N E W S + H O T T O P I C S
Part 139 airports are required by FAA regulation to use and test firefighting foam that contains per- and polyfluoroalkyl substances (PFAS). The use of PFAS has taken on increasing urgency for the federal government, private entities, and local governments as it becomes apparent that contamination is widespread across many different industries and users. In February, the Environmental Protection Agency released a PFAS Action Plan – a broad overview of its various strategies to address PFAS issues on a national level, but there have not been any formal proposed regulations. In the absence of comprehensive federal regulation, a wide variety of state governments and agencies have adopted standards and policies of their own.
For airport sponsors, the potential liability concerns associated with PFAS contamination in soil or groundwater are particularly alarming. Provisions of the FAA Reauthorization Act of 2018 require FAA to phase out the PFAS requirement by 2021, but no specific plan has been released. FAA published a Part 139 CertAlert (discussed in a previous Airport Law Alert) that approves certain non-contaminating testing methods and provides some guidance on potential strategies for mitigating PFAS contamination. Most recently, FAA issued a Program Guidance Letter assessing the AIP eligibility of testing equipment that would reduce the discharge of contaminants. These provide some assistance for airport sponsors looking to mitigate future contamination, but there has been no indication about when new formal regulations eliminating the requirement may be forthcoming.
Airport sponsors should continue to be vigilant about PFAS contamination, including being alert for future (or current) regulations at the federal and state levels.
For more information about PFAS issues, please contact Polly Jessen, Nate Hunt, or Nick Clabbers.
As it sought to keep up with the rapidly evolving field of unmanned aircraft systems, Congress made a number of statutory changes and mandated several new regulatory schemes in the FAA Reauthorization Act of 2018. Since the legislation’s enactment last autumn, FAA has been working to implement those changes.
As part of this effort, there has been important, new information and guidance for airports on drone issues. In light of drone incursions at Gatwick, Heathrow, Newark, and others, many airport sponsors are considering whether the installation of counter-drone and/or detection technology is appropriate or permissible; while FAA has not explicitly prohibited those measures, it did issue a series of letters (linked below) warning sponsors that this type of technology may violate federal law and could conflict with the Grant Assurances. In the interim, FAA recommends that sponsors develop a response strategy with local law enforcement and work with local stakeholders to educate operators about flights near the airports.
FAA also published several new draft operational rules, including for drone operations at night and over people, and a final rule requiring that drones be marked with an identification number on the outside. Separately, FAA released a notice outlining how the agency will soon integrate recreational operators into the national airspace. While this plan will have many components, the most important piece for airports is that recreational operators will use the Low Altitude Authorization and Notification Capability (LAANC) system to apply for FAA authorization for flights in controlled airspace – just as commercial operators do now. A full list of the air traffic facilities (approximately 600 airports) participating in LAANC is available on FAA’s website.
Notably absent from these efforts is any formal announcement or status update on a Remote Identification rulemaking, a key aspect of drone regulation and safety efforts at airports. The last formal update came in late 2018, when FAA released a request for information on technical capabilities to implement Remote ID. It is unclear when a draft rule may be forthcoming.
While most airports address drone issues at an operational level, airport lawyers need to stay alert of changes in state and local law and FAA requirements, especially with regard to what actions airport sponsors can—and cannot—take to address actual or potential drone operations in the vicinity of their airport.
For more information about UAS issues, please contact Eric Smith or Steven Osit.
The recent enactment of Section 163 of the FAA Reauthorization Act of 2018, codified in part at 49 U.S.C. § 47107(a)(16), brought some welcome Clarity and relief for airport sponsors who engage in non-aeronautical development. Section 163 explicitly prohibits FAA from exercising authority to “directly or indirectly regulate” certain non-aeronautical property transactions, except (1) to ensure the safe and efficient operation of aircraft or the safety of people and property on the ground, (2) to ensure the receipt of fair market value for the use or disposal of property, or (3) where the property was itself purchased with AIP grants or is subject to the Surplus Property Act. In addition, Section 163 restricts FAA to reviewing and approving only those ALP amendments which “materially impact” safety and efficiency for aircraft operations, or “adversely affect the value of prior Federal investments to a significant extent.”
