On June 16, 2010, Firm client, the Town of Barnstable, Massachusetts, filed a Petition for Discretionary Review with FAA, challenging FAA’s May 17, 2010 issuance of Determinations of No Hazard for 130 wind turbines proposed to be constructed in Nantucket Sound. In its Petition, the Town asked FAA to reverse the 130 Determinations of No Hazard because the wind turbines would create a substantial adverse effect on air navigation. Specifically, the Town argued that the construction and operation of the wind turbines would impair the operation of existing FAA radar facilities, adversely affect existing instrument flight rule (IFR) and visual flight rule (VFR) operations, force a significant number of operations to change their regular course or altitude, and limit the capacity and efficiency of the Barnstable Municipal Airport and the Nantucket Sound airspace.

On June 11, 2010, several environmental interest groups filed a complaint in the U.S. District Court for the District of Columbia challenging the U.S. Environmental Protection Agency’s (EPA) failure to implement rules on greenhouse gas emissions by aircraft and other mobile sources.  Plaintiffs filed a petition in December 2007 requesting that EPA adopt and implement regulations on GHG emissions from aircraft.  Plaintiffs allege that EPA’s failure to respond to the petitions violates the Clean Air Act and request that the court direct EPA to issue findings and, if warranted based upon those findings, initiate rulemaking to establish limits on emissions.  

We are excited to share that the following attorneys were recently selected for inclusion in Chambers USA 2010:

• Steve Kaplan for Real Estate: Zoning/Land Use – Band 1
• Sarah Rockwell for Real Estate: Zoning/Land Use – Band 1

Chambers USA compiles its rankings based on the research of more than 170 editors and researchers who talk to lawyers and attorneys all the year round, condutitng in-depth interviews.

On June 8, 2010, the Department of Transportation (DOT) proposed to expand the requirements imposed on airlines to address extended on-board delay and provide other protections to passengers.  As previously reported in Airport Law News, DOT adopted rules in December 2009 prohibiting tarmac delays greater than three hours.  DOT proposes to expand the rules significantly by, for example, subjecting foreign air carriers to the rules, requiring contingency plans for small- and non-hub airports, requiring reports to DOT, increasing potential compensation for being involuntarily bumped from oversold flights, and demanding notice for baggage fee increases.  Comments must be submitted by August 9, 2010.

The National Mediation Board (NMB)—the agency authorized by the Railway Labor Act at 45 U.S.C. § 151, et seq., to interpret various provision of that Act—issued its Final Rule addressing the selection of a representative of a carrier’s employees.  The new rule, which takes effect on June 10, 2010, allows the NMB to certify the authorized representative of a craft or class of a carrier’s employees based on a majority of valid ballots cast in an election.  The old rule requires the affirmative vote of a majority of all eligible voters in a class or craft in order for such an election to be valid.  The rule applies once a dispute has arisen as to who may represent the employees and one or more parties to the dispute have requested that the NMB investigate the dispute and certify the representative.  The rule does not revise the requirements at 29 C.F.R. 1206.2 to initially establish the existence of a representation dispute.  The Final Rule amends the NMB’s regulations at Sections 1202.4 and 1206.4 of 29 C.F.R.

On May 10, 2010, the Department of Transportation published a Notice of Proposed Rulemaking regarding the Disadvantaged Business Enterprise (DBE) program found at 49 C.F.R. Part 26.  DOT proposes a number of changes to the DBE program, including the following: (a) new compliance requirements for recipients who fail to meet their overall DBE participation goal in any given fiscal year; (b) improving post-award compliance by requiring good cause shown before a prime contractor can terminate or substitute a DBE subcontractor; (c) requiring additional written certification from recipients confirming their oversight of DBE participation; (d) permitting recipients to provide year-to-year projections of DBE participation within the framework of an overall goal submitted every three years; (e) making inflationary and other adjustments to the personal net worth criteria for DBE certification; (f) adding provisions to facilitate interstate certification of DBEs and otherwise modifying and updating the certification requirements; and (g) adding provisions to foster small business participation.  Comments must be submitted by July 9, 2010.

Kaplan Kirsch & Rockwell successfully defended Martin County, Florida in a class action seeking noise damages for operations at a busy general aviation airport on the east coast of Florida.  The Firm successfully argued that the case should not be certified as a class because noise damages are unique to each property owner.  Peter Kirsch discussed the case and its implications for airports nationwide in an article by Airport Revenue News.

On April 20, 2010, the U.S. Environmental Protection Agency (U.S. EPA) Administrator Lisa Jackson signed an Advanced Notice of Proposed Rulemaking (ANPRM) on lead emissions from piston-engine aircraft.  Through it, EPA is seeking public comment on a range of issues relating to leaded aviation gasoline, including calculation of lead emissions and fuel-distribution systems.  The ANPRM could lead to proposed rules regulating the emissions of lead from aircraft.  Public comments will be due 60 days from publication in the Federal Register.  The ANPRM contains a good survey of available information on lead monitoring near airports (air and soil), modeling results, and exposure.  This information will provide focus and information on the issue of lead exposures from avgas to the general public and press, to which airports may need to respond.

On April 5, 2010, the United States Environmental Protection Agency (EPA) published amendments to the general conformity rules under the Clean Air Act.  The general conformity rules require federal agencies like the Federal Aviation Administration (FAA) to analyze whether their proposed actions are consistent with State Implementation Plans for air pollutants like ozone.  The amendments provide some additional flexibility for meeting the conformity rule’s requirements and may prove useful for some airport capital and airspace projects.  EPA did not make one change that Airports Council International  and others have long sought:  exclusion of construction-related emissions from the conformity requirements.  EPA found that construction emissions from projects with a federal connection can affect compliance with air quality standards and, thus, that they should be assessed in the conformity reviews.

On March 29, 2010, the Colorado Public Utilities Commission rejected an electric tariff proposed by Xcel Energy that would have imposed burdensome environmental liability and cost requirements on developers of brownfield properties in Colorado.  Kaplan Kirsch & Rockwell represented a coalition of intervenors in this matter, including NAIOP, the Colorado Association of Homebuilders, the Denver Metro Building Owners and Managers Association, Fitzsimons Redevelopment Authority, Forest City Stapleton, Inc., Fitzsimons Developer LLC, LUI Denver Broadway, LLC, and LUI Denver Broadway Office, LLC, who argued to the PUC that the proposal would severely and unfairly affect brownfield and infill development in Colorado.  The PUC agreed with our clients that “the proposal is significantly flawed, and [Xcel’s] arguments in support of the tariff are insufficient to justify its problematic language.”