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~ TABER lAW GROUP PC 

BY TELEFAX AND FIRST CLASS MAIL 

October 20, 20 14 

Docket Operations, M-30 

U.S. Department of Transportation 

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: 

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These comments arc submitted by Taber Law Group, P.C. on behalf of AirFair, Inc., and 

Friends of LaGuardia Airport, Inc. 

The starting point for these comments is on how the Federal Aviation Administration gets 

to the point where it should usc the proposed method of determining whether there has been a net 

reduction in noise at all. In order to get the result that it wants, the FAA and NextGen Advisory 

Committee (NAC) add a word to the statute. The justification is that because the Conference 

Report states "average per flight basis'' and certain House Committee staff members told the 

Radio Technical Cotnmis~ion for Aeronautics (RTCA) that they meant to 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 by the U.S. Supreme Court, and is only done when the language ofthe 

statute itself is ambiguous. An executive branch agency cannot rewrite a statute simply because 

it is inconvenient and ditlicult to comply with or because unelected statf members claim that the 

Congress meant to include the word that is not present in the statute. NAC's reading in of 

"average" is not an interpretation of an ambiguous statute, but a re-writing of a statute by the 

executive branch. The NAC's analysis will not hold up in court, which, ifthe FAA adopts the 

"Net Noise Reduction Method" in its current format, is where this matter will most likely end up. 

If current precedent is followed, the court wi II decide that if N AC or FAA is unhappy with the 

plain meaning of a statute, it should go to Congress to get the wording changed or not 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 
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Page2 

I. Background. 

~Taber Law Group 

When Congress passed the FAA Modernization and Reform Actof2012 (FMRA) it 

included a provision that provided that: 

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Any navigation performance or other performance based navigation procedure 

developed, certified, publh:hed, or implemented that, in the detennination of the 

Administrator, would result in measurable reductions in fuel consumption, carbon 

dioxide etnh:sion~, a11d noise, on a perflight hasis, a~ compared to aircraft operation~ that 

follow existing instrument t1ight rules procedures in the same airspace, shall be presumed 

to have no significant effect on the quality ofthe human 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 FM RA, it was meant to alleviate some the 

legal issues that the FAA had encountered in implementing Required Navigation Performance 

(RNP) and Area Navigation (RNAV) procedures pursuant to NextGen. The idea was to 

streamline the environmental process required under the National 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 at the 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 of noise on "on a per t1ight basis." The fAA asked NAC for guidance 

"on how 'measurable reduction~' in noi~e from performance-based navigation (PBN) procedure~ 

'on a per t1ight basis' might be assessed consistent with 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 developed by the "CatEx 2 Task Group" of the NAC is not 

"consistent with the legislative language." 

In June, 2013, the RTCA published its Recommendation tor Implementing 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 "Net Noise Reduction 

Method'' that they claimed could be implemented as part ofCatEx 2. However, in developing its 

method, the CatEx 2 Task Group made a critical assumption that is, ultimately, legally 

indefensible. Instead of adhering to the plain language of the statute, the Task Group began with 

the assumption that "on a per flight basis" actually means "on an average per tlight basis." The 

Task Group made that assumption from reading the Conference Report for FM RA. 
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The Conference Report states the intent of CatEx 2 to "require the FAA to provide a 

categorical exclusion for RNP/RNA V procedures that would lead to a reduction in 

aircraft fuel consumption, emissions and noise on an average pet flight bask"1 It is the 

view of the CatEx 2 Task Group, which was confirmed with relevant Congressional staft: 

that this language allows for averaging the noise impact on a representative basis over 

nights undertaking a particular procedure. As discussed in greater detail below, this 

observation andfindingfundamentally informed the Task Group's work on a method to 

implement Section 213(c)(2). 

Report, p.6 (emphasis and footnote added). Following that fundamentally-t1awed assumption, the 

CatEx 2 Task Group developed what it named the "Net Noise Reduction Method" to ascertain if 

a certain flight procedure would lead to a reduction in noise on an "average per flight basis." 

This method received unanimous support of the NAC and was recommended to FAA on June 4, 

2013. 

However, despite extensively evaluating the NAC's recommended Net Noise Reduction 

Method, FAA decided to solicit public comment to Hfurther infom1 the FAA's consideration of 

interpretative guidance to implement Section 213(c)(2) using the Net Noise Reduction Method 

and possible variations on it.'' 79 Fed.Reg. at 49142. Specifically, FAA has sought public 

comment on the "unique statutory requirements that have presented challenges to the FAA in 

detennining how to implement the CATEX." ld. In addition, FAA has solicited comments on 

the "extent to which the FAA should rely on the Net Noise Reduction Method to determine 

measurable reductions in noise on a per flight basis. "2 These comments are meant to address at 

least those two issues raised by the FAA in its Federal Register Notice. 

II. U.S. Supreme Court has consistently ruled that if a statute is not ambiguous, its 

plain meaning shall be followed. 

