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# ~ TABER lAW GROUP 

# PC

BY TELEFAXAND FIRST CLASS MAIL 

### October 20, 2014 Docket Operations, M-30 U.S. 

### Department ofTransportation Room Wl2-140 West Huilding Ground Floor 1200 New

**Jer~ey** Ave, SE 

### Washington, D.C. 20590-0001 Rc: 11ockct Number FAA-2014-0510; Catl{x 2 Comments 

### Dear Sir/Madam: 2024932251 Pg

These comments arc submitted byTaberLaw Group, P.C. onbehalfofAirFair, Inc., and Friends ofLaGuardia Airport, Inc. The startingpoint for these comments is on howthe Federal Aviation Administration gets 

### to the point where it should usc the proposed method ofdetermining whether there has been a net reduction in noise at all. In orderto get the result that it wants, the FAA and NextGen Advisory 

### Committee (NAC) add a word to the statute. Thejustification is that because the Conference Report states "average perflight basis'' andcertain House Committee staffmembers toldthe Radio Technical

**Cotnmis~ion** for Aeronautics (RTCA) that they meantto say "average per flight 

### basis," the FAA and NAC can read in "average," despite its absence in the statute. This interpretation will not hold up in court.

**Re~ort** to

**legi~lative** history,

**~uch** as Conference

**Report~** and discussions with staff 

### members is disfavored bythe U.S. Supreme Court, and is only done when the language ofthe statute itselfis ambiguous. An executive branch agency cannotrewrite a statute simply because 

### it is inconvenient and ditlicult to comply with orbecause unelected statfmembers claim that the Congress meantto include the word that is notpresent in the statute. NAC's reading in of 

### "average" is not an interpretation ofan ambiguous statute, buta re-writing ofa statute bythe executive branch. The NAC's analysis will not hold up in court, which, ifthe FAA adopts the 

### "NetNoise Reduction Method" in its current format, is where this matter will most likely end up. Ifcurrent precedent is followed, the court wiII decide that ifNAC or FAA is unhappy with the 

### plain meaning ofa statute, it should go to Congress to get the wording changed ornot implement the statute.

P.O. BOX 60036 I IRVINE, CA 92602 I TEL 949.735.8217 I FAX 714.707.4282 I staber@taberlaw.com

### 10/20/14 04:03PM PDT Taber Law Group, P.C. ->Docket Operations 3/9

CatEx 2 Comments October 20, 20 14 Page2 I. 

### Background. 

# ~Taber Law Group

When Congress passedthe FAA Modernization and Reform Actof2012 (FMRA) it included a provisionthatprovided that: 

### 2024932251 Pg

Any navigationperformance orotherperformance based navigation procedure developed, certified, publh:hed, orimplementedthat, in the detennination ofthe Administrator, would result in measurable reductions in fuel consumption, carbon dioxide

**etnh:sion~,** a11d noise, on aperflighthasis,

**a~** comparedto aircraft

**operation~** that follow existing instrument t1ight rules procedures in the same airspace, shall bepresumed to have no significant effect on the quality ofthehuman environment and the Administrator shall issue and file a categorical exclusion for the new procedure. FMRA, §213(c)(2), included as a note to 49 U.S.C. § 40101 (emphasis added). Dubbed "CatEx 2" because it was the second exclusion included in FMRA, it was meantto alleviate some the legal issues that the FAAhad encountered in implementing Required NavigationPerformance (RNP) and Area Navigation (RNAV) procedures pursuant to NextGen. The idea was to streamline the environmental process required undertheNational Environmental Policy Act (NEPA) so that the RNAV procedures could be put in place more quickly. 1n September, 2012, the FAA asked the NAC to offer its recommendation for implementing Cat Ex 2. The FAA asked NAC to take a look atthe problem

**becau~e** the FAA was having difficulties in developing a method to implement CatEx 2 and stay within the la11guage ofthe

