Monday, August 1, 2011
Blog readers interested in the role of environmental regulation in the aviation sector may want to read Timothy R. Wyatt's paper, Balancing Airport Capacity Requirements with Environmental Concerns: Legal Challenges to Airport Expansion (July 4, 2011) (available from SSRN here). From the abstract:
Regulatory agencies such as the Federal Aviation Administration (FAA) must balance the need to expand airport capacity with concerns about environmental impact. This balance is governed by the National Environmental Policy Act (“NEPA”), which establishes the environmental review procedures governing airport development activities that receive federal funding. This paper presents a comprehensive empirical study of legal challenges to airport expansion, focusing on the influence of environmental procedural statutes such as NEPA, as well as substantive environmental law including requirements in the federal airport funding statutes to minimize adverse environmental impacts. All known reported court opinions since the enactment of NEPA involving environmental challenges to airport construction and physical expansion were reviewed and characterized with respect to the factual background of the case, the form of the legal challenge, and the disposition of the reviewing court. A statistical regression analysis was performed to determine which factors significantly influence a court’s decision to approve the environmental review or to enjoin airport expansion pending further environmental review. The analysis demonstrates that environmental challenges to airport expansion have become significantly less likely to succeed over time, due in part to 2003 legislative changes requiring a coordinated environmental review process coordinated by the FAA, and granting exclusive jurisdiction to the U.S. Courts of Appeals for review of FAA final decisions. Environmental plaintiffs facing such a difficult judicial forum should focus their legal challenges on the most statistically effective arguments: that the FAA failed to adequately consider cumulative environmental impacts, and to a lesser degree, that the FAA or airport proprietor has failed to take every reasonable step to minimize the adverse environmental impact of airport expansion.