N E W S   +   H O T   T O P I C S

PFAS CONTINUES TO LOOM LARGE FOR AIRPORTS

Part 139 airports are required by FAA regulation to use and test firefighting foam that contains per- and polyfluoroalkyl substances (PFAS).  The use of PFAS has taken on increasing urgency for the federal government, private entities, and local governments as it becomes apparent that contamination is widespread across many different industries and users.  In February, the Environmental Protection Agency released a PFAS Action Plan – a broad overview of its various strategies to address PFAS issues on a national level, but there have not been any formal proposed regulations.  In the absence of comprehensive federal regulation, a wide variety of state governments and agencies have adopted standards and policies of their own.

For airport sponsors, the potential liability concerns associated with PFAS contamination in soil or groundwater are particularly alarming.  Provisions of the FAA Reauthorization Act of 2018 require FAA to phase out the PFAS requirement by 2021, but no specific plan has been released.  FAA published a Part 139 CertAlert (discussed in a previous Airport Law Alert) that approves certain non-contaminating testing methods and provides some guidance on potential strategies for mitigating PFAS contamination.  Most recently, FAA issued a Program Guidance Letter assessing the AIP eligibility of testing equipment that would reduce the discharge of contaminants.  These provide some assistance for airport sponsors looking to mitigate future contamination, but there has been no indication about when new formal regulations eliminating the requirement may be forthcoming.

Airport sponsors should continue to be vigilant about PFAS contamination, including being alert for future (or current) regulations at the federal and state levels.

For more information about PFAS issues, please contact Polly Jessen, Nate Hunt, or Nick Clabbers.

DRONING ON: AIRPORTS FACE CONTINUING CHALLENGES FROM UNMANNED AIRCRAFT SYSTEMS

As it sought to keep up with the rapidly evolving field of unmanned aircraft systems, Congress made a number of statutory changes and mandated several new regulatory schemes in the FAA Reauthorization Act of 2018.  Since the legislation’s enactment last autumn, FAA has been working to implement those changes.

As part of this effort, there has been important, new information and guidance for airports on drone issues.  In light of drone incursions at Gatwick, Heathrow, Newark, and others, many airport sponsors are considering whether the installation of counter-drone and/or detection technology is appropriate or permissible; while FAA has not explicitly prohibited those measures, it did issue a series of letters (linked below) warning sponsors that this type of technology may violate federal law and could conflict with the Grant Assurances.  In the interim, FAA recommends that sponsors develop a response strategy with local law enforcement and work with local stakeholders to educate operators about flights near the airports.

FAA also published several new draft operational rules, including for drone operations at night and over people, and a final rule requiring that drones be marked with an identification number on the outside.  Separately, FAA released a notice outlining how the agency will soon integrate recreational operators into the national airspace.  While this plan will have many components, the most important piece for airports is that recreational operators will use the Low Altitude Authorization and Notification Capability (LAANC) system to apply for FAA authorization for flights in controlled airspace – just as commercial operators do now.  A full list of the air traffic facilities (approximately 600 airports) participating in LAANC is available on FAA’s website.

Notably absent from these efforts is any formal announcement or status update on a Remote Identification rulemaking, a key aspect of drone regulation and safety efforts at airports.  The last formal update came in late 2018, when FAA released a request for information on technical capabilities to implement Remote ID.  It is unclear when a draft rule may be forthcoming.

While most airports address drone issues at an operational level, airport lawyers need to stay alert of changes in state and local law and FAA requirements, especially with regard to what actions airport sponsors can—and cannot—take to address actual or potential drone operations in the vicinity of their airport.

For more information about UAS issues, please contact Eric Smith or Steven Osit.

NEW STATUTE SHOWS INITIAL PROMISE FOR DEVELOPMENT AT AIRPORTS

The recent enactment of Section 163 of the FAA Reauthorization Act of 2018, codified in part at 49 U.S.C. § 47107(a)(16), brought some welcome Clarity and relief for airport sponsors who engage in non-aeronautical development.  Section 163 explicitly prohibits FAA from exercising authority to “directly or indirectly regulate” certain non-aeronautical property transactions, except (1) to ensure the safe and efficient operation of aircraft or the safety of people and property on the ground, (2) to ensure the receipt of fair market value for the use or disposal of property, or (3) where the property was itself purchased with AIP grants or is subject to the Surplus Property Act.  In addition, Section 163 restricts FAA to reviewing and approving only those ALP amendments which “materially impact” safety and efficiency for aircraft operations, or “adversely affect the value of prior Federal investments to a significant extent.”

