[00:00:04] Speaker 00:
Case number 16-1377 at L. Donald A. Vaughn, Petitioner versus Federal Aviation Administration at L. Ms.

[00:00:13] Speaker 00:
Lichtman, for Petitioner, City of Culver City, California.

[00:00:16] Speaker 00:
Mr. Taylor, for Petitioners, SMCCA at L. And Mr. McBadden, for the respondents.

[00:00:39] Speaker 04:
Good morning, Your Honors.

[00:00:41] Speaker 04:
If it pleases the Court, the best way to introduce this case is to tell you that it's City of Phoenix v. Huerta on steroids.

[00:00:51] Speaker 04:
This case involves

[00:00:53] Speaker 04:
18,000 square miles, 21 airports, and countless millions of people.

[00:01:00] Speaker 04:
In Phoenix v. Huerta, this court found that common sense didn't allow a finding of no significant environmental impact when it involved one airport and a 300% increase in noise complaints here at 693%.

[00:01:18] Speaker 04:
Huge project.

[00:01:19] Speaker 04:
Why is this important?

[00:01:20] Speaker 07:
Actually, I'm not sure about that statistic.

[00:01:23] Speaker 07:
I want to ask you about that We're told that there's the sevenfold increase in complaints received by the city city of Los Angeles Yes, but it's not also the case that in the order the FAA said by the way If you have any complaints don't send them to us send them to the city And that's why so so there may have been no increase in complaints.

[00:01:44] Speaker 07:
They're just going to the city now We just don't know

[00:01:47] Speaker 04:
But the city in its amicus brief reported that during the period of November 2016 to November 2017, it had received 2,936, approximately, complaints about noise.

[00:02:02] Speaker 04:
And during that second, before that period, it had received 2,936.

[00:02:07] Speaker 04:
During that one year period, 29,000.

[00:02:11] Speaker 07:
And how many went to the FAA before the order issued?

[00:02:15] Speaker 07:
We don't know.

[00:02:17] Speaker 07:
Oh, you do know.

[00:02:18] Speaker 04:
That's right, because the FAA referred all complaints to the City of Los Angeles.

[00:02:23] Speaker 07:
I'm saying before it did that, do we know how many complaints it was receiving?

[00:02:27] Speaker 04:
We don't, because the FAA didn't report it.

[00:02:29] Speaker 07:
So they might have been receiving just as many and said, you're sending them the wrong place, send them to the city.

[00:02:35] Speaker 04:
Might have, but that would be speculation.

[00:02:36] Speaker 07:
The evidence is that... No, no, the speculation that there's been an increase.

[00:02:39] Speaker 07:
We don't know what the baseline is.

[00:02:41] Speaker 04:
Now, we know only the baseline of the city of Los Angeles, which was the receptor of complaints.

[00:02:49] Speaker 07:
After the point, pardon me, as of the point when they were referred.

[00:02:52] Speaker 04:
After implementation, it was the receptor of complaints for reasons that are as yet unexplained.

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In any event, why that is important is because this project was treated by the FAA as if it were a one-airport project,

[00:03:10] Speaker 04:
Why do we say that?

[00:03:12] Speaker 05:
Because, for instance, the FAA used... I'm just curious.

[00:03:17] Speaker 05:
Are you starting with this argument because you've made a lot of arguments in your brief.

[00:03:22] Speaker 05:
Is this your strongest argument?

[00:03:24] Speaker 04:
The fact that it was a major project that was treated as a one-airport project.

[00:03:28] Speaker 05:
Yeah.

[00:03:28] Speaker 05:
Is that the strongest?

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In other words, if you want us to look at your most powerful argument, is it this one?

[00:03:34] Speaker 04:
The failure of the FAA to use the proper model for a project of this scope by its own regulations, that is the strongest argument.

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It is entitled to no deference because it has eschewed its own regulation.

[00:03:49] Speaker 07:
Is this the nurse versus AEDT?

[00:03:52] Speaker 04:
Correct, Your Honor.

[00:03:54] Speaker 04:
That's correct.

[00:03:55] Speaker 04:
And where an agency basically.

[00:03:57] Speaker 04:
I'm sorry, I didn't.

[00:03:58] Speaker 04:
This is which argument?

[00:04:00] Speaker 04:
Which one?

[00:04:00] Speaker 04:
This is the noise argument.

[00:04:02] Speaker 04:
The noise argument.

[00:04:02] Speaker 05:
That's correct.

[00:04:03] Speaker 05:
Using one model instead of the other.

[00:04:06] Speaker 04:
Well, it's not quite that simple, Your Honor.

[00:04:08] Speaker 05:
I assumed he'd say that.

[00:04:10] Speaker 05:
I was hoping you would agree with me that that was the issue, but I guess not.

[00:04:13] Speaker 07:
Go ahead.

[00:04:14] Speaker 07:
Is it NERS versus AEDT or is it DNL versus CNAEL?

[00:04:17] Speaker 07:
No, no, no, no.

[00:04:18] Speaker 05:
It's NERS versus AEDT.

[00:04:20] Speaker 04:
Okay, got it.

[00:04:21] Speaker 04:
We're not discussing CNAEL today.

[00:04:23] Speaker 05:
Okay.

[00:04:24] Speaker 05:
I want to hear your argument about that.

[00:04:26] Speaker 05:
I really do.

[00:04:26] Speaker 05:
But what do you do with the agency's argument that, hey, they did both tests and the results were basically the same?

[00:04:34] Speaker 04:
Because when they did it, it was 2017.

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And if you will note, there is no reference to the record where the public or decision makers for the public could make any assessment of the integrity of that 2017 study.

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Have you pointed out in your brief any defects in it?

[00:04:53] Speaker 05:
I take your point about that.

[00:04:55] Speaker 05:
But do you see any problems with what they did?

[00:04:58] Speaker 05:
With what?

[00:04:58] Speaker 05:
I'm sorry, Your Honor.

[00:05:00] Speaker 05:
with the use of, you said, well, the public hadn't had an opportunity to comment on the agency's conclusion that the use of the second technique, yeah, that they both showed essentially the same results, no significant impact.

[00:05:19] Speaker 05:
And I take your point that the public didn't have an opportunity to comment.

[00:05:22] Speaker 05:
I was just asking you whether

[00:05:24] Speaker 05:
you see any defects in, whether you've identified any defects in what the agency did.

[00:05:30] Speaker 04:
The agency didn't provide that.

[00:05:32] Speaker 04:
We don't know if there are defects or no defects.

[00:05:35] Speaker 04:
That's the problem.

[00:05:36] Speaker 07:
The whole thing is extra record.

[00:05:38] Speaker 04:
That particular study is, yes.

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And so we had no opportunity to analyze it and find if there were any defects or if their conclusions were in fact correct.

[00:05:49] Speaker 04:
And in any event, even if we had been given that study in 2017, it would have been too late because the project was already implemented by that time.

[00:05:56] Speaker 07:
Okay, so their answer, as I recall, is the timing was such that NERS was appropriate.

