The first six months of 2021 were a whirlwind of activity. The change in administration and control of the Senate means a unified, Democratic federal government for the first time in ten years. The new administration was tasked with rolling out the new COVID-19 vaccines and charting a course for economic recovery. For airports, the increase in vaccinations and return to a semblance of normal life has been welcome, with a surge in overall passenger traffic, particularly to leisure destinations. While passenger numbers have yet to return to 100% of pre-pandemic levels, it seems clear that recovery is underway. That said, the effects of the pandemic will continue to reverberate, as airports work to resolve budget, staffing, and operational issues.
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. As airports continue to recover from the effects of the COVID-19 pandemic, we have provided a select subset of COVID-19 guidance materials published in 2020 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)
FOIA. Jobe v. NTSB, No. 20-30033, 2021 U.S. App. LEXIS 18135 (5th Cir. June 17, 2021) (holding that that outside parties to an NTSB investigation are considered governmental consultants subject to FOIA and not exempt under the “intra-agency” communication privilege).
Ridesharing. Turo v. Sup. Ct. of San Francisco Cty., No. CGC-18-563803 (Cal. App. 1st June 16, 2021) (denying appeal of finding that Turo was a “rental car company” under California law)
Employment Discrimination. Peterkin v. Prospect Airport Servs., Civ. Act. No. 21-490, 2021 U.S. Dist. LEXIS 109612 (E.D. Pa. June 11, 2021) (dismissing various employment-related claims against airport proprietor where plaintiff was employee of ground service contractor and had not established that proprietor was a joint employer).
Metroplex/NextGen. Arapahoe Cty. Pub. Airport Auth., et al. v. FAA, No. 20-1075, 2021 U.S. App. LEXIS 17023 (D.C. Cir. June 8, 2021) (per curiam) (dismissing petitions for review of FAA’s Denver Metroplex plan, holding that petitioners had failed to provide evidence of standing to pursue the case and that standing was not self-evident on the face of the pleadings).
Takings. Boggs v. City of Cleveland, 2021 U.S. Dist. LEXIS 101308 (N.D. Ohio May 28, 2021) (dismissing § 1983 claims based on takings from aircraft overflights on statute of limitations grounds and holding that the action accrued upon opening of new runway, and finding that plaintiffs were not entitled to relief under the Uniform Relocation and Real Property Acquisition Act because that statute provides no private right of action).
Slots. Spirit Airlines, Inc. v. U.S. Dep’t of Transp., Case. No. 19-1248, 2021 U.S. App. LEXIS 15144 (D.C. Cir. May 21, 2021) (finding that FAA decision not to immediately allow new flights at Newark Liberty International Airport (EWR) following Southwest Airlines’ cessation of flights from EWR was arbitrary and capricious because it failed to assess the impact of that decision on competition at EWR and consider alternative means to alleviate congestion).
Drones. Elec. Privacy Info. Ctr. v. Drone Advisory Comm., 995 F.3d 993 (D.C. Cir. Apr. 30, 2021) (holding that privacy group was not entitled to certain records produced and maintained by subgroups of the FAA’s former Drone Advisory Committee because those subgroups did not report to or communicate directly with FAA).
Ridesharing. Mass. Port Auth. v. Turo, Inc., No. SJC-13012 (Sup. Jud. Ct. Mass. Apr. 21, 2021) (affirming preliminary injunction prohibiting operation of ridesharing service at Boston Logan Airport without a permit, finding that Turo was not immune from regulation under the Communications Decency Act and that the airport sponsor was likely to succeed in its claims that Turo was aiding and abetting trespassing).
Ridesharing. Turo Inc. v. City of Los Angeles, 847 Fed. Appx. 442 (9th Cir. Mar. 10, 2021) (reversing district court of preliminary injunction against ridesharing service at Los Angeles International Airport, finding that low level of activity from Turo as compared to overall traffic at LAX would not result in irreparable harm).
Hazards. Short v. United States, 847 Fed. Appx. 413, 2021 U.S. App. LEXIS 5637 (9th Cir. Feb. 25, 2021) (finding that for the purposes of liability under Federal Tort Claims Act, Forest Service was not mandated to close an airport on federal property or remove trees even if they constituted a “hazard” under FAA regulations, and the Forest Service appropriately mitigated risks by showing the trees in the FAA’s Airport Master Record).
Pre-emption. Bernstein v. Virgin Am., Inc., 990 F.3d 1157 (9th Cir. Feb. 23, 2021) (affirming district court’s decision that neither the Federal Aviation Act nor the Airline Deregulation Act preempts California state requirement for meal and rest breaks because they have no direct implications for safety).
