As the first community to instigate litigation against the FAA in the wake of NextGen, the City of Phoenix entered uncharted waters. When the FAA instituted the new NextGen flightpaths in September 2014, the City of Phoenix sued in the U.S. Court of Appeals For The District of Columbia Circuit in June 2015. Among other findings, the Court found that “by keeping the public in the dark, the agency (FAA) made it impossible for the public to submit views on the project’s potential effects – views that the FAA is required to consider.”

The Court also found that by changing routes that had been in place for a long time, on which the City had relied while setting its zoning policy and people had relied on when buying affected homes, and by increasing air traffic over 300% in some cases, the FAA knew that there would be a “potential for controversy” but did not notify local citizens and community leaders of the proposed changes as the agency was obligated to, much less allow citizens and leaders to weigh in. The FAA was required to change flightpaths back to their pre-NextGen routes.

The City of Phoenix was luckier and maybe a bit smarter than other cities – in filing their lawsuit quickly, they were able to avoid a statute of limitations standard for filing cases against a federal regulatory agency (even though, technically, they did miss the statute of limitations). In contrast, other communities choose to work with the FAA in good faith to help alleviate the problems caused by NextGen in the belief that the FAA genuinely wanted to work with them. Instead, the FAA promised to “engage” in community roundtables and “work towards” a solution that would alleviate the unbelievable air and noise pollution caused by NextGen. Yet several years and tens of thousands of meeting hours later, the FAA did nothing.

To more than a few casual observers, this does appear to have been the FAA’s plan all along – to promise to community groups to “take into consideration” their recommendations to make changes to reduce the air and noise pollution, but instead to simply sit on any and all recommendations, until communities just give up and sell their homes at a loss (if they can sell them), deal with increased health risks from highly-elevated targeted levels of toxic emissions, or simply be driven a bit mad over time from the ceaseless noise assault. It seems very likely at this stage the FAA never had any plans to make any proactive changes to the incredible problems caused by NextGen, unless absolutely forced by Congress or the judicial system.

The FAA’s computer modeling that NextGen would create “no new noise” and impose no significant changes was demonstrably false, as evidenced by the thousands upon thousands of new noise and air pollution complaints being lodged across the country. The computer modeling uses many flawed data assumptions that are heavily skewed to the benefit of the FAA – including an allowance for an “average” of 65 decibels (vs the 55 decibel norm more commonly  used by other countries when modeling airplane noise). Allowing for an “average” of 65 decibels means that hundreds of planes flying these concentrated NextGen routes can be far louder than 65 decibels as long as the “average” is 65 decibels. When the FAA says that NextGen sufferers are “only” being subjected to a constant stream of noise at 65 decibels – they’re leaving out the part about that being the average. Half the planes could be, and frequently are, far louder than that. 

Note to federal, state and community regulators everywhere: It’s these kinds of actions that make communities and individuals so sue-happy in America. If a major federal regulatory agency can so clearly operate in bad faith with hundreds of thousands of taxpaying American citizens, why would communities ever bother trying to negotiate or compromise in good faith? Why not instead simply always move straight to litigation? The dockets in American courtrooms are crowded enough – they don’t need to be weighed down further by a million pre-emptive lawsuits against federal regulatory agencies whom citizens now have to assume will operate in bad faith.

The bottom line is this: the FAA’s computer modeling around NextGen was demonstrably based on flawed (or heavily biased) data assumptions. NextGen is having enormous detrimental impacts on communities across the country, and if the federal court system is going to refuse to help impacted communities because of an arbitrary 60-day statute of limitations period, then Congress and local government is going to have to step up and help their constituents.

Also, worth noting is this – if nothing is done, this is likely just the first wave of lawsuits against the FAA. The next round will be around regulatory takings on behalf of homeowners, public nuisance, public health, etc. This doesn’t have to happen – if the FAA would just work with communities to come to solutions, this could all be avoided.