[00:00:02] Speaker 00:
Case number 15-1285, Citizens Association of Georgetown at ELL Petitioners versus Federal Aviation Administration at ELL.

[00:00:10] Speaker 00:
Mr. Adams for the petitioners, Mr. McFadden for the respondents.

[00:00:32] Speaker 05:
Mr. Adams, good morning.

[00:00:34] Speaker 05:
Good morning, Your Honor.

[00:00:35] Speaker 05:
I've heard of out of town council.

[00:00:37] Speaker 05:
You've come a long way to represent Georgetown.

[00:00:41] Speaker 02:
It's my pleasure to do so, Your Honor.

[00:00:43] Speaker 02:
I was just worried that I was going to be stuck in the meteorological events of the last few days.

[00:00:51] Speaker 02:
Good morning, and may it please the court.

[00:00:52] Speaker 02:
My name is Matthew Adams.

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I represent the petitioners.

[00:00:56] Speaker 02:
This is a challenge to an FAA order that made a flight path called Laser, the default departure route for northbound aircraft from Washington National Airport.

[00:01:07] Speaker 02:
But at bottom, it's really a case about the FAA hiding the ball.

[00:01:11] Speaker 03:
Wait, before you, your first statement deals with something I wanted to ask you about, which is,

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I saw your argument that the 2015 publication of the routes made laser the default, but I couldn't find that anywhere in the record.

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What made that the default in 2015?

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Or another way to put it, why wasn't that just the natural consequences of the 2013 ROD?

[00:01:51] Speaker 02:
Your Honor, I think it was the consequence of the 2013 ROD.

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Oh, it was, yes.

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But then, isn't the government right that you're out of time?

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That's the point of the question.

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Understood, Your Honor.

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Let me make two points on the timing issue, then.

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So the first point, which is on the 60-day prong of the deadline, 46-110A.

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So it is true that the document that the government calls the Fonzie Rod came out in 2013.

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It is also true, however, that the government's decision-making process continued after that point.

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There was further testing.

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There were further adjustments.

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The record is not complete on that point, but we do know that that was happening with respect to, for example, a potential conflict between the laser route and the protected area over portions of the District of Columbia.

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I believe the government has also mentioned that there were some changes made with respect to runway four.

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Wasn't that, didn't they just say that was just a rarely used runway?

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In other words, their argument is, look, these 41 routes that we published in 2015 were the exact same.

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Sure, they said a few names had changed.

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But they're the same ones that were in DC Metroplex.

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Is that not accurate?

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That is largely accurate, Your Honor.

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But they were continuing their decision-making process.

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So I guess our position is it had not reached its consummation yet.

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But you see, let's go back.

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Your major concern here is with the adequacy of environmental analysis, right?

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And that was all done in 2013 as part of the DC Metroplex process.

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There wasn't any more environmental analysis done subsequent to that.

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The only thing that was being done, as I understand it, was to test these flights to see whether the pilots could manage them with this next generation navigation system without running afoul of P-56, right?

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That's what that was all about.

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There was no more environmental, no more assessment of noise or anything, right?

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Well, I think ultimately... So even if you're right that there were some changes, there weren't any legal consequences.

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And this is a question.

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What were the legal consequences that flowed from that testing that relates to your basic concern about the adequacy of the FAA's assessment of noise?

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That's the question.

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Understood, Your Honor, and that's certainly the government's position.

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I guess our response would be maybe the legal – it is more clear that the legal consequences came from the 2013 document, but the decision-making process had not yet been consummated at that point.

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And then in 2015, the decision-making process had been consummated, and so you had both prongs of the finality analysis in place.

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I also want to make clear that even if the final order was the 2013 Fonzie Rod, we submit that our petition was timely because the filing date is supported by reasonable grounds.

[00:05:18] Speaker 03:
Well, before we get to reasonable grounds, I just have a few more questions before you get to reasonable grounds.

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In fact, I would say it's safe to say that in your opening brief, your whole argument rests on order 7100 point

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Right?

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I mean, you put a great deal of weight on that.

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And the government's response to that is that that was promulgated after D.C.

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metropolis.

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So it doesn't really apply.

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So our response, Your Honor, is... I saw your response in the footnote, but I didn't think it was particularly responsive.

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Okay.

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Well, whether or not that particular order applies here,

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the decision-making process was ongoing, whether pursuant to that order or something else.

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And so the decision-making process had not been consummated.

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We would note, for example, the City of Phoenix case, where there was a discussion about when the final order was issued.

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And in that case, the court found that it was the publication of the routes

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that rendered the decision-making process final.

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In other words, it was when the planes started to fly them.

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Before that moment, the planes were not flying them, could not fly them.

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After that moment, the planes were flying them, did fly them.

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And that was the deciding factor in the Phoenix case.

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Now, of course, in Phoenix, the factual situation was a little bit different.

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And so the court in Phoenix found that the petition was untimely

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based on that analysis of the 60-day prong and proceeded to decide on reasonable grounds.

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But using that same sort of principle that the Phoenix Court used, that that was really the dividing point between when the process was ongoing and when the process had concluded.

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In this case, we would submit that it was the publication of the routes.

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Yeah, but of course, I mean, you know, we're bound by Phoenix and that opinion.

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And I realize it came out after the briefing.

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But with respect to your point that the final decision wasn't made until these routes were published, Phoenix, the same thing happened in Phoenix.

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Phoenix, the court in Phoenix, the city of Phoenix, did say while monitoring might lead to adjustments,

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to the new routes, which is what may have happened here, although you and I seem to both agree there wasn't any, but there was the potential, that's your point.

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While monitoring might lead to adjustments to the new routes, the primary development of those routes has already happened.

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That's right out of City of Phoenix, which you could apply directly to this case.

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In other words,

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Even if you're right that the 41 new procedures that were published in 2015 were adjusted, as in Phoenix, they quote, the primary development of those routes had already happened in DC Metroplex.

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That's what concerns me about your argument here.

[00:08:39] Speaker 02:
Let me see if I can address that concern quickly.

[00:08:41] Speaker 02:
There's one other distinction that I should mention between the Phoenix case and this one.

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So in the Phoenix case, Your Honor's quite right.

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The court said, well, that's primarily post-implementation monitoring.

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In this case, however, we weren't exactly in the post-implementation phase.

