to arise repeatedly, and, if the Court
of Appeals’ resolution in this case is used by other
agencies as a template, with equal indifference to the
facial mandates of the Clean Air Act.
In short, the Court of Appeals in this case
effectively nullified the specific, affirmatively
expressed intent of Congress with respect to
conformity. But this Court has already spoken
unequivocally in defense of the Congressional
prerogative. Where, as here,
“Congress has spoken with great clarity
to the precise question raised by this
case[,] [i]t is the duty of the courts to
enforce the judgment of the legislature,
however much we might question its
wisdom or fairness. Often we have urged
the Congress to speak with greater
clarity, and in this statute it has done so.
If the effects of the law are to be
alleviated, that is within the province of
the legislature.”
Estate of Floyd Cowart v. Nicklos Drilling Company,
505 U.S. 469, 483-84 (1992). Absent relief from this
Court, Petitioners’ only avenue of recourse, the door
will have been opened for future agency decisions
pitting the Executive and Judicial Branches against
40
the will of the Congress in addressing one of the most
critical environmental issues of our time.
Respectfully submitted,
Barbara E. Lichman, Ph.D.
Counsel of Record
Berne C. Hart
Steven M. Taber
CHEVALIER, ALLEN & LICHMAN, LLP
695 Town Center Drive
Suite 700
Costa Mesa, CA 92626
(714)384-6520
Counsel for Petitioners County of
Delaware, Pennsylvania; The Honorable
Andrew J. Reilly; The Honorable Linda
A. Cartisano; The Honorable Mary Alice
Brennan; The Honorable Michael V.
Puppio; The Honorable John J. Whelan;
Friends of the Heinz Wildlife Refuge at
Tinicum, Inc.; Hank Hox, the Honorable
Ron Raymond; The Honorable Elric C.
Gerner; The Honorable Geoff Semenuk;
The Honorable Henry A. Eberle, Jr-.;
Robert J. Willert; Thomas J.
Giancristoforo, Jr.; Michael Smith; Frank
Samsel; John F. Gresch
APPENDIX
la
APPENDIX A
No. 07-1363
United States Court of Appeals,
District of Columbia Circuit.
COUNTY OF ROCKLAND, NEW YORK, et al.,
Petitioner
Vs
FEDERAL AVIATION ADMINISTRATION,
Respondent.
Nos. 07-1363, 07-1437, 07-1493, 07-1494, 07-1495,
07-1496, 07-1487, 07-1498, 07-1499, 08-1105,
08-1106, 08-1107.
June 10, 2009.
Rehearing En Banc Denied Aug. 19, 2009.
On Petitions for Review of an Order of the Federal
Aviation Administration.
Before SENTELLE, Chief Judge, GINSBURG, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
2a
JUDGMENT
*1 These petitions for review were considered on the
record from the Federal Aviation Administration and
on the briefs arid arguments of the parties. It is
ORDERED AND ADJUDGED that the petitions for
review be dismissed insofar as the petitioners forfeited
some of their challenges and otherwise denied for the
reasons given in the attached memorandum opinion.
Pursuant to D.C. Circuit Rule 36, this disposition will
not be published. The Clerk is directed to withhold
issuance of the mandate herein until seven days after
resolution of any timely petition for rehearing or
petition for rehearing en banc. See Fed. R.App. P.
41(b); D.C.Cir, Rule 41.
MEMORANDUM OPINION
In a corrected Record of Decision (ROD) issued
September 28, 2007 the Federal Aviation
Administration adopted a multi-phase plan to
modernize the New York/New Jersey/Philadelphia
Metropolitan Area airspace. ‘he redesign shifts flight
paths, reallocates management of particular sectors of
airspace amongst air traffic control facilities, and
adopts new flight procedures. The changes will, the
FAA determined, reduce delay and _ increase
3a
operational efficiency, without imposing significant
noise effects upon, or increasing air pollution in, the
states below the NY/NJ/PHL airspace. The petitioners
object to the FAA's analysis of environmental impacts
as procedurally invalid and _ substantively
unreasonable, in violation of the National
Environmental Policy Act (NEPA), the Department of
Transportation Act (DOT Act), and the Clean Air Act
(CAA). We dismiss the petitions for review insofar as
the petitioners forfeited some of their challenges and
deny the rest of the petitions because the FAA's
environmental impact analysis was procedurally sound
and substantively reasonable.
I. NEPA
NEPA directs a federal agency to “include in every ...
report on proposals for ... major Federal actions
significantly affecting the quality of the human
environment, a detailed statement ... on ... the
environmental impact of the proposed action,” 42
U.S.C. § 4332(2)(C)(i), known as an environmental
impact statement (EIS). We review the FAA's
compliance with NEPA for the most part under the
arbitrary and capricious standard of the
Administrative Procedure Act, asking whether the
agency provided “the necessary process” and took a “
‘hard look’ at environmental consequences.” Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 350,
109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); see Nevada v.
Dep't of Energy, 457 F.3d 78, 93 (D.C.Cir.2006). We
address only a few of the petitioners’ many objections
4a
to the EIS. None of the petitioners’ objections amounts
to a significant procedural deficiency and none
indicates that the FAA failed to take a “hard look” at
the environmental impacts of its action. See Cmtys.
Against Runway Expansion v. FAA, 355 F.3d 678, 685
(D.C.Cir.2004).
The petitioners first attack the FAA's forecast of future
traffic. The agency's forecast is entitled to “even more
deference” than this court gives “under the highly
deferential arbitrary and capricious standard.” St.
John's Uni rch hrist v. FAA, 550 F.3d 1168
1172 (D.C.Cir.2008). The petitioners argue the FAA
failed to consider reasonably foreseeable indirect
effects of the redesign, as required by 42 U.S.C. §
4332(2)(C\ii) and 40 C.F.R. § 1508.8(b), because the
agency refused to adjust its forecast for the
growth-inducing effect of reductions in flight delay. In
the FAA's experience, however, airspace redesign,
which increases throughput but not airport capacity,
does not induce significant enough additional demand
to warrant modeling. We have deferred to similar
reasoning before, and we do so again here. See City of
Olmstead Falls _v. FAA, 292 F.3d 261, 272
(D.C.Cir.2002). The petitioners insist the FAA's
reliance upon its experience ran counter to the
evidence before it, but they point to statements of the
agency that show nothing more than the possibility of
another reasonable view; that is not enough to
discharge their burden to show the FAA was arbitrary,
see City of Los Angeles v. FAA, 138 F.3d 806, 808 (9th
Cir.1998).
5a
*2 Next, the petitioners change course, contending
that once the FAA recognized it had overestimated
future traffic, particularly at Newark International
Airport, it should have adjusted the baseline for its
environmental analysis. The FAA, however, took the
requisite hard look by “creating its models with the
best information available when it began its analysis
and then checking the assumptions of those models as
new information became available.” Village of
Bensenville v. FAA, 457 F.3d 52, 71 (D.C.Cir.2006).
Although the agency found a 14% gap between its
forecast of 2006 traffic on the average annual day at
Newark and actual traffic there on the average day in
2005, it also found the overall forecast was well within
the 10% margin of acceptable error the agency employs
when deciding whether a forecast is useful for decision
makiny. The FAA concluded the forecast, although not
perfect, still “capture[d) the general flow and
magnitude of the traffic in a way that can show
differences among the proposed alternatives.”
The petitioners’ chief complaint is that the FAA's
explanation is unreasonable because whether the
redesign will reduce delay turns upon the forecast at
Newark. As the FAA explains, however, although
Newark will experience the greatest reduction in
“block time”-which the petitioners erroneously treat as
a reduction in delay-all the major airports in the
region will experience reductions in delay. The
petitioners’ focus upon one data point for Newark is
therefore based upon their having misunderstood the
record before the agency. Given the substantial
deference we owe the agency, see St. John's, 550 F.3d
6a
at 1172, we cannot say its reassessment of the forecast
was arbitrary and capricious.
In their final challenge to the FAA's traffic forecast,
the petitioners argue the FAA should have forecast the
impact of future traffic in 2012 and in 2017 because
the agency “usually” forecasts such impacts for the
“vear of anticipated project implementation and [for]
5 to 10 years after implementation.” FAA Order
1050.1E, Environmental Impacts: Policies and
Procedures app.A § 14.4g(2) (Mar. 20, 2006). The FAA,
however, need only select an “appropriate” timeframe
for a forecast, id., and the petitioners have not given
us a reason to think the FAA, when it began the
analysis in 2001, selected an inappropriate timeframe;
nor have they shown that, once the FAA pushed back
the date of implementation, it was arbitrary not to
restart the analysis. The probability that air traffic
will increase after 2011 does not show the FAA's
decision to adopt the redesign with environmental
mitigation measures was based upon an insufficient
appreciation of the impact of the project.
The petitioners next complain the FAA should have
produced a supplemental draft EIS (DEIS) because,
they assert, the agency substantially changed the
project at the eleventh hour when, after having issued
the DEIS, it designed a noise mitigation measure
routing flights over part of the Rockefeller State Park
Preserve in New York. See 40 C.F.R. § 1502.9(c)
(requiring supplemental DEIS whenever agency
“makes substantial changes in the proposed action
7a
that are relevant to environmental concerns”). As the
FAA explains, however, it essentially readopted the
pre-redesign flight path over the park, the noise
impact of which had already been the subject of public
comment when the agency assessed the no-action
alternative. We defer to that reasonable explanation
why no supplemental analysis was necessary. See
Marsh_v. Or. Natural Res. Council, 490 U.S. 360,
374-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
*3 One more NEPA challenge deserves mention: The
petitioners argue the FAA failed to honor a
commitment it made in the final EIS (FEIS) to
institute a compliance monitoring program as part of
its noise mitigation plan. In responding to a comment
upon the Noise Mitigation Report, the FAA briefly
stated the agency would adopt a compliance
monitoring plan in the ROD. The FAA, however, never
developed a detailed monitoring program as part of the
FEIS, or specified one in its ROD, and the agency's
stray comment was not a binding commitment to adopt
such a program. Absent a firm commitment to such
monitoring, neither NEPA nor the agency's regulations
require it. See 40 C.F.R. § 1505.3 (“Mitigation ... and
other conditions established in the [EIS] or during its
review and committed as part of the decision shall be
implemented”); Order 1050.1E § 512b (“Any mitigation
measure that was made a condition of the approval of
the FEIS must be included in the ROD”); cf. Robertson,
490 U.S. at 352 (NEPA does not impose “substantive
requirement that a complete mitigation plan be
actually formulated and adopted” before agency can
act).
