Court Puts National Park Overflights on Tight Leash

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Tuesday, June 28, 2022
Paula Dinerstein (240) 247-0299

Court Puts National Park Overflights on Tight Leash

Agencies Taken to Task for Violating Air Tour Management Plan Deadlines


Washington, DC —The future of air tours above two dozen national parks is up in the air due to agencies’ failure to complete court-ordered management plans by this August.  In an unusual move, the U.S. Court of Appeals for the District of Columbia has ordered the top officials of both the Federal Aviation Administration (FAA) and National Park Service (NPS) to personally explain why they cannot finalize long overdue air tour limits as directed, in response to an enforcement motion from Public Employees for Environmental Responsibility (PEER). 

In 2020, PEER won a court judgment requiring the two agencies to finally implement the National Park Air Tour Management Act of 2000, which requires limits on park overflights to limit noise and disruption in any park with more than 50 overflights a year.  Not a single such plan has been completed in the more than 20 years the law had been on the books.   

The Court set a deadline for August 31st of this year to have air tour management plans in all 24 parks, ranging from New York Harbor to Mount Rushmore to Golden Gate National Recreation Area, hosting more than 45,000 commercial air tours each year.  

As that deadline neared, the agencies began to admit their inability to comply, with estimated slippage expanding in each “progress report.”  In addition, the agencies have eschewed the eco-reviews required under the National Environmental Policy Act (NEPA).  For several parks, they propose to merely grandfather in all existing flights previously approved on an “interim” basis. 

Granting in part an enforcement motion filed by PEER, in a June 21 order, the Court directed the two agencies “to file a joint supplemental report by July 21, 2022, in which they:  

1) explain why the agencies were unaware that they were behind schedule as of their November 24, 2021 status report;
propose firm compliance dates for each park; and
3) provide the legal basis for any anticipated categorical exclusion and the date by which the agencies will make that determination.”  Categorical exclusion is the procedural device the agencies propose to use to avoid NEPA compliance. 

“The basis of our lawsuit was unreasonable delay in adopting air tour management plans and the Court is signaling that it will not tolerate further unreasonable delays,” stated PEER General Counsel Paula Dinerstein, noting the agencies have no plausible “legal basis” for avoiding NEPA review.  “The whole point of the management plans is to ensure that overflights are not too noisy and disruptive, which requires the type of analysis these agencies continue to avoid.” 

The Court also required that this report “shall be signed by the Administrator of the Federal Aviation Administration and the Director of the National Park Service in addition to counsel…” 

Left unanswered is what happens when the agencies violate the August 31st deadline.  The Court ruled that PEER’s “request for an order limiting air tours at noncompliant parks is denied without prejudice” – meaning that the issue can be revisited. 

“Our aim is to curb abuse, we are not trying to ground all overflights in every park,” added Dinerstein, pointing to a park like Hawai’i Volcanoes which suffers a noisy helicopter tour every 8 minutes from dawn to dusk.  “Overcoming the entrenched recalcitrance of these two agencies may require a swift legal kick in the rear, however.”  


Court of Appeals Order

PEER Enforcement Motion 

Compare agencies’ response

View growing slippage in air tour deadline 

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