Click here to view the publication.

As so often happens with a change in administration, the federal government saw considerable upheaval in 2017.  Many federal agencies, including FAA, found themselves short-staffed and adjusting to a change in political policies.  A number of senior agency executives saw the new administration as an opportunity to leave the FAA to take new positions within the agency.  That being said, FAA saw fewer changes than many other federal agencies in part because the Administrator’s term does not expire until January 2018.  Administrator Huerta is due to leave his position in early January, so there will be at least an Acting Administrator to begin the new year.  Notwithstanding the White House order that discourages new regulation, the new Administrator is likely to prompt at least some regulatory shifts at FAA in 2018.

This Digest contains short articles on several important developments in airport law in 2017 and also includes: a listing of principal cases decided last year; new FAA rules, policies, and guidance; and reports, studies, and articles of particular interest to airport legal professionals. Note that materials about drones (or UAS) appear at the end of the Digest in a separate category. We have attempted to provide links to publicly available documents, and most other documents are available via subscription services such as Westlaw or LexisNexis.  The Digest also includes a look-ahead to some of the important legal and political developments we expect to see in 2018.

We hope you find this Digest useful in your efforts to remind current in the always-evolving legal and regulatory framework that governs airports.

Articles

NextGen Implementation Sees Shakeup in Phoenix

FAA continues to work towards implementation of its Next Generation (NextGen) navigation system, an effort to improve efficiency in so-called “Metroplexes.”  The agency continues to face significant resistance from community groups in the form of public comments and litigation across the country.  While the experience in each metropolitan area has been different, FAA has received considerable resident complaints that the changes in flight patterns wrought by NextGen have considerably increased aircraft overflight noise in their communities without warning.

Affected communities scored a win in August 2017, when the United States Court of Appeals for the District of Columbia Circuit issued a groundbreaking opinion vacating NextGen patterns serving Sky Harbor International Airport in Phoenix, Arizona. The court agreed with the City of Phoenix that FAA violated the National Environmental Policy Act, National Historic Preservation Act, and Section 4(f) of the Department of Transportation Act when it issued new NextGen procedures without adequate public notice and consultation.  The City and FAA have since agreed to a settlement that will require FAA to conduct additional community outreach while temporarily reverting to the original, pre-NextGen routes.

Similar cases are pending across the country. In Washington, DC―one of the first Metroplexes to be considered “complete”―community groups sued FAA alleging that the federal environmental approval was obtained without sufficient public involvement.  The Governor of Maryland has formally requested that the FAA revert to pre-NextGen flight patterns and has threatened litigation if the agency does not acquiesce.  Another lawsuit is pending in Southern California.  While the Phoenix case was factually and legally unique in many respects, communities nationwide have taken the D.C. Circuit decision as a signal that litigation over NextGen procedures is an effective tool for achieving relief.  It remains to be seen the extent to which the Phoenix litigation will influence these other pending cases and, more importantly, what procedural changes FAA implements as a result of lessons from that case.  The agency has informally taken a pause in implementation of its Metroplex plans as it assesses how to involve the public in NextGen more generally.

Santa Monica Settlement Agreement Faces Resistance Issues New UAS Regulations

A year ago, in January 2017, the City of Santa Monica and FAA announced an historic settlement agreement that resolved decades of litigation and controversy over the future of Santa Monica Airport (SMO) by, among other things, allowing the City to reduce SMO’s runway by almost one-third of its length in the immediate future and to close SMO entirely after 2028.  We reviewed this settlement agreement in depth on page 5 of our June 2017 Semi-annual Airport Law Digest and noted that the National Business Aviation Association (NBAA) has challenged FAA’s authority to enter into the consent decree.

Since June, the briefing in the NBAA case has concluded, and oral arguments will likely be scheduled for early 2018.  In addition, a local citizens’ group challenged the City’s decision to enter into the consent agreement, arguing that the City violated state open meetings laws.  After briefly granting a temporary restraining order that prohibited the City from shortening the runway, a federal district court dismissed the case in mid-December.  Like virtually every decision concerning SMO, it is likely that the settlement agreement will be subject to future litigation.

Impact of Executive Orders Still Unclear

On page 2 of our June 2017 Semi-annual Airport Law Digest, we discussed at length the President’s various Executive Orders aimed at reducing regulations, streamlining federal environmental approvals, and reorganizing the federal government. The President added another Executive Order in August, directing federal agencies to explore ways to streamline environmental approvals with a specific focus on infrastructure projects. Thus far, it is unclear how these Executive Orders will influence airport projects. Past efforts to streamline environmental reviews have met with mixed success and have, in some cases, introduced additional paperwork without real improvement in the environmental process. However, with the possibility of both FAA reauthorization and an infrastructure package on the horizon, these Executive Orders may become important tools in expediting approvals for new airport projects. This will become is an especially important arena in coming years as airport sponsors face mammoth infrastructure needs after almost a decade of modest airport development.

What to Watch for in 2018

New Kid in the Air: FAA Will Have a Fresh Administrator in January

FAA Administrator Michael Huerta’s term expires on January 7, 2018, and thus far, there has been no indication if the President has any candidates for a permanent replacement. In late June, Dan Elwell was sworn in as the FAA Deputy Administrator, and he is set to become the Acting Administrator upon Huerta’s departure. Among other important issues, the next Administrator will shape agency policy on NextGen, UAS, and air traffic control reform. The Administrator is also likely to lead the agency through the reauthorization process. It is also possible that the President will appoint a permanent replacement for the vacant Associate Administrator for Airports position, which has been held in an acting capacity by Winsome Lenfert since the departure of Eddie Angeles over one year ago.

Waiting for Go(DOT): Long-Awaited Federal Rules Still On Hold

Since taking office in January, the President has made regulatory rollbacks a prominent part of his agenda. DOT and FAA have followed suit and have yet to issue a number of expected rules that are of particular interest to airport sponsors and local governments.  As one prominent example, FAA rescinded its draft Passenger Facility Charge (PFC) Order on November 4, 2016, and there has been no apparent movement to reissue a new draft or final Order.  FAA also published a Supplemental Notice of Proposed Rulemaking for Safety Management System (SMS) for Certificated Airports nearly 18 months ago.  The final SMS rule was initially expected in early 2017, but that timeline has been extended multiple times, and it is now unclear when, if ever, a final rule may be published. Finally, in mid-2016, FAA issued operational regulations for unmanned aircraft systems (UAS) at 14 C.F.R. Part 107.  14 C.F.R. § 107.39 specifically prohibits the operation of UAS over most people, and FAA has stated that regulations which would permit such operations are forthcoming.  While no rule has been published, there has been some movement on this issue in the form of FAA’s UAS Integration Pilot Program.  In the meantime, UAS operators may continue to apply for a waiver of this prohibition.  New and clarified regulations on UAS remote identification and possible air traffic control for UAS are also being held. Airport sponsors should continue to watch out for these and other federal rules.

Kick the Can Down the Road: Congress Again Confronted with Expiration of FAA Authorization

When FAA authorization was set to expire in September 2017 (after only a short 18-month reauthorization), there was expected to be fierce debate on the potential privatization of air traffic control, a rollback of FAA authority to regulate non-aeronautical development on airports, the potential to raise (or uncap) the PFC authorization, and other topics of importance.  While some of that debate did occur, Congress instead saw the clock winding down and elected to punt the discussion by extending FAA’s authorization through March 2018. In the coming months, Congress will again be presented with these tough issues, and industry groups such as ACI-NA and AAAE expect to play a major role. While short-term extensions are not unusual (the last reauthorization came after 23 short-term extensions), the current Congressional majority is likely to exert significant pressure on policy issues in advance of the 2018 elections.  That being said, Congress has not shown great ability to tackle politically complex and divisive issue so a further short-term extension is possible. (While short-term extensions allow FAA and the AIP program to continue, short-term extensions of less than one year can play havoc with AIP-funded projects since airport sponsors cannot responsibly plan for funding multiyear projects when AIP funding levels are only established for a few months at a time.)  The recent news of House Transportation & Infrastructure Committee Chairman Rep. Bill Shuster’s impending retirement adds another layer of uncertainty to the reauthorization process.

