Petition for Writ of Certiorari — County of Rockland, New York v. Federal Aviation Administration (No. 09-607)
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avmaaan 17 2009
Supreme Court, U.S.
FILE
Supreme Court: ort the Gin (ted States
¢
OF THE CLERK
COUNTY OF ROCKLAND, NEW YORK, e¢ al.,
V.
FEDERAL AVIATION ADMINISTRATION, et ai.,
*
Petitioners,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
+
PETITION FOR WRIT OF CERTIORARI
¢
LAWRENCE R. LIEBESMAN
HOLLAND & KNIGHT LLP
2099 Pennsylvania Avenue, NW
Washington, DC 20006
202-955-3000
Counsel for Petitioner
County of Rockland, New York
RICHARD BLUMENTHAL
Attorney Genera! of Connecticut
Counsel of Record
ROBERT SNOOK
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
860-808-5270
Counsel for Petitioner
State of Connecticut
DONALD W. STEVER
K & L GATES LLP
599 Lexington Avenue
New York, NY 10022
212-536-4861
Counsel for Petitioner
Friends of the
Rockefeller State Park
Preserve, Inc.
PETER DICKSON
POTTER AND DICKSON
194 Nassau Street
Princeton, NJ 08542
609-921-9555
Counsel for Petitioners
City of Elizabeth,
New Jersey, New Jersey
Coalition Against
Aircraft Notse
COCKLE LAW BRIEF PRINTING CO (800) 225
(402) 342.2831
OR CALL COLLECT
6964
QUESTIONS PRESENTED FOR REVIEW
Whether the Court of Appeals erred in holding
that the FAA did not wiolate the National
Environmental Policy Act (NEPA) by failing to
include a critical noise analysis for public com-
ment as part of the EIS process for the NY/NJ/
Philadelphia Airspace Redesign Project, pre-
venting the public from critically analyzing and
commenting on an analysis that was central to
the FAA’s determination that the project would
not “use” public trust resources protected under
section 4(f) of the Transportation Act.
Whether the Court of Appeals erred in holding
that the FAA did not violate the mandate of the
National Environmental Policy Act (NEPA) by
failing to implement night ocean routing, a fun-
damental element of the selected alternative, in
the Record of Decision (ROD), and by failing to
include a mitigation measure explicitly agreed to
in the Final Environmental Impact Statement.
Whether the Court of Appeals erred in approving
an FAA decision violating Section 4(f) of the
Transportation Act and this Court’s decision in
Overton Park when the agency affirmatively
failed to obtain the comments of relevant state
and local officials regarding protected parks and
public trust resources.
il
QUESTIONS PRESENTED
FOR REVIEW - Continued
Whether the Court of Appeals erred by holding
that the Petitioners had “forfeited” their claim
under section 4(f) of the DOT Act that the FAA
had failed to contact state and local Park officials
and give “individualized attention” to at least 236
sites because that specific issue had not been
raised during the administrative process.
il
LIST OF ALL PARTIES
TO THE PROCEEDING
The parties to the proceeding before the United
States Court of Appeals for the District of Columbia
Circuit, which is the court whose judgment is sought
to be reviewed, were, as Petitioners, County of Rock-
land, New York, County of Delaware, Pennsylvania,
Town of New Canaan, Connecticut, Timbers Civic
Assoc., Friends of the Rockefeller State Park Pre-
serve, Inc., Board of Chosen Freeholders of the
County of Bergen, New Jersey, John Hodge, First
Selectman, Town of New Fairfield, Connecticut, City
of Elizabeth, New Jersey, County of Union, New
Jersey and the Union County Freeholders Air Traffic
and Noise Advisory Board, New Jersey Coalition
Against Aircraft Noise, The Borough of Emerson,
Commissioner Connecticut Department of Environ-
mental Protection and the Respondent Federal
Aviation Administration.
lV
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ........
LIST OF ALL PARTIES TO THE PROCEED-
(V0. Pe) wey y. 8): yy | >. Aree
CITATIONS TO OPINIONS BELOW...................
JURISDICTIONAL STATEMENT ......................
CONSTITUTIONAL PROVISIONS AND STAT-
UTES INVOLVED IN THE CASE ...................
STATEMENT OF THE CASE. .............c.ccsccssscsecees
REASONS FOR GRANTING THE WRIT ...........
I. THE COURT OF APPEALS HOLDING
PERMITTING THE FAA TO DEFER A
CRITICAL SUPPLEMENTAL NOISE
ANALYSIS FROM THE SCRUTINY OF
THE EIS PROCESS UNDERMINES
FUNDAMENTAL NEPA LAW...................
A. The FAA’s Ad Hoc Supplemental
Noise Analysis Was Critical to the
Public’s Understanding of the Project
and the FAA’s Reliance on the Anal-
ysis Without the Benefit of Public
Comment Violated NEPA....................
B. The Court of Appeals Reference to the
FAA’s “Extensive Public Outreach” to
Justify the FAA’s Failure to Make the
Post-EIS Supplemental Noise Analy-
sis Available for Public Comment
WEE SEITE cicansscanducnexhciduseinsbaseentess
TABLE OF CONTENTS ~— Continued
Page
C. If Allowed to Stand, the Court of
Appeals Decision Effectively Grants
Federal Agencies “Carte Blanche” to
Exclude Important Studies and Data
from the NEPA Process by Relying on
the Agency’s “Overall” NEPA Record.... 17
Il. THE COURT OF APPEALS ERRED IN
UPHOLDING FAA'S SYSTEMIC VIOLA-
TION OF THE MANDATES OF NEPA..... 20
A. The FAA Violated NEPA By Failing
To Implement Night Ocean Routing
Which Was a Fundamental Element
of Its Selected Alternative in the
De Cie TD siinvains dc vcbacancenccesesccccne 21
B. FAA Violated NEPA By Failing to
Include a Noise Compliance Monitor-
ing Plan in the ROD When it had
Explicitly Committed to do so in the
Final Environmental Impact State-
NE aici antecicaca camdutenandcetipkcsidamielnisusstensaew: 22
Ill. THE FAA’S FAILURE TO FOLLOW THE
MANDATES OF SECTION 4(f) OF THE
TRANSPORTATION ACT BY NOT OB-
TAINING THE COMMENTS OF STATE
AND LOCAL OFFICIALS IS A MATTER
OF VITAL IMPORTANCE TO PETI-
TIONERS THAT WAS ERRONEOUSLY
IGNORED BY THE PANBL............00.000.... 24
TABLE OF CONTENTS - Continued
Page
IV. THE COURT OF APPEALS ERRED BY
FINDING THAT PETITIONERS HAD
“FORFEITED” THEIR SECTION 4(f)
CLAIMS BY NOT PRECISELY RAISING
THE SPECIFIC ISSUE OF FAA’S DUTY
TO CONTACT STATE AND LOCAL
OFFICIALS EVEN THOUGH THE
ISSUE OF THE PROJECT IMPACTS ON
TRUST PROPERTIES WAS RAISED
DURING - THE ADMINISTRATIVE
NE a cscs sabhexcisasnuvecsaaisidaresaocueisesasaces 29
oi sain cua snennuenbantsescrdunddacestaneoks 35
APPENDIX
Court of Appeals Decision ..................cceeceseeeeeeeees App. 1
PAA, Record Of DOCISION ............ccccercccccssesccsccscees App. 13
css acsiunbscsbssnsunncesoutenaas App. 146
Denial of Rehearing En Banc.....................006+ App. 148
I ccs icnscnasanycevdnnesnecebeddecneeseaeas App. 150
Record of Decision Appendix B Supplemental
iii woah sanhsghancadvadsuhabertiubies App. 163
Sections of FAA Order 1050.1E ...................... App. 189
Comments of Harriett Cornell, Chair of County
of Rockland Legislature ....................::ssseseee App. 209
County of Rockland Comments August 30,
Tr RT er 2. OU oro Nae App. 215
Vill
TABLE OF CONTENTS -— Continued
Page
Selected Pages of Final Environmental Impact
Statement Appendix Q ............... cee eceee eee eeees App. 224
Department of Interior Comments. ................. App. 228
Selected Pages of Final Environmental Impact
Statement Appendix N ................cceeseeceseeeees App. 241
Selected Pages of Final Environmental Impact
SRI ics biva.ancctuulipecbaveinnasuivesibaedekabebnanean App. 249
FAA Response to Comment........................:066 App. 256
Friends of Rockefeller State Park Preserve
RRAIIIIEIE « ousoeiocsentas<eustbia ab ucvonescaesiiuieldaraleucenorns App. 264
TABLE OF AUTHORITIES
Page
CASES
Am. Bird Conservancy Inc. v. FA.A., 516 F.3d
pg a ke E 16, 19
Am. Radio Relay League v. FCC, 524 F.3d 227
Se AEE TU ikchvindddiisdenabscuedncbetesouénsstvieatesarinvorents 17
Amato v. Bernard, 618 F.2d 559 (9th Cir. 1980)........ 29
Andrus v. Sierra Club, 442 U.S. 347 (1979) .............. 14
Ark. Power & Light Co. v. FPC, 517 F.2d 1223
ye ee RRR 34
Balt. Gas & Elec. Co. v. Natural Res. Def.
Counctl, Inc., 462 U.S. 87 (19E3)..........ccccececcesees 6, 14
Cellnet Commc’n v. FCC, 965 F.2d 1106 (D.C.
ices ta sleds cage issues eiasdchbeenieeesds 32
Citizens to Preserve Overton Park v. Volpe, 401
ET Riis <iceudnaeadbsinbiniiswiendcscavnredoumcbias passim
Coalition for Gov’t Procurement v. Fed. Prison
Indus., Inc., 365 F.3d 435 (6th Cir. 2004)............... 29
Communities Against Runway Expansion, Inc.
v. FA.A., 355 F.3d 678 (D.C. Cir. 2004).................. 34
County of Rockland, New York v. FA.A., No.
07-1363, 2009 WL 1791345 (D.C. Cir. June
Be EE ss tu nuticrachdiaiaetonsbsius a peodakkoeiabincieinton 7, 13, 16
Diaz v. United Agric. Employee Welfare Ben.
Plan & Trust, 50 F.3d 1478 (9th Cir. 1995)............ 29
Dubois v. U.S. Dept. of Agric., 102 F.3d 1273
IPG: 5 SD snap sep akaduaha 22
TABLE OF AUTHORITIES -~- Continued
Page
Flint Ridge Dev. Co. v. Scenic Rivers Ass’n, 426
DB FF adi iidssttseneereesovcnscovececes 14
FPC v. Colo. Interstate Gas Co., 348 U.S. 492
Friends of Richards-Gebaur Airport v. F:A.A.,
ZBL FS TAFE Cee Grete Bt Peer scceccessvecccccccccceess 31, 32
Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002)........ 18
Grand Canyon Trust v. F-A.A., 290 F.3d 339
CTD. C, Cag sarc ivscscscvcccsesccneees 13
Illinois Commerce Comm. v. Interstate Com-
merce Comm., 848 F.2d 1246 (D.C. Cir. 1988) ......... 6
Kleissler v. United States Forest Serv., 183 F.3d
LOG (Sr Ca air eicesiteestcesessccnccccccceees: 32
N.E. Maryland Waste Disposal Authority v.
EPA, 358 F.3d 936 (D.C. Cir. 2004).......................001
Natl Ass’n of Regulatory Util. Comm’rs v.
F'C.C., 787 F.2d 1096 (D.C. Cir. 1984)................065. 18
latl Wildlife Fed’n v. Marsh, 721 F.2d 767
CT GRs Co, nc cccccvccsccscccces 22
Native Ecosystems Council v. Dombeck, 304
eR EE: 2
Northern Michigan Hospitals, Inc. v. Health
Net Federal Services, LLC, 2009 WL 2869149
(Sard Ci, Fie cccc ccc csccncccescscsces 29
Northwest Airlines, Inc. v. DOT, 15 F.3d 1112
(2. Ca a ccocccccccccceothd
TABLE OF AUTHORITIES — Continued
Page
Portland Cement Ass’n v. EPA, 486 F.2d 375
CR, Gas Me issu vihinds sdsnisddiineniadenseeucedivesensees eiisoben 18
Reytblatt v. U.S. Nuclear Regulatory Comm’n,
BE ee Ce ers Ge SIT Pee vtnstesnccdccsecssverccvesescscs 32
Robertson v. Methow Valley Citizens Council,
gS Re eens rP 23, 24
Southwest Ctr. For Biological Diversity v. U.S.
Bureau of Reclamation, 143 F.3d 515 (9th
Town of Marshfield v. FA.A., 552 F.3d 1 (1st
Sn SI i nbn henanecdninciieieeabechnadiinmiatsaadeie nica bbaieids 18
Town of Winthrop v. F-A.A., 535 F.3d 1 (1st Cir.
SUID ide sasivhsonnscaksstiicddaeniasvonuiaiamaiecdsauadsammitcisiias 18
Vermont Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, 4385 U.S. 519
a dikuaicbeouseienbaxanisekebuabeareeumcsmuendeediessnuadievambiienmass 7
Wilderness Society v. Salazar, 603 F. Supp. 2d
Be ils ME Picoshtnscecexecsconecostsbncsborevedcssaeteoouniedes 33
STATUTES
Be ay EE BD versus onicccecresovanenunsaviccinansausuiioaetebaon l
Oe Beas Oe a Oe OD. scasecssccesciciscventnvesenens 2,3, 6, 7,8
Oe es OF ED iver ccvecceciccsscoovsnnkacccecsesdeevenvesuses
NE Ue MII ci cies daicedéeadcacbiavdaeseonssiseedcuk banal 25
A passim
x]
TABLE OF AUTHORITIES — Continued
Page
Oe Beads We IED cskcencosccesccscssncssscescoscscseses iebencadiata 4, 24
ol | ens EIneE: 5
REGULATIONS
40 C.F.R. § 1500, et seq. ........ fagdenvbalineeeaneadiamean 14
40 C.F.R. § 1502.9(c)............. poke) ae oe ee ee 22
Be ee BI EE Pas ceusccvnchovctcdeceteiccocnsdonens ‘sseaeeaaall 21
OF Fs Oe cine sninncessecndnisbesectisatesstieveee wi oe
1
PETITION FOR WRIT OF CERTIORARI
The Petitioners, County of Rockland, New York,
the Connecticut Department of Environmental Pro-
tection, the Friends of Rockefeller State Park Pre-
serve, the City of Elizabeth, New Jersey, and the New
Jersey Coalition Against Aircraft Noise respectfully
pray that this Court issue a writ of certiorari to
review the decision of the United States Court of
Appeals for the District of Columbia Circuit entered
in this case on June 10, 2009.