It is NAC's view that Congress "intended" that "average" be included in the statute. 

However; this view, even if it is reported in the Conference Report and confirmed by 

Congressional statT, runs counter to 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 

1 The paragraph from the Conference Report states, in a paragraph 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 a program under which the Administrator is authorized to utilize the services of qualified 

third parties in the development, testing, and maintenance of flight procedures." Conference Report, p. 177. 2 It is notable that in the Federal Register notice, the FAA does not state "on an average per flight basis." Rather, it 

uses the phrase "on a per flight basis," which is the actual language of the statute. The Net Noise Reduction Method 

does not measure reduction of noise on a "per ±light basis." It measures noise reduction on "an average per flight 

basis." 
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the Net Noise Reduction Method's "averaging the noise impact on a representative basis over 

flights undertaking a particular procedure'' does not meet the requirements of the 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 FAA to implement the 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 

it means and means in a statute what it says there" thus, the starting point for a court's analysis of 

statutory text is the statutory text itself Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-

254 (1992). And the inquiry ends there as well ifthe text is unambiguous. Connecticut Nat'/ 

Bank, supra, 503 U.S. at 254; Lamie v. United States 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, and noise, on a per 

flight basis." The statute docs not reference "average" in relation to fuel consumption, carbon 

dioxide emissions or noise. There is no ambiguity here, thus, the plain meaning of the statute 

must be given. 

In tact, NAC docs not claim that the statute is ambiguous. Instead, it claims that it is 

inconvenient and difficult to carry out. See 79 Fed. Reg. 49142 ("[t]he FAA could not find a 

technically sound way to make the noise dctcnnination required by the statute based on an 

analysis of noise methodologies ... The task Group agreed with the fAA's technical analysis of 

current methodologies ... ").3 However, where, as in this case, the words ofthe statute ate 

unambiguous, the "judicial inquiry is complete." Id. at 254, quoting Rubin v. United States, 449 

U.S. 424 (1981) ("When the words of a 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 court to go any 

further and consult the legislative history, such as the Conference Report or Congressional 

Staffers. Indeed, the Supreme Court in Connecticut Nat 'I Bank faced a similar situation: the 

respondent in that case sought to have the court look at the legi~lative history to come to the 

conclusion that he proposed. The Supreme Court would have none of that: 'lrespondentj says 

that legislative history points to a different result. But we think that judicial inquiry into the 

applicability of~ 1292 begins and ends with what§ 1292 does say and with what§ 15H(d) does 

not." Thus, should a court review the meaning of§ 213(c)(2), its i11quiry would end after a 

J See also Report, p.3 (''filn particular, the FAA reference to the NAC called tbr guidance on how "measurable 

reductions" in noise from pcrfonnancc-bascd navigation (PHN) procedLJres "on a per 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 of people 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), but had not been able to reconcile its traditional methods of noise analysis with the apparent requirement 

from Section 213(c)(2) that noise reductions be assessed per 11ight"). 
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review of the actual statutory language and not insert the word "average" in front of the phrase 

"per flight basis." 

Ill. The Supreme Court bas consistently ruled that legislative history will only be used 

when a statute is vague o•· ambiguous. 

NAC claims two rea~on~ for its rationale that the ~tatute ~hould be re-written to include 

"average" into CatEx 2: one, the Conference Report for fMRA mentions "average;" two, NAC 

spoke to staff members of the wmmittee that drafted CatEx 2, and they said the 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 of the ~tatute and use the legislative 

history. Indeed, at least one member of the U.S. Supreme Court has been highly critical of using 

legislative history at all, even in cases where the statute is ambiguous. In a concurring opinion 

in U.S. v. Romani, 523 U.S. 517 (1998), Justice Scalia wrote "I have in the past been critical of 

the Court's using the so-called legislative history of an 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 in judgment); United States v. 1'hompson!Centar Arms 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 in judgment). Thus, it would be 

ditlicult to argue that Justice Scalia would view this matter any ditlcrcntly. 

Moreover, a court only turns to a statute's legislative history if a court t1nds that the 

statutory language is ambiguous and the legislative history will assist the court in ascertaining 

the intent of Congress in drafting the legislation the way it did. "In aid ofthe process of 

construction we are at liberty, if the meaning be uncertain, to have recourse to the legislative 

hMoty of the measure and the statement~ by those in charge of it during its C(>11~ideration by the 

Congress." United States v. Great Northern Ry., 287 U.S. 144 (1932). On the other hand, it must 

be kept in mind that "we do not resort to legislative history to cloud a ~tatutory text that i~ clear." 

· Ratzlafv. United States, 510 U.S. 135, 147-48 (1994). See also School Board of Nassau Coun~y 

v. Arline, 480 U.S. 273 (1987) (resort to legislative history wa~ ptoper to assist in determining 

whether Congress meant to include disabled person who became disabled through contracting a 

contagious disease). The NAC's argutnent, however, i~ not that the statute i~ arubiguou~ or that 

its meaning is not clear. Rather, the NAC argues that implementation of the statute would be 

more difficult ifthe plain meaning ofthe statute is followed. There ate no case~- at least U.S. 