White House Promises Infrastructure Plan for January

Throughout the first year of his term, the President has continued to state that he believes the country should invest in infrastructure, including roads, bridges, and airports.  To date, there has been little in the way of detail about or action on these issues outside of a six-page Fact Sheet associated with the 2018 budget published last May.

However, the White House announced in early December that it planned to deliver an infrastructure plan to Congress in January 2018, stating that it will outline the President’s principles and priorities for infrastructure development.  It is expected that any such plan will be heavily weighted towards encouraging private investment while deemphasizing direct federal funding.  In addition, it is unclear if the infrastructure plan will be designed to utilize any elements of the President’s Executive Orders on streamlining federal environmental approvals (see above).

Regardless of how it is funded, the infrastructure initiative will undoubtedly prove important for airport sponsors as they simultaneously face a serious backlog of capital investment and a rapidly growing interest in private sector investment.  Many airports have taken their own initiative in seeking private investment—privatization efforts at Westchester County (NY), Kansas City (MO), and St. Louis (MO) have received some of the greatest press attention—and those efforts are expected to intensify with a federal infrastructure initiative.

Noise, What Noise?

As a result of the coincidence of many factors (e.g., NextGen implementation, air traffic growth, real estate encroachment), airports who have noticed noise problems gradually decrease since 2000 are now realizing an increase in noise complaints and community outcry. This dynamic has been especially dramatic at general aviation airports, which were the last to see the phase out of the noisiest jets and were the last to see growth after the end of the Great Recession. FAA is looking at modifying how it reports noise impacts for NextGen and is in the midst of a multi-year study on if their decades-year-old reliance on the DNL metric and the 65 decibel threshold remain appropriate today. There should be new developments in both areas in 2018, with or without new litigation.

Litigation

Court Decisions

Preemption.  SilverWing at Sandpoint, LLC v. Bonner Cty., No. 15-35589 (consolidated), 2017 U.S. App. LEXIS 21970 (9th Cir. Nov. 1, 2017) (affirming district court decision holding that plaintiff’s state law claims of breach of good faith were preempted by federal law because the sponsor was acting to comply with federal obligation, and also that the plaintiff’s § 1983 claims failed for similar reasons).

Regulatory Takings.  Dryden Oaks, LLC v. San Diego Cty. Reg’l Airport Auth., 16 Cal. App. 5th 383 (as modified Oct. 19, 2017) (affirming trial court grant of summary judgment for defendant where plaintiff alleged a regulatory taking based on the sponsor’s adoption of an Airport Land Use Compatibility Plan, but where the City had actual zoning authority).

Labor Law and Preemption.  Airline Serv. Providers Assn. v. L.A. World Airports, 873 F.3d 1074 (9th Cir. Oct. 16, 2017) (holding that a City policy requiring airport service providers to enter into “labor peace agreements” with employee organizations upon request was not preempted by federal law because the City was acting as a market participant).

Preemption.  Tweed-New Haven Airport Auth. v. Jepsen, No. 3:15-cv-01731, 2017 U.S. Dist. LEXIS 162356 (D. Conn. Sept. 30, 2017) (holding that a Connecticut statute limiting the length of a runway was not preempted by federal aviation safety laws).

NextGen Flight Procedures. City of Phoenix v. Huerta, 869 F.3d 963 (D.C. Cir Aug. 28, 2017) (striking down new NextGen routes because FAA did not adequately perform appropriate environmental or historical review).

Environmental Review.  Barnes v. FAA, 865 F.3d 1266 (9th Cir. Aug. 3, 2017) (denying petition for review and finding that FAA did not act arbitrarily and capriciously by accepting a supplemental environmental assessment and issuing a FONSI for a new runway project).

Airline Seats.  Flyers Rights Educ. Fund, Inc. v. FAA, 864 F.3d 738 (D.C. Cir. July 28, 2017) (requiring FAA to reconsider earlier decision not to promulgate regulations on size of airline seats because the agency provided no evidence to support that decision).

Preemption and Governance.  Jackson Mun. Airport Auth. v. Bryant, No. 16-cv-246, 2017 U.S. Dist. LEXIS 115839 (S.D. Miss. July 25, 2017) (dismissing complaint of local airport authority that alleged state statute transferring governance of the airport to a state entity was preempted by federal law).

Contracts Clause.  Gary Jet Ctr., Inc. v. AFCO AVports Mgmt. LLC, 863 F.3d 718 (7th Cir. July 13, 2017) (dismissing allegations of Constitutional Contracts Clause violations where sponsor enacted minimum standards that required FBO to pay certain fees to sponsor in contravention of the sponsor-FBO lease because other remedies were available).

Use Restrictions and ANCA.  Town of E. Hampton v. Friends of the E. Hampton Airport, Inc., 137 S. Ct. 2295 (June 26, 2017) (denying petition for certiorari in review of 2nd Circuit decision holding that Town’s use restrictions were enacted in violation of the procedural requirements of ANCA).

Takings and Exhaustion of Remedies.  Hadar v. Broward Cty., No. 16-14569 (11th Cir. May 31, 2017) (unpublished) (affirming district court dismissal of complaint alleging taking by aircraft overflights where plaintiff had not availed himself of available state remedies).

Grant Assurances.  Vietnam Helicopters v. Cnty. of Contra Costa, No. 17-cv-01743-MMC, 2017 U.S. Dist. LEXIS 49728 (N.D. Cal. Mar. 31, 2017) (denying motion for temporary restraining order where plaintiff alleged airport sponsor was preparing to lease hangar in violation of Grant Assurances and where Part 16 complaint was pending).

Settlements.  United States ex rel. Shepard v. Tippetts, No. 13-cv-00736-CMA, 2017 U.S. Dist. LEXIS 27083 (D. Colo. Feb. 27, 2017) (over objections by qui tam relators, approving settlement between FAA and Grand Junction Regional Airport Authority regarding possibly fraudulent statements made to FAA in application for grant funds).

Gate Allocation.  City of Dallas v. Delta Airlines, Inc., 847 F.3d 279 (5th Cir. Feb. 2, 2017), reh’g en banc denied (affirming district court grant of preliminary injunction regarding gate allocation at Love Field following the expiration of certain provisions of the Wright Amendment).

Pending Cases

Area Navigation.  Citizens Assn. of Georgetown v. FAA, No. 15-1285 (D.C. Cir. oral argument scheduled Jan. 11, 2018) (challenging RNAV procedures in the D.C. Metroplex area).

Air Tours.  Pub. Employees for Envt’l Responsibility v. FAA, No. 17-cv-2045 (D.D.C. motion to dismiss filed Dec. 14, 2017) (seeking injunctive relief requiring FAA to develop Air Tour Management Plans for various national parks and recreation areas).

Subject Matter Jurisdiction.  Kaufmann v. FAA, No. 17-3152 (6th Cir. argued Dec. 5, 2017) (appeal of the district court decision dismissing complaint alleging FAA noncompliance with NEPA and NHPA because complaint should have been filed in the circuit court).

Airport Closure.  Nat’l Bus. Aviation Ass’n v. Huerta, No. 17-1054 (D.C. Cir. respondent’s final brief filed Dec. 4, 2017) (challenging FAA settlement agreement with the City of Santa Monica that permits closure of the airport in 2028); see also Scott v. City Council for the City of Santa Monica, No. 17-07329 (C.D. Cal. Dec. 15, 2017) (dismissing complaint alleging that City Council failed to hold a public hearing in violation of California state law before entering into settlement agreement).

