SCANA and Quiet Skies 

SCOTTSDALE COALITION FOR AIRPLANE NOISE ABATEMENT

OCTOBER 2021 UPDATE #2

 

IN THIS UPDATE:

 

  • FAA FILES ITS RESPONSE BRIEF AS REQUIRED BY THE U.S. COURT OF APPEALS ON OCTOBER 22ND
  • LOS ANGELES LAWSUIT AGAINST THE FAA IS DISMISSED BY U.S. COURT OF APPEALS DUE TO LACK OF JURISDICTION
                       _____________________________________

 

FAA FILES ITS RESPONSE BRIEF ON OCTOBER 22, 2021

 

After months of foot dragging, the FAA finally filed its Response Brief with the U.S. Court of Appeals in response to the law suit the City of Scottsdale filed against the agency in March of 2020.  Somehow the FAA, after bemoaning it didn't have the resources to file the brief after seven extensions, was able to file a 106 page brief that was full of distortions regarding it's implementation of the NextGen flight paths at Sky Harbor International Airport at the end of 2014. The army of FAA attorneys floated legal technicalities and drew upon its archives of arguments it has historically used in combating legal challenges to its new NextGen flight paths it arbitrarily placed over dozens of communities.  The FAA brief repeats the same arguments over and over and tries to flood the Court with fabrications and arguments that are not relevant to Scottsdale's petition.  In its Response Brief the FAA referenced 70 prior legal cases that it attempts to use as precedents to deny the validity of the Scottsdale lawsuit, and lists 38 regulations and FAA orders that it thinks supports its illegal actions.  Below are SCANA's takes on some of the FAA's arguments:

CLICK HERE to read the FAA Response Brief of 10/22/2021

CLICK HERE to read Scottsdale's Opening Brief of 5/10/2021

 

Fabrication No. 1:  That the new NextGen routes over Scottsdale are not new

The FAA states that the NextGen flight paths placed over Scottsdale were not new and that they have been in place historically for years and years prior to 2014. The reality is that the previous two northeast flight paths were widely dispersed over a wide geographic area from Fountain Hills to the west of Phoenix and consequently most neighborhoods had occasional, low air traffic.  Because a few flights may have occasionally overflown the new NextGen routes, the FAA is attempting to say the new and old routes are the one and the same.  But if the routes weren't new, why did thousands of Scottsdale residents suddenly began complaining about constant overflights after NextGen was implemented at the end of 2014?  Was it just coincidence that Scottsdale noise complaints to Sky Harbor went from 7 in 2013 to almost 17,000 in 2017?  Why did the FAA consolidate all of the previously dispersed flights to follow a single narrow "highway in the sky" over the exact same homes and communities with overflights as often as every two minutes?  If the flight paths were not new, why were there only two navigation way-points named CHILY and SILOW for northeast bound departures in 2014 and three new way-points named ZEPER, QUAKY and MRBIL after November 2014?  The FAA itself signed off on language in a November 30, 2017 Court Memorandum that stated "Whereas, on September 18, 2014, the FAA published new flight routes and air traffic procedures at Sky Harbor International Airport.......".  This fabrication by the FAA is an obvious weak effort to distance it from the Court's ruling in the Phoenix case that remanded "new" departure routes.  Read on.

 

Fabrication No. 2:  That the Phoenix law suit judgement is not relevant

The FAA claims the U.S. Court of Appeals judgment from the lawsuit that it lost against Phoenix regarding the NextGen flight paths it placed over western Phoenix, should not be considered in this case and that it only applied to western departures. Scottsdale was not a party to the lawsuit nor the following Settlement Agreement.  However, it was the Settlement Agreement between Phoenix and the FAA that limited the resolution to just the western departures, not the Courts judgment.  The final Court judgment stated "...we grant the petitions, vacate the September 18, 2014 new flight departure routes at Sky Harbor International Airport.....".  This language encompasses all the departure routes that were implemented at Sky Harbor and does not exclude the eastern departures.  Just because the parties Settlement Agreement settled on changing only the western departures, it does not change or invalidate the Courts judgement.  Of course, the term "new" in the Court judgment is why the FAA is falsely claiming that the eastern departure routes were not "new".  We suspect the Court will see through this subterfuge.  Also of importance, when the FAA requested the Court ".....to amend and replace the D.C. Courts opinion and order of August 29, 2017....."  with text that would limit the Courts judgement to westbound departures, the Court shunned the request and refused to do so.

