Courts and Aviation Litigation complex
Decisions’ significance can be misleading
Justice Thomas on Face Mask and 9th Circuit on LAX NEPA
The results of two decisions (see below for the two articles) were recently announced, one by the Supreme Court on the requirements for wearing masks aboard airplanes and one opinion about the FAA’s compliance with NEPA as to flight pattern changes at LAX as part of its rollout of its NextGen Air Traffic Control system. The impacts of these high profile judicial actions are not as significant as the reports may suggest.
Litigation of aviation matters is hard to predict. While there are a large number of statutes that define the rights, duties and other standards, the facts are frequently complex and not always familiar to the triers of the cases. A second and more distorting aspect id SAFETY. A judge is reluctant to increase the risk associated with the matter at trial and then is not likely to reverse the expert opinion of the Administrator.
First, the Supreme Court order in Wall v. CDC, a case which did not require all nine of the Justices to act. Justice Clarence Thomas was assigned to deal with a petition for extraordinary relief based on an assignment of Circuits.The most senior in terms of years on the bench issued an order declining to review the Emergency Injunction Petition requesting that the onboard mask mandate be voided as to a man with ”generalized anxiety, including panic attacks when he covers his face.” The petition for the injunction was denied. There was no “opinion” as it was not based on the substance of the refusal to hear the emergency injunction. If nothing else, the request was based on the assertion that the petitioner, acting pro se, was afflicted with some unusual mental condition.
The outcome was a little surprising since the Justice with responsibility for reviewing these petitions from the Circuit where the matter was filed. Justice Thomas is considered the most conservative on the bench and some of the libertarians were expectant that the mask rule would be removed.
Given the reputation of the Justice, an order leaving the CDC/FAA mask requirement should be SIGNIFICANT to the anti-mask advocates.
The second decision was a decision by the 9th Circuit on the FAA’s adherence to NEPA in implementing new NextGen tracks to LAX. The opinion found that the process failed to meet the rigors of NEPA and
“The court ordered the FAA to undertake proper NEPA and NHPA analysis and to consult with the city of Los Angeles regarding the Transportation Act.
While the problematic flight patterns will remain in place for now, the court’s ruling requires that the FAA undertake a more transparent and public process moving forward.”
In the early NextGen ATC implementations, the FAA had trouble with several appellate reviews. Their record improved after some of the processes were improved. This NEPA review was administered in 2018 and may have followed the more relaxed rules.
Here, the Judges did not rule on the factual substance of the case, but found that the FAA’s process was substantially flawed. “Go back and do it over” is the holding. The Court recited that the FAA had, after making its NEPA determination, completed another assessment. It is highly likely, that the FAA’s most recent iteration will soon be subjected to a full and proper environmental review. And, oh by the way, the FAA’s second NEPA paper cited SAFETY as a reason for the new tracks.
LOS ANGELES – In a victory for the city, a federal appeals court found that the Federal Aviation Administration violated key environmental laws when it changed flight patterns for aircraft coming into Los Angeles International Airport over mid-city and central Los Angeles, City Attorney Mike Feuer announced Monday.
As a result of the decision by the U.S. 9th Circuit Court of Appeals, the FAA must undertake a proper environmental analysis that should have taken place prior to implementing the changes in 2018, according to Feuer.
Two years ago, the city sued the FAA, alleging the agency made changes to flight patterns with neither environmental review nor public input.
“The FAA made changes to a major flight path over Los Angeles without considering the noise and environmental impacts for residents below, and without consulting the city,” Feuer said in a statement. “That was wrong and it’s why we fought. We are very pleased that the court agreed with us and ordered the FAA to finally conduct a full environmental review which, unlike last time, will include public comment.”
The appeals panel on Thursday held that the FAA violated three key federal environmental laws by implementing the flight pattern changes at LAX as part of its rollout of its Next Generation Air Transportation System: the National Environmental Policy Act, the National Historic Preservation Act, and a section of the Department of Transportation Act.
The court ordered the FAA to undertake proper NEPA and NHPA analysis and to consult with the city of Los Angeles regarding the Transportation Act.
While the problematic flight patterns will remain in place for now, the court’s ruling requires that the FAA undertake a more transparent and public process moving forward.
Five years ago, as part of the FAA’s implementation of the SoCal Metroplex Project and NextGen procedures, the agency started changing flight patterns for aircraft landing at LAX, including consolidating flight patterns over the West Adams neighborhood and other communities in mid-city and Central Los Angeles, causing significant noise and environmental impacts.
In May 2018, the FAA made additional changes to incoming flights but allegedly failed to perform the required environmental review or seek public comment. These changes prompted Feuer’s lawsuit.
The city of Los Angeles previously requested the FAA address a series of specific modifications to at least partially provide some relief to residents, but that proved unsuccessful, and the city filed its lawsuit in June 2019.
Among other things, the city claimed in its suit that the FAA failed to comply with its own procedures and properly consider all of the environmental impacts of the changes to its flight patterns for incoming aircraft at LAX. During the course of litigation, FAA presented documents to the court that allegedly confirmed that environmental review had occurred, but the court held that the documents were deficient because they postdated the publication of the flight pattern changes by several months….
July 13, 2021, 6:56 PM
- Justices reject challenge to federal mask mandate for public transportation
- Court has lifted Covid restrictions that impinge on religious rights
The U.S. Supreme Court rejected a request to undo the Centers for Disease Control and Prevention’s mask requirement for public transportation, including airline travel.
Justice Clarence Thomas on Tuesday denied Lucas Wall’s calls to lift the requirement for his upcoming international travel. Wall said he suffers from generalized anxiety, including panic attacks when he covers his face.
Earlier in the pandemic, the Supreme Court declined several requests to lift Covid restrictions. That changed after Amy Coney Barrett joined the court and provided a fifth vote to rescind limits that interfered with religious rights.
Wall sought to piggyback on the religion-based rulings, asking the court “to also hold that other constitutional rights—including the freedom to travel, to due process, and states’ rights under the 10th Amendment— can’t be suspended” by the government due to Covid.
Federal law for now requires people on airlines and other public transportation to wear masks to protect against the spread of coronavirus. Tension between passengers and cabin crews have boiled over on some flights over mask compliance. The Federal Aviation Administration (FAA) recently issued proposed fines against passengers for unruly behavior, including refusing to wear masks.
The case is Wall v. CDC, U.S., No. 21A2.
 Mr. Wall wrote a 96 page brief.
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