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I mean, planes were not yet flying them.

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And it's true that the FAA was able to resolve this conflict, for example, between P-56 and laser without changing laser.

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But that's because they went to the Secret Service and said, we would really like you to change your penalty policy.

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Could you tweak your approach to this so we don't have to change ours?

[00:09:23] Speaker 02:
They were successful in that regard.

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But if the Secret Service had said no, then the FAA would have still been in a position of having to make changes.

[00:09:29] Speaker 02:
I see your point.

[00:09:30] Speaker 02:
I understand your point, Your Honor, that no changes were actually made.

[00:09:34] Speaker 02:
But there was more than a potential here.

[00:09:37] Speaker 01:
Why don't you go on?

[00:09:37] Speaker 01:
I'm sorry.

[00:09:38] Speaker 01:
Your fundamental challenge is to the most significant impact finding, right?

[00:09:44] Speaker 01:
That's what's really at the heart of this.

[00:09:45] Speaker 02:
Yes, Your Honor.

[00:09:46] Speaker 02:
We think that the environmental system was... That's 2013.

[00:09:49] Speaker 02:
That's right, Your Honor.

[00:09:50] Speaker 02:
It is.

[00:09:51] Speaker 02:
So the Fonzie Rod was December of 2013 and also the earlier, I guess it was June 2013 is the date on the draft EA.

[00:10:02] Speaker 02:
So you're right, those documents are from that time period, but we would submit that the decision-making process, sort of in a practical sense, which is the lens that, for example, Daniel Beach puts on it, you know, dictates the law.

[00:10:15] Speaker 01:
You know, I mean, the problem with it, and I guess you're going to get to the second part of your argument, the problem with that is there's always after effects of the no significant impact doesn't change the deadline.

[00:10:25] Speaker 02:
Understood your honor and the only distinction I would make would be between cases where there's a finding of no significant impact and the project is immediately implemented in cases like this one where there's a finding of no significant impact and then there's

[00:10:39] Speaker 02:
further adjustment and decision making and then the project is implemented two years later or something like this.

[00:10:47] Speaker 02:
Your Honor, raise the reasonable grounds.

[00:10:49] Speaker 03:
Yeah, why don't you go into that?

[00:10:51] Speaker 02:
Okay, Your Honor.

[00:10:52] Speaker 02:
We would point to, let me see if I can sum this up quickly, we would point to three categories of evidence that establish reasonable grounds in our case.

[00:11:02] Speaker 02:
The first category consists of, I guess we could generally call it, our exclusion from the environmental review process.

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And so what I'm looking at, for example, is 300 and some notices of the environmental assessment sent to folks in Virginia, Maryland, West Virginia, Pennsylvania, none to D.C.

[00:11:27] Speaker 03:
Yeah, I thought that was odd, too, but it was published in the papers and on the website, and the Supreme Court has said that's sufficient notice, right?

[00:11:40] Speaker 02:
We don't dispute that in some... I'm sorry, Your Honor.

[00:11:45] Speaker 02:
No, go ahead.

[00:11:46] Speaker 02:
We don't dispute that in some circumstances, sort of a website and newspaper publication might be adequate, but we would submit that more is required here for this kind of project.

[00:12:03] Speaker 05:
For example... They sent it to the congressional delegate.

[00:12:07] Speaker 02:
They did, Your Honor, but none to elected officials of the District of Columbia, I guess.

[00:12:15] Speaker 02:
And, you know, when they were distributing the EA, they sent it to... You think a notice to Eleanor Holmes Norton is not a notice to D.C.?

[00:12:22] Speaker 02:
?

[00:12:24] Speaker 02:
It's not noticed to the elected officials of the DC government.

[00:12:29] Speaker 01:
That's a strange notion to me all the years I've been around here.

[00:12:34] Speaker 01:
Representative Norton is a major force in DC.

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There isn't much that she knows about that if it's distression, she doesn't react to.

[00:12:43] Speaker 01:
So that's a strange argument to say that DC officials had no notice.

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She is certainly considered to be among strong DC officials.

[00:12:53] Speaker 02:
Your Honor, I guess we would – I certainly didn't mean to suggest anything about the representative.

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We would note, however, that our D.C.

[00:13:03] Speaker 02:
Councilman did inquire directly while the decision-making process was open.

[00:13:09] Speaker 02:
The government points out that that request was addressed to EMWA rather than the FAA.

[00:13:14] Speaker 02:
I think what my friends are missing is the fact that the response clearly says, we checked with FAA and there's nothing new since 2008, which even under the government's theory of the case would have been inaccurate.

[00:13:29] Speaker 03:
Mr. Adams, let me go back to your point about the notice, because I was troubled by that, too, as I read the record and the briefs here.

[00:13:36] Speaker 03:
I mean, it does seem quite odd the way the FAA handled those.

[00:13:41] Speaker 03:
So I looked.

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I looked for cases.

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I tried to find cases which suggested that even though the courts have said that public notice in the papers and on the website is sufficient, that there's some exception when the actual notice given is so distorted.

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But I couldn't find anything.

[00:14:00] Speaker 03:
Do you know of any authority that would allow this court to now say, well, yes, the general rule is that publication is enough, but there's something about the circumstances of this case that makes that inadequate?

[00:14:13] Speaker 03:
Do you know of anything that we could hang our hat on for that?

[00:14:16] Speaker 02:
Your honor, I would respond in two ways.

[00:14:18] Speaker 02:
The very narrowest answer to your question is I am not aware of that case in part because I think this is such an unusual set of circumstances.

[00:14:27] Speaker 02:
This just doesn't happen.

[00:14:29] Speaker 02:
But we would point, your honor, to the provision of the FAA's NEPA procedures, which is referenced in our brief.

[00:14:36] Speaker 02:
I think it's section 208.

[00:14:38] Speaker 02:
which directs the FAA to do the kind of outreach that you're talking about to the quote-unquote affected community and we would submit that it would be appropriate to hang your hat on there to comply with its own procedures and that that would certainly be square with much NEPA case law which generally requires agencies to follow their own regulations.

[00:15:03] Speaker 03:
You said there were two other categories of evidence.

[00:15:05] Speaker 02:
Yes, I'm sorry, Your Honor.