Premises Liability.  Afoa v. Port of Seattle, 189 Wn.2d 1015 (Oct. 5, 2017) (granting partial review of Washington Court of Appeals decision holding that the Port had a “nondelegable duty to ensure a safe workplace” on the airfield at Seattle-Tacoma Airport, and was therefore liable for the injuries of an independent contractor’s employee).

First Amendment.  McDonnell v. City & Cnty. of Denver, No. 17-1071 (10th Cir. argued Aug. Sept. 26, 2017) (appealing the district court order requiring City and County officials to “timely process a permit application” to protest Executive Order barring individuals from seven predominantly Muslim countries from entering the United States at Denver International Airport).

Gate Allocation.  In re. Compliance with Federal Obligations by the City of Dallas, Texas, FAA Docket No. 16-15-10 (Notice of Investigation served Aug. 7, 2015) (FAA investigation into possible grant assurance violations related to a failure to accommodate air carrier requesting gate space).

Administrative Decisions

Exclusive Rights.  Mansfield Heliflight, Inc. v. City of Burlington, FAA Docket No. 16-14-06, Director’s Determination (Sept. 5, 2017) (granting sponsor’s motion for summary judgment because complainant had provided insufficient evidence of sponsor’s refusal to negotiate for space at the airport).

Economic Nondiscrimination.  ComAv, LLC v. S. Cal. Logistics Airport Auth., FAA Docket No. 16-16-10, Director’s Determination (Aug. 21, 2017) (finding no exclusive rights or economic discrimination violations where complainant was outbid for a particular leasehold and still maintained business operations elsewhere on the airport).

Revenue Diversion.  Air Transport Assn. of Am., Inc. v. Port of Portland, FAA Docket No. 16-16-04, Director’s Determination (Aug. 17, 2017) (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).

Economic Nondiscrimination.  Signature Flight Support Corp. v. Cty. of Orange, FAA Docket No. 16-17-02, Director’s Determination (July 21, 2017) (granting sponsor’s motion for summary judgment on allegations of Grant Assurance 22 violations associated with a public RFQ and bid selection process).

Acquisition of Property.  Boggs v. City of Cleveland, FAA Docket No. 16-16-15, Order of the Director (Jan. 24, 2017) (dismissing complaint alleging Grant Assurance violations where sponsor chose not to acquire private property shown on the Airport Layout Plan).

Federal Legislation

National Defense Authorization Act for Fiscal Year 2018, Pub. Law No. 115-91 (signed Dec. 12, 2017) (reinstating FAA authority to regulate recreational drones).

Disaster Tax Relief and Airport and Airway Extension Act of 2017, Pub. Law No. 115-63 (signed Sept. 29, 2017) (extending FAA authorization through March 31, 2018).

Consolidated Appropriations Act, 2017, Pub. Law No. 115-31 (signed May 5, 2017) (extending federal government funding at largely current levels through September 2017).

Federal Rules, Orders, and Guidance

Presidential Executive Orders

Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, Exec. Order 13,807, 82 Fed. Reg. 40,463 (Aug. 15, 2017) (directing federal agencies with environmental review and approval components in infrastructure projects to set performance goals and cooperate with other federal agencies in the environmental review process).

Buy American and Hire American, Exec. Order 13,788, 82 Fed. Reg. 18837 (Apr. 21, 2017) (requiring all executive branch agencies to “scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law”).

Comprehensive Plan for Reorganizing the Executive Branch, Exec. Order 13,781, 82 Fed. Reg. 13959 (Mar. 16, 2017) (requiring that within 180 days, “the head of each agency shall submit to the Director [of the Office of Management and Budget] a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency”).

Reducing Regulation and Controlling Regulatory Costs, Exec. Order 13,771, 82 Fed. Reg. 9339 (Jan. 30, 2017) (requiring that “whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed”).

Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects, Exec. Order 13,766, 82 Fed. Reg. 8657 (Jan. 24, 2017) (setting process by which project proponents can request “high priority” status for infrastructure projects and petition the White House CEQ for expedited environmental review).

Department of Transportation and FAA

Q&As – FBO Industry Consolidation and Pricing Practices (Dec. 7, 2017).

AC 150/5360-14A, Access to Airports by Individuals with Disabilities (Dec. 6, 2017).

Notice and Request for Comments, FAA Aircraft Noise Complaint and Inquiry System (FAA Noise Portal), 82 Fed. Reg. 50,932 (Nov. 2, 2017) (seeking comment on FAA’s intention to request OMB approval for a voluntary information collection regarding aircraft noise complaints).

Notice of Withdrawal of Proposed Rulemaking, Geographic-Based Hiring Preferences in Administering Federal Awards, 82 Fed. Reg. 46,716 (Oct. 6, 2017).

Final Rule, Stage 5 Airplane Noise Standards, 82 Fed. Reg. 46,123 (Oct. 4, 2017).

ARP SOP 10.00, Administrative Closeout of Airport Improvement Program Grants (Oct. 1, 2017).

Competition Plan Covered Airport List for FY 2018 (Aug. 2017).

AC 150/5100-17, Change 7, Land Acquisition and Relocation Assistance for Airport Improvement Program (AIP) Assisted Projects (July 10, 2017).

Program Guidance Letter No. 17-01, Aircraft Rescue and Firefighting (ARFF) Equipment Above Minimum Part 139 Index Requirements (June 27, 2017).

AC 150/5000-17, Critical Aircraft and Regular Use Determination (June 20, 2017).

Notice and Request for Input, Transportation Infrastructure: Notice of Review of Policy, Guidance, and Regulation, 82 Fed. Reg. 25734 (June 8, 2017) (“to solicit input from…affected stakeholders to help the Department identify requirements that the Department imposes through rules, or interpretations found in policy statements or guidance, that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects”).

ARP SOP 5.1, CATEX Determinations (June 2, 2017).

Order 8040.4B, Safety Risk Management Policy (May 2, 2017).

JO 7400.2L, Procedures for Handling Airspace Matters (eff. Apr. 27, 2017).

Department of Homeland Security

Fact Sheet: Aviation Security Enhancement for Select Last Point of Departure Airports with Commercial Flights to the United States (Mar. 21, 2017) (banning large electronic devices on flights originating from 10 Middle Eastern airports).

Other Federal Entities

Council on Environmental Quality, Notice, Publication of Initial List of Actions Pursuant to Executive Order 13, 807, 82 Fed. Reg. 43,226 (Sept. 14, 2017) (listing actions CEQ “will take to enhance and modernize the Federal environmental review and authorization process”).

Reports, Studies, Articles, and Other Publications

U.S. Department of Transportation

Draft Strategic Plan for FY 2018-2022 (Oct. 19, 2017) (public comment closed Nov. 13, 2017).

Office of Inspector General, Report No. AV2018001, FAA Has Made Progress Implementing NextGen Priorities, but Additional Actions Are Needed to Improve Risk Management (Oct. 18, 2017).

Office of Inspector General, Letter to Chairman Bill Shuster and Chairman Frank L. LoBiondo Regarding FAA’s July 2016 NextGen Business Case (Aug. 15, 2017) (stating that NextGen benefit estimates are “overly optimistic”).

Key Staff Appointments (May 20, 2017) (listing recent senior political appointees to the Department).

National Transportation Noise Map (showing noise impacts from airports and highways).

U.S. Government Accountability Office

International Travelers: CBP Collaborates with Stakeholders to Facilitate the Arrivals Process, but Could Strengthen Reporting of Airport Wait Times, GAO-17-470 (Mar. 30, 2017).

Airport Funding: FAA’s and Industry’s Cost Estimate for Airport Development, GAO-17-504T (Mar. 23, 2017).

Transportation Research Board, Airport Cooperative Research Program

Legal Research Digests

Legal Research Digest 33: Overview of Airport Duties and Standards of Care in Airfield Accident Cases (Oct. 2017).

Legal Research Digest 32: Evolving Law on Airport Implications by Unmanned Aerial Systems (Oct. 2017).

