As indisputably the biggest topic of the year, the COVID-19 pandemic has had a tremendous effect on airports in almost every conceivable way. Changes to – and new interpretations of – the law, guidance, and policy governing airports presented unique challenges to sponsors across the country, some of which we reviewed in a May Airport Law Alert. Although it obviously has been important, the pandemic has also overshadowed other significant developments in airport law and policy in 2020. While this list is not intended to be exhaustive, airport lawyers should be aware of many non-COVID developments from 2020 and moving in to 2021:
On these and other topics, this Airport Law Digest includes a list of principal cases decided over the last year; new DOT and FAA rules, policies, and guidance; and reports, studies, and articles of interest to airport legal professionals. We have attempted to provide links to publicly available documents, and most other documents are available via subscription services such as Westlaw or LexisNexis. Given its special status as a new and important topic this year, we have consolidated all COVID materials at the end of this Digest.
We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs airports. If you have questions about any of the materials in this Digest, please contact editor Nicholas M. Clabbers or any other Kaplan Kirsch & Rockwell attorney who normally represents you.
LITIGATION (In Reverse Chronological Order)
Drones. Nat’l Press Photographers Assoc. v. McCraw, 2020 U.S. Dist. LEXIS 222642 (W.D. Tex. Nov. 30, 2020) (where plaintiffs challenged state law restrictions on certain unmanned aircraft flights under the First Amendment and federal preemption, denying defendant’s motion to dismiss the First Amendment claims but granting dismissal of preemption claims).
Agency Actions. Nat’l Bus. Aviation Assoc. v. FAA, 2020 U.S. Dist. LEXIS 188325 (D.D.C. Oct. 9, 2020) (in challenge to consent decree between the City of Santa Monica and FAA related to the closure of the Santa Monica airport, dismissing for lack of jurisdiction and non-final agency action).
Agency Actions. Tule Lake Comm. v. FAA, 2020 U.S. Dist. LEXIS 177010 (E.D. Cal. Sept. 24, 2020) (where a city owned the airport in fee and sought to sell the fee interest to a third party, but a county sponsored and operated the airport under a lease agreement with the city that would not be substantially modified, holding that a letter from FAA stating it has “no objection” to transaction is not an agency action reviewable under the APA or the NHPA).
NextGen/Metroplex. Howard Cty. v. FAA, 970 F.3d 441 (4th Cir. Aug. 11, 2020) (petition for review challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport dismissed as untimely pursuant to 40 U.S.C. § 46110(a) and finding no reasonable grounds for filing the petition more than 60 days after the new procedures were approved).
Ridesharing. Arizona v. City of Phoenix, No. CV-20-0019-SA (Ariz. Aug. 3, 2020), (holding that City’s assessment of fees on ridesharing companies at Phoenix Sky Harbor Airport did not violate the Arizona Constitution).
Minimum Standards. Joliet Avionics v. Lumanair, Inc., 2020 U.S. Dist. LEXIS 136832 (N.D. Ill. Aug. 1, 2020) (where plaintiffs alleged unfair and unequal enforcement of airport’s Minimum Standards, dismissing state law claims for tortious interference, deceptive trade practices, and unfair competition but permitting state nuisance and federal § 1983 claims to proceed).
Security and Safety. Lee v. Stewart, U.S. Dist. LEXIS 133484 (M.D. Tenn. July 28, 2020) (where a United Airlines employee made statements in a TSA training class that she “could probably build a bomb” and subsequently was investigated and had her SIDA badge revoked by the Metropolitan Nashville Airport Authority, granting judgment on the pleadings and finding that employee was not protected by the First Amendment, the Family Education Right to Privacy Act, or various Tennessee statutes).
Reversion Clauses. Marcrea Dev. LLC v. City of Boulder City, 2020 U.S. Dist. LEXIS 140978 (D. Nev. July 27, 2020) (where airport lease included a reversion clause requiring improvements to revert to the sponsor at the end of term and tenant attempted to disassemble improvements but was prevented from doing so by local police department pending resolution of contractual complaints, denying motion for temporary restraining order against the police actions).