 

Fabrication No. 3:  That the Phoenix situation and Scottsdale situation are different

The FAA brief states that the Scottsdale proceeding has "meaningful different facts and issues" from the Phoenix case.  While intricate details within the cases are not identical, the impetus for the lawsuits have the same identical cause:  the FAA secretly placed new flight paths over communities that created new noise, pollution and danger from commercial airliners overflying previously quiet sky neighborhoods, without notice to, participation or input from those communities.  The FAA also states that Scottsdale has no standing to sue on behalf of its citizens.  Phoenix had standing for its citizens; how could Scottsdale not have the same standing?

 

Fabrication No. 4:  That the Scottsdale lawsuit is asking the Court to remand 9 westbound departure paths from the May 2018 Phoenix settlement and that GPS navigation be abandoned and radar navigation reinstated

The FAA brief claims that Scottsdale is requesting the Court to remand 9 westbound Settlement Agreement departure paths that were implemented in 2018 as a result of the Phoenix litigation.  That is an exaggeration of what Scottsdale is actually requesting.   The Scottsdale brief asks the Court to ".....vacate and remand FAA's decision to implement the Replacement Departure Prodedures......" of May 2018.  Those procedures do include the western replacement routes that the Phoenix Settlement Agreement provided for.  But Scottsdale makes it clear within its brief that it is only referencing the eastern departure routes within those procedures and the western replacement routes would remain as is. The FAA makes an extensive argument that all the routes in the Replacement Departure Procedures would be vacated and revert back to radar instead of satellite navigation technology.   But the Scottsdale brief has no mention of remanding western flight paths and no mention of GPS or radar whatsoever.  Most of the FAA's brief is dedicated to arguing how it is technically impossible and would take multiple years to make any route changes, that traffic at Sky Harbor would be reduced by 50%, that nationwide havoc in the air traffic system would occur and immense dollar cost would be incurred.  This is merely obfuscation on the part of the FAA to attempt to muddy the water with the same arguments it attempted in the Phoenix case.  After the Courts Phoenix decision on August 29, 2017, the FAA negotiated a Settlement Agreement with Phoenix and had all nine western routes geograhically rerouted by May 24, 2018.  There were no national air system issues, no reduction of traffic at Sky Harbor, continued use of GPS navigation, no safety issues and it was business as usual.  All negotiated and implemented within only 9 months!  For it to address only three northeast bound departures from Sky Harbor the FAA has already proven it could do so expediently, safely and with no disruptions.

 

Balderdash No. 5:  That the FAA is putting a Work Group together to consider new procedures at Sky Harbor including eastern departures

The FAA states "....Scottsdale may yet be able to obtain its objectives for eastern flight procedures through the FAA's ongoing processes to consider potential procedure changes...." and "....the FAA's ongoing processes may address Scottsdale's concerns...."  If the FAA was serious about considering changes why didn't it offer those up in the many months of mediation talks with Scottsdale?  While the FAA will likely put together the Work Group, we doubt that Scottsdale is going to buy into the "just trust me" hype.  And, is Scottsdale included in the Work Group?  Of course not, only that:  "Scottsdale will be notified....... of any proposed procedure changes".  The FAA also created a Work Group for the Phoenix uproar; the result:  denial of consideration of any changes.  

 

Fabrication No. 6:  The FAA conducted a new environmental analysis of eastern flight paths for the May 2018 implementation of the restored western flight paths

The FAA states repeatedly that it conducted new environmental analysis that included the eastern flight paths:  "....the FAA performed additional environmental analysis, including as to the eastern departure routes."  But then it later stated:  "...the May 2018 eastern departure routes required no further NEPA analysis at those times."  And from the May 2018 Record of Decision the statement is made:  "...the FAA has reviewed the above referenced proposed action and it has been determined, by the undersigned, to be  categorically excluded from further environmental documentation.....".  Of course the undersigned approval signature was from an FAA employee.  So, was new environmental analysis done or not?  It would appear the only analysis done was to reaffirm, by the fox in the hen house, that a categorical exclusion would be applied and no review was necessary. 

 

Fact No. 7:  The FAA admitted it screwed up the NextGen Implementation

The then FAA Regional Administrator, Glen Martin, met with the Phoenix City Council after Next Gen implementation complaints and admitted:  "I think it's clear that....[our pre-implementation procedures were] probably not enough because we didn't anticipate this being as significant an impact as it has been, so I'm certainly not here to tell you that we've done everything right and everything we should have done."  And as the Court judges later stated: "The public's reaction was swift and severe: the planes supplied the sound, the public provided the fury".

