March 2020 MCQSC Special Update: Court Rules State of Maryland Cannot Take Legal Action Against the FAA

In 2015,  as we all are painfully aware, the FAA consolidated and shifted the south-flow approach procedures into Reagan National Airport (DCA) over Montgomery County communities without providing any public notice or opportunity for community engagement.  

Years of prodding by dedicated community members and our elected representatives ultimately revealed the fact that the FAA failed to conduct any level of environmental review prior to implementing the changes to approach procedures, despite federal laws requiring it to do so. 

Accordingly, on June 26, 2018, Maryland filed a petition with the U.S. Court of Appeals challenging the FAA’s 2015 changes to DCA approach procedures.

Yesterday, the court dismissed Maryland's petition as untimely because Maryland filed its petition after the 60-day filing deadline set forth in the statute of limitations imposed by Congress.

The court rejected Maryland's position that it had "reasonable grounds” for filing after the 60-day limitations period.  Maryland argued that the FAA essentially did to Maryland what it did in the case successfully filed by the City of Phoenix: string the State along with indications that the agency would consider flight procedure adjustments. Unfortunately, the court found the 6-month delay in Phoenix more palatable than the 2.5-year delay here. 

Another difference in the cases, according to the court, is that the City of Phoenix remained in "near constant engagement" with the FAA whereas Maryland did not.  The heroic efforts of our dedicated Montgomery County representatives, who worked diligently for years to obtain the most basic information from the FAA about the procedure changes that had been made, and who attended CWG meetings consistently for years as well, were not considered to be consistent State engagement.  

Despite the court's ultimate decision to dismiss the case based on the late filing, the court admonished the FAA's actions.  The court mentioned that the FAA displays a “pattern” of “serial promises” that the agency is considering community noise concerns. The court also recognized the FAA's lack of environmental analyses in this case as well as in the Citizens of Georgetown and the City of Phoenix cases.  The court states that, “the FAA appears to have given short shrift to the required environmental analyses,” but only the City of Phoenix filed a "timely" petition, which is why the court was able to find that the FAA did not meet its environmental review mandate in that case.   

Additionally, the court recognized that the 60-day window is short "especially for local governments and citizens groups" (NO KIDDING!) and cautioned the FAA that "the short review period is a shield, not a sword" and "does not authorize the FAA to lull potential petitioners into believing that its actions remain non-final in order to ward off a timely challenge."

Although the court will not rule on the merits of Maryland’s case due to the late filing, this decision is by no means a rubber stamp for the FAA’s actions. We hope that this decision will encourage the FAA to work with communities and elected representatives in a transparent manner to implement new procedures that mitigate noise, undergo necessary environmental review and result in more equitable noise burdens.