[00:00:01] Speaker 04:
If you could just give us one minute because we're still shuffling out a lot of papers, it's going to make for a bad recording.

[00:00:27] Speaker 02:
Whenever you're ready.

[00:00:31] Speaker 02:
And may it please the court, my name is Stephen Tabor and I represent the city of Malibu in this case.

[00:00:36] Speaker 02:
This case turns on the FAA's refusal to confront the real world noise burden that was created by the amended flight procedures over Southern California.

[00:00:49] Speaker 02:
The law requires more.

[00:00:51] Speaker 02:
The FAA cannot sidestep

[00:00:53] Speaker 02:
its own scientific data showing that far more people are significantly impacted than its models predicts.

[00:01:03] Speaker 02:
And particularly after Marin Audubon case, it cannot rely on a questionable categorical exclusion.

[00:01:12] Speaker 02:
Malibu is asking only for what NEPA guarantees, rational, up-to-date, hard look at how federal actions affect human health and community client.

[00:01:24] Speaker 03:
Council, I take all of that as very real, certainly understand the environmental concerns.

[00:01:30] Speaker 03:
But what concerns me is that your allegations seem to stem entirely from the 2016 flight procedures and not from the 2018 amendments.

[00:01:41] Speaker 03:
If that's true, aren't your claims untimely or do you have standing?

[00:01:48] Speaker 03:
That's my big concern.

[00:01:49] Speaker 03:
If you can get over that, maybe you've got my attention, but you seem to be focusing on something that occurred.

[00:01:55] Speaker 03:
That's not the subject that we're talking about here.

[00:01:58] Speaker 03:
Help me with that, please.

[00:02:00] Speaker 02:
Certainly the.

[00:02:03] Speaker 02:
What we're concerned about and we've stated in our brief and the reply brief are the amended procedures that were first proposed in 2018.

[00:02:14] Speaker 02:
and the changes that occurred between 2016 and 2018.

[00:02:19] Speaker 02:
There are still very real issues with respect to how the environmental impact, how those changes have affected the environment over Southern California.

[00:02:34] Speaker 03:
But with respect, perhaps I've misread your brief, but they all seem to go back to the 2016 flight procedures.

[00:02:43] Speaker 03:
Some of the changes that were made 2018 actually involved an increase in height, not a decrease in height, for example.

[00:02:51] Speaker 03:
Again, I live in Southern California.

[00:02:55] Speaker 03:
I get it.

[00:02:56] Speaker 03:
This is flights or they can be very disruptive, but we have a system and I'm just struggling to see how you're not really talking about 2016 with a little cherry pick here and a little cherry pick there in 2018.

[00:03:10] Speaker 03:
Help me with that.

[00:03:12] Speaker 03:
What am I missing?

[00:03:13] Speaker 02:
Well, for one thing, in terms of the raising of the altitude, when the aircraft are given a higher altitude, there's a higher chance that the air traffic controllers will take the aircraft off the procedure and vector them.

[00:03:37] Speaker 02:
result in lower altitudes, much, much lower altitudes.

[00:03:44] Speaker 03:
Help me with that.

[00:03:44] Speaker 03:
You're saying that because they're at a higher altitude, the air traffic controllers will do something to put them at a lower altitude?

[00:03:52] Speaker 02:
Is that what you're saying?

[00:03:54] Speaker 02:
That's correct.

[00:03:54] Speaker 02:
And there's proof.

[00:03:55] Speaker 03:
I don't understand that.

[00:03:56] Speaker 02:
There's proof.

[00:03:58] Speaker 02:
We mentioned this in the brief.

[00:03:59] Speaker 02:
This is called vectoring.

[00:04:01] Speaker 02:
and the effective vectoring on the aircraft.

[00:04:05] Speaker 02:
And this is a crucial point with respect to the changes between 2016 and 2018.

[00:04:11] Speaker 03:
And do you have evidence that this actually occurred?

[00:04:16] Speaker 02:
Yes, we do.

[00:04:17] Speaker 02:
In terms of, let's see.

[00:04:22] Speaker 03:
I thought it was only speculative.

[00:04:24] Speaker 03:
Did I miss something?

[00:04:25] Speaker 02:
Well, in this case, it's not speculative because the FAA has been running these procedures for, what, seven years now.

[00:04:37] Speaker 02:
So there is a wealth of real-world data showing that there were, in fact, changes between 2016 and 2018.

[00:04:48] Speaker 02:
And in fact, included in the comments were comments from the city of Los Angeles and from the LA Noise Roundtable, which showed that 90% of the flights were below the minimum altitude.

[00:05:08] Speaker 04:
Because of vectoring?

[00:05:11] Speaker 02:
Yes.

[00:05:13] Speaker 02:
If they're below the minimum altitude, then they're not on the flight procedure.

[00:05:18] Speaker 04:
So can I just, I think maybe to marry this up, I understand vectoring to be exactly that, a deviation from the otherwise routine approach or flight path.

[00:05:30] Speaker 04:
Is that right?

[00:05:30] Speaker 02:
That's correct.

[00:05:31] Speaker 04:
So can you circle back and answer Judge Smith's question because I thought it was a really good question.

[00:05:36] Speaker 04:
In 2018 there are instances where the altitude, the minimum altitude actually was raised and you're saying but there's something about the 2018

[00:05:45] Speaker 04:
operations that would yield additional vectoring, an increase in vectoring, and then by definition that means, you know, sometimes people are, planes are going to be flying in at a lower altitude.

