June 2020 Update: L.A.'s Lawsuit Against the FAA

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RECAP:  Los Angeles residents organized and joined the nation wide outcry against the implementation of the change in incoming flight paths called NextGen.  This change created a superhighway of single lane flights over residents from Malibu, Santa Monica, Culver City and Los Angeles.


The flights from the north and west flew towards downtown LA where they would turn and join incoming flights from the east to land at LAX.  Planes cut a path over once quiet neighborhoods every 3 - 5 minutes throughout the day at nerve wracking altitudes of  between 3,000 and 5,000 feet. 

The city officials rallied in response to citizen outrage, and eventually the City Attorney got involved with a lawsuit against the Federal Aviation Administration (FAA), the architects of NextGen.


The FAA responded to the inital brief by the City accusing the FAA of failing to do a legally required, environmental review, by claiming it was just a little mistake. They offered to correct it by doing one now for the record to avoid all the expenses involved if the court should proceed against them with the lawsuit. The following is the City's attorney's response to the FAA:

"FAA documents show that an FAA environmental specialist, Ryan Weller, and his staff concluded in 2018 that FAA did not conduct an environmental review prior to its decision to adopt three flight procedures for aircraft arriving at Los Angeles International Airport (the Arrival Routes). Weller and his staff memorialized that conclusion in a memorandum to FAA headquarters, just weeks before Weller drafted and released a document to Los Angeles that FAA described (Case: 19-71581, 06/05/2020, ID: 11712781, DktEntry: 54, Page 2 of 24 2) as a “confirmation” of a supposed earlier environmental decision pursuant to the National Environmental Policy Act (NEPA), (42 U.S.C. §§ 4321 et seq.)

Los Angeles presented the memorandum and other agency documents to FAA counsel in December 2019 and requested that they be added to the administrative record. FAA declined. Since that time, FAA has delayed this proceeding in an effort to devise an explanation for its decision to approve the Arrival Routes without first conducting an environmental review, and to justify its “confirmation” of an environmental review that never existed.

Now, FAA contends that the personal notes of a former employee, Janelle Cass—that do not appear to have been released to the City prior to the commencement of this litigation—are in fact the agency’s formal documented decision under NEPA. To provide that support, FAA does not offer a statement from Cass, who purportedly prepared the notes. Instead, FAA seeks to supplement the record with the declaration of Ryan Weller (Weller Declaration) in which Weller describes what he believes are the meaning of Cass’s personal notes prepared sometime in 2017.

Unfortunately for FAA, the record contains no evidence to support FAA’s contention that the notes are its NEPA decision document, and the Weller Declaration is a remarkable display of agency gumption and post-hoc rationale. Weller admits that he and his colleagues—though responsible for conducting the Case: 19-71581, 06/05/2020, ID: 11712781, DktEntry: 54, Page 3 of 24 3 environmental review of the Arrival Routes—did not know Cass had prepared personal notes in an Excel sheet and did not know whether any review of the Arrival Routes had been conducted.

Weller has no firsthand knowledge of the notes, their content, or their meaning. Nothing in the record supports Weller’s speculative retelling of what he thinks Cass might have done or should have done to comply with NEPA. Weller, notably, does not assert that Cass’s notes were reviewed by anyone else at the agency, including the unidentified official responsible for the Arrival Routes decision. The Court must confine its review of an agency’s decision to the administrative record in existence at the time of the decision, not a new record made exclusively to justify the agency action for the reviewing court. Therefore, the Court should deny FAA’s cross-motion to supplement the record with FAA’s inadmissible, post-hoc rationalization."
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Established in August of 2008 by writerartist Dianne V. Lawrence, The Neighborhood News covers the events, people, history, politics and historic architecture of communities throughout the Mid-City and West Adams area in Los Angeles Council District 10.

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