8a
II. DOT Act
Section 4(f) of the DOT Act prohibits the Secretary of
Transportation from adopting a “project ... requiring
the use ... of a public park ... or land of an historic site”
unless “there is no prudent and feasible alternative to
using that land” and the Secretary has done “all
possible planning to minimize harm to the park ... or
historic site.” 49 U.S.C. § 303(c). The prohibition of the
Act extends to constructive use, including “noise that
is inconsistent with a parcel of land's continuing to
serve its recreational, refuge, or historical purpose.”
City of Grapevine _v. DOT, 17 F.3d 1502, 1507
(D.C.Cir.1994). The FAA applied the guidelines
contained in 14 C.F.R. pt. 150 and, as required by
Order 1050.1E app.A § 6.2i, considered “ [aJdditional
factors” beyond the guidelines when assessing “the
significance of noise impacts on noise sensitive areas.”
Based upon that analysis, the FAA concluded the
redesign would not result in the constructive use of
any § 4(f) property.
The petitioners argue the FAA's process of screening
for potentially affected § 4(f) properties was
procedurally defective and substantively inadequate
because the agency did not consult all state and local
park officials and did not give individualized attention
to at least 236 properties the petitioners say may be
affected. We dismiss this challenge as forfeit because
9a
no one raised it during the administrative proceeding.
See Olmstead Falls, 292 F.3d at 274.
With respect to properties that were the subjects of
public comments, the petitioners argue the FAA
violated § 4(f) and Order 1050.1E (1) by failing to
conduct individualized analyses of certain properties
they say are noise-sensitive and (2) by improperly
analyzing noise impacts at another property. Because,
however, the petitioners have failed to impugn the
agency's screening methodology or to offer “a serious
argument” that the FAA failed adequately to consider
any property that may suffer a constructive use, we
defer to the agency, see Town o ri
325 F.3d 320, 333 (D.C.Cir.2003).
*4 The petitioners also argue the FAA violated § 4(f)
and 40 C.F.R. § 1506.6 by delaying additional noise
impact analyses for several parks, which analyses
were then summarized in, and appended to, the ROD
without an opportunity for further public comment.
Section 4(f) does not require such an additional
process, however, and 40 C.F.R. § 1506.6(a) merely
directs the agency generally to “[m]ake diligent efforts
to involve the public in preparing and implementing
[its] NEPA procedures.” As indicated by the FAA's
extensive public outreach effort and its thorough
process of environmental review, the agency complied
with the regulation. The petitioners cite Am. Bird
Conservancy, Inc. v. FCC, 516 F.3d 1027, 1035
(D.C.Cir.2008), but that case is inapposite because in
appending additional analyses to the ROD the FAA did
10a
not “evade” implementation of any FAA regulation
requiring additional notice or public comment.
II. Clean Air Act
The CAA requires a federal agency to determine
whether a proposed federal project will conform to an
applicable state implementation plan (SIP) adopted to
achieve the Environmental Protection Agency's
national ambient air quality standards (NAAQS). 42
U.S.C. § 7506(c). Pursuant to § 7506(c)(4)(A), the EPA
has promulgated a General Conformity Rule that
relieves a federal agency of the obligation to conduct a
full-scale conformity determination if the project is not
“regionally significant,” 40 C.F.R. § 93.153(i)-(), and if
the project either will result in at most de minimis
emissions of criteria pollutants, id. § 93.153(b)-(c), or
comes within one of the categories in the agency's list
of actions that are presumed to conform to any SIP, id.
§ 93.153(f)-(h). Because we hold the FAA reasonably
concluded the redesign is exempt from a conformity
determination under the de minimis exemption, we
need not and do not reach the petitioners’ chailenge to
the agency's having relied, in the alternative, upon its
presumed- to-conform list, see Federal Presumed to
Action nder neral C ity, 72
Fed. Reg. 41,565, 41,578 (2007).
In applying the de minimis exemption the FAA did not
directly calculate the level of emissions resulting from
the project, but rather relied upon a fuel burn analysis
lla
that showed the redesign will “reduce fuel
consumption by just over 194 metric tons per day” in
the study area. Because reducing fuel consumption
reduces aircraft emissions, the FAA concluded the
redesign will reduce emissions in the study area. As
the agency sensibly reasoned, a project that decreases
emissions cannot cause a more than de minimis (if it
could cause any) increase in emissions or be otherwise
regionally significant; therefore, it did not conduct a
conformity determination.
The petitioners’ main contention is_ that,
notwithstanding the result of the fuel burn analysis,
the FAA had to calculate “the total of direct and
indirect emissions” resulting from the project, 40
C.F.R. § 93.153(c)(1), and compare that total to
thresholds identified by the EPA, id. § 93.153(b); see
also Order 1050.1E app.A § 2.1c. According to the
petitioners, the fuel burn analysis cannot show the
redesign will reduce emissions because it does not
account for the possibilities that the redesign will
increase (a) emissions from airport ground equipment
and (b) emissions of some pollutants due to changes in
aircraft speed. Therefore, the petitioners argue, only
by preparing an inventory of emissions could the FAA
determine that emissions will not be significantly
increased by the redesign.
*5 Assuming the agency erred when it failed to
inventory emissions, the petitioners still have failed to
identify any way in which the error was or might have
been harmful. See 5 U.S.C. § 706 (“due account shall
12a
be taken of the rule of prejudicial error” when court
reviews agency action). As the FAA explains, by
reducing idling and taxiing, and thus reducing the
time aircraft run their engines at or near ground level,
the redesign will reduce the emissions most likely to
have an effect upon local air quality. The agency did
not need to quantify the reduction in order to conclude
the redesign was exempt from a _ conformity
determination. We therefore deny the petitions for
review with respect to the petitioners’ core challenge
to the fuel burn analysis. See Olmstead Falls, 292 F.3d
at 271 (even if FAA erred, “the burden is on petitioners
to demonstrate that [the FAA's] ultimate conclusions
are unreasonable”).'
We have considered and found no merit in the
petitioners’ other arguments. Based upon the foregoing
opinion, the petitions for review are dismissed in part
and denied in part. The pending motions for judicial
notice and for supplementation of the administrative
record are dismissed as moot.
So ordered.
' The petitioners also argue the fuel burn analysis
failed to show the redesign will reduce emissions in all relevant
nonattainment and maintenance areas, see 40 C.F.R. §
93.153(b), but that argument is not properly before us because
the petitioners failed to raise it until their reply brief, see Sitka
Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181
(D.C.Cir.2000).
13a
APPENDIX B
Record of Decision
New York/New Jersey/Philadelphia
Metropolitan Area Airspace Redesign
[Federal Aviation Administration logo omitted]
September 5, 2007 (Issue Date)
September 28, 2007 (Corrected Version Date)
U.S. Department of Transportation
Federal Aviation Administration
l4a
li]
This is a copy of the corrected Record of Decision
(ROD) for the New York/New Jersey/Philadelphia
(NY/NJ/PHL) Metropolitan Area Airspace Redesign.
Please take notice that this is a corrected ROD and all
references should be made to this document. On
September 5, 2007, the FAA signed and issued its
ROD for the NY/NJ/PHL Airspace Redesign project.
After signing the ROD, the FAA identified several
items in the document that were omitted or incorrect
due to editing mistakes. As a result, on September 18,
2007, the FAA posted an Errata Sheet on its website.
For clarity and ease in reference, the FAA
subsequently incorporated all the corrections from the
errata sheet into this corrected ROD. No changes were
made to the corrected version of the ROD other than
what was identified in the Errata dated September 14,
2007. Please note, however, that page 56 of the
corrected ROD states that there are "six" states within
the Study Area. There are five states in the Study
Area. If you would like to see a copy of the signed
ROD as posted on September 5, 2007 or the Errata
Sheet, both documents are available on the FAA’s
Airspace Redesign website, www.faa.gov/nynjphl_
airspace_redesign
15a
[ia]
ERRATA
The following errors were identified in the Final
Environmental Impact Statement (FEIS) following
printing and distribution of the document.
2. FEIS ES-1, footnote 1 provides an incorrect
reference to NEPA. The correct cite is 42 U.S.C. §4321
et. seq.
2. FEIS 2-1 teferences the relevant CEQ
regulation as 40 CFR 1502.1(c). The text should be
revised to reference 40 CFR 1502.14(c).
3. FEIS 3-1, footnote 1 references June 8, 2004
version of FAA Order 1050.1E. Correct reference is
FAA Order 1050.1E Change 1 (March 20, 2006).
4, FEIS at 5-136 incorrectly references the
cumulative impact discussion as Section 4.17 of the
FEIS. The cumulative impact discussion is set forth in
the FEIS at Section 4.18.
5. FEIS Chapter 7 (List of Acronyms,
Abbreviations and Glossary of Terms in this EIS)
inadvertently omits “ADD Average Annual Day” and
“ADT Airspace Design Tool.” These abbreviations and
their meanings should be added into the list.