[00:15:07] Speaker 03:
No, that's okay.

[00:15:07] Speaker 03:
I interrupted.

[00:15:08] Speaker 03:
What were they?

[00:15:10] Speaker 02:
So there was Councilman Evans' inquiry on this topic, you know, specifically raising, is there, are there anything, is there anything new with northbound departures at National?

[00:15:23] Speaker 02:
I think I... When was that?

[00:15:24] Speaker 02:
That was in 2013 in October.

[00:15:29] Speaker 02:
The response came in November of 2013, so even in the FAA's theory of the case, the decision-making process was still open at that point.

[00:15:37] Speaker 02:
The FAA is correct, I think I said, that the inquiry went to EMWA and the response was on EMWA letterhead.

[00:15:46] Speaker 02:
But it also clearly said that they checked with the FAA folks at National in the response.

[00:15:52] Speaker 02:
And then the third category, Your Honor, and I'm very sorry, I see I've already run over my time.

[00:15:57] Speaker 02:
That's okay.

[00:15:57] Speaker 03:
I have another question, too.

[00:15:59] Speaker 03:
Okay.

[00:15:59] Speaker 05:
Let me ask you about the second one.

[00:16:04] Speaker 05:
Why wouldn't that argue against you if the FAA said nothing going on?

[00:16:08] Speaker 05:
In other words, we're done.

[00:16:09] Speaker 05:
We're completed.

[00:16:12] Speaker 02:
Your Honor, I apologize because I think I was a little bit too vague in my generalization of that response.

[00:16:19] Speaker 02:
The FAA did say nothing going on, but it's actual words where there is nothing new.

[00:16:25] Speaker 02:
I should be clear, MWA said that the FAA had represented that there was nothing new since 2008, which at that, so that's what I meant in the sense of nothing going on, and I apologize.

[00:16:40] Speaker 03:
But MWA is not the FAA.

[00:16:42] Speaker 02:
That's correct, Your Honor.

[00:16:44] Speaker 03:
So, is the third category of evidence the declarations about these meetings?

[00:16:50] Speaker 02:
That's right, Your Honor.

[00:16:50] Speaker 03:
Okay.

[00:16:51] Speaker 03:
So, we said, this Court said in the City of Phoenix that the touchstone of all of our cases, under the reasonable grounds exception,

[00:17:02] Speaker 03:
is that the agency gave the impression that they were working together to modify the problem, right?

[00:17:10] Speaker 03:
We said that was the touchstone of all of them.

[00:17:11] Speaker 03:
So I looked at your affidavits, your declarations.

[00:17:14] Speaker 03:
Could you point to any language in the declarations that suggests that that's what happened here?

[00:17:21] Speaker 02:
No, Your Honor, and we would – I guess our position, I should clarify, is not that we are in a situation where the FAA represented to us that they were going to fix something.

[00:17:30] Speaker 02:
In other words, it wasn't a misrepresentation about whether there was a decision-making process still open.

[00:17:38] Speaker 02:
Rather, it was a misrepresentation about whether there was a decision-making process at all.

[00:17:44] Speaker 02:
The principle is the same.

[00:17:46] Speaker 02:
You know, we were misled into a reasonable conclusion that there was no final order for us to appeal, and that is the reasonable ground for our filing date.

[00:17:59] Speaker 02:
But you're right, Your Honor, there was never a representation of fixing something.

[00:18:02] Speaker 03:
Suppose I think, and this is just a question, suppose I think that we're bound by the case law that says public notice is enough.

[00:18:11] Speaker 03:
That is, despite the weird way in which the agency went about its notice here, that suppose I feel like we're bound by the proposition that, well, might have been defective, but they did publish it in the Washington Post, they put it on their website, they sent it to Delegate Northam, they did all that.

[00:18:32] Speaker 03:
Does your argument then, does this other argument then fail too?

[00:18:36] Speaker 03:
Because if you had notice,

[00:18:38] Speaker 03:
legal notice, then you weren't misled about anything, right?

[00:18:47] Speaker 02:
I don't think so, Your Honor.

[00:18:48] Speaker 02:
I think there's a

[00:18:52] Speaker 02:
If, Your Honor.

[00:18:53] Speaker 03:
And you couldn't have been misled about something you didn't know about, right?

[00:18:56] Speaker 03:
I mean, it seems to me it fails either way for you.

[00:18:59] Speaker 03:
Either if you really didn't know about it, then I don't know what they, what you could have been misled about.

[00:19:06] Speaker 01:
Yeah, I mean the alleged after, if I can just add on to that and make sure I understand your argument, the alleged after the fact misleading conduct doesn't cure your prior failure,

[00:19:21] Speaker 01:
to act within the deadline if the notice given was what was legally required.

[00:19:28] Speaker 01:
And so that there may be some discussions after the fact that are annoying to you in retrospect.

[00:19:34] Speaker 01:
I'm not sure.

[00:19:37] Speaker 01:
It's like, well, I don't know what to do with that as a legal matter with respect to the requirement that you act within 60 days, which you fail to do.

[00:19:45] Speaker 02:
Understood, Your Honor.

[00:19:47] Speaker 02:
If I could try and.

[00:19:47] Speaker 02:
No, that's all right.

[00:19:48] Speaker 02:
Maybe I'll try and.

[00:19:50] Speaker 02:
respond to both questions simultaneously by pointing to, again, the outreach by Councilman Evans.

[00:19:57] Speaker 02:
I will represent that we did not receive notice of the EA process.

[00:20:05] Speaker 02:
While that EA process was running, our elected representative

[00:20:09] Speaker 02:
put in an inquiry that said, are there new departure paths for northbound from national?

[00:20:17] Speaker 02:
The response said, we've checked with the FAA, and there's nothing new since 2008.

[00:20:23] Speaker 02:
That happened before the decision in 2013, I guess is what I'm saying.

[00:20:29] Speaker 02:
So even if you subtract the exclusion.

[00:20:31] Speaker 03:
That happened before the issuance of the ROD?

[00:20:34] Speaker 02:
That's correct, Your Honor.

[00:20:36] Speaker 01:
but it was not an inquirer of the FCC, that's the problem.

[00:20:40] Speaker 01:
Of the FAA, that's true.

[00:20:41] Speaker 01:
I mean the FAA, I'm sorry.