[00:06:03] Speaker 07:
The March 12 cutoff date for switching to ADT exempted studies already underway, loosely speaking, and this was already underway.

[00:06:16] Speaker 04:
That's what they say, but let me explain why that is not correct.

[00:06:19] Speaker 07:
Now, you made a distinction between screening and analysis, which is a little difficult.

[00:06:29] Speaker 07:
But then they come back and say, well, look, twice the contractor, ATAC, submitted to the agency a request to make variations in the NARS, for instance, certain aircraft.

[00:06:41] Speaker 07:
couldn't be modeled within the confines of NERS.

[00:06:44] Speaker 07:
So they're going to use substitutes.

[00:06:46] Speaker 07:
And the FAA said, OK, go forward with NERS using those substitutes.

[00:06:50] Speaker 04:
Well, that's right.

[00:06:51] Speaker 04:
That's the fox guarding the hen house, isn't it?

[00:06:54] Speaker 04:
Because here's why that doesn't work.

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Number one, they made ATAC was their own concern.

[00:07:00] Speaker 07:
Is the fox invoking the exemption for approvals that are given?

[00:07:05] Speaker 04:
Well, that's a little different.

[00:07:06] Speaker 04:
Those are two separate arguments.

[00:07:08] Speaker 04:
The exemptions, which were supposedly done in advance, were in fact done in 2015 and 2016, which was far along in the process by the time that they had already used NERS for three years.

[00:07:21] Speaker 04:
when they should have been using AEDT.

[00:07:23] Speaker 04:
So those exemptions were not prior exemptions, they were post-exemptions.

[00:07:27] Speaker 07:
Well, they're not prior to when the FAA claims was when they initiated, right?

[00:07:33] Speaker 07:
There's sort of ratifications in the midstream of this thing.

[00:07:36] Speaker 03:
Well, they said they got them.

[00:07:37] Speaker 07:
As a practical matter, the FAA didn't say, wait a minute, you should have been to the office, you should have been using AEDT.

[00:07:44] Speaker 04:
They should have said that because they didn't get it.

[00:07:47] Speaker 04:
The FAA attests that it got the approvals in advance.

[00:07:52] Speaker 04:
In advance were the words.

[00:07:54] Speaker 04:
They didn't.

[00:07:55] Speaker 07:
They got it in advance of making these substitutions, I guess.

[00:07:58] Speaker 04:
Well, they got it in advance of proving.

[00:08:02] Speaker 04:
But the analysis was way far along.

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And here's why.

[00:08:05] Speaker 04:
I would point out to you that that analysis was inappropriate for a project of this scope.

[00:08:11] Speaker 04:
The model itself was inappropriate, but here's the reason.

[00:08:14] Speaker 04:
All of us lawyers who have been to law school learned in the first year what the essence of legal analysis is.

[00:08:22] Speaker 04:
It's IRAC, issue, rule, analysis, conclusion.

[00:08:26] Speaker 04:
In order for there to be a real analysis, there has to be a rule and there has to be evidence to apply to the rule.

[00:08:35] Speaker 04:
Here, in technical analysis, there has to be a model, i.e.

[00:08:40] Speaker 04:
the rule, and data, i.e.

[00:08:44] Speaker 04:
the evidence.

[00:08:45] Speaker 04:
According to the FAA, that data was not collected and input into the model until December 2012.

[00:08:54] Speaker 07:
Maybe input, but they started collecting it a good deal earlier, it seems to me.

[00:08:58] Speaker 04:
Well, they may have started collecting it, but they didn't calibrate the model until December 2012, seven months after

[00:09:05] Speaker 04:
they had approved the use of AEDT for projects of this scope.

[00:09:10] Speaker 04:
In other words, they ignored it.

[00:09:10] Speaker 07:
Do you know the answer to this?

[00:09:11] Speaker 07:
If you're using, depending upon which of those two models you're using, would you collect somewhat different data?

[00:09:17] Speaker 04:
Pardon me, I'm sorry.

[00:09:18] Speaker 07:
Would you collect somewhat different data depending upon which model you're going to use?

[00:09:22] Speaker 04:
Presumably not.

[00:09:24] Speaker 04:
But frankly, I'm not the technician on this case, so I can't answer that question with specificity.

[00:09:30] Speaker 04:
I can only say that when you start calibrating a model is when analysis begins under our own model of analysis of legal issues.

[00:09:43] Speaker 04:
It's the same thing.

[00:09:51] Speaker 04:
I don't hear any more questions.

[00:09:54] Speaker 05:
Thank you.

[00:09:54] Speaker 05:
We're here for your colleague.

[00:10:04] Speaker 02:
Good morning, your honors.

[00:10:06] Speaker 02:
May it please the court, I'm going to address the non-NEPA issues.

[00:10:12] Speaker 02:
The non what?

[00:10:13] Speaker 02:
Non-NEPA.

[00:10:14] Speaker 02:
Oh, NEPA, yeah.

[00:10:15] Speaker 05:
But before you do that, I want to ask you a question about a section in your brief that I thought was intriguing.

[00:10:21] Speaker 05:
It starts on page 45, and it's entitled, deference to FAA technical determinations contravenes most basic policies of separation of powers.

[00:10:33] Speaker 05:
You know what section I'm talking about?

[00:10:35] Speaker 02:
That was a section that was drafted by Ms.

[00:10:39] Speaker 02:
Lichtman.

[00:10:40] Speaker 05:
Oh, so do you not want me to ask you a question about it?

[00:10:45] Speaker 05:
Well, I'll ask you the question and then if you can't answer it, we can ask her.

[00:10:49] Speaker 05:
I mean, you cite a dissent by then Judge Gorsuch about Chevron deference.

[00:10:57] Speaker 05:
in that section.

[00:10:59] Speaker 05:
Is this case about Chevron deference?

[00:11:02] Speaker 05:
Isn't this all about interpreting agency regulations and review of agency fact-finding?

[00:11:10] Speaker 02:
I'm sorry, Your Honor.

[00:11:11] Speaker 02:
I can't answer that question, unfortunately.

[00:11:14] Speaker 05:
Let's get that reply.

[00:11:15] Speaker 05:
Yeah.

[00:11:16] Speaker 05:
We'll go ahead then.

[00:11:18] Speaker 02:
Okay.

[00:11:19] Speaker 02:
The issue that I would like to address is the fact that apart from NEPA, federal law requires that the FAA protect people on the ground from the effects of the noise and emissions pollution.

[00:11:32] Speaker 02:
The Century of Aviation Reauthorization Act of 2003, otherwise known as Vision 100, specifically requires the FAA to consider to the greatest extent practicable the design of airport approach and departure flight paths that reduce exposure of the noise and emissions pollutions of affected residents.

[00:11:55] Speaker 02:
The FAA has failed to do this in this case.

[00:11:59] Speaker 02:
What they have done is they have stated that they have completed their NEBA obligations and created no significant increase in noise, but they haven't looked at the possibility that they could design approach and departure flight routes that would reduce noise and emission.