.
CITATIONS TO OPINIONS BELOW
The opinion of the United States Court of Ap-
peals for the District of Columbia Circuit (D.C. Cir.
June 10, 2009) is reprinted in the Appendix at App. 1.
The Court denied Petitioners’ request for rehearing
or rehearing en banc on August 19, 2009. The Court’s
orders are reprinted in the Appendix at App. 146-149.
¢
JURISDICTIONAL STATEMENT
The judgment of the United States Court of Ap-
peals for the District of Columbia Circuit was entered
on June 10, 2009 and the Court denied petition for
rehearing and rehearing en banc on August 19, 2009.
This Court has jurisdiction over this petition pur-
suant to 28 U.S.C. § 1254(1).
+
2
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED IN THE CASE
The relevant statutes in this case are the
Transportation Act of 1966, 49 U.S.C. § 303, and the
National Environmental Policy Act of 1970, 42 U.S.C.
§ 4321, et seq.
STATEMENT OF THE CASE
This case arises out of a decision of the Federal
Aviation Administration (FAA) approving the FAA’s
Airspace Redesign Project for the New York, New
Jersey and Philadelphia Metropolitan Areas to com-
prehensively redesign air traffic and control over a
31,000 square mile, five state region with 29 million
affected residents. This massive project impacts popu-
lations throughout suburban New Jersey, New York,
Connecticut, and Philadelphia as well as the public’s
use and enjoyment of numerous federal, state and
local parks, recreation areas and historic sites, ex-
tending from Delaware to Connecticut.
In July, 2007, after a lengthy process, the FAA
released its Final Environmental Impact Statement
(EIS) under NEPA and allowed an additional 30 days
for public comment. On September 28, 2007, the FAA
released both its final corrected Record of Decision
(ROD) and a new analysis of noise impacts to selected
national parks and protected properties that were
never made available for public comment during
the NEPA process. Twelve groups of petitioners
3
challenged the decision in three separate courts of
appeals alleging, inter alia, violation of NEPA, the
Transportation Act, and the Clean Air Act. The cases
were consolidated in the Court of Appeals for the
District of Columbia Circuit.
On June 10, 2009, the United States Court of
Appeals for the District of Columbia Circuit dis-
missed the chalienge to the FAA’s decision. App. 1.
In so doing, the Court held that none of the FAA’s
challenged actions constituted a significant pro-
cedural deficiency under the National Environmental
Policy Act. The Court also held that the Petitioners
“forfeited” their opportunity to raise a claim under
Section 4(f) of the Transportation Act that the FAA
had failed to consult all state and local park officials
and did not give individualized attention to at least
236 public trust park and recreation areas because
that precise claim had not been raised during the
administrative proceeding. The Court denied peti-
tions for rehearing and rehearing en banc on August
19, 2009. App. 146-149.
REASONS FOR GRANTING THE WRIT
This case raises important questions concerning
judicial review of DOT actions under NEPA and
Section 4(f) of the Transportation Act as interpreted
by this Court in Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 (1970). NEPA provides the right
of public review and comment on the environmental
4
impacts of major government projects. Yet, in this
case, the FAA released and relied upon a critical noise
analysis of 12 federal parks and historic sites only
after the period of public comment was over, thus
denying the public the opportunity to review and
comment on that important analysis. The Court of
Appeals never examined the importance of that anal-
ysis and its omissions and simply stated that the
public’s opportunities to comment on other unrelated
aspects of the project were sufficient. Further, the
Court of Appeals failed to address Petitioners’ ar-
gument that the FAA’s decision not to implement
Night Ocean Routing — a fundamental part of the
FAA’s selected alternative in the Record of Decision —
was a significant change in the Project requiring a
Supplemental Environmental Impact Statement
(“SEIS”) and failed to address the FAA’s decision not
to include a noise compliance monitoring plan in the
ROD after explicitly committing to include that plan
in the FEIS.
Section 4(f) of the Transportation Act prohibits
the Secretary of Transportation from adopting a proj-
ect requiring the use of a public park unless “there is
no prudent and feasible alternative.” 49 U.S.C.
§ 303(c). That section and DOT’s own regulations
required the FAA to affirmatively contact state
officials regarding the potential impacts to parks and
historic properties to assess whether a “constructive
use” will result — an obligation forcefully supported
’ For a project to result in constructive use, a substantial
impairment must occur. FAA Order 1050.1E defines “substantial
(Continued on following page)
a)
in Overton Park. The Court of Appeals improperly
rejected that argument as not having been raised
before the Agency and never addressed the Overton
Park decision.
These procedural failures constitute serious vio-
lations of federal law. The decision below ignored
these violations and did not engage in a “searching
and careful review” mandated by Overton Park as to
whether an Agency’s actions followed proper proce-
dural requirements. Id. at 417. This decision con-
stitutes an extreme departure from this Court’s long-
established precedent on issues of vital importance to
Petitioners and the public they represent.
I. THE COURT OF APPEALS HOLDING
PERMITTING THE FAA TO DEFER
A CRITICAL SUPPLEMENTAL NOISE
ANALYSIS FROM THE SCRUTINY OF
THE EIS PROCESS UNDERMINES FUN-
DAMENTAL NEPA LAW.
The Court of Appeals erred by allowing the FAA
to defer a critical supplemental noise analysis to
avoid the scrutiny of the NEPA process. The agency
relied on this in making a final determination in
meeting its underlying statutory duty that its Air
Space Redesign project will not violate the strong
impairment” as “when the activities, features, or attributes of
the resource that contribute to its significance or enjoyment are
substantially diminished... .” Order 1050.1E, App. A § 6.2f. App.
197-198.
6
Congressional mandate under Section 4(f) of the DOT
Act to avoid use of any federal, state or local park or
historic property unless there are no “prudent or
feasible” alternatives. If the Court of Appeals decision
is allowed to stand, any federal agency may decide to
exclude important studies from public scrutiny of the
NEPA process even where those studies are central to
the final agency decision. That result is contrary to
NEPA, the CEQ regulations, the FAA’s implementing
NEPA procedures and the Court of Appeals for the
District of Columbia Circuit’s prior holdings.’
Indeed, this decision violates the twin goals of
NEPA, as articulated by this Court in Balt. Gas &
Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S.
87, 97 (1983) (citations omitted), “plac[ing] upon the
agency the obligation to consider every significant
aspect of the environmental impact of a proposed ac-
tion... . [and], ensur[ing] that the agency will inform
the public that it has indeed considered environ-
mental concerns in its decision-making process.” To
accomplish these twin aims, NEPA requires that
federal agencies prepare draft and final environ-
mental impact statements that thoroughly analyze
* As stated by the Court of Appeals, “NEPA was intended to
ensure that decisions about federal actions would be made only
after responsible decision-makers had fully adverted to the
environmental consequences of the actions and had decided that
the public benefits flowing from the actions outweighed their
environmental costs.” Illinois Commerce Comm. v. Interstate
Commerce Comm., 848 F.2d 1246, 1259 (D.C. Cir. 1988).
7
all environmental impacts from its decision. See id;
Vermont Yankee Nuclear Power Corp. v. Natural Res.
Def. Council, 435 U.S. 519, 553 (1978).
Here, despite the fact that the FAA had under-
gone a lengthy EIS process, with considerable public
comment, the Agency decided to include a post hoc
supplemental noise analysis of 12 parks and historic
properties studied at the specific request of the
National Park Service to determine whether the
project would “substantially impair” the public’s use
and enjoyment of those resources due to noise
impacts from increased overflights. Without any
analysis of the importance of the study in the FAA’s
decision making process, the Court excused FAA's
decision to append this study to the Record of Deci-
sion — hiding that analysis from undergoing scrutiny
in environmental review process — because the FAA
otherwise performed an “extensive public outreach
effort” and “thorough process of environmental re-
view.” County of Rockland, New York v. F-‘A.A., No. 07-
1363, 2009 WL 1791345, *8 (D.C. Cir. June 10, 2009)
(“As indicated by FAA’s extensive public outreach
effort and its thorough environmental review process,
the agency complied with the CEQ regulation” that
direct the agency to make diligent efforts to involve
the public in preparing and implementing its NEPA
procedures.”) App. 9.
8
A. The FAA’s Ad Hoc Supplemental Noise
Analysis Was Critical to the Public’s
Understanding of the Project and the
FAA’s Reliance on the Analysis Without
the Benefit of Public Comment Violated
NEPA.
The importance of this analysis to the public’s
understanding of the project’s impacts to noise
sensitive parks and for fully informing the FAA
decision makers is clear from the record. On October
20, 2005, FAA released a Draft EIS (DEIS) that
included a 4(f) noise analysis. The DEIS’ 4(f) analysis
received extensive comments and criticisms. Signifi-
cantly, DOI harshly criticized FAA’s 4(f) analysis,
commenting that “liJnformation presented in the
DEIS regarding noise and visual changes, federally
listed species, and aircraft-bird collisions is currently
insufficient.” With respect to FAA’s 4(f) analysis, the
letter continued: “It is difficult to determine potential
impacts to the 30 national park units within the
study area with the data provided.” DOI explained:
* App. 232 (emphasis added). Under FAA’s Order 1050.1F,
DOI retains an important role in ensuring FAA’s compliance
with 4(f), in part, because it has junsdiction over many 4(f)
resources. See FAA Order 1050.1E 6.1le,}. App. 196-197, 200-201.
* Id. The letter went on to state:
“For example, Fire Island National Seashore,
Delaware Water Gap National Recreation Area, and
Upper Delaware Scenic and Recreational River are
within the airspace of Islip and Newburgh/Stewart
airports. These park units may be subject to impacts
(Continued on following page)
9
“The main metric used for noise analysis in
the DEIS (i.e., Day/Night Average Sound
Level (DNL)) is not appropriate as the only
metric for determining noise impacts to
national parks. Additional metrics, such as
time above ambient and percent time audi-
ble, provide a more complete and accurate
description of potential noise impacts on
national parks and other noise sensitive
receptors. The Department finds that the
noise analysis presented in the DEIS for
[National Park Service] units and other
noise-sensitive receptors in the study area is
inadequate, and recommends revising the
impact analysis to follow the correct FAA
guidelines for noise-sensitive receptors and
to include audibility and other more appro-
priate metrics in the assessment of impzcts.”
DOI Comment, FEIS App. N. App. 234-235.
from routing more traffic over them. However,
information in the DEIS is insufficient to evaluate
such impacts because the airspace of the various air-
ports, the proposed reroutes of flights, and the
locations of parks, historic sites and other noise-
sensitive receptors are not clearly illustrated. Historic
resources and parks, including the park units listed
above, should be added to the Alternative Flight Track
Change Illustrations located in Appendix E, Attach-
ment C. It is not clear how determinations regarding
impacts to NPS resources were made. Data required
to make such determinations were either not
available or not clearly identified.”
App. 232-233.
10
Thus, DOI believed the exclusive use of the DNL
metric for such noise sensitive sites was inadequate
for determining whether 4(f) resources would be put
to “use” by FAA’s airspace redesign. Jd.” App. 234.
DOI further commented that
“(blased on the above uncertainties, the De-
partment cannot concur with the conclusion
in the DEIS that there is no use of a Section
4(f) resource. We recommend that the FAA
perform a more thorough analysis of impacts
to National Park System units and the other
listed Section 4(f) resources, using the cor-
rect guidelines and appropriate metrics, then
re-evaluate the issue of 4(f) use.”
Appendix N to FEIS, DOI Comment Letter. App. 236.
In response to DOI’s comments, FAA provided as-
surances that the Final EIS would include additional
noise analysis that would satisfy DOI and other
stakeholders. See Appendix N, Response to Com-
ments App. 241; Appendix Q to FEIS. App. 226. The
FAA even subsequently kept the public comment
period open for 30 days after the issuance of the
FEIS. See Corrected Record of Decision (ROD) at p.
50. App. 125). However, despite FAA’s assurances,
* “DNL” stands for Day-Night Average Sound Level. DNL is
a single value, expressed in decibels, that attempts to describe
the overall noise level during an average day. To represent the
greater annoyance caused by nighttime noise, the DNL metric
adds a ten-decibel “penalty” for each nighttime noise event. App.
169.
11
FAA deferred the additional analysis until after the
Final EIS was completed and the public comment
period closed. That deferred analysis covered twelve
sensitive 4(f) resources. In fact, the FAA’s explanation
for conducting the additional analysis’ — that it only
need to consult with appropriate federal and state
officials outside the light of the public and open EIS
process — directly contradicted the FAA’s recognition
in the Draft and Final EIS that it needed to make
4(f) noise analysis available as part of the EIS proc-
ess. See FAA Order 1050.1E, App. 241-248, 163.
Petitioner County of Rockland, in commenting on
the FEIS, even urged the FAA to “make its noise im-
pact analyses available for additional public comment
so that the impacts to these sensitive resources may
be fully evaluated by decision-makers prior to issuing
the ROD.” App. 220. In so urging, Rockland noted
that the FAA’s own NEPA procedures recognize that
the agency “will consider use of appropriate supple-
mental noise analyses in consultation with officials
having jurisdiction for national Parks, national wild-
life refuges and historic sites including traditional
cultural properties where a quiet setting is a
* “In Section 5.3.5.1 of the FEIS the FAA committed to con-
duct further evaluation, in consultation with appropriate federal
and state officials, to determine whether predicted noise in-
creases or visual changes over affected areas of the 4(f)
resources listed in Table B.1 of Appendix B in the Record of Deci-
sion would result in a constructive use.” Corrected ROD at B-1.
App. 163.
12
generally recognized purpose.” Part 1050. App. 220.’
The Agency’s only response was that “[tjhe letter
raises issues that have already been addressed by
FAA during the public comment process. As such,
FAA is not providing additional responses to this
letter.” ROD at 54. App. 133-134.
The FAA’s refusal to make this post-FEIS analy-
sis available for public comment is especially im-
portant because the analysis was not merely an
insignificant additional study. /t was central to FAA’s
final determination that the Project would not “use”
any 4(f) resources. While the additional analysis
studied 12 additional parks requested by DOI, the
FAA still concluded that it could rely on its DNL
metric and not use a supplemental noise metric to
provide a more complete and accurate description of
potential noise impacts as DOI recommended. DOI
Comments FEIS App. N. App. 241-247; App. 235-236.