Legal Research Digest 31: Preemption of Worker-Retention and Labor-Peace Agreements at Airports (Feb. 2017).

Reports

Report 181: Assessing Community Annoyance of Helicopter Noise (Nov. 2017).

Report 180: Guidebook for Quantifying Airport Ground Access vehicle Activity for Emissions Modeling (Nov. 2017).

Report 177: Enhancing Airport Wayfinding for Aging Travelers and Persons with Disabilities (Oct. 2017).

Report 179: Dispersion Modeling Guidance for Airports Addressing Local Air Quality Health Concerns (Sept. 2017).

Report 176: Generating Revenue from Commercial Development On or Adjacent to Airports (Aug. 2017).

Report 178: Guidance for Usage of Permeable Pavement at Airports (Aug. 2017).

Report 175: Improving Intelligibility of Airport Terminal Public Address Systems (July 2017).

Report 174: Green Stormwater Infrastructure, Volume 1: Primer and Volume 2: Guidebook (June 2017).

Report 173: Use and Potential Impacts of AFFF Containing PFASs at Airports (May 2017).

Report 172: Guidebook for Considering Life-Cycle Costs in Airport Asset Procurement (Apr. 2017).

Report 171: Establishing a Coordinated Local Family Assistance Program for Airports (Apr. 2017).

Report 170: Guidebook for Preparing Public Notification Programs at Airports (Apr. 2017).

Report 166: Interpreting the Results of Airport Water Monitoring (Mar. 2017).

Report 169: Clean Water Act Requirements for Airports (Jan. 2017).

Report 168: Runway Protection Zones (RPZs) Risk Assessment Tool Users’ Guide (Jan. 2017).

Report 167: Guidebook for Developing Ramp Control Facilities (Jan. 2017).

Synthesis Reports

Synthesis 83: Preparing Airports for Communicable Diseases on Arriving Flights (Sept. 2017).

Synthesis 86: Transportation Network Companies: Challenges and Opportunities for Airport Operators (Aug. 2017).

Synthesis 85: Alternative Fuels in Airport Fleets (Aug. 2017).

Synthesis 82: Uses of Social Media to Inform Operational Response and Recovery During an Airport Emergency (Aug. 2017).

Synthesis 81: Food and Beverage and Retail Operators: The Costs of Doing Business at Airports (Aug. 2017).

Synthesis 80: Estimating Truck Trip Generation for Airport Air Cargo Activity (Aug. 2017).

Synthesis 79: Funding Industrial Aviation (July 2017).

Web-Only Documents

Web-Only Document 33: Assessing Aircraft Noise Conditions Affecting Student Learning–Case Studies (Nov. 2017).

Web-Only Document 32: Improving AEDT Noise Modeling of Mixed Ground Surfaces (June 2017).

Web-Only Document 31: Improving Stakeholder Engagement in Aircraft Accident Response Planning (Apr. 2017).

Web-Only Document 30: Development of a NO_x Chemistry Module for EDMS/AEDT to Predict NO₂ Concentrations (Mar. 2017).

General Articles

Kim Stevens, FAA Announces New Regional Administrators, State Aviation Journal, Oct. 30, 2017.

Mike Ives, In a Warming World, Keeping the Planes Running, N.Y. Times, Sept. 30, 2017.

Kaplan Kirsch & Rockwell LLP, P3 Airport Projects: An Introduction for Airport Lawyers (May 2017).

Airports Council International – North America, Airport Infrastructure Needs 2017 – 2021 (Mar. 2017).

Environmental Law Institute, Regulatory Reform in the Trump Era (Mar. 2017).

Unmanned Aircraft Systems

Decided Cases

Singer v. City of Newton, No. 17-100071-WGY, 2017 U.S. Dist. LEXIS 153844 (D. Mass. Sept. 21, 2017) (finding local drone ordinance requiring registration of drones and various operational restrictions preempted by federal law).

Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. May 19, 2017) (holding that FAA did not have authority to promulgate regulations requiring hobbyist drone owners to register with the agency, but staying enforcement pending a petition for rehearing); but see National Defense Authorization Act of Fiscal Year 2018, Pub. Law No. 115-91 (signed Dec. 12, 2017) (reinstating FAA authority to regulate recreational drones).

Boggs v. Merideth, No. 3:16-CV-00006-TBR, 2017 U.S. Dist. LEXIS 40302 (W.D. Ken. Mar. 21, 2017) (dismissing complaint alleging the defendant shot down plaintiff’s unmanned aircraft while over defendant’s property for lack of subject matter jurisdiction and stating that tort claims were properly brought in state court).

Pending Cases

Elec. Privacy Info. Ctr. v. FAA, Case No. 16-1297 (D.C. Cir. Argument scheduled Jan. 25, 2018) (challenging FAA’s decision not to promulgate privacy-specific UAS regulations).

FAA Rules, Orders, and Guidance

UAS Integration Pilot Program (announced as “an opportunity for state, local, and tribal governments to partner with private sector entities, such as UAS operators or manufacturers, to accelerate safe UAS integration”).

Proposed Federal Legislation

House Resolution 2930, Drone Innovation Act of 2017 (introduced June 16, 2017) (proposing to require the Secretary of Transportation to develop policies on drone regulation in cooperation with State and local governments while preserving rights to privacy and local causes of action for trespass, etc.).

Reports, Studies, and Articles

Michael Laris, Federal drone advisory panel knocked for ‘lack of transparency and poor management’, The Washington Post, Nov. 8, 2017.

Alliance for System Safety of UAS through Research Excellence, UAS Airborne Collision Severity Evaluation Final Report (Nov. 2017).

Bard College, Center for the Study of the Drone, Drone Registrations – A Preliminary Analysis (Nov. 2017).

FAA Drone Advisory Committee – Task Group 3, Tasking on Unmanned Aircraft Systems (UAS) Funding (Mar. 7, 2017).

A PDF of this Semi-annual Airport Law Digest is available.

On November 1, 2017, the Federal Aviation Administration formally announced a new pilot program that allows state, local, and tribal governments to explore new approaches to safely integrating drones into low-altitude airspace. Under the Unmanned Aircraft Systems (UAS) Integration Pilot Program, select local governments may partner with public or private sector operators to collaboratively develop new models for conducting advanced UAS operations with the support of their local communities.

In addition to testing and evaluating cutting-edge operational concepts—such as beyond visual line of sight, detect-and-avoid capabilities, and direct flights over people—the Program is intended to identify the most effective means of balancing local and national interests in managing UAS operations and explore concepts for shared management of the National Airspace System. The FAA will permit applicants to request “reasonable time, place, and manner limitations” on low-altitude UAS operations, limited to the duration of the Program. Because federal funding has not been identified for the Program, each successful applicant and its partners will be responsible for the costs of implementing its proposal.

The deadline is tight. In order to participate, state or local governments must submit a notice of intent to participate no later than November 28, 2017. Thereafter, the FAA will send the applicant an invitation to formally apply to the Program by January 4, 2018.

At least five proposals will be selected based on factors such as the degree of public/private collaboration and support, the diversity of proposed models of government involvement, and the commitment of governments and UAS operators to the FAA/DOT policy objectives. The selected entities will enter into a Memorandum of Agreement with the FAA to define the parameters of the pilot program and the responsibilities of participating parties and the FAA.

For the past few years, Kaplan Kirsch & Rockwell has worked extensively with state and local governments to develop innovative approaches to the local integration of UAS under existing legal frameworks. We are excited about the opportunity created by this Program, and the FAA’s recognition of the importance of community and local government involvement. If you have any questions about the program, or would like further information when it is available, please contact Peter Kirsch, Eric Smith, Allison Fultz, or Steven Osit.

Additional information about the Program and application procedures may be found in the Federal Register Notice announcing the Program and the FAA’s Screening Information Request.