**~tatute.** What was troubling the FAA was the fact that the statute called for measurable reductions ofnoise on "on a per t1ight basis." The fAA asked NAC for guidance "on how 'measurable

**reduction~'** in

**noi~e** from performance-basednavigation (PBN)

**procedure~** 'on a per t1ight basis' mightbe assessed consistentwith the legislative language, given that fAA typically uses

**method~** that aggregate noise, which take into account the

**noi~e** exposure of people on the ground from aircraft flights in the vicinity over an average daily period." Unfortunately, the tnethod developedby the "CatEx 2 Task Group" ofthe NAC is not "consistentwith the legislative language." In June, 2013, the RTCA published its Recommendation torImplementing the Categorical Exclusion in Section 213(c)(2) ofthe FAA Modernization and Reform Act of2012 ("Report"). The CatEx 2 Task Group developed what they called a "NetNoise Reduction Method'' that they claimed couldbe implemented as part ofCatEx 2. However, in developing its method, the CatEx 2 Task Group made a critical assumption thatis, ultimately, legally indefensible. Instead ofadhering to the plain language ofthe statute, the Task Group began with the assumption that "on a per flight basis" actually means "on an average per tlightbasis." The Task Group made that assumption from reading the Conference Report for FMRA.10/20/14 04:03PM PDT Taber Law Group, P.C. 

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CatEx 2 Comments October 20, 2014 Page 3 

# ~Taber Law Group 2024932251 Pg

The Conference Report states the intent ofCatEx 2 to "require the FAA to provide a categorical exclusion for RNP/RNAV procedures that would lead to a reduction in aircraft fuel consumption, emissions and noise on an average pet flight bask" 1It is the view ofthe CatEx 2 TaskGroup, which was confirmed withrelevant Congressional staft: that this language allows for averaging the noise impact on a representative basis over nightsundertaking a particular procedure. As discussed in greater detail below, this observation andfindingfundamentally informed the Task Group's workon a methodto implement Section 213(c)(2). Report, p.6 (emphasis and footnote added). Following that fundamentally-t1awed assumption, the CatEx 2 Task Group developed what itnamedthe "NetNoise Reduction Method" to ascertain if a certain flight procedure would lead to a reduction innoise on an "averageper flight basis." This methodreceivedunanimous support ofthe NAC andwas recommendedto FAA on June 4, 2013. However, despite extensively evaluating the NAC'srecommended NetNoise Reduction Method, FAA decidedto solicitpublic commentto Hfurther infom1 the FAA's consideration of interpretative guidance to implement Section 213(c)(2) using the NetNoise Reduction Method andpossible variations on it.'' 79 Fed.Reg. at 49142. Specifically, FAA has soughtpublic commenton the "unique statutory requirements that have presented challenges to the FAA in detennining how to implementthe CATEX." ld. In addition, FAA has solicited comments on the "extent to which the FAA should rely on the NetNoise Reduction Method to determine measurable reductions in noise on a per flight basis." 2 These comments are meantto address at leastthose two issues raisedby the FAA in its Federal RegisterNotice. 

### II. U.S. Supreme Courthas consistently ruledthat if

### a statute is 

### not ambiguous, its plain meaning shall be followed. Itis NAC's view that Congress "intended"that "average"be included in the statute. However; this view, even ifitis reported in the Conference Report and confirmed by Congressional statT, runs counterto the specit1c language contained in the statute that was passed by both the House and the Senate and signed by the President. As such, NAC's conclusion that

1The paragraph from the Conference Report states, in aparagraph under the heading "Conference Substitute:"

**"Hout:~e** b11lm(ldit'lcd to change language to separate ORP and non-ORP airports to establish separate timclines and milestones, to require the FAA to provide a categorical exclusion for RNP/RNAV procedures that would lead to a reduction in aircraft fuel consumption, emissions and noise on an average per flight basis, and to direct the Administrator to establish aprogram under which the Administrator is authorized to utilize the services ofqualified third parties in the development, testing, and maintenance offlight procedures." Conference Report, p. 177. 2 Itis notable that in the Federal Register notice, the FAA does not state "on an average per flight basis." Rather, it uses the phrase "on aper flight basis," which is the actual language ofthe statute. The Net Noise Reduction Method does not measure reduction ofnoise on a "per ±lightbasis." Itmeasures noise reduction on "an average per flight basis."10/20/14 04:03PM PDT Taber Law Group, P.C. 

