Appeals Court nixes FAA flight-path changes in early court test | News | Palo Alto Online |


Appeals Court nixes FAA flight-path changes in early court test

'NextGen' procedures and routes overturned in Phoenix, Arizona; locals studying implications for Palo Alto

A federal appeals court in Washington, D.C. on Tuesday overturned the Federal Aviation Administration's controversial rerouting of flight paths in Phoenix, Arizona, calling the agency's approval of its NextGen flight-procedures program at Sky Harbor International Airport "arbitrary and capricious."

The 2-1 ruling from the U.S. Court of Appeals for the District of Columbia Circuit could potentially set the stage for other cases against NextGen, in instances where changing flight paths was deemed by the FAA as not contentious or of minimal impact without any real public review.

Congress mandated the FAA to overhaul the country's aviation system, but the resulting program has sparked outrage nationwide because of increased aircraft noise and new flight paths over communities that previously did not have many planes overhead. The Phoenix case has been closely watched by anti-airplane noise groups and municipalities.

Santa Clara County Supervisor Joe Simitian, who chaired the former Select Committee on South Bay Arrivals, which wrote a report to the FAA of recommended changes on Bay Area flights, said the court's decision was very pointed and somewhat surprising.

"I think it can only be helpful to Palo Alto and the surrounding area," he said by phone. "For a court to determine that a government decision was arbitrary and capricious is very unusual. That is a very high threshold, and they made it here and on the merits of an argument that the level of noise increase was not controversial (as the FAA had claimed).

"It gives the FAA reason to take a step back and say, 'What have we done and where do we go from here?'" Simitian said.

He did not think the decision would necessarily be a legal precedent that anyone can draw on. He said the court's decision was largely fact-specific and highly procedural, but once it got past the procedural discussions, the tone was decisive and pointed, he noted, quoting the judges' narrative of events:

"The public's reaction was swift and severe: the planes supplied the sound, the public provided the fury."

Jennifer Landesmann, a member of local watchdog group Sky Posse Palo Alto, said the decision could yield important leverage for the city. The FAA is assessing 54 potential modifications recommended last November by the 12-member Select Committee on South Bay Arrivals. She noted that the court stressed the need for careful assessment of proposed changes and alternatives.

In the Bay Area, the FAA's initial "Finding of No Significant Impact" for the Northern California Optimization of Airspace & Procedures in the Metroplex, which sets the procedures and routes into and out of San Francisco International Airport, was done with an assessment that did not specify where the routes would fly over, how many jets or at what altitudes, Landesmann noted.

In Phoenix, the FAA made a blanket decision that the flight changes would not have a significant impact in Phoenix, which the court said was ludicrous. The city also presented alternatives, but the court found the FAA did not consider them.

U.S. Appeals Judges Judith W. Rogers and Thomas B. Griffith found the FAA violated the National Historic Preservation Act. It did not account for the effect on historic structures eligible for the National Register of Historic Places, the judges wrote. Under that law, agencies must consult with representatives of local governments and other "stakeholders" to determine that historic structures would not be adversely affected by the agency's actions. The agency is obligated to present relevant documentation -- even if it has determined there would not be an adverse impact, the court noted.

The FAA consulted with only low-level employees in the city's aviation department who were not experts and were never designated as city representatives. The FAA also did not provide documentation to the city about its finding of no adverse impacts, the court said.

"By keeping the public in the dark, the agency made it impossible for the public to submit views on the project's potential effects -- views that the FAA is required to consider," the court noted.

The FAA also failed to disclose the environmental impacts of a "major" action prior to implementing the NextGen program, as required under the National Environmental Policy Act. It also violated its own rules under the FAA Modernization and Reform Act of 2012 by categorically excluding the procedures from environmental review, even though the actions are likely to be highly controversial on environmental grounds. Instead, the court wrote, the FAA found the NextGen procedures were not likely to be highly controversial for the environment and therefore did not merit an environmental review.

The court found the determination arbitrary and capricious. The FAA had admitted its failure to notify local citizens and community leaders of the proposed new routes before they went into effect. The FAA's proposal would increase by 300 percent the number of aircraft flying over 25 historic neighborhoods and buildings and 19 public parks, with 85 percent of the new flight traffic coming from jets, the court said.

