Presented to:

By:

Date:

Federal AviationAdministrationMaking Good

Decisions in the Environmental Review Process

2012 Pacific Aviation Directors Workshop

Joseph ManaliliAttorney, Airports & Environmental Law

March 15, 2012

The FAA Office of the Chief Counsel supports the Agency’s mission by furnishing timely and responsive legal services to the FAA Administrator and all Agency organizations at the Headquarters, Regional and Center levels.

Practice Areas:Airports and Environmental Law

Enforcement & Compliance

Ethics

International Affairs & Legal Policy

Legislation

Litigation & General Legal Services

Office of Dispute Resolution for Acquisition Personnel & Labor Law

Procurement

Regulations

Office of the Chief Counsel

● Provides legal advice and litigation support for- Airport matters- Environmental Law matters- Airport Improvement Program (AIP)- Passenger Facility Charge (PFC) Program- Airport Compliance Program

● Attorneys review environmental impact statements and other environmental documents for airport development and airspace optimization projects.

● Attorneys also have litigation responsibilities. - Work with the U.S. Department of Justice to represent the FAA in federal court

litigation concerning airport and environmental matters.- Represent the FAA in administrative proceedings concerning compliance with

airport grant assurances.

Airports & Environmental Law

● 42 U.S.C. §4321 (codified as 40 C.F.R. §1500)

● In 1969, NEPA, established a broad national framework for protecting our environment. NEPA's basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that could significantly affect the environment.

● NEPA requirements go into effect for projects such as - Airports- Buildings- Military Complexes- Highways, - Parkland purchases - All other Federal activities with the potential for impacts.

National Environmental Policy Act

● NEPA is a decision-making process for Federal agencies. It establishes the requirement that all federal agencies' funding or permitting decisions be made with full consideration of the impact to the natural and human environment.

● Requires agencies disclose these impacts to interested parties and the general public.

● Mechanisms: Environmental assessments (EA's) and Environmental Impact Statements (EIS's).

● The central element in the environmental review process is a rigorous evaluation of alternatives including the "no action" alternative.

NEPA

● Applies to all Federal projects in all states and territories within the jurisdiction of the United States.

● Includes Projects in: Hawaii, Guam, Northern Mariana Islands, and American Samoa.

● Does Not Include Projects in: Federated States of Micronesia, Republic of the Marshall Islands, and the Republic of Palau.

NEPA

● Hawaii – Hawaii Revised States Chapter 343 (Environmental Impact Statements)

● Palau Environmental Quality Protection Act (RPPL No1-58), 24 Palau National Code Section 101 et seq.

● Federated States of Micronesia, 25 FSMC §702

● Republic of the Marshall Islands, 35 MIRC Ch. 1; Environmental Impact Assessment Regulations, Republic of the Marshall Islands Environmental Protection Authority (1994).

NEPA-like statutes

• Clearly state the purpose and need.• Consider reasonable alternatives and the

“no action” alternative.• Evaluate environmental impacts of

proposed action• Obtain input from the public and resource

agencies.• Make an informed decision that is well-

supported.

Common Elements

Why Produce a Good Environmental Document?

Enviro Document Must Be Legally Sufficient1) Complies with applicable laws, regulations,

executive orders, and agency guidance.

2) Contains adequate supporting information.

3) Consistent with agency policies.

Why is it important?

1) To ensure that the environmental process is sustained if challenged in court.

2) To assess litigation risk and possible challenges.

3) To improve the environmental review process and environmental documents.

Common Trouble Spots

■ Purpose and Need

■ Alternatives

■ Responses to Public Comments

■ Response to Resource Agency Concerns

Ninth Circuit Court of Appeals

Recent FAA Cases■ City of Las Vegas – departure departure procedure at

McCarran; Court upheld FONSI/ROD

■ County of Rockland, NY – NY/NJ Airspace Redesign Court upheld FAA decision

■ West – Olympia Regional Airport; ok’d categorical exclusion.

■ NRDC – Panama City airport relocation; upheld

■ City of Dania Beach, FL – pending case; runway extension

■ Barnes v. DOT – 9th Cir., pending case, new runway at Hillsboro Airport, OR

■ Philadelphia Airport Capacity Enhancement Project - pending

■ T.F. Green Airport in Providence, RI - pending

QUESTIONS?