News & Publications

Airport Law Alert No. 11 – Year in Review

Much of the media and industry attention this year focused on Congress’ unsuccessful efforts to pass Federal Aviation Administration (FAA) Reauthorization legislation. Instead of enacting comprehensive reauthorization, Congress passed four extensions to provide continuing support to airports through the Airport Improvement Program and to avoid the sunset of specific programs and authorizations in federal law. The current extension expires on March 31, 2011.

Despite the absence of reauthorization, FAA engaged in a high level of administrative activity in 2010, issuing rules or guidance on, for example, Safety Management Systems, Disadvantaged Business Enterprise, airline incentives, hazards to air navigation, and residential airparks. Airports also will be affected significantly by rulemaking and guidance issued by the U.S. Environmental Protection Agency (EPA) and the White House Council on Environmental Quality (CEQ). All of these regulatory undertakings are indexed below.

Courts issued a number of decisions on airport-related topics in 2010, including airport rates and charges, First Amendment, and preemption of local land use regulation. The FAA issued nine decisions this year concerning airport sponsor compliance with the Grant Assurances. There are relatively few pending cases in federal courts and before the FAA, which likely will mean fewer decisions in 2011.

Congressional and Department of Transportation (DOT) oversight of FAA and its programs also was evident in 2010. The Government Accountability Office and the Department of Transportation Office of the Inspector General issued reports on such topics as NextGen, aviation security, safety and environmental impacts. The Transportation Research Board’s Airport Cooperative Research Program continues to publish reports on diverse airport topics, including two legal research digests in 2010.

Litigation

Court Cases

41 North 73 West, Inc. v. Dep’t of Transp., No. 09-4810-ag, 2010 WL 4318655 (2d Cir. Nov. 2, 2010) (court affirmed FAA’s Final Decision and Order in 41 North 73 West, Inc. v. Westchester County, FAA Docket No. 16-07-13 (June 12, 2008), finding that Westchester County’s lease programs for smaller and larger general aviation FBOs did not violate Grant Assurances 22 and 23.

Air Transport Ass’n of Am., Inc. v. Dep’t of Transp., 613 F.3d 206 (D.C. Cir. 2010) (court rejected challenge to DOT’s amendments to the 1996 Policy Regarding Airport Rates and Charges).

Barnes v. City of Hillsboro, A146145 (Or. Ct. App. Nov. 24, 2010) (court affirmed Land Use Board of Appeals’ rejection of an ordinance amending the city zoning map containing airport uses and avigation easements because the ordinance creating the zones was found to be unconstitutional).

Crandall v. City & County of Denver, 594 F.3d 1231 (10th Cir. 2010) (court affirmed decision by federal district court refusing to enjoin full-plane deicing near passenger loading gates at Denver International Airport).

Goodspeed Airport, L.L.C. v. E. Haddam Inland Wetlands and Watercourses Comm’n, 681 F. Supp. 2d 182 (D. Conn. 2010) (court held that local environmental requirements are not preempted by federal aviation law).

Int’l Soc’y for Krishna Consciousness, Inc. v. Los Angeles, No. 01-56579, 2010 WL 2711411 (9th Cir. July 7, 2010) (court dissolved injunction against enforcement of ban on solicitation for the immediate receipt of funds at Los Angeles International Airport, based on prior decision by the California Supreme Court).

Int’l Soc’y for Krishna Consciousness, Inc. v. Los Angeles, 227 P.3d 395 (Cal. 2010) (court held that Los Angeles’ ban on solicitation for the immediate receipt of funds at Los Angeles International Airport was a reasonable time, place and manner restriction on expressive rights).

News and Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570 (4th Cir. 2010) (court held that ban on coin-operated newspaper racks at the Raleigh-Durham Airport was inconsistent with the First Amendment).

Rectrix Aerodome Ctrs., Inc. v. Barnstable Mun. Airport Comm’n, 610 F.3d 8 (1st Cir. 2010) (court affirmed two decisions by federal district court rejecting claims filed against airport by a fixed-base operator).

Township of Tinicum v. City of Philadelphia, No. 09-2872, 2010 WL 3431717 (E.D. Pa. Aug. 31, 2010), reconsideration denied by 2010 WL 4628700 (Nov. 12, 2010) (court held that state statute requiring local approval prior to acquisition of property for airport expansion was preempted by federal aviation law).

Telnack v Martin County, Case No. 04-459-CA (Fla. Cir. Ct. 2010) (court denied plaintiffs’ motion to certify a class of homeowners to prosecute inverse condemnation claims based on airport noise).