Superfund Task Force Recommendations Encourage Private Investment in Site Cleanup

Brownfield developers have been speculating for the past year about how Trump administration policies will affect the regulatory climate for Brownfield projects. The forecast appears sunny based on EPA Administrator Scott Pruitt’s recently released Superfund Task Force Recommendations and remarks from Patrick Traylor, Deputy Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance at this week’s CBA Environmental Law program.

Administrator Pruitt convened the task force in May of this year. Front and center among the Administrator’s five goals for the task force were recommendations to encourage private investment in site cleanups.

The recommendations were released on July 25th and reflect a material shift from EPA’s past position on the use of the principal liability management tools available to site purchasers and redevelopers, comfort letters, and settlement agreements. EPA historically has issued comfort/status letters to share information with interested parties about the status of properties that may present cleanup and liability concerns under the Comprehensive Environmental Response, Compensation and Liability Act and liability protections that may be available. EPA also has offered prospective purchaser agreements, which include a covenant not to sue and contribution protection to parties willing to perform certain cleanup or provide other consideration, but are not responsible for contamination. However, since 2002, when Congress passed the Brownfield Amendments that established statutory liability protections for certain landowners who are not responsible for contamination, EPA has viewed these protections as self-implementing and has offered assurances to facilitate private redevelopment transactions sparingly and with limited refinements to its principal tools.

The new recommendations indicate a commitment from EPA to support and enhance these liability management tools to incentivize private redevelopment of contaminated property and in EPA’s words, to “consider mitigating its retained rights” to that end. Recommendations and specific actions the Task Force outlined of particular interest include:

• Making special account funds from PRP settlements available to bona fide prospective purchasers that perform cleanup work and prioritizing these funds for sites with redevelopment potential
• Expanding the use of prospective purchaser agreements, windfall lien settlement agreements, and BFPP agreements to specifically limit purchaser liability
• Updating the model forms of these agreements to incentivize settlement and better insulate “good faith purchasers from unexpected liability
• Developing new tools to address liability concerns of parties who acquire or operate properties, such as model reuse assessment agreements, prospective operator agreements and prospective easement agreement
• Providing greater comfort in comfort letters, including standard language that provides for certainty in securing funding from lenders for redevelopment of Superfund sites
• Streamlining and expediting the regional/headquarter/DOJ approval process for site-specific letters and agreements

The timelines for taking specific recommended actions, if met, will mean EPA is beginning to implement these initiatives now and in early 2018. Mr. Traylor confirmed that EPA’s Office of Enforcement views the recommendations as encouraging greater efforts by his office to seek PRP funding for cleanup and to provide incentives for non-PRP cleanup. EPA Region 8 has not yet published any official statements.

The Superfund Task Force Recommendations are available on EPA’s website. Please contact Polly Jessen with questions regarding how the recommendations may affect your property acquisition or redevelopment project.

CDPHE’S Low-Threat Groundwater Policy

The Colorado Department of Public Health and Environment (CDPHE) Hazardous Materials and Waste Management Division worked hard to come up with a way for sites with low-threat groundwater contamination to exit the regulatory system. CDPHE would like to get the word out and let site owners (and their attorneys and consultants) know how to use this policy to get sites off the regulatory “books.” Please also join us on October 25th from noon to 1:00 p.m. for a CLE presentation by First Assistant Attorney General David Kreutzer and Assistant Attorney General Kendall Griffin from the Office of the Attorney General. They will discuss CDPHE’s Policy for Conditional Closure of Low-Threat Sites with Residual Groundwater Contamination. Registration is free, but space is limited. Please RSVP as soon as possible to Ossie Richards.

Kaplan Kirsch & Rockwell publishes Brownfields Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues. Nothing in the 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 publication.

For the first time, a federal court has invalidated portions of a local ordinance regulating Unmanned Aircraft Systems (UAS) or “drones.” On September 21, 2017, the U.S. District Court of the District of Massachusetts ruled that the Ordinance adopted by the City of Newton, Massachusetts impermissibly conflicted with the Federal Aviation Administration’s regulations.

The court’s decision should be closely parsed by local and state governments that have adopted, or are considering adopting, rules related to UAS. Importantly, the court held that the FAA “explicitly contemplate[d] state or local regulation of pilotless aircraft.” Accordingly, in the court’s view, local drone restrictions are presumptively enforceable, unless compliance with both local and federal regulations is impossible or if the local law “obstructs the objectives of federal regulation.”

The City of Newton’s Ordinance required owners of all drones under fifty-five pounds to register with the City Clerk’s Office and pay a $10.00 fee. Additionally, the Ordinance prohibited the operation of a drone (1) below 400 feet over private property without the permission of the private property owner; (2) over City property at any altitude without permission of the City; or (3) beyond visual line of sight of the drone’s operator.

As to the registration requirement, the court concluded that the FAA intended to be the exclusive registrar of UAS, and that the City’s parallel registration requirement was therefore preempted. The court recognized that there may be “some space” that would allow the City to require registration of model drones in light of the U.S. Court of Appeals for the D.C. Circuit’s recent ruling that the FAA lacked such authority. However, the court did not consider that argument further because the City’s Ordinance applied on its face to all drones.

The court found that the Ordinance’s operational restrictions collectively amounted to a “wholesale ban on drone use in Newton” absent prior permission. While acknowledging that “Congress and the FAA may have contemplated co-regulation of drones to a certain extent,” the court ruled that a total ban within the City’s jurisdiction went too far. In particular, the court was concerned that the Ordinance attempted to regulate the use of navigable airspace above 400 feet to the extent City property was overflown. The court also ruled that City could not impose “limits on the methods of piloting a drone beyond that which the FAA has already designated.”

Notably, the plaintiff did not challenge, and the court did not consider, other aspects of the City’s Ordinance, including the requirement for a permit to use City property for the landing or taking off of a drone, or restrictions on capturing a person’s visual image or an audio recordings, using a drone to harass or annoy another person, or operations over emergency response efforts. The court also noted that the City may redraft the Ordinance to avoid conflict with FAA regulations and federal law.

This case is likely to become important precedent in challenges to other local drone restrictions throughout the United States. If you have any questions about this case or its implications, please do not hesitate to contact Eric Smith or Steven Osit.

DC Circuit Finds FAA’s Environmental Review and Implementation of RNAV Procedures Arbitrary and Capricious

On August 29, 2017, the United States Court of Appeals for the District of Columbia Circuit issued a groundbreaking opinion vacating Federal Aviation Administration (FAA) RNAV routes serving Sky Harbor International Airport in Phoenix, Arizona. The court agreed with the City of Phoenix that FAA violated the National Environmental Policy Act, National Historic Preservation Act, and Section 4(f) of the Department of Transportation Act. The case is City of Phoenix v. FAA (D.C. Cir No. 15-1158) (August 28, 2017).

The opinion reflects the first time a court has struck down FAA NextGen airspace initiative flight procedures on environmental grounds. And, the decision contains important findings on issues with broader importance to airports nationwide, including:

• When the public can challenge FAA actions even though the normal 60-day clock for appellate review has expired. The court held that Phoenix was entitled to an exception to the normal rule under 49 U.S.C. 46110.
• When NEPA categorical exclusions are appropriate for airspace (and airport) actions.
• With whom FAA must consult with prior to making airspace decisions that have the potential to have noise effects on an airport or community.
• Whether FAA can justify using its uniform standard DNL 65 decibel threshold when assessing impacts to historic resources or parks.

Kaplan Kirsch & Rockwell represented the City of Phoenix in the litigation. For more information, please contact Peter Kirsch.

FTA Issues Proposed Procedures to Facilitate Private Investment in Rail and Transit Capital Projects

On July 31, 2017, the Federal Transit Administration (FTA) issued a Notice of Proposed Rulemaking that would establish procedures for the agency to consider and grant regulatory waivers in order to facilitate public-private partnerships (P3s) for, and other private investment in, public transportation rail and transit projects.