[00:05:56] Speaker 04:
So where's the support for that in the record?

[00:05:59] Speaker 02:
The support for that is what I was mentioning, is that there is support for that from in the LA, Sidney Valet's comments and in the comments from the Los Angeles

[00:06:14] Speaker 03:
Noise roundtable at and where is that in the record council?

[00:06:18] Speaker 03:
It's in our excerpts the record from 114 to 126 And you're saying that that's going to tell us that notwithstanding the increased height called for in the 2018 if you will change

[00:06:40] Speaker 03:
that the FAA is regularly vectoring these things much lower and thereby creating a problem that you've described in environmental terms.

[00:06:50] Speaker 03:
Is that right?

[00:06:51] Speaker 02:
It's much broader than that.

[00:06:52] Speaker 02:
It includes other changes that were made in 2018 that have caused there to be more vectoring or at least that's what needs to be studied because vectoring wasn't studied

[00:07:09] Speaker 02:
in the categorical exclusion, the environmental document, the effect of vectoring on those changes was not studied.

[00:07:22] Speaker 02:
If it had been, then there would be more evidence, more proof, more that those changes affected the way that aircraft fly.

[00:07:35] Speaker 03:
But this, again, this is my reading of what you're saying is that the record you think shows this, my reading says this is pretty much speculation.

[00:07:47] Speaker 03:
Is that wrong?

[00:07:49] Speaker 02:
I wouldn't say that it's speculation in the sense that there is real world evidence showing that after the changes in

[00:08:05] Speaker 02:
the flight procedures in 2018 that there was an increase in the number of flights that were flying below the minimum altitude.

[00:08:17] Speaker 02:
It's showing that an increase in the minimum altitude does not

[00:08:26] Speaker 02:
Does not mean that the air aircraft are are flying at that altitude and the because of vectoring because it means deviations Okay, and so and and to answer judge Smith's question The place in the record we look is 114 to 126 for that 114 to 126

[00:08:51] Speaker 02:
And this feeds into one of our primary points that under NEPA, the statute 4332, 49 USC 4332, that the FAA is required to present an environmental document that has professional and scientific integrity.

[00:09:19] Speaker 02:
which this one does not, based on the fact that the FAA knew at the time that its 65 DNL threshold of significance is not supported by the Neighborhood Environmental Survey, which shows that

[00:09:50] Speaker 02:
65, if the FAA were correct in that, that would mean that that 60%, 60 to 70% of the people living under the flight pass that this flight procedure creates would be highly annoyed.

[00:10:06] Speaker 02:
And the FAA is saying that that is not a significant impact.

[00:10:12] Speaker 03:
I'm going to say, Council, maybe you live in a different universe than I do, but almost any aircraft noise is

[00:10:20] Speaker 03:
You can't say it's insignificant.

[00:10:21] Speaker 03:
It's a part of life.

[00:10:24] Speaker 03:
You seem to be arguing for a standard of perfection where you have these aircraft in the air.

[00:10:30] Speaker 03:
You don't want to hear any noise.

[00:10:31] Speaker 03:
You don't want to receive any pollution.

[00:10:34] Speaker 03:
Are you advocating basically that we imitate Harry Potter and use a porky?

[00:10:41] Speaker 03:
What are you doing?

[00:10:42] Speaker 02:
No, Your Honor, we're not asking for perfection.

[00:10:46] Speaker 02:
We're asking for a scientifically credible analysis of the environmental effects.

[00:10:52] Speaker 02:
And the FAA has reported in the Neighborhood Environmental Survey that its reliance on the

[00:10:59] Speaker 02:
the Schultz-Fycon Curve from 1970 is no longer applicable, and that the Neighborhood Environmental Survey itself shows that the high annoyance is much, much five times higher than what was predicted 40 years ago.

[00:11:22] Speaker 02:
And that's what we're asking this Court to do is say,

[00:11:27] Speaker 02:
What we want is a scientifically incredible analysis.

[00:11:34] Speaker 04:
Thank you.

[00:11:36] Speaker 02:
Thank you.

[00:11:49] Speaker 05:
Good morning, Your Honors.

[00:11:52] Speaker 05:
I'm here for the limited purpose of discussing the FAA's November 19th, 2025 letter.

[00:12:00] Speaker 04:
Could you just state your appearance for the record?

[00:12:01] Speaker 05:
Concerning the United States Supreme Court's recent decision.

[00:12:04] Speaker 05:
Council, could you state your appearance for the record?

[00:12:06] Speaker 04:
I'm so sorry.

[00:12:07] Speaker 04:
Not at all.

[00:12:07] Speaker 04:
Could you just state your appearance for the record so we have that on record and then proceed?

[00:12:12] Speaker 04:
I didn't hear you, Your Honor.

[00:12:13] Speaker 04:
Could you please state your appearance for the record and then proceed?

[00:12:17] Speaker 05:
Yes, I will, of course.

[00:12:18] Speaker 05:
Sure.

[00:12:18] Speaker 05:
My name is Barbara Lichman.

[00:12:22] Speaker 05:
I'm here for petitioner.

[00:12:25] Speaker 03:
Thank you.

[00:12:27] Speaker 03:
Forgive me, counsel.

[00:12:28] Speaker 03:
Who do you represent?

[00:12:31] Speaker 05:
Sorry?