"The idea that a change with these effects would not be highly controversial is 'so implausible' that it could not reflect reasoned decision making," the court noted.

The FAA also erred by deviating from its usual practice of assessing when new flight routes are likely to be highly controversial. In the past, when assessing proposed route changes at airports in Northern California; Boston, Massachusetts; Charlotte, North Carolina; and Atlanta, Georgia, the FAA has relied on its general observation that a proposal is likely to be highly controversial if it would increase sound levels by five or more decibels in an area already experiencing average levels of 45 to 60 decibels, the court noted. The FAA did not explain how the Phoenix plan could be less likely to stir controversy than other plans that had the same projected impact, the court wrote.

The Transportation Act also calls for "special efforts" to preserve the natural beauty of public parks and recreation lands and historic sites. The FAA's failure to consult with all local officials over those areas when assessing noise impacts violates that requirement, the court noted. But the FAA argued the Phoenix sites are not generally recognized as quiet settings because of their urban location. The court disagreed.

"That isn't enough. Even in the heart of a city, some neighborhoods might be recognized as quiet zones," the judges wrote.

The FAA asked the court to dismiss the case. The plaintiffs had not petitioned for a Court of Appeals review of the FAA order within the 60 days required by law, but rather six months too late. But the court found there were "reasonable grounds" for extending the review deadline under the "timeliness exception." The FAA had said it might change its final order, giving the plaintiffs the impression that the rule was still open. The plaintiffs, therefore, had reasonable grounds for delaying their court filing, the court found.

"To conclude otherwise would encourage the FAA to promise to fix a problem just long enough for sixty days to lapse and then to argue that the resulting petitions were untimely," Judges Rogers and Griffith concluded.

But in his dissenting opinion, Senior Circuit Judge David B. Sentelle argued that the timeliness exception for allowing the case to be filed later than 60 days was not met. He did not address the other merits of the case, but only his opposition to extending the court-filing time.

Lane McFadden, a U.S. Department of Justice attorney who argued the case, declined to comment on the court's ruling. He said his office is still weighing their options regarding further appeals. Asked if the ruling might affect NextGen programs in other jurisdictions, he said, "I don't know that it would."

Likewise, the FAA is reviewing its options.

"We will carefully review the decision before deciding on our next steps," the FAA said in a statement provided by spokesman Ian Gregor.

City Attorney Molly Stump said in an email that her office will consider the ruling from all angles.

"While the specific facts in the Phoenix case are different than what has developed in our region, we are reviewing the Court's decision carefully and will be working closely with the City Council and community with respect to potential impacts and what this might mean for Palo Alto," she said.

Landesmann said that for local residents, a takeaway from the Phoenix case is the importance of strong city government advocacy. She noted the role of the city of Phoenix, even as the airport owner, which "appealed the process with hard data and vigorously represented the interests of their citizens."

She added, "Every Palo Alto resident should read the court's decision because it can help inform the upcoming formation of a new representative body to address jet noise with the FAA.

"Standing community aircraft forums have for years presided over significant changes to our airspace without focusing on environmental reviews when they should have had them. It's also time to modernize the way impacts for these environmental reviews are assessed and the metrics employed to assess changes. Local agencies are not constrained to do meaningful assessments to help inform the situation, as the City of Phoenix did."

Simitian said he plans to go to Washington, D.C., next week after Congress returns from its recess, and while there he will seek a meeting with Rep. Anna Eshoo, a member of the Quiet Skies Caucus, who co-convened the Select Committee on South Bay Arrivals. Simitian said he would also seek an appointment with the FAA.

Eshoo, who is still on recess, said in a statement to the Weekly that she has followed up with the FAA to ask how they plan to respond to the Appeal Court's decision and to inquire how this will impact the Bay Area.


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35 people like this
Posted by Paly Grad
a resident of Leland Manor/Garland Drive
on Aug 30, 2017 at 7:36 pm

Thank you Supervisor Simitian for continuing to follow this issue and provide guidance and leadership!

