On August 3, 2015, the Federal Aviation Administration published its Final Notice to Announce Implementation of Section 213(c)(2) CATEX and Disposition of Public Comments in the Federal Register. http://1.usa.gov/1Kc2Eql. This Categorical Exclusion was included in the FAA Reauthorization and Reform Act of 2012 and has been the subject of much controversy, particularly in light of the rather heavy-handed way the FAA has implemented “Performance Based Procedures” (PBN) and “Regional Navigation Procedures” as part of its “NextGen” roll-out. For those new to the issue, here is the legislatively mandated categorical exclusion:
NextGen Procedures.—Any navigation performance or other performance based navigation procedure developed, certified, published, or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rules procedures in the same airspace, shall be presumed to have no significant affect [sic] on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.
On previous occasions, this blog has expressed issues with the categorical exclusion. See RTCA’s Paper on “CatEx2” for NextGen Implementation Is Legally Indefensible. These comments focus on the FAA’s proposed implementation of that CatEx.
First, the idea of using categorical exclusions for instituting PBN procedures is not a good one. One of the primary problems that the FAA is currently having in dealing with PBN procedures is the lack of transparency. That is, the affected communities do not feel like they have a stake in the decision about whether there will be aircraft flying over their heads. Yet, the FAA continues to use “categorical exclusions” when instituting RNAV and other PBN procedures. This avoids public scrutiny, since no public participation is required. Thus, oftentimes the only notice affected residents have that the flight paths have changed is when they hear the aircraft rumbling overhead. In response to a comment regarding the lack of transparency, the FAA brushed off the concern by stating that “the FAA and NAC are currently giving increased attention to improving airport operator and community involvement in PBN implementation.” While that is a step in the right direction, it still does not resolve the current problem for communities that have already been affected.
Second, the FAA’s new proposal for implementation does not resolve the legal issues raised by the NAC’s “Net Noise Reduction” proposal. The FAA claims that by focusing on aggregate noise instead of the number of the affected population, its version of net noise reduction will be “more consistent with the statute.” However, changing to a system that aggregates noise instead of counting the number of people affected by the PBN procedure does not get around the statutory mandate that the “measurable reduction” of noise be on “a per flight basis.” Since the system to be implemented by the FAA still employs an average, it is out of compliance with the statute. In its recent Notice, the FAA shrugged off these concerns by stating because “the FAA cannot directly apply the CATEX as written due to technical challenges associated with the language used by Congress in creating the CATEX” it will ignore the precise statutory language and implement a CatEx that is technically feasible, but runs contrary to the statute. The problem here is that the FAA’s and the NAC’s technical staff are not used to dealing with statutes, they are used to drafting and implementing regulations. When dealing with regulations, they can mold the wording of the regulations to fit the technical parameters. But they cannot, at least from a legal perspective, change or ignore statutory language to fit their technical needs.
Third, the FAA’s new proposal states that the “CATEX would not be used if any noise increases would be significant.” This statement is rather perplexing, since the statute specifically states that the CatEx can only be used if there is a “measurable reduction” of noise. It does not say “significant,” nor does it allow for an increase. How is it that the FAA can state with straight face that the statute will allow it to use the CatEx in instances where there is an increase in noise?
Fourth, the FAA and the NAC seem to be unwilling to be creative from a technical standpoint. For example, the FAA states that “noise depends not only on the varying noise levels of an aircraft as it flies, but also on the position of the aircraft in relation to noise sensitive receivers on the ground.” However, the statute does not mention anything about measuring the amount of noise on the ground over noise sensitive receptors. It would seem that the Congress is asking for a measurable reduction of noise produced by the aircraft and the aircraft engines. That is measurable in the same manner that carbon dioxide emissions and fuel emissions are measurable. For example, an aircraft using a continuous descent arrival produces less noise than an aircraft using the standard procedure. Is that not what the Congress intended?
Finally, it should be pointed out that “CatEx2” is less a “categorical exclusion” and more of an amendment of NEPA’s requirements. It is a grant of an exemption from the environmental impact process required under NEPA, which includes no requirement for public input. Categorical exclusions were intended to be used as broad categories of administrative tasks undertaken by a federal agency that do not have a discernible impact on the environment. The CEQ installed an escape hatch by stating that an activity that normally would be covered by a categorical exclusion could still have to go through the full NEPA environmental process if there were “extraordinary circumstances.”
However, categorical exclusions have been used by the FAA to “streamline” the NEPA process, particularly in the case of NextGen implementation, in order to avoid having to develop an Environmental Assessment or an Environmental Impact Statement. They are used increasingly by federal agencies in instances where an Environmental Assessment is the more appropriate alternative. This has had the effect of freezing a primary stakeholder – the affected public – out of the process. This is particularly evident from the fact that there is no provision for “extraordinary circumstances” in CatEx2 which, in a usual CatEx, would augur against the use of a CatEx. Under CatEx2, if the “measurable reductions” components are met, the “CatEx” can be used and the FAA can proceed to bypass NEPA requirements without regard to any extraordinary circumstances.
In the end, if the FAA is going to move with the implementation of this CatEx (one that the FAA admits it will use infrequently), that it include in its interpretative guidance a requirement that the public be involved before the CatEx is approved. The FAA should take note that this piece of legislation is discretionary on the part of the FAA. If the FAA cannot implement the statutory language, it is under no requirement to use the categorical exclusion. If the FAA sincerely believes that an average is the right choice and the intent of Congress, then the FAA should seek to have the statute changed during the upcoming FAA reauthorization process instead of implementing a program that is legally suspect.