[00:12:32] Speaker 03:
Who do you represent?

[00:12:36] Speaker 03:
Are you hearing me?

[00:12:37] Speaker 03:
Your counsel for whom?

[00:12:40] Speaker 05:
I'm not with.

[00:12:41] Speaker 05:
What?

[00:12:41] Speaker 05:
Who's your client?

[00:12:42] Speaker 03:
Who's your client?

[00:12:46] Speaker 04:
Is there some reason I won't be fine?

[00:12:47] Speaker 04:
No, I just want to, he's just asking you to state your client.

[00:12:52] Speaker 05:
Oh.

[00:12:54] Speaker 05:
I'm also representing the petitioners in this case.

[00:12:59] Speaker 03:
All of them?

[00:13:01] Speaker 05:
Yes, sir.

[00:13:02] Speaker 03:
OK, thank you.

[00:13:03] Speaker 04:
Go right ahead.

[00:13:06] Speaker 05:
As I said, I'm here for a very limited purpose, and that is to address that November 19th letter in which the FAA raised the case that was decided by the Supreme Court on May 25th, 2025, the seven counties infrastructure coalition versus Eagle County, Texas.

[00:13:29] Speaker 05:
They raise it because they find that the expanded scope of deference to agency actions benefits their client.

[00:13:39] Speaker 05:
The definition in that case that was created is that what details need to be included in any given EIS, because that case related not just to any statute but to the EIS,

[00:13:59] Speaker 05:
What details need to be included in any given EIS is a factual determination of the agency.

[00:14:06] Speaker 05:
That's true.

[00:14:09] Speaker 05:
Except we're outside the scope of reasonableness.

[00:14:14] Speaker 05:
That's true, too.

[00:14:16] Speaker 05:
And in this case, the agency has not met the standards specifically set by the court

[00:14:25] Speaker 05:
whether agency's action was reasonable and reasonably explained.

[00:14:32] Speaker 05:
Because wherever those planes are alleged to now be going, high or low, their operation was not properly explained in the EIS.

[00:14:46] Speaker 05:
It was dismissed as minor, or the removal of a restriction,

[00:14:54] Speaker 05:
that had previously been imposed, but nothing more was really done to evaluate the impacts.

[00:15:02] Speaker 03:
And I will also say... What would you have done?

[00:15:05] Speaker 03:
What would you have done?

[00:15:06] Speaker 03:
So you're writing the EIS.

[00:15:08] Speaker 03:
What would you have said?

[00:15:10] Speaker 03:
that was different than what was said here.

[00:15:12] Speaker 03:
We get EIS claims primarily in connection with Forest Service and things of that nature, but it's the same thing.

[00:15:19] Speaker 03:
So your counsel, you're going to write the EIS.

[00:15:22] Speaker 03:
What would you have said that was distinct from what was said in this particular case?

[00:15:28] Speaker 03:
I don't mean line for line, but what would you have said?

[00:15:31] Speaker 03:
What's different?

[00:15:32] Speaker 05:
I would have mathematically evaluated the flights and then I would have said, well, they're higher.

[00:15:41] Speaker 03:
Forgive me, what do you mean by the mathematically evaluated flights?

[00:15:43] Speaker 03:
You mean the number of flights?

[00:15:45] Speaker 05:
I would have imposed a model.

[00:15:46] Speaker 03:
What kind of engines they use?

[00:15:48] Speaker 03:
What are we talking about?

[00:15:49] Speaker 05:
I would have imposed a model, the accepted modeling for aircraft noise.

[00:15:55] Speaker 03:
And what would that have been?

[00:15:56] Speaker 03:
What would the model be?

[00:15:57] Speaker 03:
A Piper Cub?

[00:15:59] Speaker 05:
It would tell me whether there was actually more noise even if the flight paths had been raised.

[00:16:05] Speaker 03:
If there's noise, then it doesn't work.

[00:16:07] Speaker 03:
Is that right?

[00:16:09] Speaker 05:
Say that again.

[00:16:09] Speaker 05:
I'm sorry, sir.

[00:16:10] Speaker 03:
If there is more noise, then you can't have an EIS.

[00:16:15] Speaker 03:
Is that your view?

[00:16:16] Speaker 05:
Well, you can have it.

[00:16:17] Speaker 05:
You just have to report it.

[00:16:18] Speaker 03:
OK.

[00:16:19] Speaker 03:
And you don't think they reported it?

[00:16:21] Speaker 05:
Not properly.

[00:16:21] Speaker 05:
No, sir.

[00:16:22] Speaker 03:
How should they have reported it?

[00:16:24] Speaker 05:
they should have done a much more detailed mathematical analysis instead of simply saying that these were minor changes.

[00:16:34] Speaker 03:
And what you have some model that you can refer us to that would have been mathematically appropriate.

[00:16:40] Speaker 05:
Yes, sir.

[00:16:41] Speaker 05:
That's the way it's usually done.

[00:16:43] Speaker 03:
But I mean, in what way?

[00:16:44] Speaker 03:
What is there a name for it of how one should normally do it?

[00:16:48] Speaker 03:
I'm sorry.

[00:16:50] Speaker 03:
What was the question?

[00:16:51] Speaker 03:
In other words, what is the formula?

[00:16:54] Speaker 03:
Is there some magic formula by which the calculation is to be made?

