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Making Good Decisions in the Environmental Review Process

Making Good Decisions in the Environmental Review Process. 2012 Pacific Aviation Directors Workshop. Joseph Manalili Attorney, Airports & Environmental Law. March 15, 2012. Office of the Chief Counsel.

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Making Good Decisions in the Environmental Review Process

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  1. Making Good Decisions in the Environmental Review Process 2012 Pacific Aviation Directors Workshop Joseph Manalili Attorney, Airports & Environmental Law March 15, 2012

  2. Office of the Chief Counsel The FAA Office of the Chief Counsel supports the Agency’s mission by furnishing timely and responsive legal services to the FAA Administrator and all Agency organizations at the Headquarters, Regional and Center levels. Practice Areas:Airports and Environmental Law Enforcement & Compliance Ethics International Affairs & Legal Policy Legislation Litigation & General Legal Services Office of Dispute Resolution for Acquisition Personnel & Labor Law Procurement Regulations

  3. Airports & Environmental Law ● Provides legal advice and litigation support for • Airport matters • Environmental Law matters • Airport Improvement Program (AIP) • Passenger Facility Charge (PFC) Program • Airport Compliance Program ● Attorneys review environmental impact statements and other environmental documents for airport development and airspace optimization projects. ● Attorneys also have litigation responsibilities. • Work with the U.S. Department of Justice to represent the FAA in federal court litigation concerning airport and environmental matters. • Represent the FAA in administrative proceedings concerning compliance with airport grant assurances.

  4. National Environmental Policy Act ● 42 U.S.C. §4321 (codified as 40 C.F.R. §1500) ● In 1969, NEPA, established a broad national framework for protecting our environment. NEPA's basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that could significantly affect the environment. ● NEPA requirements go into effect for projects such as • Airports • Buildings • Military Complexes • Highways, • Parkland purchases • All other Federal activities with the potential for impacts.

  5. NEPA ● NEPA is a decision-making process for Federal agencies. It establishes the requirement that all federal agencies' funding or permitting decisions be made with full consideration of the impact to the natural and human environment. ● Requires agencies disclose these impacts to interested parties and the general public. ● Mechanisms: Environmental assessments (EA's) and Environmental Impact Statements (EIS's). ● The central element in the environmental review process is a rigorous evaluation of alternatives including the "no action" alternative.

  6. NEPA ● Applies to all Federal projects in all states and territories within the jurisdiction of the United States. ● Includes Projects in: Hawaii, Guam, Northern Mariana Islands, and American Samoa. ● Does Not Include Projects in: Federated States of Micronesia, Republic of the Marshall Islands, and the Republic of Palau.

  7. NEPA-like statutes ● Hawaii – Hawaii Revised States Chapter 343 (Environmental Impact Statements) ● Palau Environmental Quality Protection Act (RPPL No1-58), 24 Palau National Code Section 101 et seq. ● Federated States of Micronesia, 25 FSMC §702 ● Republic of the Marshall Islands, 35 MIRC Ch. 1; Environmental Impact Assessment Regulations, Republic of the Marshall Islands Environmental Protection Authority (1994).

  8. Common Elements • Clearly state the purpose and need. • Consider reasonable alternatives and the “no action” alternative. • Evaluate environmental impacts of proposed action • Obtain input from the public and resource agencies. • Make an informed decision that is well-supported.

  9. Why Produce a Good Environmental Document?

  10. Enviro Document Must Be Legally Sufficient • Complies with applicable laws, regulations, executive orders, and agency guidance. • Contains adequate supporting information. • Consistent with agency policies.

  11. Why is it important? • To ensure that the environmental process is sustained if challenged in court. • To assess litigation risk and possible challenges. • To improve the environmental review process and environmental documents.

  12. Common Trouble Spots ■ Purpose and Need ■Alternatives ■Responses to Public Comments ■ Response to Resource Agency Concerns

  13. Ninth Circuit Court of Appeals

  14. Recent FAA Cases ■City of Las Vegas – departure departure procedure at McCarran; Court upheld FONSI/ROD ■County of Rockland, NY – NY/NJ Airspace Redesign Court upheld FAA decision ■West – Olympia Regional Airport; ok’d categorical exclusion. ■NRDC – Panama City airport relocation; upheld ■City of Dania Beach, FL – pending case; runway extension ■Barnes v. DOT – 9th Cir., pending case, new runway at Hillsboro Airport, OR ■ Philadelphia Airport Capacity Enhancement Project - pending ■ T.F. Green Airport in Providence, RI - pending

  15. QUESTIONS?

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