Aviation-Related Climate Change

There presently is no aviation-specific legislation, regulation or guidance on greenhouse gas (GHG) emissions. It does not appear that Congress or the FAA will impose restrictions in the near future.

Nevertheless, airport proprietors are coming under increasing pressure from local governments, community and interest groups to address GHG emissions, and have started to take steps to address it. For example, the Port Authority of New York and New Jersey recently announced its goal of reducing GHG emissions by 5% a year. Several communities, including Denver, Colorado; Aspen, Colorado; and Seattle, Washington, have considered airports in their community-wide emissions inventories.

One significant issue that airports will have to confront is the limit on their power under federal law and the grant assurances to regulate greenhouse gas emissions and to impose fees to reduce and offset emissions. To address this issue, former firm partner John Putnam co-authored “The Law of Aviation-Related Climate Change: The Airport Proprietor’s Role in Reducing Greenhouse Gas Emissions,” appearing in the current issue of the Journal of Airport Management.

Another significant issue will be the extent to which airports and the FAA are required to consider climate change impacts in Environmental Impact Statements and Environmental Assessments under NEPA. On November 15, the U.S. Court of Appeals for the Ninth Circuit remanded a fuel economy standard for light trucks issued by the National Highway Traffic Safety Administration for its failure to address the implications of the rule on climate change under the National Environmental Policy Act and the Energy Policy and Conservation Act. While not an aviation case, the opinion contains an extensive discussion about the consideration of climate change under NEPA.

Finally, the Transportation Research Board Committee on the Environmental Impacts of Aviation has created a subcommittee to address aviation and climate change. The Subcommittee will present a panel evaluating the role of offsets for transportation at the TRB Annual Meeting in January 2008.

Litigation Updates

MAC Settles on Sound Insulation

On October 19, the District Court for Hennepin County, Minnesota, approved a settlement between the Metropolitan Airports Commission (MAC) and the Cities of Minneapolis, Richfield and Eagan. The settlement resolves litigation regarding the MAC’s obligation to provide sound insulation between the DNL 60 and 65 contours of Minneapolis-St. Paul International Airport.

Under the settlement, MAC will provide approximately $130 million worth of sound mitigation to homes in the DNL 60-65 contours of MSP, with more mitigation provided to the homes in the louder noise contours. The plaintiff Cities agreed to have their City Councils consider ordinances to require additional noise attenuation in noise contours outside of the DNL 65 contour.

The settlement is contingent on an FAA opinion regarding the use of airport revenue and settlement of a parallel class action lawsuit filed after the Cities’ suit. Implementation of the noise mitigation is scheduled to begin in 2008

Challenges Filed to Airspace Redesign

On September 5, the FAA issued a Record of Decision approving the redesign of airspace in the New York, New Jersey, and Philadelphia metropolitan areas. The FAA estimates that the move will reduce delays by 20% by 2011 and significantly reduce noise exposure and fuel burn.

Thirteen lawsuits were filed recently challenging the FAA’s Environmental Impact Statement. Suits were filed in the Second, Third, and D.C. Circuits. Petitioners include the State of Connecticut, the New Jersey Coalition Against Aircraft Noise, the Alliance for Sensible Airspace Planning, Delaware County (PA), and Rockland County (NY). Although petitioners have requested a stay pending the appeal, such relief is seldom granted in environmental cases of this kind. The Government Accountability Office also is reviewing the project for the House Aviation Subcommittee.

ATA Challenges Airport “Privilege Fee”

On September 24, the Air Transport Association and Air Carrier Association of America petitioned DOT to declare that a “privilege fee” for air carrier use of an airport imposed by a local government that is not the airport sponsor violates the Anti-Head Tax Act. The Township of Tinicum, Pennsylvania imposed the fee for use of Philadelphia International Airport despite the fact that it does not operate the Airport or contribute financially to its operation or development. The Township thereafter brought suit against the carriers for failure to pay the fee. Both the ATA/ACAA petition and the Township’s suit are pending. Additional information and copies of the ATA/ACAA petition are available on the ATA website.

