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Citizens Association of Georgetown v. Federal Aviation Administration

United States Court of Appeals, District of Columbia Circuit

March 27, 2018

CITIZENS ASSOCIATION OF GEORGETOWN, ET AL., PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION AND MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, RESPONDENTS

          Argued January 11, 2018

          On Petition for Review of an Order of the Federal Aviation Administration

          Matthew G. Adams argued the cause for petitioners. With him on the briefs were Richard deC. Hinds, Don W. Crockett, Kenneth Pfaehler, and Peter L. Gray.

          Lane N. McFadden, Attorney, U.S. Department of Justice, argued the cause for federal respondents. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, and David C. Shilton, Attorney.

          Before: Henderson and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          TATEL, Circuit Judge.

         For decades, airplanes departing from Ronald Reagan Washington National Airport ("National") followed a route that took them over northern Virginia and the west bank of the Potomac River. In December 2013, after studying proposed route changes and finding that they would have no significant environmental impact, the Federal Aviation Administration (FAA) approved new flight paths that would bring planes closer to the Georgetown neighborhood of Washington, D.C. In the following months, pilots occasionally departed from National along the new routes. In June 2015, after conducting additional flight trials, the FAA published charts depicting the approved routes in a catalog the agency maintains of approved departure and approach procedures. Georgetown University and six local neighborhood associations then petitioned for review, alleging that the FAA failed to comply with environmental and historic preservation laws when assessing the noise impacts of the new departure procedures. Unfortunately for petitioners, they filed their challenge too late. Federal law requires that petitions seeking review of FAA actions be filed within sixty days of the agency's final order unless the petitioner had "reasonable grounds" for delay. 49 U.S.C. § 46110(a). In this case, because the FAA's December 2013 approval of the new routes, not its later publication of the route charts, qualifies as the agency's final action, and because petitioners failed to challenge it within the sixty-day statutory time limit and had no "reasonable grounds" for the delay, we dismiss the petition as untimely.

         I.

         National Airport, described by President Franklin D. Roosevelt as "one of the world's greatest facilities, surely its most convenient and, some of us like to think, probably its most beautiful, " has served the Washington, D.C. metropolitan area for more than seventy-five years. President Franklin D. Roosevelt, Remarks of the President Delivered in Connection with the Laying of the Cornerstone of the Administration Building at the Washington National Airport (Sept. 28, 1940). Despite the dramatic growth of air traffic at National-from 350, 000 passengers in its first year to 24 million in 2017 with some 550 daily takeoffs, Metropolitan Washington Airport Authority, Air Traffic Statistics December 2017 at 2, 4 (2017)-departure procedures remained largely constant for much of the airport's history. Until recently, pilots would typically follow a departure procedure known as "NATIONAL" when the airport was in "north flow operation"-i.e., when planes were landing at the southern end and departing at the northern end. This procedure directed pilots to take off in a northwest direction and follow the 328-degree radial out of the airport. For readers following along with a map and compass, this would bring airplanes over Arlington National Cemetery, Rosslyn, and along the west bank of the Potomac River until just past the Georgetown Reservoir.

         The actual path pilots flew, however, was not quite a straight line. Rather, a noise-abatement procedure designed to divert aircraft over the river and reduce flying time above more populated areas instructed pilots to take off in a northern direction and "[f]ollow the Potomac River until abeam the Georgetown reservoir, " at which point they were to join the "[National] 328 radial." FAA, Terminal Procedures Publication 363 (Feb. 11, 2010), Joint Appendix (J.A.) 553. As shown in Figure 1, which depicts departure flight paths from radar data recorded in 2002, aircraft departing according to NATIONAL would fly a curved route that roughly followed the course of the Potomac River just south of Georgetown.

         In the early 2000s, the FAA, acting pursuant to its authority under the Federal Aviation Act of 1958, 49 U.S.C. §§40101 et seq., to prescribe air-traffic procedures governing how and where planes fly, as "necessary to ensure the safety of aircraft and the efficient use of airspace, " id. § 40103(b)(1), began an effort to update flight paths around National. The agency convened a working group made up of the Metropolitan Washington Airports Authority (MWAA)-an independent agency that manages National and Washington Dulles International Airport-other federal agencies, local elected representatives, and citizens to develop ideas for further reducing noise and increasing safety at National. This group recommended that the FAA "encourage the use of advanced navigation technology by airlines . . . to follow more predictable and precise flight tracks along the center of the Potomac." MWAA, FAR Part 150 Noise Exposure Maps and Noise Compatibility Program VI-3 (Nov. 22, 2004), J.A. 58. In response, the FAA began developing a procedure for "performance-based navigation, " also referred to variously as "RNAV procedures" or area navigation procedures. Unlike conventional departure procedures, such as NATIONAL, which rely on a mix of radar tracking and analog navigation instructions from air-traffic control, RNAV procedures utilize satellite navigation technology to more accurately and flexibly guide aircraft.

         The FAA's efforts culminated in a new departure procedure for National known as "LAZIR." This RNAV procedure guided north-bound departures from National roughly along the same route set out in the conventional NATIONAL procedure, except that it took advantage of Global Positioning System technology to guide aircraft. As the FAA was implementing LAZIR at National in 2011, Congress enacted legislation that directed the agency "to modernize the nation's air-traffic control system." 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) (citing FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 101(a), 213(a)(1)(A), 126 Stat. 11, 47). Spurred by this new legislation, the FAA developed the Washington, D.C., Optimization of the Airspace and Procedures in the Metroplex (D.C. Metroplex)- a package of 41 new and modified flight procedures to guide arrivals and departures at National, as well as at Washington Dulles International Airport and Baltimore/Washington International Thurgood Marshall Airport. Central to the issues before us, the D.C. Metroplex established several new northbound departure procedures from National that began identically to the LAZIR procedure and then, once past the Potomac River, branched out in various directions depending on the aircraft's ultimate destination.

         When exercising its authority to promulgate new departure procedures, see 49 U.S.C. § 40103(b)(1), the FAA must comply with a constellation of statutory and regulatory schemes designed to ensure that federal agencies properly account for their contemplated actions. See Environmental Impacts: Policies and Procedures, FAA Order 1050.1E § 401 (June 8, 2004). One such scheme, established by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321- 4370m, requires agencies to prepare an environmental impact statement (EIS) for "every . . . major Federal action[] significantly affecting the quality of the human environment, " id. § 4332(C). If uncertain about whether the contemplated action requires a full EIS, the agency must at least prepare an "'environmental assessment' [(EA)] to determine whether the action will cause a 'significant' environmental impact, " such as by substantially increasing noise levels. City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1189 (D.C. Cir. 2007) (citing 40 C.F.R. § 1508.9(a)). If "the agency determines that a full EIS is not required, it must still issue a 'finding of no significant impact' [(FONSI)] explaining why the project is unlikely to have a significant effect on the environment." Id. (citing 40 C.F.R. § 1508.13).

         Pursuant to NEPA, the FAA conducted an environmental analysis of the D.C. Metroplex, which it initiated by distributing a notice of intent to prepare a draft EA in December 2012.Although the FAA sent the notice directly to 330 parties, only two were officials of the District of Columbia: the State Historic Preservation Officer and Congresswoman Eleanor Holmes Norton. The FAA also published notice in ...


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