RTCA’s Paper on “CatEx 2” for NextGen Implementation is Legally Indefensible

Last year, the FAA Modernization and Reform Act of 2012 (FMRA) http://1.usa.gov/13T4RGi was passed. Included in that law was a provision that provided that:

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 effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.

FMRA, § 213(c)(2), included as a note to 49 U.S.C. § 40101 (emphasis added).  Dubbed “CatEx 2” because it was the second categorical exclusion included in FMRA, it was meant to alleviate some the legal issues that the FAA had encountered in implementing Required Navigation Performance (RNP) and Area Navigation (RNAV) procedures pursuant to NextGen.  In September, 2012, the FAA asked the NextGen Advisory Committee (NAC) to offer its recommendation for implementing CatEx 2.  The reason the FAA asked NAC to take a look at the problem was because the FAA was having difficulties in developing a method to implement CatEx 2 and stay within the language of the statute.  Part of the difficulty was that the FAA correctly identified the problem.  As explained in the RTCA’s report, the FAA asked for guidance “on how ‘measurable reductions’ in noise from performance-based navigation (PBN) procedures ‘on a per flight basis’ might be assessed consistent with the legislative language, given that FAA typically uses methods that aggregate noise, which take into account the noise exposure of people on the ground from aircraft flights in the vicinity over an average daily period.”  Unfortunately, the method developed by the “CatEx 2 Task Group” of the NAC is inconsistent with the statutory language as well.

In June, 2013, the RTCA published its Recommendation for Implementing the Categorical Exclusion in Section 213(c)(2) of the FAA Modernization and Reform Act of 2012 (“Report”) http://bit.ly/1eECVr6.  The CatEx 2 Task Group developed what they called a “Net Noise Reduction Method” that they claimed could be implemented as part of CatEx 2.  However, in developing its method, the CatEx2 Task Group made a critical assumption that is, ultimately, legally indefensible.  Instead of adhering to the plain language of the statute, the Task Group began with the assumption that “on a per flight basis” actually means “on an average per flight basis.”  The Task Group made that assumption from reading the Conference Report for FMRA.

The Conference Report states the intent of CatEx 2 to “require the FAA to provide a categorical exclusion for RNP/RNAV procedures that would lead to a reduction in aircraft fuel consumption, emissions and noise on an average per flight basis.”  It is the view of the CatEx 2 Task Group, which was confirmed with relevant Congressional staff, that this language allows for averaging the noise impact on a representative basis over flights undertaking a particular procedure. As discussed in greater detail below, this observation and finding fundamentally informed the Task Group’s work on a method to implement Section 213(c)(2).

Report, p.6.  However, this view, even if it is reported in the Conference Report and confirmed by the relevant Congressional staff runs counter to the specific language contained in the statute that was passed by both the House and the Senate and signed by the President.  As such, the Task Group’s conclusion that “averaging the noise impact on a representative basis over flights undertaking a particular procedure” is legally indefensible.

The approach taken by the Task Group does not hold up to legal analysis because, in the first place, it assumes that if this interpretation were ever brought before a court for review, the court would look to the legislative history (in this case, the Conference Report) to determine the meaning of the statute.  This assumption, however, is fundamentally flawed.  When a court examines a statute to determine its meaning it looks first at the plain language of the statute in order to determine if the language is ambiguous.  See, e.g. Public Citizen v. United States Department of Justice, 491 U.S. 440, 470 (1989)(Kennedy, concurring)(“[w]here the language of a statute is clear in its application, the normal rule is that we are bound by it”) http://bit.ly/14E67gv.  In this case, the statute specifically states that the noise reduction must be on a “per flight basis.”  Moreover, the FAA, before handing the problem off to the NAC, read the statute as meaning “on a per flight basis,” without averaging when it first tried to come up with a method of implementing the statute.  Thus, it is likely that the statement in the Conference Report that the Task Group relies so heavily on would not even be considered by a Court in determining the meaning of the statute.