Originally mandated by the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. No. 112-141 (July 6, 2012) and further authorized by the Fixing America’s Surface Transportation (FAST) Act, Pub. L. No. 114-94 (Dec. 4, 2015), the FTA’s Private Investment Project Procedures (PIPP) is among the new Administration’s first official steps toward fulfilling its promise of increasing private participation in the transportation sector. Through issuing project-specific waivers and studying their impact on project delivery, the FTA intends to use the PIPP to identify and develop more systematic means of accomplishing this objective.

Eligible projects would be limited to surface transportation capital projects that are subject to 49 U.S.C. chapter 53 and that will be implemented:

• Through a public-private partnership, defined as a contractual agreement formed between a public agency and a private sector entity that is characterized by private sector investment and risk-sharing in the delivery, financing and operation of a project;
• Through a joint development agreement, defined by reference to FTA Circular 7050.1
• With other private sector investment (i.e., funding).

Under the PIPP, the FTA would consider applications from any proposed recipient of Federal assistance, including programs under 49 U.S.C. chapter 53 and the popular Transportation Infrastructure Finance and Innovation Act (TIFIA) and Railroad Rehabilitation and Improvement Financing (RRIF) loan programs, to waive or modify any FTA requirement, regulation, procedure, or mandatory circular provision. The agency may grant such a waiver or modification if it determines:

Articles

Here We Go Again: Upcoming FAA Reauthorization is Likely to Reinvigorate Debate over the Privatization of Air Traffic Control Services

The FAA’s current authorizing legislation expires in September, and Capitol Hill is once again abuzz over various proposals to reform the agency through a long-term reauthorization bill.  Last year, House Transportation and Infrastructure Chairman Bill Shuster’s (R-Pa.) effort to transfer air traffic control services from the FAA to an independent, non-profit entity fizzled out after substantial opposition to such reform in the Senate, as well as from the House Committee on Ways and Means.  With just a few short months remaining before the FAA’s authorization expires, Chairman Shuster recently introduced an updated proposal, the 21st Century Aviation Innovation, Reform, and Reauthorization (AIRR) Act, which purports to better address the concerns of general aviation and small, rural communities.

While many members and stakeholders continue to express concern over the privatization of air traffic control services, The President has largely endorsed the animating principles of the 21st Century  AIRR Act.  On June 5, 2017, the President released a set of Principles for Reforming the U.S. Air Traffic Control System.  These Principles reaffirm the FAA’s primary mission as a safety regulator and suggest that moving air traffic control services to a new entity will allow the National Aviation System to keep pace with industry change, more readily accommodate unmanned aircraft and commercial space-bound vehicles, and accelerate the implementation of Next Generation (NextGen) technology.  The Principles call for a new entity that would maintain open access for all airspace users, including rural communities and general aviation users, and be financially self-sufficient through collection of user fees.

Chairman Shuster’s proposal does not adopt all of the President’s Principles, nor does it address other issues of particular interest to airports.  The 21st Century AIRR Act, for example, does not specifically address whether the National Environmental Policy Act (NEPA) would apply to modifications of flight paths and procedures by the new entity.  The President’s Principles suggest that NEPA would apply only if change would exceed an FAA-established noise threshold.  This issue is of particular concern, given changes in community noise exposure that have resulted from the FAA’s implementation of Metroplex initiatives in several metropolitan areas (see article below); however, the 21st AIRR Act would require the FAA to undertake a comprehensive review of its community engagement practices and commission further study of noise-related health impacts.  Similarly, while the Principles suggest gutting aviation excise taxes in favor of user fees, there has as of yet been no proposal to rebalance the tax structure to ensure adequate and reliable funding for other programs funded through the Airport and Airway Trust Fund, such as the Airport Improvement Program (AIP), or address infrastructure needs by uncapping Passenger Facility Charges (PFCs).

On the same day the 21st Century AIRR Act was introduced, Senator Thune (R-S.D.), Chairman of the Senate Commerce, Science and Transportation Committee, introduced the Federal Aviation Administration Reauthorization Act of 2017.  The Senate bill proposes to keep air traffic control services within the FAA, while improving the agency’s delivery of those services through procurement and personnel reforms.  The bill also includes a title introduced by Senators Jim Inhofe (R-Okla.) and Tammy Duckworth (D-Ill.)—the Forward Looking Investment in General Aviation, Hangars, and Tarmacs (FLIGHT) Act of 2017—which would, among other things, give general aviation airports more time to accumulate non-primary entitlement funds and establish a pilot program to attract greater private sector investment in general aviation airports.

These proposals will be fiercely debated in a series of hearings and markups as the September deadline looms large, and industry groups such as ACI-NA and AAAE expect to play a major role.  For more information, please contact Peter Kirsch at pkirsch@kaplankirsch.com or Steven Osit at sosit@kaplankirsch.com.

While Details Still Unclear, Recent Executive Orders May Affect Airports Practice

In the early days of his new administration, the President signed numerous executive orders, many of which have been under the media spotlight.  There are several orders that have received less attention, and while in their early stages of implementation, may in time have significant effects on the practice of airport law.

First, on January 24, 2017 the President signed Executive Order 13766, Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects (EO 13766), which intends to streamline and expedite agency environmental review processes and procedures, particularly for projects which are considered to be “high priority” for the Nation.  EO 13766 charges the Chairman of the White House Council on Environmental Quality to determine—at the request of a Governor or head of any executive department or agency—if an infrastructure project qualifies as “high priority.”  To date, there has been no guidance released on how the executive branch will implement EO 13766 and no apparent designation of any projects as “high priority.”  However, the language of EO 13766 singles out and suggests that repairing and upgrading airports will likely be considered “high priority.”  Accordingly, airport sponsors should be aware that future development projects that require environmental review and/or approval could be accelerated through that process.

Second, Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs (EO 13771)—which was signed by the President on January 30, 2017—mandates that for every one new regulation promulgated, federal agencies must identify two prior regulations for elimination.  Recent guidance states that only “significant regulatory actions” are subject to EO 13771 and references an earlier Executive Order that defines “significant regulatory actions” as those expected to: (1) have an annual effect on the economy of $100 million or more or adversely affect the economy, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create serious inconsistency; (3) materially alter the budget impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues.  Commentators have been skeptical about the implementation of EO 13771, and it is presently the subject of litigation in the United States District Court for the District of Columbia, where a group of plaintiffs allege that EO 13771 is unconstitutional and a violation of the Administrative Procedure Act.  The District Court recently rejected the Government’s request to dismiss the case on procedural grounds.  It is unclear what effect EO 13771 may have on airports practice, especially pending the outcome of litigation, but it has the potential to significantly limit FAA’s ability to implement new regulations.

Third, on March 13, 2017, the President signed Executive Order 13781, Comprehensive Plan for Reorganizing the Executive Branch (EO 13781), which aims to further improve the efficiency, effectiveness, and accountability of the executive branch.  EO 13781 proposes a multi-step process with the end goal of eliminating or reducing federal government functions.  First, the head of each agency must submit a proposed plan to reorganize the agency, if appropriate, within 180 days of March 13, 2017.  Second, EO 13781 provides the public with the opportunity to suggest improvements in organization and function of the executive branch.  The responsibility to determine whether to restructure or eliminate unnecessary agencies falls on the Director of the Office of Management and Budget, who must provide a proposed plan within 180 days after the closing date for the submission of suggestions.  While no final decisions have been made, EO 13781 could impact airports practice if the function and structure of the FAA is reorganized, reduced, or reallocated to other entities (e.g., private businesses or other public entities).  EO 13781 should also be considered in the context of recent staffing departures and reassignments at the agency, which have represented a significant loss of institutional knowledge over the past 18 months.

Finally, on April 21, 2017, the President signed Executive Order 13788, Buy American and Hire American (EO 13788).  EO 13788 does not change any existing requirements related to Buy America or Buy American programs.  Instead, it orders executive branch agencies to “scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.”  It also requires agencies to conduct reviews and assessments of their internal processes and propose means to maximize, in accordance with existing legislation, the use of materials produced in the United States.  It is unclear how, if at all, EO 13788 will ultimately affect airports practice.  For more information, please contact Nick Clabbers at nclabbers@kaplankirsch.com.