NEPA and Agency Decision-making. Louie v. Dickson, 964 F.3d 50 (D.C. Cir. July 7, 2020) (where state DOT was agency responsible for completing Environmental Assessment of airport construction and FAA initially concurred but then withdrew that concurrence, holding that petitioners lacked standing to challenge FAA’s actions or challenges were otherwise moot).
Minimum Standards. St. Augustine-St. Johns Cty. Airport Auth. v. Boomerang, LLC., 2020 U.S. Dist. LEXIS 119835 (M.D. Fla. Jun 9, 2020), later proceeding at 2020 U.S. Dist. LEXIS 118785 (July 7, 2020) (where Authority sought declaratory judgment that aeronautical operator must comply with the airport’s minimum standards, remanding action to state court for lack of a federal question).
NEPA and Judicial Review. Howard Cty. v. FAA, No. 19-1062 (4th Cir. July 1, 2020) (unpublished) (rejecting petition for review of FAA approval of EIS for cargo improvements at Baltimore-Washington International Thurgood Marshall Airport and finding that petitioners had filed too late, but noting that under specific circumstances, state agency could operate as FAA’s agent with respect to notice of decision).
Car Rental and TNCs. Turo, Inc. v. City of Los Angeles, No. 18-cv-06055 (C.D. Cal. June 19, 2020) (granting preliminary injunction against unpermitted car-sharing service at Los Angeles International Airport and finding that the City was likely to succeed on its claims under California trespass and municipal airport business licensing laws); see also Turo, Inc. V. City of Los Angeles, 2020 U.S. Dist. LEXIS 132835 (C.D. Cal. July 27, 2020) (denying motion to stay preliminary injunction pending appeal).
Intergovernmental Agreement and Noise. Adams Cty. v. City & Cty. of Denver, Case. No. 2018CV31077 (Dist. Ct., Jefferson County, Colo. June 19, 2020), appeal pending (in case concerning compliance with noise monitoring requirements in intergovernmental agreement, trial court finding that airport owner was liable to neighboring jurisdiction for contractual noise violations).
Takings. Riser, et al. v. City of Chicago, 2020 IL App (1st) 190143-U (June 9, 2020) (in case concerning alleged aircraft overflight takings claim, affirming trial court grant of summary judgment to City of Chicago on statute of limitations grounds and holding that statute began to run upon the opening of a new runway).
Immigration and Customs Enforcement. United States v. King Cty., 2020 U.S. Dist. LEXIS 92512 (W.D. Wash. May 27, 2020) (denying motion for judgment on the pleadings and proceeding to discovery phase where United States brought challenge to local government executive order requiring airport contracts to contain a prohibition on providing services to aircraft involved in the deportation of immigrant detainees).
Takings. Taylor v. United States, 2020 U.S. App. LEXIS 15565 (Fed. Cir. May 15, 2020) (dismissing complaint alleging regulatory taking, where plaintiff claimed Air Force employee made statements to wind developer contract partner that FAA would likely not issue a No Hazard Determination and developer subsequently elected to terminate the contract).
National Parks and Overflights. In Re: Public Employees for Env’tl Responsibility, 957 F.3d 267 (D.C. Cir. May 1, 2020) (granting writ of mandamus directing FAA and NPS to comply with Air Tour Management Act of 2000, which required agencies to develop air tour management plans for flights over National Parks).
Essential Air Service. Bd. of Cty. Comm’rs of Washington Cty. v. United States DOT, 955 F.3d 96 (D.C. Cir. Apr. 7, 2020) (rejecting petition for review of DOT decision to remove Hagerstown Regional Airport from Essential Air Service program, finding that it was not arbitrary and capricious because the airport did not meet the enplanement requirement).
Preemption. Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65 (2d Cir. July 9, 2019) (holding that state statute limiting length of runway was preempted by federal safety standards), cert. denied 2020 U.S. LEXIS 1705 (Mar. 23, 2020).
Metroplex/NextGen. Maryland v. FAA, 952 F.3d 288 (D.C. Cir. Mar. 10, 2020) (dismissing as untimely petition for review of FAA implementation of new approaches at Washington National Airport).