10 people like this
Posted by Cindy
a resident of Embarcadero Oaks/Leland
on Aug 31, 2017 at 7:45 am

I think we will all smile a bit when we can only see planes flying over San Jose or Redwood City. We pay the taxes so we deserve the quiet. About darn time!

23 people like this
Posted by resident
a resident of Charleston Meadows
on Aug 31, 2017 at 8:25 am

Finally - a actual step forward. Also note that the Santa Monica Airport - not a major airport but in a congested area is shutting down and turning the location into a park.

9 people like this
Posted by something better
a resident of Another Palo Alto neighborhood
on Aug 31, 2017 at 8:44 am


Seems like other cities are happy if all the planes"only" stay in Palo Alto but

"only" is not a good idea.

If planes "only" fly over one city or another, it's not exactly safe. I would not want the planes to only fly over a neighbor, and happy to take a fair share.

Looking at San Francisco Airport Statistics, monthly operations for December 2016 vs 2015 the increase was 4.7% Web Link

San Jose Airport is probably growing faster than SFO but at any rate, seems like there has to be something better than having all the planes fly "only" over one city or another.

29 people like this
Posted by Evelyn Preston
a resident of Greendell/Walnut Grove
on Aug 31, 2017 at 1:40 pm

Supervisor Joe Simitian's office has been instrumental in working to "fix" the outrageous FAA arbitrary NextGen changes that have negatively impacted the entire South Bay. I am disappointed in the tepid responses from our Cognressional Reps. and appreciate Joe pushing them for urgent reform. All Palo Alto residents should contact SkyPosse ,their elected U.S. Reps. and call on city council members as well as sign petitions, write letters and contact neighbors. This is an important issue that requires immediate and on-going involvement to regain a positive quality of life and relief from this assault from above. Noise is as much an environmental concern as other "pollutants."

2 people like this
Posted by been there
a resident of Old Palo Alto
on Aug 31, 2017 at 2:41 pm

been there is a registered user.

The FAA seems useless and ineffective.

16 people like this
Posted by resident
a resident of Charleston Meadows
on Aug 31, 2017 at 3:28 pm

It seems like other locations are getting some attention and making aggressive changes. We keep pushing and pushing but getting some results for us is a long road. SFO has no interests in making changes that lose money for them. And San Jose is increasing the number of flights and destinations at a rapid pace. I am sure that the mayor of San Jose has a vested interests in increasing the number of flights and conceding to any requests by the airlines. Possibly our congress people are not the strongest in this topic. They seem consumed by political strategies and are wasting time. They are single topic right now and it is not airlines.

18 people like this
Posted by Annette
a resident of College Terrace
on Aug 31, 2017 at 4:26 pm

Annette is a registered user.

"In the Bay Area, the FAA's initial "Finding of No Significant Impact" for the Northern California Optimization . . . "

The people responsible for the above finding must have gone to the same School of Reasoning as the people who repeatedly write EIRs that find No Significant Impact on traffic.

15 people like this
Posted by Resident
a resident of University South
on Aug 31, 2017 at 7:01 pm

- Thank you Sue and Palo Alto Weekly for an excellent article! We appreciate you staying on top of the airplane noise activities and securing highly relevant comments/quotes on next steps.

- Thank you Joe Simitian for his Select Committee leadership and continued advocacy for the community to address jet noise.

- We hopeful City Attorney Molly Stump follows up and provides an update of this to both council and the community. The citizens want to understand the options available to us and our neighboring cities.

- All interested citizens, please continue to get involved and voice your concerns to council members and engage with advocacy efforts.

6 people like this
Posted by PatrickD
a resident of Barron Park
on Aug 31, 2017 at 8:54 pm

Why do all of the airplane images here show General Aviation airplanes which are not part of the NextGen approach paths? Is it hard to find a stock photo of a Boeing 757?

1 person likes this
Posted by another view
a resident of another community
on Sep 1, 2017 at 1:07 pm

Yes Cindy and all the rest of you Palo Alto [portion removed], you deserve to have your community quiet because you pay taxes - such a typical attitude of your area. Yes send the flights to San Jose so we can have all the noise, Like we don't pay any taxes down here....... yes send the homeless down here so they don't soil your community. We have plenty of room - have you tried driving down here lately? Anything that might upset your comfort zone yes sent it to San Jose - the dumping ground.