[00:12:22] Speaker 05:
And what's your best authority for the proposition that when the FAA undertakes a project designed to improve

[00:12:28] Speaker 05:
aircraft efficiency, which is what this was, right?

[00:12:32] Speaker 05:
That's what this was.

[00:12:33] Speaker 05:
What's the best authority for the proposition that in doing that, it has to, in addition to making sure it doesn't increase noise, it has to find ways to reduce noise?

[00:12:44] Speaker 02:
What's the best authority?

[00:12:45] Speaker 02:
The best proposition lies with the Statute, the Vision 100 Statute, which mandates, where Congress mandated that the FAA consider to the greatest extent practicable the

[00:12:58] Speaker 02:
to design approach and departure routes that reduce noise, specifically mentions that their reduction of noise is a mandatory consideration.

[00:13:14] Speaker 07:
No, no, not consideration, not reduction.

[00:13:17] Speaker 07:
consideration to the greatest extent practicable.

[00:13:19] Speaker 02:
Correct.

[00:13:19] Speaker 02:
I mean, obviously, the Supreme Court in Lockheed terminal case, city of Burbank versus Lockheed terminal, said that the FAA has to balance safety and efficiency with the protection of people on the ground from an aviation noise.

[00:13:36] Speaker 02:
And this, so the consideration is obviously meant to be a balance with

[00:13:44] Speaker 02:
with safety and efficiency.

[00:13:46] Speaker 02:
Certainly there will be cases where the safety and efficiency outweigh the reduction of noise or the protection of people on the ground.

[00:13:59] Speaker 02:
But in this case, they didn't even consider any possible departure or approach routes that would reduce noise.

[00:14:14] Speaker 02:
And they specifically say this in their comments.

[00:14:18] Speaker 07:
They did not try to reduce the increase.

[00:14:21] Speaker 02:
They said that there would be no significant increase.

[00:14:25] Speaker 07:
Right, but then they moved one of the locations, you know, what was it, Wiffy, something or other, in Culver City, right, they moved that a half mile or something specifically in order to reduce the increase.

[00:14:39] Speaker 02:
Correct.

[00:14:40] Speaker 02:
I believe that that was what they said in the reply brief was that there would still be no significant increase in noise.

[00:14:47] Speaker 02:
But there was no discussion in the environmental assessment or anywhere else that they looked at the reduction of noise as a possibility, that they balanced the balance.

[00:15:02] Speaker 02:
Reduction below the no action alternative.

[00:15:05] Speaker 02:
That's what you want, right?

[00:15:07] Speaker 02:
below the no action alternative.

[00:15:09] Speaker 02:
Well, yes.

[00:15:10] Speaker 02:
The status quo.

[00:15:12] Speaker 02:
The status quo.

[00:15:13] Speaker 02:
That there was no attempt to reduce noise.

[00:15:19] Speaker 02:
They stated that they've looked at noise, that they've considered noise, but they didn't look at the reduction of noise.

[00:15:26] Speaker 02:
And that's an important distinction because what Congress mandated was that they look at the reduction of noise rather than

[00:15:34] Speaker 02:
just the significant increase.

[00:15:38] Speaker 02:
These issues were raised in comments to the FAA and their response was that there would be no significant increase in noise.

[00:15:52] Speaker 02:
And this goes back to the, as I said, the Lockheed terminal case where there must be a balance between the safety and efficiency of the routes and the protection of people on the ground.

[00:16:16] Speaker 02:
And in this case,

[00:16:18] Speaker 02:
And in this case, there has been no balancing between the protection of people on the ground and the safety and efficiency.

[00:16:28] Speaker 02:
While the Southern California Metroplex project may comply with NEPA, federal law goes beyond NEPA and requires that the FAA, too, at the very least, consider designing flight routes that reduce aviation noise and emissions in order to protect the people on the ground.

[00:16:47] Speaker 02:
Because the FAA has failed in this instance to meet that low standard, its action is arbitrary and capricious.

[00:16:55] Speaker 02:
The FAA's decision should be set aside and further implementation of the Metroplex project should be

[00:17:04] Speaker 02:
and joined until it complies with federal law.

[00:17:08] Speaker 07:
Is it your position that even if the FAA found there would be literally no increase in noise or emissions, that they would still have failed in their obligation to consider sort of looking for reductions?

[00:17:25] Speaker 02:
Put that way, yes, it would be.

[00:17:29] Speaker 02:
The important thing here is that they consider the reduction of noise, that they use some kind of metric which they had available to them to show that they considered it, they looked at it,

[00:17:49] Speaker 02:
It wasn't practical.

[00:17:50] Speaker 02:
They did the balancing.

[00:17:52] Speaker 02:
They did the balancing test, and it wasn't, it wasn't practical.

[00:17:59] Speaker 07:
Was it you or your colleague who, oh, I'm sorry, somebody else?

[00:18:03] Speaker 07:
Was it you or your colleague who was to address the CNEL argument?

[00:18:12] Speaker 07:
Excuse me?

[00:18:12] Speaker 07:
The argument about the DNL versus the CNEL?

[00:18:16] Speaker 02:
Yes.

[00:18:17] Speaker 02:
That's an argument that Ms.

[00:18:19] Speaker 02:
Litchfield.

[00:18:19] Speaker 02:
All right.

[00:18:19] Speaker 02:
Good.

[00:18:19] Speaker 02:
I'm going to ask her.

[00:18:20] Speaker 05:
So I just want to pursue this for just a second.

[00:18:23] Speaker 05:
So I want to ask you about the statute.

[00:18:24] Speaker 05:
So the NextGen program has these seven goals, right, that Congress adopted for the

[00:18:32] Speaker 05:
Correct.

[00:18:33] Speaker 05:
And one of them, as you point out, is to the extent practical, reduce exposure of noise.

[00:18:42] Speaker 05:
That's one of the seven goals, right?

[00:18:43] Speaker 02:
That's correct.

[00:18:44] Speaker 05:
Okay.

[00:18:45] Speaker 05:
Is there anything in the statute that says that the FAA has to consider all seven of them in every

[00:18:51] Speaker 02:
Well, the beginning of the section says these are the goals of next gen, and it says the FAA shall, and then there's a list of, I believe, seven goals.

[00:19:11] Speaker 05:
I mean, it did this to improve efficiency.

[00:19:14] Speaker 05:
It undertook this to improve efficiency and quality of service and to take advantage of more sophisticated GPS data.

[00:19:22] Speaker 05:
Those were its two goals, right?

[00:19:25] Speaker 05:
Your position is it has to consider all seven.

[00:19:29] Speaker 02:
Yes, to the extent practical that all seven, not all seven in each project will be applicable to the development of flight routes.

[00:19:42] Speaker 02:
And the seventh goal, the consideration of noise and protection of people on the ground,

[00:19:49] Speaker 02:
is specifically conditioned on the development of flight routes and flight paths, approaches and departures.

[00:20:00] Speaker 02:
It states that if the FAA is doing that, then it must consider, to the greatest extent practical, the reduction of noise and emissions.

[00:20:12] Speaker 02:
Thank you, Your Honor.