Practically, Section 163 stands for the proposition that if a parcel (1) is already designated as non-aeronautical on an approved ALP, (2) was not purchased with federal funds or donated from the federal government, and (3) will be developed in a manner that will not impact the safe and efficient operation of the airport, the sponsor may immediately begin leasing and development with no formal approval from FAA.

This provision is still in its infancy; while the statute does not require any FAA implementing regulation, the Associate Administrator has stated at industry conferences that FAA is considering issuing formal interpretive guidance.  There is no published timetable for such guidance.  Nonetheless, airports are taking advantage of the new flexibility mandated by the statute.  In two recent projects at Dallas/Fort Worth International Airport and Raleigh Durham International Airport, FAA requested the opportunity to review these transactions, but more importantly, found that because of Section 163, there is no federal action triggering NEPA.  The result has been a vast reduction in the time and uncertainty previously associated with approvals for real estate transactions.

For more information on Section 163 and non-aeronautical development, please contact Peter Kirsch or Nick Clabbers.

TWO SUPREME COURT DECISIONS HAVE IMPLICATIONS FOR AIRPORTS

At the very end of its just-concluded October 2018 term, the Supreme Court issued two opinions in non-airport cases that will have implications for airports.  The facts of these cases are not necessarily relevant, but airport lawyers should be aware of the holdings and their potential consequences.

First, in Knick v. Twp. of Scott, the Supreme Court overruled a 34-year-old case and held that a plaintiff alleging a taking or inverse condemnation by a local government under the United States Constitution and 42 U.S.C. § 1983 (implementing the Fifth Amendment) does not first have to exhaust her available state remedies before filing suit in federal court.  This is an important ruling for airport lawyers, particularly in the context of claims for taking, damaging, and inverse condemnation of property by way of aircraft overflights.  Many of these cases have been heard in state courts—under applicable state law—on the basis on the now-overruled precedent.  However, the legal standards for these claims often differ under federal and state law (including under various state constitutions), and plaintiffs may now choose to file suit in federal court immediately if the standard is more favorable.  The Court did not address this choice of law question in the Knick decision.  Conceivably, a plaintiff could bring suit in federal court under both the United States Constitution and any applicable state law.  While the implications of Knick have yet to be understood, there is no doubt that it will affect airport-related takings and inverse condemnation litigation.

Second, in Kisor v. Wilkie, a fractured Court declined to overrule the longstanding Auer and Seminole Rock deference standard, which states that agencies are afforded deference in their interpretations of their own ambiguous regulations.  The majority opinion, authored by Justice Kagan and joined in most parts by Chief Justice Roberts, reinforced that Auer should be applied in only limited circumstances where a regulation is “clearly ambiguous” and the agency has brought its expertise to bear in its reasonable interpretation of the regulation – largely a restatement of existing law.  But separate opinions by Justices Gorsuch and Kavanaugh, joined in most parts by Justices Thomas and Alito, state a strong desire to overrule Auer.  Future cases like Kisor, perhaps presented to a different Court, may result in the elimination of the Auer standard.  This is important for airport lawyers in a variety of federal regulatory contexts.  Perhaps most immediately relevant is the recent FAA Reauthorization Act that requires FAA to promulgate several new regulations, rules, and other guidance – all of which could be endangered by any disturbance of the Auer doctrine.

NEW FAA ADMINISTRATOR NOMINEE

On March 19, the President announced his intent to nominate Stephen Dickson, a recently-retired executive at Delta Airlines, as the permanent FAA Administrator.  Dickson is an Air Force veteran, former commercial pilot, and holds a JD from Georgia State University.  Despite recent delays associated with his involvement in a whistleblower lawsuit that was not initially disclosed, Dickson’s eventual confirmation by the United States Senate appears probable.  It is unclear whether Dickson’s appointment will result in any significant policy changes for airports.

L I T I G A T I O N

FEDERAL AND SELECT STATE COURT DECISIONS

Judicial Review.  Kisor v. Wilkie, No. 18-15, 2019 LEXIS 4397 (June 26, 2019) (non-airport case declining to overrule precedent related to judicial deference to agency interpretations of its own rules (Auer deference)).