Like this comment
Posted by Lynn
a resident of another community
on Sep 1, 2017 at 1:10 pm

what was the problem?

27 people like this
Posted by Beware trolls
a resident of Fairmeadow
on Sep 1, 2017 at 2:01 pm

Beware trolls is a registered user.

FWIW, my guess is that "Cindy" is a troll, not really from Palo Alto, looking to elicit responses and make Palo Altans look bad. We've seen that before on these boards. Please keep that in mind when you see overly incendiary comments like that one.

26 people like this
Posted by Jetman
a resident of Another Palo Alto neighborhood
on Sep 1, 2017 at 6:47 pm

The City and County of San Francisco owns and operates a very large and profitable industrial facility known as SFO in San Mateo County and spreads the undesirable waste products from that facility over the mid-peninsula and parts of the South Bay.

The mid-peninsula absorbs the majority of the undesirable waste from low-altitude SFO arrivals from the north, west, and south. The area around Union City absorbs the undesirable waste from low-altitude SFO arrivals from the east. Northern San Mateo County absorbs the majority of undesirable waste from low-altitude departures. The City and County of San Francisco absorbs very little of the undesirable waste created by SFO (<5%).

Cities like San Francisco and New York are IN the aviation business. Their share of the business is protected by powerful politicians like Nancy Pelosi (D-SF) and Chuck Schumer (D-NY). The current head of the FAA, Michael Huerta, owes his career to powerful SF and NYC politicians having previously been appointed to serve as the commissioner of New York City's Department of Ports from 1986 to 1989 and as the executive director of the Port of San Francisco until 1993. From 1993 to 1998 he held senior positions at the United States Department of Transportation during the Clinton administration.

13 people like this
Posted by Tired of Cronyism
a resident of another community
on Sep 2, 2017 at 10:26 am

Praise for the elected officials in Arizona and Maryland who have been fighting for the citizens they represent since day one of the NextGen program that is destroying human health and the environment nationwide with incessant low-flying aircraft (commercial, cargo, GA, military). These judges showed not only basic decency so lacking in too many elected officials but a rare moral courage in the face of the aviation industry Goliath that our Congress as a whole continues to serve rather than fight against. Again, Congress unleashed this hell over our heads, made it legal, allowed its agency, its battering ram, the FAA, to exclude the impact of new flight procedures on the human environment.

"It's curious that physical courage should be so common in the world, and moral courage so rare." -Mark Twain

8 people like this
Posted by Keep Going - Palo Alto Weekly
a resident of Crescent Park
on Sep 2, 2017 at 12:31 pm

A thank you to Palo Alto Weekly for their on-going coverage of jet noise activities. Sue, please have a follow on article with Molly Stump and Council Members featuring the analysis and next steps!

9 people like this
Posted by Legal beagles
a resident of Another Palo Alto neighborhood
on Sep 2, 2017 at 1:54 pm

Keep Going - Palo Alto Weekly

"...please have a follow on article with Molly Stump and Council Members featuring the analysis and next steps!"

According to Palo Alto City website, Web Link

Palo Alto City Attorney worked for many years at San Francisco Airport

"Ms. Stump joined the City of Palo Alto after 15 years in the San Francisco City Attorney's Office. During her tenure there, she served most recently as general counsel for San Francisco International Airport Previously, she was supervisor for San Francisco's public protection team, working as chief counsel to the Police Commission and the chief of police. She also worked on the general governmental team and the labor and employment team, defending San Francisco in employment litigation and negotiating labor agreements"

Per Phoenix' law firm Web Link

"decision contains important findings on issues with broader importance to airports nationwide, including:

- When the public can challenge FAA actions even though the normal 60-day clock for appellate review has expired. The court held that Phoenix was entitled to an exception to the normal rule under 49 U.S.C. 46110.

- When NEPA categorical exclusions are appropriate for airspace (and airport) actions.