16a
[111]
Table of Contents Omitted
liv-v]
Table of Appendices Omitted
(1)
I. Introduction
This Record of Decision (ROD) represents the
culmination of over nine years of study and evaluation
by the FAA to address congestion and delays at some
of our nation’s busiest airports. This document sets
forth the agency’s final decision to approve the project
to redesign the airspace in the New York/New
Jersey/Philadelphia (NY/NJ/PHL) Metropolitan Area.
This Airspace Redesign Project is critical to enhance
the efficiency and reliability of the airspace structure
and the Air Traffic Control (ATC) system for pilots,
airlines, and the traveling public. It is needed to
accommodate growth while enhancing safety and
reducing delays in the NY/NJ/PHL Metropolitan Area.
Most importantly, the Airspace Redesign Project
modernizes the structure of the NY NJ PHL air traffic
environment in an environmentally responsible
manner, and lays a foundation for achieving the Next
Generation Air Transportation System in 2025. By
2011 this project is predicted to reduce the number of
people exposed to noise above 45 dB DNL noise levels
by 619,023 people, reduce fuel burn and emissions by
the airlines, and reduce delays by 20%.
17a
This ROD is based upon an Environmental Impact
Statement (EIS) prepared in accordance with the
National Environmental Policy Act (NEPA) of 1969, as
implemented by Council on Environmental Quality
(CEQ) regulations, 40 C.F.R. 1500 et seq., and FAA
Order 1050.1E Change 1, Policies and Procedures for
Considering Environmental Impacts. In _ this
document, the FAA discusses the reasons it decided to
undertake the Airspace Redesign project, the
alternatives it considered in accomplishing its
objectives, and the environmental impacts including
mitigation of the alternatives it considered. This ROD
includes additional information about steps taken to
assure compliance with Department of Transportation
Section 4(f), Section 106 of the National Historic
Preservation Act, and Section 7 of the Endangered
Species Act. Finally, the ROD contains a discussion of
the selected project and the reasons for its selection.
After a careful consideration of all the available
information, the FAA has decided to select the
mitigated Preferred Alternative, known as the
Integrated Airspace Alternative with Integrated
Control Complex (ICC). The selected project
consolidates many sectors of airspace under one Air
Route Traffic Control Center (Center) and represents
an innovative approach to airspace design in the
NY/NJ/PHL area. The ICC uses of the 3 nautical mile
separation criteria for flights in terminal airspace
rather than the standard 5 mile criteria for en route
airspace over a larger geographic area and up to
23,000 fect above mean sea level in some areas. The
airspace will incorporate the sectors of airspace
currently handled by the NY Terminal Radar
18a
Approach Control facility (TRACON) and the NY
Center as well as some handled by the Washington
and Boston Centers.
In addition to reconfiguring the airspace to implement
the selected project the FAA will take several other
direct actions to take advantage of improved aircraft
performance and emerging air traffic control (ATC)
technology. As part of the selected project the FAA will
design new and modified ATC procedures, modify
multiple departure gates and add arrival posts, and
departure headings. Mitigation measures include use
of fewer dispersal headings at times of lower volume,
use of continuous descent approaches, and raising
arrival altitudes.
[2]
The selected project will require installation of
additional equipment in FAA facilities to provide a
common automation platform and communications
network. However, it does not require any external
physical changes to existing facilities, construction of
new facilities, or local or state actions. Although the
nomenclature “Integrated Airspace Alternative with
Integrated Control Complex (ICC)” might suggest
otherwise, the shared platform needed for the ICC can
be established within existing facilities. The proposed
replacement of the NY 'TRACON building would
facilitate implementation of the ICC, however the
TRACON replacement project has independent utility.
Approval of the Airspace Redesign project does not
depend upon replacement of the TRACON. Therefore,
the selected project requires no physical alteration to
19a
any environmental resource or permits/licenses.
Additionally, the Airspace Redesign does not require
changes to any Airport Layout Plan.
II. Background
We know from experience and from economic studies
how vital Newark Liberty, La Guardia, Kennedy and
Philadelphia Airports are to the region. Domestic air
carriers have built thriving international hubs at three
of these airports, connecting their international
services to a network of domestic routes that allows
service to even more international locations. Foreign
air carriers provide non-stop service to destinations as
close as Toronto, and as far away as Singapore.
Activity by low-cost carriers continues to grow at these
airports, and the traveling public in the area continue
to have an unparalleled choice of non-stop service to
cities around the world. As this aviation growth so
essential to the region was happening, we made the
airplanes quieter, and minimized their impact upon
people living below, but we did not make more efficient
use of the sky above. It is the FAA’s judgment that the
continued health of the aviation industry is dependent
upon the modernization actions contained in the
preferred alternative as mitigated, that will bring 21st
century efficiencies to this vital component of the
region’s economy.
It is often said that the airspace in the New York/New
Jersey/Philadelphia area is some of the most complex
anywhere in the world. Throughout the EIS and in
other parts of the administrative record, there are
many charts and diagrams using the latest graphic
20a
technology to depict flight paths, arrival fixes,
departure gates and the whole panoply of air traffic
concerns in the region. Even these visual images,
though more effective than words, fail to depict fully
the complexity and interdependences that these
different procedures have on each other. One way to
grasp the complexity of the problem and the delicacy
of the limited options 2vailable as potential solutions
is to observe, on a delayed but real time basis, the
radar tracks of aircraft landing and departing at
Newark Liberty, La Guardia, Kennedy, and
Philadelphia, over the internet. For the New York/New
Jersey area, the best platform is
www4.passur.com/lga.html set to a 40 mile range, and
for Philadelphia, the helpful website is
www4.passur.com/phli.html. Observers can see, for
example, how only a few miles separates the streams
of arrivals at Newark and La Guardia, how
southbound La Guardia departures are “climbed over”
Newark Arrivals, and how the approach path to La
Guardia can depend in part on runway use at
Kennedy. Throughout all of this, the FAA’s primary
goal is one of safety, which is why there are so many
delays using today’s air navigation system in this
airspace.
[3]
The basic air traffic environment for the New
York/New Jersey/Philadelphia (NY/NJ/PHL)
Metropolitan Area airspace was designed and
implemented in the 1960s. While FAA made some
adjustments to that airspace in the mid-1980’s, as part
of the Expanded East Coast Plan, the basic structure
2la
of the NY/NJ/PHL airspace has remained largely the
same since the 1960s. In contrast, the use of the
airspace and the Air Traffic Control system has
changed significantly. The volume of air traffic has
increased significantly since the 1960s, as has the use
of smaller and regional jet aircraft in the ATC system.
Additionally, the NY/NJ/PHL airspace has seen radical
growth at airports that once had lower volume, such as
Newark Liberty International Airport. The basic
structure of the NY/NJ/PHL airspace, however, has
essentially remained the same and has not been
adequately modified to address changes in the aviation
industry, including increasing traffic levels and use of
new types of aircraft. Therefore, the NY/NJ/PHL
Airspace Redesign is needed to accommodate growth
while maintaining safety and mitigating delays, and to
accommodate changes in aircraft fleet mix using the
system (e.g., increased use of smaller and regional jet
aircraft). The purpose of the Airspace Redesign is to
increase the efficiency and reliability of the airspace
structure and ATC system to accommodate growth
while enhancing safety and reducing delays in air
travel.
As the agency responsible for managing the National
Airspace System (NAS), the FAA continuously seeks
ways to control air traffic more efficiently. In 1998, the
FAA Administrator chartered the National Airspace
Redesign as the primary means of modernizing the
nation’s airspace. The National Airspace Redesign was
to take advantage of opportunities arising from new
technologies, new aircraft equipage, improved
infrastructure, and procedural developments to
enhance safety and efficiency. From the beginning,
22a
the importance of the New York/New Jersey
Philadelphia area was recognized. This airspace
formed the northeast corner of the “Eastern Triangle”
where the first redesign efforts were focused.
The current delay performance of the airspace around
the New York/New Jersey and Philadelphia
Metropolitan Areas illustrates the need for redesign.
The Bureau of Transportation Statistics collects
information on major airport on-time arrival
performance. For the first quarter of 2007, out of their
list of 32 major airports’,
o Newark was the top-delayed, with 55% on time
performance;
O LaGuardia was second from the top, 58% on
time performance;
° JFK was fourth from the top, 60% on time
performance;
o Philadelphia was fifth from the top, 65% on
time performance.
The only airport in the top tive as of the first quarter
of 2007 that is not in this study area is Chicago-O’Hare
International Airport. Airports in the NY/NJ/PHL
Metropolitan Area are routinely among the top 10
most delayed airports in the nation. Of all the factors
in the system that can cause delays, these airports
have only one in common. Some are dominated by one
http://www.bts.gov/programs/airline_ontime_tables/2007_03/ht
ml/table_04.html
23a
or two carriers and others are not. Some have many
foreign airlines,
[4]
others have few. Some support hub-and-spoke
operations and others do not. Some have very large
aircraft, others have mostly smaller aircraft. Some are
large, with long taxiways, others are small and
cramped. At some, the traffic has grown substantially
in recent years, at others it has not. The thing these
airports have in common is the airspace used by their
arrivals and departures. To solve the delay problem,
the airspace must be addressed.
The Study Area for the project consists of the
geographic area in which natural resources and the
human environment are potentially affected by the
proposed action, reasonable alternatives, and proposed
mitigation. The Study Area was defined to include the
areas underlying proposed changes to aircraft routes
below 14,000 feet above mean sea level (MSL).
