It’s not a Harvard Business School lesson. But both government and private sector leaders have learned one lesson well. When a project environmental obstacle arises, don’t ask permission to overcome it. Finesse the obstacle, proceed, and ask for forgiveness later if the need arises.
How well the FAA and County have learned this lesson when environmentally evaluating Palomar Airport projects. As noted in Blog #7 published on December 3, 2012, most commonly the FAA and County avoid serious environmental analysis by splitting projects into small bites and long time periods.
Routinely, the FAA and County avoid environmental impact statements [EISs] and environmental impact reports [EIRs] required respectively under the National Environmental Policy Act [NEPA] and California Environmental Quality Act [CEQA].
NEPA [42 US Code §§ 4321- 4375] & CEQA [California Public Resources Code §§21000 to 21177]: Not Created Equal.
NEPA & CEQA share a theme. Before the government proceeds with its own project or approves yours, the project’s environmental effects must be studied. Will the project dirty the air? Poison water? Clog traffic? Wipe out wildlife? Expose the environment or humans to hazardous materials? Boost noise? Or, otherwise harm?
NEPA governs projects requiring federal approval. CEQA governs California state or local agency projects. Palomar Airport projects sometimes require NEPA approval, other times CEQA approval. Why? Because the FAA regulates aircraft using Palomar but the County regulates projects constructed at Palomar and grants leases to airport tenants. When an action or project requires discretionary approval, the FAA and County must comply with NEPA & CEQA respectively.
If environmental harm may result, the project must be assessed. Significant harm and ways to mitigate it must be identified. For example, airplane noise might be hushed by an air carrier using quieter aircraft, altering flight tracks, or maximizing engine power only at certain altitudes.
But CEQA imposes much heavier burdens than NEPA. Courts view NEPA as a “procedural” law. Hurdle the NEPA hoops and the project likely proceeds. NEPA requires that environmental problems be disclosed, not solved.
In contrast, courts view CEQA more substantively. Generally, project-caused harms must be mitigated to the extent reasonable. California agencies can adopt a “Statement of Overriding Considerations” when approving a project. What does this mean? Simply that the government may deem a project too important to disapprove or impose mitigation on. In this case, the only remedy citizens have is to oust their representatives from office.
More FAA & County Environmental Sidestepping: Certifying Aircraft for Palomar Use
In July, the FAA circulated a NEPA environmental assessment [EA] [not a detailed EIS] related to California Pacific Airline’s [CPA] desire to operate new turbojet service. I provided extensive comments on the EA to the FAA. NEPA requires the FAA to respond soon to my comments, those of Carlsbad, and other comments. A future blog will assess the FAA responses.
My EA comments noted that:
- the EA referred to CPA proposing two new aircraft, the EMB-170 and the even larger EMB-190;
- the EA provided some detail on the FAA’s EMB-170 assessment but not for the EMB-190 assessment;
- the EA had been circulated prematurely because the appropriate EMB-190 data had not been provided;
- the EA had failed to discuss the safety and environmental risks associated with heavy EMB aircraft using the 1000-foot Palomar 30-foot deep, methane-emitting closed Palomar landfill as a runway safety area;
- the EA used limited daily operational data and time periods to assess environmental impacts, and
- the EA claimed Palomar Airport was unzoned despite being subject to Carlsbad zoning & planning restrictions.
Are the FAA and County fairly applying NEPA and CEQA?
Safety Analysis: The circulated-EA did not analyze whether the FAA should designate Palomar’s problem-plagued landfill as a runway safety area for EMB or other large aircraft. But to certify EMB or other large aircraft for use at Palomar, the FAA must conclude that such aircraft use is safe and environmentally sound. How does the FAA so conclude without ever disclosing the issues to the public and analyzing the issues? FAA NEPA trick: Simply avoid the issue.
Compliance with Carlsbad Conditional Use Permit 172. Carlsbad commented on the circulated FAA CPA EA: “Longstanding city policy has been to support CRQ [Palomar Airport] as a general aviation facility. … The proposed passenger airline service with planes seating 70 or more passengers could conflict with the City of Carlsbad’s Land Use Element Objective to support general aviation.”
Is the FAA and County position simply: “We don’t need to amend Carlsbad Permit 172; when larger aircraft serve Palomar, there is nothing Carlsbad can do about it.” FAA NEPA trick: Ignore current airport zoning and conditional use permit restrictions and the impact of certifying larger commercial aircraft for use at a limited use airport.
CEQA Avoidance. Records produced suggest that the County has not yet given CPA a long-term lease. Normally, grant of a long term lease triggers an EIR assessing the environmental impacts over the lease term. How does the County avoid an EIR assessing the safety and environmental issues created by a new long-term tenant?
Will the County claim that the FAA NEPA analysis eliminates the need for a CEQA analysis? To do so, of course, ignores the fact that NEPA is a procedural statute and CEQA a substantive statute with different requirements. Or will the County try to avoid CEQA by continuing to grant CPA very short term agreements. County CEQA Trick: Split the “project” between different levels of government and/or time periods and then rely on a NEPA analysis non-compliant with CEQA? Only time will tell.
Next Week’s Blog 10: Palomar Airport Expansion: How to Examine Future FAA & County Environmental Documents