- With whom FAA must consult with prior to making airspace decisions that have the potential to have noise effects on an airport or community.

- Whether FAA can justify using its uniform standard DNL 65 decibel threshold when assessing impacts to historic resources or parks."

7 people like this
Posted by Tired of Cronyism
a resident of another community
on Sep 2, 2017 at 2:44 pm

Intolerable that tax dollars are paying for the NextGen program's destruction of human health and the environment, and for the FAA's legal battles against citizens and elected officials actually trying to put the public interest above private interest, to do what is right not merely what is profitable, and profitable for the few.

Santa Clara County Supervisor Joe Simitian, who chaired the former Select Committee on South Bay Arrivals "did not think the decision would necessarily be a legal precedent that anyone can draw on." Really? Perhaps this explains why nothing similarly substantive in the way of a legal fight has happened in the Bay Area.

4 people like this
Posted by Neighbor
a resident of Community Center
on Sep 3, 2017 at 1:03 pm

I haven't been able to learn the motivation or rationale for NexGen. It seems to be very secretive. Generally one can follow the money to figure out what the driving factor is; WHY has NexGen been forced on us with such low transparency?

4 people like this
Posted by Tired of Cronyism
a resident of another community
on Sep 4, 2017 at 1:31 pm

Court's decision for Phoenix aleady having further impact for Arizona with respect to military aviation expansion. "Air Force drops plan to expand visiting-unit training at Davis-Monthan" 9/1/17 article link:
Web Link

This "will likely make moot a lawsuit filed by Tucson residents challenging an Air Force finding that the training expansion would have no significant impact on the community." Annual training flights would have increased by about 60 percent though currently only about 6 percent.

"Local residents filed a federal lawsuit to stop the training expansion, contending that the Air Force didn't properly study potential noise impacts and health and safety issues of increased air operations."

Seems the Air Force doesn't want to risk a court ruling similar to this one, doesn't want a legal precedent with respect to the military and its expanding aviation ops over public lands and residential areas nationwide.

Sup Simitian should rethink his assessment of this case's importance to this far from over national issue that has had and will continue to have a significant impact on human health and the environment if people stand down rather than fight like the people in Arizona.

2 people like this
Posted by resident
a resident of Charleston Meadows
on Sep 4, 2017 at 6:17 pm

WOW - are we in pay back right now for all of the complaints on airplane noise? I have continuous noise with very low planes overhead. I think the temperature and atmosphere is highlighting the problem. We are in payback mode. Or there is a large groups of city events over the bay area that are getting protected from noise?

2 people like this
Posted by private jets
a resident of another community
on Sep 4, 2017 at 8:42 pm

San Mateo/San Carlos Airport had an alert about more private jet traffic to/from Burning Man this weekend.

9 people like this
Posted by Jetman
a resident of Another Palo Alto neighborhood
on Sep 4, 2017 at 10:38 pm


"Nextgen" is all about capacity. More aircraft flying closer together means more seats for the airlines to sell, and more landing fees, airport taxes, etc, for the cities that own and operate airports.

"All Around the Country"
Burbank Viewpoints ~ October 29, 2016 Web Link

3 people like this
Posted by member
a resident of Los Altos
on Sep 6, 2017 at 4:25 pm

Has anyone considered sharing this situation with the state Attorney General? Seems there are several million complaints, and a large population that is both harmed, and frustrated.

Like this comment
Posted by Bill
a resident of Mountain View
on Sep 7, 2017 at 11:09 am

The last couple of days jet noise has been really,really bad, but we need to get educated: Today's (Thursday's) jet noise is unrelated to the FAA's NextGen changes discussed in the article.

So, what has been happening? Four or five months every year (when there is bad weather or even winds from the south), San Jose Airport (SJC) routes its incoming arrivals in a giant horseshoe pattern that roughly follows the strip between Middlefield and Central Expressway/Alma street... all the way over Santa Clara, Sunnyvale, Mountain View and Palo Alto about as far as Jordan to Rinconada, before turning right to return to SJC over the bay and make a safe landing into the wind from the north. It's called "reverse flow." Remember that name, because it is actually a lot louder than the 2015 NextGen change and likely affects many more people, since it flies over at least four cities. I'm not dissing Old Palo Alto's NextGen pain, which is real, just pointing this out so we don't conflate unrelated things or are unaware of what is being suffered by our neighbors. We don't live in a bubble (OK, we do, but that's a subject for another day...)

