WASHINGTON (CN) — The D.C. Circuit dismissed Maryland’s effort to readjust three north-to-south flight paths at Reagan National Airport, finding Tuesday the state waited too long to raise noise concerns.
The state claimed in its petition that the Federal Aviation Administration failed to perform required environmental assessments when approving the paths, and did not account or plan for additional aircraft noise over Maryland’s public lands.
The FAA published the three amended flight paths and regulatory guidelines for those paths in late 2015, after communicating with a Maryland working group tasked with opening a dialogue to amend the paths and offer a solution for both parties.
The heart of the appeals court’s dismissal Tuesday hinges on timeliness and reasonable grounds to delay Maryland’s challenge, specifically a 60-day deadline for the state to seek review of the flight paths after the rules were published.
While the state acknowledges it filed the petition “well after the statutory sixty-day review window,” it claims it had reasonable grounds to delay this filing—a burden of proof Maryland needs to meet in order to allow its challenge of the agency’s rules to go forward.
The nine-page opinion from the D.C. Circuit lays out the timeline of the case, noting that more than 900 days had passed since the FAA published its flight path rules before Maryland filed its petition.
“Notwithstanding the state’s argument that the FAA delayed publishing the first two amendments, it is undisputed that all three amendments were final by December of 2015,” the opinion states. “That Maryland did not file its petition within sixty days of the FAA’s final action is an understatement, as well over nine hundred days elapsed between December 10, 2015 and June 26, 2018.”
Maryland’s arguments for reasonable grounds for delay are also lacking compared to other instances in which the court has allowed such a delay, U.S. Circuit Judge Karen LeCraft Henderson wrote for the unanimous three-judge panel.
The state argued its case is similar to a challenge by Phoenix, which delayed filing a petition to review new FAA rules to preserve a dialogue between the city and the agency. This kind of relationship did not exist between the FAA and Maryland, Henderson said.
“Here, continuous FAA engagement with the state did not occur. Throughout the more than two and one-half years during which Maryland delayed filing its petition, its communications with the FAA were almost entirely self-initiated, sporadic and primarily through the working group,” the George H. W. Bush appointee wrote. “Even though the FAA actively participated in the working group… the agency’s statements at those meetings never suggested that it intended to amend the challenged procedures further.”
The appeals court also said Maryland cannot indefinitely extend the 60-day deadline for filing a petition seeking review of the rules. Reasonable grounds for delay can exist if an agency’s words question the finality of its action, but a petitioner cannot wait without deadline for that agency to become responsive, the ruling states.
“Indeed, if not for the FAA’s terse reply to Governor [Larry] Hogan’s letter in 2018, the state’s theory suggests that the sixty-day deadline may still not have expired, more than four years after the approaches were altered,” Henderson wrote. “Because the state’s delay was extreme, it lacks reasonable grounds for missing the sixty-day deadline and its petition is therefore untimely.”
The court acknowledged the 60-day deadline for review is a short one, but one imposed by Congress for a reason, as it protects agencies from uncertainty if their actions are challenged years down the road.
“The deadline, however, does not authorize the FAA to lull potential petitioners into believing that its actions remain non-final in order to ward off a timely challenge,” the ruling states.
Henderson was joined on the panel by U.S. Circuit Judges David Tatel, a Bill Clinton appointee, and Gregory Katsas, appointed by President Donald Trump.
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