On July 30, 2007, the FAA published its final Federal Presumed to Conform Actions Under General Conformity list in the Federal Register. The Presumed to Conform list identifies certain federal actions on or relating to airports that do not require detailed General Conformity analyses under the Clean Air Act. General Conformity analyses are typically required for FAA actions (such as Airport Layout Plan or PFC approvals) that affect cities or regions that are not in compliance with federal air quality standards. Among the activities identified in the Presumed to Conform list are: pavement markings, non-runway pavement work, terminal upgrades, heating and cooling projects, airport security projects, and alternative fuel vehicle projects.

On July 23, 2007, the U.S. Court of Appeals found that Clark County, Nevada had taken property without just compensation in imposing building height restrictions. In Vacation Village v. Clark County, the Ninth Circuit held that it was bound by the Nevada Supreme Court’s decision in McCarran Int’l Airport v. Sisolak that (1) the height restriction in question constituted a per se regulatory taking under the Nevada Constitution, and (2) the avigation easement granted to Clark County did not constitute a valid defense to the takings claim. Importantly, the Ninth Circuit said that it did not believe that the height restriction was a taking under the U.S. Constitution. The case was remanded to U.S. District Court for reconsideration of the award of just compensation.

On June 15, 2007, DOT rendered its Final Decision in Alaska Airlines v. Los Angeles World Airports, holding that basing terminal fees for the complaining carriers on “rentable space” is unjustly discriminatory at LAX because the Airport has an outstanding number of long term leases based on “usable space,” and basing terminal fees for the complaining carriers on market value is unreasonable since LAWA did not obtain an independent third party appraisal. Favorable to LAWA, the Final Decision held that the new terminal fees for road access costs, security costs, and additional indirect administrative costs not previously charged to the complaining carriers, were reasonable and not unjustly discriminatory. Although, problematic to LAWA, the Final Decision is favorable to airports, in general, since it reaffirms the right of airports, in the absence of an existing agreement, to impose by tariff, terminal fees: (1) recovering all of an airport’s direct and indirect maintenance and operations expenses; (2) based on “rentable space” so long as there are no long term outstanding leases based on “usable space”; and (3) based on the “market value” of aeronautical space, so long as it is based on an independent third party appraisal. The Decision has been appealed.

On May 23, 2007, the FAA issued a final rule amending the regulations governing Passenger Facility Charges (PFC) (14 CFR Part 158). The amendments respond to mandates in Vision 100 and other concerns. For example, the amendments identify low-emission airport vehicles and ground support equipment as eligible projects under certain circumstances, allow the use of PFC revenue to pay debt service on certain ineligible projects, and further protect PFC revenue in bankruptcy proceedings.

On May 11, 2007, the U.S. Court of Appeals in Washington struck down a FAA decision to change an informal runway use program at Ft. Lauderdale-Hollywood Airport. The Court held that the FAA should have conducted environmental review under NEPA before informing the Airport that it was going to make increased use of a runway in a manner inconsistent with the Airport’s approved Part 150 Noise Compatibility Program. The Court rejected the FAA’s assertions that an informal letter was not a “final agency order” and was not subject to judicial review. The Court’s decision could affect the ability of the FAA to make changes in informal runway use programs but also may discourage the FAA from approving such programs in the first place.

On December 7, 2006, Senator Frank Lautenberg (D-NJ) introduced a bill to phase out remaining Stage 2 aircraft. The bill had no effect after the 109th session of Congress adjourned on December 8; however, Senator Lautenberg signaled his intent to reintroduce the bill during the next session. The legislation would amend the Airport Noise and Capacity Act of 1990, which presently recognizes the right of airport proprietors to restrict Stage 2 aircraft but does not include a nationwide phase out. The Aircraft Noise Reduction Act of 2006 would require owners of all Stage 2 aircraft to replace or retrofit the aircraft to meet at least Stage 3 noise levels within three years from enactment unless operating at an airport where the airport proprietor has decided to continue to serve Stage 2 aircraft.

On August 29, 2006, the FAA and BLM announced the preparation of an environmental impact statement for the construction of a new airport for the Las Vegas area.  The proposed new Ivanpah Airport would be one of the few new commercial service airports built in the United States in the last generation. The new airport would supplement McCarran International Airport, which is expected to reach its practical capacity by 2018.  A copy of the Notice of Intent to Prepare an EIS is available.

For further information on the proposed airport and our client’s planning efforts, please contact Peter Kirsch in our Denver office.

On August 4, 2006, the U.S. Court of Appeals for the District of Columbia Circuit rejected claims challenging the City of Chicago’s proposed modernization plan for O’Hare International Airport. In Village of Bensenville v. FAA, the court rejected a claim that the FAA violated the Religious Freedom Restoration Act (RFRA) by approving the proposed project that entails relocation of a cemetery. The court based its decision on the fact that the FAA’s involvement in the proposed project did not trigger the requirements of RFRA.

On July 13, 2006, in a decision with potentially enormous implications for airports nationwide, the Nevada Supreme Court issued a decision in McCarran International Airport v. Sisolak concerning an airport’s liability for takings for use of airspace less than 500 feet above ground level.  The Court found Clark County liable for per se takings for use of the landowner’s airspace and for imposing a height limitation on construction near the McCarran Airport runways. Clark County has announced that it will seek review by the U.S. Supreme Court.

On June 13, 2006, the FAA released a Notice of Proposed Rulemaking for FAR Part 77, which concerns obstructions and hazards around airports. This is the first major rewrite of Part 77 in decades. It would completely reorganize the regulation and make many important changes to, for example, the deadline for filing FAA Form 7460-1, the types of structures for which notice is required, obstruction standards, and the content of aeronautical studies. The proposed rule also would address electromagnetic interference for the first time. Comments are due by September 11, 2006.