 

The FAA also continues to tout that overflight noise levels are withing regulatory limits.  But as the JDA Journal commented in an edition:  "What was lost in translation was that the FAA's valid numbers were based on MACRO (disbursed flight paths) impacts; while the new NextGen routes, due to the precision of RNAV, concentrates the noise on a MICRO basis."  A perfect explanation of the reality of NextGen.

 

 

 

SCANA's rebuttals and comments above are only intended to provide our members and readers of SCANA's layman opinions.  SCANA is not a party to the lawsuit.  The actual legalities can be and are sometimes different.  One thing that seemed clear is that the FAA presented questionable arguments in its Response Brief.  The FAA historically has done everything it can to get legal petitions such as Scottsdale's dismissed by Courts via legal technicalities so that the actual merits of the cases are never heard.  The FAA is asking the same with this case.  We hope the judges will see through the FAA's attempts and move forward with the case as they did with the Phoenix litigation.

 

 

The next step is for Scottsdale to file a Reply Brief to the FAA's Response Brief.  This is due by November 12, 2021.  Shortly after that, if no other issues are forthcoming, the Court will either schedule oral arguments or review the case without them. 

 

Here is the briefing schedule:

Petitioner's (Scottsdale) Reply Brief:      November 12, 2021

Deferred Appendix:                                November 19, 2021

Final Briefs:                                            December 3, 2011

 

SCANA will send out updates as things progress.  Stay tuned.  It looks like the case will continue to move forward with the Court deciding if the case will move to the merits.

 

                             __________________________________________

 

 

U.S. COURT OF APPEALS DENIES LOS ANGELES LAW SUIT AGAINST THE FAA'S NEXTGEN FLIGHT PATHS

 

The FAA was successful yet again in getting a lawsuit against new flight paths dismissed by the Court over legal technicalities.  In these cases, the merits of the case and the FAA's actions are never reviewed or heard by the judges.  A disappointing outcome.

 

From the Studio City for Quiet Skies newsletter:

 

NINTH CIRCUIT DENIES
LA CITY LAWSUIT RE BUR FLIGHT PATHS

 

Today, the Ninth Circuit Court of Appeals denied the City of Los Angeles’ case against the FAA to change the flight paths that moved over our community without notice or environmental study.
 
The Court dismissed the case for lack of standing/jurisdiction, claiming that FAA’s letter refusing to revert to the prior flight path did not constitute a “final order.”
 

     "In sum, we hold that the FAA Letter we are asked to review is not a final order, so we lack jurisdiction to review it. We cannot and do not decide whether the City could have raised its concerns about the current flight patterns around the Airport in a different manner that would have resulted in jurisdiction in this court or a district court to review those patterns. PETITION DENIED."

 

If you would like to read more about this case and the plight of the Studio City Quiet Skies movement please go its website HERE.

 

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FILE A NOISE COMPLAINT AS OFTEN AS YOU CAN!

While it may feel useless to continue to file noise complaints, it is important that complaint statistics show continued resident opposition to the NextGen flight paths.  Complaints should be filed with both the FAA and Sky Harbor Airport.  For the FAA, CLICK HERE FAA to go to its complaint form or CLICK HERE OMB  and click on the Arizona link to send a complaint to the FAA Noise Ombudsman, and CLICK HERE SKY to go to the Sky Harbor compliant form to log a complaint.  No log in is required and it only takes a minute!

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  Please take a few moments to do the following:

1.  Unless you have already done so, please go to the SCANA website at airplanenoise.org and vote YES to support SCANA's efforts to restore Scottsdale's quiet skies.

2.  Go to the SCANA Facebook page at Scottsdale Coalition for Airport Noise Abatement

https://www.facebook.com/airplanenoise  and "Like" the page and "Follow" it.

3.  Contact our elected representatives often to voice your concerns over the FAA's          arbitrary actions in the implementation of these flight paths.  Go to the Complaint page on our website to click on the parties you wish to contact.  Contact the Scottsdale City Council members via email here:  citycouncil@scottsdaleaz.gov

4.  Spread the word about SCANA and our website to neighbors and friends who are also concerned about the loss of their safety and the loss of the enjoyment of their home life and outdoor activities.   Ask them to sign up on our website to receive our updates.

 

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.

 

 

10115 E. Bell Road, Suite 107, #132 Scottsdale, AZ 85260
scanaPHX@gmail.com

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