Practically, Section 163 stands for the proposition that if a parcel (1) is already designated as non-aeronautical on an approved ALP, (2) was not purchased with federal funds or donated from the federal government, and (3) will be developed in a manner that will not impact the safe and efficient operation of the airport, the sponsor may immediately begin leasing and development with no formal approval from FAA.
This provision is still in its infancy; while the statute does not require any FAA implementing regulation, the Associate Administrator has stated at industry conferences that FAA is considering issuing formal interpretive guidance. There is no published timetable for such guidance. Nonetheless, airports are taking advantage of the new flexibility mandated by the statute. In two recent projects at Dallas/Fort Worth International Airport and Raleigh Durham International Airport, FAA requested the opportunity to review these transactions, but more importantly, found that because of Section 163, there is no federal action triggering NEPA. The result has been a vast reduction in the time and uncertainty previously associated with approvals for real estate transactions.
For more information on Section 163 and non-aeronautical development, please contact Peter Kirsch or Nick Clabbers.
At the very end of its just-concluded October 2018 term, the Supreme Court issued two opinions in non-airport cases that will have implications for airports. The facts of these cases are not necessarily relevant, but airport lawyers should be aware of the holdings and their potential consequences.
First, in Knick v. Twp. of Scott, the Supreme Court overruled a 34-year-old case and held that a plaintiff alleging a taking or inverse condemnation by a local government under the United States Constitution and 42 U.S.C. § 1983 (implementing the Fifth Amendment) does not first have to exhaust her available state remedies before filing suit in federal court. This is an important ruling for airport lawyers, particularly in the context of claims for taking, damaging, and inverse condemnation of property by way of aircraft overflights. Many of these cases have been heard in state courts—under applicable state law—on the basis on the now-overruled precedent. However, the legal standards for these claims often differ under federal and state law (including under various state constitutions), and plaintiffs may now choose to file suit in federal court immediately if the standard is more favorable. The Court did not address this choice of law question in the Knick decision. Conceivably, a plaintiff could bring suit in federal court under both the United States Constitution and any applicable state law. While the implications of Knick have yet to be understood, there is no doubt that it will affect airport-related takings and inverse condemnation litigation.
Second, in Kisor v. Wilkie, a fractured Court declined to overrule the longstanding Auer and Seminole Rock deference standard, which states that agencies are afforded deference in their interpretations of their own ambiguous regulations. The majority opinion, authored by Justice Kagan and joined in most parts by Chief Justice Roberts, reinforced that Auer should be applied in only limited circumstances where a regulation is “clearly ambiguous” and the agency has brought its expertise to bear in its reasonable interpretation of the regulation – largely a restatement of existing law. But separate opinions by Justices Gorsuch and Kavanaugh, joined in most parts by Justices Thomas and Alito, state a strong desire to overrule Auer. Future cases like Kisor, perhaps presented to a different Court, may result in the elimination of the Auer standard. This is important for airport lawyers in a variety of federal regulatory contexts. Perhaps most immediately relevant is the recent FAA Reauthorization Act that requires FAA to promulgate several new regulations, rules, and other guidance – all of which could be endangered by any disturbance of the Auer doctrine.
NEW FAA ADMINISTRATOR NOMINEE
On March 19, the President announced his intent to nominate Stephen Dickson, a recently-retired executive at Delta Airlines, as the permanent FAA Administrator. Dickson is an Air Force veteran, former commercial pilot, and holds a JD from Georgia State University. Despite recent delays associated with his involvement in a whistleblower lawsuit that was not initially disclosed, Dickson’s eventual confirmation by the United States Senate appears probable. It is unclear whether Dickson’s appointment will result in any significant policy changes for airports.
L I T I G A T I O N
Judicial Review. Kisor v. Wilkie, No. 18-15, 2019 LEXIS 4397 (June 26, 2019) (non-airport case declining to overrule precedent related to judicial deference to agency interpretations of its own rules (Auer deference)).