Inverse Condemnation and Takings.  Knick v. Twp. of Scott, No. 17-647, 2019 U.S. LEXIS 4197 (June 21, 2019) (non-airport case overruling 1985 precedent and holding that a plaintiff alleging a taking by a local government under the United States Constitution and § 1983 no longer needs to exhaust available remedies in state court before filing suit in federal court).

SIDA Regulations.  Ho v. Lopano, Case No. 8:18-cv-2802-T-36SPF, 2019 U.S. Dist. LEXIS 87801 (May 24, 2019) (granting motion to dismiss where plaintiff alleged airport sponsor had improperly withheld his SIDA badge in violation of federal regulations).

Revenue Diversion.  Air Transp. Ass’n. of Am., Inc. v. FAA, 921 F.3d 275 (D.C. Cir. Apr. 23, 2019), pet. for reh’g denied (denying petition for review of Part 16 decision finding no violation of Grant Assurance 25 where airlines alleged that airport sponsor had impermissibly charged them certain utility fees it then paid to the City of Portland).

Anti-Trust.  Dakota Terr. Tours ACC v. Sedona-Oak Creek Airport Auth. Inc., 2019 U.S. Dist. LEXIS 61678 (D. Az. Apr. 10, 2019) (dismissing federal anti-trust claims by unsuccessful lease applicant against municipal airport sponsor because sponsor was immune under the “state action” doctrine).

Grant Assurances.  Boggs v. FAA, 76 Fed. App’x 80 (6th Cir. Mar. 7, 2019) (on appeal of an FAA decision under 14 C.F.R. Part 16, affirming findings that sponsor was in compliance with Grant Assurance 4 and had no affirmative obligation to purchase plaintiffs’ property near the airport).

Federal Takings.  Crawford v. Antonio B. Won Pat Int’l Airport Auth., 917 F.3d 1081 (9th Cir. Mar. 1, 2019) (in case involving condemnation of property for the construction of an airport, affirming district court decision, and holding that a landowner’s ancestral property right was not a constitutionally protected interest under the Due Process Clause).

Through-the-Fence Agreements.  Silverwing at Sandpoint, LLC v. Bonner Cty., 435 P.3d 1106 (Id. Feb. 26, 2019) (reversing district court decision and holding that owner of airport-adjacent property could not maintain a promissory estoppel claim because it could not show “substantial economic detriment” based upon the modification of an impermissible through-the-fence agreement and planned construction on the Airport Layout Plan that was substantially delayed).

Open Meetings and Records.  Elec. Privacy Info. Ctr. v. Drone Advisory Comm., Civ. Action No. 18-833 (RC), 2019 U.S. Dist. LEXIS 28990 (D.D.C. Feb. 25, 2019) (dismissing most open meetings claims under various federal statutes for lack of subject matter jurisdiction but denying motion to dismiss as to plaintiff’s public records claims under the Administrative Procedures Act).

Reversionary Clauses.  Fish v. Magnum Aviation, No. 18-cv-06671-VKD, 2019 U.S. Dist. LEXIS 26271 (N.D. Cal. Feb. 19, 2019) (dismissing various challenges to a reversionary clause in a tenant’s hangar lease and holding that because the sponsor was acting in its proprietary—not governmental—capacity, there could be no Fifth Amendment taking).

Public Records.  Wyoming Jet Center, LLC v. Jackson Hole Airport Bd., 2019 WY 6 (Jan. 15, 2019) (reversing lower court decision and holding that an airport was a political subdivision subject to the Wyoming Public Records Act and that it must make certain documents publicly available).

Car Sharing Program and Fees.  Turo, Inc. v. City of Los Angeles, Case No. 2:18-cv-06055-CAS (GJSx), 2019 U.S. Dist. LEXIS 6532 (C.D. Cal. Jan. 14, 2019) (denying motion to dismiss claim for declaratory relief seeking ruling that airport sponsor has no authority to impose permitting scheme and associated charges on car sharing service).

PENDING CASES

Metroplex/NextGen.  City of Los Angeles v. Elwell, No. 19-71581 (9th Cir. petition filed June 24, 2019) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport).

Metroplex/NextGen.  Howard Cty. v. FAA, No. 18-2360 (4th Cir. response brief filed June 7, 2019) (challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport).