[00:20:13] Speaker 05:
Thank you.

[00:20:14] Speaker 05:
We'll hear from the government.

[00:20:22] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:20:25] Speaker 01:
My name is Lane McFadden.

[00:20:26] Speaker 01:
I represent the Federal Aviation Administration and the Federal Respondents.

[00:20:31] Speaker 01:
I'd like to begin with Vision 100 and Congress's requirement that the agency consider, to the extent practicable, the effects of noise impacts on people when designing new flight routes.

[00:20:40] Speaker 01:
This project always did have that in mind.

[00:20:42] Speaker 01:
The study team report explains that at the very beginning, that was considered a major constraint on the design of the project.

[00:20:48] Speaker 01:
I can see that at JA-98 and 99.

[00:20:50] Speaker 01:
The FAA could have radically reimagined the airspace of Southern California, designing only the most direct routes possible without consideration of existing land uses.

[00:20:59] Speaker 01:
That's not at all what this project was.

[00:21:01] Speaker 01:
This project kept flights in historic flight corridors and rewrote the procedures to take advantage of automated flight systems, GPS technology, and all of the modern advancements in the way that procedures can be designed and flown.

[00:21:14] Speaker 07:
On looking at 98 and 99, can you point to your

[00:21:18] Speaker 07:
Yes, Your Honor.

[00:21:20] Speaker 01:
At 98, this is the study team's report about how they developed the original iterations of this project.

[00:21:25] Speaker 01:
In the middle of the page, Section 3.3, Assumptions and Constraints, explains that it was always important when designing possible procedures to look at for introduction into a project to avoid any that would have significant

[00:21:37] Speaker 01:
environmental impacts, which were noise and air pollution.

[00:21:40] Speaker 07:
And then on the next page, they explain that the way... You're missing the argument here, which is not that you didn't try to avoid

[00:21:52] Speaker 07:
greater increases, but rather that you didn't look for reductions.

[00:21:56] Speaker 01:
Right.

[00:21:57] Speaker 01:
Well, so then we'll turn to the text of the statute itself, which does not require that.

[00:22:00] Speaker 01:
You'll see that the requirement to consider safety, security, efficiency, are written in more hortatory language.

[00:22:08] Speaker 01:
The agency, I forget if it's shall or must consider those.

[00:22:12] Speaker 01:
But then goal seven, the reduction in noise, is something that must be considered to the extent practicable.

[00:22:18] Speaker 07:
It simply is not... The greatest extent practicable.

[00:22:20] Speaker 07:
Yes.

[00:22:21] Speaker 07:
We say it's not a goal, it's just a consideration.

[00:22:24] Speaker 01:
Well, I think those are somewhat synonymous.

[00:22:27] Speaker 01:
I mean, it is a goal to consider it, and so I think we've demonstrated that.

[00:22:32] Speaker 01:
It is not a plausible reading of the statute.

[00:22:33] Speaker 01:
The agency must reduce the noise.

[00:22:36] Speaker 07:
So if you had two alternative ways to increase operational efficiency,

[00:22:45] Speaker 07:
One of which would actually reduce emissions, noise or pollutants, and the other of which would not.

[00:22:52] Speaker 07:
Would you not be obliged to take the one that reduces emissions, again assuming operational efficiency is unchanged?

[00:23:01] Speaker 01:
If they were otherwise identical, I think you would, yes, because it would be practicable to do so.

[00:23:07] Speaker 07:
Okay, so now when they're not exactly the same, what we have is you have alternatives and you look for the one that increased emissions the least, but you didn't ask whether there were things you could do to reduce emissions, correct?

[00:23:24] Speaker 07:
Below the status quo.

[00:23:27] Speaker 01:
I still think that's consistent with the statute.

[00:23:29] Speaker 01:
I mean, there is a difference between asking whether we can do things that reduce noise and environmental impacts and then proposing procedures that would do so, because there weren't any procedures that could be proposed that fit within the constraints of this airspace and all of the safety and separation rules, all of the many rules that apply.

[00:23:47] Speaker 07:
Is that to be found in the reported decision?

[00:23:50] Speaker 01:
There are, and we cite in our, it's not stated that explicitly in the reported decision.

[00:23:54] Speaker 01:
We cite in our brief the records of the study team as they were considering various proposals where the agency had rejected certain proposals because they wouldn't meet the safety and efficiency requirements.

[00:24:07] Speaker 01:
And the white paper that accompanies the final environmental assessment addresses specific comments that ask for specific changes to affect the community noise and some of those could be adopted and some of them couldn't.

[00:24:18] Speaker 01:
And so there's a discussion in that paper about why it is that some moves that would have reduced noise or would have shifted, more likely, the noise to another community was unsafe for one reason or another.

[00:24:29] Speaker 01:
It would mix with traffic from another airport.

[00:24:31] Speaker 01:
It would be in a different classification of airspace.

[00:24:33] Speaker 01:
There were various reasons why it couldn't be done.

[00:24:35] Speaker 07:
But had it been done, it would have actually reduced.

[00:24:40] Speaker 01:
I think there were some proposals that were thought to have actually reduced noise, yes.

[00:24:43] Speaker 01:
And where do I find that?

[00:24:44] Speaker 01:
I'm afraid I don't have the record citation for me.

[00:24:47] Speaker 01:
It's mentioned in our brief as the white paper that accompanies the final environmental assessment.

[00:24:52] Speaker 01:
It's discussed in the section where we talked about the movement of the Cliffy Waypoint, which affected Culver City and did satisfy the purpose and need of the project and also further reduce the increase in noise.

[00:25:04] Speaker 01:
But the airspace is simply too congested and too complex to allow the number of operations that come in and out of there, it's millions a year, to continue and also to do so in a way that completely reduces noise impacts in total.

[00:25:19] Speaker 01:
Completely reduces?

[00:25:20] Speaker 07:
No, that's not the... Any reduction was the goal.

[00:25:26] Speaker 01:
I mean, there are areas where there were reductions, and there are areas where there were increases.

[00:25:30] Speaker 01:
And I understand their argument to be that the agency has to totally, has to result in a net decrease in noise overall.

[00:25:37] Speaker 07:
Well, consider whether it can.

[00:25:39] Speaker 01:
Consider whether it can.

[00:25:42] Speaker 01:
So I think the record amply demonstrates that it was the practicability of that was considered, and the agency did what it could to accommodate those concerns.

[00:25:51] Speaker 01:
And that's all that's statutorily required.

[00:25:54] Speaker 07:
Could you give us that record citation before you leave?

[00:25:58] Speaker 07:
Yes, sir.

[00:26:03] Speaker 07:
Turning, I suppose, to the... And your friends on the other side as well.

[00:26:08] Speaker 07:
Sorry?

[00:26:09] Speaker 07:
And notify your friends on the other side as well.

[00:26:11] Speaker 01:
Yes, of course.

[00:26:14] Speaker 01:
Turning to the use of the noise integrated routing system, as Your Honor correctly pointed out, that was something provided for in the guidance memo starting in March 2012, except for in two situations.