Inverse Condemnation and Takings. Knick v. Twp. of Scott, No. 17-647, 2019 U.S. LEXIS 4197 (June 21, 2019) (non-airport case overruling 1985 precedent and holding that a plaintiff alleging a taking by a local government under the United States Constitution and § 1983 no longer needs to exhaust available remedies in state court before filing suit in federal court).
SIDA Regulations. Ho v. Lopano, Case No. 8:18-cv-2802-T-36SPF, 2019 U.S. Dist. LEXIS 87801 (May 24, 2019) (granting motion to dismiss where plaintiff alleged airport sponsor had improperly withheld his SIDA badge in violation of federal regulations).
Revenue Diversion. Air Transp. Ass’n. of Am., Inc. v. FAA, 921 F.3d 275 (D.C. Cir. Apr. 23, 2019), pet. for reh’g denied (denying petition for review of Part 16 decision finding no violation of Grant Assurance 25 where airlines alleged that airport sponsor had impermissibly charged them certain utility fees it then paid to the City of Portland).
Anti-Trust. Dakota Terr. Tours ACC v. Sedona-Oak Creek Airport Auth. Inc., 2019 U.S. Dist. LEXIS 61678 (D. Az. Apr. 10, 2019) (dismissing federal anti-trust claims by unsuccessful lease applicant against municipal airport sponsor because sponsor was immune under the “state action” doctrine).
Grant Assurances. Boggs v. FAA, 76 Fed. App’x 80 (6th Cir. Mar. 7, 2019) (on appeal of an FAA decision under 14 C.F.R. Part 16, affirming findings that sponsor was in compliance with Grant Assurance 4 and had no affirmative obligation to purchase plaintiffs’ property near the airport).
Federal Takings. Crawford v. Antonio B. Won Pat Int’l Airport Auth., 917 F.3d 1081 (9th Cir. Mar. 1, 2019) (in case involving condemnation of property for the construction of an airport, affirming district court decision, and holding that a landowner’s ancestral property right was not a constitutionally protected interest under the Due Process Clause).
Through-the-Fence Agreements. Silverwing at Sandpoint, LLC v. Bonner Cty., 435 P.3d 1106 (Id. Feb. 26, 2019) (reversing district court decision and holding that owner of airport-adjacent property could not maintain a promissory estoppel claim because it could not show “substantial economic detriment” based upon the modification of an impermissible through-the-fence agreement and planned construction on the Airport Layout Plan that was substantially delayed).
Open Meetings and Records. Elec. Privacy Info. Ctr. v. Drone Advisory Comm., Civ. Action No. 18-833 (RC), 2019 U.S. Dist. LEXIS 28990 (D.D.C. Feb. 25, 2019) (dismissing most open meetings claims under various federal statutes for lack of subject matter jurisdiction but denying motion to dismiss as to plaintiff’s public records claims under the Administrative Procedures Act).
Reversionary Clauses. Fish v. Magnum Aviation, No. 18-cv-06671-VKD, 2019 U.S. Dist. LEXIS 26271 (N.D. Cal. Feb. 19, 2019) (dismissing various challenges to a reversionary clause in a tenant’s hangar lease and holding that because the sponsor was acting in its proprietary—not governmental—capacity, there could be no Fifth Amendment taking).
Public Records. Wyoming Jet Center, LLC v. Jackson Hole Airport Bd., 2019 WY 6 (Jan. 15, 2019) (reversing lower court decision and holding that an airport was a political subdivision subject to the Wyoming Public Records Act and that it must make certain documents publicly available).
Car Sharing Program and Fees. Turo, Inc. v. City of Los Angeles, Case No. 2:18-cv-06055-CAS (GJSx), 2019 U.S. Dist. LEXIS 6532 (C.D. Cal. Jan. 14, 2019) (denying motion to dismiss claim for declaratory relief seeking ruling that airport sponsor has no authority to impose permitting scheme and associated charges on car sharing service).
Metroplex/NextGen. City of Los Angeles v. Elwell, No. 19-71581 (9th Cir. petition filed June 24, 2019) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport).
