May 23, 2002
HATS returns to court
By BARBARA FORSTER
The four Hanscom communities are headed back to the courtroom in another effort to keep Shuttle America out of the air.
The towns of Bedford, Concord, Lexington and Lincoln have asked a federal court to review a Federal Aviation Administration order that allows the airline to fly from Hanscom to Westchester County Airport in New York.
" We’re responding to action by an agency, " said Gary Clayton of Concord and chairman of the Hanscom Area Towns Committee.
The FAA recently granted Shuttle America, now affiliated with US Airways, permission to fly to Westchester. So far the flights are on hold but the order is still in effect.
The communities argue that the FAA did not have an adequate traffic analysis and that the agency failed to initiate consultation under Section 106 of the Historic Preservation Act which takes into account the effect of an undertaking — in this case flights over historic properties.
HATS alleges the FAA also goofed by not performing an environmental assessment. (Environmental assessments determines whether there is sufficient need for a more comprehensive environmental review).
Although the courts ruled against the towns on similar arguments last year when Shuttle America wanted to go to LaGuardia, Save Our Heritage representative Marty Pepper Aisenberg stressed that this year’s case is different. Despite the court’s " no " vote, the decision said that allowing additional flights can qualify as an undertaking. In the last round, the FAA argued that changing operation specifications was not an undertaking.
According to Pepper Aisenberg, " the FAA cannot adhere to its pre-litigation position in light of the court’s unequivocal ruling on this point. "
Furthermore, the court wrote that cumulative effects could have a major impact on the region. If any plans or proof exist that this could happen, that could conceivably require an overall assessment.
" If Shuttle America or other airlines undertake a series of proposed expansions, it will be time enough to consider whether new and projected activities need to be considered together, " wrote Judge Michael Boudin, who prepared the decision.
Shuttle America’s Mark Cestari admitted he was surprised to learn of the legal maneuver inasmuch as the airline is not currently flying to Westchester. " It seems like a curious move, " he said. " We’re going to investigate this. "
If US Airways, which reports financial difficulty, shuts down the process would end. However, declaring bankruptcy would not have the same effect.
" Shuttle America was in Chapter 11 (during last year’s court fight) and they were still flying, " said Pepper Aisenberg.
In April, the group Save Our Heritage independently asked the FAA to review this decision. So far the agency, which is not required by law to respond to such requests, has not.
The petition was filed with the United States Court of Appeals for the First Circuit last week. The towns along with Safeguarding the Historic Hanscom Area’s Irreplaceable Resources, Save Our Heritage, the Walden Woods Project, The Minute Man National Park Association and the Louisa May Alcott Memorial Association are asking for help.
To date, the towns have a zero in the win column of court battles against
Shuttle America which began in 1999.
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