HIGHLIGHTS:

  • This week's decision by the U.S. Court of Appeals for the District of Columbia Circuit in Citizens Association of Georgetown, et al. v. Federal Aviation Administration confirms that once the FAA issues a final Record of Decision, there is only a 60-day window to petition for review, and lack of actual notice will not extend that time.
  • The agency's public notice through newspaper publication and website mentions was sufficient even when the agency did not provide notice to relevant affected public officials.
  • Petitioners who did not learn of the agency's order allowing new departure routes from Reagan National Airport until long after the appeal period to challenge the order had run were not allowed to sustain a challenge based on the later publication of route maps.

Once the airplane leaves the gate, it's too late to try to get on board. And once the Federal Aviation Administration (FAA) issues a Record of Decision about new departure procedures, you have only a short time to petition for review. As a recent U.S. Court of Appeals for the District of Columbia Circuit decision1 explains, people unhappy with the new departure routes from Ronald Reagan Washington National Airport may be justifiably upset with the lack of timely notice, but that will not bring the final agency action back to the gate.

Approving New Departure Routes

Last year, about 24 million people came through Reagan National. Every day, about 550 planes take off from there. The planes departing north fly a tight route that roughly follows the course of the Potomac River. About 15 years ago, the FAA convened a working group comprising the Metropolitan Washington Airports Authority (the independent agency that manages Reagan National), local elected representatives, citizens, and other federal agencies to develop ideas to increase safety at the airport and reduce noise in the neighborhoods. Spurred by the FAA Modernization and Reform Act of 2012 as well as by advances in technology — chiefly GPS-assisted navigation technology — the FAA developed the "Washington, D.C. Optimization of the Airspace and Procedures in the Metroplex" (D.C. Metroplex). The D.C. Metroplex set forth new arrival and departure procedures at Reagan National.

The FAA conducted an analysis in order to determine whether a full environmental-impact statement was required under the National Environmental Policy Act (NEPA). The notice of intent was sent by the FAA to 330 parties, but to only two officials of the District of Columbia: the District's Historic Preservation Officer and Congresswoman Eleanor Holmes Norton. The notice was also published in The Washington Post. The FAA issued a draft environmental assessment (EA) in June 2013 and concluded that no neighborhood in Washington was expected to experience a "reportable noise increase" under the regulations should a majority of aircraft opt to use the new D.C. Metroplex procedures. The draft EA was distributed to several hundred recipients but, again, to only the same two District representatives.

At the end of the notice-and-comment period (which was again publicized in The Washington Post), the FAA published in December 2013 its Finding of No Significant Impact and Record of Decision (FONSI/ROD), which reflected that the D.C. Metroplex would not significantly affect the quality of the human environment. The FONSI/ROD expressly stated that it was a "final order of the FAA Administrator and is subject to ... judicial review under 49 U.S.C. §46110," which is the statute authorizing review of FAA orders. That statute sets forth a 60-day period "after the order is issued" for a person to seek review of the order, although the reviewing court may allow it to be filed later "if there are reasonable grounds for not filing by the 60th day."

Neighbors Hear About the Agency Decision

What happened next is curious. Although the FAA approved the D.C. Metroplex procedures in December 2013, very few pilots chose to use them right away. Because the new procedures would direct planes closer to the center of the Potomac River, pilots were worried about straying into "Prohibited Area 56," which is the ominous name for the restricted airspace over the National Mall. Rather than risk fines for flying into that area, pilots stuck with the old routes. So in March 2015, the FAA conducted validation studies to encourage pilots to use the new routes. The Secret Service agreed that pilots would not incur penalties if they strayed into Prohibited Area 56 while flying the new routes. In June 2015, the FAA published charts showing the new routes in its bimonthly Terminal Procedures Publication. Significantly, the new routes were identical to the routes evaluated in the 2013 FONSI/ROD.

In August 2015, Georgetown University and some neighborhood associations filed a petition for review. Georgetown and the neighborhood groups were no strangers to concerns about airplane noise in the area. Indeed, back in October 2013 — that is, while the draft EA was still under review — a D.C. councilmember asked the Metropolitan Washington Airports Authority (MWAA) about changes in flight paths. He was assured by MWAA that no flight paths had changed since 2008 — which, while technically true, did not flag that changes in flight paths and procedures were being considered. The university and the groups continued to have meetings with the FAA and MWAA about airplane noise during the next 18 months but — and this was not disputed — the university was unaware of the D.C. Metroplex process or the completed EA. It was not until a July 2015 meeting with FAA that Georgetown and the neighbors learned about the new departure procedures. They filed their petition for review in August 2015. The petitioners' substantive issue was the "no significant impact" finding of the FAA. But the appeal stayed grounded on the issue of the timing of the appeal.