FAA's Record of Decision (ROD) stated that “(als to
constructive use of other 4(f) properties, the analysis
in the EJS and the additional analysis included in the
ROD in response to DOI comments, confirm that the
selected project would not cause increases in noise or
" The County of Rockland even submitted a report from its
expert stressing that “No technical rationale supports use of
DNL to predict noise impacts in outdoor recreational settings
Additional metrics such as time above ambient level and percent
audible time provide a more complete and accurate description
of potential noise impacts on national parks and other noise
sensitive receptors.” Corrected ROD at D-57. App. 219-220.
13
other proximity impacts sufficient to impair the value
of those resources.” Corrected ROD at 55. App. 136
(emphasis added). The “additional analysis included
in the ROD in response to DOI comments” is the post-
EIS 4(f) noise analysis that FAA assured DOI and
others it would include in the Final EIS in response
to comments. See Appendix Q to FEIS. App. 226.
In short, the FAA relied on this post-EIS noise
analysis to reach its ultimate conclusion but without
permitting additional public and agency comments on
the adequacy of this critical late report.*
B. The Court of Appeals Reference to the
FAA’s “Extensive Public Outreach” to
Justify the FAA’s Failure to Make the
Post-EIS Supplemental Noise Analysis
Available for Public Comment Violates
NEPA.
The Court of Appeals excused FAA’s failure to
make the additional analysis available for public com-
ment as part of the NEPA process because FAA
conducted an “extensive public outreach effort” and a
“thorough environmental review process.” County of
Rockland, New York, 2009 WL 1791345 at *8. App. 9.
But extensive public outreach and an otherwise
’ Cf Grand Canyon Trust v. FA.A., 290 F.3d 339, 343-44
(D.C. Cir. 2002) (explaining how FAA completed a detailed site
specific supplemental noise analysis beyond just using DNL
levels, regarding noise impacts to Zion National Park in Utah
from a proposed replacement airport).
14
adequate environmental review do not excuse FAA’s
violations. The Court of Appeals’ circular rationale
does injustice to the basic principles of NEPA, and
the procedural requirements of CEQ regulations and
FAA’s Order 1050.1E. See Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. at 97, supra
(citations omitted). Compliance with NEPA is re-
quired “to the fullest extent possible,” 42 U.S.C.
§ 4332(2)(C), a command which this Court has ad-
monished is “neither accidental nor hyperbolic.” Flint
Ridge Dev. Co. v. Scenic Rivers Ass’n, 426 U.S. 776,
787 (1976). By deferring decisive portions of the 4(f)
analysis until the EIS was completed, the FAA made
it impossible to consider every significant aspect of
the environmental impact during the environmental
review process. See id.
The Court of Appeals’ rationale is also inconsis-
tent with CEQ regulations, which this Court has held
are entitled to substantial deference.” CEQ regulation
40 C.F.R. § 1506.6(a) requires the agency to make
diligent efforts to involve the public during the envi-
ronmental review process. /d. Under that regulation,
the FAA should have allowed a public comment
period on the post-EIS 4(f) study. As noted above,
* NEPA created the Council on Environmental Quality
(“CEQ”); CEQ promulgated regulations governing NEPA’s imple-
mentation (“CEQ Regulations”) in 1978. 40 C.F.R. § 1500, et seq.
The CEQ Regulations are applicable to and binding on all
federal agencies. 40 C.F.R. § 1500.3. Courts are to give those
regulations “substantial deference.” Andrus vu. Sierra Club, 442
U.S. 347, 358 (1979).
15
Petitioner County of Rockland demanded that FAA
do so. See ROD App. D. App. 219-220. But the FAA
simply rejected that request “out of hand.” See
Corrected ROD at p. 54. App. 133-134.
Had Petitioners and other members of the public
been allowed to comment on the post-EIS study, they
could have not only challenged the analysis of these
12 federal parks, but they would likely have ques-
tioned why the FAA did not conduct an analysis of
other overlooked state and local parks, including
Centennial Watershed State Forest in Connecticut
and several parks in County of Rockland that will
have more than a 3.0 DNL increase — the threshold
for a more careful evaluation under the Part 150
guidelines.” Petitioners would have also likely fo-
cused on the need for a supplemental noise analysis
for Rockefeller State Park Preserve (RSPP) in New
York, a Park that was established by New York law
for passive use where motorized vehicles, sporting
activities and picnicking are not permitted and which
the FAA’s own noise screening analysis indicated
" Centennial Watershed State Forest, located in Fairfield,
Connecticut, in an area most affected by changing air routes,
includes more than 15,000 acres of !and specifically set aside for
watershed protection and noise sensitive, passive recreational
uses like hiking. Pet. Br. at 97. The Rockland County Parks “are
examples of county parks known for their passive recreational
activities such as hiking, experiencing the local ecology and
viewing wildlife.” Decl. of Alan Beers at Add. D to Pet. Br.
16
would experience an increase in noise as a result of
the project." App. 264-268.
Here, the Court of Appeals even cited Section
1506.6(a) of CEQ regulations, and its recent decision
of Am. Bird Conservancy Inc. v. FA.A., 516 F.3d 1027,
1035 (D.C. Cir. 2008) (holding that CEQ regulations
requiring “diligent efforts to involve the public in
preparing and implementing their NEPA procedures”
requires, in part, that agencies give the public a
comment period before making a final decision). Yet,
the Court attempts to distinguish that decision as
“jnapposite” because, in appending additional analy-
ses to the ROD in this case, the FAA did not “‘evade’
implementation of any FAA regulation requiring ad-
ditional notice or public comment.” County of Rock-
land, New York, 2009 WL 1791345 at *6. App. 9.
However, that is a false distinction in light of the
“FAA’s Community Involvement Policy Statement”
(dated April 17, 7995), affirming FAA’s commitment
to make complete, open and effective public partici-
pation an essential part to its actions, programs
and decisions. Section 208a of Order 1050.iE. App.
" RSPP was designated by New York state law as limited to
passive recreation uses compatible with the long term protection
of ecological and historical resources that merited designation of
the park preserve. App. 264-268. See Decl. of Alix Schnee, Add.
to Pet. Br. 47 (“Neither the Rockefeller Park Preserve as a whole
nor the portion of the Park Reserve most impacted by the
Redesign Project ... was subjected to any baseline noise
monitoring or assessment or was analyzed by noise modeling or
by any other means to assess the noise impact of the Project.”).
17
190-191. Because the FAA did not have procedures
similar to the FCC’s regarding the public’s right to
challenge a license decision, that does not permit the
FAA to rely on the Agency’s FAA’s overall public
outreach effort to meet NEPA’s and its own exacting
public participation requirements while also con-
cealing this critical study from public scrutiny.
C. If Allowed to Stand, the Court of
Appeals Decision Effectively Grants
Federal Agencies “Carte Blanche” to
Exclude Important Studies and Data
from the NEPA Process by Relying on
the Agency’s “Overall” NEPA Record.
The consequences of the Court of Appeals deci-
sion are serious. If allowed to stand, the Court of
Appeals decision would permit a federal agency to
pick which studies an agency will offer the public for
comment, and which studies it will not. That holding
stands in marked contrast to the Court of Appeals
recent holding that “it would appear to be a fairly
obvious proposition that studies upon which an
agency relies on in promulgating a rule must be made
available during the rulemaking in order to afford
interested persons meaningful notice and an opportu-
nity for comments.” Am. Radio Relay League v. FCC,
§24 F.3d 227, 237 (D.C. Cir. 2008) (remanding the
Commission’s rule for its failure to make available for
notice and comment unredacted “technical studies
18
and data that it has employed in reaching its deci-
sion”); Natl Ass’n of Regulatory Util. Comm’rs uv.
F:C.C., 737 F.2d 1095, 1121 (D.C. Cir. 1984) (holding
that “[d]isclosure of staff reports allows the parties to
focus on the information relied on by the agency and
to point out where that information is erroneous or
where the agency may be drawing improper conclu-
sions from it.”). Public participation is an extremely
important aspect of the NEPA; it provides the feed-
back that agencies need to make an informed deci-
sion.
Further, by permitting FAA to defer analysis so
critical to its 4(f) determination, the Court of Appeals
gives agencies the right to violate their own NEPA
implementing orders. See FAA Order 1050.1E." App.
' See also Gerber v. Norton, 294 F.3d 173, 182 (D.C. Cir.
2002) (holding that the federal agency violated the ESA by
failing to release map that “was indispensable if [public interest
groups] were to have meaningful opportunity to comment on
Winchester’s permit application”); Portland Cement Ass’n v.
EPA, 486 F.2d 375, 393 (D.C. Cir. 1973) (“it is not consonant with
the purpose of a rule making proceeding to promulgate rules on
the basis of inadequate data or that [to a] critical degree is
known only to the agency.”).
'* Lower courts treat the Order as having the force of law.
See Town of Winthrop v. FA.A., 535 F.3d 1, 7-8 (1st Cir. 2008)
(treating FAA Order 1050.1E as binding); Town of Marshfield v.
FA.A., 552 F.3d 1, 3 (1st Cir. 2008) (same). The Order provides
in relevant part:
“This order provides Federal Aviation Administration
(FAA) policy and procedures to ensure agency com-
pliance with the requirements set forth in the Council
on Environmental Quality (CEQ) regulations for
(Continued on following page)
19
189-201. In relevant part, FAA’s implementing Order
provides that “[tJhe EIS should thoroughly analyze
and document prudent and feasible alternatives that
would avoid the use of Section 4(f) property and
provide detailed measures to minimize harm.” Id.
App. 201-202. That Order does not grant FAA dis-
cretion to defer critical studies such as the post-FEIS
analysis at issue here from the NEPA process. In fact,
the opposite is true. The Order requires a thorough
analysis and, by implication, thorough study in the
Final EIS, not afterwards. See FAA Order 1050.1E.
App. 201-202. By upholding the FAA's decision, the
Court of Appeals permits a federal agency to choose
when to follow its own NEPA implementing proce-
dures, in violation of NEPA’s strict procedural man-
date. Am. Bird Conservancy, 516 F.3d at 1033
(remanding an agency decision for failure to follow its
own NEPA implementing regulation).
Finally, the NEPA violations sanctioned by the
Court of Appeals are especially serious in the context
of this project. The FAA developed the Airspace Re-
design “to address congestion and delays at some of
our nation’s busiest airports.” Corrected ROD at p. 1.
implementing the provisions of the National Environ-
mental Policy Act of 1969 (NEPA), 40 Code of Federal
Regulations (CFR) parts 1500-1508; Department of
Transportation Order DOT 5610.1C, Procedures for
Considering Environmental Impacts; and other re-
lated statutes and directives.”
FAA Order 1050.1E at 1.
20
App. 20. The project entailed profound changes in air
traffic control procedures and flight paths affecting 30
million people living throughout 31,180 square miles
in a five state region. It is being implemented in four
stages through 2012. Public involvement was critical
in this process to meet the environmental goals set
forth under Section 4(f) and NEPA. The FAA was
under a duty not to take any “shortcuts” that would
deprive the public of their right to participate in order
to fully inform the FAA in making such a far reaching
decision. Yet, the Court of Appeals has approved a
process that prevents state and local officials (and the
public they represent) from participating fully in the
FAA's vital decision making process.
Il. THE COURT OF APPEALS ERRED IN
UPHOLDING FAA’S SYSTEMIC VIOLA-
TION OF THE MANDATES OF NEPA.
In addition to withholding an important environ-
mental impacts analysis from public review and
comment, FAA also violated NEPA by repeatedly
informing the public and decision-makers of elements
of its mitigation plan which it then failed to imple-
ment. Thus, the public was not only never informed of
all potential project impacts, but it was then mislead
as to the nature and extent of FAA’s mitigation
efforts.
21
A. The FAA Violated NEPA By Failing
To Implement Night Ocean Routing
Which Was a Fundamental Element of
Its Selected Alternative in the Record
of Decision.
FAA selected night ocean routing as a funda-
mental part of its Selected Alternative in the ROD to
mitigate Project noise impacts on the areas surround-
ing Newark Airport. ROD at p. 22. App. 65-66; App.
249-255. FAA admitted that noise mitigation was
essential to eliminate significant noise impacts on
those areas by 2011. Id. FAA committed in the ROD
to re-evaluate the FEIS, undertake appropriate envi-
ronmental review, and amend the ROD if it revised or
eliminated night ocean routing. ROD at p. 50. App.
125.
Night ocean routing has not been, and may never
be, implemented. Without night ocean routing, FAA’s
Selected Alternative approved in the ROD is not the
Project being implemented. The public has accord-
ingly been denied the opportunity to evaluate and
comment on the Selected Alternative without one of
its most essential components. 40 C.F.R. § 1502.14(b).
Moreover, FAA’s noise modeling data for a large por-
tion of the Project area are based upon and assume
the existence of night ocean routing. Thus, the failure
to implement night ocean routing invalidates much of
the noise impact data contained in the FEIS and
upon which the ROD is largely based. As FAA essen-
tially conceded when it committed to re-evaluate the
FEIS if this essential mitigation measure was not
22
adopted, FAA’s failure to implement night ocean
routing and failure to undertake appropriate environ-
mental review constitutes a “substantial change in
proposed action” triggering the requirement for a
Supplemental Environmental Impact Statement. 40
C.F.R. § 1502.9(c).
The Court of Appeals decision conflicts with deci-
sions of other circuits holding that a SEIS is required
if a significant impact on the environment will result
from subsequent project changes. Dubois v. U.S. Dept.
of Agric., 102 F.3d 1273 (1st Cir. 1996); Nat’l Wildlife
Fed’n v. Marsh, 721 F.2d 767 (11th Cir. 1983). Indeed,
the FAA even admitted that without mitigation “sig-
nificant and reportable impacts were projected in
areas of Elizabeth.” Resp. Br. 69. See also Pet. Br. 59,
n.46. Thus, because the FAA has acknowledged that
night ocean routing was a critical component of its
mitigation plan proposed in the FEIS. FEIS App. Q.
App. 260-262. The FAA is required to prepare an
SEIS to consider the impacts that such a funda-
mental change to the project will have on the public
health and welfare.
B. FAA Violated NEPA By Failing to In-
clude a Noise Compliance Monitoring
Plan in the ROD When it had Explicitly
Committed to do so in the Final En-
vironmental Impact Statement.
FAA unequivocally committed in the FEIS to in-
clude a noise compliance monitoring plan in the ROD.
23
FEIS App. Q. App. 257-259. FAA’s ROD did not con-
tain a noise compliance monitoring plan. FAA Order
1050.1E, Paragraph 512b states that any mitigation
measure made a condition of approval of the FEIS
must be included in the ROD. App. 257-259; Pet. Br.