[00:16:58] Speaker 05:
That's the way there's a specific FAA noise model, which is used in every EIS, every 99% of them.

[00:17:09] Speaker 03:
And you're saying that they did not use that in this case?

[00:17:12] Speaker 03:
Correct.

[00:17:12] Speaker 03:
Is that correct, that they didn't properly apply it?

[00:17:14] Speaker 05:
Correct, Your Honor.

[00:17:16] Speaker 03:
And where would you refer to us in the record that that error occurred?

[00:17:21] Speaker 05:
I don't have that in front of me because it would be too heavy to carry up here.

[00:17:25] Speaker 03:
It was so heavy, it involved such volume that you can't even carry it up.

[00:17:30] Speaker 05:
I'm sure Mr. Taber has that for you.

[00:17:35] Speaker 05:
I'm here only for the limited purpose of discussing that letter and why it was not submitted sooner than two weeks before this appearance.

[00:17:45] Speaker 05:
That was one of my issues.

[00:17:49] Speaker 05:
But I'm sure that

[00:17:52] Speaker 05:
The adequacy of the noise analysis is for this court to judge, but it was not there except to hear.

[00:18:00] Speaker 03:
We are not scientists.

[00:18:03] Speaker 03:
We have to rely on experts.

[00:18:05] Speaker 03:
You have, if I understood you correctly, have basically said that the analysis that was done on the EIS is so big that you can't even carry it to the podium.

[00:18:15] Speaker 03:
That it seems to be in kind of a contradiction

[00:18:18] Speaker 03:
and the idea that they didn't analyze it.

[00:18:20] Speaker 03:
They may not have analyzed it the way you like it, but they did analyze it, right?

[00:18:26] Speaker 05:
They did other things.

[00:18:28] Speaker 05:
I mean, there is a lot in that analysis that doesn't have to do with noise.

[00:18:32] Speaker 05:
It's very large.

[00:18:35] Speaker 05:
But I mean, when they said it was minor or the removal of a restriction, that's basically it for this analysis.

[00:18:44] Speaker 03:
And what do you do with the concept that we are not scientists?

[00:18:47] Speaker 03:
We have to rely on scientists.

[00:18:49] Speaker 03:
Maybe my colleagues are scientists.

[00:18:51] Speaker 03:
I am not.

[00:18:53] Speaker 03:
I have to rely on experts.

[00:18:54] Speaker 03:
Well, what do we do?

[00:18:57] Speaker 05:
I would compare it to

[00:18:59] Speaker 05:
other situations such as the one that existed in Culver City in earlier couple of years ago.

[00:19:08] Speaker 05:
And in that case, in which I represented Culver City, there was a deficiency in the noise analysis and the court found that the FAA had erred and they were to redo their environmentalist document, which they have not yet done.

[00:19:28] Speaker 05:
But this court, this very court, found not only that the environmental documentation was deficient, but that the FAA had not complied with its own order.

[00:19:40] Speaker 05:
Now we're back again and we have no analysis of what those actual noise impacts are.

[00:19:47] Speaker 04:
Council?

[00:19:48] Speaker 04:
Council?

[00:19:50] Speaker 04:
Council, up here.

[00:19:50] Speaker 04:
Did you want to reserve any time for rebuttal?

[00:19:53] Speaker 04:
Pardon me?

[00:19:54] Speaker 04:
Did you want to reserve any time for rebuttal?

[00:19:58] Speaker 05:
Yes.

[00:20:00] Speaker 04:
All right.

[00:20:00] Speaker 04:
You're just a little under two minutes now.

[00:20:03] Speaker 04:
So you may reserve.

[00:20:04] Speaker 05:
I have it.

[00:20:04] Speaker 04:
OK.

[00:20:05] Speaker 04:
And we'll hear from opposing counsel.

[00:20:08] Speaker 05:
But it was suggested to me that we discuss that letter because it is the United States Supreme Court.

[00:20:13] Speaker 05:
It does have to do with the standard of review.

[00:20:17] Speaker 04:
We understand.

[00:20:18] Speaker 05:
And when we've heard your argument.

[00:20:20] Speaker 05:
Yeah.

[00:20:20] Speaker 05:
All right.

[00:20:21] Speaker 05:
So if this court has no further questions about that, just to say that

[00:20:27] Speaker 05:
Removal of restrictions and minor changes.

[00:20:31] Speaker 04:
We have no further questions at this point.

[00:20:32] Speaker 04:
We have no further questions at this point.

[00:20:34] Speaker 04:
Thank you.

[00:20:35] Speaker 04:
Thank you.

[00:20:48] Speaker 00:
Well, let me be the first to wish you good afternoon, Your Honor Judge.

[00:20:52] Speaker 00:
Are we there?

[00:20:53] Speaker 04:
Are we?

[00:20:54] Speaker 00:
Oh, okay.

[00:20:55] Speaker 00:
A little short.

[00:20:56] Speaker 00:
A little short.

[00:20:57] Speaker 00:
Justin Heminger for the Federal Aviation Administration.

[00:21:02] Speaker 00:
With me at council table I have Nicholas Steinheimer from the FAA.

[00:21:06] Speaker 00:
So I don't think this court needs to reach the merits of this case.

[00:21:09] Speaker 00:
It should dismiss this case for two related reasons.

[00:21:13] Speaker 00:
First, as Judge Smith's questions previewed, the 2016 order that FAA issued

[00:21:21] Speaker 00:
was the original order that put these flight procedures in place.