Car Sharing Programs.  Mass. Port Auth. v. Turo, Inc., Civ. Action No. 19-1773 (Mass. Sup. Ct. complaint filed June 3, 2019) (action alleging car sharing service is illegally operating at airport without a car rental permit from sponsor, among other claims).

Metroplex/NextGen.  Maryland v. FAA, No. 18-1173 (D.C. Cir. final briefs filed May 30, 2019) (petition for review of FAA implementation of new approaches at Washington National Airport).

Metroplex/NextGen.  Maryland v. FAA, No. 18-1302 (D.C. Cir. petitioner’s initial brief filed May 24, 2019) (petition for review of FAA decision denying administrative petition for supplemental environmental assessment concerning DC Metroplex and BWI).

ADMINISTRATIVE DECISIONS

Minimum Standards.  Walker AG Supply, LLC v. Wahoo Airport Auth., FAA Docket No. 16-14-08, Final Agency Decision and Order (Mar. 9, 2019) (affirming Director’s Determination, which found no violations of the grant assurances where sponsor did not permit an agricultural service provider to operate at the airport because it did not meet the airport’s minimum standards).

Use Restrictions.  Forman v. Palm Beach Cty., FAA Docket No. 16-17-13, Director’s Determination (Feb. 22, 2019) (finding sponsor not in compliance with Grant Assurance 22 where it prohibited all jet aircraft operations), appeal pending.

Unjust Discrimination and Lease Terms.  Minch v. City of Cottonwood, FAA Docket No. 16-17-05, Director’s Determination (Jan. 18, 2019) (finding no unjust discrimination or violation of other grant assurances where leases were negotiated at different points in time and the wording and structure were slightly different, but the terms were functionally identical).

Rates and Charges.  Sound Aircraft Servs. v. Town of E. Hampton, FAA Docket No. 16-14-07, Director’s Determination (Jan. 2, 2019) (finding no grant assurance violations where complainant alleged that the Town impermissibly raised its rates and charges and violated FAA’s prohibition against revenue diversion when it raised both landing fees and fuel flowage fees).

Emotional Support Animals.  Complainant v. Greenville-Spartanburg Airport Dist., DOT Complaint No. 2017-0353 (Dec. 20, 2018) (holding that sponsor violated its obligations under the Air Carrier Access Act by requiring emotional support animals to be inside a carrier while passing through the terminal and in this case not volunteering reasonable accommodations for a returning passenger that was unaware of the rule), request for reconsideration filed.

F E D E R A L   R U L E S,   O R D E R S,   A N D   G U I D A N C E

THE WHITE HOUSE

Executive Order No. 13858, Strengthening Buy-American Preferences for Infrastructure Projects, 84 Fed. Reg. 2039 (Jan. 31, 2019).

DEPARTMENT OF TRANSPORTATION AND FAA ORDERS, POLICIES, AND ADVISORY CIRCULARS

Draft Advisory Circular No. 150/5210-14C, Aircraft Rescue Fire Fighting Equipment, Tools and Personal Protective Equipment (issued June 13, 2019) (comments requested by July 19, 2019).

Draft Advisory Circular No. 150/5210-7E, Aircraft Rescue and Fire Fighting Communications (issued June 13, 2019) (comments requested by July 19, 2019).

Program Guidance Letter 19-01, Aqueous Film Forming Foam (AFFF) Input-Based Testing Equipment (June 10, 2019).

Reauthorization Program Guidance Letter (R-PGL) 19-01, Extended and Expanded Programs (June 3, 2019).

Notice, Implementing the Exception for Limited Recreational Operations of Unmanned Aircraft, 84 Fed. Reg. 22,552 (May 17, 2019).

Advisory Circular No. 150/5340-1M, Standards for Airport Marking (May 10, 2019).

Advisory Circular No. 150/5340-18G, Standards for Airport Sign Systems (May 10, 2019).

PFC Update, PFC 72-19, Changes to the Passenger Facility Charge (PFC) Levels Above $3 (May 9, 2019).

Letter to Airport Sponsors re:  UAS Detection Systems and Attachment A, Attachment B, and Attachment C (May 7, 2019).

PFC Update, PFC 71-19, Oversight of Public Agency Passenger Facility Charge (PFC) Program (Apr. 1, 2019).

Advisory Circular No. 150/5345-43J, Specification for Obstruction Lighting Equipment (Mar. 11, 2019).

Order JO 7400.2M, Procedures for Handling Airspace Matters (Feb. 28, 2019).

