Minutes Exhibit A
Port Commission Regular Meeting
of December 11, 2018

THE BRIEFING PROJECT EPISODE 15  SUITS
December 11, 2018

where | seekto provide
Thank you. 'm Steve Edmiston, here for The Briefing Project,
last year, from the FAA and your staff. In
the briefing you asked for, but did notreceive
30!"  titled "The Briefing You Should Have Had"  |
my very first comment on January
I'm commenting on one
stated that the briefings you received were incomplete. Today,
the type of flight procedure
of the omissions from those briefings  lawsuits over
at Sea-Tac.
changes and increased frequencies we face

Here are three considerations.

in the last four years, and
First. It is likely that with 97,000 additional annual flights
Winter in the Game of Thrones  is
another proposed 80,000, a lawsuit  just like the
This is different. Lawsuits are an
coming. This is not because we are a litigious society.
airport expansions,
integral part of a witches-brew ecosystem of FAA self-supervised
of its own conduct. The U.S. Court of
where the FAA serves as both the judge and jury
compel independent
Appeals is simply the first time any city, state, or community can
review.

certain hallmarks. Two examples.
Second. While the lawsuits are unique,they also bear
with no
Hallmark one is the use of marketing-driven community engagement playbooks
outcomes. And hallmark two is
actual weight granted to citizens in the decision-making
of economic growth and pleasing industry
an airport operatorthat elevates the goal
stakeholders over community health and environmental protection.

The best example is the FAA's
Third consideration. The right type of lawsuit works.
note the teams. Phoenix didn't partner
setbackin last year's City of Phoenix case. First,
it sued the FAA to
with the FAA,didn't yield to a vision of economic growth. Instead,
second highest court sent a powerful message
protectits citizens. And then America's
failed to identify potential harm to
that the standard FAA environmental review playbook
homes, parks, and failed to
humans, the environment, and historic neighborhoods,
Read the case.
provide for sufficient involvement ofcity officials and community groups.
It was a very angry Court of Appeals.

filed suit over BWI-Thurgood Marshall
And just last month,the entire State of Maryland
frame the FAA as a partner, didn't default
airport. Again, note the teams. Maryland didn't
of industry stakeholders. Maryland chose
to an economic growth vision or the needs
FAA including for the failure to assess
citizens and the environmentfirst and sued the
back to 2012, citing the 2017 National
the impact to the human environment dating
Defense Authorization Act.

The good news is you five can still choose your team. Thank you for providing a citizen
two-minutes to comment.


www.thebriefingproject.com

ol
12/11/2018                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

CITY OF PHOENIX PLAYS "ROGUE ONE"TO
FAA'S DEATH STAR

Steve Edmiston
Aug 31,2017 - 6 min read

The Federal Aviation Administration's relentless nationwide rollout of
satellite-navigation-based airport expansions was dealt a significant
setback in City ofPhoenix v. Huerta and FederalAviation Administration,

No. 15-1158 (D.C. Cir., August 29, 2017).












the
T he Court ofAppeals sent the FAA a powerful messagethatFAA's playbook for implementing satellite-based route changes and

12/11/2018                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

frequency increases (sometimes known as "NextGen") in Phoenix failed
to adequately identify the potential harm to humans, the environment,
and historic neighborhoods, homes, parks, and sites, and it failed to
give sufficient notice of the impacts to, and provide for sufficient
involvement of, city officials and community groups. The FAA's actions
changing flight routes and increasing flight frequencies at the
Phoenix Sky Harbor International Airportwere deemed "arbitrary

and capricious" underthree different federalstatutesthe National

Historic Preservation Act; the National Environmental Policy Act
(NEPA); and the Department of Transportation Act. The Court even
admonished the FAA for tactics that appeared designed to seduce the
City to delay filing suit, in order to claim the City waited too long to file
suit.