[00:21:26] Speaker 00:
Most of the petitioners' arguments are directed at that order, not at the 2024 order, which we acknowledge the petitioners have timely challenged.

[00:21:34] Speaker 04:
You mean 2018?

[00:21:35] Speaker 00:
Well, just to clarify, so the changes that FAA made were in 2018.

[00:21:40] Speaker 00:
Those were challenged by the city of Los Angeles in the Dixon case.

[00:21:48] Speaker 00:
Right.

[00:21:48] Speaker 00:
The Dixon case sent that back to the FAA, and so it was the May 2018 amendments to the fight procedures, but they didn't come final until the 2024 order.

[00:21:59] Speaker 00:
So I'll refer to that as the 2024 order.

[00:22:03] Speaker 00:
But it's the 2018 changes.

[00:22:04] Speaker 04:
That's what we're trying to get at.

[00:22:05] Speaker 04:
We've been discussing this as 2016-2018.

[00:22:07] Speaker 00:
And I'll do that going forward.

[00:22:09] Speaker 04:
Thank you.

[00:22:10] Speaker 04:
Okay, go right ahead.

[00:22:11] Speaker 00:
So there is a different defect.

[00:22:14] Speaker 00:
We acknowledge that as the 2018

[00:22:17] Speaker 00:
uh... changes that i think made the cities of timely petition for review of those changes they did so in sixty days the cities lack constitutional standing to challenge those changes they don't in fact cause any injury to the cities by increasing noise over either malibu or culver city so for those two related reasons the court should dismiss this petition for review both petitions based on standing

[00:22:47] Speaker 00:
Correct your honor.

[00:22:49] Speaker 04:
So can we just follow up on this vectoring point?

[00:22:52] Speaker 04:
Yes.

[00:22:53] Speaker 04:
I read the argument, I think, or the briefing the way I think Judge Smith reads it, that in some instances the changes increased the altitude.

[00:23:04] Speaker 04:
But there's also an argument about vectoring, which I understand to be deviations.

[00:23:10] Speaker 04:
That's my word.

[00:23:11] Speaker 04:
Deviations from the

[00:23:12] Speaker 04:
what I'll call a flight path and that their position is sometimes that has required or caused aircraft to fly lower and increasing noise.

[00:23:21] Speaker 04:
So I'm looking for evidence in the record about that.

[00:23:24] Speaker 04:
And there's this declaration of Steve McCleary from City of Malibu that includes statements about

[00:23:38] Speaker 04:
you know, increase in noise.

[00:23:39] Speaker 04:
But I don't know that it ties anything to vectoring in particular.

[00:23:42] Speaker 04:
And then we were just asked to look at pages 114 through 126 in the record which we have before us as well.

[00:23:54] Speaker 04:
Could you respond to those?

[00:23:56] Speaker 00:
Yes, Your Honor.

[00:23:56] Speaker 00:
So first, you understand vectoring the way that I do.

[00:23:59] Speaker 00:
It's a deviation from the charted flight course.

[00:24:02] Speaker 00:
And to be clear, that's done, that's routinely done

[00:24:06] Speaker 00:
for flight procedures to ensure that all the planes land safely.

[00:24:09] Speaker 04:
So I think the allegation is something about the 2018 causes more vectoring.

[00:24:14] Speaker 00:
That's correct.

[00:24:14] Speaker 04:
Okay.

[00:24:15] Speaker 00:
So that's the allegation.

[00:24:16] Speaker 00:
But our position is that that's not, there's nothing in the record that supports that position.

[00:24:22] Speaker 04:
Well, hence I think Judge Smith's follow-up questions and my follow-up questions about, and maybe Judge Forrest as well, but I think we're looking for evidence in the record to support this allegation.

[00:24:31] Speaker 00:
Right.

[00:24:31] Speaker 00:
So recognizing that it's the petitioner's burden, but I want to look at the excerpt of record that they pointed to.

[00:24:39] Speaker 00:
That's 114 to 126.

[00:24:41] Speaker 06:
Right.

[00:24:42] Speaker 00:
So I have that here in front of me.

[00:24:44] Speaker 00:
So this document clearly can't provide that evidence and I'll just point the court to, it's not a page number on it, it's 114, excerpt of record 114.

[00:24:56] Speaker 00:
So if you look at that page, it's the cover page, these are comments that were submitted to the FAA or a presentation that was done at a roundtable about noise.

[00:25:06] Speaker 00:
FAA participates in these roundtables to sort of hear concerns that are going on.

[00:25:11] Speaker 00:
But look at the date on that page.

[00:25:12] Speaker 00:
This is Excerpt of Record 114.

[00:25:14] Speaker 00:
That's March 2018.

[00:25:17] Speaker 00:
So this presentation was done several months before the amendments went into effect in 2018.

[00:25:25] Speaker 00:
So it provides no support for the vectoring point that was raised.

[00:25:31] Speaker 04:
I read it the same way, the date.

[00:25:34] Speaker 04:
Could you turn to, did you want to say more about that?

[00:25:37] Speaker 00:
Not about that, Your Honor.

[00:25:38] Speaker 04:
Okay.

[00:25:39] Speaker 04:
What about this declaration by Steve McCleary?

[00:25:44] Speaker 00:
Yes, Your Honor.

[00:25:47] Speaker 00:
So the declaration talks, there are a couple points that I would raise about the declaration.