According to FAA Order 1050.1E, the altitude ceiling
for noise environmental considerations regarding
airspace studies is 10,000 feet above ground level
(AGL). The point at the highest altitude of the area
where proposed airspace changes would occur was
Hunter Mountain, New York at 4,000 feet above MSL.
As a result, the overall altitude ceiling of the Study
Area was 14,000 above MSL (resulting in 10,000 feet
AGL). The Study Area includes the entire state of New
Jersey, and portions of Connecticut, Delaware, New
24a
York, and Pennsylvania, an area of approximately
31,180 square miles. Section 3.1.1 of the Final EIS
contains a more specific description of the Study Area.
The Study Area contains numerous public and
privately owned airports. It would have been
extremely difficult and unwieldy to include all of the
airports in the Study Area in the analysis. The
airspace design planning and environmental review
process focused heavily upon the eight airports that
were likely to be most affected by proposed airspace
changes. These are: LaGuardia Airport (LGA), John F.
Kennedy International Airport (JFK), Newark Liberty
International Aivport (EWR), Teterboro Airport (TEB),
Philadelphia International Airport (PHL), Morristown
Municipal Airport (MMU), Islip Long Island
MacArthur Airport (ISP) and White
Plains/Westchester County Airport (HPN). Airports
that had more than 20 Instrument Flight Rule (IFR)
operations on an average day were also included in the
focused analysis. Airports with fewer than 20 JFR
average annual day operations would have little
impact on design elements or noise impacts in the
study area. The thirteen additional airports that were
included in the focused analysis are:
Allentown/Lehigh Valley International (ABE)
Atlantic City International (ACY
0 Bridgeport/Igor I. Sikorsky Memorial (BDR)
o Caldwell/Essex County (CDW)
o Westhampton Beach/The Francis S. Gabreski
(FOK)
o Linden (LDJ)
o Newburgh/Stewart International (SWF)
25a
New Haven/Tweed-New Haven (HVN)
Northeast Philadelphia (PNE)
Republic (FRG)
(5)
‘Trenton/Mercer County (TTN)
Wilmington/New Castle County (ILG)
McGuire Air Force Base (WRI)
To plan airspace redesign, the FAA undertook an
extensive study. Technical specialists with in-depth
knowledge of regional ATC issues evaluated the
existing airspace structure, ATC procedures and
routes, and the interaction of local air traffic with the
NAS as a whole. The result of this team’s effort is set
forth in the EIS and supporting documentation in the
administrative record.
Implementation of the Selected Project
This redesign project is very large and complex. We
will begin implementation as soon as practicable.
Implementation of the selected project is estimated to
take five years. The implementation of the selected
project contains several qualitatively different stages.
The first stage involves elements of the selected project
that do not require large-scale changes to other parts
of the system. These items may be implemented
without changes to the current airspace structures or
operations of neighboring facilities.
26a
Right turns for departures off Runway 31R at
JFK
Departure dispersal headings at EWR, PHL and
LGA
RNAV overlay procedures for TEB departures
and approaches
RNAV overlay for PHL river visual approach
Develop an additional parallel airway to Jet
Route 80
A third westbound departure fix for PHL
RNAV overlay for LGA Localizer Type
Directional Aid (LDA) approach to Runway 22
RNAV fix on the VOR 13L/R and 13L/R visual
approaches to JFK
The next stage of implementation entails the
integration of the terminal and en route airspace. At
some point in this phase, we will address the NY
TRACON and NY Center facility airspace structure
will be addressed. This phase also concerns no change
to the current airspace structures or operations of
neighboring facilities. Aspects of the second phase
include:
Expanding the use of terminal separation rules
Expanding the west gate for NY departures
Opening the west gate for JFK departures
Allowing stacked departures at the departure
fixes
Providing flexible use of the arrival airways
Establishing a new arrival route into PHL
27a
The next stage requires changes at other facilities,
such as resectorization or shifting boundaries, but no
changes to the current operational structure.
[6]
« Adding a third airway to the north gate
The remaining stage of implementation requires
changes at facilities. This may include transfer of
sectors as well as operational changes for the
neighboring facilities. Aspects of the final stage of
implementation include:
e Creating a new jet airway for departures to the
west
= Enabling dependent instrument arrivals to the
parallel runways at EWR and the required shift
of the arrival streams into the NY/NJ area
e Creating a south gate for departures out of the
NY/NJ area
Ill. Purpose and Need
The FAA’s first consideration and highest priority in
defining the Purpose and Need for any proposed action
is to serve the public interest by exercising its
authority to assign, maintain, and enhance safety and
security of the national airspace (49 U.S.C. §401U1(d)).
The FAA also has the statutory responsibility to
manage the use of navigable airspace to assure safety
and efficiency. (49 U.S.C. §40103).
28a
A. Need for the Project
As noted, congestion and delays at airports in the
NY/NJ/PHL Metropolitan Area are some of the worst
in the country and aircraft operations are forecast to
continue to grow. In considering the need for an
Airspace Redesign project, the FAA looked at the
increase in traffic levels, safety, delays, and changes in
the types of aircraft using the NAS.
3 Increased Aircraft Traffic Levels
Aircraft operations in the Study Area are growing
despite the operational delays experienced by aircraft
operators. Instrument operations’ at most of the major
airports in the Study Area have increased. See FEIS,
Table 1-3. Dramatic increases have occurred at
Newark (EWR), Philadelphia (PHL), and Teterboro
(TEB) and these increases are forecast to continue.
Current traffic at JFK has increased 44% from the
year of 2004.° Inefficiencies due to the inherent
limitations of the existing airspace design, including
route structure and ATC procedures, will be
exacerbated by growth in air traffic operaticus. For
example, in 2006 the NY TRACON handled 2,090,977
operations and is expected to handle 2,400,143
operations by 2011. FEIS at 1-23. As traffic increases,
*Commercial operators and operators of certain large
aircraft, e.g., business jet aircraft, are required to operate under
Instrument Flight Rules. Additionally, many aircraft that are not
required to operate under IFR choose to do so because of the air
traffic services it provides.
‘FAA OPSNET Data
29a
the system will become increasingly inefficient and
unreliable (unpredictable in terms of
[7]
scheduling) in order to ensure safe operations. The
following inefficiencies must be addressed in order to
accommodate growth that will occur with or without
the project:
° Access to en route airways is restricted by
downstream congestion.
° EWR and LGA final approach courses are
restricted and do not allow for optimal aircraft
sequencing to the runways.
* Airspace sectors are currently associated with
specific airports which cause an unbalanced use
of the airspace, thus requiring excessive
communications between controllers.
° Westbound departures from JFK create delays
for westbound departures from EWR and LGA
due to in-trail sequences.
* NY Metropolitan Area departures to north
departure gate fixes are restricted due to
inefficient airspace allocation.
. Arrivals to PHL are directed to lower altitudes
to maintain separation from arrivals to the NY
Metropolitan Area.
30a
The airspace must accommodate growth in air traffic.
To accommodate growth, the enhanced airspace
system must maintain the current high level of safety
and mitigate delays.
2. Safety
As noted above, the FAA has the statutory
responsibility to control the use of navigable airspace
in the interest of safety and efficiency. The following
safety-related inefficiencies currently exist in tle
NY/NJ/PHL Metropolitan Area airspace:
0 Arrivals to Westchester County Airport (HPN)
from the south cross several traffic flows and
create unnecessary complexity.
o Arrivals for airports to the north of the Study
Area must be assigned high altitudes to avoid
conflicts with the NY Metropolitan Area traffic.
This creates the need to cross several traffic
flows in a short distance while descending.
° Traffic to PHL, Islip (ISP), and their associated
satellite airports‘ is restricted to intersecting
courses in narrow corridors of airspace.
*PHL satellite airports include Chester County,
Brandywine, New Garden, Wings Field, Northeast Philadelphia,
Doylestown, Pottstown Limerick, and Capital City Airports. ISP
Satellite airports include Brookhaven, Spadaro, Francis S.
Gabreski, Republic, and Montauk Airports. Source: NPIAS 2005-
2009.
[8]
3la
Airspace restrictions require incremental
changes in altitude for arrivals and departures
causing radio frequency congestion associated
with additional control instructions.
Departures from EWR to the Caribbean and
South America must climb through PHL and
tlantic City (ACY) traffic resulting in traffic
conflicts.
High-performance general aviation aircraft
operating out of satellite airports are restricted
to less efficient altitudes below major airport
flows. This creates increased controller
workload to resolve traffic conflicts.
Departures from ISP and ISP satellite airports
to the south/southwest conflict with arrivals to
the NY Metropolitan Area and northeast-bound
departures from PHL.
Addressing the safety-related inefficiencies will
contribute to enhanced safety in light of the growing
traffic.
3.
Delays
Delays affect aircraft operators with increased fuel use
and operating costs, which are passed on to consumers
in the form of higher ticket prices. Delays also impact
the public by causing inconveniences with late
arrivals, missed connections, and cancelled flights.
32a
The public expects a stable and reliable aviation
system that supports on-time flights. People have
dramatically increased their use of aviation as a mode
of travel and increasing delays continue to receive
much public attention. Delays are expected to increase
in the future as traffic levels continue to grow. These
issues prompted the airline industry and the Federal
government to search for ways to reduce delays. The
current basic airspace structure was designed and
implemented in the 1960s, based on the interaction of
independent TRACONSs and several overlying Centers.*
Today, the airspace system cannot efficiently handle
the current and projected levels of traffic within the
NY/NJ/PHL Metropolitan Area. In 1988, when the last
large-scale airspace changes were made, the New York
TRACON alone managed approximately 1,710,000
operations annually. In 2006, the New York TRACON
handled 2,099,977 operations. By the year 2011, the
traffic level is projected to increase to 2,400,143*
annual operations. The increasing traffic levels result
in excessive user delays and inefficient routes.