Metroplex/NextGen. Howard Cty. v. FAA, No. 18-2360 (4th Cir. response brief filed June 7, 2019) (challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport).
Car Sharing Programs. Mass. Port Auth. v. Turo, Inc., Civ. Action No. 19-1773 (Mass. Sup. Ct. complaint filed June 3, 2019) (action alleging car sharing service is illegally operating at airport without a car rental permit from sponsor, among other claims).
Metroplex/NextGen. Maryland v. FAA, No. 18-1173 (D.C. Cir. final briefs filed May 30, 2019) (petition for review of FAA implementation of new approaches at Washington National Airport).
Metroplex/NextGen. Maryland v. FAA, No. 18-1302 (D.C. Cir. petitioner’s initial brief filed May 24, 2019) (petition for review of FAA decision denying administrative petition for supplemental environmental assessment concerning DC Metroplex and BWI).
Minimum Standards. Walker AG Supply, LLC v. Wahoo Airport Auth., FAA Docket No. 16-14-08, Final Agency Decision and Order (Mar. 9, 2019) (affirming Director’s Determination, which found no violations of the grant assurances where sponsor did not permit an agricultural service provider to operate at the airport because it did not meet the airport’s minimum standards).
Use Restrictions. Forman v. Palm Beach Cty., FAA Docket No. 16-17-13, Director’s Determination (Feb. 22, 2019) (finding sponsor not in compliance with Grant Assurance 22 where it prohibited all jet aircraft operations), appeal pending.
Unjust Discrimination and Lease Terms. Minch v. City of Cottonwood, FAA Docket No. 16-17-05, Director’s Determination (Jan. 18, 2019) (finding no unjust discrimination or violation of other grant assurances where leases were negotiated at different points in time and the wording and structure were slightly different, but the terms were functionally identical).
Rates and Charges. Sound Aircraft Servs. v. Town of E. Hampton, FAA Docket No. 16-14-07, Director’s Determination (Jan. 2, 2019) (finding no grant assurance violations where complainant alleged that the Town impermissibly raised its rates and charges and violated FAA’s prohibition against revenue diversion when it raised both landing fees and fuel flowage fees).
Emotional Support Animals. Complainant v. Greenville-Spartanburg Airport Dist., DOT Complaint No. 2017-0353 (Dec. 20, 2018) (holding that sponsor violated its obligations under the Air Carrier Access Act by requiring emotional support animals to be inside a carrier while passing through the terminal and in this case not volunteering reasonable accommodations for a returning passenger that was unaware of the rule), request for reconsideration filed.
F E D E R A L R U L E S, O R D E R S, A N D G U I D A N C E
Executive Order No. 13858, Strengthening Buy-American Preferences for Infrastructure Projects, 84 Fed. Reg. 2039 (Jan. 31, 2019).
Draft Advisory Circular No. 150/5210-14C, Aircraft Rescue Fire Fighting Equipment, Tools and Personal Protective Equipment (issued June 13, 2019) (comments requested by July 19, 2019).
Draft Advisory Circular No. 150/5210-7E, Aircraft Rescue and Fire Fighting Communications (issued June 13, 2019) (comments requested by July 19, 2019).
Program Guidance Letter 19-01, Aqueous Film Forming Foam (AFFF) Input-Based Testing Equipment (June 10, 2019).
Reauthorization Program Guidance Letter (R-PGL) 19-01, Extended and Expanded Programs (June 3, 2019).
Notice, Implementing the Exception for Limited Recreational Operations of Unmanned Aircraft, 84 Fed. Reg. 22,552 (May 17, 2019).
Advisory Circular No. 150/5340-1M, Standards for Airport Marking (May 10, 2019).
Advisory Circular No. 150/5340-18G, Standards for Airport Sign Systems (May 10, 2019).
PFC Update, PFC 72-19, Changes to the Passenger Facility Charge (PFC) Levels Above $3 (May 9, 2019).
Letter to Airport Sponsors re: UAS Detection Systems and Attachment A, Attachment B, and Attachment C (May 7, 2019).
