On August 4, 2008, the Port of Authority of New York and New Jersey announced its proposal to prohibit flights at John F. Kennedy International Airport (JFK), LaGuardia Airport (LGA), and Newark Liberty International Airport (EWR) that are conducted pursuant to new slots planned to be auctioned by the FAA. In April 2008, the FAA announced its proposal to reallocate slots by auction at LGA, and, in May 2008, announced a similar proposal for JFK and EWR. The Port Authority contends that the FAA’s proposal would have material adverse effects and is unlawful. The Port Authority and the FAA are now engaged in litigation over their respective authority over slots at the New York area airports.

On July 23, 2008, the U.S. Court of Appeals for the First Circuit denied a petition for review challenging the FAA’s decision not to supplement an EIS for Boston Logan International Airport. In a Record of Decision (ROD) issued in 2002, the FAA deferred final approval of a new taxiway, pending further study of operational changes. The Town of Winthrop and two residents challenged the adequacy of the FAA’s April 2007 ROD and Written Reevaluation, in which the FAA determined that a supplemental EIS was not required and approved construction of the new taxiway. The court rejected petitioners’ claims that the FAA had failed to adequately consider whether there had been significant changes since the 2002 ROD.

On July 21, 2008, the FAA released a Program Guidance Letter concerning the online distribution of planning and environmental documents for AIP-funded projects. The FAA now expressly prohibits the distribution of public documents on websites requiring the viewer to supply any personal information (name, address, etc.). The FAA is not expanding the scope of documents that must be made public.

On July 14, 2008, the DOT Office of the Secretary and FAA published amendments to the 1996 Policy Regarding the Establishment of Airport Rates and Charges. In amending the Rates and Charges Policy, the DOT and FAA (1) clarified that airport proprietors may impose a landing fee that incorporates both weight-based and per-operation elements; and (2) expanded an airport sponsor’s ability to include among the airfield charges during congested hours at congested airports the cost of airfield projects under construction and the costs of a secondary airport.

On July 11, 2008, the Environmental Protection Agency issued an Advance Notice of Proposed Rulemaking (ANPRM) regarding the regulation of greenhouse gas emissions under the Clean Air Act. Included in the ANPRM was a discussion by the EPA of how to respond to petitions that were filed in December 2008 for the regulation of aircraft emissions of greenhouse gases. In essence, the EPA is deferring decisionmaking until the next Administration, but also soliciting input from the public regarding how to address greenhouse gases generally and aircraft specifically.

On June 12, 2008, the FAA dismissed a Part 16 complaint filed against our client, the County of Westchester, New York.  A FBO at the Westchester County Airport alleged that the County had engaged in unjust discrimination against the FBO, granted an exclusive right to other FBOs, and failed to make the Airport as self-sustaining as possible, through the County’s policy of distinguishing between larger FBOs and light general aviation FBOs at the Airport. The FAA correctly determined that the County’s actions did not violate the Grant Assurances.

On April 18, 2008, the U.S. Court of Appeals in Washington ruled that the FAA erred when it found that proposed wind turbines adjacent to a planned airport would not constitute a hazard to air navigation. In 2006, the FAA found that 83 proposed wind turbines would not constitute a hazard notwithstanding their close proximity to the land in Southern Nevada set aside by Congress for a new airport. Our client, Clark County, Nevada, challenged the FAA’s determinations. The court found that the FAA had failed to follow its own guidance and that Clark County’s evidence revealed potential radar interference. The court vacated the FAA’s determinations and remanded the matter to the FAA.

On December 4, 2007, the FAA dismissed a Part 16 complaint filed against our client, the City of Farmington, New Mexico. An FBO at the Four Corners Regional Airport alleged that the City had granted an exclusive right to another FBO through the City’s leasing policies and practices. The FAA correctly determined that the City had neither granted an exclusive right nor unjustly discriminated against the complainant. The FBO did not appeal the Director’s Determination.

On October 19, 2007, the District Court for Hennepin County, Minnesota, approved a settlement of litigation between the Minneapolis Airports Commission (MAC) and the City of Minneapolis, City of Richfield, City of Eagan, and Minneapolis Public Housing Authority. The plaintiffs had sued the MAC in 2005 to enforce commitments made by the Airport during the environmental review of the new runway 17/35 at the Minneapolis-St. Paul International Airport. The court had previously found that the MAC had committed to provide noise insulation to homes in the DNL 60-65 contours. Under the settlement, MAC will provide noise mitigation to more than 9,500 homes in the DNL 60-65 contours of the airport.  The following copies are available to download:  a summary of the settlement, the consent decree signed by the court, and the order finding that MAC had made a commitment to provide insulation in the DNL 60-65 contours.