Car Sharing Programs. Mass. Port Auth. v. Turo, Inc., Civ. Action No. 19-1773 (Mass. Sup. Ct. Jan. 22, 2020) (granting preliminary injunction against car sharing service, which sponsor alleges is illegally operating at airport without a car rental permit and trespassing at airport, among other claims).
Zoning and Hazards. Northeast Pa. SMSA LP v. Smithfield Twp. Bd. of Supervisors, 2020 U.S. Dist. LEXIS 7096 (M.D. Pa. Jan. 15, 2020) (where lessee sought to construct a cell tower in the vicinity of an airport, FAA Determination of No Hazard to Air Navigation was sufficient evidence to support lessee’s contention that cell tower would not endanger operations at the airport or violate local ordinance).
Standing and Airport Closure. Rosen v. United States Gov’t, 2020 U.S. App. LEXIS 558 (9th Cir. Jan. 3, 2020) (unpublished) (rejecting pro se pilot’s third-party challenge to settlement agreement between the City of Santa Monica and the United States concerning eventual closure of Santa Monica Airport).
Environmental Review. Ctr. for Community Action & Envt’l Justice v. FAA, No. 20-70272 (9th Cir. petition filed Jan. 29, 2020) (petition for review of FAA approval of NEPA Finding of No Significant Impact associated with proposed air cargo facility at San Bernardino International Airport).
Slots. Spirit Airlines, Inc. v. U.S. Dep’t of Transp., Case. No. 19-1248 (D.C. Cir. petition for review filed Nov. 25, 2019) (petition for review challenging FAA decision not to immediately allow new flights at Newark Liberty International Airport (EWR) following Southwest Airlines’ cessation of flights from EWR).
City of N. Miami Beach v. FAA, No. 20-14677A (11th Cir. amended pet. for review filed Dec. 28, 2020).
City of Los Angeles v. FAA, No. 19-73164 (9th Cir. petition filed Dec. 12, 2019) (petition for review of FAA decision to allow flight tracks for departing aircraft at Hollywood Burbank Airport to shift following Metroplex implementation).
City of Los Angeles v. Elwell, No. 19-71581 (9th Cir. briefing on motion for summary disposition concluded June 26, 2020) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport).
Exclusive Rights. Atlantic Beechcraft Servs., Inc. v. City of Fort Lauderdale, FAA Docket No. 16-17-03, Final Agency Decision (Dec. 10, 2020) (affirming Director’s Determination and find no violation of Grant Assurance 23 where sponsor’s lessee did not permit other maintenance providers to operate as sublessees, but space was available elsewhere on the airport).
Economic Nondiscrimination. Hankins v. Grayson Cty., FAA Docket No. 16-19-05, Director’s Determination (Sept. 4, 2020) (finding no violation of Grant Assurances 22 or 38 where sponsor did not offer identical lease terms to various tenants because passage of time and reassessment of rate structure meant tenants were not similarly situated).
Attorneys’ Fees and Airport Revenue. Nat’l Bus. Aviation Assoc. v. Town of East Hampton, FAA Docket No. 16-15-08, Final Agency Decision and Order (July 23, 2020) (affirming Director’s Determination and finding that attorneys’ fees paid with airport revenue to defend operating restrictions is not illegal diversion of airport revenue).
Rates and Charges. Star Marianas Air, Inc. v. Commonwealth Ports Auth., FAA Docket No. 16-18-01, Director’s Determination (May 5, 2020) (finding no Grant Assurance violations where new passenger service rate structure was challenged as an impermissible head tax, unreasonably high, unjustly discriminatory, and exclusionary).
Economic Nondiscrimination. Resort Aviation Services, Inc. v. Kootenai Cty., FAA Docket No. 16-20-01, Order of the Director (Apr. 30, 2020) (granting motion to dismiss FBO complaint alleging violations of Grant Assurances 22 and 23 where sponsor granted lease agreement to second FBO and withdrew RFP).