[00:26:09] Speaker 00:
So the first is in paragraph eight of the declaration.

[00:26:14] Speaker 06:
Yes.

[00:26:14] Speaker 00:
It refers to these as new flight paths.

[00:26:17] Speaker 00:
These are not new flight paths.

[00:26:19] Speaker 00:
So to be clear, the changes that FAA made adjusted the altitudes in a couple of places.

[00:26:26] Speaker 00:
Most of those changes occur over the ocean.

[00:26:28] Speaker 00:
They don't occur over land.

[00:26:29] Speaker 04:
Right, and those aren't at issue.

[00:26:30] Speaker 00:
That's correct, Your Honor.

[00:26:32] Speaker 00:
But these are not new flight paths.

[00:26:34] Speaker 00:
These are the same flight paths that have been flown since 2016.

[00:26:37] Speaker 00:
The lateral flight path, you know, where the planes fly is exactly the same.

[00:26:42] Speaker 00:
So I think there's a misunderstanding here about, fundamentally about what is going on.

[00:26:48] Speaker 00:
In paragraph 10, the declarant says the decision has resulted in increased flights along with an increase in aircraft noise over noise sensitive areas.

[00:27:04] Speaker 00:
So FA also did look at this issue and concluded there were not an increase in the number of flights that were coming in on these procedures.

[00:27:17] Speaker 00:
These procedures have been flown continuously since 2016.

[00:27:21] Speaker 00:
The only changes that FAA was making were minor safety adjustments to make sure the planes were coming in a little safer, a little more efficient.

[00:27:30] Speaker 00:
That didn't change the number of planes that were actually going to use that route.

[00:27:35] Speaker 04:
I don't think they're arguing about number of planes.

[00:27:37] Speaker 04:
I think they're arguing about planes that are vectored.

[00:27:40] Speaker 00:
Sure, so on the vectoring, and so, but I wanted to be clear, I don't think that declaration, so there's nothing about vectoring in the declaration.

[00:27:48] Speaker 04:
Right.

[00:27:48] Speaker 00:
So that, but I did want to point out.

[00:27:50] Speaker 04:
It only has this global statement that's the result of the 2018, what I'm going to call 2018, has resulted in increased noise.

[00:27:57] Speaker 04:
Right.

[00:27:57] Speaker 04:
And then in the briefing, there's this allegation about increased vectoring.

[00:28:00] Speaker 04:
Yes.

[00:28:01] Speaker 04:
Which is why I'm looking for some place in the record, because we're talking about standing, some place in the record to show evidence supporting this claim.

[00:28:09] Speaker 00:
Thank you, your honor.

[00:28:10] Speaker 00:
I'd like to walk through the vectoring point.

[00:28:13] Speaker 00:
There are a couple of record sites that I'll give you to cover that.

[00:28:16] Speaker 00:
The first, and I think most helpful site, if you were going to read anything in the record about vectoring, would be in the supplemental excerpts of the record that FAA submitted, and that's SER 83 to 86.

[00:28:28] Speaker 03:
Say that again, please.

[00:28:32] Speaker 00:
Where?

[00:28:34] Speaker 00:
SER 83 to 86.

[00:28:36] Speaker 00:
Got it.

[00:28:38] Speaker 00:
Thank you.

[00:28:39] Speaker 00:
To be clear, the petitioners raised, the cities raised vectoring as a process.

[00:28:45] Speaker 00:
FAA did a public notice and comment process during this environmental review to give the cities a chance to raise issues, and so the cities did raise vectoring as an issue.

[00:28:59] Speaker 00:
pointed out that it made no changes to, you'll read in that excerpt, FA made no changes to vectoring.

[00:29:07] Speaker 00:
And I can show the court, I'll give the court the sites where you can see that.

[00:29:13] Speaker 00:
Those would be in the supplemental excerpts of record, and I'll just read off the ranges, because there are three different flight procedures here, but it's 27 to 28, SER 32 to 34,

[00:29:27] Speaker 00:
and SER 38 to 40.

[00:29:31] Speaker 00:
And I'll just pull up one of those to give an example.

[00:29:33] Speaker 00:
So at 27 to 28 in the supplemental excerpts of record, if you look at the chart there, it's a little hard to find because there's a lot of technical data, but you'll see toward the end of, there's a paragraph under arrival route description, and at the end of the paragraph on SER 27,

[00:29:54] Speaker 00:
It says, expect radar vectors to final approach course.

[00:29:59] Speaker 04:
On the bottom of 27, it says this?

[00:30:02] Speaker 00:
So it's in a paragraph of text.

[00:30:04] Speaker 00:
You'll see there's a, and just to sort of walk the court into the example here, this is Appendix B. It's a figure from Appendix B to FAA's technical, that's the title.

[00:30:17] Speaker 00:
And then it's figure one, this is the 2016 original, this is the plate that tells pilots how to fly the original 2016 flight procedure.

[00:30:28] Speaker 00:
And then if you see there's a paragraph there that says, under arrival route description, like a narrative paragraph.

[00:30:36] Speaker 00:
That paragraph tells the pilot each of the steps to take to land the plane.

[00:30:41] Speaker 00:
And at the end of that paragraph, you'll see a sentence that says, expect radar vectors to final approach course.

[00:30:47] Speaker 00:
So this is the plate from 2016 that FAA put out as part of its Southern California Metroplex project.