Between 2000 and 2006, total aircraft delays at
TRACONs and Centers in the Study Area have
increased dramatically. In addition, airports in the
NY/NJ/PHL Metropolitan Area are routinely among
the top 10 most delayed airports in the nation, due in
part to the inefficiencies of the current airspace
structure.
‘See FEIS sections 1.2.1 — 1.2.3 for a discussion of the
NAS and a description of the types of ATC facilities
“FAA APO Terminal Area Forecast Issued December
2006.
33a
The following are among the causes for delay in the
existing NY/NJ/PHL Metropolitan Area airspace:
[9]
. Aircraft departing from the NY Metropolitan
Area to the Washington Metropolitan Area are
sequenced onto the same routes as long-haul
destinations (e.g., Los Angeles).
e Entering and exiting holding patterns in en
route airspace are inefficient because more
restrictive en route separation rules are used
and require extensive coordination.
° Chicago O’Hare International Airport (ORD) is
one of the busiest airports in the nation and
experiences significant delays. Because of the
inflexibility of the current airspace structure,
the in-trail restrictions placed on the ORD
departures end up affecting all of the westbound
departures from the New York/New
Jersey/Philadelphia metropolitan areas routed
over the same departure fix regardless of the
destination airport.
* Aircraft departing from LGA and HPN have
poor access to departure routes during severe
weather conditions.
e Severe weather that occurs during periods of
heavy traffic reduces flexibility for aircraft
rerouting resulting in delays.
34a
o During peak demand periods individual arrival
fixes can become saturated while other arrival
fixes are under used.
The Airspace Redesign is needed to address the system
inefficiencies that cause delay.
4. Changes in Type of Aircraft
The mix of types of aircraft used by domestic air
carrier and general aviation operators has changed
rapidly over the past decade. Regional airlines have
replaced propeller driven aircraft with regional jets in
response to consumer preferences and to begin service
to new markets. Mainline air carriers have
transitioned service on some routes from larger
narrowbody aircraft to smaller regional jets because of
the lower operating costs for regional jets. The net
effect of these changes is that the same numbers of
passengers are being transported with a higher
number of operations by smaller aircraft.
Additionally, there has been an increase in the use of
private jets. The convenience of business jets, e.g.,
avoiding security delays and freedom to set one’s own
flight schedule, has encouraged many corporate
travelers to increase their use of business jets.
Fractional ownership programs have put the ability to
use business jets into the hands of many more people.
These factors have placed new strains on the NAS by
increasing the number of high performance jets vying
for the same routes and altitudes. Previously there
were substantial numbers of propeller-driven aircraft
operating at lower altitudes on separate routes. This
35a
increasing number of jets has resulted in a saturation
of jet routes.
B. Purpose of the Project
The purpose of Airspace Redesign is to increase the
efficiency and reliability of the airspace structure and
ATC system, thereby accommodating growth while
enhancing
[10]
safety and reducing delays in air travel. By taking
advantage of new technologies and responding to new
trends, the Airspace Redesign will increase efficiency
and the reliability of the air traffic system.
A nationwide study conducted by Logistics
Management Institute (LMI) in 1999 found that air
traffic congestion nationwide could cost 46 billion
dollars to the nation’s economy in 2010 because of
increased travel time. The nationwide change in travel
time that was anticipated for 2010, converted to its
equivalent in terms of the metrics used for this study,
is approximately 3 minutes per flight. This includes
costs to airlines, loss of service to people who wish to
travel, and over 200,000 lost jobs in aviation and other
industries. The NY/NJ/PHL airspace will handle 15-
20% of all the air traffic in the nation in 2011. This
airspace redesign is concerned with removing
inefficiencies. Enhancing efficiencies would,
conservatively estimated, yield benefits to airlines,
passengers, and businesses of $7 billion to $9 billion in
2011.
36a
Air traffic delays also increase costs associated with
providing air traffic control services. Additional air
traffic control staffing is needed during periods when
there are air traffic delays. Analyzing FAA’s delay
summary report over the past two years for JFK, LGA,
EWR and PHL, it is estimated that delays at these
four airports alone cost $30.5 million.
The Airspace Redesign is also needed to accommodate
changes in the fleet mix using the system (e.g.,
increasing numbers of smaller and regional jet
aircraft). These needs are tied to the fundamental
purpose of the Airspace Redesign: to increase the
efficiency and reliability of the airspace structure and
ATC system in the study area.
Noise reduction is not a Purpose and Need for Airspace
Redesign. In the case of the national airspace redesign
(NAR), reduction of noise is not appropriately
identified as a Purpose. Airspace redesign can not
remedy noise problems for the 29 million people living
in the study area. In fact, for many people within 10 to
15 miles of the airport, depending on where they live
in relation to the runway alignments, there may be
little or no mitigation possible and no noise benefits
possible. Additionally, in heavily populated areas, such
as those surrounding Philadelphia, Newark,
LaGuardia, and Kennedy Airports, mitigation of noise
in one neighborhood usually means moving the noise
to another neighborhood, not moving it to an
unpopulated area. Moreover, it is unclear how noise
reduction should be defined where noise is predicted to
increase and decrease over large populated areas
experiencing different noise levels. Although reduction
37a
of noise is not included in the Purpose and Need, the
FAA recognizes that aircraft noise was the major issue
raised in agency and public comments throughout the
EIS process. During the scoping meetings held in 1999
and 2001, the FAA committed to using the various
techniques to reduce aircraft noise and other potential
environmental impacts. Thesetechniques included
increasing altitudes, dispersing or concentrating
tracks where appropriate, reducing flying time, and
routing aircraft over less noise-sensitive areas where
feasible.
(11)
IV. Alternatives Analysis
CEQ regulations require the FAA to “rigorously
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(a). In addition to a No Action alternative, as
required by the CEQ regulations, 40 C.F.R.
§1502.14(d), the FAA developed five categories of
alternatives and evaluated them against the purpose
and need for the project. Those categories of
alternatives that did not satisfy the purpose and need
for the project were not considered reasonable
alternatives and were eliminated from detailed
analysis. The categories of alternatives considered in
the initial screening of alternatives in the EIS included
the following:
38a
0 Alternative Modes of Transportation and
Telecommunication—Using alternative modes
of transportation and communication including
travel by rail, bus, and automobile, as well as
the use of telecommunication methods such as
videoconferencing.
o Changes in Airport Use—Moving operations to
satellite airports or improving infrastructure of
existing airports.
0 Congestion Management Programs—Regulating
air travel demand by limiting flight operations.
Three major congestion management techniques
are administrative approaches, voluntary de-
peaking, and market based-approaches.
o Improved Air Traffic Control
Technology—Using newly developed air traffic
control technologies.
° Airspace Redesign Alternatives—Creating
restructured airspace routes, altitudes, and
sectors.
A. Alternative Categories Eliminated from
Detailed Study
In determining the reasonable alternatives for the
project, the FAA looked at the categories of
alternatives to determine whether each would meet
the purpose and need for the Airspace Redesign
project. Those categories of alternatives that did not
meet the purpose and need for the project were
eliminated from detailed study in the EIS. Four of the
categories of alternatives, Alternative Modes of
Transportation and Technology, Changes in Airport
Use, Congestion Management Programs, and
39a
Improved Air Traffic Control Technology, were
eliminated because they did not meet the purpose and
need of the Airspace Redesign project. While the
Alternative Modes of Transportation and Technology
(Section 2.3.1), Changes in Airport Use (Section 2.3.2),
Congestion Management Programs (2.3.3), and
Improved ATC Technology (2.3.4) categories of
alternatives may have had the potential to decrease
delays they would not have addressed the
inefficiencies in the current NY/NJ/PHL Airspace.
Because these alternatives did not meet the purpose
and need for the Airspace Redesign project, they were
not considered reasonable alternatives and were not
carried forward for detailed environmental analysis.
B. Alternative Concepts Considered for Detailed
Analysis
(12)
Of the five categories of alternatives, one, Airspace
Redesign, was found to meet the purpose and need for
the Airspace Redesign project, and was carried
forward for detailed analysis in the EIS. Additionally,
as required by the CEQ regulations, the No Action
Alternative was carried forward for detailed study.
Airspace in the NY/NJ/PHL Metropolitan Area could
be redesigned by changing or enhancing departure
gates, arrival posts, routes, and/or the airspace
boundaries of the various ATC facilities. For the Study
Area under examination, new departure gates and
arrival posts would permit the development of new
40a
routes in the airspace structure. Expanding the
boundaries of the terminal airspace environment
would permit less restrictive separation rules to be
used in a larger volume of airspace. These actions have
the potential to meet the need to accommodate growth
in air traffic levels while maintaining safety and
mitigating delays. New routes could add efficiency by
reducing delays and providing more direct routings;
this has the potential to achieve the purpose of
increasing the efficiency and reliability of the airspace
structure and ATC system. The FAA began
consideration of airspace and ATC changes by
analyzing potential airspace redesign alternatives for
the NY/NJ/PHL Metropolitan Area airspace. A
working group was formed to design and evaluate
conceptual airspace alternatives. The working group
included representatives from the affected facilities:
NY TRACON, Philadelphia TRACON, New York
Center, Boston Center, and Washington Center. The
working group also included representatives from ATC
facilities outside the Study Area to ensure the
alternatives developed would be compatible with
airspace requirements in those facilities. Also as part
of the development of redesign concepts, input from
external sources such as airlines, airport operators and
the public was solicited and considered.