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### CatEx 2 Comments October 20, 20 14 Page4



# ~Taber Law Group 2024932251 Pg



### the NetNoise Reduction Method's "averaging the noise impact on a representative basis over flights undertaking a particularprocedure'' does not meetthe requirements ofthe statute and, therefore, is legally it1defensible. Report, p.6. In essence, what NAC wa11ts to do is add in "average" to statute so that it will be

**ea~liete** 

### for the FAAto implementthe categorical exclusion. However, statutory construction by courts does not work that way. The U.S. Supreme Court has ruled on this topic many, many times. 

### "We have stated time and again that courts must presume that a legislature says in a statute what itmeans andmeans in a statute whatit says there" thus, the startingpoint for a court's analysis of 

### statutory text is the statutory text itself 

### ConnecticutNat. Bank v. Germain, 503 U.S. 249, 253- 254 (1992). And the inquiry ends there as well ifthetext is unambiguous. ConnecticutNat'/ 

### Bank, supra, 503 U.S. at 254; 

### Lamie v. UnitedStates Trustee, 540 U.S. 526, 534 (2004); 

### Hartford Underwriters Ins. Co. v. Union Planters Hank, N. A., 

### 530 U.S. 1, 6, (2000); 

### Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 43H, (1999). Section 213(c)(2) unambiguously states that "'measurable reductions in fuel consumption, carbon dioxide emissions, andnoise, on a per 

### flight basis." The statute docs notreference "average" in relation to fuel consumption, carbon dioxide emissions ornoise. There is no ambiguity here, thus, the plain meaning ofthe statute 

### mustbe given. In tact, NAC docs not claim that the statute is ambiguous. Instead, it claims that it is inconvenient and difficultto carry out. 

### See 79 Fed.Reg. 49142 ("[t]he FAA couldnot find a 

### technically sound way to make the noise dctcnnination required by the statute based on an analysis ofnoise methodologies
...The task Group agreed 

### with the fAA's technical analysis of currentmethodologies
...").3 However, where, as in this case, the words ofthe statute ate 

### unambiguous, the "judicial inquiry is complete." 

### Id. at 254, 

### quotingRubin v. UnitedStates, 449 U.S. 424 (1981) ("When the words ofa statute ate unambiguous, then, this first canon is also the 

### last: 'judicial inquiry is complete"'). In this case, there would be no need for a courtto go any further and consult the legislative history, such as the ConferenceReport orCongressional 

### Staffers. Indeed, the Supreme Court in 

### ConnecticutNat 'I

### Bank faced a similar situation: the respondent in that case sought to havethe court look atthe

**legi~lative** history to come to the 

### conclusion that he proposed. The Supreme Court would have none ofthat: 'lrespondentj says that legislative history points to a different result. But we think thatjudicial inquiry into the 

### applicability

**of~** 

### 1292 begins and ends with what§ 1292 does say and with what§ 15H(d) does not." Thus, should a courtreview the meaning of§ 213(c)(2), its i11quiry would end after a

J See also Report, p.3 (''filnparticular, the FAA reference to the NAC called tbr guidance on how "measurable reductions" in noise from pcrfonnancc-bascd navigation (PHN) procedLJres "on aper 11ight basis" might be assessed consistent with the legislative language, given that FAA typically uses methods that aggregate noise, which take into account the noise exposure ofpeople on the ground from aircrafl: flights in the vicinity over an average daily period. FAA had undertaken an initial assessment on how its noise assessment methods might be used to implement Section 213(c)(2), buthad not been able to reconcile its traditional methods ofnoise analysis with the apparent requirement from Section 213(c)(2) that noise reductions be assessed per 11ight").10/20/14 04:03PM PDT Taber Law Group, P.C. 