[00:30:55] Speaker 01:
If you... Is it fair to say then that in 2016 vectoring in some sense was altered?

[00:31:03] Speaker 01:
It was, vectoring has always been part of how you land, but it was... In terms of plans and direction, in 2016 vectoring, issues around vectoring changed in some way.

[00:31:14] Speaker 00:
That's correct, Judge Forrest.

[00:31:15] Speaker 00:
And in fact, FAA studied that issue in the NEPA analysis that it did for the Southern California Metroplex Project.

[00:31:23] Speaker 01:
And so if I am understanding your argument, your point, one of your points is nothing about vectoring in and of itself and how it's done and when it should be done and what are the parameters or whatever changed in 2018.

[00:31:34] Speaker 00:
You said it much better than I could.

[00:31:35] Speaker 00:
Yes, Your Honor.

[00:31:36] Speaker 04:
That answers my question.

[00:31:37] Speaker 04:
I appreciate it's not your burden.

[00:31:39] Speaker 04:
I'm just... Yes.

[00:31:41] Speaker 00:
But just to close out on the, if you look at the next page,

[00:31:44] Speaker 00:
That's the chart, that's the modified chart and I think you understand that sentence is still there, expect radar vectors from final approach course.

[00:31:51] Speaker 04:
So, FA didn't change that and... Right, but I think the argument again, I'm not going to be able to point, it's not your burden.

[00:31:57] Speaker 04:
Is there something here that tells us that the rate of vectoring, the incidence of vectoring did not change?

[00:32:03] Speaker 00:
No, Your Honor, I can't think of anything that would go to that but I agree that it's just speculative to suggest that making a change and I'm, this is not,

[00:32:13] Speaker 00:
You won't see this in the record, but if you look at the flight paths, the changes that were made are upstream.

[00:32:19] Speaker 00:
They're not, most of the changes aren't as the planes are approaching the airport, but vectoring is going to happen the closer you get to the airport, because that's when you have to make sure that you're following the flight controllers and you're landing the plane safely.

[00:32:36] Speaker 01:
Do you dispute factually that by, I mean the assertion by opposing counsel is,

[00:32:42] Speaker 01:
by increasing altitude, vectoring goes up.

[00:32:45] Speaker 01:
And just as a, like aside from whatever the proof is here, as a concept, do you think that that is viable or no?

[00:32:52] Speaker 00:
I just, I can't speak to that.

[00:32:53] Speaker 00:
I think that's somewhat speculative.

[00:32:55] Speaker 00:
I don't, I'm not sure I can suggest one reason.

[00:32:59] Speaker 01:
I'm struggling with does that even make sense.

[00:33:01] Speaker 01:
And I suppose, and maybe it doesn't matter, but I suppose some way it might make sense is vectoring is sort of deviation, as has been talked about.

[00:33:09] Speaker 01:
And if you're higher, maybe you need to deviate more often.

[00:33:13] Speaker 00:
Perhaps, I guess I would fall back on Judge Smith's observation that, you know, I'm not a scientist and, you know, the FA, they're the experts.

[00:33:21] Speaker 00:
They're the technical experts on that.

[00:33:22] Speaker 00:
No, I understand.

[00:33:22] Speaker 01:
I was just trying to figure out just as a concept, is that rational or no?

[00:33:26] Speaker 00:
I'm not sure I can help with that.

[00:33:30] Speaker 00:
So I do want to point out, too, that FA was sensitive to noise.

[00:33:34] Speaker 00:
It knew that was an issue that the cities cared about, and it did noise modeling here, which is not something, when it's applying a categorical exclusion,

[00:33:43] Speaker 00:
Normally doesn't it's in its normal process would be a screening a screening test which is a basic test here it understood the cities were very upset about plain noise and Concerned about it and so it went a step further went above and beyond what it would normally do When applying a categorical exclusion underneath that and it did supplemental noise modeling and the sites for that are in the in the supplemental

[00:34:06] Speaker 00:
excerpts a record from 44 to 55 so fa did go a step further and actually Model the noise and concluded that these changes did not increase noise Either significantly or even reportable noise, which is a lower threshold.

[00:34:23] Speaker 04:
I Don't have any further questions Judge Smith to you.

[00:34:26] Speaker 04:
I do not I don't think we have any further questions Thank you very much.

[00:34:30] Speaker 04:
Thank you for your argument.

[00:34:32] Speaker 04:
There's a little less than two minutes left on the clock for rebuttal and

[00:34:41] Speaker 02:
Couple of things about vectoring.

[00:34:44] Speaker 02:
First of all, we're not experts either.

[00:34:47] Speaker 02:
Neither the city of Malibu nor the city of Culver City are experts on vectoring and what happens when a flight is vectored.

[00:34:58] Speaker 02:
And that is why we are, but it's clear from the evidence that when a flight is vectored,

[00:35:11] Speaker 02:
that there are changes, there are changes, excuse me, when they're taken off the flight procedure, things change, whether it's they fly lower, they fly faster, that sort of thing.

[00:35:24] Speaker 04:
What if they even fly higher?

[00:35:26] Speaker 04:
I don't even know that.

[00:35:28] Speaker 02:
They could fly higher, but the result is when they're coming in on an approach, they want to fly lower.

[00:35:41] Speaker 02:
And so that is our point about vectoring is the FAA needed to analyze what the effects of the changes in the 2018 flight procedures, how that would affect vectoring.

