Airspace Redesign Update
Dear Friends and Elected Officials,
Michael Kelly is the Managing Partner of the firm's Delaware office and was retained by State Senator Catherine Cloutier to represent the interests of residents living in Northern Delaware. We thank Cathy and the McCarter team for all of their hard work Please stay tuned as we learn more about the FAA plans to redesign the Class B airspace in and around the Philadelphia Airport.
Attached is a Request for Rehearing that was filed yesterday in the D.C. Circuit Court of Appeals. The Request asks the Court for a rehearing of the Court's June 10 decision denying our petition. The Request was filed by 3 (of the original 11) co-petitioners and presents the following arguments in favor of a rehearing:
(1) The June 10 decision overlooks the Supreme Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) regarding FAA's responsibilities under Section 4(f) of the DOT Act of 1966, 49 USC Sec. 303(c).
(2) The Court misapprehended the law of waiver in this Circuit and the overlooked important facts in the record in holding that Petitioners had "forfeited" their claim that FAA had failed to adequately consult with state and local park officials regarding "at least 236 properties that petitioners say may be affected . . .because "no one raised it during the administrative proceeding."
(3) The Court's decision misapprehended public participation requirements of the National Environmental Policy Act ( NEPA), 42 U.S.C. 4321 et. seq. and overlooked the decisions of this Circuit regarding the rule of prejudicial error in holding that the FAA was not obligated to allow for public comment on important noise impact analysis only first released with the September 5, 2007 Record of Decision (ROD).
(4) The proceeding involves issues of exceptional importance to the public affected by the redesign project because panel excused the FAA's failure to comply with important procedural protections under Section 4(f) and NEPA depriving the 30 million people living in the 31,180 square miles of the five affected states from fully participating in a decision that affects the noise they experience and the parks they enjoy.
I will send you the FAA's and Court's responses when I receive them. Please forward this to anyone I may have left out of this email.
Theodore Annos // Associate
McCARTER & ENGLISH, LLP
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