On October 30, 2008, the U.S. District Court for the Middle District of Florida rejected an environmental interest group’s challenge to the U.S. Army Corps of Engineers’ issuance of dredge-and-fill permits for construction of the new Panama City Airport.  In Florida Clean Water Network v. Grosskruger, the court rejected plaintiffs’ challenges to the Corps’ definition of the project purpose and its consideration of alternatives and mitigation.  Another suit (NRDC v. FAA) challenging the FAA’s Record of Decision for the new Airport remains pending in the U.S. Court of Appeals for the Second Circuit.

On October 24, 2008, a federal district court in Connecticut ruled that the Town of East Haven is preempted from regulating the construction of runway safety areas at the Tweed-New Haven Airport.  The court in Tweed-New Haven Airport Authority v. Town of East Haven, found that under the Federal Aviation Act of 1958, the FAA occupies the field of aviation safety, and that, as a result, the Town of East Haven could not regulate the construction of runway safety areas on airport property.  This decision follows a long line of cases on the extent of local government land use regulation of airports.

Following some eighteen months of debate, the most comprehensive rail safety legislation in 40 years went into effect on October 16, 2008.  This legislation provides statutory mandates and appropriates billions of dollars of funding for the development and implementation of safety technology and improved industry practices.  The Federal Railroad Administration (FRA) is charged with developing technical standards and regulations for positive train control (PTC) systems to prevent train collisions and control other movements through automatic detection and control mechanisms.  Class I railroads, intercity passenger providers and commuter passenger rail operators will be required to provide PTC on their main lines no later than December 31, 2015; some operations require earlier implementation.  Other significant components of the legislation include revisions to hours-of-service requirements for train and signal employees, the institution of mandatory risk reduction programs, and new certification and training requirements for train employees.

Reauthorization of Amtrak, including significant increases in capital appropriations, became effective on October 16, 2008.  The legislation requires Amtrak, FRA, the Surface Transportation Board (STB), and affected states to establish standards and metrics to measure the performance and service quality of intercity passenger trains. The legislation also affords expanded authority to the STB to conduct non-binding mediation of disputes between freight railroads and commuter operators seeking access to freight corridors for the provision of passenger service.  The STB held a hearing on its new responsibilities on February 11, 2009.  A list of the speakers at that hearing is available here.  The written testimonies provided in advance of the hearing are available here.

On October 10, 2008, the Department of Transportation (DOT) published final congestion management rules for John F. Kennedy International (JFK), Newark Liberty International, and LaGuardia Airports.  Under the final rules, DOT will retain caps on operations at JFK and Newark airports and reduce the number of operations permitted at LaGuardia.  The rules prescribe a process for reallocating slots to operate at the three airports and create a program by which the FAA will auction slots.  The first such slot auction is scheduled to occur in January 2009.  The final rules, particularly the slot auction, are quite controversial and the subject of pending litigation.

Kaplan Kirsch & Rockwell has been advising the Pew Environmental Group in analyzing the proposed rule for protection of roadless areas in National Forests in Colorado.  The Associated Press published an article summarzing the roadless forest plan, as well as the Firm’s representation of Pew.

Kaplan Kirsch & Rockwell is assisting the artists Christo and Jeanne-Claude with obtaining necessary approvals for their proposed work of art: Over The River^TM.  This article describes the results of the meeting with the BLM Resource Advisory Council in Cañon City on September 30, 2008.

The Las Vegas Review Journal published this article about the complex problems facing the FAA in regards to managing airspace in light of the growth of wind turbines as a viable energy solution.  Kaplan Kirsch & Rockwell successfully challenged an FAA decision that would have allowed a large wind turbine farm to be sited near a new airport and would have severely limited the ability of aircraft to depart from the airport.

On September 8, 2008, the FAA announced its intention to begin requiring that the sponsors of nonprimary hub airports include a list of based aircraft when submitting a grant application under the Airport Improvement Program (AIP). The FAA considers this information relevant to its consideration of proposed AIP projects at these airports. Many airports historically have had difficulty identifying based aircraft, defined in the FAA notice as registered, operational aircraft at an airport for the majority of the year. The FAA is accepting comments through October 8, 2008.

On August 7, 2008, the U.S. Court of Appeals for the Sixth Circuit affirmed the FAA’s decision that the City of Cincinnati did not violate its grant assurance obligations in denying an air carrier’s request to initiate scheduled passenger service. The FAA determined—and the court affirmed—that Cincinnati did not have to upgrade its Airport Operating Certificate since the air carrier did not have the requisite authority under FAR Part 121 to initiate the particular service. The FAA also determined—and the court affirmed—that the City’s liability insurance requirements were not unreasonable.