Kern: Disappointed by the FAA v. Scottsdale decision

On June 16, the U.S. Court of Appeals, D.C. Circuit, dismissed the lawsuit the city of Scottsdale initiated against the Federal Aviation Administration due to new flight paths the FAA placed over the city at the end of 2014.

Not because of the merits, but because the court said the city did not have “standing to bring its petition” and that the city “….has not identified evidence showing it has suffered …. harm”.

This is disappointing to the residents of Scottsdale who have been suffering for years from the FAA’s NextGen flight paths. Did the city really fail to provide the court with evidence for its standing? No, says Sherry Scott, Scottsdale’s city attorney. Ms. Scott had this to say when asked by SCANA about what the court said: “This is not a situation where the city failed to present its case.

Rather, the court simply failed to seriously consider the city’s evidence and arguments and took the fastest route to dismiss the case.“ To read Ms. Scotts more in-depth analysis of what happened, go to SCANA’s website at airplanenoise.org.

The court ignored the fact that in 2017 it ruled that the FAA had illegally implemented all the NextGen flight departure paths at Sky Harbor Airport. In an anomaly, the city of Phoenix and Historic Districts lawsuit successfully forced the FAA to return to previous flight paths over western Phoenix. Those nine flight paths were the only ones where relief was sought by the litigants, so no others were addressed.

Recent environmental studies show that noise from constant overflights may not be the only issue. Particulate pollution that falls upon residents is becoming a health issue. NextGen flight paths are precisely guided over the exact same routes flight after flight after flight. Therefore, the public below these concise paths are receiving a concentrated dose of all the particulates from the engine exhaust. It will only be a matter to time before illnesses from these concentrated doses will be acknowledged and that environmental health lawsuits will be on the horizon for the FAA and airlines.

In the Scottsdale lawsuit the FAA’s briefs argued that there were no new flight paths placed over Scottsdale and that there were no new noise increases (according to its own study). However, the following evidence belies the FAA’s claim:

1) Scottsdale resident noise complaints to Sky Harbor went from seven complaints annually prior to NextGen to over 17,000 after NextGen;

2) There were two departure flight paths near Scottsdale prior to NextGen and three afterwards placed right down the middle of the city;

3) Prior flight paths were radar controlled and more dispersed while new flight paths were routed on precise, narrow rails, flight after flight creating an airplane freeway and resultant constant overflights; and

4) The FAA itself claimed the NextGen flight paths were new in a court memorandum in 2017 that stated: “Whereas, on Sept. 18, 2014, the FAA published new flight routes and air traffic procedures at Sky Harbor International Airport……..”.

SCANA has worked over the years with residents and the city to try to get the FAA to address these flight path issues. Naturally our own efforts with the FAA have been rebuffed.

The city entered court directed mediation discussions with the FAA for months. The FAA scoffed at the city’s and residents’ concerns, forcing the city to pursue its lawsuit. The city must be commended and thanked for supporting its residents and expending resources in trying to protect the quality of life within its borders.

The aviation industry is critical to the daily functioning of our country. We all use it and support it. However, isn’t it simple logic that airplanes should be guided to flight paths that minimize the impacts to communities on the ground? Instead, the FAA used NextGen to “shortcut” the existing flight paths that were used for decades, and that city zoning and development were created around. Why? To bow to the airlines to save a few miles of route, a couple of minutes of flight time and a few gallons of fuel.

There have been other FAA lawsuits by other cities and organizations where the merits were never heard because the court has cited a legal technicality to dismiss the suits. Most of us, including this writer, don’t understand all these legal technicalities. There obviously are valid reasons to have some of them.

But we do understand common sense, and obtuse technicalities should not be manipulated to intentionally avoid the merits of these cases from being adjudicated. It’s clear the courts are looking for ways to avoid hearing lawsuits against the FAA.

Tens of thousands of citizens across the country have been denied the opportunity to seek justice over a rogue Federal Agency. We often hear where the FAA is a “captured” agency by the airlines it is supposed to regulate. It makes one wonder, are the courts captured by the FAA?