[00:20:42] Speaker 02:
So, Your Honor, if I could just point out one thing, and I don't mean to be dodging your question here, but it's true that it wasn't an inquiry directed by the Councilman to the FAA, but the response that came from EMWA to the Councilman makes it clear that EMWA directed that response to the FAA.

[00:21:03] Speaker 02:
In other words, although we didn't directly ask the FAA, the question was asked, FAA received the question, and the answer was given from FAA to EMWA to the petitioners.

[00:21:17] Speaker 02:
So you're quite right as a factual matter, but we would submit that the underlying principle, did we ask, did FAA answer, is still there.

[00:21:30] Speaker 05:
All right.

[00:21:30] Speaker 05:
We'll give you some time in response.

[00:21:31] Speaker 02:
I'm sorry, Your Honor.

[00:21:32] Speaker 02:
I know I'm way over.

[00:21:33] Speaker 05:
That's OK.

[00:21:34] Speaker 05:
Mr. McFadden.

[00:21:43] Speaker 06:
Good morning, and may it please the Court.

[00:21:44] Speaker 06:
My name is Lane McFadden for the Federal Aviation Administration.

[00:21:49] Speaker 06:
In 2013, the FAA finalized and approved the DC Metroplex.

[00:21:54] Speaker 06:
One year after Congress enacted legislation requiring the FAA to modernize the national airspace by implementing these forms of safer and more modern procedures at the 30 or 35 busiest airports in the country.

[00:22:06] Speaker 06:
And that legislation also permitted the FAA to use an expedited form of environmental review under NEPA.

[00:22:12] Speaker 06:
But here instead, the FAA published an environmental assessment

[00:22:15] Speaker 06:
and circulated it for public comment and considered those comments before issuing a final record of decision.

[00:22:20] Speaker 06:
They did all of that consistent with the regulatory procedures that guide the publication of an environmental assessment, and they did so so there would be a fulsome public process to inform.

[00:22:30] Speaker 03:
The challengers agree that they didn't challenge that within the 60 days.

[00:22:34] Speaker 03:
They're not contesting anything you just said.

[00:22:37] Speaker 03:
They're just arguing that they didn't have adequate notice or they're entitled to this exception.

[00:22:47] Speaker 03:
They don't disagree with anything you just said.

[00:22:49] Speaker 06:
Then let's talk about reasonable grounds.

[00:22:50] Speaker 03:
Well, let me ask you a question first before you get to reasonable grounds.

[00:22:57] Speaker 03:
So they say, one of their arguments is that up until 2015,

[00:23:04] Speaker 03:
The laser procedures were optional, but in 2015 they became the default northern takeoff procedure.

[00:23:13] Speaker 03:
I guess I have two questions about that.

[00:23:14] Speaker 03:
Number one, is that right?

[00:23:16] Speaker 06:
It's not entirely right.

[00:23:18] Speaker 06:
It is true that in 2015, that is the date where most departures then started using those routes.

[00:23:26] Speaker 06:
In 2014, in the beginning of 2015, planes weren't flying that procedure yet because it was still in the process of implementation.

[00:23:36] Speaker 03:
But I do want to address... So would I be right to say that that was a consequence of what began in

[00:23:47] Speaker 03:
13, I mean, was there, let me ask you this, was there any decision that the FAA made, other than it's testing, what do you call the testing they did to make sure they weren't running into P56, they have a name for that, whatever it is, they were testing these procedures with the new generation or next generation technology, right?

[00:24:08] Speaker 03:
To make sure they wouldn't, okay.

[00:24:11] Speaker 03:
And your answer is, yeah, look, they finished the testing, so many more of these laser procedures were used in 2050, right?

[00:24:20] Speaker 06:
Right.

[00:24:20] Speaker ?:
OK.

[00:24:21] Speaker 03:
But was that just as a result of the testing?

[00:24:24] Speaker 03:
Is that why?

[00:24:25] Speaker 03:
Because they discovered that the flights could be flown without running afoul of P56?

[00:24:31] Speaker 06:
Right.

[00:24:31] Speaker 06:
Well, the testing was an important part of putting those in focus.

[00:24:34] Speaker 03:
Suppose they had discovered that the pilots couldn't actually fly one of those.

[00:24:40] Speaker 03:
routes that was approved in 2013 without running a foul of P-56.

[00:24:49] Speaker 03:
What would have happened?

[00:24:50] Speaker 03:
Would that flight have been not published?

[00:24:53] Speaker 03:
I'm sorry, that route?

[00:24:54] Speaker 06:
Right.

[00:24:55] Speaker 06:
It's possible it would have been not published, or it's possible it could have been changed.

[00:24:58] Speaker 06:
They could have moved the route, and in that circumstance,

[00:25:01] Speaker 06:
you would have had then a new decision by the Federal Aviation Administration, subject to its own NEPA requirements.

[00:25:08] Speaker 03:
See, that's their whole point.

[00:25:09] Speaker 03:
Their point is true.

[00:25:12] Speaker 03:
Maybe all the flights turned out to be, all 41 turned out to be manageable.

[00:25:19] Speaker 03:
In other words, they could all be flown without running, without creating a P-56 problem.

[00:25:25] Speaker 03:
But the point is that

[00:25:28] Speaker 03:
What was done in 2015, this is their argument, I'm not saying it's right, was look, FAA is now saying that all 41 of them are okay.

[00:25:40] Speaker 03:
So it was a decision, you're right, they didn't take any out, but the fact that they didn't take any out, they also said they're all okay.

[00:25:50] Speaker 03:
So it was the result of maybe not an active decision, but further testing.

[00:25:54] Speaker 03:
That's their point.

[00:25:55] Speaker 03:
What's wrong with that?

[00:25:57] Speaker 06:
Well, what's wrong with that is describing them as okay.

[00:26:00] Speaker 06:
I think it's a little over general for our purposes.

[00:26:02] Speaker 06:
The legal consequences relevant to the finality decision have to do with the agency's approval, the environmental approval of it under NEPA and the other laws, and that all happened in 2013.

[00:26:12] Speaker 06:
Those legal consequences were all established by that date.

[00:26:16] Speaker 06:
And I want to point out that the potential for future adjustments to a procedure that ends up not working out for other reasons, like security reasons or the planes not be able to fly it, always exists in every circumstance.