FAA Decisions (FAR Part 16)

Director’s Determination, Desert Wings Jet Center v. City of Redmond, Oregon, FAA Docket No. 16-09-07 (Nov. 10, 2010) (dismissing tenant’s complaint alleging violations of Grant Assurance 19 (Operations and Maintenance), Grant Assurance 22 (Economic Nondiscrimination) and Grant Assurance 23 (Exclusive Rights) in connection with tenant’s interest in expanding its leasehold and becoming an FBO).

Director’s Determination, Venice Jet Center, LLC v. City of Venice, FAA Docket 16-09-05 (Sept. 1, 2010) (dismissing complaint for lack of standing).

Director’s Determination, Aero Ways, Inc. v. Delaware River & Bay Authority, FAA Docket No. 16-09-12 (Aug. 30, 2010) (finding that the respondent did not violate Grant Assurance 22 in connection with tenant’s interest in selling fuel and conducting other aeronautical activities).

Final Decision and Order, Keyes v. McMinn County, FAA Docket No. 16-08-12 (July 26, 2010) (affirming the Director’s finding that the respondent is not currently violating Grant Assurance 34 (Policies, Standards and Specifications) in connection with respondent’s correction of noncompliant conditions at airport).

Final Decision and Order, Warbird Sky Ventures, Inc. v. Sumner County Regional Airport Authority, FAA Docket No. 16-7-16 (July 13, 2010) (affirming the Director’s finding that the respondent did not violate Grant Assurance 22 and Grant Assurance 23 in denying complainant’s request to provide aeronautical products and services).

Director’s Determination, Sterling Aviation, LLC v. Milwaukee County, FAA Docket No. 16-09-03 (Apr. 13, 2010) (finding no violation of Grant Assurance 22 and Grant Assurance 23 in connection with the respondent’s conditions on fuel sales and aircraft repair services).

Director’s Determination, Richard Corbett d/b/a Modesto Flight Ctr. v. City of Modesto, FAA Docket No. 16-08-10, 2010 WL 1531316 (Apr. 05, 2010) (finding that the respondent did not violate Grant Assurance 22 and Grant Assurance 23 in connection with its review of complainant’s application to construct and operate a self-serve fuel station).

Final Agency Decision and Order, J&B Enterprises, Inc. v. Metropolitan Nashville Airport Auth., FAA Docket No. 16-08-07 (March 3, 2010) (affirming the Director’s finding that the respondent did not discriminate against or disparately impact ACDBEs in the administration of respondent’s concession leasing policy).

Director’s Determination, Drake Aerial Enters, L.C.C., d/b/a Air America Aerial Ads v. City of Cleveland, FAA Docket No. 16-09-02 (Feb. 22, 2010) (finding that the respondent did not violate the Grant Assurance 22 in connection with respondent’s conditions on banner towing operations and review of complainant’s request to conduct such operations).

Federal Rules, Orders, and Guidance

DOT and FAA

FAA, Notice, Airport Improvement Program: Proposed Changes to Benefit Cost Analysis (BCA) Threshold, 75 Fed. Reg. 78,798 (Dec. 16, 2010).

FAA, Eastern Region Airports Division Sponsor Guide: Airport Property Mineral Extraction (Nov. 16, 2010).

FAA, Draft Guidance for Determining Exclusivity of Long-Term Leases (Nov. 4, 2010) (addressing long-term and exclusive, non-aeronautical lease agreements in the ACDBE program).

FAA, Notice, Airport Privatization Pilot Program, Preliminary Application of Airglades Airport (2IS), Clewiston, Florida, 75 Fed. Reg. 68,018 (Nov. 4, 2010).

FAA, Technical Guidance for Evaluating Selected Solar Technologies on Airports (Nov. 2010).

DOT, Order Awarding Grants, Small Community Air Service Development Program, DOCKET DOT-OST-2010-0124 (Oct. 26, 2010).

FAA, Notice of Proposed Rulemaking, Safety Management Systems for Certificated Airports, 75 Fed. Reg. 62,008 (Oct. 7, 2010).

FAA, Air Carrier Incentive Program Guidebook: A Reference for Airport Sponsors (Sept. 15, 2010).

FAA, Notice, Airport Improvement Program (AIP): Policy Regarding Access to Airports From Residential Property, 75 Fed. Reg. 54,946 (Sept. 9, 2010).

FAA, Order 5200.11, FAA Airports (ARP) Safety Management System (Aug. 30, 2010).

