ELR Citation: 41 ELR 20330
No(s). 10-1276 (D.C. Cir. Oct 28, 2011)

The D.C. Circuit vacated and remanded the FAA's "no hazard" determinations for a proposed offshore wind farm in Nantucket Sound. A town and a citizens group filed suit arguing that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. The FAA countered by arguing that the petitioners lacked standing because the hazard determinations, by themselves, have no enforceable legal effect since the DOI, as the lessor of the project area, will ultimately decide whether the wind farm receives government permission. But courts have often found standing where there was no binding legal mechanism by which the challenged action might be redressed. Here, it is "likely, as opposed to merely speculative," that the DOI would rethink the project if faced with an FAA determination that the project posed an unmitigable hazard. As for the merits, the court agreed that the FAA's no hazard determinations are arbitrary and capricious. The FAA failed to analyze the wind farm's potentially adverse effects on "visual flight rule" operations, thereby departing from its own internal guidelines.