Airport P3 Projects Move Forward

With federal government policy and progress on infrastructure uncertain, several airport sponsors have moved forward with their own public-private partnerships (P3s) or outright privatization.  Westchester County, NY, and St. Louis Lambert International Airport were recently approved for participation in the FAA’s privatization pilot program, and Hendry County, FL, is in the final stages of preparing a proposal for submission to FAA.  Kansas City International Airport has also explored possible P3 projects.  With the issue heating up, the first-ever P3 Airports Summit will be held in San Diego July 24 – 25.  A limited number of complimentary registrations remain available.  Please contact Peter Kirsch at pkirsch@kaplankirsch.com or Adam Giuliano at agiuliano@kaplankirsch.com for details.

Talk of Infrastructure Reform Heats Up, But Particulars are Still Uncertain

One of the President’s stated priorities throughout the campaign and the first days of his administration is rebuilding America’s transportation infrastructure.  In recent weeks, discussion of this priority has notably increased.  Specific details about (and any implementation of) the administration’s plan, however, continue to be sparse.

In late May, the White House released a six-page Fact Sheet focused on the infrastructure aspects of the President’s 2018 budget proposal.  The Fact Sheet describes an overreliance on federal funds for local infrastructure projects and overregulation on the part of the federal government.  The Fact Sheet outlines four “key principles” to infrastructure reform, including targeted federal investment and reliance on the private sector to provide both services and funding through public-private partnerships.  The Fact Sheet states that the 2018 budget has a target of $1 trillion of new infrastructure spending, but that the federal government will make only 20% of that investment, using it “to incentivize additional non-Federal funding, reduce the cost associated with accepting Federal dollars, and ensure Federal funds are leveraged such that the end result is at least $1 trillion in total infrastructure spending.”  The Fact Sheet also outlines some goals for streamlining and reducing the environmental review process associated with federal approval of infrastructure project.

In remarks on the topic, Secretary of Transportation Elaine Chao voiced her support for the President’s agenda, stating that the administration “hope[s] to broaden and expand participation in infrastructure funding so that more projects can be undertaken overall and so that we do not supplant existing state, local, or private funds already dedicated to infrastructure.”  She has strongly endorsed the expansion of public-private partnerships and recently floated the idea of a “page limit” on environmental reviews of infrastructure projects.  Then, in early June, the Department of Transportation published a notice in the Federal Register to “solicit input from…affected stakeholders to help the Department identify requirements that the Department imposes through rules, or interpretations found in policy statements or guidance, that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects.”

There has been little movement in Congress to take up the cause of infrastructure in any substantive way.  Senate Democrats introduced a $1 trillion infrastructure bill in late January, but it has thus far failed to progress.  For now, there does not appear to be any immediate movement on the issue or any imminent infusion of new funds.  For more information, please contact Peter Kirsch at pkirsch@kaplankirsch.com or Steven Osit at sosit@kaplankirsch.com.

Maryland Attempts to Force Court Decision on Environmental Review

The state of Maryland made headlines in May with an unorthodox legal strategy in a case before a federal district court.  The case revolves around whether the state’s Purple Line light rail project has properly received its federal environmental approval.  After several months without a district court decision, the state was concerned that continued delays would substantially increase costs, and filed a petition for a writ of mandamus with the United States Court of Appeals to compel the district judge to issue a ruling.  The Court of Appeals did not rule on the petition, but the district judge did issue a ruling shortly thereafter – finding that the project had not been sufficiently studied before receiving approval.  While this case did not directly concern airports, there are many instances of litigation delays in airport projects, especially regarding environmental issues.  The Purple Line case provides an interesting approach to moving that litigation forward, but the court’s ruling indicates that it should be used with caution.  For more information, please contact Chuck Spitlunik at cspitulnik@kaplankirsch.com.

Political Climate Leaves DOT, FAA in Uncertain Position

The uneven political landscape in Washington has had an effect on many federal agencies, and DOT and FAA are no exception, especially in the context of agency staffing.  While the President recently nominated Stephen G. Bradbury, a former George W. Bush Department of Justice official, to be the DOT General Counsel, many other upper and lower-level positions remain vacant.  For example, the post of the FAA chief counsel is vacant, as is the Associate Administrator for Airports, which has been empty following the departure of Eddie Angeles in January 2017.  Administrator Huerta’s term runs through January 2018, and it is possible—perhaps even likely—that the Associate Administrator position will not be filled until that time.  Symptomatic of the agency’s difficulties with staffing is the Part 16 enforcement and compliance process. As noted below, the FAA has issued only one Part 16 decision in the last six months while previously averaging ten to twelve per year.  With upwards of several dozen cases possibly pending, the agency is well behind its normal pace.  For more information, please contact Peter Kirsch at pkirsch@kaplankirsch.com or Steven Osit at sosit@kaplankirsch.com.

FAA Continues to Face Resistance in Implementing NextGen Flight Patterns

The FAA continues to work towards implementation of its Next Generation (NextGen) flight patterns, an effort to improve efficiency in its so-called “Metroplexes.”  While FAA considers implementation of NextGen at Metroplexes to be in varying stages of completion, the agency continues to face significant resistance from community groups in the form of political and legislative pressure and litigation across the country.  In general, residents have complained that the changes in flight patterns have considerably increased aircraft overflight noise in their communities without warning.

For example, in Washington, DC, one of the first Metroplexes to be considered complete, community groups have sued the FAA alleging that the federal environmental approval was obtained without sufficient public involvement, and the Governor of Maryland has formally requested that the FAA revert to pre-NextGen flight patterns.  The U.S. Court of Appeals recently heard arguments in a case brought by the City of Phoenix, alleging that the FAA improperly failed failed to account for historical considerations or provide opportunities for community input before announcing its change in flight patterns.  Another similar lawsuit is pending in Southern California.  Howard County, Maryland has weighed whether to sue FAA, and residents of Boulder, Colorado, have complained about changes to the flight patterns at Denver International Airport some 35 miles away.

For its part, the FAA is making attempts to engage the public following some of its high-profile struggles.  In the two Metroplexes currently in the design phase (Cleveland-Detroit and Denver), the FAA has made a concerted effort to reach out to the public, even promising to exceed the requirements that would ordinarily apply under NEPA or the National Historic Preservation Act.  These initiatives include holding a series of community meetings, soliciting a wide variety of public comments, and reviewing those comments prior to issuing a final decision on implementation.  For more information, please contact Peter Kirsch at pkirsch@kaplankirsch.com.

FAA Reaches Landmark Settlement Agreement with City of Santa Monica

On January 28, 2017, the City of Santa Monica (City) and the FAA announced an historic settlement agreement that resolves litigation and controversy over the future of Santa Monica Airport (SMO) by, among other things, allowing the City to reduce SMO’s runway by almost one-third of its length in the immediate future and to close SMO entirely after 2028.  The settlement agreement seeks to resolve decades of litigation and controversy at SMO by establishing a framework for the operation—and ultimate closure—of SMO.  Most immediately, the settlement agreement resolves litigation focused on three issues:

1. Expiration of Grant Assurances.  The City believed that its final grant agreement with the FAA expired in 2014, allowing it to close SMO.  The FAA, however, contended that the City’s final grant agreement was extended to 2023 as the result of a 2003 grant amendment that increased the grant amount to reflect final construction costs.  The City appealed the FAA’s decision to the U.S. Court of Appeals for the Ninth Circuit, which appeal was pending when the 2017 settlement was announced.
2. Surplus Property Act.  The FAA took the position that the City was obligated by the terms of a 1948 Instrument of Transfer, releasing a portion of SMO from a wartime lease to keep SMO open indefinitely.  The City filed a quiet title action in federal court challenging that position.  The District Court dismissed the case on statute of limitations grounds.  On appeal, the Ninth Circuit reversed that decision in an opinion that also cast doubt on the substance of the FAA’s position.
3. ​Leasing Issues.  In several Part 16 complaints, the FAA and SMO users challenged a variety of actions by the City regarding aeronautical leases and the City’s attempt to establish a proprietary-exclusive FBO.