The working group developed assumptions and
objectives for airspace redesign alternatives. The
assumptions included point-to-point navigation and
use of terminal separation standards over a larger
airspace area. The objectives that guided the
development of airspace redesign concepts were:
4la
° Reduce congestion in airspace sectors
° Shorten routes
° Segregate routes for aircraft with dissimilar
operating characteristics (i.e., large aircraft
from small aircraft)
° Impose fewer climb restrictions on departing
aircraft and keep arrivals higher longer
* Allow aircraft to operate at higher, more fuel-
efficient altitudes for longer periods
Use area navigation (e.g., RNAV, GPS, etc.)
Create a flexible airspace structure
Accommodate projected growth
Reduce environmental impacts, where possible
Using the assumptions and objectives, the working
group developed broad concepts that met the design
objectives: the Four Corner-Post, Modifications to
Existing Routing, a Clean Sheet approach.
Additionally, the working group considered an Ocean
Routing concept submitted by New Jersey Citizens for
Environmental Research (NJCER) at the request of
the New Jersey Coalition Against Aircraft Noise
(NJCAAN).
(13]
After further consideration, the working group
determined that the Four Corner-Post was a concept
ill-suited to the NY/NJ/PHL Metropolitan Area
airspace (Section 2.4.1.1) and was eliminated from
further consideration because it did not meet the
purpose and need of the airspace redesign project. Two
of the remaining design concepts, modifications and
clean sheet, would meet the purpose and need and
42a
were studied in detail in the EIS. Although Ocean
Routing did not meet the purpose and need, it was
studied in detail in order to address the long-standing
concerns of NJCAAN.
Modifications to Existing Routing
This concept involves modifying the current route and
procedures to improve efficiency in the current
airspace.
Ocean Routing
This alternative routes all depurting flights from EWR
over the Raritan Bay to the Atlantic Ocean before
turning them back over land to head to their departure
gates. The Ocean Routing alternative does not meet
the purpose and need for the airspace redesign project.
It is designed is to reduce noise impacts on the citizens
of New Jersey, and would not increase the efficiency
and reliability of the NY/NJ/PHL Metropolitan Area
airspace. Because all EWR departures would use the
same departure route, this alternative would
inherently result in a large increase in airport
departure delay. While Ocean Routing does not meet
the purpose and need for the project, the FAA elected
to retain it for detailed analysis because of the long-
standing concerns of NJCAAN.
Clean Sheet Concept
The Clean Sheet approach began as an attempt to
redesign the airspace in an atmosphere independent of
existing routes. Designers were given a clean shect of
paper and were asked to design the most efficient
airspace structure for the study area without reference
to current procedures, departure gates, and arrival
43a
posts. It was initially explored as a concept that would
be developed within the boundaries of the current NY
Center and NY TRACON airspace. Any changes within
this airspace would not require changes in adjacent
Center’s or TRACON’s airspace. The working group
discovered that the constraints of the NY Center’s and
NY TRACON’s airspace boundaries did not facilitate
the use of the clean sheet approach. This alternative,
therefore, evolved into an integrated airspece concept
that used some of the initial design elements of the
Clean Sheet “Area Concept,” and then added elements
that more efficiently integrated the functions of the
NY TRACON and NY Center to operate more
seamlessly in either a standalone or consolidated
manner. Therefore, a detailed airspace redesign
alternative was developed based on the Integrated
Airspace Concept.
C. Alternatives Analyzed in the EIS
After the working group validated the airspace
redesign concepts, it developed detailed alternatives
for the Modifications and Integrated concepts. The
detailed alternative for Ocean Routing was developed
by NJCER. The working group also developed criteria
to evaluate the degree to which the alternatives met
the purpose and need and to permit the
[14]
comparison of the alternatives to each other. These
criteria fall into two groups, operational viability and
operational efficiency. The operational viability
criteria consider whether a particular airspace
44a
redesign is workable and thus, safe. The criteria
include:
o Reduce airspace complexity
O Reduce voice communications
The operational efficiency criteria consider how well a
particular design works. The criteria include:
Reduce delay
Balance controller workload
Meet system demands
Improve user access to the system
Expedite arrivals and departures
Increase flexibility in routing
Maintain airport throughput
ao. 6.6.6 84.2: 0
1. The Alternatives
No Action Alternative
The No Action alternative represents all major traffic
flows into and out of the Study Area in the study years
2006 and 2011 if no changes are implemented as a
result of the Airspace Redesign project. The only major
difference between this alternative and present day
operations will be the type and quantity of aircraft
operations. Under the Future No Action Airspace
Alternative, the airspace will operate as it did during
existing or baseline conditions (2000), with the
exception of two procedural changes (i.e., the Dual
Modena and the Robbinsville-Yardley Flip-Flop) that
have been implemented and have independent utility
with regards to the Airspace Redesign, see Section
1.2.6. As these changes have been implemented, they
45a
are included as part of the Future No Action Airspace
Alternative. Figures 2.1 through 2.10 in Appendix A to
this ROD identify existing major routing and flow
patterns associated with the Future No Action
Airspace Alternative.
Modifications Alternative
The Modifications alternative includes minor
modifications to the current airspace and routing,
improving operations as much as possible within the
limitations of the current ATC facility boundaries.
Figures 2.11 through 2.14 in the Final EIS identify
major routing changes associated with the
Modifications alternative. The table below summarizes
the Modifications alternative.
[15]
Table 2.1
Summary of Modifications to Existing
Airspace Alternative
Airport Changes from Future No Action
JFK No Changes
LGA South departure gate shifted to the
northwest
New departure headings for aircraft
departing Runway 4 to the North
departure gate
New propeller aircraft procedures
departing Runway 13 to West
departure gate
46a
New departure headings for propeller
departing Runway 13 to the South
departure gate
New distant procedures for aircraft
departing Runways 4 and 13 to the
South departure gate
New departure headings for aircraft
departing Runway 4 to the East
departure gate
EWR
South departure gate shifted to the
northwest
New procedures for aircraft heading to
new South departure gate
New departure headings from all
runways to all gates
New departure headings off Runways
4L dependent on TEB Runway 6
New departure headings off Runways
22R dependent on TEB Runway 11
TEB
South departure gate shifted to the
northwest
New distant procedures for aircraft
heading to shifted South departure
gate
HPN
South departure gate shifted to the
northwest
New distant procedures for aircraft
departing to the south gate
47a
PHL East departure gate shifted further
east
New procedures for aircraft heading to
new East departure gate
New departure headings for aircraft
heading to the North, East, West, and
South departure gates
Ocean Routing Alternative
The Ocean Routing alternative includes changes at
EWR, LGA, and JFK and routes all EWR departing
flights over the Raritan Bay to the Atlantic Ocean
before turning them back over land to head to their
departure gates. Figures 2.15 through 2.18 in the
Final EIS identify major routing changes associated
with the Ocean Routing alternative. The table below
summarizes the Ocean Routing alternative.
Table 2.2
Summary of Ocean Routing
Airspace Alternative
Airport Changes from Futwre No Action
JFK Shifted West departure gate
New procedures for aircraft heading to
the West departure gate
Split of the FNA Ocean departure gate
into the Ocean and South departure
gates
New procedures for aircraft heading to
the South departure gate
South arrival post shifted to the east
New procedures for aircraft arriving
from the South arrival post
New procedures for aircraft arriving
from the North arrival post
LGA New procedures for aircraft heading to
the North departure gate
EWR Shifted West departure gate
New procedures for aircraft heading to
the West departure gate
Shifted South departure gate
New procedures for aircraft heading to
the South departure gate
New procedures for aircraft departing
Runways 22L/R to the North departure
| gate
49a
New procedures for aircraft departing
Runways 22L/R to the East departure
gate
TEB No Changes
PHL No Changes
Integrated Airspace Alternative
The Integrated Airspace alternative combines the New
York TRACON airspace with portions of the
surrounding Centers’ airspace, permitting more
seamless operations. The Integrated Airspace
Alternative can be accomplished either with existing
standalone facilities or in a consolidated facility. The
key component of the Integrated Airspace alternative
is a common automation platform.’ Using existing
facilities, airspace would be reallocated among the
facilities in order to facilitate a more seamless
operation. At the time the Airspace Redesign project
was begun, the FAA had not yet decided to approve an
Integrated Control Complex (ICC) concept.
As a result, the Integrated Airspace alternative was
designed with two variations. The initial phase (2006)
is the same for both variations because an ICC will not
exist in 2006. It involves modifications to a departure
gates as well as additional diverging departure
headings, however, airspace facility boundaries would
Acommon automation platform includes shared displays
on screens, radar data processing and presentation, and
communication.
50a
not change. In the second phase (2011) there are two
variations:
oO
[17]
Without ICC, which will integrate the airspace
to the extent possible without the common
automation platform includes expanded use of
terminal separation, reallocation of airspace
sectors and new technologies.
With ICC, which involves full airspace
integration includes multiple departure gates,
additional arrival posts, and additional
diverging departure headings.
Figures 2.19 through 2.22 in the Final EIS identify
major routing changes associated with the Integrated
Airspace alternative without ICC. The table below
summarizes the Integrated Airspace alternative
without ICC.
Table 2.3
Summary of Integrated Airspace Alternative
Variation without ICC
Airport Changes from Future No Action
JFK
No Changes
LGA
West departure gate extended to the
north and to the south
New procedures for aircraft heading to
the West departure gate
5la
New departure headings for aircraft
departing Runway 4 to the North
departure gate
New departure headings for aircraft
departing Runway 4 to the East
departure gate
EWR
New departure headings for all
runways and all gates
Procedures off Runway 4L dependent
on TEB Runway 6 to West departure
gates
New procedures for aircraft heading to
the West departure gate
Procedures off Runway 4L dependent
on TEB Runway 6 to North and East
departure gates
Procedures off Runway 22R dependent
on EWR Runway 11 use
Expanded West departure gate
West departure gate extended to the
north and to the south
New procedures for aircraft heading to
the West departure gate
New procedures for turboprop aircraft
arriving from the northeast
HPN
West departure gate extended to the
north and to the south
New procedures for aircraft heading to
the West departure gate
New distant arrival procedures
52a
PHL New departure headings for aircraft
heading to the North, East, West, and
South departure gates
Figures 2.24 through 2.33 in Appendix A identify
major routing changes associated with the Integrated
Airspace alternative with ICC. The table below
summarizes the Integrated Airspace alternative with
ICC.