62. The FEIS and ROD state that noise mitigation is
required to avoid significant environmental justice
impacts to minority communities in the City of
Elizabeth. ROD at pp. 21-22. App. 63-67; App. 249-
255. FAA ignored its own rule by failing to include a
noise compliance monitoring plan in the ROD. FAA
Order 1050.1E, Paragraph 512b. App. 257-258.
The Court of Appeals decision dismissed FAA’s
binding commitment in the FEIS to include a noise
compliance monitoring plan in the ROD as a “stray
comment.” App. 7. This was neither a proper applica-
tion of the law nor accurate. Elsewhere in the FEIS,
in response to a comment expressing concern re-
garding whether the modeled noise results would be
achieved in practice, FAA again cited FAA Order
1050.1E, Paragraph 512b and reiterated that, with
respect to each mitigation measure selected, a “moni-
toring and enforcement program shall be adopted. .. .”
FEIS App. Q. App. 256-259. The Court then concluded
that “[a]bsent a firm commitment to such monitoring,
neither NEPA nor the agency’s regulations require it.”
App. 7 (emphasis added). The Court did not define
what would constitute a “firm” commitment as op-
posed to any other commitment. The panel cited to
this Court’s decision in Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 359 (1989), but that
24
opinion does not support the panel’s conclusion. In
this case, unlike Robertson, FAA unqualifiedly com-
mitted to a specific noise mitigation plan in the FEIS.
FEIS App. Q. App. 259. If left standing, the Court of
Appeal’s decision effectively modifies Robertson uv.
Methow Valley by extending that decision to cases
where an agency explicitly reneges on its EIS com-
mitment to implement specific mitigation measures.
Ill. THE FAA’S FAILURE TO FOLLOW THE
MANDATES OF SECTION 4(f) OF THE
TRANSPORTATION ACT BY NOT OB-
TAINING THE COMMENTS OF STATE
AND LOCAL OFFICIALS IS A MATTER OF
VITAL IMPORTANCE TO PETITIONERS
THAT WAS ERRONEOUSLY IGNORED BY
THE PANEL.
Certiorari is further warranted because the
Court of Appeals approved an action of the FAA that
completely failed to follow the requirements of
Section 4(f) of the Transportation Act. Section 4(f)
and Overton Park impose on the FAA a mandatory
duty to communicate with state officials regarding
the protection of public parks and historic properties.
See, 49 U.S.C. § 303(c); Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 411-412 (1971). The FAA
never contacted Connecticut or County of Rockland
officials regarding the potential 4(f) impacts to public
trust parks and properties. By not contacting rele-
vant state and local officials, the FAA unlawfully
deprived these officials of their right to comment on
25
and fully inform the FAA of the impact of the agency’s
project on these important public trust properties.
Yet, the court below has approved the FAA’s doing
precisely that by upholding the agency’s decision not
to contact local officials (and effectively the public
they represent) and allow them to participate fully in
the FAA’s vital decision making process. This error
involves a question of federal law of vital importance
to all states and local governments.
Public involvement is a fundamental element in
meeting the environmental goals set forth under
Section 4(f). Section 4(f) expressly “prohibit{s] the
Secretary of Transportation from adopting a project
... requiring the use of ... a public park...” unless
“there is no prudent and feasible alternative. ...” 49
U.S.C. § 303(c)."* As this Court noted more than thirty
years ago in its only case interpreting Section 4(f) in
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 411-412 (1971):
Section 4(f) of the Department of Trans-
portation Act and § 138 of the Federal-Aid
Highway Act are clear and specific directives.
Both ... provide that the Secretary ‘shall not
approve any program or project’ that re-
quires the use of any public parkland ‘unless
(1) there is no prudent and feasible alter-
native to the use of such land, and (2) such
‘* Note that 49 U.S.C. § 301(8) states that the FAA is to
“consult and cooperate with State and local government.”
26
program includes all possible planning to
minimize harm to such park...’
In Overton Park, the United States Department
of Transportation argued, as the FAA does here, that
it had discretion to decide how to determine the ex-
tent of the impact of its project. This Court, however,
noted that “no such wide-ranging endeavor was
intended” under the Act and that “[iJt is obvious that
in most cases” it would be less expensive and more di-
rect to use public parkland than to disrupt residential
or commercial land. Jd. at 412-13. The Court then
concluded that “very existence of the statutes in-
dicates that protection of parkland was to be given
paramount importance.” Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 412-413 (1971) (footnotes
omitted)."° The Court added that “Congress . . . speci-
fied only a small range of choices that the Secretary
can make [and that] a reviewing court must be able
to find that the Secretary could have reasonably
believed that in this case there are no feasible al-
ternatives or that alternatives do involve unique
problems.” Jd. at 416. The Overton Park Court also
explicitly held that the court’s inquiry “is to be
searching and careful” and that such review includes
'* As the Court stated, “the legislative history indicates that
the Secretary is not to limit his consideration to information
supplied by state and local officials but is to go beyond this
information and reach his own independent decision.” 114 Cong.
Rec. 24036-24037. Id. at 413 n.28.
27
“whether the Secretary’s actions followed the neces-
sary procedural requirements.” /d. at 416-417.
This case does not involve a question of the
insufficiency or inadequacy of the FAA’s efforts to
communicate. Rather, in defiance of a clear mandate,
the FAA never communicated with officials of Connec-
ticut’s Department of Environmental Protection and
County of Rockland park officials regarding impacts
to State and County parks and properties protected
by Section 4(f). That failure directly conflicts with the
FAA’s own regulation implementing Overton Park
stating that the FAA “assumes ... that any part of a
publicly owned park, recreation area, refuge or his-
toric site is significant unless there is a statement of
insignificance relative to the whole park by the fed-
eral, state or local official having jurisdiction thereof ”
and that “the responsible FAA official must consult
all appropriate Federal, State and local officials
having jurisdiction over the affected Section 4(f)
resources when determining whether project-related
noise impacts would substantially impair the
resources.” Order 1050.1E sect. 6.2(a) and (e). App.
195-197.
The FAA’s failure to follow the Overton Park
mandate and the Agency’s own regulations under-
mines the FAA’s ultimate conclusion as stated in the
FAA’s corrected Record of Decision that: “As to
constructive use of other 4(f) resources, the analysis
in the EIS and the additional analysis in the ROD in
response to DOI comments confirm that the selected
project would not cause an increase in noise or other
28
proximity impacts sufficient to impair the value of
those resources.” Corrected ROD at 52. App. 136
(emphasis supplied). This statement is clearly mis-
leading because the FAA's statement was based on a
record that is legally incomplete and may not support
the FAA’s ultimate conclusion that the project would
not result in a “constructive use” of any Section 4(f)
trust property anywhere in the five state project area.
Further, by ignoring Overton Park and the FAA’s
own regulations as applied to this record, the court
failed to engage in the “searching and careful review”
required by law. Without any analysis of the law and
the facts, the court below has endorsed the FAA’s
“shortcuts” in meeting its 4(f) responsibilities. Under
this ruling, the FAA need only consider a “subset” of
selected potential 4(f) properties in making the cru-
cial threshold determination of whether the project
could result in a constructive use of any federal, state
or local park and historic site without ever contacting
state or local park officials. If such officials deter-
mine, after the close of comments, that important
public properties in their jurisdictions were never
evaluated for potential uses in violation of 4(f), they
can never challenge FAA’s arbitrary determination.
They would forever be deprived of an opportunity to
present evidence that the FAA overlooked important
trust resources located in their jurisdiction where a
quiet setting was a generally recognized feature or
attribute of the site’s significance.
29
IV. THE COURT OF APPEALS ERRED BY
FINDING THAT PETITIONERS HAD
“FORFEITED” THEIR SECTION 4(f)
CLAIMS BY NOT PRECISELY RAISING
THE SPECIFIC ISSUE OF FAA’S DUTY TO
CONTACT STATE AND LOCAL OFFI-
CIALS EVEN THOUGH THE ISSUE OF
THE PROJECT IMPACTS ON TRUST
PROPERTIES WAS RAISED DURING THE
ADMINISTRATIVE PROCESS.
Certiorari is also warranted because the Court of
Appeals misinterpreted its own precedent on the law
of waiver and ignored numerous decisions from other
circuits in holding that Petitioners had “forfeited”
their right to challenge the clear failure of the FAA to
affirmatively contact and seek input from state
officials and other parties regarding affected parks.
The standard of review of the purely legal issue
of the applicability of the doctrine of waiver is de
novo. See Coalition for Gov’t Procurement v. Fed.
Prison Indus., Inc., 365 F.3d 435, 461-462 (6th Cir.
2004) (waiver doctrine is the codified version of
exhaustion.) See Northern Michigan Hospitals, Inc. v.
Health Net Federal Services, LLC, 2009 WL 2869149,
*4 (3rd Cir. 2009) (The standard of review under the
doctrine of issue exhaustion is de novo review); Diaz
v. United Agric. Employee Welfare Ben. Plan & Trust,
50 F.3d 1478, 1483 (9th Cir. 1995) (citing Amato uv.
Bernard, 618 F.2d 559 (9th Cir. 1980)).
The record unequivocally reveals that the Peti-
tioners and others repeatedly raised Section 4(f)
30
issues before the FAA. See, e.g., ROD App. D-57.
App. 219-223. For example, the County of Rockland’s
discussion of Section 4(f) included a request to the
FAA for the full evaluation of noise sensitive re-
sources. FEIS App. Q. App. 219-223. (Friends of
Rockefeller State Park Preserve stressed FAA’s
obligation to comply with all aspects of 4(f)). Addi-
tionally, the Chair of the Rockland County Legisla-
- ture commented on August 30, 2007, that “there will
be a deleterious effect of the airplane noise over
[County Parks]. Increased airplane noise will cer-
tainly have a negative effect on the enjoyment of our
open spaces....” App. 213. Rockland County also
requested that the FAA delay its final decision until it
conducted a full evaluation of noise sensitive park
resources. App. 219-223.
In fact, the FAA itself backhandedly recognized
that Petitioners raised the “heightened analysis”
issue — which thus preserves that issue on appeal.
Resp. Br. 87. “Moreover, with one exception [that of
Ardens Historic District, part of Petitioner Timbers
Civic Association], ... no commenter recommended
replication of the additional analysis for the non-
federal properties that Petitioners now focus on”). It
is hardly possible, therefore, for the FAA to claim that
it was not on notice of the issue of the lack of Section
4(f) compliance in this case.
Further, other stakeholders raised the issue of
FAA’s deficient 4(f) analysis as well. For example,
Petitioners’ Brief quotes the United States Fish and
Wildlife Service comment in the Record highlighting
31
FAA’s inadequate 4(f) analysis: “There are still
concerns related to insufficient data on noise impacts
as they relate to National Park Service units and the
other listed Section 4(f) resources, including units of
the National Wildlife Refuge System in New York,
New Jersey, and Pennsylvania.” See Pet. Br. 81.
The above referenced comments show that the
FAA was notified, at the appropriate time, of the legal
issues involved with the proper statute identified and
of the nature of the noise impacts of concern. The
FAA, therefore, was given much more comprehensive
notice than was the case in Friends of Richards-
Gebaur Airport v. FA.A., 251 F.3d 1178, 1194-95 (8th
Cir. 2001) or Native Ecosystems Council v. Dombeck,
304 F.3d 886, 898-900 (9th Cir. 2002), where much
more abbreviated notice was given to the relevant
agencies. In both of these later cases, however, the
respective courts of appeals found that notice was
sufficient and the issues raised not deemed waived.
Thus, various parties did raise the issue of the
need to consider potential impacts to 4(f) properties
but the FAA never followed up as required by solic-
iting the comments of state and local officials and
evaluating these comments in its impacts analysis.
The Court of Appeals also ignored established
precedent that one objection, by any party, puts the
FAA on notice and preserves that issue on appeal. See
49 U.S.C. § 46110(d); N.E. Maryland Waste Disposal
Authority. v. EPA, 358 F.3d 936, 948 (D.C. Cir. 2004)
(per curiam). As noted above, the County of Rock-
land’s discussion of 4(f) issues included a request for
32
full evaluation of noise resources. App. 219-223. This
was sufficient to preserve the issue for appeal. (“Con-
sideration of the issue by the agency at the behest of
another party is enough to preserve it”); Northwest
Airlines, Inc. v. DOT, 15 F.3d 1112, 1121 (D.C. Cir.
1994) (Northwest Airline’s one-line argument during
administrative hearings was sufficient to preserve
issue for appeal). See also Friends of Richards-Gebaur
Airport v. FA.A., 251 F.3d 1178, 1194-95 (8th Cir.
2001) (holding that where a party to the adminis-
trative process raises an issue by quoting the specific
language of the statute, it preserved the argument on
appeal, even if the argument was not thorough at the
administrative level). See also Reytblatt v. U.S.
Nuclear Regulatory Comm’n, 105 F.3d 715, 721 (D.C.
Cir. 1997) (finding petitioner was “at liberty” to raise
an issue on appeal raised by another party during
administrative proceedings); Cellnet Comme’n v. FCC,
965 F.2d 1106 (D.C. Cir. 1992) (“Consideration of the
issue by the agency at the behest of another party is
enough to preserve it”). It is enough that the legal
issue of the FAA’s 4(f) duty to assess the project’s
impacts on state and local parks was raised below. All
that is required under the law of waiver is that the
agency be on notice of the underlying issue, not that
every possible technical objection was specifically
raised. Kleissler v. United States Forest Serv., 183
F.3d 196, 202 (3rd Cir. 1999); Southwest Ctr. For
Biological Diversity v. U.S. Bureau of Reclamation,
143 F.3d 515, 521-22 (9th Cir. 1998). In this case,
as noted above, several parties highlighted 4(f)
33
compliance issues before the FAA. FAA clearly cannot
claim that it was unaware of its 4(f) duties.
Further, not only has the Court of Appeals in this
case incorrectly applied the doctrine of waiver under
these facts, is has also created a split in the circuits
by rejecting the notice-based approach used in the
Eighth, Ninth, and Third Circuits in favor of a
completely new standard that places an almost im-
possible burden of specificity on petitioners seeking to
avoid losing the ability to raise an issue on appeal. In
fact, because of the limited discussion of this issue by
the Court of Appeals, it is not possible at this point
for any petitioner in the District of Columbia Circuit
to know what notice must be given at the agency level
in order to preserve a claim for appeal. This problem
is particularly acute because many federal statutes
permit an appeal of an agency action to be taken
either in the Court of Appeals in which the parties
are located or the District of Columbia Circuit.
