Steve Lash//August 11, 2020
//August 11, 2020
Howard County waited too long to challenge a federally approved change in the flight path of commercial airliners heading west out of Baltimore/Washington International Thurgood Marshall Airport, and thus residents must endure the loud noise the jets make over the county’s historic district, a U.S. appeals court ruled Tuesday.
County leaders had 60 days to seek judicial review of the Federal Aviation Administration’s February 2016 flight-path alteration that has jets flying over an area of Howard that had seen little air traffic and at an altitude of less than 3,000 feet, the 4th U.S. Circuit Court of Appeals held.
But the county did not seek review for more than 1,000 days — and after having “unreasonably” waited 110 days to even seek voluntary relief from the FAA “as a first resort,” the 4th Circuit held in its published 3-0 decision dismissing the county’s request that the court overturn the agency’s “TERPZ-6” flight plan.
“We’re disappointed at the court’s ruling and are carefully considering our options moving forward,” Howard County Executive Calvin Ball said in statement Tuesday.
“We know this is a significant issue for our residents, and we’re not done fighting on behalf of them,” Ball added. “In the meantime, we will continue engaging with the BWI Roundtable and encourage the FAA to implement proposed changes to flight paths. We’re also urging the State of Maryland to get back on track with the Noise Abatement Plan, which has been severely delayed. Our residents deserve progress, and we will continue to pursue all options to provide relief.”
In its decision, the 4th Circuit said the county’s 60-day clock for seeking judicial review under the Federal Aviation Act began on Feb. 4, 2016, when the FAA took “final’ reviewable action by publishing its administrative order and beginning the TERPZ-6 flights.
The court rejected Howard’s argument that the 60 days began on Sept. 18, 2018, when the FAA rebuffed by letter the county’s formal July 2018 challenge to the legality of the agency’s change. Under the county’s argument, its Nov. 13, 2018, review petition would have been timely filed.
The FAA’s commencement of TERPZ-6 flights “produced the legal consequences that the county now seeks to vacate: It required westbound departing aircraft to follow the prescribed flight paths, thereby producing the ‘increased noise’ of which the county complains,” Judge Albert Diaz wrote for the 4th Circuit.
“While the FAA’s letter did effectively terminate the agency’s decision-making process with respect to the county’s grievances, it neither produced any legal consequences nor determined any rights or obligations,” Diaz added. “To the contrary, because (as the FAA pointed out) the county’s petition wasn’t rooted in any legal right, the FAA’s rejection of it left the county in the same legal position it had occupied beforehand.”
The 4th Circuit added that the county provided no “reasonable grounds” for having missed the 60-day deadline, such as if the FAA had left the impression it would again revise the flight path or if confusion existed regarding whether TERPZ-6 was final.
In fact, “the county waited 110 days – nearly twice as long as the limitations period – before it so much as voiced its concerns to the FAA,” Diaz wrote. “The county articulates no grounds, let alone reasonable grounds, for waiting so long to take this initial step in seeking administrative relief, and the record furnishes none.”
The county had sought judicial review, arguing that FAA’s adoption of the new flight path was “arbitrary and capricious” and without regard to its environmental impact, in violation of the federal Administrative Procedure Act.
But the county did not raise any objection to TERPZ-6 until May 24, 2016 — 110 days after the new flight path went into effect, the 4th Circuit said. The objection came in a letter elected officials sent to the FAA, expressing frustration with the agency’s inattention to the “significant disruption” caused by the noise and seeking an early June meeting with agency personnel.
The FAA did not respond until August 2016 and only after Maryland’s U.S. senators sent letters expressing the county’s concerns, the 4th Circuit said.
The FAA had a conference call with the Maryland Aviation Administration that month and co-sponsored a community meeting in October 2016 at which about 500 residents in the flight path complained about the noise.
That meeting was followed by the creation of a “BWI Roundtable,” which met monthly between March 2017 and April 2018 to hear community concerns about the noisy new flight path the FAA said was necessitated by the move to very high-tech air traffic control technology.
When those sessions did not yield the noise relief sought, Howard County sent the FAA an administrative petition on July 18, 2018, stating that adoption of the TERPZ-6 violated the Administrative Procedure Act and urging the agency to return to the prior flight path. The FAA rejected the request in a Sept. 18, 2018, letter, prompting the county’s failed bid for judicial relief in the 4th Circuit on Nov. 13, 2018.
Diaz was joined in the opinion by Judges Diana Gribbon Motz and Allison Jones Rushing.
The 4th Circuit rendered its decision in Howard County, Md., v. Federal Aviation Administration et al., No. 18-2360.P