[00:36:01] Speaker 02:
How many?

[00:36:02] Speaker 02:
How many?

[00:36:03] Speaker 02:
How many?

[00:36:04] Speaker 03:
Council, with respect, you're a California lawyer.

[00:36:07] Speaker 03:
You know what CEQA was.

[00:36:08] Speaker 03:
You know what NEPA is.

[00:36:11] Speaker 03:
Both Congress and the state legislature have recognized that basically whatever was initially intended, these are tools to stop everything.

[00:36:21] Speaker 03:
You're using NEPA, it seems, as a way to stop anything, everything with respect to aviation.

[00:36:27] Speaker 03:
You're not sure how to do it.

[00:36:29] Speaker 03:
You just want it to stop.

[00:36:31] Speaker 03:
You want it to go slower.

[00:36:32] Speaker 03:
You want to do something.

[00:36:34] Speaker 03:
And you're relying on NEPA.

[00:36:36] Speaker 03:
I struggle with it in the same way I do with a lot of the forest cases.

[00:36:39] Speaker 03:
You will never come to a point where you will be satisfied ever.

[00:36:43] Speaker 03:
I don't care how much you ask for.

[00:36:45] Speaker 03:
That's what we struggle with is this is not a game of perfection.

[00:36:50] Speaker 03:
Congress intended to be environmentally sensitive.

[00:36:54] Speaker 03:
They wanted to be sure that you get the best possible treatment.

[00:36:57] Speaker 03:
But we live in a modern society and it's not perfect.

[00:37:01] Speaker 03:
And isn't that really what we're dealing with here?

[00:37:03] Speaker 03:
Your attempt to get perfection and we can't provide perfection under the law.

[00:37:08] Speaker 02:
No, we're not looking for perfection.

[00:37:11] Speaker 02:
What we're looking for is a scientifically credible analysis.

[00:37:14] Speaker 03:
That's what you call it, but it gets down to the same thing, does it not?

[00:37:19] Speaker 02:
No, I'll do respects.

[00:37:21] Speaker 02:
No, it doesn't.

[00:37:23] Speaker 02:
The fact of the matter is that there is science out there that shows that aviation noise

[00:37:30] Speaker 02:
is much worse than what the FAA says.

[00:37:35] Speaker 02:
What we want is the FAA to take that information and either explain why 65 decibels of DNL should be the significance threshold, still after taking into account the Neighborhood Environmental Survey,

[00:37:54] Speaker 02:
or come up with some other system and deal with the fact that there are people on the ground who are highly annoyed and with their health being affected and come up with a solution as to what the impacts of this.

[00:38:17] Speaker 03:
But there is no solution.

[00:38:20] Speaker 03:
There will always be change.

[00:38:21] Speaker 03:
There will always be problems.

[00:38:22] Speaker 03:
There will always be sensitive people.

[00:38:25] Speaker 03:
And that's what these laws are so difficult about.

[00:38:27] Speaker 03:
There is no perfection either on the ground or in the air.

[00:38:32] Speaker 03:
People are going to be affected.

[00:38:34] Speaker 03:
And the law doesn't permit us to basically seal people from aircraft.

[00:38:41] Speaker 03:
We have to deal with what the law provides here.

[00:38:43] Speaker 03:
And with all due respect, it seems to me you're just saying, you know, you think something's wrong.

[00:38:49] Speaker 03:
But if we ordered that it be changed as the way you did, you would be back here again, I promise you, with yet another claim that something else was wrong.

[00:38:58] Speaker 03:
That's just the way the system is working.

[00:39:01] Speaker 02:
Is that right?

[00:39:03] Speaker 02:
No, I'll do respect.

[00:39:05] Speaker 02:
Again, I do not think that you are right.

[00:39:07] Speaker 02:
What we, what the law requires, what NEPA requires is that we the public and the decision makers are given accurate information, accurate scientific information, and that is not present here.

[00:39:21] Speaker 02:
And that is what we're asking for.

[00:39:23] Speaker 02:
You know, granted, you know, I would say that there are some people who would prefer that all aircraft stay on the ground.

[00:39:31] Speaker 02:
That's not going to happen.

[00:39:33] Speaker 02:
We understand that.

[00:39:34] Speaker 02:
Everyone understands that aviation is a significant part of our economics.

[00:39:39] Speaker 02:
And LAX, for example, is a driver of the economic force.

[00:39:44] Speaker 02:
But there has to be some kind of middle ground where we're given the information that we need as a city

[00:39:53] Speaker 02:
to govern ourselves, to make changes to our proprietary interests, to give information to our citizens where the citizens and the people at least, at the very least, feel seen and that their concerns about the effects of these procedures are taken into account and not

[00:40:21] Speaker 02:
not dismissed out of hand as having no impact on them.

[00:40:26] Speaker 04:
Council, we appreciate your argument and your patience with all of our questions.

[00:40:29] Speaker 04:
We've taken you way over time.

[00:40:31] Speaker 04:
So we're going to end it there.

[00:40:33] Speaker 04:
Thank you all.

[00:40:33] Speaker 04:
We'll take this case under advisement.

[00:40:35] Speaker 04:
We're going to stand in recess for the day.

[00:40:37] Speaker 02:
Thank you.

[00:40:38] Speaker 01:
All rise.

[00:40:48] Speaker 05:
This court stands in recess.