Challenge No. 1: Final Agency Action Was Later

The petitioners first argued that their appeal was timely under the 60-day rule if the 60 days started from the issuance of the route charts in summer 2015. But the D.C. Circuit responded that the 2013 publication of the FONSI/ROD regarding the D.C. Metroplex was the final order. That order represented the culmination of a multiyear decision-making process, and the FAA itself stated that it was a final order subject to judicial review. Moreover, if the agency had not complied fully with NEPA requirements, that failure would have been completed by the time of the FONSI/ROD; in other words, there were no additional environmental tests anticipated or undertaken after December 2013. Indeed, pilots were allowed to start using the new routes following the issuance of the FONSI/ROD, even if few pilots actually did so at first.

But, the petitioners responded, the FAA did perform additional validation activities that could have affected the agency's decision. The Court held that the validation studies regarding Prohibited Area 56 did not trigger a suspension of the D.C. Metroplex procedures nor could the validation studies have led to a reconsideration of the environmental impact. Moreover, if the question is phrased as to which document led to the effects that the petitioners were seeking to reverse — was it the initial publication of the new routes or the later affirmation of those routes? — it was the 2013 order that approved the new routes and thereby led to the increased aircraft noise over the Georgetown neighborhood.

Challenge No. 2: "Reasonable Grounds" for Not Filing Earlier

Under 49 U.S.C. §46110, the reviewing court may allow a petition for review to be filed after the 60th day following issuance of the order under review "only if there are reasonable grounds for not filing by the 60th day." The petitioners argued that they were "functionally excluded" from receiving notice of the FONSI/ROD because of the way in which notice was handled by the FAA. Hundreds of people in many institutions received notice of the 2013 environmental assessment but only two were representatives of the District of Columbia. As detailed at oral argument, the agency expanded the scope of who would receive notice — including counties in Virginia, West Virginia and Pennsylvania — but no notice was sent to, for example, the District of Columbia Council or the District's Department of Transportation. This "troublingly imbalanced" notice was explained as a mistake that was made by FAA's contractor. (Yes, required notice is often subcontracted out.)

But the question for the D.C. Circuit was whether the agency had complied with what the regulations required for notice, and the Court's answer was yes. The record demonstrated that the FAA satisfied the public-notice requirement by publishing notice of the draft environmental-assessment process as well as the final 2013 order in the newspaper. The D.C. Circuit noted that no earlier case had held that newspaper publication was sufficient for NEPA purposes but found that this case was analogous to cases in which the U.S. Supreme Court had held that newspaper notice was sufficient. The Court also rejected the petitioners' suggestion that FAA and MWAA had collaborated to withhold from District of Columbia representatives information about the new routes.

The Court also held that the petitioners had not been able to bring themselves within the rarely available exception that would establish "reasonable grounds" — namely that an agency had left the parties with the impression that the agency would address concerns without need to resort to litigation. Although not using the term "estoppel," the Court recognized that there may be instances in which the agency leads petitioners to the reasonable belief that litigation will not be necessary to fix the problem. Here, however, the petitioners did not delay filing their appeal based on representations by the agency. Rather, the petitioners first learned of the D.C. Metroplex about 18 months after the order became final and did not withhold action based upon a reasonable belief about what the FAA might do to address the environmental and noise concerns. The petitioners, through no fault of their own, did not learn about the existence of the order until it was too late.

Next Stop?

The decision in Citizens Association of Georgetown, et al. v. Federal Aviation Administration reaffirms the rule that the appeal clock starts ticking on the day the final order is officially made public, whether affected parties had actual notice or not. For those dealing with a regulated industry, there is no substitute for staying attuned to agency action. This means trolling the agency websites, using a search service to stay abreast of agency announcements, and so on. And it is always better to file an appeal too early than too late.

Moreover, the challenge to agency action must line up with the timing for that challenge. Here, the substantive challenge was whether the original 2013 order complied with NEPA, which is a question not directly linked to the publication of routes in 2015. Regardless of whether the 2015 order was itself another appealable order, that order did not have embedded in it the NEPA challenge from 2013.

One lesson to agencies is to watch their notice provisions. In this case, the regulations did not require that notice be given to affected elected officials such as the D.C. Council or the Mayor. Nevertheless, at oral argument and to some extent in the written opinion, the D.C. Circuit made clear that it was concerned about the way notice was handled. One judge said it was "odd" that notice of the environmental assessment was given to libraries in Pennsylvania but not to libraries in the District of Columbia. Even the lawyer defending the FAA conceded that the circumstances of notice here were "strange" and "unfortunate," but not arbitrary and capricious. And in a time when deference to agency decision-making under either a Chevron or Auer standard is under increasing attack by the courts, agencies would do well to have notice provisions that provide real notice. In a situation like this, where the affected population was well known, the next court panel may not be so forgiving of this "strange and unfortunate" form of notice.

One last twist from this case. The impact of the final agency rule here was not immediately apparent to the affected residents and neighborhoods in Washington. Routes approved in December 2013 were only occasionally used during the next 18 months, masking the alleged noise impact until it was too late to mount a timely challenge to the regulatory approval. To paraphrase the old antiwar slogan: What if they made a regulatory change and no one noticed? This case shows that the 60-day ETD clock is running, even if you are still waiting to hear when boarding will start.