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# ~Taber Law Group 2024932251 Pg

review ofthe actual statutory language and not insert the word "average" in front ofthe phrase "per flight basis." 

### Ill. 

### The Supreme Court bas consistently ruled thatlegislative history will 

### only be used when 

### a statute is vague o•· 

### ambiguous. NAC claims two

**rea~on~** for its rationale thatthe

**~tatute ~hould**  be re-written to include "average" into CatEx 2: one, the Conference Report for fMRA mentions "average;"two, NAC spoke to staffmembers ofthe wmmitteethat drafted CatEx 2, andthey saidthe committee intended the reduction to be on an "average per t1ight basis." 

### See Report, p.6. Those reasons are not good enough for a court go behind the plain meaning ofthe

**~tatute** and use the legislative history. Indeed, at least one member ofthe U.S. Supreme Court has beenhighly critical ofusing legislative history 

### atall, even in cases wherethe statute is ambiguous. In a concurring opinion in U.S. v. Romani, 523 U.S. 517 (1998), Justice Scaliawrote "Ihave inthe pastbeen critical of the Court'susing the so-called legislative history ofan enactment (hearings, committee reports, and tloor debates) to determine its meaning." See also Conroy v. Aniskojf; 507 U.S. 511, 518- 529, (1993) (Scalia, 

### J., concurring injudgment); 

### UnitedStates v. 1'hompson!CentarArms Co., 504 U.S. 505,521, (1992) (Scalia, J., concurring injudgmcnt); Blanchardv. Bergeron, 489 U.S. 87, 98-100, (1989) (Scalia, J., concurring in part and concurring injudgment). Thus, it would be ditlicult to argue that Justice Scaliawould view this matter any ditlcrcntly. Moreover, a court only turns to a statute's legislative history ifa court t1nds that the statutory language is ambiguous and the legislative historywill assist the court in ascertaining the intent ofCongress in drafting the legislation the way it did. "In aid oftheprocess of construction we are at liberty, ifthe meaning beuncertain, to have recourse to the legislative hMoty ofthe measure and the

**statement~** by those in charge ofit during its

**C(>11~ideration** by the Congress." 

### UnitedStates v. GreatNorthern Ry., 287 U.S. 144 (1932). Onthe otherhand, 

### itmust bekept in mindthat "wedo notresort to legislative history to cloud a

**~tatutory** textthat

**i~** clear."


### ·Ratzlafv. UnitedStates, 510 U.S. 135, 147-48 (1994). 

### See also SchoolBoardof Nassau

**Coun~y** v. Arline, 480 U.S. 273 (1987) (resort to legislative history

**wa~** ptoperto assist in determining whether Congress meantto include disabled person who became disabled through contracting a contagious disease). The NAC's argutnent, however,

**i~** notthat the statute

**i~ arubiguou~**  or that its meaning is not clear. Rather, the NAC argues that implementation ofthe statute would be more difficult ifthe plain meaning ofthe statute is followed. There ate no

**case~-** at least U.S. Supreme Courtcases thatwould allow a federal agency to ignore the plain meaning ofa statute andpeek behindthe curtains simply because implementation ofthe plain meaning ofthe statute would be inconvenient. Even ifa courtwere to consult the legislative history, there is absolutely no certainty that the court would conclude that "average'' should be read into the statute. Courts have held that legislative history, including committee and contcrcncc reports should notbe used to change the10/20/14 04:03PM PDT Taber Law Group, P.C. 