Airport Access. Delux Pub. Charter, LLC v. Cty. of Orange, No. 8:20-cv-2344 (C.D. Cal. amended complaint filed June 17, 2021) (alleging de facto ban of JSX and JetSuiteX from John Wayne Airport in violation of Airline Deregulation Act and Airport Noise and Capacity Act, among other claims).
Environmental Review. Ctr. for Community Action & Envt’l Justice v. FAA, No. 20-70272 (9th Cir. argued Feb. 1, 2021) (petition for review of FAA approval of NEPA Finding of No Significant Impact associated with proposed air cargo facility at San Bernardino International Airport).
City of Los Angeles v. Dickson, No. 19-71581 (9th Cir. argued June 11, 2021) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport).
City of Los Angeles v. FAA, No. 19-73164 (9th Cir. briefing concluded Apr. 26, 2021) (petition for review of FAA decision to allow flight tracks for departing aircraft at Hollywood Burbank Airport to shift following Metroplex implementation).
City of N. Miami Beach v. FAA, No. 20-14677A (11th Cir. amended pet. for review filed Dec. 28, 2020) (petition for review of FAA decision setting flight procedures at Miami International Airport).
Skydiving. Mile-Hi Skydiving Ctr. v. City of Longmont, FAA Docket No. 16-19-03, Director’s Determination (Jan. 22, 2021) (finding no Grant Assurance violations where sponsor established a separate parachute drop zone and charged a per-square-foot nonexclusive access fee for the use of the drop zone) (appeal pending).
Access Restrictions. Forman v. Palm Beach Cty., FAA Docket No. 16-17-13, Final Agency Decision (Jan. 13, 2021) (affirming Director’s Determination finding County’s restriction on jet aircraft operations as not grandfathered under ANCA and an ongoing violation of Grant Assurance 22) (appeal pending).
Airport Revenue. United Airlines, Inc. v. Port Auth. of N.Y. & N.J., FAA Docket No. 16-14-13, Order (Jan. 11, 2021) (largely affirming Director’s Determination findings that Port Authority’s grandfathered status did not exempt it from all airport revenue use restrictions and that the Port Authority’s accounting practices were deficient and lacked transparency in violation of Grant Assurance 22).
Rates and Charges and Exclusive Rights. Star Marianas Air, Inc. v. Commonwealth Ports Auth., FAA Docket No. 16-18-01, Final Agency Decision (Jan. 10, 2021) (affirming Director’s Determination holding that sponsor’s rates and charges structure did not violate the Anti-Head Tax Act and Grant Assurance 1, and that complainant had failed to provide evidence of an exclusive right at the airport)
American Rescue Plan Act of 2021, Pub. L. No. 117-2 (Mar. 11, 2021).
FEDERAL RULES, ORDERS, AND GUIDANCE (In Reverse Chronological Order)
Memorandum for the Heads of Executive Departments and Agencies, Regulatory Freeze Pending Review (Jan. 20, 2021) (freezing further action on rules and regulations that had not yet been published in the Federal Register).
Draft Advisory Circular No. 150/5190-4B, Airport Compatible Land Use Planning (June 22, 2021) (comment period expires Aug. 6, 2021).
Frequently Asked Questions, Airport Rescue Grants (June 10, 2021) (guidance concerning grants to airports under American Rescue Plan Act).
Advisory Circular No. 150/5320-6G, Airport Pavement Design and Evaluation (June 7, 2021).
Policy, Review of Solar Energy System Projects on Federally-Obligated Airports, 86 Fed. Reg. 25,801 (May 11, 2021).
Notice, Funding Opportunity for Environmental Mitigation Pilot Program, 86 Fed. Reg. 25,060 (May 10, 2021).
Notice, Airport Investment Partnership Program: Application Procedures, 86 Fed. Reg. 20,586 (Apr. 20, 2021).
Frequently Asked Questions, Airport Coronavirus Response Grant Program (Apr. 9, 2021) (guidance concerning grants to airports under the Coronavirus Response and Relief Supplemental Appropriation Act).
Final Rule, Operation of Small Unmanned Aircraft Systems Over People, 86 Fed. Reg. 4314 (Jan. 15, 2021).
Final Rule, Remote Identification of Unmanned Aircraft, 86 Fed. Reg. 4390 (Jan. 15, 2021).