Order 5100.38D, Change 1, Airport Improvement Program Handbook (Feb. 26, 2019).

Interim Final Rule, External Marking Requirement for Small Unmanned Aircraft, 84 Fed. Reg. 3669 (Feb. 13, 2019).

Advance Notice of Proposed Rulemaking, Safe and Secure Operations of Small Unmanned Aircraft Systems, 84 Fed. Reg. 3732 (Feb. 13, 2019).

Notice of Proposed Rulemaking, Operation of Small Unmanned Aircraft Systems Over People, 84 Fed. Reg. 3856 (Feb. 13, 2019).

Notice of Proposed Rulemaking, Update to Investigative and Enforcement Procedures (14 C.F.R. Part 13), 84 Fed. Reg. 3614 (Feb. 12, 2019).

Advisory Circular No. 150/5200-36B, Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Hazards on Airports (Jan. 24, 2019).

Draft Advisory Circular No. 150/5200-33C, Hazardous Wildlife Attractants on or Near Airports (Jan. 18, 2019) (comment period closed).

CertAlert 19-01, Aqueous Film Forming Foam (AFFF) Testing at Certificated Part 139 Airports (Jan. 17, 2019).

ENVIRONMENTAL PROTECTION AGENCY

Document No. EPA 823R18004, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Feb. 2019).

DEPARTMENT OF HOMELAND SECURITY

Fact Sheet, Counter Unmanned Aircraft Systems Legal Authorities (May 2019).

INTERNAL REVENUE SERVICE

Private Letter Ruling No. 201918008, Statutory Safe Harbor Relating to the Allowable Term for Leases of Port and Airport Facilities Financed with Tax-Exempt Private Activity Bonds (released May 3, 2019).

R E P O R T S,   S T U D I E S,   A R T I C L E S,   A N D   O T H E R   P U B L I C A T I O N S

U.S. DEPARTMENT OF TRANSPORTATION

Office of Inspector General, Report No. AV2019015, Most Public Agencies Comply With Passenger Facility Charge Program Requirements, But FAA Can Improve the Use of Its Oversight Tools (Dec. 18, 2018).

U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Report No. GAO-19-172, Small Community Air Service Development: Process for Awarding Grants Could Be Improved (Mar. 2019).

Report No. 19-238R, Airport Funding: Alternative Methods for Collecting Airports’ Passenger Facility Charges and Implementation Factors to Consider (Dec. 20, 2018).

CONGRESSIONAL RESEARCH SERVICE

Report No. R44176, Essential Air Service (EAS) (Dec. 19, 2018).

TRANSPORTATION RESEARCH BOARD, AIRPORT COOPERATIVE RESEARCH PROGRAM

Reports

Research Report 198:  Wetland Mitigation, Volume 2, A Guidebook for Airports (June 11, 2019) (associated Appendices available at same link).

Research Report 200:  Using GIS for Collaborative Land Use Compatibility Planning Near Airports (May 7, 2019).

Research Report 204:  Air Demand in a Dynamic Competitive Context with the Automobile (pre-publication draft May 7, 2019).

Research Report 197:  Guidebook for Developing a Comprehensive Renewable Resources Strategy (May 3, 2019).

Research Report 16:  Guidebook for Managing Small Airports – Second Edition (Apr. 30, 2019), see also associated “WebResource 6:  Resources for Managing Small Airports” below.

Research Report 194:  Using Disaggregated Socioeconomic Data in Air Passenger Demand Studies (Mar. 24, 2019).

Research Report 195:  Best Practices for Airport Obstruction Management Guidebook (Mar. 15, 2019), see also associated “WebResource 7:  Best Practices for Airport Obstruction Management Library” below.

Research Report 192:  Airport Management Guide for Providing Aircraft Fueling Services (Mar. 7, 2019).

Research Report 196:  Guidebook for Integrating Collaborative Partnering into Traditional Airport Practices (Feb. 20, 2019).

Legal Research Digests

Legal Research Digest 37: Legal Issues Relating to Airports Promoting Competition (May 30, 2019).

Web-Only Documents

WebResource 6:  Resources for Managing Small Airports (Mar. 20, 2019).

WebResource 7:  Best Practices for Airport Obstruction Management Library (Mar. 5, 2019).

Download a PDF of this Semi-annual Airport Law Digest.

