Lawyer tells Quiet Skies that FAA ‘failed to comply’ with environmental rules
By Jack Mayne
The Federal Aviation Administration “failed to comply” with environmental rules when – without warning – it “began experimenting” with a new procedure that sends noisy prop-jet aircraft at low altitudes over Burien, a “non-confidential memorandum” from an international law firm has told the Quiet Skies Coalition.
The law firm said it appears Quiet Skies and the City of Burien could get the flight paths moderated or changed by challenging the federal agency over failure to conduct environmental studies before such a major change in operations.
“On balance, it appears that a cause of action alleging a violation of the National Environmental Protection Act (NEPA) would be likely to succeed on the merits,” wrote Matthew Adams of the Dentons’ San Francisco office.
“Publicly-available documents (including those obtained from the FAA through the freedom of information act) strongly indicate that the FAA failed to comply with NEPA before approving the controversial New Route.
“And the FAA’s explanation for that failure is arbitrary, capricious, and contrary to available evidence,” Adams wrote.
The Dentons law firm is one of the world’s largest, and has handled many cases involving the Federal Aviation Administration. Adams was asked by Burien’s Quiet Skies Coalition to write a non-confidential memo on the FAA changes so that officials of the city and members of the Burien community could be advised of chances that a legal action could succeed, said Quiet Skies president Larry Cripe. He said the group collected donations to pay Dentons what, in legal firm terms, was an extraordinarily low fee of $8,500 for the overview.
Many large law firms take certain cases on a low fee basis because the research and involvement could assist in future cases with other litigants.
In addition to a Burien City Council appearance on Monday night, Jan. 23, there have been a number of smaller committees considering the new noise from the FAA flight path changes.
State Rep. Tina Orwall has introduced legislation that requires “completion of a study of certain environmental impacts, including ultrafine particulate emissions, associated with aircraft traffic in areas impacted by airport operations.” Reps. Joe Fitzgibbon, Mia Gregerson, Gael Tarleton, and others co-sponsored the measure and there is a companion bill in the State Senate.
Download a PDF about attending a House Environment Committee Hearing in Olympia on Tuesday, Jan. 24, 2017 here.
The proposed measure says the state Department of Commerce, in consultation with the Department of Health and the Department of Ecology, “is directed to complete a study by September 1, 2021, regarding air quality, implications of air traffic at the international airport in Washington with the highest number of total annual departures and arrivals.”
Quiet areas impacted
Adams noted that the FAA’s “New Route” sends smaller passenger aircraft on a “fixed, consistent path at low altitude over the City of Burien, resulting in significant noise and air quality impacts within that corridor.” The specific areas underlying the new route include schools, parks, and otherwise-quiet residential areas.
The lawyer noted members of the Quiet Skies Coalition and Burien residents spent a “considerable amount of time and effort trying to obtain from the FAA information about the New Route, its implementation, and whether/when the agency’s decision-making process had been completed.
“I also understand that the FAA did not provide a formal response to these inquiries until Dec. 16, 2016.”
Adams wrote that national environmental laws require federal agencies to “identify, evaluate, disclose, and consider reasonable alternatives to the environmental consequences of their proposed actions.
“Those environmental consequences include noise, air pollution, and impacts to historic resources and parklands, among others,” he wrote to Quiet Skies.
Public must be informed
The NEPA process “requires that federal agencies both consider and make available to the public a rigorous analytical evaluation of environmental issues.”
Adams said there are “only three ways” for federal agencies to comply with NEPA.
The first is that the agency must prepare an Environmental Impact Statement (EIS), which is a “lengthy, comprehensive document that must fully evaluate all reasonable alternatives.”
If the FAA decides the proposed action has “no possibility of a significant impact on the environment, the agency may elect to rely on a Categorical Exclusion from NEPA review.” In that case, “the agency need not evaluate alternatives.”
The third way is for all other proposed actions. Then, “the agency must prepare an Environmental Assessment to determine whether significant environmental consequences are possible,” Adams wrote.
If there likely could be significant consequences, the agency must do an EIS.
The FAA must follow one of these three compliance pathways before approving or otherwise committing resources to a proposed project.