[00:26:26] Speaker 01:
One is where you'd already begun your noise analysis, which this project had,

[00:26:29] Speaker 01:
And the other is where you receive advanced written approval from the Office of Environment and Energy, which eventually the FAA did get before its decision was made, which is what the timing is necessary to comply with that.

[00:26:40] Speaker 01:
But overarching all of this is that repeatedly today it was described as a regulatory requirement, which is inaccurate.

[00:26:46] Speaker 01:
This is an internal FAA guidance memo asking its own internal components to use the AEDT going forward from a certain date for certain projects.

[00:26:57] Speaker 01:
But there wasn't any legal violation at issue here, and as Your Honors pointed out, nor was there any prejudicial harm accompanying it.

[00:27:06] Speaker 01:
Of the 342,000 individual grid points where noise was individually measured, three of them turned out to be different when this project was evaluated under AEDT as opposed to when it was evaluated under NEERS.

[00:27:20] Speaker 07:
Well, the evaluation under AEDT is not in the record.

[00:27:24] Speaker 01:
It's not, Your Honor.

[00:27:25] Speaker 01:
It's post-decisional.

[00:27:26] Speaker 07:
And so the... So I don't know how we're supposed to consider that.

[00:27:29] Speaker 01:
Well, it only matters as to remedy, Your Honor.

[00:27:33] Speaker 01:
It doesn't affect whether the agency's NEPA compliance was valid.

[00:27:38] Speaker 01:
That stands on its own, and that's because the use of NERS was appropriate at the time.

[00:27:42] Speaker 07:
Yeah, that would moot the question about the ADT if using NERS was appropriate.

[00:27:47] Speaker 07:
Now, your claim was that you got advance approval, but advance of what?

[00:27:51] Speaker 01:
advance of the decision being made, of the record of decision, which relies on the information from the model.

[00:27:56] Speaker 07:
Is that what the regulation says?

[00:27:58] Speaker 07:
Is that what the regulation says, an advance of the decision being made?

[00:28:01] Speaker 01:
It doesn't specify.

[00:28:02] Speaker 07:
I thought it said an advance of the analysis being done.

[00:28:05] Speaker 07:
Is that not correct?

[00:28:07] Speaker 07:
Let's take a look at that.

[00:28:12] Speaker 01:
It simply says, except where advanced written approval has been granted, do you use an equivalent methodology and computer model?

[00:28:18] Speaker 01:
And it doesn't specify the time.

[00:28:19] Speaker 07:
So using the methodology, that's what has to be in advance of using the methodology.

[00:28:26] Speaker 01:
That is one reading, yes.

[00:28:28] Speaker 07:
And so I think maybe the... And what you got was in advance of substituting A320s for A380s.

[00:28:33] Speaker 07:
Right.

[00:28:34] Speaker 01:
And so I think those are best understood as a ratification of the agency's decision to continue using the model it had already been using.

[00:28:41] Speaker 01:
Because it had been using

[00:28:42] Speaker 01:
in 2011 to screen these proposed procedures to see if they would comply with the constraints of the project, one of which was to always avoid the possibility of significant environmental impacts.

[00:28:53] Speaker 01:
And that's a clearly defined threshold established by federal regulation that's, I think, well understood here.

[00:28:59] Speaker 01:
And so the ones that advanced to the proposed alternative stage were those that wouldn't approach that threshold and didn't cause those noise concerns.

[00:29:08] Speaker 01:
So there had to be noise analysis done to know that.

[00:29:11] Speaker 01:
They point out in the reply brief that a noise screen is overly simplistic, but the record explains this at J66, that it's simplistic in the sense that it always tries to capture the worst case scenario.

[00:29:23] Speaker 01:
A noise screen is a rough way to measure noise that assumes the worst, so you're never going to accidentally miss a potentially significant impact.

[00:29:31] Speaker 01:
And then if you get to that point, then you can do a more detailed analysis and learn more about it.

[00:29:35] Speaker 01:
But the noise screen is a form of noise analysis.

[00:29:38] Speaker 01:
It uses a computer model to tell you what the noise is going to be.

[00:29:41] Speaker 01:
That's what the point of all of these efforts are.

[00:29:43] Speaker 01:
And those indicated the proposed alternative would not cause a significant noise increase, which was born out to be true.

[00:29:55] Speaker 01:
Turning briefly to Your Honor's questions about deference, this isn't a case about statutory or regulatory interpretation.

[00:30:02] Speaker 05:
I think Marks v. Oregon Natural Resources Council... Well, wait, we just finished a discussion about how to interpret the next-gen statute, right?

[00:30:12] Speaker 05:
Didn't we?

[00:30:13] Speaker 01:
I suppose that's right, yes.

[00:30:15] Speaker 01:
I mean, it hadn't been argued to that specifically.

[00:30:18] Speaker 01:
But that is a statute that is directed at the FAA.

[00:30:21] Speaker 01:
And so if you think this term's ambiguous, I suppose Chevron deference might apply in that circumstance.

[00:30:27] Speaker 01:
I don't see any ambiguity in the Congress's direction to take account of noise to the extent practicable.

[00:30:34] Speaker 01:
That doesn't require an overall reduction in noise, as has been suggested.

[00:30:38] Speaker 01:
It requires consideration.

[00:30:42] Speaker 01:
mitigated, I suppose, by practicability.

[00:30:45] Speaker 01:
We haven't had, we haven't argued that there's any ambiguity that requires agency difference in that context.

[00:30:50] Speaker 05:
And there is... I misunderstood your point.

[00:30:53] Speaker 05:
Is it your argument then that the agency did take it into account to the extent practical?

[00:30:59] Speaker 05:
Yes.

[00:31:00] Speaker 05:
Okay.

[00:31:00] Speaker 05:
And you're going to give us that site, right?

[00:31:03] Speaker 01:
Well, yes, Your Honor.

[00:31:04] Speaker 01:
I mean, I think the Page of the Study Team report I cited at J98-99, I think, does indicate that, that one of the guiding principles at the very beginning of the process was avoiding significant noise impacts, which means that you're thinking about... Well, no, that's avoiding increasing noise.

[00:31:22] Speaker 05:
Their argument is that you have an affirmative duty to reduce noise.

[00:31:27] Speaker 01:
I do not have a record citation for the proposition that the agency looked for procedures specifically that would reduce status quo laws.

[00:31:39] Speaker 05:
I thought your argument was under the statute the agency isn't obligated to consider all seven of these.

[00:31:45] Speaker 05:
Is that correct?

[00:31:46] Speaker 01:
The obligation is different.

[00:31:48] Speaker 01:
The obligation to consider noise to the extent practical is different than the obligation to improve safety, which is mandatory.

[00:31:55] Speaker 01:
They are phrased in different ways.

[00:31:57] Speaker 01:
It's true both that not all seven goals will be applicable, but of course goal seven noise is somewhat applicable here because there's always the potential for noise changes if you change inner traffic procedure.

[00:32:08] Speaker 01:
We're not arguing it's inapplicable.