Ultimately, the FAA has an affirmative obligation
to consult with state and local officials regarding im-
pacts to parks and historic properties. Therefore it
makes no legal or logical sense to state that the Peti-
tioners have waived the FAA’s obligations by failing
to tell the FAA to comply with Section 4(f) when it is
legally obligated to do so. In fact, one court has held
that when an agency has a legal duty, such an
obligation cannot be waived. See Wilderness Society v.
Salazar, 603 F. Supp. 2d 52, 70 (D.D.C. 2009).
34
Finally, even if the various parties had not raised
4(f) compliance before the agency, and even if it was
possible for the agency to waive its statutory duty to
coordinate with state and local officials, the Court
overlooked the alternative basis under 49 U.S.C.
§ 46110(d) (“reasonable grounds for not making the
objection”) for Petitioners not raising the specific 236
unstudied parks issue. See Ark. Power & Light Co. v.
FPC, 517 F.2d 1223, 1236 (D.C. Cir. 1975) (“the
exhaustion of remedies doctrine which is expressed in
the statute is not inflexible; it allows for deviation
where the interests of justice dictate ... ” (citing
FPC v. Colo. Interstate Gas Co., 248 U.S. 492, 498-99
(1955))). Here, the FAA never said during the admin-
istrative process that it would not contact certain
state and local parks officials in conducting its
Section 4(f) environmental review. See Communities
Against Runway Expansion, Inc. v. F-A.A., 355 F.3d
678, 686 (D.C. Cir. 2004) (no waiver when petitioner
“plausibly asserts that it has no reason to suspect
alleged defects” in NEPA analysis.). Therefore, Peti-
tioners could not have challenged such a position
during the administrative process. Rather, Petitioners
claim that the FAA omitted study of “at least” 236
parks only came to light after suits were filed, cases
consolidated and the petitioners reviewed the mas-
sive FAA record to determine the aggregate number
of parks within the jurisdictions of the eleven peti-
tioners that were never studied.
In sum, even if it were possible for the Peti-
tioners to waive the FAA’s legal obligation to seek
35
state and local 4(f) input, which it is not, the record
demonstrates, unequivocally, that the issue of section
4(f) compliance for state and local parks was pre-
sented to the FAA. Alternatively, it is not reasonable
to require Petitioners to foresee that the FAA would
fail to meet its 4(f) obligations when the FAA never
informed either the public or responsible officials that
it would not contact them as required. Under either
analysis, the panel below has broken with every other
circuit that has reviewed these issues and established
a new and not well-defined standard that would
require an essentially impossible level of specificity
on the part of any party seeking to preserve an issue
for appeal.
¢
CONCLUSION
For all of the foregoing reasons, the Petitioners
respectfully submit that this Petition should be
granted and a writ of certiorari should issue to review
the judgment and opinion of the United States Court
of Appeals for the District of Columbia Circuit.
Respectfully submitted,
LAWRENCE R. LIEBESMAN
HOLLAND & KNIGHT LLP
2099 Pennsylvania Avenue, NW
Washington, DC 20006
202-955-3000
Counsel for Petitioner County
of Rockland, New York
36
RICHARD BLUMENTHAL
Attorney General of Connecticut
ROBERT SNOOK
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
860-808-5270
Counsel for Petitioner
State of Connecticut
DONALD W. STEVER
K & L Gates LLP
599 Lexington Avenue
New York, NY 10022
212-536-4861
Counsel for Petitioner Friends
of the Rockefeller State Park
Preserve, Inc.
PETER DICKSON
POTTER AND DICKSON
194 Nassau Street
Princeton, NJ 08542
609-921-9555
Counsel for Petitioners City
of Elizabeth, New Jersey,
New Jersey Coalition Against
Aircraft Noise
App. l
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 07-1363 September Term, 2008
COUNTY OF ROCKLAND, FILED ON: JUNE 10, 2009
NEW YORK, ET AL.,
PETITIONER
V.
FEDERAL AVIATION
ADMINISTRATION,
RESPONDENT
Consolidated with 07-1437, 07-1493, 07-1494, 07-
1495, 07-1496, 07-1497, 07-1498, 07-1499, 08-1105,
08-1106, 08-1107
On Petitions for Review of an Order of the Federal
Aviation Administration
Before: SENTELLE, Chief Judge, GINSBURG, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
JUDGMENT
These petitions for review were considered on the
record from the Federal Aviation Administration and
on the briefs and arguments of the parties. It is
App. 2
ORDERED AND ADJUDGED that the petitions
for review be dismissed insofar as the petitioners for-
feited 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 with-
hold 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.
FOR THE COURT:
Mark J. Langer, Clerk
By: /s/
Michael C. McGrail
Deputy Clerk
MEMORANDUM OPINION
In a corrected Record of Decision (ROD) issued
September 28, 2007 the Federal Aviation Admin-
istration adopted a multi-phase plan to modernize
the New York/New Jersey/Philadelphia Metropolitan
Area airspace. The redesign shifts flight paths, real-
locates management of particular sectors of airspace
amongst air traffic control facilities, and adopts new
flight procedures. The changes will, the FAA deter-
mined, reduce delay and increase operational effi-
ciency, without imposing significant noise effects
upon, or increasing air pollution in, the states below
the NY/NJ/PHL airspace. The petitioners object to
App. 3
the FAA’s analysis of environmental impacts as
proceduraliy 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. § 4832(2)(C\i), known as an environmental
impact statement (EIS). We review the FAA’s compli-
ance with NEPA for the most part under the arbitrary
and capricious standard of the Administrative Pro-
cedure Act, asking whether the agency provided “the
necessary process” and took a “‘hard look’ at envi-
ronmental consequences.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (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 to the EIS. None of the petitioners’
objections amounts to a significant procedural defi-
ciency and none indicates that the FAA failed to take
a “hard look” at the environmental impacts of its
App. 4
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 stan-
dard.” St. John’s United Church of Christ v. FAA, 550
F.3d 1168, 1172 (D.C. Cir. 2008). The petitioners
argue the FAA failed to consider reasonably fore-
seeable 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 addition-
al 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).
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
App. 5
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 annuai 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 making. 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 peti-
tioners’ focus upon one data point for Newark is
therefore based upon their having misunderstood the
record before the agency. Given the substantial defer-
ence we owe the agency, see St. John’s, 550 F.3d 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
App. 6
forecast the impact of future traffic in 2012 and in
2017 because the agency “usually” forecasts such
impacts for the “year of anticipated project implemen-
tation 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 envi-
ronmental 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) be-
cause, they assert, the agency substantially changed
the project at the eleventh hour when, after having
issued the DEIS, it designed a noise mitigation mea-
sure routing flights over part of the Rockefeller State
Park Preserve in New York. See 4U U.F.R. § 1502.9(c)
(requiring supplemental DEIS whenever agency
“makes substantial changes in the proposed action
that are relevant to environmental concerns”). As the
FAA explains, however, it essentially readopted the
pre-redesign flight path over the park, the noise im-
pact of which had already been the subject of public
comment when the agency assessed the no-action
App. 7
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 (1989).
One more NEPA challenge deserves mention: The
petitioners argue the FAA failed to honor a commit-
ment 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 de-
tailed 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 regula-
tions 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 deci-
sion shall be implemented”); Order 1050.1LE § 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).
App. 8
Il. 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 con-
structive use, including “noise that is inconsistent
with a parcel of land’s continuing to serve its recrea-
tional, refuge, or historical purpose.” City of Grape-
vine 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
§ 6.21, considered “[a]dditional 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 atten-
tion to at least 236 properties the petitioners say may
be affected. We dismiss this challenge as forfeit be-
cause no one raised it during the administrative
proceeding. See Olmstead Falls, 292 F.3d at 274.
App. 9
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 of Cave Creek v. FAA,
325 F.3d 320, 333 (D.C. Cir. 2003).
The petitioners also argue the FAA violated § 4(f)
and 40 C.F.R. § 1506.6 by deiaying 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 proc-
ess, however, and 40 C.F‘R. § 1506.6(a) merely directs
the agency generally to “[mjake 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 not “evade” implementation of any FAA regula-
tion requiring additional notice or public comment.
App. 10
III. 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)-(j),
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’ challenge to the agency’s having relied, in
the alternative, upon its presumed-to-conform list, see
Federal Presumed to Conform Actions Under General
Conformity, 72 Fed. Reg. 41,565, 41,578 (2007).
In applying the de minimis exemption the FAA
did not directly calculate the level of emissions result-
ing from the project, but rather relied upon a fuel
burn analysis that showed the redesign will “reduce
fuel consumption by just over 194 metric tons per
day” in the study area. Because reducing fuel con-
sumption reduces aircraft emissions, the FAA con-
cluded the redesign will reduce emissions in the
App. 1l
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, notwith-
standing 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.FR.
§ 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.ic. 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) emis-
sions from airport ground equipment and (b) emis-
sions of some pollutants due to changes in aircraft
speed. Therefore, the petitioners argue, only by pre-
paring an inventory of emissions could the FAA
determine that emissions will not be significantly
increased by the redesign.
Assuming the agency erred when it failed to
iuventory 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 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
App. 12
agency did not need to quantify the reduction in order
to conclude the redesign was exempt from a conform-
ity 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”).*
* 2 *
We have considered and found no merit in the
petitioners’ other arguments. Based upon the fore-
going opinion, the petitions for review are dismissed
in part and denied in part. The pending motions for
judicial notice and for supplementation of the admin-
istrative 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 CFR.
§ 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).
App. 13
Record of Decision
New York/New Jersey/Philadelphia
Metropolitan Area Airspace Redesign
[LOGO]
September 5, 2007 (Issue Date)
September 28, 2007 (Corrected Version Date)
U.S. Department of Transportation
Federal Aviation Administration
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 subse-
quently 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 Sep-
tember 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
App. 14
FAA’s Airspace Redesign website, www.faa.gov/
nynjphl_airspace_resdesign
ERRATA
The following errors were identified in the Final
Environmental Impact Statement (FEIS) following
printing and distribution of the document.
1. FEIS ES-1, footnote 1 provides an incorrect ref-
erence to NEPA. The correct cite is 42 U.S.C. §4321
et. seq.
2. FEIS 2-1 references 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 ver-
sion 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 cumu-
lative 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.
App. 15
Table of Contents
I. Introduction 1
Il. Background 2
III. Purpose & Need 6
IV. Alternatives Analysis 11
V. Preferred and Environmentally Preferred
Alternatives 21
VI. Environmental Impacts & Mitigation 22
VII. Public and Agency involvement 48
VIII. Comments on the FEIS 50
United Parcel Service, Mr. Tim Stull,
Manager Air Traffic Systems
Mr. Michael Kroposki, Esq — Ridgeland, CT
New Jersey Coalition Against Aircraft Noise
(NJCAAN)
Rockland County (2)
Representative Eliot L. Engel
IX. Agency Findings 54
X. Decision and Order 58
Appendices
Page
Appendix A: Figures
Figure 2.1 Future No Action Airspace Alter-
native — JFK Major Departure Flows A-1
Figure 2.2 Future No Action Airspace Alter-
native — JFK Major Arrival Flows A-2
Figure 2.3. Future No Action Airspace Alter-
native - LGA Major Departure Flows A-3
App. 16
Figure 2.4 Future No Action Airspace Alter-
native — LGA Major Arrival Flows
Figure 2.6 Future No Action Airspace Alter-
native — EWR Major Departure Flows
Figure 2.6 Future No Action Airspace Alter-
native — EWR Major Arrival Flows
Figure 2.7 Future No Action Airspace Alter-
native — TED Major Departure Flows
Figure 2.8 Future No Action Airspace Alter-
native — TEB Major Arrival Flows
Figure 2.9 Future No Action Airspace Alter-
native — PHL Major Departure Flows
Figure 2.10 Future No Action Airspace AI-
ternative — PHL Major Arrival Flows
Figure 2.24 Integrated Airspace Alternative
Variation with ICC — JFK Major Departure
Flows
Figure 2.25 Integrated Airspace Alternative
Variation with ICC — JFK Major Arrival Flows
Figure 2.26 Integrated Airspace Alternative
Variation with ICC — LGA Major Departure
Flows
Figure 2.27 Integrated Airspace Alternative
Variation with ICC — LGA Major Arrival
Flows
Figure 2.28 Integrated Airspace Alternative
Variation with ICC — EWR Major Departure
Flows
Figure 2.29 Integrated Airspace Alternative
Variation with ICC — EWR Major Arrival
Flows
A-13
A-14
A-15
A-16
App. 17
Figure 2.30 Integrated Airspace Alternative
Variation with ICC —- TED Major Departure
Flows A-17
Figure 2.31 Integrated Airspace Alternative
Variation with ICC — TEB Major Arrival
Flows A-18
Figure 2.32 Integrated Airspace Alternative
Variation with ICC —- PHL Major Departure
Flows A-19
Figure 2.33 Integrated Airspace Alternative
Variation with ICC — PHL Major Arrival
Flows A-20
Appendix B: Additional Analysis
Section 4(f) Analysis B-1 thru B-15
Figure B.1 Appalachian National Scenic
Trail — Panel 1 B-16
Figure B.2 Appalachian National Scenic
Trail — Panel 2 B-17
Figure B.3 Appalachian National Scenic
Trail — Panel 3 B-18
Figure B.4 Appalachian National Scenic
Trail — Panel 4 B-19
Section 106 resources not identified in the
FEIS B-20 thru B-22
App. 18
Appendix C: Agency Coordination
The appendix includes correspondence between the
FAA and various federal or state agencies.
January 24, 2007 Letter from Fish and Wild-
life Service to FAA (sensitive information re-
dacted) C-1 thru C-4
August 27, 2007 Letter from FAA tc Fish and
Wildlife Service C-5 thru C-7
August 29, 2007 Email from FAA to National
Park Service C-8
August 29, 2007 Email from FAA to New
York State Department of C-9
Environmental Conservation
August 31, 2007 Letter from EPA to
FAA C-10 thru C-11
September 5, 2007 Email from Pennsylvania
SHPO to FAA C-12
September 5, 2007 Letter from FAA
to FWS C-13 thru C-17
September 5, 2007 Email from Lynne Pick-
ard, FAA C-18
September 5, 2007 Letter from FWS
to FAA C-19 thru C-22
Appendix D: Comment letters on the FEIS
United Parcel Service, Mr. Tim Stull, Man-
ager Air Traffic Systems D-1
Mr. Michael Kroposki, Esq —
Ridgeland, CT D-2 thru D-5
NJCAAN D-6 thru D-27
App. 19
Rockland County (8/30/07) D-28 thru D-32
Congressman Eliot L. Engel, dated
8/3/07 D-33 thru D-34
Rockland County (8/31/07) D-35 thru D-133
App. 20
I. Introduction
This Record of Decision (ROD) represents the cul-
mination 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, air-
lines, and the traveling public. It is needed to accom-
modate growth while enhancing safety and reducing
delays in the NY/NJ/PHL Metropolitan Area. Most
importantly, the Airspace Redesign Project modern-
izes the structure of the NY NJ PHL air traffic
environment in an environmentally responsible man-
ner, 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%.
