FAA Ordered to Vacate Their 2014 NextGen Routes in Phoenix

This analysis was posted by Peter Dunn, at the Fair Skies Nation Facebook site (Boston). It’s a good summary….


Here’s a (sort of) brief summary if you don’t want to read the full opinion (which is actually very good reading):

The decision involves the FAA’s switch to NextGen in Phoenix which did the same thing there as it did here and everywhere else – screwed over a bunch of neighborhoods in the new, concentrated flight path. The first question was whether the complaint was timely filed under federal law. The applicable law provides that the lawsuit must be filed within 60 days after the order on the new routes is issued. The city filed six or so months late. The court found that the city’s late filing was excused because it had “reasonable grounds” for the delay because the FAA was making the right noises (i.e. “we’re working on fixing it” while doing nothing).

Once over that hump, the court turned to the substance of the case which was, in changing the new routes, whether the FAA was “arbitrary and capricious and violated the National Historic Preservation Act, the National Environmental Policy Act, the Department of Transportation Act, and the FAA’s Order 1050.” SPOILER ALERT: the FAA violated all of those laws!

The court found that the FAA violated the National Historic Preservation Act by running a low-profile consultation with junior level city employees and did not “provide the public with information about an undertaking and its effects on historic properties and seek public comment and input” as the law requires.

It also found that the FAA violated the National Environmental Policy Act by categorizing its determination that the change in routes did not “not individually or cumulatively have a significant effect on the human environment” allowing it to bypass a full environmental review. The applicable law prohibits the FAA from making a “no significant impact” determination, if the proposed action’s effects “are likely to be highly controversial on environmental grounds.” The court found that the FAA arguing that flying bunch of jets over the same houses again and again where they had not done so before was not “likely to be highly controversial on environmental grounds” was, in fact, arbitrary and capricious (as the huge spike in complaints showed). This finding means that the FAA should have done the full environmental review. The court specifically pointed to the FAA’s failure to use a standard regarding a 5 or greater increase in decibels (clearly a bogus standard as we can all attest) that apparently was used right here in Boston to determine whether a change in flight paths was likely to be highly controversial.

The court also found that the FAA violated a section of the Transportation Act that calls for “special effort[s] to preserve the natural beauty of . . . public park and recreation lands . . . and historic sites.” This requires that consult with appropriate officials in the affected areas when assessing whether a noise increase might substantially impair these areas. The court stated that FAA’s low profile campaign did not meet the standard.

The court went on to find that the FAA also violated a provision of the Transportation Act that provides that a federal transportation project may “use” a public park or historic site only if “there is no prudent and feasible alternative to using that land.” The project “uses” the protected area if it “substantially diminish[es]” the “activities, features, or attributes . . . that contribute to its enjoyment.” The FAA can’t green light the project if “a quiet setting is a generally recognized purpose and attribute” of applicable area. The court found that, in light of the ridiculous spike in air traffic over the parks and historic neighborhoods, the FAA’s determination that “a quiet setting is a generally recognized purpose and attribute of the affected areas” could not have been reasonable.

After noting all of these violations, the court vacated the FAA order changing the routes and told the FAA to go back and do it again, but the right way this time. I am not sure if this means that they must go back to the old routes ASAP or not. In any event, congrats to Phoenix on a well-deserved victory! Sleep well tonight and enjoy your yards, parks and public space again!