[00:26:30] Speaker 06:
It can't establish the basis for reasonable grounds for extending the statute of limitations.

[00:26:35] Speaker 06:
And then in the circumstance where the agency does make actual adjustments to the altitude or moves the path laterally, something that has some change to the environmental impacts, then you have to have a new decision before that new procedure goes into place and the statute of limitations would start anew.

[00:26:52] Speaker 03:
From an environmental point of view, these decisions were all made in 2013.

[00:26:57] Speaker 06:
That's exactly my point.

[00:26:59] Speaker 06:
Yes, Your Honor.

[00:27:00] Speaker 03:
And if there had been dramatic changes required by the P56 testing, then the agency would have had to undergo another process, right?

[00:27:11] Speaker 06:
That's exactly right.

[00:27:13] Speaker 03:
Okay, what's your reaction to this, the argument about, I want to ask you about the notification.

[00:27:25] Speaker 03:
The agency sent this draft D.A.

[00:27:28] Speaker 03:
to hundreds and hundreds of institutions, right?

[00:27:31] Speaker 03:
Lied dozens of libraries, all over the metropolitan area, but not one D.C.

[00:27:35] Speaker 03:
library.

[00:27:36] Speaker 03:
I mean, what were they thinking?

[00:27:38] Speaker 06:
Well, I mean, I have to cede right up front.

[00:27:41] Speaker 06:
That was very unfortunate.

[00:27:43] Speaker 06:
Yeah.

[00:27:43] Speaker 06:
We determined later it was an oversight by the contractor who used a database of county government mailing addresses.

[00:27:49] Speaker 06:
A contractor?

[00:27:50] Speaker 06:
Yes.

[00:27:51] Speaker 03:
They contract this stuff out?

[00:27:52] Speaker 06:
Most all of these new documents are contracted out.

[00:27:55] Speaker 06:
Is that right?

[00:27:55] Speaker 06:
Yes, Your Honor.

[00:27:56] Speaker 03:
Then they're reviewed by- I take it that contractor is no longer working for the FAA?

[00:28:01] Speaker 06:
This mistake will not happen again, I can tell you that.

[00:28:03] Speaker 03:
But is it fatal?

[00:28:06] Speaker 03:
And why isn't it?

[00:28:07] Speaker 06:
It's not fatal, Your Honor.

[00:28:08] Speaker 03:
Tell me why.

[00:28:09] Speaker 06:
Well, in terms of the statute of limitations question, Avia Dynamics has said that it's, quote, irrelevant whether a potential petitioner was actually notified of an agency decision.

[00:28:20] Speaker 06:
And in terms of legal notice for purposes of NEPA,

[00:28:23] Speaker 06:
and the NEPA regulatory requirements for notice, the agency satisfied those requirements.

[00:28:27] Speaker 06:
The regulation, 40 CFR 1506.6, gives the agency the discretion to use a number of options.

[00:28:33] Speaker 06:
One of them is newspaper publication, which the Supreme Court said in Kossel is adequate on its own.

[00:28:38] Speaker 03:
You know, I get all that.

[00:28:40] Speaker 03:
And I asked Mr. Adams all those questions.

[00:28:42] Speaker 03:
But here we have a situation where

[00:28:48] Speaker 03:
You would be in a much better position if all you had done, if all the agency had done was publication and some minor outreach.

[00:28:56] Speaker 03:
But the outreach is so distorting.

[00:29:00] Speaker 03:
And I understand your point that the contractor messed up, but it does leave an odd impression about what the agency was trying to do here, right?

[00:29:12] Speaker 06:
I understand readily why residents of Northwest DC have a bad taste in their mouth from the way this process went out.

[00:29:19] Speaker 06:
But to answer your Honor's question, I don't think that's true.

[00:29:21] Speaker 06:
I think that the additional notice to other jurisdictions by the FAA augments its compliance with its obligations.

[00:29:31] Speaker 01:
The problem you have with that argument is we can't impose procedural requirements on an agency beyond what the agency or the statute requires, but the agency

[00:29:41] Speaker 01:
can raise the standards itself.

[00:29:45] Speaker 01:
And if the agency has adopted what is effectively a different and new standard, there's a serious question as to whether you can do that and exclude affected parties.

[00:29:54] Speaker 01:
That makes no sense.

[00:29:56] Speaker 01:
So we're going to allow the cross-examination is not required under the statute.

[00:30:01] Speaker 01:
But we're going to have cross-examination in our procedures.

[00:30:04] Speaker 01:
But if you're from DC, you can't engage in cross-examination.

[00:30:09] Speaker 01:
That would fail arbitrary and capricious in a heartbeat.

[00:30:11] Speaker 01:
And that's essentially what they're arguing.

[00:30:13] Speaker 01:
It was the agency's decision to increase their procedural outreach.

[00:30:20] Speaker 01:
Their choice, statute didn't require it.

[00:30:22] Speaker 01:
They did it, but they excluded us.

[00:30:25] Speaker 01:
That's a compelling argument.

[00:30:27] Speaker 06:
It is, Your Honor.

[00:30:28] Speaker 06:
It's not quite analogous to the circumstances here, though.

[00:30:31] Speaker 06:
The order, the FAA order in question, addressing the agency's obligation to notify the public and engage the public, does so in general terms and doesn't include specific procedures such as you must under all circumstances mail to all elected officials in local communities.

[00:30:46] Speaker 01:
It does say that that's appropriate.

[00:30:47] Speaker 01:
No, no, no.

[00:30:48] Speaker 01:
If an agency, in fact, during the course of the proceedings said, you know, we're going to do this, which is beyond what

[00:30:54] Speaker 01:
We might normally require, but for this event, this is what we're going to do.

[00:30:58] Speaker 01:
We're going to have broad, broad outreach beyond just publication in the newspapers.

[00:31:03] Speaker 01:
And it's true, it's not in the statute, and we don't normally do it that way, but in this project we are.

[00:31:08] Speaker 01:
But incidentally, not D.C.

[00:31:11] Speaker 01:
And it's no answer that the contractor didn't do it.

[00:31:15] Speaker 06:
If this court were to write an opinion that said that the agency's doing some additional work and doing it improperly or failing to do it well in particular circumstances.