National Defense Authorization Act for Fiscal Year 2020, Pub. Law No. 116-92 (Dec. 20, 2019).
FEDERAL RULES, ORDERS, AND GUIDANCE (In Reverse Chronological Order)
Executive Order No. 13950, Executive Order on Combating Race and Sex Stereotyping (Sept. 22, 2020).
Executive Order No. 13927, Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (June 4, 2020).
Executive Summary: Final Rule on Remote Identification of Unmanned Aircraft (Part 89) (Dec. 28, 2020) (publication expected Jan. 2021).
Final Rule, Traveling by Air with Service Animals, 85 Fed. Reg. 79,742 (Dec. 10, 2020) (eff. Jan. 11, 2021).
Final Rule, Streamlined Launch and Reentry Licensing Requirements, 85 Fed. Reg. 79,566 (Dec. 10, 2020) (eff. Mar. 21, 2021).
Final Rule, Defining Unfair or Deceptive Practices, 85 Fed. Reg. 78,707 (Dec. 7, 2020) (eff. Jan. 6, 2021).
Order GC 1100.170B, Office of the Chief Counsel (effective Nov. 18, 2020) (reorganizing AGC).
Notice of Proposed Rulemaking, Procedures for Considering Environmental Impacts, 85 Fed. Reg. 74,640 (Nov. 23, 2020) (comment period expired Dec. 23, 2020).
Memorandum, Instructions to Airports District Offices and Regional Office of Airports Employees Regarding Airport Layout Plan Reviews and Projects Potentially Affected by Section 163 of the FAA Reauthorization Act of 2018 (Oct. 27, 2020)
Program Guidance Letter (PGL) 20-01, Flexibilities for Grant Recipients Under the Office of Management and Budget (OMB) Memorandum M-20-17 (Aug. 17, 2020).
Draft Advisory Circular No. 150/5300-13B, Airport Design (July 20, 2020).
Draft Advisory Circular No. 150/5230-4C, Aircraft Fuel Storage, Handling, Training, and Dispensing on Airports (July 7, 2020).
Report to Congress, FAA Reauthorization Act of 2018, Section 176(b) (July 1, 2020) (report on community involvement in FAA NextGen projects location in Metroplexes).
Revised Grant Assurances, FAA Airport Sponsor Assurances (June 4, 2020).
Report to Congress, FAA Reauthorization Act of 2018 Sections 188 and 173 (Apr. 14, 2020) (study regarding day-night average sound levels).
Notice of Proposed Rulemaking, Noise Certification of Supersonic Airplanes, 85 Fed. Reg. 20,431 (Apr. 13, 2020).
Notice of Modification, Airport Improvement Program (AIP) Grant Assurances, 85 Fed. Reg. 12,048 (Feb. 28, 2020) (comment period expired Mar. 30, 2020).
Reauthorization Program Guidance Letter (R-PGL) 19-06, Environmental and Noise (Feb. 27, 2020).
Reauthorization Program Guidance Letter (R-PGL) 19-05, ZEV, VALE, and Energy Efficiency Programs (Feb. 27, 2020).
Reauthorization Program Guidance Letter (R-PGL) 19-03, Airport Types and Eligibility (Feb. 27, 2020).
Part 139 Cert Alert No. 20-01, Required Training for Vehicle Operators Prior to Accessing the Movement Area (Feb. 25, 2020).
Advisory Circular No. 150/5200-33C, Hazardous Wildlife Attractants on or Near Airports (Feb. 21, 2020).
Memorandum PFC 73-20, Streamlined Procedures for Passenger Facility Charge (PFC) Authorizations at Small-, Medium-, and Large-Hub Airports (Jan. 22, 2020).
Reauthorization Program Guidance Letter (R-PGL) 19-04, Pilot Program Eligibility (Jan. 22, 2020).
Final Rule, Administrative Rulemaking, Guidance, and Enforcement Procedures, 84 Fed. Reg. 71,714 (Dec. 27, 2019) (eff. Jan. 27, 2020).
Final Rule, Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States, 85 Fed. Reg. 3158 (Jan. 17, 2020) (includes specific provisions concerning airports).