[00:32:09] Speaker 01:
We're arguing that the imposition on the agency is less because the way that the requirement is phrased requires consideration and doesn't mandate a reduction in the way that the petitioners have suggested.

[00:32:23] Speaker 05:
I was simply asking, therefore you have to point to something in the record where the agency considered it and decided it wasn't practical.

[00:32:31] Speaker 07:
I thought that's what you were doing when you said you didn't have it immediately at hand but referred to the document.

[00:32:37] Speaker 07:
I think it begins at 335.

[00:32:38] Speaker 05:
Yeah, is that what the document is?

[00:32:41] Speaker 07:
The document at 335?

[00:32:42] Speaker 07:
Yeah, I thought that's what you were referring to, maybe not.

[00:32:54] Speaker 01:
Yes, that is evidence of that consideration.

[00:32:59] Speaker 01:
That is in response to comments, if that's the document I believe that it is, the white paper accompanying the final EA.

[00:33:05] Speaker 07:
Oh, is this the one in which the Culver City point was moved, the WIFI?

[00:33:10] Speaker 01:
Yes, it's one of the, but they're not the only one described in that document.

[00:33:13] Speaker 01:
There are other proposals considered in that document as well.

[00:33:17] Speaker 01:
And some were accepted and some could not be accepted.

[00:33:20] Speaker 01:
And all of them were proposals designed to reduce noise impacts on a specific community.

[00:33:25] Speaker 01:
And some of them were inconsistent with design criteria and safety goals.

[00:33:29] Speaker 01:
And some of them were implemented as an example of the agency taking the public comment process quite seriously and adjusting its procedures in response to those comments and concerns.

[00:33:42] Speaker 01:
So I do think that document, I appreciate you pointing that page number out, starting at J335 is the best evidence of that consideration.

[00:33:51] Speaker 01:
All right.

[00:33:51] Speaker 01:
So no need to be identifying that.

[00:33:54] Speaker 07:
Before you leave, you've done so.

[00:33:55] Speaker 07:
I'll just ask you about the argument that has not been made today, but it's in the briefs, about the failure to use the CNEL noise metric.

[00:34:15] Speaker 07:
That, I didn't understand why, I think your argument was the standards that you're supposed to meet and that determine whether you have a significant impact and so on are all expressed in terms of the other metric.

[00:34:29] Speaker 07:
That's right, yeah.

[00:34:30] Speaker 07:
What is it called, the GBL?

[00:34:31] Speaker 01:
DNL.

[00:34:32] Speaker 07:
DNL.

[00:34:33] Speaker 07:
And that you couldn't use the CNEL, therefore, to determine that.

[00:34:38] Speaker 07:
That struck me as something like saying, well, the standards are all in English units, so we couldn't use meters.

[00:34:44] Speaker 07:
We had to use yards.

[00:34:45] Speaker 07:
But of course you could use meters and then translate them into yards.

[00:34:49] Speaker 01:
Well, sure, I think it could have been possible to express things in terms of both metrics, but since you would ultimately have to do the conversion back to DNL in any event, it didn't seem necessary to use the intermediate step of a different metric.

[00:35:02] Speaker 07:
Well, you'd get a different number, because using CNAL, you'd add 5 or 10 points.

[00:35:07] Speaker 07:
Right, so you'd have a different value.

[00:35:08] Speaker 07:
So when you converted it back to DNL, you would have a higher result.

[00:35:15] Speaker 07:
that might not have resulted in a minimal or non-significant.

[00:35:20] Speaker 01:
Well, right, and maybe that's the flaw in the analogy between English units and metric units, because it wouldn't, of course, be a direct conversion.

[00:35:26] Speaker 01:
I mean, DNL weights noise differently.

[00:35:28] Speaker 01:
So the raw numbers are the same, and then you add particular additions depending on the metric you're using.

[00:35:34] Speaker 01:
So a conversion from CNL to DNL wouldn't give you the DNL of anticipated noise impacts.

[00:35:41] Speaker 01:
It would give you some other value that doesn't match up

[00:35:44] Speaker 01:
14 CFR part 150.

[00:35:46] Speaker 01:
So we wouldn't convert them directly.

[00:35:48] Speaker 01:
You'd have to produce two different values to say, here is the DNL value, here is the CNEL value, and then everyone would just be confused as to which one they should look at and what they should know about the fact that they are different.

[00:35:58] Speaker 07:
Can we use yards and meters for a moment?

[00:36:01] Speaker 07:
Sorry?

[00:36:01] Speaker 07:
Can we use yards and meters for a moment?

[00:36:03] Speaker 07:
Sure.

[00:36:03] Speaker 07:
All right.

[00:36:06] Speaker 07:
So the standards are expressed in yards.

[00:36:10] Speaker 07:
And if you use meters, you're going to add basically 10%.

[00:36:14] Speaker 07:
And when you do that, and you translate it back into yards, 100 yards becomes 110 yards.

[00:36:22] Speaker 01:
But you're still measuring a raw linear value, and the object is as long as it is.

[00:36:27] Speaker 01:
and you can express that in different numbers.

[00:36:29] Speaker 07:
No, because there's a fictitious length added to it when you use CNEL.

[00:36:34] Speaker 07:
There's an arbitrary 5 or 10 point addition in that model.

[00:36:37] Speaker 07:
Right, exactly.

[00:36:38] Speaker 01:
But it's added to a 24-hour average.

[00:36:42] Speaker 01:
It's not added to the absolute value of noise.

[00:36:46] Speaker 05:
Why are those different?

[00:36:52] Speaker 01:
So the way that both of these metrics work is that they take the total number of single noise events over a 24-hour period and then, you know, you add to whichever ones of those events occur during certain hours of the evening, and then you average the total.

[00:37:08] Speaker 01:
And also these values are, because they're decibels, they're logarithmic, which adds some complication in the math.

[00:37:14] Speaker 01:
And so simply saying, well, you know, C&EL is higher than the DNL number, that means that the noise is louder.

[00:37:20] Speaker 01:
It's not quite that clear.

[00:37:22] Speaker 07:
It's not that it's louder.

[00:37:23] Speaker 07:
It's that it's more important because it's while people are sleeping.

[00:37:29] Speaker 01:
Right.

[00:37:30] Speaker 01:
Right.

[00:37:30] Speaker 01:
And that's why California uses it for their own projects.

[00:37:33] Speaker 01:
It gives a greater weight to people's evening time sensitivity to noise.

[00:37:37] Speaker 01:
I mean, there's no dispute that it does that.

[00:37:38] Speaker 07:
The question is whether we've got a regulation that says when you're in California, you use California standards.

[00:37:43] Speaker 01:
It doesn't say that, Your Honor.

[00:37:44] Speaker 01:
It says when California is doing a state project that requires federal approval, FAA will allow the use of CNEL.

[00:37:51] Speaker 01:
But there is no federal requirement that FAA ever use CNEL.

[00:37:54] Speaker 07:
Well, I don't know.

[00:37:55] Speaker 07:
Let's look at that.

