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Regulatory: FAA Reauthorization Act exempts next-gen airspace redesign projects from environmental review

Claims the exemptions are to streamline and reduce waste

Superseding its own wide-ranging mandate to the executive branch of the U.S. government to carefully study the environmental impacts of that branch’s administrative actions, Congress on Feb. 6 enacted the FAA Modernization and Reform Act of 2012. The act’s stated purpose is to “authorize appropriations to the Federal Aviation Administration for fiscal years 2011-2014” It is, however, other provisions of the legislation that most profoundly affect the public.

Purportedly to “streamline programs, create efficiencies, reduce waste and improve safety and capacity,” the act exempts all new area navigation (RNAV) and required navigation performance (RNP) procedures—which, collectively, comprise the Next Generation Air Transportation System (NextGen) definitions—from environmental review under the National Environmental Policy Act (NEPA).

Nor do the conditions on a finding of categorical exclusion, such as the requirement for a measurable reduction in fuel consumption, carbon dioxide or noise, mitigate the adverse impacts of the exemption, as the determination that those conditions exist is within the exclusive discretion of the FAA administrator, the same party charged with implementing the NextGen program.

Finally, § 505 amends 49 U.S.C. § 47504 to allow the Federal Aviation Administration to “disregard any decrease or increase in the fair market value of the real property caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for the project. . .”

Contributing Author

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Barbara Lichman

Barbara Lichman, Ph.D., is of counsel in the Orange County office of Buchalter Nemer representing public entities, land developers, airlines, airport owners/sponsors, municipalities, ports,...

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