Second, a court only turns to a statute’s legislative history if a court finds that it will assist the court in ascertaining the intent of Congress in drafting the legislation the way it did.  See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (resort to legislative history was proper to assist in determining whether Congress meant to include disabled person who became disabled through contracting a contagious disease) http://bit.ly/13eM4a9.  Even then, Supreme Court Justice Scalia has been critical of using legislative history to interpret statutory language.  U.S. v. Romani, 523 U.S. 517, (1998)(Scalia, concurring)(“I have in the past been critical of the Court’s using the so-called legislative history of an enactment (hearings, committee reports, and floor debates) to determine its meaning”) http://bit.ly/18pElnN.  If, however, the Court finds that the legislative history confuses the matter instead of clarifying it, then the Court will ignore the legislative history.  See, e.g., Estate of Reynolds v. Martin, 985 F.2d 470, 477 (9^th Cir. 1992)(“where the legislative history of a statute is so confusing and contradictory that it is of no use in ascertaining Congress’s intent, we should not attempt to use it as a guide”) http://bit.ly/11ZDsS3.  Thus, even if a Court were to consider the Conference Report, the language cited by the Task Group in the Conference Report most likely would be ignored since it makes the statutory provision ambiguous.  That is, it is not clear in the Conference Report what the word “average” refers to, and is certainly not clear that it means what the Task Group thinks it means.  To look at it another way, if the language contained in the Conference Report had actually made it into the statute, then there would be a good argument that a court should look to the legislative history of the statute to determine what the Congress meant by the provision.

Finally, a court will not consider changing the meaning of a statute when the Congress had the opportunity to include the language that was mentioned in the legislative history, but did not include it.  This is a corollary of the previous canon of statutory construction and a outgrowth of the law’s perception of contracts:  if you had in there before and changed, there probably was a good reason it was changed and it is not the Court’s place to second guess Congress.  Thus, if Congress meant “noise on an average per flight basis,” it would have included the word “average” in the statute instead of leaving it out.  It cannot be argued that Congress was unaware of the difference in the language, since the Conference Report mentions the word “average,” but for whatever reason, the version voted upon by the House and the Senate and signed by the President did not include the word “average.”  And the Task Group cannot read the word back into the statute without congressional action.

Thus, from a legal perspective, it is highly unlikely that a court would look past the clear and plain language of the statute to conclude that Congress meant to allow averaging the noise impact on a representative basis undertaking a particular procedure.  This is a huge issue for the Subgroup, since the “Net Noise Reduction Method” developed by the Task Group is dependent on using averaging.  The desire to use averaging is based on the fact that the FAA and its noise consultants have been using DNL as their noise metric since the 1970’s.  To change to a single-event noise level, as indicated by the statue would call into question existing regulatory structure that the FAA has in place to measure and (poorly) regulate aircraft noise.  In the end, if neither the FAA nor the Task Group can come up with an approach that fits within the plain language of the statute, then the statute must be changed.  Just because the statutory language does not fit in the FAA’s and the Subgroup’s noise metrics Procrustean Bed, the Task Group cannot blithely assume away the difficulty presented by the language of CatEx 2.

Even if one were to accept the Task Group’s premise that DNL is an acceptable metric to use and falls within the language of the statute, there is at least one other issue that needs to be addressed.  The Task Group’s proposed method does not evaluate noise impacts below 45 DNL.  One of the assumptions that the Task Group relies on to support its failure to consider noise impacts below 45 DNL is that “legal challenges to air traffic actions have included noise levels as low as DNL 45 dB (thus, a method using a threshold down to DNL 45 dB arguably is conservative and responsive to potential community concern).”  However, in the recently decided case of Helicopter Association International v. FAA, Case No. 12-1335, (D.C. Cir. July 12, 2013) http://1.usa.gov/16atUXs the U.S Court of Appeals for the D.C. Circuit decided that it was acceptable for the FAA to require the use of flight paths to reduce noise impacts, even if those noise impacts are demonstrably below 45 DNL.  Thus, it would stand to reason that any method developed to implement CatEx 2 should include levels below 45 DNL.