Supreme Court cases that would allow a federal agency to ignore the plain meaning of a statute 

and peek behind the curtains simply because implementation of the plain meaning of the statute 

would be inconvenient. 

Even if a court were 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 not be used to change the 
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plain meaning of the statute. As the U.S. Supreme Court observed in Puerto Rico Dep 't ql 

Consumer Affairs 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 of meaning to an 

enacted statutory text .... [U]nenacted approvals, belief.'l, and desires are not laws." Likewise, 

the U.S. Supreme Court held in Secretary ofthe Interior v. California, 464 U.S. 312, 323 n.9 

(1 984) that a committee report directive purporting to require coordination with state planning is 

dismissed as purely "precatory" when the accompanying bill plainly 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 it will not give "authoritative weight to a single passage of legislative 

history that is in no way anchored in the text of the statute." Finally, and most relevant to this 

matter, the court in Roeder v. islamic Republic 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 

of the statute. Jd. at 238 ("The way Congress expresses itself is through legislation. While 

legislative history may be useful in detennining intent, the joint explanatory statements here go 

well beyond the legislative text ... "). The only conclusion that one can come to atler reviewing 

the caselaw is that the fact that "avemge" appears in the Confere11ce Report, does not mean that a 

court will rule that Congress intended "average" to be in the statute. Therefore, NAC cannot read 

''average'' into the law and the .FAA must adopt a methodology "on a per flight basis'' for each of 

the three factors mentioned in CatEx 2, or not usc the categorical exclusion at all. In other words, 

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 of its organic statute. However, Chevron does not stand forthe 

proposition that a federal agency can unilaterally change the wording of an unambiguous statute. 

Instead, Chevron holds that if a statute administered by an agency is ambiguous with resped to a 

specific issue, the courts will defer to the agency's reasonable interpretation of the statute. 

"When a court reviews an agency's construction ofthe statute which it administers, it is 

confronted with two questions." 467 U.S. at 842. first, applying the ordinary tools of statutory 

construction, the court must detennine "whether Congress has directly spoken to the precise 

question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as 

well as the agency, must give effect to the unambiguously expressed intent of Congress." Id., at 

842-843 (emphasis added). But "if the statute is silent or ambiguous with respect to the specific 

issue, the question for the court is whether the agency's answer is based on a pem1issible 

construction ofthc statute." I d., at 843. Since the intent of Congress, as stated in the 

unambiguous text ofthe statute, is clear in this matter, Chevron does not apply. 
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V. Adding Average Would Confuse The Rest Of The Statute. 

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If one does not read "average" into the statute, it eliminates all of the other issues with 

respect to the "Net Noise 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 on the Net Noise Reduction Method to 

determine tneasurable reduction~ in tmise on a per flight basis. 

2. Appropriateness of determining that there is a measurable reduction in noise if people 

receiving a noise decrease outnumber the people receiving an increase, but the noise 

decrease is small compared to 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 of one 

approach over another is preferred and increases public understanding. 

4. Extent to which a mix of noise 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 be used. 

5. Whether a significant noise impact threshold test should be used; and if so, if it 

~hould be used only when there i~ a net increa~e in people exposed to noise at DNL 

65 dB and above, or if it should be used when there 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 of these questions, with the possible exception of the tlrst question, 

presuppose that the noise that is being monitored and/or reduced is on the ground. That is, that 

the "net reduction" of noise in the statute means a net reduction of noise on the ground. Report, 

p.3 ("FAA typically uses methods that aggregate noise, which take into account the noise 

exposure of people 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 within that paradigm, fAA and N AC resort to extraordinary 

means to tlt their preferred model into the statutory language. 

Moreover, if"average" is read into the ~tatute, it would apply not only to noise, hut to 

fu.el consumption and carbon dioxide emissions as well. But there is no proposal for focusing on 
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receptors on the ground for either fuel consumption or carbon dioxide emissions. Thus, reading 

"average'' into the statute would not clarify the meaning and intent of the statute, it would 

confu=le the meaning. The courts have al=lo proscribed u=ling legislative hi=ltoty if it confuse=l the 

matter instead of clarifies the meaning. ln Estate of Reynolds v. Martin, 985 F.2d 470, 477 (9th 

Cit. 1992) the Ninth Circuit threw out the legislative history, declaring "where the legislative 

history of statute is so confusing and contradictory that it is of no use in ascertaining Congress' 

intent, we should not attempt to use it a=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 "net reduction" of "fuel consumption, carbon dioxide 

emissions and noise" should be "on a per flight basis,'' not an "average per flight basis.'' If the 

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 change the wording of a statute itself. If there are issues with 

the plain meaning of the statute that make carrying out the statute impractical, then the proper 

response is request that Congress change the wording ofthe statute. 

If you have any questions or comments, 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.