FAA, Final Rule, Safe, Efficient Use and Preservation of the Navigable Airspace, 75 Fed. Reg. 42,296 (July 21, 2010) (effective January 18, 2011).

DOT, Notice of Proposed Rulemaking, Enhancing Airline Passenger Protections, 75 Fed. Reg. 32,318 (June 8, 2010).

DOT, Notice of Proposed Rulemaking, Disadvantaged Business Enterprise Program; Potential Program Improvements, 75 Fed. Reg. 25,815 (May 10, 2010).

DOT, Final Rule, Participation by Disadvantaged Business Enterprises in Airport Concessions, 75 Fed. Reg. 16,357 (Apr. 1, 2010).

DOT, Final Rule, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs, 75 Fed. Reg. 5,535 (Feb. 3, 2010).

U.S. EPA

EPA, Final Rule, Revisions to Lead Ambient Air Monitoring Requirements (Dec. 14, 2010) (to be codified at 40 C.F.R. pt. 58).

EPA, Proposed Rule, Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule—Proposed Amendments, 75 Fed. Reg. 45,572 (Aug. 3, 2010).

EPA, Advanced Notice of Proposed Rulemaking, Advance Notice of Proposed Rulemaking on Lead Emissions From Piston-Engine Aircraft Using Leaded Aviation Gasoline, 75 Fed. Reg. 22,440-01 (Apr. 28, 2010).

EPA, Final Rule, Revisions to the General Conformity Regulations, 75 Fed. Reg. 17,254 (Apr. 5, 2010).

CEQ

CEQ, Final Guidance for Federal Departments and Agencies on Establishing, Applying and Revising Categorical Exclusions Under the National Environmental Policy Act (Dec. 6, 2010).

CEQ, Draft Guidance for NEPA Mitigation and Monitoring (Feb. 18, 2010).

CEQ, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions (Feb. 18, 2010).

Reports, Studies, and Articles

Reports

U.S. Government Accountability Office

Aviation Security: DHS Has Taken Steps to Enhance International Aviation Security and Facilitate Compliance with International Standards, but Challenges Remain, GAO-11-238T (Dec. 2, 2010).

Integration of Current Implementation Efforts with Long-term Planning for the Next Generation Air Transportation System, GAO-11-132R (Nov. 22, 2010).

Federal Aviation Administration: Agency Is Taking Steps to Plan for and Train Its Technician Workforce, but a More Strategic Approach Is Warranted, GAO-11-91 (Oct. 22, 2010).

Aviation Safety: Certification and Approval Processes Are Generally Viewed as Working Well, but Better Evaluative Information Needed to Improve Efficiency, GAO-11-14 (Oct. 7, 2010).

Aviation and the Environment: Systematically Addressing Environmental Impacts and Community Concerns Can Help Airports Reduce Project Delays, GAO-10-50 (Sept. 13, 2010).

NextGen Air Transportation System: FAA's Metrics Can Be Used to Report on Status of Individual Programs, but Not of Overall NextGen Implementation or Outcomes, GAO-10-629 (July 27, 2010).

Aviation Research: Airport Cooperative Research Program Addresses Many Needs but Could Enhance Transparency and Clarify Scope of Research Role, GAO-10-729 (July 15, 2010).

Commercial Aviation: Better Information about Airline-Imposed Fees and the Refundability of Government-Imposed Taxes and Fees Could Benefit Consumers, GAO-10-885T (July 14, 2010).

Commercial Aviation: Consumers Could Benefit from Better Information about Airline-Imposed Fees and Refundability of Government-Imposed Taxes and Fees, GAO-10-785 (July 14, 2010).

Aviation Security: Progress Made but Actions Needed to Address Challenges in Meeting the Air Cargo Screening Mandate, GAO-10-880T (June 30, 2010).

Aviation Security: TSA Has Made Progress but Faces Challenges in Meeting the Statutory Mandate for Screening Air Cargo on Passenger Aircraft, GAO-10-446 (June 28, 2010).

National Airspace System: Setting On-Time Performance Targets at Congested Airports Could Help Focus FAA's Actions, GAO-10-542 (May 26, 2010).

Aviation Security: Efforts to Validate TSA’s Passenger Screening Behavior Detection Program Underway, but Opportunities Exist to Strengthen Validation and Address Operational Challenges, GAO-10-763 (May 20, 2010).

