Lexington Minuteman
August 9, 2001

Hanscom, FAA face off in federal court
By Barbara Forster, Correspondent

The Hanscom communities and the Federal Aviation Administration were
face-to-face in federal court before a three-judge panel on Thursday, Aug.

In the United States Court of Appeals for the First Circuit, attorney Andrea
Ferster of Washington, D.C. - she represented the communities, Safeguarding
the Historic Area's Irreplaceable Resources, and Save Our Heritage - said
that the FAA goofed last year when it gave Shuttle America approval to offer
service to LaGuardia from Hanscom. Ferster argued that the FAA violated
Section 106 of the Historic Preservation Act by not taking into account the
effects of the undertaking - in this case, additional flights from the air
field to LaGuardia - on nearby historic properties.

Among the oral arguments before judges Michael Boudin, Kermit Lipez, and
Bruce Selya, Ferster pointed out that the effect of ground traffic was not
considered. The " robust scenario, " she argued, presented in the 1995
Generic Environmental Impact Review - which analyzed the amount of traffic
that corresponds with that produced by Shuttle America's addition of the
LaGuardia flights - predicted severe congestion and intersection failure.

" The (Minute Man National Historical) Park says that once the roads fail,
there will be pressure to widen and expand the Battle Road, " she said. "
Agencies (like the FAA) have an obligation to consider not only direct
effects but secondary effects. "

Ferster added that no case law covers the issue of cumulative effects.

Alice Thurston, who represented the FAA, maintained that the agency followed
the rules which allow an agency - in this case the FAA - to make a
unilateral decision if it determines that the undertaking has no potential
to cause an effect.

The good news, she added, is that even a unilateral decision is not "
definitive " because opponents can seek judicial review.

Earlier, however, Judge Lipez theorized that " language in the regulation
points in both directions " could make the decision arbitrary and
capricious. " If you make the decision (that the effects are not
detrimental) that ends the process, " he said. " It sounds like you're
closing the barn door after the horse leaves. "

Thurston also contended that amending Shuttle America's operating
specifications was not an undertaking - they only " considered " it one for
the purpose of analysis because the changes had " more effect on LaGuardia "
than on Hanscom.

Judge Selya, however, was hesitant. " I have more trouble understanding why
an amendment to the operating specs shouldn't be considered an undertaking,
" he said.

Both sides admitted that language in the regulation dealing with "
undertakings " was murky enough for the Historic Preservation Council to
revamp the regulations last year. The preamble to these changes states that
" The previous language implied that making such a determination related to
the circumstances of the particular undertaking, rather than the more
generic analysis " of whether the type of undertaking could have effects. In
the clarified regulations, an undertaking is described as a " type of
activity " that has the potential to affect historic properties. With this
definition, baggage handling changes, for example, would not be an

The FAA, however, followed the regulations as they were written in 1999.

A decision is expected sometime in the next two to six months. However, the
case could be thrown out entirely if Shuttle America decides not to resume
flights to New York and/or if the airline goes out of business. Currently
the Big Apple route is on hold while the airline works out new fiscal plans.

In addition to being curious about how cumulative effects are handled, the
judges asked why the communities waited until LaGuardia was in the picture
before challenging the FAA.

" Our view is that this would have applied at any point, " said Ferster. "
Plus petitioners are not in the unusual posture of being too early or too
late. "

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