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 docu-
ment, the FAA discusses the reasons it decided to
App. 21
undertake the Airspace Redesign project, the alter-
natives 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 Sec-
tion 4(f), Section 106 of the National Historic Preser-
vation 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 infor-
mation, the FAA has decided to select the mitigated
Preferred Alternative, known as the Integrated Air-
space Alternative with Integrated Control Complex
(ICC). The selected project consolidates many sectors
of airspace under one Air Route Traffic Control Cen-
ter (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 feet above mean sea
level in some areas. The airspace will incorporate the
sectors of airspace currently handled by the NY Ter-
minal Radar 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 imple-
ment the selected project the FAA will take several
other direct actions to take advantage of improved
aircraft performance and emerging air traffic control
App. 22
(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.
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 pro-
posed 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. There-
fore, the selected project requires no physical altera-
tion to any environmental resource or permits/
licenses. Additionally, the Airspace Redesign does not
require changes to any Airpori Layout Plan.
Il. Background
We know from experience and from economic studies
how vital Newark Liberty, La Guardia, Kennedy and
App. 23
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
technology to depict flight paths, arrival fixes, de-
parture gates and the whole panoply of air traffic con-
cerns 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
App. 24
complexity of the problem and the delicacy of the
limited options available 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/phl 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.
The basic air traffic environment for the New York/
New Jersey/Philadelphia (NY/NJ/PHL) Metropolitar.
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 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
App. 25
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 Air-
space 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 in-
frastructure, and procedural developments to en-
hance safety and efficiency. From the beginning, the
importance of the New York/New Jersey Philadelphia
area was recognized. This airspace formed the north-
east corner of the “Eastern Triangle” where the first
redesign efforts were focused.
App. 26
The current delay performance of the airspace around
the New York/New Jersey and Philadelphia Metro-
politan Areas illustrates the need for redesign. The
Bureau of Transportation Statistics collects infor-
mation on major airport on-time arrival performance.
For the first quarter of 2007, out of their list of 32
major airports’,
¢ Newark was the top-delayed, with 55%
on time performance;
e LaGuardia was second from the top, 58%
on time performance;
¢ JFK was fourth from the top, 60% on
time performance;
¢ Philadelphia was fifth from the top, 65%
on time performance.
The only airport in the top five 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 domi-
nated by one or two carriers and others are not. Some
have many foreign airlines, others have few. Some
support hub-and-spoke operations and others do not.
Some have very large aircraft, others have mostly
' http//www.bts.gov/programs/airline information/airline_on
time_tables/2007_03/htmI//table_04. html
App. 27
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 ad-
dressed.
The Study Area for the project consists of the geo-
graphic area in which natural resources and the
human environment are potentially affected by the
proposed action, reasonable alternatives, and pro-
posed mitigation. The Study Area was defined to in-
clude 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 regard-
ing 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 York, and Pennsylvania, an area of approxi-
mately 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 pri-
vately owned airports. It would have been extremely
difficult and unwieldy to include all of the airports in
App. 28
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 In-
ternational Airport (JFK), Newark Liberty Inter-
national Airport (EWR), Teterboro Airport (TEB),
Philadelphia International Airport (PHL), Morris-
town 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) opera-
tions on an average day were also included in the
focused analysis. Airports with fewer than 20 IFR
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
¢ Bridgeport/Igor I. Sikorsky Memorial
(BDR)
* Caldwell/Essex County (CDW)
¢ Westhampton Beach/The Francis 5S.
Gabreski (FOK)
° Linden (LDJ)
¢ Newburgh/Stewart International (SWF)
* New Haven/Tweed-New Haven (HVN)
App. 29
¢ Northeast Philadelphia (PNE)
¢ Republic (FRG)
¢ 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 exist-
ing 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 admin-
istrative 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 proj-
ect 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.
¢ Right turns for departures off Runway
31R at JFK
App. 30
¢ Departure dispersal headings at EWR,
PHL and WA
¢ RNAV overlay procedures for TEB de-
partures and approaches
¢ RNAV overlay for PHL river visual ap-
proach
* Develop an additional parallel airway to
Jet Route 130
¢ Athird westbound departure fix for PHL
¢ RNAV overlay for LGA Localizer Type
Directional Aid (LDA) approach to Run-
way 22
* RNAV fix on the VOR 13L/R and 13L/R
visual approaches to JFK
The next stage of implementation entails the integra-
tion of the terminal and en route airspace. At some
point in this phase, we wiil 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 neighbor-
ing facilities. Aspects of the second phase include:
* Expanding the use of terminal separa-
tion rules
* Expanding the west gate for NY de-
partures
* Opening the west gate for JFK de-
partures
App. 31
* Allowing stacked departures at the de-
parture fixes
¢ Providing flexible use of the arrival air-
ways
¢ Establishing a new arrival route into
PHL
The next stage requires changes at other facilities,
such as resectorization or shifting boundaries, but no
changes to the current operational structure.
¢ 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 us operational changes for the
neighboring facilities. Aspects of the final stage of
implementation include:
* Creating a new jet airway for departures
to the west
¢ Enabling dependent instriment arrivals
to the parallel runways at EWR and the
required shift of the arrival streams into
the NY/NJ area
¢ 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
App. 32
authority to assign, maintain, and enhance safety
and security of the national airspace (49 U.S.C.
§40101(d)). The FAA also has the statutory responsi-
bility to manage the use of navigable airspace to
assure safety and efficiency. (49 U.S.C. §40103).
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 Air-
space Redesign project, the FAA looked at the in-
crease in traffic levels, safety, delays, and changes in
the types of aircraft using the NAS.
1. 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
* Commercial operators and operators of certain large air
craft, e.g., business jet aircraft, are required to operate under In-
strument 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.
App. 33
year of 2004." Inefficiencies due to the inherent limi-
tations of the existing airspace design, including
route structure and ATC procedures, will be exacer-
bated by growth in air traffic operations. For ex-
ample, 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,
the system will become increasingly inefficient and
unreliable (unpredictable in terms of scheduling) in
order to ensure safe operations. The following inef-
ficiencies 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 op-
timal aircraft sequencing to the run-
ways.
* Airspace sectors are currently associated
with specific airports which cause an
unbalanced use of the airspace, thus
requiring excessive communications be-
tween controllers
* Westbound departures from JFK create
delays for westbound departures from
EWR and LGA due to in-trail sequences.
’ FAA OPSNET Data
App. 34
* 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.
The airspace must accommodate growth in air traffic.
To accommodate growth, the enhanced airspace sys-
tem must maintain the current high level of safety
and mitigate delays.
2. Safety
As noted above, the FAA has the statutory re-
sponsibility to control the use of navigable airspace in
the interest of safety and efficiency. The following
safety-related inefficiencies currently exist in the
NY/NJ/PHL Metropolitan Area airspace:
¢ Arrivals to Westchester County Airport
(HPN) from the south cross several
traffic flows and create unnecessary
complexity.
* 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.
App. 35
* Traffic to PHL, Islip (ISP), and their as-
sociated satellite airports‘ is restricted to
intersecting courses in narrow corridors
of airspace.
* Airspace restrictions require incremen-
tal changes in altitude for arrivals and
departures causing radio frequency con-
gestion associated with additional con-
trol instructions.
* Departures from EWR to the Caribbean
and South America must climb through
PHL and Atlantic City (ACY) traffic re-
sulting in traffic conflicts.
* High-performance general aviation air-
craft 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.
* PHL satellite airports include Chester County, Brandy-
wine, 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
App. 36
Addressing the safety-related inefficiencies will con-
tribute 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 con-
sumers in the form of higher ticket prices. Delays also
impact the public by causing inconveniences with late
arrivals, missed connections, and cancelled flights.
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 inter-
action of independent TRACONs and several over-
lying 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
* See FEIS sections 1.2.1-1.2.3 for a discussion of the NAS
and a description of the types of ATC facilities.
App. 37
approximately 1,710,000 operations annually. In
2006, the New York TRACON handled 2,090,977 op-
erations. By the year 2011, the traffic level is pro-
jected 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 TRACONSs 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.
The following are among the causes for delay in the
existing NY/NJ/PHL Metropolitan Area airspace:
e Aircraft departing from the NY Metro-
politan Area to the Washington Metro-
politan 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
° FAA APO Terminal! Area Forecast Issued December 2006.
App. 38
current airspace structure, the in-trail
restrictions placed on the ORD de-
partures end up affecting all of the west-
bound 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 pe-
ricods of heavy traffic reduces flexibility
for aircraft rerouting resulting in delays.
¢ 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 propeiler-driven aircraft with regional jets
in response to constuumer preferences and to begin
service to new markets. Mainline air carriers have
transitioned service on some routes from larger
narrowbody aircraft to staaller regional jets because
of the lower operating costs for regional jets. The net
effect of these changes is that the same numbers of
App. 39
passengers are being transported with a higher num-
ber 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 secu-
rity delays and freedom to set one’s own flight
schedule, has encouraged many corporate travelers to
increase their use of business jets. Fractional owner-
ship 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 in-
creasing 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
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 safety and reducing delays in air travel.
By taking advantage of new technologics and re-
sponding to new trends, the Airspace Redesign will
increase efficiency and the reliability of the air traffic
system.
A nationwide study conducted by Logistics Manage-
ment 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
App. 40
travel time. The nationwide change in travel time
that was anticipated for 2010, converted to its equiv-
alent 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 han-
dle 15-20% of all the air traffic in the nation in 2011.
This airspace redesign is concerned with removing
inefficiencies. Enhancing efficiencies would, conserva-
tively estimated, yield benefits to airlines, passen-
gers, and businesses of $7 billion to $9 billion in 2011.
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 Air-
space Redesign. In the case of the national airspace
redesign (NAR), reduction of noise is not appro-
priately identified as a Purpose. Airspace redesign
App. 41
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 align-
ments, there may de little or no mitigation possible
and no noise benefits possible. Additionally, in heavily
populated areas, such as those surrounding Phila-
delphia, 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 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 im-
pacts. These techniques included increasing altitudes,
dispersing or concentrating tracks where appropriate,
reducing flying time, and routing aircraft over less
noise-sensitive areas where feasible.
IV. Alternatives Analysis
CEQ regulations require the FAA to “rigorously
explore and objectively evaluate al] reasonable alter-
natives, and for alternatives which were eliminated
from detailed study, briefly discuss the reasons for
App. 42
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 evalu-
ated 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 elimi-
nated from detailed analysis. The categories of al-
ternatives considered in the initial screening of
alternatives in the EIS included the following:
e Alternative Modes of Transportation
and Telecommunication — Using alterna-
tive modes of transportation and com-
munication including travel by rail, bus,
and automobile, as well as the use of tele-
communication methods such as video-
conferencing.
¢ Changes in Airport Use — Moving opera-
tions to satellite airports or improving
infrastructure of existing airports.
¢ 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.
¢ Improved Air Traffic Control Technology
— Using newly developed air traffic
control technologies.
App. 43
¢ 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 alterna-
tives to determine whether each would meet the pur-
pose 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 Improved Air Traffic
Control Technology, were eliminated because they did
not meet the purpose and need of the Airspace Re-
design project. While the Alternative Modes of Trans-
portation 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 ad-
dressed the inefficiencies in the current NY/NJ/PHL
Airspace. Because these aiternatives 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.
App. 44
B. Alternative Concepts Considered for De-
tailed Analysis
Of the five categories of alternatives, one, Airspace
Redesign, was found to meet the purpose and need for
the Airspace Redesign project, and was carried for-
ward for detailed analysis in the EIS. Additionally, as
required by the CEQ regulations, the No Action
Alternative was carried forward for detailed study.
Airspace in the NY/NJ/PHL Metropolitan Area could
be redesigned by changing or enhancing departure
gates, arrival posts, routes, and/or the airspace
boundaries of the various ATC facilities. For the
Study Area under examination, new departure gates
and arrival posts would permit the development of
new routes in the airspace structure. Expanding the
boundaries of the terminal airspace environment
would permit less restrictive separation rules to be
used in a larger volume of airspace. These actions
have the potential to meet the need to accommodate
growth in air traffic levels while maintaining safety
and mitigating delays. New routes could add effi-
ciency by reducing delays and providing more direct
routings; this has the potential to achieve the purpose
of increasing the efficiency and reliability of the air-
space structure and ATC system.
The FAA began consideration of airspace and A'l'C
changes by analyzing potential airspace redesign
alternatives for the NY/NJ/PHL Metropolitan Area
airspace. A working group was formed to design and
App. 45
evaluate conceptual airspace alternatives. The work-
ing group included representatives from the affected
facilities: NY TRACON, Philadelphia TRACON, New
York Center, Boston Center, and Washington Center.
The working group also included representatives
from ATC facilities outside the Study Area to ensure
the alternatives developed would be compatible with
airspace requirements in those facilities. Also as part
of the development of redesign concepts, input from
external sources such as airlines, airport operators
and the public was solicited and considered.
The working group developed assumptions and objec-
tives for airspace redesign alternatives. The assump-
tions included point-to-point navigation and use of
terminal separation standards over a larger airspace
area. The objectives that guided the development of
airspace redesign concepts were:
¢ Reduce congestion in airspace sectors
¢ Shorten routes
¢ Segregate routes for aircraft with dis-
similar operating characteristics (i.e.,
large aircraft from small aircraft)
* Impose fewer climb restrictions on de-
parting aircraft and keep arrivals higher
longer
* Allow aircraft to operate at higher, more
fuel-efficient altitudes for longer periods
* Use area navigation (e.g., RNAV, GPS,
etc.)
App. 46
¢ Create a flexible airspace structure
¢ Accommodate projected growth
* Reduce environmental impacts, where
possible
Using the assumptions and objectives, the working
group developed broad concepts that met the design
objectives: the Four Corner-Post, Modifications to
Existing Routing, a Clean Sheet approach. Addition-
ally, the working group considered an Ocean Routing
concept submitted by New Jersey Citizens for En-
vironmental Research (NJCER) at the request of the
New Jersey Coalition Against Aircraft Noise
(NJCAAN).
