The Government Accountability Office (GAO) has issued its long awaited “FAA Airspace Redesign: An Analysis of the New York/New Jersey/Pennsylvania Project.” Although the GAO promised to publish the report by August 1, 2008, it waited until the same day the Petitioners in the Airspace Redesign litigation filed their opening brief to publish the Report. Although the GAO promised members of Congress to examine “to what extent did FAA follow key legal procedures and requirements in conducting its environmental review” (p.3), it failed to take into two important aspects of the FAA’s environmental review of its Airspace Redesign project, namely the Clean Air Act and section 4(f) of the Department of Transportation Act (for a full treatment of these issues, see the Joint Brief filed by the 12 sets of Petitioners in the Airspace Redesign litigation).
The GAO, making several critical assumptions about the Project, found, in general, that the FAA’s approach, at least with respect to NEPA, was “reasonable.” First, the GAO found that the statement of the project’s purpose and need, which, according to the GAO, was to increase the efficiency and reliability of the airspace while maintaining safety and reducing delays, was reasonable. Most importantly, the GAO concluded that the FAA “reasonably excluded noise reduction.” Second, the GAO found that the FAA developed a reasonable range of alternatives. Third, the FAA acted reasonably in not analyzing the indirect environmental effects of potential growth, the GAO said, resulting from the redesign. Next, the GAO opined that the FAA reasonably involved the public throughout the environmental review process. Finally, the GAO found that the FAA satisfied environmental justice directives in Executive Order 12898 and implementing CEQ guidance and DOT Order.
The GAO did identify some limitations to the FAA’s methodology, but concluded that the FAA was not required by law to address them. These “limitations” included the fact that because the FAA assumed that traffic demand and flight operations would not increase in response to airspace system improvements, the FAA did not account for the potential effect of the system improvements in its operational analysis. Second, the FAA did not fully assess the uncertainty associated with each alternative estimated impacts. And when the purported benefit of the Project is only a 0.8% reduction in fuel burnt, that “limitation” becomes more important. Finally, the GAO believed that the FAA should have undertaken an analysis of the economic impacts using both an uncertainty analysis and a benefit-cost analysis.
What the GAO Report did not take into account are two important statutory requirements that are outside of NEPA’s procedural requirements. First, the GAO failed to take into account the fact that the FAA did not perform a “conformity applicability analysis” as required by the Clean Air Act, EPA regulations, and FAA orders. The air quality in the areas around Philadelphia and New York are subject will be affected by the Airspace Redesign and there is no analysis anywhere in the FAA’s environmental review regarding air quality. Second, the GAO did not report on the FAA’s failure to properly take section 4(f) of the Department of Transportation Act into account. Section 4(f) protects federal, state and local natural areas from the environmental effects of Federal transportation projects. The GAO Report did not mention the FAA’s failure to properly identify and account for the environmental effects of the Project on those natural areas.
In the end, then, the GAO failed to answer the first question posed by Congress: “to what extent did FAA follow key legal procedures and requirements in conducting its environmental review?” Without a discussion of the Clean Air Act and 4(f), the Report is incomplete.