[00:37:56] Speaker 07:
What is that, 1050 or 5050?

[00:37:58] Speaker 07:
Is that right?

[00:37:58] Speaker 01:
Yes.

[00:37:59] Speaker 01:
That's an FAA order rather than I misspoke to say that it was a regulation.

[00:38:02] Speaker 01:
Where does that appear?

[00:38:06] Speaker 01:
Let us see if we put that in the Joint Appendix.

[00:38:24] Speaker 01:
So I don't believe that the document is in the Joint Appendix, but the relevant citation is in our brief at page 36 at the top.

[00:38:34] Speaker 01:
And the airport's desk reference produced by FAAA is the Order 5050.4b, which was the one in effect at the time.

[00:38:40] Speaker 01:
Page 36?

[00:38:41] Speaker 01:
Yes, Your Honor.

[00:38:45] Speaker 01:
It states that for state-funded projects or state-involved projects, quote, FAA accepts the CNEL when a state requires that metric to assess noise effects.

[00:38:54] Speaker 07:
We're on the page, are you?

[00:38:56] Speaker 01:
I'm sorry.

[00:38:57] Speaker 01:
I think this is the top, the top two lines.

[00:39:05] Speaker 07:
All right, so that's in 50-50.

[00:39:06] Speaker 07:
I've read it.

[00:39:07] Speaker 07:
It's in the, it's in the, Ms.

[00:39:09] Speaker 07:
Lisman, do you know where it is?

[00:39:11] Speaker 03:
Well, I was going to say something.

[00:39:16] Speaker 07:
Where in the papers we've got it?

[00:39:22] Speaker 07:
It seems to me it was just a parenthetical saying, basically, that except in California where you use CNEL, and I couldn't find anything to contextualize that as you claim in the brief, that it's really only when we're dealing with, what, new facilities, I think, construction projects and so on.

[00:39:42] Speaker 01:
Well, I didn't mean to limit it to new facilities.

[00:39:44] Speaker 01:
The explanation is that FAA will accept CNEL measurements when there's a project that the state requires it.

[00:39:52] Speaker 01:
And the state of California does require it for its own project.

[00:39:55] Speaker 01:
So the state is building a runway.

[00:39:57] Speaker 01:
They'll use CNEL.

[00:39:58] Speaker 01:
And they can use CNEL under federal.

[00:40:01] Speaker 01:
They can give it to the federal agency, and the federal agency can make use of it.

[00:40:04] Speaker 01:
So it's a permissive aspect of the FAA's own internal order governing these things.

[00:40:11] Speaker 01:
But the parentheses about accepting California, I mean, for one thing, it's sort of tautological.

[00:40:17] Speaker 01:
I mean, this is a state—CNEL is a creature of the state of California.

[00:40:20] Speaker 01:
It's the California Noise EL.

[00:40:24] Speaker 01:
I regret I don't know the last name.

[00:40:26] Speaker 01:
But in any event,

[00:40:27] Speaker 01:
There isn't anything requiring the use of CNEL for federal projects in California, which this was.

[00:40:34] Speaker 01:
This isn't an exclusively federal project because it took place exclusively in the sky.

[00:40:38] Speaker 01:
49 U.S.C.

[00:40:39] Speaker 01:
4103 says that the FAA and the United States has sovereignty over all the national airspace.

[00:40:45] Speaker 01:
There was no state involvement.

[00:40:46] Speaker 07:
So you're saying it's not really in California, it's because it's in the sky?

[00:40:50] Speaker 01:
Well, I don't know the answer to that question, and I am not authorized to answer it.

[00:40:55] Speaker 01:
But I will say this.

[00:40:56] Speaker 01:
Nothing about this project required the participation of the government of California or compliance with its own state laws and regulations.

[00:41:07] Speaker 05:
OK, thank you.

[00:41:10] Speaker 01:
Thank you, Your Honors.

[00:41:11] Speaker 05:
Did Ms.

[00:41:12] Speaker 05:
Slickman or Mr. Tabert have any time left?

[00:41:16] Speaker 07:
Excuse me, may I continue with Mr. McFadden for just a moment?

[00:41:23] Speaker 07:
My able clerk has identified the location here.

[00:41:26] Speaker 07:
Here's what it says.

[00:41:28] Speaker 07:
For example, in the context of noise in airplanes and helicopters, noise sensitive areas include such areas within the DNL 65 noise contour.

[00:41:37] Speaker 07:
Peren in California use the CNEL instead of the DNL metric.

[00:41:44] Speaker 07:
It sounds like this is about noise contours.

[00:41:50] Speaker 01:
It does sound like that, Your Honor, and I think I'd have to look at the rest of the page.

[00:41:52] Speaker 01:
I mean, the citation that we provided.

[00:41:54] Speaker 07:
It's in the blue addendum at 93 and 262.

[00:42:08] Speaker 01:
Well, let me just tell you what I do know about it.

[00:42:13] Speaker 01:
I don't want to speculate about that.

[00:42:15] Speaker 01:
I mean, it was never proposed that the noise contours used for this project should have been revised from what are provided in Part 150 based on DNL.

[00:42:24] Speaker 01:
And I don't know that they could be revised by an FAA desk order when those noise contours are established by duly promulgated regulation.

[00:42:32] Speaker 01:
The 65 DNL contour is in Part 150.

[00:42:35] Speaker 01:
It is the legally relevant contour for the agency's NEPA purposes and also for many other purposes for federal funding for noise mitigation projects and et cetera.

[00:42:45] Speaker 01:
And so to the extent that the agency might consider CNEL in California, I know that it can't modify that regulatory requirement, but it certainly could take those into consideration.

[00:42:56] Speaker 01:
It could measure the noise in different ways to determine where noise-sensitive areas might lie.

[00:43:01] Speaker 01:
But what's missing from this case, even accepting Your Honor's interpretation of the FAA airport desk reference, is any indication that there were missed noise-sensitive areas or mistrawn contours.

[00:43:13] Speaker 01:
I mean, none of the noise increases at issue in this project are so close to the 65 DNL threshold that

[00:43:18] Speaker 01:
a change in the measurement might not necessarily have kicked it over.

[00:43:23] Speaker 01:
None of that triggering information is suggested.

[00:43:26] Speaker 01:
We just have the suggestion in the opening brief that CNEL would have been more informative to the people of California under the wish that we had used that.

[00:43:35] Speaker 07:
So you're saying there's no claim that it would have made a difference?

[00:43:37] Speaker 07:
That's right.

[00:43:41] Speaker 07:
Thank you.

[00:43:43] Speaker 05:
Okay, thank you.

[00:43:44] Speaker 05:
Thank you, Your Honor.

[00:43:44] Speaker 05:
So, uh, Mr. Lickman and Mr. Tape, you can each take a minute if you'd like it.

[00:43:51] Speaker 04:
Two items, if I may.

[00:43:54] Speaker 04:
One, with respect to CNEL, very important in one way, cumulative impacts.

[00:44:02] Speaker 04:
In California, every noise is analyzed under CNEL.