Table 2.4
Summary of Integrated Airspace Alternative
Variation with ICC
Airport Changes from Future No Action
JFK North departure gate shifted 15 miles
northeast
New distant procedures for aircraft
heading to the North departure gate
West departure gate extended to the
north and to the south
New procedures for aircraft heading to
the West departure gate
Future No Action Ocean departure gate
split into Ocean and South departure
gates
New distant procedures for aircraft
heading to the Ocean departure gate
New procedures for aircraft heading to
the South departure gate
North arrival post shifted five miles
southeast
53a
New distant procedures for aircraft
arriving from the North arrival post
East arrival post shifted northwest
New procedures for aircraft arriving
from the East arrival post
South arrival post shifted to the
northeast
New procedures for aircraft arriving
from the South arrival post
[18]
LGA
East departure gate shifted east
North departure yate shifted 15 miles
northeast
New procedures for aircraft heading to
the North departure gate
West departure gate extended to the
north and to the south
New procedures for aircraft heading to
the West departure gate
South departure gate shifted to the
northwest
New procedures for aircraft heading to
the South departure gate
North arrival post shifted 30 miles east
New procedures for aircraft arriving
from the North arrival post
West arrival posts shifts to coincide
with Future No Action South arrival
post
New procedures for aircraft arriving
from the west to coincide with the
South arrival post
54a
West arrival flow split into two arrival
flows, one to the north and one to the
south
New departure headings for aircraft
departing Runway 4 to the North
departure gate
New departure headings for aircraft
departing Runway 4 to the East
departure gate
EWR
New departure headings for all
runways and all gates
East departure gate shified to the east
New procedures for aircraft heading to
the East departure gate
North departure gate shifted to the
northeast
New procedures for aircraft heading to
the North departure gate
West departure gate expanded to the
north and south
New procedures for aircraft heading to
the West departure gate
South departure gate shifted to the
southwest
New procedures for aircraft heading to
the South departure gate
New Ocean departure gate
New procedures for aircraft heading to
the Ocean departure gate
North arrival post moved to 50 miles
north of EWR
New procedures for aircraft arriving
from the North arrival post
55a
West arrival post shifted tc be near
Greenville, NY
West arrival flow split into two arrival
flows, one to the north and one to the
south
New procedures for aircraft arriving
from the South arrival post
Use of both parallel runways for
arrivals
Departure gates match those of EWR
Integrated Airspace with ICC
New distant procedures for aircraft
heading to the North departure gate
New distant procedures for aircraft
heading to the West departure gate
New distant procedures for aircraft
heading to the South departure gate
West arrival post shifted 15 miles
south
New procedures for aircraft arriving
from the West arrival post
New procedures for aircraft arriving
from the West arrival post from the
vicinity of Yardley, PA
HPN
North departure gate shifted 15 miles
northeast
New distant procedures for aircraft
heading to the North departure gate
West departure gate extended to the
north and to the south
New procedures for aircraft heading to
the West departure gate
56a
South departure gate shifted to the
west
New departure procedures for aircraft
departing to the south gate
North arrival post shifted to the east
New distant procedures for aircraft
arriving from the north gate
New distant procedures for aircraft
arriving from the south
PHL West departure gate expanded tc the
northwest
[19]
PHL New procedures for aircraft heading to
the West departure gate
East departure gate is shifted to the
east
New procedures for aircraft heading to
the East departure gate
West arrival post shifts to the
northeast
New distant procedures for aircraft
arriving from the West arrival post
New departure headings for aircraft
heading to the North, East, West,
Southwest, and South departure
gates
Additional route added to North arrival
post
57a
A summary of the comparison of the alternatives can
be found below.
[20]
Table 2.6
Operational Comparison of Alternatives
Table Omitted
[21]
V. Preferred and Environmentally Preferred
Alternatives
At the time the Draft EIS was published, the FAA had
not selected a preferred alternative. The FAA
preferred to consider public and agency comments on
the DEIS prior to identifying its preferred alternative.
In March 2007, FAA announced the Integrated
Airspace Alternative with ICC as its preferred
alternative. This alternative was preferred because it
best meets the purpose and need for the project: to
improve the efficiency and reliability of the airspace
thereby accommodating growth while enhancing safety
and reducing delays. Table 2.6 provides an operational
comparison among the alternatives. The Integrated
Airspace Alternative in its ICC variation provides the
best improvement in ten of the thirteen metrics that
quantify each element of the purpose and need for the
redesign. While the Modifications alternative and the
Integrated Airspace alternative without ICC variation
would provide marginal! reduction in many metrics, the
Integrated Airspace Alternative with ICC would
58a
provide substantial benefits. The metrics that relate
most directly to user costs (delay, routing flexibility
and block time) are only improved by the Integrated
Airspace alternative with ICC. Ocean Routing would
decrease the airspace efficiency and add complexity to
the airspace, thus it does not meet the purpose and
need for the project. Therefore, the Integrated Airspace
Alternative with ICC is the preferred alternative.
After selecting the Integrated Airspace Alternative
with ICC as the preferred alternative, FAA began the
process of developing measures to alleviate, to the
extent possible, the impacts associated with the
preferred alternative. Mitigation measures are those
designed to avoid, minimize, rectify, reduce, eliminate,
or compensate for environmental impacts. Because the
preferred alternative would result in significant noise
and noise-related (environmental justice) impacts in
some areas, mitigation measures were developed to
reduce the noise impacts where possible. FAA
considered mitigation for all areas, including areas
that did not receive a significant or slight to moderate
impact. FAA also considered mitigation to address
long-standing issues that might be improved as a
result of airspace redesign.
After the Draft EIS was published, FAA identified a
number of potential mitigation measures for the
project. Additionally, FAA considered all public
comments that included potential mitigation
measures, which numbered over 450. Many of the
public mitigation comments focused on similar issues
and techniques as those identified by the FAA. An
initial screen was performed on each proposed
59a
measure. Some measures were immediately discarded
because they presented operational or safety problems.
Each remaining proposed mitigation measure was
subjected to a two-step operational modeling. This
modeling was both qualitative and quantitative. The
two-step operational modeling identified whether a
proposed measure was viable and the degree to which
the proposed measure impacted the operational
efficiency of the preferred alternative. In some cases a
noise screen was applied to determine which measures
provided the best alternatives for noise reduction.
Details of this process can be found in Chapter 5 of the
Final EIS.
[22]
FAA considered the environmental impacts of the
preferred alternative with the mitigation that resulted
from the screen. The results of those analyses, the
Mitigation Report, were published in April 2007. FAA
solicited comments on the Noise Mitigation Report
including holding several public meetings. Mitigation
measures were then incorporated into the preferred
alternative resulting in the mitigated preferred
alternative: the Integrated Airspace Alternative with
ICC and mitigation measures.
The following mitigation measures have been
identified as part of the selected project:
° HPN Departures—Departure routes shifted to
the north shifted closer to the no action location
° LGA Departures—Departure headings reduced
to two except during the morning push
60a
o LGA Arrivals—Increased use of Localizer
Directional Aid (LDA) arrival to Runway 22
o EWR Departures—Number of departure
headings used based on demand; at night use
modified ocean routing procedure
° EWR Arrivals—Raised arrival altitudes for
Runways 22L/R in the vicinity of Bergen
County, New Jersey and Rockland County, New
York; raised arrival altitudes for Runways 4L/R
in the vicinity of Sussex and Morris Counties,
New Jersey; use continuous descent approach
(CDA) during nighttime hours for arrivals from
the northwest and southwest
o PHL Departures—Use one departure heading
for Runways 9/27 L/R during nighttime hours
o PHL Arrivals—Increased use of River Approach
(visual) to Runway 9; use CDA during nighttime
hours for arrivals from north, northwest, and
southwest
The mitigated preferred alternative is also the
environmentally preferred alternative. In 2006 it
reduces the number of persons who would be
significantly impacted by noise to 545 people near
PHL. In 2011, the mitigated preferred alternative
would result in no significant impacts. The mitigated
preferred alternative is the FAA’s selected project.
VI. Emvironmental Impacts and Mitigation
In accordance with the guidelines set forth in the CEQ
regulations and FAA Order 1050.1E, Chapter 4 of the
EIS describes the potential impacts of implementing
the project. Potential impacts include both the direct
6la
and indirect effects of the proposed project and all
reasonable alternatives. A total of nineteen impact
categories were analyzed. The technical findings in the
EIS provide federal decision-makers and officials, as
well as the public, with an understanding of the
potential effects of the project on the human, physical,
and natural environment.
The potential impacts of the Airspace Redesign project
were determined by comparing the projected future
conditions without the project (Future No Action) with
the projected future conditions for each action
alternative. As discussed in section III above, the
action alternatives analyzed for environmental
impacts are: Modifications, Ocean Routing, and two
variations of the Integrated Airspace, without ICC,
and with ICC.
[23]
A. Study Years
The EIS used the year of 2000 as the baseline year for
the analysis. The year 2000 was used for several
reasons. First, when the EIS analysis began, the year
2000 was the most recent complete calendar year for
which air traffic statistics were available. Additionally,
at the time the EIS analysis began, 2000 was the last
full robust year of air traffic activity prior to the
aviation slowdown resulting from terrorist activities
and economic down turns. Finally, a study of the scope
and magnitude of the EIS takes a number of years to
develop fully. The analysis, specifically the noise
modeling for the Draft EIS, took approximately three
62a
and a half years to complete. Because of the time
involved in performing the noise analysis, any baseline
year would be several years in the past.