Notice of Proposed Rulemaking, Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States, 85 Fed. Reg. 74,162 (Nov. 19, 2020) (comment period expired Dec. 21, 2020).
FBI Private Industry Notification No. 20200612-001, Unattributed Cyber Actors Register Domains Spoofing Legitimate Airport Websites as a Possible Precursor to Future Operational Activity (June 12, 2020).
Memorandum, Guidance Regarding Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned Aircraft Systems (Apr. 13, 2020).
Final Rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020).
Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials That Are Not Consumer Products (Dec. 18, 2020) (comment period open for 60 days).
REPORTS, STUDIES, ARTICLES, AND OTHER PUBLICATIONS (In Reverse Chronological Order)
FAA, National Plan of Integrated Airport Systems (NPIAS) 2021 – 2025 (Sept. 30, 2020).
FAA, DOJ, FCC, & DHS, Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems (Aug. 2020).
Office of Inspector General, Report No. EC2020036, Changes in Airline Service Differ Significantly for Smaller Communities, but Limited Data on Ancillary Fees Hinders Further Analysis (May 27, 2020).
Office of Inspector General, Report No. AV2020028, Contract Towers Are More Cost Effective Than Comparable FAA Towers and Have Similar Safety Records (Apr. 28, 2020).
Office of Inspector General, Report No. IT2020027, FAA Lacks Sufficient Security Controls and Contingency Planning for Its DroneZone System (Apr. 15, 2020).
FAA, Response Letter to Quiet Skies Caucus (January 24, 2020).
Correspondence No. B-330570, Unmanned Aircraft Systems: Current Jurisdictional, Property, and Privacy Legal Issues Regarding the Commercial and Recreational Use of Drones (Sept. 16, 2020).
Report No. GAO-200684, Airport Funding: Information on Grandfathered Revenue Diversion and Potential Implications of Repeal (Sept. 2020).
Report No. GAO-20-661, Aircraft Noise: Information on a Potential Mandated Transition to Quieter Airplanes (Aug. 2020).
Report No. GAO-20-275, TSA Could Strengthen Its Insider Threat Program by Developing a Strategic Plan and Performance Goals (Feb. 2020).
Report No. IF11550, Protecting Against Rogue Drones (Sept. 3, 2020).
Report No. IF11420, Aircraft Noise and Air Traffic Control Modernization (Jan. 27, 2020).
Research Report 219: Advanced Ground Vehicle Technologies for Airside Operations (Dec. 3, 2020).
Research Report 223: Performance Measures for State Aviation Agencies (Oct. 30, 2020).
Research Report 222: Collecting and Sharing of Operations and Safety Data (Oct. 28, 2020).
Research Report 221: Measuring Quality of Life in Communities Surrounding Airports (Oct. 20, 2020).
Research Report 224: Understanding Impacts to Airports From Temporary Flight Restrictions (Sept. 21, 2020)
Research Report 217: Guidance for Diversity in Airport Business Contracting and Workforce Programs (Aug. 4, 2020).
Research Report 214: BIM Beyond Design Guidebook (June 22, 2020).
Research Report 216: Guidebook for Assessing Collaborative Planning Efforts Among Airport and Public Planning Agencies (Apr. 15, 2020).
Research Report 210: Innovative Solutions to Facilitate Accessibility for Airport Travelers with Disabilities (Apr. 2, 2020).
Research Report 215: Transportation Network Companies (TNCs): Impacts to Airport Revenues and Operations—Reference Guide (Mar. 31, 2020).
Research Report 218: Building and Maintaining Air Service Through Incentive Programs (Mar. 30, 2020).
Research Report 211: Guidance for Using the Interactive Tool for Understanding NEPA at General Aviation Airports (March 9, 2020).
Research Report 213: Estimating Market Value and Establishing Market Rent at Small Airports (Feb. 7, 2020).
Research Report 220: Guidebook for Developing a Zero- or Low-Emissions Roadmap at Airports (Jan. 7, 2020).
Synthesis 114: Visual Arts Programs at Airports (Nov. 23, 2020).