Next Generation Air Transportation System: Challenges with Partner Agency and FAA Coordination Continue, and Efforts to Integrate Near-, Mid-, and Long-term Activities Are Ongoing, GAO-10-649T (Apr. 21, 2010).

GAO Review of the Department of Homeland Security’s Certification of the Secure Flight Program—Cost and Schedule Estimates, GAO-10-535R (Apr. 5, 2010).

Aviation Security: TSA Is Increasing Procurement and Deployment of the Advanced Imaging Technology, but Challenges to This Effort and Other Areas of Aviation Security Remain, GAO-10-484T (March 17, 2010).

Homeland Security: Better Use of Terrorist Watchlist Information and Improvements in Deployment of Passenger Screening Checkpoint Technologies Could Further Strengthen Security, GAO-10-401T (Jan. 27, 2010).

DOT Office of the Inspector General

Improper Payments Identified in FAA’s Airport Improvement Program (Dec. 1, 2010).

New York Flight Delays Have Three Main Causes, but More Work Is Needed To Understand Their Nationwide Effect (Oct. 28, 2010).

Review of FAA’s Call to Action Plan for Runway Safety (July 21, 2010).

Letter to Senator LeMieux Regarding Allegations Concerning Venice Municipal Airport in Florida (July 16, 2010).

Timely Actions Needed to Advance the Next Generation Air Transportation System (June 16, 2010).

Challenges in Meeting FAA’s Long-Term Goals for the Next Generation Air Transportation System (Apr. 21, 2010).

The Federal Aviation Administration’s Oversight of On-Demand Aircraft Operators (March 17, 2010).

Transportation Research Board, Airport Cooperative Research Program

Legal Research Digest 10 Analysis of Federal Laws, Regulations, and Case Law Regarding Airport Proprietary Rights (Oct. 2010).

Report 32 Guidebook for Addressing Aircraft/Wildlife Hazards at General Aviation Airports (July 2010).

Legal Research Digest 9 Case Studies on Community Challenges to Airport Development (June 2010).

Synthesis 19 Airport Revenue Diversification (June 2010).

Report 30 Reference Guide on Understanding Common Use at Airports (May 2010).

Report 31 Innovative Approaches to Addressing Aviation Capacity Issues in Coastal Mega-Regions (Apr. 2010).

Report 27 Enhancing Airport Land Use Compatibility, Volume 1: Land Use Fundamentals and Implementation Resources (Apr. 2010).

Report 27 Enhancing Airport Land Use Compatibility, Volume 2: Land Use Survey and Case Study Summaries (Apr. 2010).

Report 28 Marketing Guidebook for Small Airports (March 2010).

Report 20 – Strategic Planning in the Airport Industry (Jan. 2010).

Studies

South Coast Air Quality Management District, General Aviation Airport Air Monitoring Study (Aug. 2010).

H. Swift, A Review of the Literature Related to Potential Health Effects of Aircraft Noise, Partnership for Air Transportation Noise and Emissions Reduction, Report No. PARNTER-COE-2010-003 (July 2010).

U.S. Department of Transportation, Report to Congress, Transportation’s Role in Reducing U.S. Greenhouse Gas Emissions (Apr. 2010).

G.P. Brasseur and M. Gupta, Impact of Aviation on Climate, Research Priorities, American Meteorological Society, (Apr. 2010).

U.S. EPA, Development and Evaluation of an Air Quality Modeling Approach for Lead Emissions from Piston-Engine Aircraft Operating on Leaded Aviation Gasoline (Feb. 2010).

Articles

D. Y. Bannard, Safety Management Systems: Minimizing Airports’ Exposure, 23 AIR & SPACE LAWYER, No. 2 (2010).

D. Bennett, Airport Privatization After Midway, 23 AIR & SPACE LAWYER, No. 1 (2010).

M. P. Gaston, Navigating the Nation’s Waterways and Airways: Maritime Lessons for Federal Preemption of Airworthiness Standards, 23 AIR & SPACE LAWYER, No. 2 (2010).

P. S. Hudson, Airline Passenger Tarmac Confinements and Delays: Reasonable Regulation Trumps Market Forces, 23 AIR & SPACE LAWYER, No. 2 (2010).

D. S. Reimer, The law of airline subsidies and incentives in the USA: Recent developments and future outlook, 4 JOURNAL OF AIRPORT MANAGEMENT 3 at 291–300 (Apr.–June 2010).

P. J. Wells, Lessons Learned From the O’Hare Airport Modernization, 23 AIR & SPACE LAWYER, No. 1 (2010).

A PDF of this Airport Law Alert is available.