FAA Whiffs Again on “CatEx2,” Proposes Underwhelming Replacement to NAC’s “Net Noise Reduction.”

After the Congress put an aviation industry-friendly categorical exclusion into the FAA Reauthorization of 2012, the FAA could not figure out how to implement the provision that stated that in order for it to use the categorical exclusion, there had to be a “measurable reduction” in noise “on a per flight basis.”  So it handed the matter over to the NextGen Advisory Committee.  They came up with a solution that, although innovative in its approach, assumed away the biggest legal challenge – that the noise was not reduced on a “per flight basis” but over an average using the FAA’s standard DNL metric. See http://bit.ly/1DPORoB.  The FAA was not totally happy with that approach, so it put it out for comments.  And now, at U.C. Davis’ annual Aviation Noise and Air Quality Symposium, the FAA unveiled its underwhelming response to the comments by proposing a third, even more deficient proposal. FAA Presentation to Symposium on 03/03/2015: http://bit.ly/1zEWKby FAA Presentation to NAC (02/27/2015): http://1.usa.gov/1ACFd47

Here, in a nutshell, is the FAA’s decision:  “The noise determination for Catex2 will be met if proposed PBN procedures, when compared to existing procedures they replace, would result in a net noise reduction based on average DNL changes and would not significantly increase noise.”

First, the whole idea of using categorical exclusions for instituting RNAV procedures is not a good one.  One of the primary problems that the FAA and airports have in dealing with RNAV 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, which 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.

Second, the FAA’s new proposal does not resolve the legal issues raised by the NAC’s “Net Noise Reduction” proposal.  Although 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 still out of compliance with the statute.

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 assessment 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.  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 an 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, the FAA should not implement CatEx2 as it is currently proposed.  This invites legal challenges based on sound legal precedent of statutory interpretation.  Even if the FAA does decide to move forward with the implementation of CatEx2, it should do so only after ensuring that the affected public has had an opportunity to weigh-in on the proposed project for which CatEx2 is being used.