Synthesis 111: Last Mile in General Aviation—Courtesy Vehicles and Other Forms of Ground Transportation (Nov. 10, 2020).
Synthesis 112: Airport Operations Training at Small Airports (Oct. 5, 2020).
Synthesis 110: Airport Renewal Energy Projects Inventory & Case Examples (Sept. 25, 2020).
Synthesis 113: Airport Workforce Programs Supporting Employee Well-Being (Aug. 31, 2020).
Synthesis 109: Escalator Falls (Aug. 11, 2020).
Synthesis 107: Models for Law Enforcement at Airports (Aug. 4, 2020).
Synthesis 108: Characteristics of the FBO Industry 2018-2019 (June 26, 2020).
Synthesis 106: Airport Risk Identification and Prioritization Practices (Mar. 3, 2020).
Legal Research Digests
Legal Research Digest 39: Updated Survey of Laws and Regulations Applicable to Airport Commercial Ground Transportation (Dec. 10, 2020).
Legal Research Digest 40: Permissible Uses of Airport Revenue (Dec. 4, 2020).
Legal Research Digest 38: Legal Issues Related to Large-Scale Airport Construction Projects (Feb. 14, 2020).
Web-Only Document 50: Research Roadmap on Safety Issues (Oct. 9, 2020).
Web-Only Document 42: Toolkits and Resource Library for Airports and Unmanned Aircraft Systems (July 27, 2020).
Web-Only Document 48: Evaluating the Use of Spatially Precise Diurnal Population Data in Aviation Noise Studies (July 21, 2020).
Web-Only Document 49: Research Roadmap on Airport Administration & Human Resource Issues (July 8, 2020).
Web-Only Document 47: Commercial Space Operations Noise and Sonic Boom Measurements (June 12, 2020).
Web-Only Document 46: Recovering International Recyclables from In-Flight Service (May 18, 2020).
Web-Only Document 45: Airport Environmental Research Roadmap Narrative Report (Feb. 18, 2020).
National Cooperative Highway Research Program
Research Report 938: Incorporating the Costs and Benefits of Adaptation Measures in Preparation for Extreme Weather Events and Climate Change Guidebook (March 23, 2020).
Airport Consultants Council (ACC)
ACC Report, Capital Development at US Airports (March 5, 2020)
Consolidated Appropriations Act of 2021, H.R. 133 (signed into law Dec. 27, 2020) (including coronavirus stimulus and emergency relief to airports)
FAA, Information for Airport Sponsors Considering COVID-19 Restrictions or Accommodations (updated Dec. 2020).
FAA, COVID-19 Vaccine Transport Considerations for Airport Operators (Dec. 11, 2020).
FAA, CARES Act Airport Grants – Frequently Asked Questions (updated Dec. 3, 2020).
DOT, DHS, and HHS, Runway to Recovery: The United States Framework for Airlines and Airports to Mitigate the Public Health Risks of Coronavirus (July 2, 2020).
Letter from D. Kirk Shaffer to Airport Sponsors, Financial Accommodations for Airport Tenants (June 22, 2020).
Airports Council International – North America, COVID-19 Recovery Recommendations (June 2020).
Part 139 Cert Alert No. 20-03, Notice to Airmen (NOTAM) Examples when Closing Runway(s) and/or Taxiway(s) to Temporarily Park Aircraft (May 5, 2020).
United States Department of Transportation, Docket DOT-OST-2020-0037, Final Order Regarding Continuation of Certain Air Service (Apr. 7, 2020).
FAA, Considerations for State, Local, and Territorial COVID-19 Restrictions That Impact Air Transportation (Mar. 28, 2020).
Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. Law No. 116-136 (Mar. 27, 2020).
Part 139 Cert Alert No. 20-02, Temporary Parking of Overflow Aircraft (updated Mar. 24, 2020)
Congressional Research Service, Report No. IN11267, COVID-19 and Funding for Civil Aviation (Mar. 23, 2020).
Click to download a PDF of the Semi-Annual Airport Law Digest: 2020 Year in Review.