FAA Upholds GA Fees

In two recent decisions issued under FAR Part 16, the FAA confirmed that it is not unreasonable or unjustly discriminatory for airport sponsors to charge fees at general aviation airports to based, but not transient, aircraft owners and operators. See Wadsworth Airport Ass’n, Inc. v. City of Wadsworth, Docket No. 16-06-14 (F.A.A. Aug. 8, 2007); R/T-182, LLC v. Portage County Regional Airport Auth., Docket No. 16-05-14 (F.A.A. March 29, 2007). FAA decisions under Part 16 are available at http://part16.airports.faa.gov.

Briefs Filed Over Panama City Airport

Briefs have been filed but oral argument has not yet been scheduled in a suit filed by the Natural Resources Defense Council and Defenders of Wildlife over the planned construction of a new airport in Panama City, Florida. Petitioners allege that the FAA’s EIS was insufficient and that its decision to close the existing airport was inconsistent with the AAIA.

News Desk

FAA Reauthorization Update.  Congress has yet to enact FAA Reauthorization or Fiscal Year 2008 Appropriations. Congress has enacted Continuing Resolutions of limited duration, which now extend FAA programs and funding through December 14. As reported in previous Airport Law Alerts, there is no consensus on several key elements of Reauthorization, particularly the fee and tax structure. The appropriations debate is part of a broader disagreement between Congress and the Bush Administration over funding levels across all federal agencies. It remains uncertain when longterm resolution of these issues will occur.

FAA Considering Operating Limits at JFK.  With the sunset earlier this year of the High Density Rules at the New York area airports, aircraft operations and delay increased dramatically. To combat the problems at John F. Kennedy Airport, the FAA convened a meeting with carriers in late October to discuss scheduling reductions and solicited written comments on the issue. The comment period closed November 6. The FAA has declared its intent to issue a final order soon but has made no commitment on whether it will impose mandatory operating limits. To date, the FAA has identified an operating “target” of 80-81 hourly operations. The FAA already has reestablished mandatory operating limits for New York’s LaGuardia Airport, and, on November 8, adopted several changes to the program further suggesting that it will be in place for the foreseeable future. See 72 Fed. Reg. 63,224 (2007). The JFK scheduling reduction process can be followed through Docket No. FAA-2007-29320 (use the new government electronic docket website: www.regulations.gov).

Aviation Subcommittee Hearing on Noise. On October 24, the Aviation Subcommittee of the House Transportation and Infrastructure Committee held a hearing on airport noise. The opening statements and written testimony are available at: http://transportation.house.gov/hearings/hearingdetail.aspx?NewsID=343.

FAA Releases Environmental Guidance. In October, the FAA released the longawaited Environmental Desk Reference for Airport Actions. The Desk Reference supplements Order 1050.1E and Order 5050.4B and provides detailed information on compliance with “special purpose laws” when conducting environmental review under the National Environmental Policy Act. The Desk Reference covers each of the 23 environmental impact categories required to be considered in an EA or EIS.

TRB to Release Airport Law Digest. The Transportation Research Board Airport Cooperative Research Program has released the Compilation of Airport Law Sources. The report contains over 500 federal sources (statutes, regulations, guidance, cases, articles) divided by subject area.

Comings & Goings

Bobby Sturgell has been nominated to be the new FAA Administrator, replacing Marion Blakey. Mr. Sturgell must be confirmed by the U.S. Senate, upon recommendation by the Committee on Commerce, Science and Transportation.

Patty Hahn resigned as General Counsel for Airports Council International – North America. ACI-NA is seeking applicants for the position. For more information, go to http://www.aci-na.org/index.asp.

Tom Zoeller resigned as Vice President of Regulatory Affairs for the American Association of Airport Executives to take the position of President of the National Air Carrier Association. Melissa Sabatine, formerly a Senior Policy Advisor to the Secretary of Transportation, is the new VP of Regulatory Affairs.

David Bennett recently announced his retirement from the FAA. Bennett currently is the Director of the Office of Airport Safety and Standards, a position he has held since 1995.