[00:44:06] Speaker 04:
If you are trying to do a cumulative impact analysis in California, you have to in some way compare apples and oranges.

[00:44:15] Speaker 04:
CNEL

[00:44:16] Speaker 04:
It's not the same as DNL.

[00:44:19] Speaker 04:
Therefore, we're not getting an accurate cumulative impact.

[00:44:23] Speaker 04:
If there were any cumulative impact analysis in this document for noise, you would have to use CNEL in order to properly analyze cumulative impact.

[00:44:34] Speaker 04:
That being said, one last thing.

[00:44:37] Speaker 04:
Did the screening actually equal a noise analysis?

[00:44:43] Speaker 04:
Did the what?

[00:44:44] Speaker 04:
Did the screening under NERS, starting in 2011, actually, was it actually the same as a noise analysis?

[00:44:54] Speaker 04:
The answer is in the record.

[00:44:56] Speaker 04:
The FAA has taken the position that the screening tool is a, quote, dramatic simplification of what a full and detailed noise analysis would require.

[00:45:09] Speaker 04:
That's a JA66.

[00:45:12] Speaker 07:
Yes, but I thought, if I understood counsel for the government, it's crude, but it's meant to be over-inclusive so that you don't, so that it doesn't miss things and it didn't turn anything up.

[00:45:24] Speaker 04:
missing things and analyzing things in the correct way are two entirely different matters.

[00:45:29] Speaker 07:
The question is whether, yes I understand, is the screening I thought was used to see whether where analysis is needed?

[00:45:37] Speaker 04:
Correct.

[00:45:38] Speaker 07:
Okay and so it's meant to be over inclusive

[00:45:41] Speaker 04:
That I can't say, Your Honor.

[00:45:42] Speaker 04:
I can only say it's not analysis.

[00:45:44] Speaker 04:
The only exception in the rule is for analysis beginning before 2012.

[00:45:52] Speaker 07:
This did not.

[00:45:54] Speaker 07:
I think your response when we were discussing this earlier, when Mr. McFadden alluded to it, was that ratification isn't enough.

[00:46:05] Speaker 04:
Ratification is not enough.

[00:46:08] Speaker 04:
That is correct.

[00:46:12] Speaker 05:
So Ms.

[00:46:14] Speaker 05:
Lickman, do you want to say something about this section of your brief that I asked your colleague about?

[00:46:19] Speaker 05:
I'm sorry?

[00:46:20] Speaker 05:
Deference to... Ah, yes.

[00:46:23] Speaker 05:
I want to know what support you have for the proposition that, quote, deference to FAA technical determinations contravenes the most basic constitutional policies of the separation of powers.

[00:46:38] Speaker 05:
Where does that come from?

[00:46:39] Speaker 04:
That comes from Justice Gorsuch.

[00:46:42] Speaker 04:
That's his actual quote.

[00:46:44] Speaker 04:
And he didn't say where that came from.

[00:46:47] Speaker 05:
Wasn't he talking about Chevron deference?

[00:46:50] Speaker 04:
Yes, he was, Your Honor.

[00:46:52] Speaker 05:
But that's not... So is it your position that we owe no deference to the FAA in terms of interpretation of the statute?

[00:47:03] Speaker 04:
You owe deference to the FAA in terms of interpretation of the statute.

[00:47:09] Speaker 05:
We do.

[00:47:09] Speaker 04:
You agree with that.

[00:47:10] Speaker 04:
That's correct.

[00:47:11] Speaker 04:
But not with respect to FAA actions that are inconsistent

[00:47:16] Speaker 04:
with the statute and with its own interpretation of the ambiguous statutory regulations.

[00:47:22] Speaker 05:
What about the case law in our circuit which says that we owe a great deal of deference to the FAA in terms of interpreting its own regulations?

[00:47:30] Speaker 05:
That's right, but it goes... And under the APA,

[00:47:34] Speaker 05:
We have many cases which say we owe particular deference to expert agencies when they're making technical judgments.

[00:47:40] Speaker 05:
Do you think both, do you think those are no longer operative?

[00:47:44] Speaker 04:
Now, Justice Gorsuch speaks from a theoretical perspective as I was in that section.

[00:47:49] Speaker 05:
That's a dissent, that's a dissent by the way, right?

[00:47:51] Speaker 04:
That's correct.

[00:47:52] Speaker 05:
Yeah, it's Judge Gorsuch then, correct?

[00:47:55] Speaker 05:
At the time I was in the 10th Circuit, that's correct.

[00:47:57] Speaker 05:
It's a dissent in the 10th Circuit.

[00:47:58] Speaker 05:
That's right.

[00:47:59] Speaker 05:
At the time.

[00:48:00] Speaker 05:
And what is the relevance of that to us here today?

[00:48:02] Speaker 04:
Because the Gutierrez case also covers FAA actions that are inconsistent with agencies' interpretation of ambiguous statutory provisions.

[00:48:14] Speaker 04:
In this case, the FAA

[00:48:17] Speaker 04:
interpreted and established a regulation requiring the use of the AEDT model.

[00:48:23] Speaker 04:
It used NERS instead.

[00:48:24] Speaker 04:
That was an action inconsistent with its own interpretation of the law and its requirements.

[00:48:31] Speaker 04:
Therefore, Judge Gorsuch's dissent covers the FAA's action in this case.

[00:48:41] Speaker 05:
OK.

[00:48:42] Speaker 05:
We'll hear from Mr. Tabor.

[00:48:46] Speaker 05:
Mr. Taber, you have one minute.

[00:48:54] Speaker 02:
Two points, Your Honors.

[00:48:57] Speaker 02:
With respect to the white paper and the movement of Cliffy, the conclusions that were reached in both those instances was that there was no significant increase in noise.

[00:49:09] Speaker 02:
And so therefore, the action was OK by the FAA standards.

[00:49:14] Speaker 02:
The other point that I'd like to raise is that the goals that we're talking about that we find in Vision 100, the seven goals refer to the next-gen air transportation system, and it refers to the system in general rather than specifically the development of flight paths.

[00:49:35] Speaker 02:
Number seven, the one that we were talking about about reduction of noise specifically mentions that that when you are looking at flight departure and approach routes that you have to you have to look at or consider to the greatest degree practical

[00:49:50] Speaker 02:
the reduction of noise and emissions.

[00:49:53] Speaker 07:
So the point you just made though about Cliffy and the other changes that were made, I think in response to public comment, correct?

[00:50:02] Speaker 07:
Those were efforts by the FAA to reduce the

[00:50:08] Speaker 07:
the increase, right, or alternatively to actually, yeah, to reduce the increase below what it otherwise would have been.

[00:50:18] Speaker 07:
It's just not below the status quo.

[00:50:20] Speaker 07:
Correct.

[00:50:21] Speaker 07:
Okay.

[00:50:23] Speaker 07:
That's my understanding.

[00:50:26] Speaker 05:
Okay.

[00:50:26] Speaker 05:
Thank you.

[00:50:27] Speaker 02:
Thank you.

[00:50:28] Speaker 05:
All the cases submitted.