A question of jurisdiction has killed the latest court challenge to the Bloomberg administration’s plans for a marine trash-transfer facility across Flushing Bay from LaGuardia Airport.
Dashing the hopes of opponents who claimed the transfer station would attract birds that would endanger aircraft, the U.S. Court of Appeals for the Second Circuit said a Federal Aviation Administration letter urging New York City to adopt recommendations to keep birds from congregating was not a "final order" that it could review.
The ruling came in a long, heated battle in which project opponents enlisted the support of hero pilot Captain Chesley Sullenberger, who successfully landed US Airways Flight 1549 in the Hudson River on March 4, 2009, with no casualties after the plane flew into a flock of Canada Geese while taking off from LaGuardia.
Southern District Judge Alvin Hellerstein (See Profile), sitting by designation, and Second Circuit Judges Peter Hall (See Profile) and Denny Chin (See Profile) were asked to review a 2010 Federal Aviation letter endorsing a series of recommendations by a panel of experts on the impact of the facility on safety at the airport.
The letter at issue in Paskar v. U.S. Department of Transportation, 10-4612-ag, challenged by general aviation pilot Kenneth Paskar and Friends of LaGuardia Airport Inc., concerned the city’s plans to reopen the coastal garbage transfer facility at College Point, Queens, 2,206 feet across Flushing Bay from the landing threshold of Runway 31.
The facility, the North Shore Marine Transfer Station, is one of four the Department of Sanitation announced in 2006 that it planned to reopen to handle the 50,000 tons of garbage and recyclables it collects every day—with garbage trucked to the stations, loaded onto sealed containers and transferred by boat to other collection points or disposal sites.
Twice, once in 2006 and again in 2008, Federal Aviation studies resulted in a finding of "No Hazard" on the plan. In the 2010 letter, the agency agrees that reopening the facility would be compatible with safe air operations as long as the city followed recommendations in a 2010 report from a blue ribbon panel of experts appointed by U.S. Secretary of Transportation Ray LaHood to study the plans.
The panel had concluded that the construction of an enclosed transfer station, where trucks could enter quickly through fast opening doors and dispose of trash in sealed containers, would "achieve compatibility" between the station and LaGuardia "with respect to bird strikes and safe air operations."
When Paskar and Friends of LaGuardia challenge the letter at the circuit, the Department of Transportation and the Federal Aviation Administration moved at the threshold to dismiss for lack of jurisdiction. But a motions panel at the Second Circuit denied the motion on April 6, 2011, saying the letter was a "final order."
The motion panel’s decision was revisited, and voided, in the opinion issued April 10 by Hellerstein, Hall and Chin.
Hellerstein, writing for the panel said, "No term in the Letter ‘imposes an obligation’ on the City, ‘denies a right’ of the City or ‘fixes some legal relationship’ with the City,’"—criteria used in New York v. FAA, 712 F.2d 806 (2d Cir. 1983).
The letter, he said, urged the city to adopt the panel’s recommendations, saying they were "important for the city to adopt."
"However, there is nothing in the Letter that commands the City to stop, change, or continue construction of the North Shore Station," Hellerstein said. "A letter advising the City to follow safety recommendations, without more, hardly ‘fixes a legal relationship.’ The City could have accepted or rejected the FAA’s recommendations without recourse by any party."
Hellerstein said the Fifth Circuit has advocated a "moral suasion" test in which an order can have "sufficient moral force" such that it can be deemed final and reviewable. Air Line Pilots’ Ass’n Int’l v. DOT, 446 F.2d 236 (5th Cir. 1971).
"That is not the test in the Second Circuit," Hellerstein said. "However, even if we were to apply the ‘moral suasion’ test, petitioners’ claims would still fail because the FAA Letter did not impose ‘a practical stumbling block to the construction’ of the North Shore Station and was consistent with the FAA’s two prior No Hazard determinations."
Randy Mastro of Gibson Dunn & Crutcher argued for Paskar and Friends of LaGuardia.
Steve Taber of Taber Law Group in Irvine, Calif., who also represented the petitioners, said his clients are weighing their appellate options.
"We are disappointed that the court chose to address the case on procedural or technical issues rather than the issue of aviation safety," Taber said.
In a statement, John McCarthy, a spokesman for Mayor Michael Bloomberg, said, "We’ve prevailed in eight separate lawsuits challenging various aspects of this critical project at the trial level. Including appeals, it’s now 11 times that a court has ruled against those who don’t want to bear their fair share of the load to dispose of the 11,000 tons of garbage that New Yorkers produce every day. While they have unnecessarily delayed this project, we will continue to do what it takes to implement the landmark Solid Waste Management Plan."
@|Mark Hamblett can be contacted at firstname.lastname@example.org.