Save Our Skies La v. Fed. Aviation Admin.
| Docket Number | 20-73314 |
| Decision Date | 05 October 2022 |
| Citation | 50 F.4th 854 |
| Parties | SAVE OUR SKIES LA, Petitioner, v. FEDERAL AVIATION ADMINISTRATION ; Stephen M. Dickson, in his official capacity as Administrator, Federal Aviation Administration, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ariel Strauss (argued), Greenfire Law PC, Berkeley, California; Mitchell M. Tsai, Pasadena, California; for Petitioner.
James A. Maysonett (argued) and Justin D. Heminger, Attorneys; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Courtney B. Adolph and Katherine T. Rooney, Attorneys, Federal Aviation Administration, Washington, D.C.; for Respondents.
Douglas Carstens, Chatten-Brown Carstens & Minteer LLP, Hermosa Beach, California; for Amici Curiae Studio City Residents Association, Save Coldwater Canyon, and Oak Forest Canyon Homeowners Association.
Robin Greenberg, President, Bel Air Hills Association, Los Angeles, California, for Amicus Curiae Bel Air Hills Association.
Stephen Arkle, President, Sunshine Hills Residents Association, Studio City, California, for Amicus Curiae Sunshine Hills Residents Association.
Before: Eric D. Miller and Daniel P. Collins, Circuit Judges, and Edward R. Korman,* District Judge.
Few people want to live directly under an airport flight path, but planes still need to be able to go somewhere. Shifting a flight path only shifts the noise onto new areas and communities. Ensuring the safety and efficiency of air traffic is the responsibility of the Federal Aviation Administration, which prescribes approach and departure procedures for the nation's airports. Affected parties may challenge the FAA's decisions in court, but challenges are subject to a 60-day statute of limitations.
This case involves a challenge to several FAA orders implementing and revising departure procedures at the Van Nuys and Burbank airports in Southern California. Petitioner Save Our Skies Los Angeles, an association of nearby residents, sought review within the 60-day period of two FAA orders. But those orders did not implement the departure procedures to which Save Our Skies objects; they simply made minor editorial changes to two different orders that had been published years earlier. Save Our Skies cannot establish that there was anything unlawful about the editorial changes. Its real challenge is to the substance of the earlier orders. And as to those orders, its challenge comes long after the statute of limitations expired. We deny the petition for review in part and dismiss it in part.
Congress has vested the FAA with authority to adopt rules governing the navigation of aircraft within the United States. 49 U.S.C. §§ 40101(d), 40103(b)(2). In the exercise of that authority, the FAA has established flight-path procedures for aircraft. These procedures specify the steps pilots must take in departing from or arriving at airports, such as where to turn, where to ascend or descend, and at what speeds to fly.
In 2012, Congress directed the FAA to modernize the nation's air transportation system, including the departure and arrival procedures at airports across the country. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 213, 126 Stat. 11, 46–50. In particular, Congress instructed the FAA to replace conventional compass-and radar-based navigation procedures with satellite-based navigation procedures, which allow for greater flight automation and reduce the time and airspace needed by departing and arriving planes. As part of the modernization, the FAA began designing the Southern California Metroplex Project, which would implement new procedures at 21 airports across the region.
To comply with its procedural obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. , the FAA prepared an environmental assessment for the Southern California Metroplex. As part of that assessment, the FAA conducted air-and noise-pollution analyses of all of the proposed flight procedures. Because the FAA found that the proposed changes would result in no significant impact on the environment as compared to the alternative of taking no action, it determined that no further analysis was required under NEPA. Multiple petitioners challenged that determination. The District of Columbia Circuit denied the petitions for review, concluding that the FAA's "environmental analysis was substantively reasonable and procedurally sound." Vaughn v. FAA , 756 F. App'x 8, 12 (D.C. Cir. 2018) (per curiam).
As part of the Southern California Metroplex, the FAA implemented numerous procedures at the Van Nuys and Burbank airports. To assist pilots and air traffic controllers in identifying a particular procedure, each procedure is given an arbitrary name. Additionally, the individual procedures are sequentially numbered to distinguish iterations of the procedure as it is revised and edited. The two procedures at issue in this case are the HARYS departure procedure at the Van Nuys Airport and the SLAPP departure procedure at the Burbank Airport. In early 2017, the FAA adopted the first versions of those procedures—HARYS ONE on April 27 and SLAPP ONE on March 2. Because the HARYS and SLAPP departure procedures differ, we discuss the history of each in turn.
