Court decides on process and mentions Washington Post
NextGen RNP causes channelization outside Court’s Comptence
The inhabitants of the Georgetown, the Palisades and other Northwest Washington neighborhoods are comprised of Members of Congress, lobbyists, business leaders and the people who make the National Government GO. They know the rules and how the battles are fought. That collective brought suit against the FAA and the impressive team of lawyers included some of their neighbors.
THEY LOST and did so on procedural grounds. The United States Court of Appeals for the District of Columbia Circuit found in CITIZENS ASSOCIATION OF GEORGETOWN, ET AL., V, FEDERAL AVIATION ADMINISTRATION AND MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, that the appellants had filed too late. Circuit Judge Tatel found:
During this entire period, Georgetown claims that notwithstanding multiple notices regarding the D.C. Metroplex in the Washington Post, it was completely unaware of the project and the recently completed EA process. Not until it met with the FAA in July 2015 did Georgetown learn of the LAZIR-based departure procedures. Pet’rs’ Br. 17. Then, on August 24, 2015—approximately eighteen months after the FONSI/ROD was issued and pilots began flying the LAZIR procedures—Georgetown filed a petition for review in this court challenging the FAA’s approval of the LAZIR-based departure procedures, in which it alleged that the agency failed to comply with NEPA and several other statutes. [emphasis added]
[the North departure pattern/impact at issue]
The opinion distinguished the Washington facts from the process at issue in a similar FAA new air traffic procedure, City of Phoenix v. Huerta,869 F.3d 963, 966 (D.C. Cir. 2017), opinion amended on reh’g, 881 F.3d 932 (D.C. Cir. 2018). There the same Court, a different panel, determined: The petitions thus came more than half a year too late. The review statute, however, provides that a court may allow a petition to be filed after the usual deadline “if there are reasonable grounds for not filing by the 60th day.” 49 U.S.C. § 46110(a). While we “rarely [find] ‘reasonable grounds’ under section 46110(a),” Elec. Privacy Info. Ctr. v. FAA, 821 F.3d 39, 43 (D.C. Cir. 2016), we have done so in cases quite similar to this one. The Circuit Judges reviewed the unusual process used by the FAA in attempting to comply with requirements of NEPA. Suffice it to say that the Phoenix facts were considerably more egregious than the Washington record.
Parsing Judge Tatel’s words, he appears to rely on the effective notice given by the Washington Post. Thereby giving some credence to that publication’s long-running advertising tagline, “If you don’t get it, you don’t get it” and its current mast head sub title:
On a more serious vein, NEPA is and has always been primarily a procedural statute. In neither the Phoenix nor the Washington case did the court review the underlying environmental concerns. At best a court will assess whether the agency’s Record of Decision was arbitrary and capricious.
The ultimate question raised by these citizens is whether the NextGen RNP aligns the flights with such precision that it results in tracks which are channeled over same path or “channelization.” That problem may require the FAA to adopt a new noise metric, an action which Congress can compel, or the FAA can initiate.
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