Superseding its own wide-ranging mandate to the executive branch of the U.S. government to carefully study the environmental impacts of that branch’s administrative actions, Congress on Feb. 6 enacted the FAA Modernization and Reform Act of 2012. The act’s stated purpose is to “authorize appropriations to the Federal Aviation Administration for fiscal years 2011-2014” It is, however, other provisions of the legislation that most profoundly affect the public.

Purportedly to “streamline programs, create efficiencies, reduce waste and improve safety and capacity,” the act exempts all new area navigation (RNAV) and required navigation performance (RNP) procedures—which, collectively, comprise the Next Generation Air Transportation System (NextGen) definitions—from environmental review under the National Environmental Policy Act (NEPA).

The act, generally, mandates that all

…navigation performance and area navigation procedures developed, certified, published or implemented under this section [Section 213] shall be presumed to be covered by a categorical exclusion (as defined in § 1508.4 of Title 40, C.F.R.) under Chapter 3 of FAA Order 1050.1E, unless the Administrator determines that extraordinary circumstances exist with respect to the procedure.

The act expands on this mandate in § 213(c)(2):

NEXTGEN PROCEDURES—Any navigation performance or other performance based navigation procedure developed, certified, published or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace, shall be presumed to have no significant effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.

Therefore, dramatic changes in the configuration of the national airspace system to be implemented throughout the U.S. over the next few years will be relegated to:

a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations …  and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.

This is so, despite the fact that, in many cases, the new NextGen procedures will implicate numerous communities never before overflown, or never overflown at the same low altitudes. Newly affected populations will thereby be deprived of an avenue of redress in the courts through NEPA on which they have come to depend to level the playing field usually dominated by governmental action. The fundamental intent of NEPA—to allow the public a chance to review and comment on governmental actions before they are taken—is effectively bypassed by the act. Nor do the conditions on a finding of categorical exclusion, such as the requirement for a measurable reduction in fuel consumption, carbon dioxide or noise, mitigate the adverse impacts of the exemption, as the determination that those conditions exist is within the exclusive discretion of the FAA administrator, the same party charged with implementing the NextGen program.

Finally, § 505 amends 49 U.S.C. § 47504 to allow the Federal Aviation Administration to “disregard any decrease or increase in the fair market value of the real property caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for the project. . .”

Thus, hypothetically, once government announces a program of eminent domain, it may wait an unlimited amount of time to appraise the property in the hope that the value will diminish by virtue of the threat itself, or of the deterioration of the surrounding areas caused by voluntary relocation in the face of the threat of condemnation.

This appears to be precisely the inequity that the weight of Supreme Court jurisprudence has sought to eliminate. It is true that this case differs nominally from the typical case of inverse condemnation, such as a taking by government of all economically viable use of a property by regulation without just compensation. However, the absence of compensation for the indeterminate period before the actual purchase of the property, during which time the property arguably has no economically viable use, is paramount to the temporary taking at issue in, among other seminal cases.

In summary, the FAA Reauthorization Act grants to the FAA regulators the discretion to disclose or not to disclose the impacts of new NextGen procedures on previously non- or marginally impacted communities, as well as to determine timing, and, thus, the amount of compensation for reduction in the value of those impacted properties to be taken in eminent domain. Thus, the FAA Reauthorization effectuates a substantial increase in FAA’s regulatory power as well as in its funding.