Like other procedures, HARYS contains several "waypoints"—specified geographical positions along a flight route at which an aircraft is to begin changing direction, speed, or altitude. As part of the Southern California Metroplex, the FAA proposed a HARYS departure procedure that included a waypoint just over a mile south of the southern end of the Van Nuys runway. But implementing that waypoint required a waiver from the FAA's Flight Standards Procedure Review Board, which the Board did not grant. As a result, the procedure actually adopted by the FAA in HARYS ONE included a different waypoint, one located directly on the southern end of the Van Nuys runway. But that waypoint required aircraft to turn almost immediately upon takeoff, which resulted in violations of the Van Nuys Airport's noise-abatement requirements.
To address that problem, the FAA promulgated HARYS TWO in May 2018. The new order replaced the HARYS ONE waypoint with one at essentially the same location as the waypoint that was originally proposed by and analyzed in the Metroplex. Critically for this case, since the 2018 waypoint substitution in HARYS TWO, the FAA has not changed the path of the HARYS departure procedure or otherwise affected the movement of aircraft along it.
Following HARYS TWO, the FAA promulgated two orders implementing minor editorial changes to the procedure. Only the second of those orders, HARYS FOUR, is at issue here. HARYS FOUR made two changes to make the language of the procedure more consistent with the language in procedures used in other regions of the country. Specifically, it replaced the phrase "LANDING LAS COMPLEX" with "LANDING LAS TERMINAL AREA," and it added the phrase "VNY TOWER TO COMMUNICATIONS." Neither change affected the flight path of any aircraft departing from the Van Nuys Airport.
As part of its preparation for promulgating HARYS FOUR, the FAA issued a declaration that the proposed order did not require additional review under NEPA because it was a minor change that was categorically excluded from review, and it did not present any "extraordinary circumstances." On September 10, 2020, the FAA promulgated HARYS FOUR.
During the time that the agency was revising HARYS, local governments and members of the public formed the Southern San Fernando Valley Airplane Noise Task Force in response to concerns over a "southern shift" in which departing aircraft from Van Nuys and Burbank were flying farther south before turning north to their destinations as compared to the pre-Metroplex flight paths. This southern shift is at the heart of the petition in this case.
Between August 2019 and May 2020, the Task Force met seven times, and in June 2020, it submitted 16 recommendations to the FAA regarding, among other issues, the HARYS departure procedure. Although the FAA was not a member of the Task Force, it sent technical advisors to at least one meeting to offer guidance on the feasibility of the Task Force's proposals. On September 1, 2020, the FAA responded to the Task Force's proposal and declined to implement the recommendations as infeasible.
The history of the SLAPP procedure is somewhat more straightforward. On March 2, 2017, the SLAPP departure procedure proposed by the FAA as part of the Southern California Metroplex and analyzed in its environmental assessment went into effect at the Burbank Airport. In October 2018, in an effort to remedy the southern shift from the Burbank Airport, the FAA published a draft environmental assessment identifying a number of potential solutions. In March 2019, after receiving numerous comments on its draft assessment and holding two public meetings, the FAA decided to prepare a further environmental assessment considering additional alternatives. That assessment is still underway.
While continuing to work on the SLAPP environmental assessment, the FAA determined that it was necessary to make a minor wording change to SLAPP ONE, similar to the one it made in HARYS FOUR, replacing "LANDING LAS COMPLEX" with "LANDING LAS TERMINAL AREA." That change did not affect the flight path of any aircraft departing from the Burbank Airport. In the same declaration covering HARYS FOUR—and for the same reasons—the FAA stated that SLAPP TWO did not require additional review under NEPA. On September 10, 2020, the FAA promulgated SLAPP TWO.
On November 9, 2020, Save Our Skies filed the present petition, seeking review of HARYS FOUR and SLAPP TWO. Save Our Skies argues that the FAA failed to sufficiently analyze the procedures, in violation of NEPA, the Administrative Procedure Act, and section 4(f) of the ...
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