The case provides a useful roadmap for otherairport neighborcities,
with a virtualstep-by-step guide for reviewing the FAA's actions to

determine whether the FAA failed to provide adequate notice and
information to the proper individuals and groups, failed to collect
needed information, and otherwise failed to comply with three federal

statutes, before rolling outits satellite-based navigation procedures.

Along the way, the Court provides some truly remarkable holdings.

First, the National Historic Preservation Act (NHPA) suddenly becomes
a critical component for community pushback against the FAA. The
Court found the FAA failed to determine that no historic structures

were adversely affected and failed to notify required parties and
provide relevant documentation. The FAA's notice was deemed
inadequate because the FAA was required to confirm, and did not
confirm, that the individuals notified were the correct individuals for
assuring compliance with the NHPA.Critically, for airport communities
suffering from NextGen in othercities, the FAA failed because it did not

12/11/2018'                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

provide the public with information about how action effects historic
properties and seek public comment and input.

Additionally, unless confidential information is involved,
agencies must "provide the public with information about an
undertaking and its effects on historic properties and seek
public  comment  and  input."  Id.  800.2(d)(2)  (emphasis
added). The FAA admits, however, that it did not make "local
citizens and community leaders" aware of the proposed new
routes and procedures, J.A. 364, and it does not claim that any
confidentiality concerns applied.

Further, by keeping the public in the dark, the agency
made it impossible for the public to submit views on the
project's potential effectsviewsthat the FAA is required to
consider.  See 36 CER.    800.5(a);  see  also Am.  Bird
Conservancy v. FCC, 516 F.3d 1027, 1035 (D.C. Cir. 2008)
("Interested  persons  cannot  request  an  [environmental
assessment] for actions they do not know about, much less for
actions already completed.").

The more you (don't) know.

Second, under the National Environmental Policy Act (NEPA), the FAA
wrongfully avoided a more detailed environmental impact statement
by erroneously applying a "categorical exclusion" to the route changes.
The Court again provided the roadmap, holding no categorical
exclusion can applyif there are "extraordinary circumstances," which
exist when the action is "likely to be highly controversial on
environmental grounds." Perhaps the most excoriating quote in the
the FAA's
case is this: "Common sense reveals otherwise. As noted,
proposal would increase by 300% the number ofaircraftflying over
twenty-five historic neighborhoods and buildings and nineteen public
parks, with 85% ofthe newflighttraffic comingfrom newjets. The idea

12/11/2018                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

that a change with these effects would not be highly controversial is 'so
implausible' thatit could notreflect reasoned decision-making."

concerns." FAA Br. 80. Common sense reveals otherwise. As
noted, the FAA's proposal would increase by 300% the number
of aircraft flying over twenty-five historic neighborhoods and
buildings and nineteen public parks, with 85% ofthe new flight
traffic coming from jets. The idea that a change with these
effects would not be highly controversial is "so implausible"
that it could not reflect reasoned decisionmaking. See Motor
Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983).

Common sense? What a concept.

The FAA was also called to taskforfailing to take into accountits prior
experiences in similar circumstances at other airports. In other words, the
FAA's divide-and-conquerstrategy, claiming each airportis different,

wasrejected. The FAA should have provided a "reasoned explanation
for... treating similar situations differently."


The FAA also erred by deviating from its usual practice in
assessing when new flight routes are likely to be highly
controversial, without giving a "reasoned explanation for . .
treating similar situations differently." W. Deptford Energy,
LLC v. FERC, 766 F.3d 10, 20 (D.C. Cir. 2014). In assessing
proposed route changes  at  airports  in  Boston, Northern
California, Charlotte, and Atlanta, the FAA has relied onits
general observation that a proposal is likely to be highly
controversial if it would increase sound levels by five or more
decibels in an area already experiencing average levels of 45-
60 decibels. But here the agency said exactly the opposite and

If it looks like a duck...

