Airports’ Appeal of FAA’s Contract Tower Closure may result in Telling Review of the Aviation Safety Decision

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ARTICLE: Spokane Airport Sues FAA to Stop Closing of Control Tower

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Cuyahoga County to fight FAA closure of airport control tower in Richmond Heights

The Spokane Airport Board has filed the first appeal with the U.S. Court of Appeals for the District of Columbia (the pleadings are not yet available) seeking to review and perhaps block the closure of Felts Field. Cuyahoga County will be filing a legal action on March 28 at the same court to prevent the closure next month of the control tower at the Cuyahoga County Airport in Richmond Height.

A letter sent by the Spokane Airport to FAA Administrator Huerta includes a reference to the FAA’s own reliance on safety management systems (SMS) and presumably inquires whether a safety risk assessment was conducted regarding the closure of the air traffic control tower at Felts Field. The same could be said for the other 148 airports that lost air traffic control towers. The article’s quotation of the letter seems to say that the FAA is obligated to apply SMS analysis in its exercise of its statutory safety mandate.

FAA Order 5200.11 clearly states that the FAA uses SMS to oversee and uphold safety throughout the National Airspace System (NAS). Yet it would appear, at least to the Spokane Airport Board, that the SMS principles were not applied.

The Ohio Airport executives also sent the Administrator a letter. The argument of that missive is that the FAA was mandated to complete a review under the National Environmental Policy Act. This is a very novel argument to reach a safety issue. NEPA has a lot of teeth to it, but its likely remedies are primarily procedural in nature. Delay is good, but it will be hard to use this statutory review to reach the underlying safety decisions.

It is very difficult to litigate the FAA over its exercise of its statutory duties. Usually courts give great deference to such a discretionary decision. The precedents in this area of the law are complex and difficult. That is not to say that the FAA’s judgment here is without criticism. The explanation given for shuttering 149 air traffic control towers lacks the sort of open process and clear standards that would be expected of such an important safety decision. If the Court decides that it has jurisdiction to review this case, the FAA’s internal, unannounced procedures and hidden criteria are likely to draw the intense scrutiny of the Judges.

Well-argued pleadings will assert that safety is not the primary determinant. The FAA’s own explanation of its judgment does not rely heavily on its power in that arena. The argument should focus on the decisional criteria which actually involves impact on economic local economies, transportation, communications and banking networks plus defense concerns. Those are not matters for which the FAA is given statutory expertise; thus the usual judicial deference may not be appropriate.

This legal proceeding will clearly be watched by all of aviation. Depending on the strength of the petitioner’s arguments, other similarly situated closed Aircraft Towers and/or trade associations may seek to intervene.

Stay tuned.

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