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CatEx 2 Comments October 20, 20 14 Page 6 

# ~Taber Law Group 2024932251 Pg

plain meaning ofthe statute. As the U.S. Supreme Court observed in Puerto RicoDep 't 

### ql ConsumerAffairs v. Isla Petroleum Corp., 485 U.S. 495, 501 (1988) in rejecting reliance on legislative history "excetpts" said to reflect congressional intent to preempt state law, "we have never llooked forj congressional intent in a vacuum, unrelated to the giving ofmeaning to an enacted statutory text.... [U]nenacted approvals, belief.'l, and desires are not laws." Likewise, the U.S. Supreme Courtheld in 

### Secretary oftheInterior v. California, 464 U.S. 312, 323 n.9 (1 984) that a committeereportdirective purportingto require coordination with state planning is dismissed as purely "precatory" whenthe accompanying billplainly exempted federal activities from such coordination. The Court in Shannon v. United States, 512 U.S. 573, 583 (1994) went a step further in stating that itwill notgive "authoritative weightto a single passage oflegislative history that is in no way anchored in the text ofthe statute." Finally, and most relevant to this matter, the court in

### Roeder v. islamicRepublic of fran, 333 .P.3d 228 (D.C. Cir. 2003) stated that an explanatory statement in an accompanying conference report cannot change the plain meaning ofthe statute. 

### Jd. at 238 ("ThewayCongress expresses itselfis through legislation. While legislative history may be useful in detennining intent, thejoint explanatory statements here go well beyond the legislative text ..."). The only conclusion that one can come to atlerreviewing the caselaw is thatthe fact that "avemge" appears in the Confere11ce Report, does notmean that a court will rule that Congress intended "average" to be in the statute. Therefore, NAC cannotread ''average'' into the law and the .FAA must adopt a methodology "on a perflight basis'' for each of the three factors mentioned in CatEx 2, or notusc the categorical exclusion atall. In otherwords, the fact that the Conference Report mentions"average'' and Congressional staffers said that "average" was intended cannot serve to make the statute ambiguous. IV. Chevron Does Not Apply In This Situation. There has been some uninfortned talk that 

### Chevron U.S.A., Inc. v. Natural Resources 

### Dtfense Council, inc., 467 U.S. 837 (1984) applies in this situation. That is, that courts will defer to the FAA's interpretation ofits organic statute. However, Chevron does not stand forthe propositionthat a federal agencycanunilaterally changethewording ofan unambiguous statute. Instead, Chevron holds that ifa statute administered by an agency is ambiguous with respedto a specific issue, the courts will defer to the agency's reasonable interpretation ofthe statute. "When a courtreviews an agency's construction ofthe statute which itadministers, it is confronted with two questions." 467 U.S. at 842. first, applying the ordinarytools ofstatutory construction, the courtmust detennine "whetherCongress has directly spoken to the precise question at issue. Ifthe intent ofCongress is clear, that is the end ofthe matter; for the court, 

### as wellas the agency, must give effect to the unambiguously expressed intent ofCongress." Id., at 842-843 (emphasis added). But "ifthe statute is silent or ambiguous with respect to the specific issue, the question for the court is whetherthe agency's answer is based on a pem1issible construction ofthc statute."

### Id., at 843. Since the intent ofCongress, as stated in the unambiguous text ofthe statute, is clear in this matter, 

### Chevron does not apply.10/20/14 04:03PM PDT Taber Law Group, P.C. 

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### CatEx 2 Comments October 20, 2014 Page 7


# ~Taber Law Group

V. Adding AverageWould Confuse TheRest OfThe Statute. 2024932251 Pg

Ifone does notread "average" into the statute, iteliminates all ofthe otherissues with 

### respectto the "NetNoise Reduction Method." fAA in its federal Notice identify several issues that concem them with

**re~pect** to the Net

**Noi~e** Reduction Method. The FAA requested input 

### from the public on several questions: 1. 

### Extent to which the fAA should rely onthe Net Noise Reduction Method to determine tneasurable

**reduction~** in tmise on a perflight basis. 2. Appropriateness ofdetermining that there is a measurable reduction in noise ifpeople 