Firm attorneys Sarah M. Keane and Samantha R. Caravello published an article in the Summer 2019 issue of the American Bar Association’s Natural Resources & Environment journal regarding Colorado’s adoption of California’s greenhouse gas (GHG) emission standards for passenger cars and light trucks. The article provides an overview of the relevant federal and California vehicle emission standards, describes the process by which Colorado adopted California’s standards, and highlights the benefits of Colorado’s adoption of the standards, including cleaner air and substantial cost savings for consumers. The article concludes by considering Colorado’s regional and national role in progressing regulations and policies designed to reduce GHG emissions.

Colorado Governor Issues Roadmap to 100% Renewable Energy

At a May 30 signing ceremony for many of the groundbreaking energy and climate change-related bills passed in the 2019 legislative session, Colorado Governor Polis released his “Roadmap to 100% Renewable Energy by 2040 and Bold Climate Action.”  The Roadmap highlights early action taken in 2019 and outlines the following seven principal strategies to help realize the Governor’s campaign promise:

Modernize the Public Utilities Commission.  The PUC will start considering the social cost of carbon in decision-making processes, oversee the resource planning efforts of Tri-State Generation for the first time, and consider a plan from Xcel Energy to achieve 80% greenhouse gas reductions by 2030 (per SB19-236).  The Roadmap also calls for consideration of joining a regional electric grid with other western states and exploration of opportunities—such as performance-based ratemaking—to better align utility activities with public goals.

Grow Green Jobs and Save Consumers Money.  The Roadmap recognizes recent bills (HB19-1003, SB19-236, and HB19-1272) that expand access to, and financing for, onsite and community solar and calls for expanding consumer access to distributed renewable energy generation and storage.  It also recognizes the need to expand innovative financing mechanisms, including Commercial Property Assessed Clean Energy (C-PACE) financing and a green bank through the Colorado Clean Energy Fund.​

Promote Energy Efficiency.  The Roadmap calls for improved efficiency codes, expanded low-income weatherization services, and support for grid infrastructure upgrades to improve system efficiency.  This element builds on HB19-1231, which adopts new appliance standards in Colorado.

More Zero Emission Vehicles and Commuting Options.  Several bills promoting vehicle electrification were passed in 2019, including:

• SB19-077, which allows utility investment in charging infrastructure;
• HB19-1159, which expands tax credits for electric vehicles (EVs);
• HB19-1198, which increases the flexibility of the EV Grant Fund; and
• SB19-239, which calls for a stakeholder process to accelerate the electrification of vehicle fleets

The Roadmap also calls for additional incentives for commercial fleets to switch to EVs, expanded charging infrastructure throughout the state, and consideration of a Low Carbon Fuel Standard.

Ensure a Just and Equitable Transition for All of Colorado.  In addition to recognizing HB19-1314, which calls for a just transition away from coal-fired electricity, and SB19-236, which requires consideration of workforce transitions when utilities retire facilities, the Roadmap requests consideration of additional financing mechanisms to accelerate the transition away from fossil fuel-based energy in a way that supports affected workers and communities, while continuing to support impacted communities through the Department of Local Affairs’ Rural Economic Development Initiative.

Support Local Commitment to 100% Renewable Energy.  The Roadmap identifies the 14 cities, towns, and counties in Colorado who have committed to 100% renewable energy targets and calls for the development of programs and strategies to support local energy goals and investment in rural electric vehicle infrastructure and renewable energy.

Move Towards Zero Emissions Buildings.  The Roadmap recognizes the need to develop a blueprint for building electrification and work with stakeholders to thoughtfully design the next generation of buildings in Colorado.  This element builds on HB19-1260, which requires local jurisdictions to adopt updated energy standards when amending their building codes.

These actions will also compliment the requirements of HB19-1261—also signed by the Governor on May 30—and puts pollution reduction goals into statute to reduce Colorado’s greenhouse gas pollution by 26% by 2025, 50% by 2030, and 90% by 2050 of 2005 levels.  That law will be implemented by Colorado Air Quality Control Commission, following an extensive stakeholder process throughout the rulemaking period.

For a summary of the bills referenced above and other key energy and climate legislation passed in 2019, please see our 2019 Year in Review.

For more information about Colorado’s energy transition or other energy and climate change related issues, please contact Sarah Keane, Tom Bloomfield, or Bob Randall.

Kaplan Kirsch & Rockwell publishes Energy + Climate Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

Click here to view the PDF.

