# Petition for Writ of Certiorari — County of Delaware, Pennsylvania v. Federal Aviation Administration (Nos. 09-603, 09-607) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1260%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1260%3A1. Public record. Not legal advice.