After further consideration, the working group deter-
mined that the Four Corner-Post was a concept ill-
suited to the NY/NJ/PHL Metropolitan Area airspace
(Section 2.4.1.1) and was eliminated from further
consideration because it did not meet the purpose and
need of the airspace redesign project. Two of the
remaining design concepts, modifications and clean
sheet, would meet the purpose and need and were
studied in detail in the EIS. Although Ocean Routing
did not meet the purpose and need, it was studied in
detail in order to address the long-standing concerns
of NJCAAN.
App. 47
Modifications to Existing Routing
This concept involves modifying the current route and
procedures to improve efficiency in the current
airspace.
Ocean Routing
This alternative routes all departing flights from
EWR over the Raritan Bay to the Atlantic Ocean
before turning them back over land to head to their
departure gates. The Ocean Routing alternative does
not meet the purpose and need for the airspace re-
design project. It is designed is to reduce noise im-
pacts on the citizens of New Jersey, and would not
increase the efficiency and reliability of the NY/NJ/
PHL Metropolitan Area airspace. Because all EWR
departures would use the same departure route, this
alternative would inherently result in a large in-
crease in airport departure delay. While Ocean Rout-
ing does not meet the purpose and need for the
project, the FAA elected to retain it for detailed analy-
sis because of the long-standing concerns of NJCAAN.
Clean Sheet Concept
The Clean Sheet approach began as an attempt to
redesign the airspace in an atmosphere independent
of existing routes. Designers were given a clean sheet
of paper and were asked to design the most efficient
airspace structure for the study area without refer-
ence to current procedures, departure gates, and
arrival posts. It was initially explored as a concept
App. 48
that would be developed within the boundaries of the
current NY Center and NY TRACON airspace. Any
changes within this airspace would not require
changes in adjacent Center’s or TRACON’s airspace.
The working group discovered that the constraints of
the NY Center’s and NY TRACON’s airspace bound-
aries did not facilitate the use of the clean sheet
approach. This alternative, therefore, evolved into an
integrated airspace concept that used some of the
initial design elements of the Clean Sheet “Area
Concept,” and then added elements that more effi-
ciently integrated the functions of the NY TRACON
and NY Center to operate more seamlessly in either a
standalone or consolidated manner. Therefore, a de-
tailed airspace redesign alternative was developed
based on the Integrated Airspace Concept.
C. Alternatives Analyzed in the EIS
After the working group validated the airspace re-
design concepts, it developed detailed alternatives for
the Modifications and Integrated concepts. The de-
tailed alternative for Ocean Routing was developed
by NJCER. The working group also developed criteria
to evaluate the degree to which the alternatives met
the purpose and need and to permit the comparison of
the alternatives to each other. These criteria fall into
two groups, operational viability and operational effi-
ciency.
App. 49
The operational viability criteria consider whether a
particular airspace redesign is workable and thus,
safe. The criteria include:
* Reduce airspace complexity
* Reduce voice communications
The operational efficiency criteria consider how well a
particular design works. The criteria include:
* Reduce delay
* Balance controller workload
* Meet system demands
* Improve user access to the system
* Expedite arrivals and departures
* Increase flexibility in routing
* Maintain airport throughout
l. The Alternatives
No Action Alternative
The No Action alternative represents all major traffic
flows into and out of the Study Area in the study
years 2006 and 2011 if no changes are implemented
as a result of the Airspace Redesign project. The only
major difference between this alternative and present
day operations will be the type and quantity of
aircraft operations. Under the Future No Action Air-
space Alternative, the airspace will operate as it did
App. 50
during existing or baseline conditions (2000), with the
exception of two procedural changes (i.e., the Dual
Modena and the Robbinsville-Yardley Flip-Flop) that
have been implemented and have independent utility
with regards to the Airspace Redesign, see Section
1.2.6. As these changes have been implemented, they
are included as part of the Future No Action Airspace
Alternative. Figures 2.1 through 2.10 in Appendix A
to this ROD identify existing major routing and flow
patterns associated with the Future No Action
Airspace Alternative.
Modifications Alternative
The Modifications alternative includes minor modifi-
cations to the current airspace and routing, improv-
ing operations as much as possible within the
limitations of the current ATC facility boundaries.
Figures 2.11 through 2.14 in the Final EIS identify
major routing changes associated with the Modifi-
cations alternative. The table below summarizes the
Modifications alternative.
Table 2.1
Summary of Modifications to
Existing Airspace Alternative
Airport Changes from Future No Action
JFK No Changes
LGA South departure gate shifted to the north-
west
New departure headings for aircraft depart-
ing Runway 4 to the North departure gate
App. 51
New propeller aircraft procedures depart-
ing Runway 13 to West departure gate
New departure headings for propeller air-
craft departing Runway 13 to the South
departure gate
New distant procedures for aircraft depart-
ing Runways 4 and 13 to the South depar-
ture gate
New departure headings for aircraft depart-
ing Runway 4 to the East departure gate
EWR
South departure gate shifted to the north-
west
New procedures for aircraft heading to
new South departure gate
New departure headings from all runways
to all gates
New departure headings off Runways 4L
dependent on TEB Runway 6
New departure headings off Runways 22R
dependent on TEB Runway 11
TEB
South departure gate shifted to the north-
west
New distant procedures for aircraft heading
to shifted South departure gate
HPN
South departure gate shifted to the north-
west
New distant procedures for aircraft depart-
ing to the south gate
East departure gate shifted further east
New procedures for aircraft heading to new
East departure gate
New departure headings for aircraft head-
ing to the North, East, West, and South
| departure gates
App. 52
Ocean Routing Alternative
The Ocean Routing alternative includes changes at
EWR, LGA, and JFK and routes al! EWR departing
flights over the Raritan Bay to the Atlantic Ocean
before turning them back over land to head to their
departure gates. Figures 2.15 through 2.18 in the
Final EIS identify major routing changes associated
with the Ocean Routing alternative. The table below
summarizes the Ocean Routing alternative.
Table 2.2
Summary of Ocean Routing
Airspace Alternative
Airport Changes from Future No Action
JFK Shifted West departure gate
New procedures for aircraft heading to the
West departure gate
Split of the FNA Ocean departure gate into
the Ocean and South departure gates
New procedures for aircraft heading to the
South departure gate
South arrival post shifted to the east
New procedures for aircraft arriving from
the South arrival post
New procedures for aircraft arriving from
the North arrival post
LGA New procedures for aircraft heading to the
North departure gate
App. 53
EWR | Shifted West departure gate
New procedures for aircraft heading to the
West departure gate
Shifted South departure gate
New procedures for aircraft heading to the
South departure gate
New procedures for aircraft departing
Runways 22L/R to the North departure gate
New procedures for aircraft departing
Runways 22L/R to the East departure gate
TEB No Changes
PHL No Changes
Integrated Airspace Alternative
The Integrated Airspace alternative combines the
New York TRACON airspace with portions of the sur-
rounding Centers’ airspace, permitting more seamless
operations. The Integrated Airspace Alternative can
be accomplished either with existing standalone
facilities or in a consolidated facility. The key
component of the Integrated Airspace alternative is a
common automation platform.’ Using existing facil-
ities, airspace would be reallocated among the facil-
ities in order to facilitate a more seamless operation.
At the time the Airspace Redesign project was begun,
the FAA had not yet decided to approve an Integrated
Control Complex (ICC) concept.
‘ A common automation platform includes shared displays
on screens, radar data processing and presentation, and com-
munication.
App. 54
As a result, the Integrated Airspace alternative was
designed with two variations. The initial phase (2006)
is the same for both variations because an ICC will
not exist in 2006. It involves modifications to a depar-
ture gates as well as additional diverging departure
headings, however, airspace facility boundaries would
not change. In the second phase (2011) there are two
variations:
¢ Without ICC, which will integrate the
airspace to the extent possible without the
common automation platform includes ex-
panded use of terminal separation, realloca-
tion of airspace sectors and new technologies.
¢ With ICC, which involves full airspace inte-
gration includes multiple departure gates,
additional arrival posts, and additional
diverging departure headings.
Figures 2.19 through 2.22 in the Final EIS identify
major routing changes associated with the Integrated
Airspace alternative without ICC. The table below
summarizes the Integrated Airspace alternative with-
out ICC.
Table 2.3
Summary of Integrated Airspace
Alternative Variation without ICC
Airport; Changes from Future No Action
JFK No Changes
LGA West departure gate extended to the north
and to the south
App. 55
New procedures for aircraft heading to the
West departure gate
New departure headings for aircraft depart-
ing Runways 4 to the North departure gate
New departure headings for aircraft depart-
ing Runway 4 to the East departure gate
EWR
New departure headings for all runways
and all gates
Procedures off Runway 4L dependent on
TEB Runway 6 to West departure gates
New procedures for aircraft heading to the
West departure gate
Procedures off Runway 4L dependent on
TEB Runway 6 to North and East depar-
ture gates
Procedures off Runway 22R dependent on
EWR Runway 11 use
Expanded West departure gate
TEB
West departure gate extended to the north
and to the south
New procedures for aircraft heading to the
West departure gate
| New procedures for turboprop.aircraft
arriving from the northeast
HPN
West departure gate extended to the north
and to the south
New procedures for aircraft heading to the
West departure gate
New distant arrival procedures
PHL
New departure headings for aircraft head-
ing to the North, East, West, and South
| departure gates
App. 56
Figures 2.24 through 2.33 in Appendix A identify
major routing changes associated with the Integrated
Airspace alternative with ICC. The table below sum-
marizes the Integrated Airspace alternative with
ICC.
Table 2.4
Summary of Integrated Airspace
Alternative Variation with ICC
Airport Changes from Future No Action
JFK North departure gate shifted 15 miles
northeast
New distant procedures for aircraft heading
to the North departure gate
West departure gate extended to the north
and to the south
New procedures for aircraft heading to the
West departure gate
Future No Action Ocean departure gate
split into Ocean and South departure gates
New distant procedures for aircraft heading
to the Ocean departure gate
New procedures for aircraft heading to the
South departure gate
North arrival post shifted five miles south-
east
New distant procedures for aircraft arriving
from the North arrival post
East arrival post shifted northwest
New procedures for aircraft arriving from
the East arrival post
South arrival post shifted to the northeast
App. 57
New procedures for aircraft arriving from
the South arrival post
LGA
East departure gate shifted east
North departure gate shifted 15 miles
northeast
New procedures for aircraft heading to the
North departure gate
West departure gate extended to the north
and to the south
New procedures for aircraft heading to the
West departure gate
South departure gate shifted to the north-
west
New procedures for aircraft heading to the
South departure gate
North arrival post shifted 30 miles east
New procedures for aircraft arriving from
the North arrival post
West arrival posts shifts to coincide with
Future No Action South arrival post
New procedures for aircraft arriving from
the west to coincide with the South arrival
post
West arrival flow split into two arrival
flows, one to the north and one to the south
New departure headings for aircraft
departing Runway 4 to the North departure
gate
New departure headings for aircraft
departing Runway 4 to the East departure
gate
App. 58
EWR _| New departure headings for all runways
and all gates
Kast departure gate shifted to the east
New procedures for aircraft heading to the
East departure gate
North departure gate shifted to the north-
east
New procedures for aircraft heading to the
North departure gate
West departure gate expanded to the north
and south
New procedures for aircraft heading to the
West departure gate
South departure gate shifted to the south-
west
New procedures for aircraft heading to the
South departure gate
New Ocean departure gate
New procedures for aircraft heading to the
Ocean departure gate
North arrival post moved to 50 miles north
of EWR
New procedures for aircraft arriving from
the North arrival post
West arrival post shifted to be near
Greenville, NY
West arrival flow split into two arrival flows,
one to the north and one to the south
New procedures for aircraft arriving from
the South arrival post
Use of both parallel runways for arrivals
TEB Departure gates match those of EWR
Integrated Airspace with ICC
New distant procedures for aircraft heading
to the North departure gate
App. 59
New distant procedures for aircraft heading
to the West departure gate
New distant procedures for aircraft heading
to the South departure gate
West arrival post shifted 15 miles south
New procedures for aircraft arriving from
the West arrival post
New procedures for aircraft arriving from
the West arrival post from the vicinity of
Yardley, PA
HPN
North departure gate shifted 15 miles
northeast
New distant procedures for aircraft heading
to the North departure gate
West departure gate extended to the north
and to the south
New procedures for aircraft heading to the
West departure gate
South departure gate shifted to the west
New departure procedures for aircraft
departing to the south gate
North arrival post shifted to the east
New distant procedures for aircraft arriving
from the north gate
New distant procedures for aircraft arriving
from the south
PHL
West departure gate expanded to the north-
west
New procedures for aircraft heading to the
West departure gate
East departure gate is shifted to the east
New procedures for aircraft heading to the
East departure gate
West arrival post shifts to the northeast
New distant procedures for aircraft arriving
App. 60
from the West arrival post
New departure headings for aircraft head-
ing to the North, East, West, Southwest,
and South departure gates
Additional route added to North arrival post
A summary of the comparison of the alternatives can
be found below.
Purpose & Need
Evaluation
Criteria
Reduce
Complexity
Reduce Voice
Communications
Table 2.6
Operational Comparison of Alternatives
The most advantageous operational metric has been shaded and boldfaced
Future
| How Measured
No Action
Jet route Delays +
|time below 18,000
feet (minutes)
Arrival Distance
below 18,000 feet
(nautical miles)
| Nai ale Seine Seay
|Max Interfacility
handoffs per hour
Reduce Delay
Traffic weighted
arrival delay 2011
(minutes)
Traffic weighted
departure delay
2011 (minutes)
Alternative
Ocean Integrated Airspace
Routing
Airspacc
Modifications
to Existing
Airspace with ICC
| without ICC
Balance
Controller
Workload
Equity of West gate
fix traffic counts
App. 62
Meet System
Demands &
Improve User
Access to System |
Time below 18,000 ft
(minutes)
-—- . —
— - . . -
|
End of day’s last
2° 5
arrival push (time) aoe
Change in route |
Expedite Arrivals (length per flight 0.0
and Departures (nautical miles) ”
Change in block
tame (minutes per 0.0
flight) "’
— i -
Delay saved per
flight per day 0
(minutes)
Flexibility in
Routing
18.2
0.0
ae
Arrival Max
Sustainable 223
Throughputs LL
Departure Max
Sustainable 238
Throughputs |
Maintain Airport
Throughput
Notes: (1) A negative value indicates a net decrease in the category.
————_—_4
23:54 23:54 23:00
18.8 18.2 | 18.6
4.5 -1.2 3.7
3.9 G 1.0 -1.4
7 | 223 . 238
ny 240 | 245
Source: Operational Analysis of NY/NJ/PHL Metropolitan Area Airspace Redesign Alternatives, (MITRE Technical Report
MTR 05W0000025, March 2005, Table ES-1. Summary of Operational Impacts, p. ix.)
