APRIL 2020
CITY OF SCOTTSDALE CONTINUES WORK ON LAWSUIT AGAINST THE FAA
Scottsdale City staff is still at work on the lawsuit the City filed against the FAA on March 10, 2020. While the Covid-19 virus has sidelined many activities, it hasn't stopped the City from continuing to work on addressing the Sky Harbor Next Gen flight paths that the FAA illegally moved over Phoenix and Scottsdale in years past. The City is waiting to see how and when the FAA will respond to the lawsuit. The FAA was required to respond by April 27 but has requested an extension to May 27th. It is expected that the extension will be granted
The City recently conferenced with the team it has assembled to lead this legal action. The team consists of City staff members, the law firm of Leech Tishman Fuscaldo & Lampl, Inc. and two other aviation consulting firms it has contracted with to provide assistance and input. The group is formulating plans to address what might happen in the future for possible scenarios. Until a response is made by the FAA, it will not be known what action will need to be taken. SCANA sees possible outcomes as being:
1. The FAA will file and ask the Court to dismiss the lawsuit for technical reasons (see article below).
2. If the FAA does not ask for dismissal, or the Court refuses to dismiss the lawsuit, it will go to trial (date unknown at this point) with the parties arguing their cases in front of three Court of Appeals judges. The Court would then issue a judgment.
3. The parties could attempt to negotiate a settlement. Both the FAA and the City would have to agree to do so and it is not known if either the FAA or the City would consider this option. If they did, and could not arrive at a mutually agreed upon solution, the parties could then refer it back to the Court to decide.
To understand what the City is basing its lawsuit on, here are excepts from the City of Scottsdale petition filed with the U.S. Court of Appeals:
"......the City of Scottsdale....petitions this Court for review of the ...(FAA's) January 10th, 2020, final decision not to take any further action to alleviate the noise and pollution impacts caused by the FAA's implementation of the flight procedures for Phoenix Sky Harbor Airport."
"The FAA made its Decision (i) without complying with agency procedures for issuing a final agency order, and (ii) without conducting the required environmental review of its actions. As a result, its Decision was arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law."
"The FAA does not state in the Decision how it has fulfilled its obligations under these statutes, regulations and orders in deciding to terminate the Step Two process. Therefore, the FAA’s Decision that it “will take no further action under Step Two” warrants the Court’s review as to whether the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.................. In other words, the question for the court is “whether the agency has considered the relevant factors and articulated a ‘rational connection between the facts found and the choice made."....... Scottsdale alleges, among other things, that the FAA has failed to articulate any rational connection and consider the relevant factors."
By the end of May it hopefully will be known what path will be taken. SCANA will post updates as they become known and will continue to advocate to have the offending flight paths rescinded.
CLICK HERE to read the entire petition.
THE FAA HAS STACKED THE DECK IN ITS FAVOR REGARDING LAW SUITS
Suing the government is never easy. Congress has passed laws and regulations that protect government agencies against frivolous, never ending law suits. However, the FAA has done an effective job of protecting it's actions from law suits even when the merits favor those doing the suing. It did so by working with Congress in the 1970's to put standards in place that today have proven to be questionable but that still must be met when challenging the FAA's actions. For instance, unless noise levels reach what Congress defined as the 65db DNL standard, no actions can successfully be filed against it for strictly noise issues. What the 65db DNL standard requires is that the 65 decibel noise level must AVERAGE that level for a constant day/night 24 hour period. For airline traffic, It is virtually impossible to meet that standard as an average over a 24 period. Even those who were insiders to the process when the standard was determined have issues with it: "It is well known that serious public annoyance is prevalent long before official complaints are lodged. It is therefore obvious that these criteria are not adequate for aircraft noise abatement in the long run, since they are deliberately permissive." This from acoustic engineer Ted Shulz who helped develop the 65db DNL standard in 1971.
For flight path actions, a litigant must file with the Court within 60 days of the FAA's final action, or implementation of a new route. When the FAA does no or little public disclosure of its actions, as happened at Sky Harbor in 2014, it is virtually impossible for parties to become aware of, and then assemble attorneys and the like quickly enough to put together and file a law suit within 60 days. This has lead to past lawsuits against the FAA being dismissed because of this technicality and the merits of the case and the wrongs of the FAA never being heard. The State of Maryland recently had a lawsuit it filed over NextGen flight path issues dismissed by the Court for this reason. The FAA attempted to have the Phoenix lawsuit dismissed for this same reason but the Court ruled the FAA had not provided the City, or the public, adequate notice of the changes and refused to dismiss the case. The City of Phoenix and Historic Districts went on to win the case based on its merits.
While the City of Scottsdale cites the Phoenix lawsuit outcome in its filing, the City is challenging the FAA on its decision to declare an end, without route changes, to the Step Two process mandated by the Phoenix Court settlement. The FAA made its final determination of such on January 10th, 2020. The City was prepared for the FAA's decision and was able to file it's suit on March 10, 2020, within the 60 day time frame of the FAA's action.
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CHECK OUR WEBSITE OFTEN: AIRPLANENOISE.ORG
You can email us at scanaphx@gmail.com
PLEASE CONTINUE TO SUPPORT THE EFFORTS TO RESTORE THE QUIET AND SAFE SKIES SCOTTSDALE ENJOYED BEFORE THEY WERE STOLEN BY THE FAA
WE DID NOT MOVE TO THE FAA, THE FAA MOVED TO US!
Thousands of homeowners in Scottsdale and across the Country purchased their homes before an airplane superhighway was "arbitrarily and capriciously" placed over their neighborhoods without their knowledge or input.