[00:31:25] Speaker 01:
No, no, no.

[00:31:26] Speaker 01:
The agency used a disparate approach in adopting enhanced procedures.

[00:31:31] Speaker 01:
That's what we would say.

[00:31:32] Speaker 01:
Oh, that's easy to write.

[00:31:33] Speaker 01:
Don't test me there.

[00:31:35] Speaker 01:
I can write it.

[00:31:37] Speaker 01:
That's not a challenge.

[00:31:38] Speaker 01:
I'm just curious what your answer is.

[00:31:40] Speaker 06:
For purposes of NEPA, it would be illegally disparate if we had refused to accept comments from DC or had structured the publication in such a way so that they could not participate in the process.

[00:31:53] Speaker 03:
Well, that's their argument.

[00:31:54] Speaker 03:
Their argument is that you gave notice to most of the people who got the notice were people who weren't as affected by noise as are the residents of Georgetown.

[00:32:04] Speaker 03:
And they didn't get, their public, their representatives didn't get notice.

[00:32:08] Speaker 06:
It isn't as a factual matter accurate that the people who did receive notice were less affected by noise.

[00:32:15] Speaker 06:
This is a study area of four states and four major airports.

[00:32:18] Speaker 06:
There were a lot of noise concerns around.

[00:32:19] Speaker 01:
It doesn't matter.

[00:32:20] Speaker 01:
Let's assume they're all equally affected, but we're going to take out D.C.

[00:32:25] Speaker 01:
That's the question.

[00:32:26] Speaker 01:
How did that happen, you say?

[00:32:28] Speaker 01:
Where's that coming from?

[00:32:29] Speaker 01:
And if you look at it in terms of the agency has the right, we can't do it, the agency has a right under the law, they apparently felt they did, to adopt procedures even beyond those which the statute and their written regs require, and they do it, but in doing it they say, but not D.C.

[00:32:50] Speaker 06:
If they adopted a procedure for notice, they follow a procedure.

[00:32:58] Speaker 06:
I think those are legally distinct, I think, for important reasons.

[00:33:01] Speaker 01:
Well, you know, I could say, use the cross-examination example.

[00:33:07] Speaker 01:
We're not adopting that, but in the course of these hearings, we're going to follow a procedure is, if you're from DC, you can't cross-examine.

[00:33:15] Speaker 06:
I think a judge making that requirement would be very different or an authority figure.

[00:33:20] Speaker 01:
But again, I think you have to return to the fact that if legal notice is sufficient and comments are accepted from any interested member of the public, that's... Obviously, someone in the agency or on behalf of the agency thought that whether or not the normal notice is sufficient, more is better, so we're going to do it.

[00:33:42] Speaker 01:
That's your problem.

[00:33:44] Speaker 01:
So the fact that it might have been sufficient and survived review is not the question I've been struggling with.

[00:33:49] Speaker 01:
It's when an agency makes a decision, prophylactic or otherwise, either itself or on its own or on its behalf, that more is really better here.

[00:33:57] Speaker 01:
It's such an important issue.

[00:33:58] Speaker 01:
So we're going to outreach beyond what we might otherwise do.

[00:34:03] Speaker 01:
But don't do it with D.C.

[00:34:05] Speaker 01:
That's strange.

[00:34:06] Speaker 06:
Well, it would be – I mean, it was strange, obviously, to say that.

[00:34:11] Speaker 06:
It was unfortunate.

[00:34:13] Speaker 06:
But the question is whether it violates any requirement of NEPA's notification requirements.

[00:34:17] Speaker 01:
No, that's not the question.

[00:34:19] Speaker 01:
It's an arbitrary and capricious question.

[00:34:23] Speaker 01:
Well, then I think we – You can go beyond statutory requirements unless there's something in the statute that says, to the agency, you cannot.

[00:34:30] Speaker 01:
And I don't see that.

[00:34:32] Speaker 06:
then I think it's worth considering whether there was any prejudicial error that resulted from it.

[00:34:37] Speaker 06:
If you look at Appendix 4 of the Environmental Assessment, it's some 50 pages of the precise type of noise impacts at very specific addresses, including hundreds throughout D.C.

[00:34:48] Speaker 06:
That is precisely the information the petitioners have said they wanted to see analyzed as a result of implementation of these routes.

[00:34:55] Speaker 06:
And in fact,

[00:34:56] Speaker 06:
The agency did produce that information and did disclose it publicly.

[00:35:00] Speaker 06:
And then there's been no indication that it is improperly modeled or designed, except for the question of the environmental baseline, which was resolved in the briefs.

[00:35:11] Speaker 06:
The fact is that the actual information, the environmental information sought by petitioners is available in that document.

[00:35:18] Speaker 03:
Are you talking about the underlying evaluation of these flights?

[00:35:25] Speaker 03:
The one that said, here let me just say, this is the EA which compared 0% laser utilization to 88%.

[00:35:36] Speaker 03:
That's the document you're talking about, right?

[00:35:38] Speaker 03:
Yes, sir.

[00:35:38] Speaker 03:
Okay, but in your brief you tell us that, quote, the input files, I take it that's what this is,

[00:35:45] Speaker 03:
You say that they committed no error, but then you say that the results are difficult to replicate on paper.

[00:35:52] Speaker 06:
I'm sorry, I didn't mean to say that the results were difficult to replicate.

[00:35:55] Speaker 06:
The results are replicated in the EA, but that 0 to 88 percent comparison is something you have to see on screen as the proprietary software models, right?

[00:36:03] Speaker 03:
Well, how can we evaluate it if we can't read it?

[00:36:08] Speaker 06:
Much less the public.

[00:36:10] Speaker 06:
If Your Honor's consideration of the case turns on that, we can reproduce that model and show you some demonstratives.

[00:36:17] Speaker 06:
The problem we had in this case is that we didn't know this misunderstanding existed until the opening brief was filed.

[00:36:23] Speaker 03:
Well, but you're challenging the adequacy of the environmental assessment, and this is the basis of it, and you haven't provided it to the Court in any way we can read it.

[00:36:33] Speaker 03:
Is that right?

[00:36:34] Speaker 06:
It's not like it's classified.

[00:36:40] Speaker 03:
You say difficult to replicate.

[00:36:44] Speaker 03:
Is that because it's a lot of technical charts?