### receiving a noise decrease outnumber the people receiving an increase, but the noise decrease is small comparedto the noise increase. 3. Different approaches to a net noise reduction methodology (i.e., population change, 

### noise change, population weighted noise change), and whether the selection ofone approach over another is preferred and increasespublicunderstanding. 4. Extent to which a mix ofnoise increases and decreases could support a determination

**ofmea~urable noi~e**  reduction, especially when

**reduction~** at lower noise levels 

### outweigh increases at higher noise levels, and whether an alternative approach that would require reductions in all three

**noi~e** exposure bands to

**~upport** the

**u~e** ofthe 

### CATEX should beused. 5. Whether a significant noise impact threshold test should beused; and ifso, ifit

**~hould** be used only when there

**i~** a net

**increa~e** in people exposedto noise at DNL 

### 65 dB and above, or ifit should beused whenthere is any increase in the number of people exposed to noise at DNL 65 dH and above-even ifthere is a net population 

### benetlt at that level. 79 Fed.Reg. at 49144. All ofthese questions, with the possible exception ofthe tlrst question, presuppose that the noise that is being monitored and/or reduced is on the ground. That is, that 

### the "netreduction" ofnoise in the statute means a net reduction ofnoise on the ground. Report, p.3 ("FAA typically uses methods that aggregate noise, which take into account the noise 

### exposure ofpeople on the ground trom aircraft flights in the vicinity over an average daily period''). FAA and NAC assumes this presumably because that is the way they have been 

### measuring noise for almost 30 years using the Integrated Noise Model and DNL 

### contours. Because CatEx 2 does not fit neatly withinthatparadigm, fAA and NAC resort to extraordinary means to tlttheirpreferred model into the statutory language. Moreover, if"average" isread into the

**~tatute,** it would apply not only to noise, hutto 

### fu.el consumption and carbon dioxide emissions as well. But there is no proposal for focusing on

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CatEx 2 Comments October 20, 2014 Page 8 

# ~Taber Law Group 2024932251 Pg

receptors on the ground for either fuel consumption orcarbon dioxide emissions. Thus, reading "average'' into the statute wouldnot clarify the meaning and intent ofthe statute, it would confu=le the meaning. The courts have al=lo proscribed u=ling legislative hi=ltoty ifit confuse=l the 

### matter instead ofclarifies the meaning. ln

### Estate of Reynolds v. Martin, 985 F.2d 470, 477 (9th Cit. 1992) the Ninth Circuitthrew out the legislative history, declaring "where the legislative 

### history ofstatute is so confusing and contradictorythat it is ofno use in ascertaining Congress' intent, we shouldnot attempt to use ita=l a guide." Cf Stephen Breyer, On the U'tes

**(~/'Legislative** 

### History in Interpreting Statutes
.. 65 S. 

### Cal. L. 

### Rev. 845, 861-62 (1992). 

### VI. Conclusion. FMRA specit1cally states that the "netreduction" of"fuel consumption, carbon dioxide emissions andnoise" should be "on a per flight basis,'' not an "averageperflight basis.'' Ifthe 

### FAA and NAC cannot come up with a methodology to measure all three factors in a similar manner, then the CatEx cannot be used. Thus, the Net Noise Reduction Method in any fom1 is 

### legally indctcnsiblc and would leave the FAA open to legal attack should it be adopted. An executive branch agency cannot changethe wording ofa statute itself. Ifthere are issues with 

### the plain meaning ofthe statute that make carrying out the statute impractical, then the proper response is requestthat Congress change the wording ofthe statute. Ifyou have any questions orcomments,please feel free to call me at (949) 735-8217 or 

### send me an e-mail at staber@taberlaw.com. Yours very truly, TAHER LAW GROUI.>, P.C.