A PDF of this Airport Law Alert is available.

U.S. Supreme Court Will Not Review Nevada Supreme Court Decision on Airport Height Ordinance

On February 20, 2007, the U.S. Supreme Court denied the petition for writ of certiorari filed by Clark County, Nevada seeking review of the Nevada Supreme Court’s decision in McCarran International Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006). The Nevada Supreme Court held that Clark County’s regulation of building heights around McCarran International Airport constituted an uncompensated taking of private property. The County’s cert petition was supported by a broad array of airport and aviation industry groups, including Airports Council International – North America, the Air Transport Association, and the Air Line Pilots Association.

As reported in a previous Airport Law Alert, the Nevada Supreme Court declared the County’s height ordinance to be a per se regulatory taking under the U.S. Supreme Court’s analytical approach set forth in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). The Nevada Supreme Court found that the County’s height ordinance imposed a permanent physical occupation of the airspace above Sisolak’s property up to an altitude of 500 feet.

The Nevada Supreme Court’s decision is anomalous for a variety of reasons, including that the Nevada Supreme Court conducted its analysis under Loretto rather than the analytical approach set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978); and the court seemingly ignored FAA regulations stating that airspace below 500 feet is part of the navigable airspace when needed for takeoffs and landings. The court did not recognize the County’s possession of an avigation easement over part of the property as a valid defense.

The U.S. Supreme Court’s denial of the County’s cert petition left intact the state court judgment of more than $16 million. The decision further calls into question the validity of similar height ordinances around the country, which may be suspect if analyzed in the same manner as the Nevada Supreme Court.

D.C. Circuit Upholds Newark Airport Fees

On March 2, 2007, the U.S. Court of Appeals for the District of Columbia Circuit ruled on an airport fee dispute in Port Authority of New York and New Jersey v. Dept. of Transportation, 479 F.3d 21 (D.C. Cir. 2007). The court largely affirmed DOT’s decision that fee increases imposed on air carriers in the international terminal at Newark International Airport were reasonable. The court also affirmed DOT’s decision rejecting complainant’s claim of unjust discrimination. Notably, the court overruled DOT in holding that the statute authorizing “air carriers” to challenge airport rates and charges, 49 U.S.C. Section 47129, did not apply to foreign air carriers, which included 12 of the 13 complainants in the case. The court affirmed DOT’s decision that certain fees were unreasonable but remanded the case to DOT for further proceedings as to other fees declared unreasonable.

D.C. Circuit Strikes Down Ozone Implementation Rules

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit struck down EPA’s implementation rule for the eight-hour ozone standard under the Clean Air Act. The decision in South Coast Air Quality Mgmt. Dist. v. EPA has affected a number of airports that are located in ozone nonattainment areas throughout the country. The decision has delayed the process of including airport projects in State Implementation Plans, affected general conformity analyses, and may influence the permitting of certain facilities on airports such as heating plants. EPA and other parties filed notices for rehearing of the decision on March 22, 2007, but a decision on these motions is not expected for some time. While EPA has issued interim guidance, there remains considerable confusion regarding the status of Clean Air Act requirements in ozone nonattainment areas.

U.S. Supreme Court Rules That EPA Has Power Over Greenhouse Gases

On April 2, 2007, the U.S. Supreme Court held in Massachusetts v. EPA that the Clean Air Act covers greenhouse gas emissions, such as carbon dioxide, from motor vehicles. The Court concluded that the Act provides EPA with authority to regulate greenhouse gases and that EPA’s justification for not exercising this authority was inadequate. The case is of particular interest to airports because it may prompt regulatory measures relating to climate change, including specific measures related to aviation. Indeed, the Clean Air Act provision relating to aircraft engines, 42 U.S.C. Section 7571, is quite similar to the section on motor vehicles that was at issue in the case.

