“P” in PEER Also Stands for Persistent

One of the main functions at PEER is helping conscientious government employees change official behavior. Often that means taking legal action to force agencies to do what they are supposed to do. 

Lawsuits against government agencies are not lightly undertaken and, in many instances, are not quickly resolved. Winning often requires pure persistence. Take our successful lawsuit to curb noisy, disruptive tourist overflights across national parks. That victory was years in the making and the work is still not done.  

PEER got involved in this battle because the superintendent at Glacier National Park was told by the Federal Aviation Administration (FAA) that his jurisdiction stopped at the treetops and there was nothing he could do to curb loud helicopters from hovering over sensitive areas even during breeding seasons. 

In 2017, we sued the FAA claiming that it had ignored its obligations under the National Parks Air Tour Management Act of 2000. The FAA’s defense was that we also needed to sue the Park Service, which was supposed to jointly develop air tour management plans with the FAA. We spent a year in court and ultimately lost that argument. 

As a result, in early 2019, we turned around and sued both agencies, claiming that their failure to develop a single plan in all those years was unreasonable.  

In 2020, we finally won an order directing the two agencies to finalize air tour management plans in 24 national parks, ranging from New York Harbor to Death Valley, and to have those plans completed by the end of August 2022.

As that August 2022 completion date approached, the two agencies’ court-ordered progress reports started to show significant slippage. As that deadline got even nearer, it became clear that the two agencies were going to short-circuit the process of preparing air management plans by eschewing any environmental analysis of effects or consideration of alternatives, as required by the National Environmental Policy Act (NEPA).

Instead of considering impacts of noise levels, routes, or hours of operation in several parks, the two agencies were simply taking the average of actual flights for the prior three years and then declaring that traffic level as their plan – completely defeating the purpose of developing an actual management plan to protect park resources, soundscapes, and visitors experience. 

After asking the Court of Appeals for the DC Circuit (which has original jurisdiction over the case) to enforce its original order three times, in March 2023 we filed a new suit challenging the adequacy of the air tour plans using the three-year average in four San Francisco Bay Area parks – most notably Golden Gate National Recreation Area and Point Reyes National Seashore.

As we wait for this latest complaint to be fully briefed, the two agencies announced the first new air plans that benefitted from the NEPA process – and they were substantially different. At two parks, Mount Rushmore and Badlands, the decision was to eliminate overflights altogether. Since then, Bandelier has joined the ranks of parks going flightless.  

Meanwhile, the NEPA-compliant plans for two Hawaii parks with ultra-high levels of overflights, Hawaiʻi Volcanoes and Haleakalā, propose sharp reductions of air traffic.

While there is much more work to be done, the last six years of litigation has produced significant progress in national parks reclaiming control over their skies. 

Much of our work at PEER requires a high degree of dedication and persistence. We invite you to join the fight.

Paula Dinerstein is PEER’s General Counsel and sits on the Board of Directors for Beyond Pesticides.