Key point: Why is SJC "reverse flow" so dang painful? NextGen flies at an almost-reasonable 4,000 feet, SJC "reverse flow" flys at an insane 2,000 feet. That's right... 2,000 feet - because it has to stay beneath SFO traffic for safety. I've taken quite a few dinnnertime walks with my dog in the Old Palo Alto area under the NextGen corridor and flight traffic is almost exactly the same or a bit less than that which goes over my Mountain View home, at the same altitudes.

But the SJC "reverse flow" traffic? At only 2,000 feet (like the new San Carlos Airports travesty of the nine-passenger Surf Air turbojets) it completely shakes the neighborhoods below... it is much more intense.

Please go outside today during today's triggering weather and observe for yourself?! This is how we start getting educated... also note any single engine propeller planes which make a jet-like sound because of their turbo technology- those are the evil Surf Air which make a ton of noise but only carry nine passengers into San Carlos Muni Airport, and are a recent addition to our pain. Especially note if Surf Air comes zooming through gunning their engines, which they only tend to do at night - Surf Air flights follow the same corridor that roughly tracks Middlefield Road all the way from Santa Clara, through S'Vale, MV, PA and all the way to San Carlos.

The good news is that city leaders in the affected communities seem close to getting San Jose and its airport to start a Roundtable... I hope Palo Alto residents can attend and urge their city leaders to do so as well. Also, please try to advocate with the City of San Carlos to put Surf Air back over the Bay, where they were for a one year trial period which is now over...

This isn't a one-city-only problem, it is a regional problem and we have to work together.

2 people like this
Posted by something better
a resident of Another Palo Alto neighborhood
on Sep 7, 2017 at 11:51 am

Bill, from Mt. View,

Sorry to burst your bubble but San Jose Airport traffic patterns are also Nextgen - LOW and increasingly concentrated. The fact that SJC traffic has to duck under SFO traffic is Nextgen related because the lowered SFO altitudes are Nextgen.

The initiative to get a new San Jose Roundtable looks like an San Francisco Airport Roundtable in the making, to send the noise to Palo Alto. and to only address Mountain View and Sunnyvale,

Has the City of Palo Alto been invited????? Is the plan to have Palo Alto citizens sit and observe but not have a seat and for someone to catch this news on a press blog?

I see the following on the Agenda about this issue.

Palo Alto is not even mentioned by the San Jose initiative

Web Link

attachments on: Web Link

You call for Palo Alto residents to do advocacy, speak at meetings, make your case compelling, to get what YOU want and then screw Palo Alto in the end.

Much talk about a regional problem but neighbors seem intent to work on solutions that use Palo Alto as the dump site. Have you seen the recent FAA report? Quiet skies for everyone else, nothing for Palo Alto.

2 people like this
Posted by Something better
a resident of Another Palo Alto neighborhood
on Sep 7, 2017 at 12:07 pm

Bill from Mt View,

FYI - these issues go way back here,

Web Link

from the 2015 thread,

Posted by Peter Carpenter
a resident of Atherton
on Aug 10, 2015 at 10:45 am
Peter Carpenter is a registered user.
[Portion removed.]

I have sent the following to Cong. Eshoo's office:

From: Peter Carpenter
Subject: This should be an easy fix
Date: August 10, 2015 at 10:42:58 AM PDT
To: ""

Historically the FAA has always coordinated the landing patterns at SFO and SJC so that planes at both airports are landing in the same direction. Recently they have gotten into the habit of allowing landing from the North at SJC while still landing from the South at SFO. This overlaps traffic over Palo Alto and forces the SJC inbound traffic to fly very low to stay below the SFO inbound traffic.

There is no reason for this change from the long practiced process of coordinating the landing direction at these two airport.

Let me know if you need more details.

Peter Carpenter

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