Request for Comments, Overview of FAA Aircraft Noise Policy and Research Efforts: Request for Input on Research Activities to Inform Aircraft Noise Policy, 86 Fed. Reg. 2722 (Jan. 13, 2021).
Final Rule, Special Flight Authorizations for Supersonic Aircraft, 86 Fed. Reg. 3782 (Jan. 15, 2021).
TSA Security Directive 1542-21-01, Security Measures – Face Mask Requirements (Jan. 31, 2021).
Interim Final Rule and Request for Comments, Deadline for Agencies To Propose Updates to National Environmental Policy Act Procedures, 86 Fed. Reg. 34,154 (June 29, 2021) (extending period by two years for federal agencies to propose their own regulations to implement July 2020 CEQ final rule revising NEPA procedures).
Advanced Notice of Proposed Rulemaking, Addressing PFOA and PFOS in the Environment: Potential Future Regulation Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act (Jan. 14, 2021) (not published in Federal Register and under review pursuant to regulatory freeze order of January 20, 2021).
Update, Requirement for Face Masks on Public Transportation Conveyances and at Transportation Hubs (June 10, 2021) (announcing intent to formally modify mask mandate order to remove requirement for masks in outdoor spaces at airports).
Order, Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs (eff. Feb. 1, 2021).
REPORTS, STUDIES, ARTICLES, AND OTHER PUBLICATIONS (In Reverse Chronological Order)
Office of Inspector General, Report No. ZA2021026, Gaps in Guidance, Training, and Oversight Impede FAA’s Ability To Comply With Buy American Laws (June 2, 2021).
Office of Inspector General, Report No. AV2021024, DOT Appropriately Relied on Unsubsidized Carriers in Accordance With Its Policy but Conducted Limited Oversight of the Essential Air Service Communities They Serve (May 19, 2021).
Office of Inspector General, Report No. AV2021023, NextGen Benefits Have Not Kept Pace With Initial Projections, but Opportunities Remain To Improve Future Modernization Efforts (Mar. 30, 2021).
FAA, Final Report, Analysis of the Neighborhood Environmental Survey (updated Feb. 2021).
Office of Inspector General, Report No. AV2021017, Gaps in FAA’s Oversight of the AIP State Block Grant Program Contribute to Adherence Issues and Increase Risks (Feb. 10, 2021).
Report No. GAO-21-354, Passengers with Disabilities: Airport Accessibility Barriers and Practices and DOT’s Oversight of Airlines' Disability-Related Training (Apr. 2021).
Report No. GAO-21-412T, COVID-19 Pandemic: Preliminary Observations on Efforts toward and Factors Affecting the Aviation Industry’s Recovery (Mar. 2021).
Report No. GAO-21-165, Unmanned Aircraft Systems: FAA Could Strengthen Its Implementation of a Drone Management System by Improving Communication and Measuring Performance (Jan. 2021).
Report No. LSB10589, Legal Issues Related to Transportation Mask-Wearing Mandates (Apr. 12, 2021).
Report No. R43545, Airport Privatization: Issues and Options for Congress (Mar. 11, 2021).
Report No. R42781, Federal Civil Aviation Programs: In Brief (Jan. 22, 2021).
Research Report 233: Airport Biometrics: A Primer (May 2021).
Research Report 232: Playbook for Cultivating Talent in the Airport Environment (May 2021).
Research Report 230: Enhancing Academic Programs to Prepare Future Airport Industry Professionals (Apr. 2021).
Research Report 229: Airport Collaborative Decision Making (ACDM) to Manage Adverse Conditions (Apr. 2021).
Research Report 228: Airport Microgrid Implementation Toolkit (Apr. 2021).
Research Report 227: Evaluating and Implementing Airport Privatization and Public-Private Partnerships (Apr. 2021).
Research Report 225: Rethinking Airport Parking Facilities to Protect and Enhance Non-Aeronautical Revenues (Mar. 2021).
Research Report 226: Planning and Design of Airport Terminal Restrooms and Ancillary Spaces (Jan. 2021).
Synthesis 115: Practices in Airport Emergency Plans (Mar. 2021).
Legal Research Digests
Legal Research Digest 42: Legal Implications of Data Collection at Airports (June 2021).
Legal Research Digest 41: Legal Issues Relating to Airport Commercial Contracts (Feb. 2021).
SELECT COVID-19 MATERIALS
Coronavirus Response and Relief Supplemental Appropriation Act, 2021, Pub. L. 116-260 (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).
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).
Click to download a PDF of the Semi-Annual Airport Law Digest: 2021 Mid-Year Update.