App. 63
V. Preferred and Environmentally Preferred
Alternatives
At the time the Draft EIS was published, the FAA
had not selected a preferred alternative. The FAA
preferred to consider public and agency comments on
the DEIS prior to identifying its preferred alterna-
tive. In March 2007, FAA announced the Integrated
Airspace Alternative with ICC as its preferred alter-
native. This alternative was preferred because it best
meets the purpose and need for the project: to im-
prove the efficiency and reliability of the airspace
thereby accommodating growth while enhancing
safety and reducing delays. Table 2.6 provides an
operational comparison among the alternatives. The
Integrated Airspace Alternative in its ICC variation
provides the best improvement in ten of the thirteen
metrics that quantify each element of the purpose
and need for the redesign. While the Modifications
alternative and the Integrated Airspace alternative
without ICC variation would provide marginal reduc-
tion in many metrics, the Integrated Airspace Alter-
native with ICC would provide substantial benefits.
The metrics that relate most directly to user costs
(delay, routing flexibility and block time) are only
improved by the Integrated Airspace alternative with
ICC. Ocean Routing would decrease the airspace
efficiency and add complexity to the airspace, thus it
does not meet the purpose and need for the project.
Therefore, the Integrated Airspace Alternative with
ICC is the preferred alternative.
App. 64
After selecting the Integrated Airspace Alternative
with ICC as the preferred alternative, FAA began the
process of developing measures to alleviate, to the
extent possible, the impacts associated with the
preferred alternative. Mitigation measures are those
designed to avoid, minimize, rectify, reduce, elimi-
nate, or compensate for environmental impacts.
Because the preferred alternative would result in
significant noise and noise-related (environmental
justice) impacts in some areas, mitigation measures
were developed to reduce the noise impacts where
possible. FAA considered mitigation for all areas,
including areas that did not receive a significant or
slight to moderate impact. FAA also considered miti-
gation to address long-standing issues that might be
improved as a result of airspace redesign.
After the Draft EIS was published, FAA identified a
number of potential mitigation measures for the
project. Additionally, FAA considered all public com-
ments that included potential mitigation measures,
which numbered over 450. Many of the public mitiga-
tion comments focused on similar issues and tech-
niques as those identified by the FAA. An initial
screen was performed on each proposed measure.
Some measures were immediately discarded because
they presented operational or safety problems. Each
remaining proposed mitigation measure was _ sub-
jected to a two-step operational modeling. This model-
ing was both qualitative and quantitative. The two-
step operational modeling identified whether a pro-
posed measure was viable and the degree to which
App. 65
the proposed measure impacted the operational
efficiency of the preferred alternative. In some cases a
noise screen was applied to determine which meas-
ures provided the best alternatives for noise reduc-
tion. Details of this process can be found in Chapter 5
of the Final EIS.
FAA considered the environmental impacts of the
preferred alternative with the mitigation that re-
sulted from the screen. The results of those analyses,
the Mitigation Report, were published in April 2007.
FAA solicited comments on the Noise Mitigation
Report including holding several public meetings.
Mitigation measures were then incorporated into the
preferred alternative resulting in the mitigated
preferred alternative: the Integrated Airspace Alter-
native with ICC and mitigation measures.
The following mitigation measures have been identi-
fied as part of the selected project:
¢ HPN Departures — Departure routes
shifted to the north shifted closer to the
no action location
¢ LGA Departures — Departure headings
reduced to two except during the morn-
ing push
e LGA Arrivals — Increased use of Local-
izer Directional Aid (LDA) arrival to
Runway 22
e EWR Departures — Number of departure
headings used based on demand; at
App. 66
night use modified ocean routing proce-
dure
e EWR Arrivals — Raised arrival altitudes
for Runways 22L/R in the vicinity of
Bergen County, New Jersey and Rock-
land County, New York; raised arrival al-
titudes for Runways 4L/R in the vicinity
of Sussex and Morris Counties, New
Jersey; use continuous descent approach
(CDA) during nighttime hours for arri-
vals from the northwest and southwest
e PHL Departures — Use one departure
heading for Runways 9/27 L/R during
nighttime hours
e PHL Arrivals — Increased use of River
Approach (visual) to Runway 9; use CDA
during nighttime hours for arrivals from
north, northwest, and southwest
The mitigated preferred alternative is also the envi-
ronmentally preferred alternative. In 2006 it reduces
the number of persons who would be significantly
impacted by noise to 545 people near PHL. In 2011,
the mitigated preferred alternative would result in no
significant impacts. The mitigated preferred alterna-
tive is the FAA’s selected project.
VI. Environmental Impacts and Mitigation
In accordance with the guidelines set forth in the
CEQ regulations and FAA Order 1050.1E, Chapter 4
App. 67
of the EIS describes the potential impacts of imple-
menting the project. Potential impacts include both
the direct and indirect effects of the proposed project
and all reasonable alternatives. A total of nineteen
impact categories were analyzed. The technical
findings in the EIS provide federal decision-makers
and officials, as well as the public, with an under-
standing of the potential effects of the project on the
human, physical, and natural environment.
The potential impacts of the Airspace Redesign
project were determined by comparing the projected
future conditions without the project (Future No
Action) with the projected future conditions for each
action alternative. As discussed in section III above,
the action alternatives analyzed for environmental
impacts are: Modifications, Ocean Routing, and two
variations of the Integrated Airspace, without ICC,
and with ICC.
A. Study Years
The EIS used the year of 2000 as the baseline year for
the analysis. The year 2000 was used for several
reasons. First, when the EIS analysis began, the year
2000 was the most recent complete calendar year for
which air traffic statistics were available. Addition-
ally, at the time the EIS analysis began, 2000 was the
last full robust year of air traffic activity prior to the
aviation slowdown resulting from terrorist activities
and economic down turns. Finally, a study of the
scope and magnitude of the EIS takes a number of
App. 68
years to develop fully. The analysis, specifically the
noise modeling for the Draft EIS, took approximately
three and a half years to complete. Because of the
time involved in performing the noise analysis, any
baseline year would be several years in the past.
The years 2006 and 2011 were used as implementa-
tion years in the EIS. At the time the EIS analysis
began, the FAA expected that if an action alternative
were selected, implementation of the selected alterna-
tive would occur in stages. Some of the elements of an
action alternative, for example using dispersal head-
ings and transferring airspace from other air traffic
facilities, could be implemented almost immediately,
after training air traffic controilers. Because some
elements of an action alternative could be imple-
mented almost immediately and the Draft EIS was
expected to be published in 2005, it was reasonable to
assume 2006 as the first implementation year. Appen-
dix B contains an analysis of forecast and actual
traffic for 2006; the forecast was found to be reasona-
bly close to the actual operations. The EIS is replete
with references to 2006 as the first year in which this
project would begin to be implemented. However, as
a result of the extended comment period and the
volume of public comments received, this proposed
implementation date has been delayed by one year. In
order to avoid confusion and the perception that this
ROD addresses a proposal other than the one pre-
sented in the EJS, we have continued to refer to 2006
as the year of initial implementation.
App. 69
B. Forecasts
The FAA developed forecasts of future aviation activ-
ity for the purpose of designing the detailed alterna-
tives and analyzing the impacts of those alternatives.
The FAA’s Office of Aviation Policy and Plans (APO)
develops and regularly updates Terminal Area Fore-
casts (TAF) for selected airports throughout the
country. The TAF however does not provide sufficient
detail required for environmental modeling. For
example, the TAF does not provide aircraft type,
destination, and time of day of operations. As a result
a forecast of future IFR aviation activity in the Study
Area was prepared for this project. The forecast
developed for this project centers around IFR flights
at the 21 airports on which this study focused. Spe-
cific forecasts were not developed for the remaining
airports in the Study Area. Because there would be no
change in procedures at those airports as a result of
the project, specific forecasts were not needed for the
operational modeling. FAA recognized that in order to
accurately portray the noise exposure, IFR operations
from the other airports in the Study Area must be
included in the forecasts for the noise analysis. IFR
flights through the study area at an altitude below
14,000 feet MSL were included in the noise analysis
as overflights. Overflights, for the noise forecast,
included flights that may have originated at or been
destined for an airport within the study area that was
not one of the 21 focus airports, as well as flights that
did not originate from and/or were destined for an
airport outside the study area.
App. 70
In developing the forecast, the project team paid
particular attention to the forecast for the general
aviation (GA)°* sector. The corporate aviation market,
which is generally identified as business executive
transportation using small jets and turboprop air-
craft, is expected to grow much faster than scheduled
airline service. This is primarily because of growth in
fractional ownership programs in which businesses or
individuals purchase a portion of an aircraft and
share its use with other owners. Appendix B to the
Final EIS contains details on forecasts including the
assumptions upon which the forecasts were made.
Aircraft, including helicopters, operating under visual
flight rules (VFR) are not part of this study and were
not included in the forecasts because they are unaf-
fected by proposed alternatives. VFR aircraft are not
required to be in contact with ATC. Because VFR
aircraft operate on a “see and be seen” principal and
are not required to file flight plans, FAA has very
limited information for these operations. There is no
known source of comprehensive route, altitude, air-
craft type, and frequency information for VFR opera-
tions in the study area. VFR aircraft generally fly in
two ways — either in a pattern around an airport or to
some destination of the pilot’s choosing. VFR aircraft
do not fly set routes to the same destination on each
flight. A pilot operating an aircraft under VFR has
* General aviation refers to aircraft operations other than
those by scheduled passenger and cargo aircraft not charac-
terized as air carricrs or air taxis.
App. 71
the discretion to select his destination, route of flight,
altitude, and the frequency with which he flies.
The Airspace Redesign project covers over 31,000
square miles and involves five major airports, sixteen
satellite airports, and numerous other airports. As a
practical matter, VFR aircraft can depart from or
arrive at virtually any airport in the study area or
simply pass through the study area on their way to
their destination. They can take any route while in
the study area. There is no effective method of obtain-
ing a representative sample of the frequency of VFR
flights, their routes, altitudes, destinations, and the
type of aircraft used over the study area for this type
of project. To address potential cumulative noise
impacts from VFR traffic the FAA conducted noise
monitoring at 18 locations during two distinct periods,
resulting in over 36 individual data sets.
In contrast, there are ways for the FAA to obtain the
sample data necessary to analyze VFR operations in
NEPA documents for discrete proposed airport devel-
opment projects. The study area for such projects is
centered on the specific area surrounding that air-
port. Most impacts take place in the general area
surrounding the airport. Landing and takeoff routes
for airport-specific projects are limited by the runway
configuration at the airport, and surveys can be
conducted to determine representative destinations
for VFR aircraft.
App. 72
C. Impacts and Mitigation
Chapter 4 of the Final EIS contains a detailed analy-
sis of the environmental impacts of all of the alterna-
tives for each of the study years. A detailed discussion
of the mitigated preferred alternative, the selected
project, appears in Chapter 5 of the Final EIS. This
section of the ROD will discuss the impacts of the
preferred alternative and the selected project as com-
pared with the no action alternative.
1. Noise and Compatible Land Use
A. Noise
As required by FAA Order 1050.1E, the Noise Inte-
grated Routing System, NIRS, was used to model the
noise impacts of the Airspace Redesign project be-
cause the project involved a study area larger than
the immediate vicinity of an airport, incorporates
more than one airport and includes actions above
3,000 AGL. FAA also applied its criteria of signifi-
cance, an increase of 1.5 dB DNL or more on any
noise sensitive area within the 65 dB DNL area, to
determine whether the project would result in a
significant noise impact. Additionally, FAA reported
areas of slight to moderate impacts, that is areas
already experiencing noise between 60 to 65 dB DNL
that experience a 3 dB DNL or more increase, and
areas between 45 and 60 dB DNL that experience a
5 dB DNL or more increase. Section 4.1.2 of the Final
EIS contains the detailed environmental analysis of
App. 73
each of the alternatives with respect to noise and
compatible land uses.
Under the Future No Action Alternative, there will
be a slight growth in noise exposure because of an
increase in aircraft operations expected in 2006 and
2011. Approximately 72,141 people in the Study
Area, principally in the areas surrounding Kennedy,
Newark Liberty, LaGuardia, and Philadelphia Air-
ports, are projected to be exposed to aircraft noise
levels greater than 65 dB DNL in 2006. In 2011, this
number is 75,459. In 2006 213,692 people in the
Study Area are projected to be exposed to noise levels
in the 60 to 65 dB DNL range. This number declines
to 209,793 in 2011. The Study Area population pro-
jected to be exposed to noise levels in the 45 to 60 dB
DNL range is 11,774,446 in 2006 and 11,688,798 in
2011.
The selected project would cause approximately
21,399 people to be significantly impacted, which
means they would experience a change in noise levels
of +1.5 dB or more at a level of 65 DNL dB or greater
in 2006. These impacts would occur principally in
areas surrounding Kennedy, LaGuardia, Newark
Liberty and Philadelphia Airports, specifically in the
area of Rikers Island and Hunts Point in New York,
Elizabeth, New Jersey, and Essington, Crum Lynne,
Woodlyn, Wallingford, Rose Valley, Parkside, Brook-
haven, and southeastern Chester Heights in Pennsyl-
vania. The noise increases over Rikers Island and
Hunts Poiat result from the new departure headings
off LGA Runway 31 to the north and west gates. The
App. 74
noise increases over Elizabeth, New Jersey are
caused by new departure heading off EWR Runways
22L/R. In the Philadelphia area, the noise increases
are caused by new departure headings from PHL
Runways 27L/R.
Slight to moderate impacts would also result from the
preferred alternative in 2006. Approximately 37,558
people in the Study Area would experience an in-
crease of 3 dB DNL who would be in areas experi-
encing noise exposure of 60 to 65 dB DNL. In areas
that would experience 45-60 dB DNL, the number of
persons experiencing a slight to moderate impact, 5
dB DNL, would be 142,517.
The preferred alternative would also result in noise
decreases in 2006. Within areas that would expe-
rience noise exposure of 65 dB DNL and above, 5,970
persons would experience a noise reduction of 1.5 dB
DNL or more. One person within the 60-65 dB DNL
would experience a noise reduction of 3 dB DNL, and
39,400 people in areas that would experience 45-60
dB DNL would experience a noise reduction of at
least 5 dB DNL,
The year 2011 represents the full airspace consolida-
tion and full implementation of the preferred alterna-
tive. Significant impacts will occur in 2011 with the
preferred alternative, again principally in the areas
surrounding Philadelphia, Newark Liberty, Kennedy
and LaGuardia Airports. A total of 15,826 people i
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