The Concord Journal
October 25, 2001

Hanscom appeal denied by court
Shuttle America increases flights

By Barbara Forster, Correspondent

The day before the number of flights were scheduled to increase at Hanscom
Field, a federal appeals court rejected an appeal for a detailed review of
commercial aviation expansion at the Bedford airport.

Concord-based preservation groups argued in the appeal that the Federal
Aviation Administration should have conducted a review under the National
Historic Preservation Act before allowing Shuttle America to start daily
roundtrip flights last fall between Hanscom and New York’s LaGuardia

But, using phrases like " gauzy generalizations " and " pinprick criticisms
" regarding some community charges against the Federal Aviation
Administration, 1st U.S. Circuit Court of Appeals judges gave the aviation
regulators a pat on the head.

In a decision handed down late Tuesday, the judges ruled that the FAA did
not act improperly when the agency gave Shuttle America permission to fly
from Hanscom to LaGuardia.

Judge Michael Boudin, who wrote the decision, stated that the FAA made "
specific findings that the effects on the environment and on historic
properties " from approximately 10 daily flights amid nearly 100,000 annual
flights " would be de minimis, " or too small to matter.

" If the question were at all close and if plausible doubts had been raised,
requiring a more elaborate assessment with more extensive consultation might
serve some useful purpose, " wrote Boudin. " But neither is the case and, in
these circumstances, the error (if there was one) is harmless. "

The initial response from Anna Winter, executive director of Save Our
Heritage, a Concord-based preservation group, was that " we respectfully
disagree. "

But, she added, " In the narrow perspective the decision is disappointing,
considering the long hours and hard work that went into the case. But in the
broader perspective, it is nothing short of empowering because of the unity
among the communities, the state and federal organizations. "

Shuttle America, which has filed for Chapter 11 bankruptcy, halted the
service to New York but plans to resume flights eventually, company
spokesman Mark Cestari has said.

And in a deal with US Airways, Shuttle America yesterday planned to begin
six roundtrip flights on business days between Hanscom and Trenton, N.J.,
and five between Hanscom and Philadelphia.

Preservation groups and residents in the four Hanscom area towns — Bedford,
Concord, Lexington and Lincoln — remain concerned about piecemeal commercial
airline expansion and its potential to harm nearby historic sites.

Safeguarding the Historic Area’s Irreplaceable Resources (ShhAir), the four
Hanscom communities, the National Trust for Historic Preservation, the
Massachusetts Historical Commission, Walden Woods Project, and the Alcott
Association are among the groups that supported the case.

The Massachusetts Port Authority, which operates Hanscom, supports
commercial flights at the suburban airport as a way to relieve air traffic
congestion at Boston’s Logan Airport.

" As far as the FAA is concerned, the court validated that they followed the
proper procedure — they did the necessary review, " said Richard Walsh of
Massport. " The decision also validates what Massport has done. "

The decision also included caustic comments about arguments not made. For
example, the court said that despite the FAA’s assessment that a " tiny
percentage increase in flights " would have a minimal effect, that argument
could, in principle, be overcome by a sustained and organized rebuttal.

" Nothing offered by petitioners approaches such an effort, " wrote Boudin.
" Gauzy generalizations and pinprick criticisms, in the face of specific
findings and a plausible result are not even a serious start at a serious
assault. "

Winter acknowledged that arguments did not specifically counter traffic,
noise or air-quality data; the case was pulled together quickly.

" In retrospect if we’d had a year to prepare, we could have hired experts
(to study those specifics) but there was no time to do that between when the
FAA said they were going forward with the Section 106 process and when they
said they were not, " she said.

" When you’re involved in this kind of case, you go for the strongest
argument, " Winter added. " Our attorney is the leading authority on Section
106 and she believed that the most important issue was procedural. "

In August, the communities argued that the FAA erred last year when Shuttle
America received an approval to offer service to LaGuardia from Hanscom.
They argued the FAA violated Section 106 of the Historic Preservation Act by
not taking into account the effects of the undertaking on nearby historic

According to Boudin, the process is complex and was further complicated by "
unclear " language in Section 106 that was changed after the FAA decided
that it had completed its obligation to environmental review. Because other
language is still muddy, the FAA might have been able to find another

" We need not resolve any of these questions, " added Boudin. " The
consultative process is intended in the end to identify and measure the
adverse effects of a proposed action on a protected interest so that those
effects can be considered by the responsible agency. "

The court stated that the FAA did that.

On the other hand, the judges left the door ajar to future environmental
reviews for the impacts from increased flights on historic properties.
Because cumulative effects could have a major impact, any plans or proof
that this could happen " could conceivably " require an overall assessment.

" But we are not faced with any such developed claim in this case, nor do
the known facts suggest any such thing, " wrote Boudin. " 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. "

That was good news, according to Winter. " It’s clear that the court
recognizes that successive additions of flights could harm these historic
properties, " she said.

While continued legal action is not being planned, activists intend to
redouble their efforts to end commercial aviation at Hanscom.

" We need to find a way to have a say in what happens at Hanscom, " Winter
said. " Ultimately, we’re going to win in the court of public opinion. And
there will be a groundswell that will be impossible to ignore. "

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