12/11/2018                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

The practical implication? The FAA is being held to account for the

Nixon questionwhat did it know and when did it know itin

relation to how bad the FAA NextGen satellite-based navigation rollouts

have been in all prior cities. And because they have all been bad, and

because the FAA did not explain why the prior problems were notlikely

to be problems at Phoenix, the FAA's failure to conduct a full EIS was
arbitrary and capricious.

Third, the Transportation Act holdings may provide the most unique
and powerful roadmaps of all. The Court found the FAA failed to
consult with the City "in assessing whether new routes would
substantially impair the City's parks and historic sites," and "FAA was
wrong to find the routes would not substantially impair these protected
areas." The key rationale that will cause the FAA severe heartburn is

this: "the FAA cites no evidence that it consulted with thesecity officials on

historic sites and public parks in particular."

consultation  duties  required.  Besides,  the FAA  cites  no
evidence that it consulted with these City officials on historic
sites  and  public  parks  in  particular.  Thus,  the  FAA's
consultation process was arbitrarily confined.

It's not just who you consulted with it's whether you consulted with the right people.

In other words, the FAA can't go through the motions in a consultation,
because the devil is in the details and in the content of the consultation.

Also under the Transportation Act,if the use of a park is so negatively
impacted by overflights that it amounts to a taking, the FAA action can
only proceed if there is no prudent and feasible alternative to using the
park. Here, the problems for the FAA suddenly magnify exponentially.
Reliance on the FAA's go-to hole cardcompliance with the NEPA Part

12/11/2018                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

150 Noise Studymay notbesufficient to determine noise impactif "a
quiet setting is a generally recognized purpose and attribute" of historic
residences, neighborhoods, and sites. The Court agreed that a Part 150
alone does not provide adequate information on this required topic.
Critically, this was true even where the sites were urban: "even in the
heart ofa city some neighborhoods mightbe recognized as quiet oases."

Finally, the Court used the Transportation Actto hit the nail on the
head for other impacted airport communities across the country. In
addressing the FAA's argument that overflights had already historically
occurred in these communities, the Court shut the door with common
sense: "But those earlierflights involved propeller aircraft thatflewfar
less often so the homes beneath them mightstill have been generally
recognized as "quiet settings." In other wordshistorical uses are not
the same as present uses and the FAA can't try to avoid its obligations
by claiming it has already made some noise.

Thus, it was unreasonable for the agency to rely only on
the Part 150 guidelines in concluding that noise from the new
flight routes would not substantially impair the affected historic
sites. As a result, that conclusion lacks substantial supporting
evidence. For both these reasons, we find that the agency's
substantial-impairment analysis was arbitrary and capricious.
One Part 150 does not fit all.

It must be noted that this case comes with a dire warning to allthat
timing matters. Therule is that a petition must be filed within 60 days
after FAA "final action" issues. The problem in Phoenix? The routes had
been in effect for six months. They were too late. But the Court
provided a yet another "save" because it found the FAA repeatedly
communicated it was continuing to look into the noise problem, was

12/11/2018                                       CITY OF PHOENIX PLAYS "ROGUE ONE" TO FAA'S DEATH STAR

opento fixing the issue, wanted to work with the City and others to find
a solution. This led to the conclusion that "reasonable observers to
think the FAA might fix the noise problem without being forced to do so
by a court." In other words, the FAA led the community groups and city
down a path of cooperation. The Courtclearly did notlike thistactic.
"While we rarelyfind a reasonable-grounds exception, this is such a rare

case." The Court finished with a truly remarkable identification of
nefarious intent: "To conclude otherwise would encourage the FAA to
promise tofix the problemjust long enoughforsixty days to lapse and then
to argue that the resulting petitions were untimely."

This case will require some ongoing thought and considerationand
certainly, the FAA may well appeal. Atfirst blush, on the outside
looking in,it's a winner for long-suffering airport neighbor
communities. Perhaps for now, like the impossible-odds-facing Rogue
One crew and Rebel Alliance that follows, the Force is now with us
for at least a brief period of time.