EIS not done here
“The FAA does not appear to have done so here,” Adams wrote. “We can be certain that the agency did not prepare an Environmental Impact Statement or an environmental assessment because none of the required public notices associated with those documents were ever issued.
The only remaining compliance path involves reliance on Categorical Exclusion.
“For a number of reasons, it appears that a Categorical Exclusion was not – and could not – have properly been used.
“The New Route does not fall within any of the FAA’s previously-promulgated categories of actions determined to have no possibility of a significant impact on the environment,” Adams wrote.
Therefore Categorical Exclusion was not eligible in this case because the “New Route” directs aircraft over parks, schools, and residential areas at low altitude.
“The FAA’s own regulatory orders state that an environmental assessment (rather than a Categorical Exclusion) must normally be prepared for any action that would routinely route aircraft over noise-sensitive areas at less than 3,000 feet above ground level,” Adams wrote.
FAA failed to comply
The lawyer also said the FAA’s responses to various Freedom of Information Act requests by the Quiet Skies Coalition “fail to provide or disclose any of the analysis or documentation that would normally accompany an agency decision to rely on Categorical Exclusion.
“In other words, there does not appear to be any evidence that the FAA undertook the analysis necessary to determine whether reliance on a Categorical Exclusion was proper. That failure in and of itself is a violation of NEPA.
“In sum, the documentary record appears to confirm that the FAA failed to comply with NEPA before approving the New Route.
Exceeds past Burien fly-overs
Adams said he understands that the FAA is now contending that “due to the historical nature of using the 250 degree heading (the New Route), it was determined that there was no significant impact.”
But he says there are problems with this position.
First, in documents FAA staff clearly refers in documents to the New Route as a significant departure from historical north flow departure procedures.
Then, flight tracks confirm that the New Route is not consistent with historical operations.
Also, Burien residents with first-hand experience, “further confirms that the New Route substantially exceeds any previous departure flows over the City of Burien.”
“There is no evidence that the FAA actually evaluated whether the New Route might result in significant environmental consequences; on the contrary, it appears that no such evaluation was undertaken.
Adams also writes that while the FAA has a “certain amount of flexibility in documenting its environmental review, it is not the case that the agency is entitled to proceed in reliance on a Categorical Exclusion without any documentation whatsoever.”
He notes the FAA has “publicly sought to justify the New Route as necessary to accommodate a 9 percent increase in overall operations at Sea-Tac. That justification is not consistent with the notion that the New Route is a continuation of historical operations.
Pursuing claim against the FAA
Adams said Federal Aviation Administration actions are directly reviewed in the appellate courts.
“It would be permissible to seek judicial review of the FAA’s decision-making in the United States Court of Appeals for the Ninth Circuit (in San Francisco). It may also be permissible to seek review in the United States Court of Appeals for the District of Columbia Circuit. Based on current information, a petition in the Ninth Circuit would appear to be the preferred approach.
Burien residents involved
“The courts generally invalidate and set aside agency action taken without NEPA compliance,” Adams wrote. “In this case, such a remedy would remand the matter to the FAA and set aside the New Route until such time as the agency has completed an appropriate NEPA review.”
Then the aviation administration would need to undertake an appropriate NEPA review.
“While it is premature to speculate as to the precise elements of (or schedule for) such a review, the process would assuredly be open and public,” Adams wrote. “This is important because it confirms that Burien stakeholders will have an opportunity to present alternative procedures by which Q400 aircraft can be dispersed from Sea-Tac.
“My understanding is that there are several such procedures that would have lower overall noise and air quality impacts than the New Route,” wrote Adams. “Under these circumstances, it is reasonable to expect that alternatives to the New Route will receive meaningful consideration. Indeed, failure to provide such consideration would subject the FAA to additional litigation risk.
“A successful litigation outcome would also bring certain long-term strategic benefits for Burien stakeholders,” Adams wrote.
“First, it would effectively assure Burien a seat at the table for any material future changes at Sea-Tac, a material improvement over the current situation. Second, litigation would help prevent the FAA from ‘regularizing’ the impacts of the New Route — that is, making those impacts part of the baseline against which future proposals are measured.”
This may become especially important if, as anticipated, the agency initiates significant changes to Sea-Tac procedures in the medium- to long-term.
Read our extensive previous coverage of this issue here.