[00:36:46] Speaker 03:
We live and die with charts here at the DC Circuit.

[00:36:50] Speaker 03:
What is it that you can't replicate for us?

[00:36:53] Speaker 06:
Yeah, it's mostly just huge spreadsheets of certain aircraft at certain weights and certain velocities and dates and temperature variations or whatever.

[00:37:02] Speaker 06:
We could have done all that, but there was, again, we didn't know this was the specific issue that we raised until the opening brief.

[00:37:09] Speaker 06:
The petitioners got and received extra time and an extra copy of those files.

[00:37:13] Speaker 06:
You know, after they saw our response brief, and we asked them directly, do you have everything you need to look at this?

[00:37:21] Speaker 06:
Can you understand this?

[00:37:22] Speaker 06:
And we were told yes.

[00:37:23] Speaker 06:
And then the reply brief said, in fact, no.

[00:37:26] Speaker 06:
What was that thing about us?

[00:37:29] Speaker 06:
Again, I'm happy to volunteer some demonstrative exhibits.

[00:37:32] Speaker 06:
We want to rerun the software program.

[00:37:34] Speaker 06:
But I think this steps past something that is important to remind the court, which is that there isn't any evidence that this was done incorrectly.

[00:37:43] Speaker 06:
The correct model that was required by law was used.

[00:37:46] Speaker 06:
The results are all produced in the EA in a form anyone can understand.

[00:37:50] Speaker 06:
You can look at the address closer to your house and see what the anticipated change in noise is and what your DNL level is.

[00:37:56] Speaker 06:
And the agency has explained precisely what process it used during the commuter modeling process, a process that this Court has repeatedly said is entitled to deference unless there are some clearly arbitrary and capricious methods in which that was employed.

[00:38:11] Speaker 01:
Can the agency action in a case like this be arbitrary and capricious even though it's consistent with the environmental models?

[00:38:26] Speaker 01:
There's a question as to whether they raised that claim precisely, but there certainly was final agency action in 2015.

[00:38:33] Speaker 01:
The question is, can you have a claim suggesting that what was done in 2015 was arbitrary and capricious, whether or not it fit the NEPA models?

[00:38:46] Speaker 01:
In other words, if I'm writing the brief, I say, yeah, I acknowledge we didn't meet that time limit.

[00:38:51] Speaker 01:
That's not what we're doing.

[00:38:53] Speaker 01:
This is a different final action, and we're challenging it.

[00:38:55] Speaker 06:
The publication of the – you're asking if the publication of the procedures in 2015 could be arbitrary capricious.

[00:39:01] Speaker 06:
Right.

[00:39:02] Speaker 06:
Apart from the – Assuming there's some federal law to apply, the answer is yes.

[00:39:08] Speaker 01:
But you would have to have – Well, the federal law to apply would be the APA and arbitrary capricious review with respect to final agency action.

[00:39:14] Speaker 06:
Right, and so then you would have to still engage in the finality question and ask what?

[00:39:19] Speaker 01:
Well, it's final.

[00:39:20] Speaker 01:
The action is final.

[00:39:21] Speaker 01:
But you want to have the publication of the routes.

[00:39:23] Speaker 06:
Right, but the publication of the routes only has very specific legal consequences, right?

[00:39:27] Speaker 06:
The publication of the charts is information for air traffic controllers and pilots.

[00:39:32] Speaker 06:
And if there were some error there that affected some injured party, they could sue about that.

[00:39:37] Speaker 06:
But they couldn't sue and say the agency's decision years ago

[00:39:42] Speaker 06:
To approve these environmentally in its own compliance with environmental statutes is arbitrary and capricious because of the way you wrote these charts.

[00:39:49] Speaker 06:
It would be arbitrary and capricious because of the agency's NEPA document and the process it went through before reaching the decision.

[00:39:55] Speaker 01:
No, I'm just asking the question, can you take it from the NEPA context and find arbitrary and capricious claims that are not about NEPA?

[00:40:03] Speaker 01:
I'm potentially injured by what the agency has done here.

[00:40:07] Speaker 01:
I don't care what NEPA says.

[00:40:09] Speaker 01:
This is going to affect me, my community, whatever, and I'm challenging it.

[00:40:14] Speaker 01:
They kept all of these routes.

[00:40:16] Speaker 01:
I understand that NEPA tentatively approved them, but I'm now challenging them on other grounds.

[00:40:23] Speaker 06:
It depends on the grounds.

[00:40:25] Speaker 06:
Obviously, the answer is yes.

[00:40:27] Speaker 06:
But if the claim is I'm affected by the noise from these aircrafts, that's a NEPA challenge.

[00:40:33] Speaker 01:
So you are saying they didn't really raise the one that I'm suggesting hypothetically?

[00:40:37] Speaker 06:
No, they certainly didn't.

[00:40:38] Speaker 03:
Their argument has always been about aircraft noise, which is exclusive to... I just have one last, maybe minor question, but could you say something about this letter from the NWAA?

[00:40:49] Speaker 03:
Certainly, yes.

[00:40:51] Speaker 06:
Councilman Evans wrote the airport authority and the airport authority wrote back,

[00:40:56] Speaker 06:
And what the airport authority says it did was that it consulted historical records of flights, meaning flights before the Metroplex was in place, because obviously this preceded that decision.

[00:41:06] Speaker 06:
And then it called the air traffic control tower at National Airport and it asked them, are there any construction projects that might have changed the way you're departing aircraft?

[00:41:14] Speaker 06:
And the tower said no.

[00:41:15] Speaker 06:
And that was the extent, based on the letter, which is all the evidence we have, the extent of its discussion with the FAA.

[00:41:22] Speaker 06:
So the FAA was never asked prior to the Metroplex decision, are you about to issue some sort of big decision?

[00:41:30] Speaker 06:
Are you considering changes in the future?

[00:41:32] Speaker 06:
And if so, what are they?

[00:41:35] Speaker 06:
You would need that evidence in the record to find there was some failure of notice on the part of the FAA here.

[00:41:40] Speaker 03:
Okay.

[00:41:42] Speaker 05:
Thank you.

[00:41:43] Speaker 05:
Thank you.

[00:41:43] Speaker 06:
Thank you, Your Honor.

[00:41:45] Speaker 05:
Does Mr. Adams have any time?

