The City of Scottsdale, through its in-house and hired California-based lawyers, has filed a petition for review in the United States Court of Appeals against the Federal Aviation Administration.
On March 10, Scottsdale petitioned the court for review of the Federal Aviation Administration’s January final decision to not take any further action to alleviate noise and pollution impacts caused by flight path procedures for Phoenix Sky Harbor International Airport.
The petition argues the FAA failed to articulate any rational connection and consider the relevant factors when the federal department announced it had fulfilled its obligations under an implementation agreement stemming from its lawsuit with the City of Phoenix.
Scottsdale City Attorney Sherry Scott and Senior Assistant City Attorney Eric Anderson are the city’s in-house legal experts representing Scottsdale in this matter, in addition to Steven M. Taber and Esther Choe of Pasadena, California-based Leech Tishman Fuscaldo & Lampl, Inc.
The petition is versus the FAA and Stephen M. Dickson in his official capacity as administrator of the FAA.
The petition filing was anticipated after Scottsdale City Council approved a resolution Feb. 18 authorizing the action.
“The goal of filing the Petition for Review is to focus the FAA’s attention on the aircraft noise and pollution issues being experienced by the residents of Scottsdale,” said Mr. Taber. “The outcome we are hoping for is that the FAA will redesign the flight procedures so that the residents of Scottsdale are not as affected by the aircraft noise and pollution as they currently are.”
The issue dates back to 2014 when the FAA implemented a new satellite GPS system known as “NextGen” for guiding arriving and departing aircraft to and from Phoenix’s Sky Harbor International Airport.
Where air traffic had formerly been dispersed over predominately unpopulated areas many miles away, arriving and departing planes were now compressed and moved into narrow and undeviating “highways” directly over densely populated communities.
Scottsdale believes it is shouldering an unfair burden of the new flight routes, and has had a significant impact on a number of residents.
In May, Scottsdale City Council voted unanimously to approve a resolution authorizing Mayor Jim Lane to submit comments on behalf of the city to the FAA regarding issues arising from airplanes arriving and departing Sky Harbor Airport.
In its January decision, the FAA said it will not be taking any further action.
“Any future actions that the FAA may undertake regarding airspace changes in and around Phoenix will be considered new actions that are unrelated to the Implementation Agreement,” the FAA statement reads.
“The Implementation Agreement provided that the FAA during Step Two would have sole discretion whether to make any changes to flight procedures that are unrelated to the westbound departures that were at issue in the lawsuit.”
In Scottsdale’s petition, it points to action taken by the City of Phoenix and several of its historic neighborhoods in 2015. Phoenix filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit challenging the FAA’s decision to change the departure routes from Sky Harbor Airport such that aircraft began flying over historic neighborhoods where they had not flow in the past.
In City of Phoenix, Arizona v. Huerta, the court granted Phoenix’s petition for review order that “the [FAA’s] September 18, 2014 order implementing the new flight routes and procedures at Sky Harbor International Airport be vacated; and the matter be remanded to the FAA for further proceedings.”
The FAA signed an agreement with the parties to the petition of review in order to carry out the court’s judgment that set for a two-step plan to implement flight procedures for aircraft that depart to the west of Phoenix.
Step one of the agreement included creating new departure procedures to the west at Sky Harbor Airport that returned, as much as possible, the flight tracks over the City of Phoenix and its historic neighborhoods to those that were in existence before 2014. In step two, the FAA also agreed to consider development procedures that would address the long-term issues covering the entire Phoenix metro area.
“This Petition seeks review of the FAA’s January 10, 2020, decision not to make further changes to the flight paths over Scottsdale,” Scottsdale's petition states. “The FAA made its decision without complying with agency procedures for issuing a final agency order, and without conducting the required environmental review of its actions. As a result, its Decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”
The legal team states the FAA’s decision to terminate the second step of the agreement determined the rights of Scottsdale and its residents who provided comments describing aviation noise and pollution they have suffered due to the flight path changes.
“The decision provides no reasoned basis for terminating the Step Two process. Instead, the FAA simply relies on the supposition that ‘the FAA during Step Two would have sole discretion whether to make any changes to flight procedures that are unrelated to the westbound departures that were at issue in the [Phoenix] lawsuit,’” the Scottsdale petition for review states. “However, the FAA’s ‘sole discretion’ is not unfettered discretion.”
Furthermore, it is argued that the FAA does not state in its decision how it has fulfilled its obligations under outlined 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,’” the document states.
The petition asks the court whether the agency has considered relevant factors and articulated a “rational connection between the facts found and the choice made.”
Ultimately, the document states, Scottsdale alleges, among other things, the FAA failed to articulate any rational connection and consider the relevant factors.