PFC Update, PFC 71-19, Oversight of Public Agency Passenger Facility Charge (PFC) Program (Apr. 1, 2019).
Advisory Circular No. 150/5345-43J, Specification for Obstruction Lighting Equipment (Mar. 11, 2019).
Order JO 7400.2M, Procedures for Handling Airspace Matters (Feb. 28, 2019).
Order 5100.38D, Change 1, Airport Improvement Program Handbook (Feb. 26, 2019).
Interim Final Rule, External Marking Requirement for Small Unmanned Aircraft, 84 Fed. Reg. 3669 (Feb. 13, 2019).
Advance Notice of Proposed Rulemaking, Safe and Secure Operations of Small Unmanned Aircraft Systems, 84 Fed. Reg. 3732 (Feb. 13, 2019).
Notice of Proposed Rulemaking, Operation of Small Unmanned Aircraft Systems Over People, 84 Fed. Reg. 3856 (Feb. 13, 2019).
Notice of Proposed Rulemaking, Update to Investigative and Enforcement Procedures (14 C.F.R. Part 13), 84 Fed. Reg. 3614 (Feb. 12, 2019).
Advisory Circular No. 150/5200-36B, Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Hazards on Airports (Jan. 24, 2019).
Draft Advisory Circular No. 150/5200-33C, Hazardous Wildlife Attractants on or Near Airports (Jan. 18, 2019) (comment period closed).
CertAlert 19-01, Aqueous Film Forming Foam (AFFF) Testing at Certificated Part 139 Airports (Jan. 17, 2019).
Document No. EPA 823R18004, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Feb. 2019).
Fact Sheet, Counter Unmanned Aircraft Systems Legal Authorities (May 2019).
Private Letter Ruling No. 201918008, Statutory Safe Harbor Relating to the Allowable Term for Leases of Port and Airport Facilities Financed with Tax-Exempt Private Activity Bonds (released May 3, 2019).
Office of Inspector General, Report No. AV2019015, Most Public Agencies Comply With Passenger Facility Charge Program Requirements, But FAA Can Improve the Use of Its Oversight Tools (Dec. 18, 2018).
Report No. GAO-19-172, Small Community Air Service Development: Process for Awarding Grants Could Be Improved (Mar. 2019).
Report No. 19-238R, Airport Funding: Alternative Methods for Collecting Airports’ Passenger Facility Charges and Implementation Factors to Consider (Dec. 20, 2018).
Report No. R44176, Essential Air Service (EAS) (Dec. 19, 2018).
Research Report 198: Wetland Mitigation, Volume 2, A Guidebook for Airports (June 11, 2019) (associated Appendices available at same link).
Research Report 200: Using GIS for Collaborative Land Use Compatibility Planning Near Airports (May 7, 2019).
Research Report 204: Air Demand in a Dynamic Competitive Context with the Automobile (pre-publication draft May 7, 2019).
Research Report 197: Guidebook for Developing a Comprehensive Renewable Resources Strategy (May 3, 2019).
Research Report 16: Guidebook for Managing Small Airports – Second Edition (Apr. 30, 2019), see also associated “WebResource 6: Resources for Managing Small Airports” below.
Research Report 194: Using Disaggregated Socioeconomic Data in Air Passenger Demand Studies (Mar. 24, 2019).
Research Report 195: Best Practices for Airport Obstruction Management Guidebook (Mar. 15, 2019), see also associated “WebResource 7: Best Practices for Airport Obstruction Management Library” below.
Research Report 192: Airport Management Guide for Providing Aircraft Fueling Services (Mar. 7, 2019).
Research Report 196: Guidebook for Integrating Collaborative Partnering into Traditional Airport Practices (Feb. 20, 2019).
Legal Research Digests
Legal Research Digest 37: Legal Issues Relating to Airports Promoting Competition (May 30, 2019).
WebResource 6: Resources for Managing Small Airports (Mar. 20, 2019).
WebResource 7: Best Practices for Airport Obstruction Management Library (Mar. 5, 2019).
Download a PDF of this Semi-annual Airport Law Digest.