News Article - February 07, 2009


  The Circuit Court of Appeals for the District of Columbia dismissed a petition for review Tuesday of Federal Aviation Administration policies and procedures filed by Delaware County, citing the petitioner’s failure to meet standing requirements. The county had asked the court to review a list of 15 categories of FAA actions published in 2007 that were “presumed to conform” to state implementation plans of national air-quality standards.

   The Environmental Protection Agency has established general conformity regulations that stipulate a federal agency must determine if a proposed action would conform to the Clean Air Act. However, agencies can first perform an applicability analysis to determine if the emissions would be below de minimis (legally trivial) levels. If so, the agency need not perform the conformity test.

   Because the FAA activities on the list were presumed to conform to state implementation plans, the FAA determined it did not require either a conformity determination or an applicability analysis. The FAA then implemented two new headings off Philadelphia International Airport’s Runway 27 Dec. 19, 2007, under a controversial NY/NJ/PHL Metropolitan Airspace Redesign Plan, which the county has challenged in a separate action in the same court. Oral arguments in that case are scheduled for May 11.

   The thrust of this action was essentially procedural, said county Solicitor John McBlain, and was undertaken under an abundance of caution to try to bar the FAA from arguing in the separate action that the county should have attacked the rules the FAA used to set its list. “What the court, in the end, basically ruled was, ‘Look, Delaware County, even if we decided this rule was wrong or faulty, that doesn’t give you the relief that you’re asking for,’” said McBlain. “If the enactment of the rule itself didn’t cause you harm, then you don’t have the standing to challenge it.”

   He added the issue of the presumed-to-conform rule is included in the other action, and that the FAA would not now be able to successfully argue the court ruled in its favor on this issue, because the decision did not extend to the substance of the argument. “I’m disappointed today, but it’s not totally unexpected, because there were some issues the court had raised at oral arguments that they may decide against us on a procedural issue,” said County Council Vice Chairman Jack Whelan. “We’re still fighting. The main thrust of the case is to be orally argued in May and we’re going to continue in a bipartisan manner to try to convince legislators that now is the time to introduce legislation to prevent” the redesign from continuing.

   U.S. Rep. Joseph Sestak, D-7, of Edgmont, said the only way to keep the FAA from fully implementing its plans — which include extending a runway farther into Tinicum Township — is for all officials at all levels to stand together against Philadelphia. If Delaware County Council, the Tinicum Township Board of Commissioners, local state representatives and Sestak draw a line in the sand and do not sell the land Philadelphia needs, he said, the redesign results in only 18 seconds of delay reduction, as spelled out in a recent Government Accountability Office report. “If they can’t get the land, we win this battle,” said Sestak. “There’s no eminent domain by the city of Philadelphia.”

   That will force the FAA — under a new administrator — to look at other options, such as regional airports, said Sestak. He indicated U.S. Rep. Rob Andrews, D-N.J., would soon present a report on that idea. “The strategic approach to this has been working,” said Sestak. “Jack Whelan is right — we would have liked to have had this win, but we still have the other one, the big one.”

Source - Daily Times