[00:41:48] Speaker 05:
Why don't you take two minutes?

[00:41:59] Speaker 02:
Thank you, Your Honor.

[00:42:01] Speaker 02:
Let me briefly follow up on two points in the discussion just completed.

[00:42:06] Speaker 02:
So Your Honor, Judge Tatel asked about the Supreme Court case involving the EPA and newspaper notice.

[00:42:16] Speaker 02:
And one thing I just wanted to add is the EPA, so the same agency at issue in that case, told the FAA at the beginning of this

[00:42:28] Speaker 02:
environmental review process, that this was the kind of project that was sensitive enough to require public workshops, right?

[00:42:35] Speaker 02:
So newspaper and website wasn't going to be enough.

[00:42:37] Speaker 02:
They didn't say it in those words, but they encouraged the public workshops.

[00:42:40] Speaker 03:
What the EPA thinks about something like that can't possibly affect the legal question we have to answer here, right?

[00:42:48] Speaker 03:
I mean,

[00:42:49] Speaker 03:
Why do we, why is that relevant?

[00:42:54] Speaker 03:
From the legal point of view.

[00:42:56] Speaker 02:
From the legal point of view?

[00:42:56] Speaker 03:
Yeah, from the question we have to answer.

[00:42:58] Speaker 03:
I agree with you that it makes what the FAA did even odder, since they had another agency saying you needed to do more outreach, but how does that affect our application of the binding legal principles, namely that publication's sufficient?

[00:43:14] Speaker 02:
So, Your Honor, I would note that the newspaper publication case was a Clean Water Act case.

[00:43:21] Speaker 02:
What we're dealing with here is the National Environmental Policy Act, the purpose of which is different from the Clean Water Act, and the Supreme Court has said that public involvement is at the center of that purpose.

[00:43:31] Speaker 02:
NEPA provides agencies some discretion in the context of an EA, though not an EIS, about exactly how to involve the public, and that makes sense because EAs cover a very wide range of projects, right?

[00:43:47] Speaker 02:
So it's got to be, the public outreach used has to be appropriate to the project type.

[00:43:52] Speaker 02:
Here, you have a project that, as Your Honor has pointed out, is very broad.

[00:43:56] Speaker 02:
touches on an issue of great sensitivity to the general public and is part of a process that includes interagency interaction and comment and you have a sister agency saying in this context, you know, we think that the outreach needs to be greater.

[00:44:13] Speaker 03:
And, okay, what's your response to what Mr. McFadden told me about the letter from MWAA?

[00:44:21] Speaker 02:
Well, we just have a fundamental difference of view on what that letter says and how it would be interpreted.

[00:44:31] Speaker 02:
Perhaps that's natural because Mr. McFadden is looking at it from the FAA's perspective, but we would submit in the context of reasonable grounds what's important is our perspective, whether we behaved reasonably.

[00:44:43] Speaker 02:
And from that perspective, it's hard to imagine.

[00:44:48] Speaker 03:
I agree with you about that, by the way.

[00:44:50] Speaker 03:
That's exactly right.

[00:44:51] Speaker 03:
But what in the letter supports your argument that you behaved reasonably?

[00:44:55] Speaker 03:
His point is this didn't really have anything to do with noise.

[00:45:00] Speaker 02:
We would dispute that, Your Honor.

[00:45:02] Speaker 02:
It's sort of hard to imagine how someone could be concerned about departing flights from national and have it be viewed that that wasn't a question about noise.

[00:45:13] Speaker 03:
He said, we checked with the tower and found that there's no construction.

[00:45:17] Speaker 03:
Right?

[00:45:18] Speaker 03:
That was one thing.

[00:45:21] Speaker 02:
So, Your Honor, Councilman Evans' initial inquiry

[00:45:29] Speaker 02:
was very clearly about noise, and it asked in the context of this noise inquiry whether there were new flight paths or what was going on at national.

[00:45:45] Speaker 02:
While it's true that the phrasing of the MWA letter could be interpreted, as Mr. McFadden has done, as saying the only thing that MWA asked FAA about directly was construction projects,

[00:46:00] Speaker 02:
We just don't think that's a reasonable characterization of the back and forth here.

[00:46:06] Speaker 02:
I mean, this was clearly about noise and it was always about noise.

[00:46:10] Speaker 02:
This isn't happening in a vacuum.

[00:46:11] Speaker 02:
Noise in Northwest DC is an issue of great community sensitivity.

[00:46:18] Speaker 02:
Everybody knew that was an inquiry about noise issues.

[00:46:24] Speaker 02:
Your Honors, I know I'm again running short on time, but I just wanted to say one quick thing about Avia Dynamics, which is sort of at the core of the FAA's discussion about notice and reasonable grounds.

[00:46:36] Speaker 02:
And I would just point out that there's some very significant factual distinctions between that case and this one.

[00:46:43] Speaker 02:
So that was a case where the petitioner had actual notice of the final order

[00:46:49] Speaker 02:
within the 60-day period, didn't consult an attorney for 49 days, ended up filing in the wrong court, and at the end of the process, wound up outside the 60-day window.

[00:47:01] Speaker 02:
Its only argument in that case was, the petitioner's only argument, was that it didn't have actual notice right at the start of the 60-day window, and so that 60 days should have been told.

[00:47:14] Speaker 02:
And Judge Henderson, your opinion, I think, said

[00:47:17] Speaker 02:
that that argument failed because, quote, we have heretofore found that reasonable grounds only in cases in which the petitioner attributes the delay to more than simply ignorance of the order.

[00:47:28] Speaker 02:
And we would submit that we have done that here.

[00:47:30] Speaker 02:
This isn't just ignorance of the order.

[00:47:33] Speaker 02:
We, our elected representative, inquired.

[00:47:37] Speaker 02:
There is this disparate treatment in the notice process.

[00:47:41] Speaker 02:
We are not in a situation where we're just saying, we didn't happen to get your letter in time.

[00:47:46] Speaker 02:
I know I'm over time.

[00:47:48] Speaker 02:
I apologize, Your Honors, unless there are any further questions.

[00:47:51] Speaker 05:
I don't think so.

[00:47:52] Speaker 02:
Thank you.

[00:47:53] Speaker 05:
Thank you, Your Honor.