Colorado Legislature Makes Sweeping Changes to the Energy and Climate Landscape in 2019

Colorado’s 2019 legislative session, which ended May 3, was perhaps the state’s most active ever in the areas of energy and climate change.  The two most notable bills that passed this session are HB19-1261, which sets a statewide greenhouse gas reduction target of 90% below 2005 levels by 2050, to be implemented by the state’s Air Quality Control Commission; and SB19-181, which allows local governments to oversee many aspects of oil and gas extraction in Colorado for the first time and requires the consideration of environmental and health impacts when approving new operations.

Overall, Colorado’s legislature indicated strong commitments towards tracking, accounting for, and reducing climate pollution; promoting the adoption of electric vehicles; planning for the transition away from coal-fired electricity generation; and protecting disadvantaged communities during the transition to a cleaner energy economy.

Summaries of the key energy and climate legislation from this session are included in our 2019 Year in Review.

For more information about 2019 legislation or other energy and climate change related issues, please contact Tom Bloomfield, Sarah Keane, or Bob Randall.

Kaplan Kirsch & Rockwell publishes Energy + Climate Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

On April 12, 2019, CityLab published attorney Christian Alexander’s story discussing the key reasons why the City of Cape Town, South Africa survived a historic drought and the worst potential municipal water crisis in modern history last year.  Parsing municipal policies, technical fixes, and public outreach strategies, the article provides insights for other cities facing increasing risk of severe weather events in an era of climate change.

Kaplan Kirsch & Rockwell advises local governments, nonprofit organizations, and other parties on critical issues in federal, state, and local climate policy.  Our attorneys understand the need for strong public action to mitigate climate change and its adverse effects, and we have experience crafting innovative policy approaches to address this necessity.

New Oil and Gas Law Offers Opportunities for Colorado Citizens and Communities

On April 16, Governor Polis signed Senate Bill 181, ushering in sweeping changes to oil and gas oversight in Colorado.

The new law gives local governments additional regulatory authority over oil and gas operations, changes the makeup and charge of the Colorado Oil and Gas Conservation Commission (COGCC), expands the role of the Colorado Department of Public Health and Environment (CDPHE), and imposes new requirements on oil and gas operators.  When fully implemented, the new law will lead to reduced air emissions, increased local government involvement, and enhanced protections for Colorado’s environment and communities.

The new law enables local governments to oversee many aspects of oil and gas development for the first time ever.  The law grants local control over where oil and gas wells are located and expands the ability of local governments to protect water and limit air emissions in a manner more stringent than the State. It also allows local officials to inspect facilities, impose fines for violations, and assess fees necessary to cover the costs of local regulation and oversight of the industry.

SB 181 directs the COGCC to develop rules for evaluating alternative sites, addressing cumulative impacts, increasing financial assurance, overseeing flowlines and shut-in wells, enhancing wellbore integrity, and certifying oilfield workers.  The COGCC is likely to begin rulemaking later this year to implement these and other new mandates, and those proceedings will likely run well into 2020.

The law calls on the Colorado Air Quality Control Commission (AQCC) to adopt rules requiring operators to monitor and to minimize emissions of methane, volatile organic compounds, and other pollutants from oil and gas wells and production and transmission facilities.  In doing so, the AQCC will consider requiring oil and gas operators to inspect their facilities for leaks, install continuous emissions monitors, and utilize pneumatic devices that do not vent natural gas.

The new law also addresses pooling oil and gas resources, authorizes administrative law judges, provides for a technical review board, and modifies some of the standards under which the COGCC will operate going forward.  The agency is directed to “regulate” oil and gas rather than “foster” its development, for example, resulting in a shifted focus in decision making.

For more information about Senate Bill 181 or any other oil and gas related issues, please contact Bob Randall, Tom Bloomfield, or Polly Jessen.

Kaplan Kirsch & Rockwell publishes Energy + Climate Change Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

Greenhouse gas emissions from transportation in the United States have remained persistently high. One cause is common low-density land use patterns that make most Americans dependent on automobiles. Reducing these emissions requires increasing density, which U.S. local government law makes difficult to achieve through the political process. This article argues that Mount Laurel, a 1975 New Jersey Supreme Court case that addressed an affordable housing crisis by restraining local parochialism, provides a potential solution. It demonstrates that a Mount Laurel-style challenge to low-density zoning is legally and normatively defensible in New Jersey and other states.