January 1, 2012
By John S. Yodice
The airspace in which we fly is finite. There will be no more. So what we have needs preserving. The FAA is charged with evaluating proposed structures in order to determine if the structures will be “hazards”—that is, obstructions—to air navigation, or to navigational or communication facilities. That process is illustrated in a recent decision of the United States Court of Appeals for the District of Columbia Circuit. The decision is worth review because the court is critical of the FAA for giving short shrift to the possible hazardous effects on VFR flight, a welcome precedent.
The court decision involves a proposal to build the nation’s first offshore wind farm, comprising 130 wind turbines 440 feet tall in a 25-square-mile area of Nantucket Sound, Massachusetts. It’s in a well-used VFR flyway midway between the Barnstable, Nantucket, and Martha’s Vineyard airports.
FAR Part 77 requires that notice be given to the FAA of any proposed construction or alteration that is more than 200 feet agl at its site or that meets certain criteria that could affect nearby airports. It describes the standards used to determine obstructions to air navigation that may affect the safe and efficient use of navigable airspace and the operation of air navigation and communication facilities. An object that is of greater height than 499 feet agl is presumed a hazard to air navigation unless further aeronautical study concludes otherwise.
In this case the FAA conducted an extensive aeronautical study. It circulated a public notice of these studies and invited comments. The FAA ultimately issued 130 identical determinations of “No Hazard,” one for each of the proposed wind turbines. It concluded that the turbines “would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on operation of air navigation facilities.” It was these determinations that were challenged in court by the town owning and operating the Barnstable airport, by a citizens group, and by others. The challengers argued, among other things, that the FAA departed from its own internal guidelines, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation.
In the administrative proceedings before the FAA, the managers of the Barnstable, Nantucket, and Martha’s Vineyard airports—and other aviation interests, including AOPA—told the FAA that many pilots who regularly operate under VFR near the proposed wind farm would have a difficult time staying beneath the foggy and otherwise inclement weather that often plagues Nantucket Sound, while at the same time maintaining a safe distance from the wind turbines. During such times, there would be a “clear risk of collision with the wind turbine generators.” Attempts to circumvent the turbines would be “problematic because even horizontal diversions of only one or two miles can further compress air traffic into congested corridors.” The “finely balanced airspace over Nantucket Sound is already one of the most congested, foggy, and dangerous airspaces on the eastern seaboard.” The “encroachment of established VFR routes [would] severely compromise [pilots’] ability to execute collision avoidance maneuvers in the dead center of the three airports of Nantucket Sound.” Even the National Air Traffic Controllers Association commented that adding the turbines to the area would be a “disaster waiting to happen.”
It is a peculiarity of these proceedings that the FAA hazard determinations, by themselves, have no enforceable legal effect. Their real effect is on the agencies that have the jurisdiction to approve or disapprove the structure. In this case, the Interior Department, as lessor of the project, is the ultimate arbiter of whether the wind farm receives government permission.
In its decision the court agreed with the aviation interests that the FAA’s “No Hazard” determinations were arbitrary and capricious because they departed from the FAA’s own internal guidelines. The FAA finding of no adverse effect on VFR operations relied solely on one section of its handbook that says that a structure would have an adverse effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within two statute miles of any regularly used VFR route. The FAA overread this section by concluding the turbines would not have an adverse effect because they would not exceed the 500-foot threshold. At the same time the FAA ignored another part of the handbook also dealing with determining adverse effect. That part said that “a proposed or existing structure… has an adverse effect if it would…require a VFR operation, to change its regular flight course or altitude.” The FAA failed to consider this part, and failed to supply any apparent analysis of the record evidence concerning the wind farm’s potentially adverse effect on VFR operations. A study commissioned by the FAA indicated that many flights flew through the area around the proposed project.
“The FAA may ultimately find the risk of these dangers to be modest, but we [the court] cannot meaningfully review any such prediction because the FAA cut the process short in reliance on a misreading of its handbook and thus, as far as we can tell, never calculated the risks in the first place.” The FAA determinations were vacated by the court, and the matter was remanded back to the FAA. We hope that this decision will heighten the FAA’s concern about the effects of proposed construction on VFR flights not only in this case but also in other proposals to come.
John S. Yodice is the secretary for the AOPA Board of Trustees.
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