Minnesota State Court Finds That MAC Failed to Provide Noise Mitigation

In January 2007, the District Court for Hennepin County, Minnesota, granted summary judgment in favor of the City of Minneapolis and other plaintiffs in litigation against the Metropolitan Airports Commission (“MAC”). The court found that MAC had failed to comply with its state law obligation to provide noise insulation in the DNL 60-65 decibel contour around the Minneapolis-St. Paul International Airport (“MSP”) as promised in the Environmental Impact Statement for the construction of the new Runway 17/35 and other documents. After a trial held in February, the court is considering whether the Minnesota Environmental Rights Act also requires noise insulation to protect “quietude” in the neighborhoods surrounding MSP. A final decision from the trial court is expected in late Spring. A separate class action lawsuit brought by homeowners is pending in Minnesota state court.

FAA Reauthorization in Flux

While the debate over user fees for air traffic services has garnered the most media attention, FAA Reauthorization promises to bring significant changes to the AIP and PFC programs and to create several new FAA initiatives. The Bush Administration released its bill, the Next Generation Air Transportation System Financing Reform Act of 2007

The Administration’s bill includes elimination of AIP entitlement funds for large and medium hub airports, recalculation of entitlement funds available to other airports, increases in the amount of individual PFCs, and reforms in project eligibility and the process for imposing and using PFCs. The bill also includes a considerable number of other reforms, including expanding the pilot program on airport privatization, creating pilot programs and funding eligibility for certain environmental initiatives, and creating programs and guidelines for airport congestion pricing.

Other News

Airlines challenge LAX rate increase

A group of airlines operating from Terminal 1, Terminal 3 and the Tom Bradley International Terminal at the Los Angeles International Airport are challenging recent rate increases imposed by Los Angeles World Airports. The dispute concerns the methodology used by LAWA to calculate the fees as well as issues of reasonableness and unjust discrimination. The dispute is governed by the expedited procedures of FAR Part 302. The Administrative Law Judge’s Recommended Decision is due in mid-May.

City of Las Vegas challenges change in aircraft departures from McCarran Airport

The City of Las Vegas is seeking review by the Ninth Circuit Court of Appeals of a November 2006 decision by the FAA to redirect some aircraft departing McCarran International Airport. The FAA’s decision reinstates a “right turn” for some aircraft departing to the west from McCarran, a move that is intended to reduce delay at the nation’s sixth busiest airport. Las Vegas sought and was denied a stay pending the appeal, arguing that the FAA failed to perform the required air quality conformity analysis before rendering its decision.

FAA issues new Advisory Circular on exclusive rights

In January 2007, the FAA released Advisory Circular No. 150/5190-6, Exclusive Rights at Federally-Obligated Airports. The new Advisory Circular continues and further clarifies longstanding FAA policies concerning the prohibition on granting exclusive rights to aeronautical users of airports.

FAA launches new website on airport noise maps

In compliance with federal law, the FAA has created a website with links to airport noise exposure maps for many airports around the country. The website contains maps prepared under FAR Part 150 and for other purposes. Airport sponsors are encouraged to review the website to ensure that the maps and information are correct.

FAA to issue guidance on disposition of noise buffer lands

The FAA will soon release guidance on airport sponsor acquisition, management and disposition of lands purchased for land use compatibility. The guidance is the FAA’s latest response to an audit by the DOT Office of Inspector General in 2005, which found that airport sponsors are not complying with statutory and grant assurance obligations regarding noise buffer lands.

New FAA Chief Counsel appointed

In March 2007, Secretary Peters announced the appointment of Kerry B. Long as the new FAA Chief Counsel. The Chief Counsel oversees 258 employees in Washington DC and eleven field offices. Mr. Long formally was a partner with Fulbright & Jaworski in Washington, DC.

Article published on the law of airline competition

The latest issue of the Journal of Airport Management is about to be published. The new edition contains an article by Dan Reimer, The law of airline competition in the USA: Recent developments and future outlook.

Airport Law Conference

The 23^rd Annual Basics of Airport Law and Legal Update will be held September 23-25, 2007, in the Baltimore/Washington DC area. The conference is being presented by the American Association of Airport Executives, the FAA, and Kaplan Kirsch & Rockwell LLP.

A PDF of this Airport Law Alert is available.