The years 2006 and 2011 were used as implementation
years in the EIS. At the time the EIS analysis began,
the FAA expected that if an action alternative were
selected, implementation of the selected alternative
would occur in stages. Some of the elements of an
action alternative, for example using dispersal
headings and transferring airspace from other air
traffic facilities, could be implemented almost
immediately, after training air traffic controllers.
Because some elements of an action alternative could
be implemented almcst immediately and the Draft EIS
was expected to be published in 2005, it was
reasonable to assume 2006 as the first implementation
year. Appendix B contains an analysis of forecast and
actual traffic for 2006; the forecast was found tw be
reasonably close to the actual operations. The EIS is
replete with references to 2006 as the first year in
which this project would begin to be implemented.
However, as a result of the extended comment period
and the volume of public comments received, this
proposed implementation date has been delayed by one
year. In order to avoid confusion and the perception
that this ROD addresses a proposal! other than the one
presented in the EIS, we have continued to refer to
2006 as the year of initial implementation.
B. Forecasts
The FAA developed forecasts of future aviation activity
for the purpose of designing the detailed alternatives
63a
and analyzing the impacts of those alternatives. The
FAA’s Office of Aviation Policy and Plans (APO)
develops and regularly updates Terminal Area
Forecasts (TAF) for selected airports throughout the
country. The TAF however does not provide sufficient
detail required for environmental modeling. For
example, the TAF does not provide aircraft type,
destination, and time of day of operations. As a result
a forecast of future IFR aviation activity in the Study
Area was prepared for this project. The forecast
developed for this project centers around IFR flights at
the 21 airports on which this study focused. Specific
forecasts were not developed for the remaining
airports in the Study Area. Because there would be no
change in procedures at those airports as a result of
the project, specific forecasts were not needed for the
operational modeling. FAA recognized that in order to
accurately portray the noise exposure, IFR operations
from the other airports in the Study Area must be
included in the forecasts for the noise analysis. IFR
flights through the study area at an altitude below
14,000 feet MSL were included in the noise analysis as
overflights. Overflights, for the noise
[24]
forecast, included flights that may have originated at
or been destined for an airport within the study area
that was not one of the 21 focus airports, as well as
flights that did not originate from and/or were
destined for an airport outside the study area.
In developing the forecast, the project team paid
particular attention to the forecast for the general
64a
aviation (GA) sector. The corporate aviation market,
which is generally identified as business executive
transportation using small jets and turboprop aircraft,
is expected to grow much faster than scheduled airline
service. This is primarily because of growth in
fractional ownership programs in which businesses or
individuals purchase a portion ofan aircraft and share
its use with other owners. Appendix B to the Final EIS
contains details on forecasts including the
assumptions upon which the forecasts were made.
Aircraft, including helicopters, operating under visual
flight rules (VFR) are not part of this study and were
not included in the forecasts because they are
unaffected by proposed alternatives. VFR aircraft are
not required to be in contact with ATC. Because VFR
aircraft operate on a “see and be seen” principal and
are not required to file flight plans, FAA has very
limited information for these operations. There is no
known source of comprehensive route, altitude,
aircraft type, and frequency information for VFR
operations in the study area. VFR aircraft generally fly
in two ways—either in a pattern around an airport or
to some destination of the pilot’s choosing. VFR
aircraft do not fly set routes to the same destination on
each flight. A pilot operating an aircraft under VFR
has the discretion to select his destination, route of
flight, altitude, and the frequency with which he flies.
‘General aviation refers to aircraft operations other than
those by scheduled passenger and cargo aircraft not characterized
as air carriers or air taxis.
65a
The Airspace Redesign project covers over 31,000
square miles and involves five major airports, sixteen
satellite airports, and numerous other airports. As a
practical matter, VFR aircraft can depart from or
arrive at virtually any airport in the study area or
simply pass through the study area on their way to
their destination. They can take any route while in the
study area. There is no effective method of obtaining a
representative sample of the frequency of VFR flights,
their routes, altitudes, destinations, and the type of
aircraft used over the study area for this type of
project. To address potentia! cumulative noise impacts
from VFR traffic the FAA conducted noise monitoring
at 18 locations during two distinct periods, resulting in
over 36 individual data sets.
In contrast, there are ways for the FAA to obtain the
sample data necessary to analyze VFR operations in
NEPA documents for discrete proposed airport
development projects. The study area for such projects
is centered on the specific area surrounding that
airport. Most impacts take place in the general area
surrounding the airport. Landing and takeoff routes
for airport-specific projects are limited by the runway
configuration at the airport, and surveys can be
conducted to determine representative destinations for
VFR aircraft.
[25]
C. Impacts and Mitigation
Chapter 4 of the Final EIS contains a detailed analysis
of the environmental impacts of all of the alternatives
66a
for each of the study years. A detailed discussion of the
mitigated preferred alternative, the selected project,
appears in Chapter 5 of the Final EIS. This section of
the ROD will discuss the impacts of the preferred
alternative and the selected project as compared with
the no action alternative.
1, Noise and Compatible Land Use
A. Noise
As required by FAA Order 1050.1E, the Noise
Integrated Routing System, NIRS, was used to model
the noise impacts of the Airspace Redesign project
because the project involved a study area larger than
the immediate vicinity of an airport, incorporates more
than one airport and includes actions above 3,000
AGL. FAA also applied its criteria of significance, an
increase of 1.5 dB DNL or more on any noise sensitive
area within the 65 dB DNL area, to determine whether
the project would result in a significant noise impact.
Additionally, FAA reported areas of slight. to moderate
impacts, that is areas already experiencing noise
between 60 to 65 dB DNL that experience a 3 dB DNL
or more increase, and areas between 45 and 60 dB
DNL that experience a 5 dB DNL or more increase.
Section 4.1.2 of the Final EIS contains the detailed
environmental analysis of each of the alternatives with
respect to noise and compatible land uses.
Under the Future No Action Alternative, there will be
a slight growth in noise exposure because of an
increase in aircraft operations expected in 2006 and
2011. Approximately 72,141 people in the Study Area,
67a
principally in the areas surrounding Kennedy, Newark
Liberty, LaGuardia, and Philadelphia Airports, are
projected to be exposed to aircraft noise levels greater
than 65 dB DNL in 2006. In 2011, this number is
75,459. In 2006 213,692 people in the Study Area are
projected to be exposed to noise levels in the 60 to 65
dB DNL range. This number declines to 209,793 in
2011. The Study Area population projected to be
exposed to noise levels in the 45 to 60 dB DNL range
is 11,774,446 in 2006 and 11,688,798 in 2011.
The selected project would cause approximately 21,399
people to be significantly impacted, which means they
would experience a change in noise levels of +1.5 dB or
more at a level of 65 DNL dB or greater in 2006. These
impacts would occur principally in areas surrounding
Kennedy, LaGuardia, Newark Liberty and
Philadelphia Airports, specifically in the area of Rikers
Island and Hunts Point in New York, Elizabeth, New
Jersey, and Essington, Crum Lynne, Woodlyn,
Wallingford, Rose Valley, Parkside, Brookhaven, and
southeastern Chester Heights in Pennsylvania. The
noise increases over Rikers Island and Hunts Point
result from the new departure headings off LGA
Runway 3l1to the north and west gates. The noise
increases over Elizabeth, New Jersey are caused by
new departure heading off EWR Runways 22L/R. In
the Philadelphia area, the noise increases are caused
by new departure headings from PHL Runways 27L/R.
68a
{26]
Slight to moderate impacts would also result from the
preferred alternative in 2006. Approximately 37,558
people in the Study Area would experience an increase
of 3 dB DNL who would be in areas experiencing noise
exposure of 60 to 65 dB DNL. In areas that would
experience 45-60 dB DNL, the number of persons
experiencing a slight to moderate impact, 5 dB DNL,
would be 142,517.
The preferred alternative would also result in noise
decreases in 2006. Within areas that would experience
noise exposure of 65 dB DNL and above, 5,970 persons
would experience a noise reduction of 1.5 dB DNL or
more. One person within the 60-65 dB DNL would
experience a noise reduction of 3 dB DNL, and 39,400
people in areas that would experience 45-60 dB DNL
would experience a noise reduction of at least 5 dB
DNL.
The year 2011 represents the full airspace
consolidation and full implementation of the preferred
alternative. Significant impacts will occur in 2011 with
the preferred alternative, again principally in the
areas surrounding Philadelphia, Newark Liberty,
Kennedy and LaGuardia Airports. A total of 15,826
people in the study area will experience significant
noise impacts principally in the areas of Rikers Island
and Hunts Point, New York, Elizabeth, New Jersey,
and Essington, Crum Lynne, Woodlyn, Wallingford,
Swarthmore, Media, Rose Valley, and Parkside,
Pennsylvania. The 2011 noise increases result from
the same design elements that cause significant
69a
impacts in 2006. While 2011 will result in significant
noise impacts, those impacts will affect a smaller
number of people in the study area in 2011 than in
2006.
Slight to moderate impacts would also result from the
preferred alternative in 2011. Approximately 34,824
people in the Study Area who would be in areas
experiencing noise exposure of 60 to 65 dB DNL would
experience an increase of 3 dB DNL. In areas that
would experience 45-60 dB DNL, the number persons
experiencing a slight to moderate impact, 5 dB DNL,
would be 290,758.
The preferred alternative would also result in noise
decreases in 2011. Within areas that would experience
noise exp
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