The Consent Decree seeks to resolve all of those matters and establish a framework to avoid future litigation.  The key elements of the Consent Decree are:

• The City may close SMO permanently after December 31, 2028, unless the City enters into a new grant agreement with the FAA before then.
• The City may immediately reduce the operational length of SMO’s runway from 4,973 feet to 3,500 feet, after following the notice procedures in 14 C.F.R. § 157(b) and any applicable state or federal environmental laws, at the City’s expense and may use the land for compatible purposes subject to an avigation easement.
• The FAA releases SMO from all deed restrictions, including Surplus Property Act restrictions.
• The City must comply with Grant Assurances 19, 22, 23, 24, 25, and 30 through 2028, but the Consent Decree is silent regarding any other grant assurances that presumably no longer apply.
• The Consent Decree also addresses a number of issues regarding aeronautical leases, the City’s ability to establish a proprietary-exclusive FBO, and other matters.

The District Court entered the Consent Decree on February 1, 2017, and the City has begun to take steps to shorten the runway and exercise its other rights under the Consent Decree.  The National Business Aviation Association (NBAA) has challenged the FAA’s authority to enter into the Consent Decree in the U.S. Court of Appeals for the District of Columbia.  The NBAA’s request to enjoin implementation of the Consent Decree was denied, and the case is pending before the D.C. Circuit.  A decision is expected sometime in 2018.  In the meantime, the City can move forward with the runway shortening and other actions permitted under the Consent Decree.  For more information, please contact Eric Pilsk at epilsk@kaplankirsch.com.

Litigation

Court Decisions

Use Restrictions and ANCA.  Town of E. Hampton v. Friends of the E. Hampton Airport, Inc., No. 16-1070, 2017 U.S. LEXIS 4165 (June 26, 2017 (denying petition for certiorari in review of 2nd Circuit decision holding that Town’s use restrictions were enacted in violation of the procedural requirements of ANCA).

Grant Assurances.  Vietnam Helicopters v. Cnty. of Contra Costa, No. 17-cv-01743-MMC, 2017 U.S. Dist. LEXIS 49728 (N.D. Cal. Mar. 31, 2017 (denying motion for temporary restraining order where plaintiff alleged airport sponsor was preparing to lease hangar in violation of Grant Assurances and where Part 16 complaint was pending).

Premises Liability.  Afoa v. Port of Seattle, 198 Wash. App. 206 (Mar. 20, 2017) (holding that the Port had a “nondelegable duty to ensure a safe workplace” on the airfield at Seattle-Tacoma Airport, and was therefore liable for the injuries of an independent contractor’s employee).

Settlements.  United States ex rel. Shepard v. Tippetts, No. 13-cv-00736-CMA, 2017 U.S. Dist. LEXIS 27083 (D. Colo. Feb. 27, 2017) (over objections by qui tam relators, approving settlement between FAA and Grand Junction Regional Airport Authority regarding possibly fraudulent statements made to FAA in application for grant funds).

Pending Cases

First Amendment.  McDonnell v. City & Cnty. of Denver, No. 17-1071 (10th Cir. appellee’s brief filed Jun. 7, 2017) (appealing the district court order requiring City and County officials to “timely process a permit application” to protest Executive Order barring individuals from seven predominantly Muslim countries from entering the United States at Denver International Airport).

Subject Matter Jurisdiction.  Kaufmann v. FAA, No. 17-3152 (6th Cir. petitioner’s brief filed May 24, 2017) (appeal of the district court decision dismissing complaint alleging FAA noncompliance with NEPA and NHPA because complaint should have been filed in the circuit court).

Airport Closure.  Nat’l Bus. Aviation Ass’n v. Huerta, No. 17-1054 (D.C. Cir. motion for stay and injunction denied and motion to dismiss referred to merits panel May 4, 2017) (challenging FAA settlement agreement with the City of Santa Monica that permits closure of the airport in 2028).

NextGen.  Citizens Assn. of Georgetown v. FAA, No. 15-1285 (D.C. Cir. briefing concluded May 31, 2017) (challenging RNAV procedures in the DC Metroplex area).

Passenger Facility Charges.  Hillsborough Cty. Aviation Auth. v. Huerta, No. 15-1238 (D.C. Cir. held in abeyance Mar. 2, 2017) (appealing FAA’s denial of Passenger Facility Charge authorization to construct an automated people mover at Tampa International Airport).

NextGen.  City of Phoenix v. Huerta, No. 15-1158 (D.C. Cir. argued Mar. 17, 2017) (challenging RNAV procedures in Phoenix).

Gate Allocation.  In re. Compliance with Federal Obligations by the City of Dallas, Texas, FAA Docket No. 16-15-10 (Notice of Investigation served Aug. 7, 2015) (FAA investigation into possible grant assurance violations related to a failure to accommodate air carrier requesting gate space).

Administrative Decisions

Acquisition of Property.  Boggs v. City of Cleveland, FAA Docket No. 16-16-15, Order of the Director (Jan. 24, 2017) (dismissing complaint alleging Grant Assurance violations where sponsor chose not to acquire private property shown on the Airport Layout Plan).

Federal Legislation

Consolidated Appropriations Act, 2017, Pub. Law No. 115-31 (signed May 5, 2017) (extending federal government funding at largely current levels through September 2017).

Federal Rules, Orders, and Guidance

Presidential Executive Orders

Buy American and Hire American, Exec. Order 13,788, 82 Fed. Reg. 18837 (Apr. 21, 2017) (requiring all executive branch agencies to “scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law”).

Comprehensive Plan for Reorganizing the Executive Branch, Exec. Order 13,781, 82 Fed. Reg. 13959 (Mar. 16, 2017) (requiring that within 180 days, “the head of each agency shall submit to the Director [of the Office of Management and Budget] a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency”).

Reducing Regulation and Controlling Regulatory Costs, Exec. Order 13,771, 82 Fed. Reg. 9339 (Jan. 30, 2017) (requiring that “whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed”).

Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects, Exec. Order 13,766, 82 Fed. Reg. 8657 (Jan. 24, 2017) (setting process by which project proponents can request “high priority” status for infrastructure projects and petition the White House CEQ for expedited environmental review).

Department of Transportation and FAA

AC 150/5000-17, Critical Aircraft and Regular Use Determination (June 20, 2017).

Notice and Request for Input, Transportation Infrastructure: Notice of Review of Policy, Guidance, and Regulation, 82 Fed. Reg. 25734 (June 8, 2017) (“to solicit input from…affected stakeholders to help the Department identify requirements that the Department imposes through rules, or interpretations found in policy statements or guidance, that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects”).

ARP SOP 5.1, CATEX Determinations (June 2, 2017).

Order 8040.4B, Safety Risk Management Policy (May 2, 2017).

JO 7400.2L, Procedures for Handling Airspace Matters (eff. Apr. 27, 2017).

AC 150/5345-49D, Specification L-854, Radio Control Equipment (Jan. 17, 2017).

Department of Homeland Security

Fact Sheet: Aviation Security Enhancement for Select Last Point of Departure Airports with Commercial Flights to the United States (Mar. 21, 2017) (banning large electronic devices on flights originating from 10 Middle Eastern airports).

Reports, Studies, Articles, and Other Publications

U.S. Department of Transportation

Key Staff Appointments (May 20, 2017) (listing recent senior political appointees to the Department).

National Transportation Noise Map (showing noise impacts from airports and highways).

U.S. Government Accountability Office

International Travelers: CBP Collaborates with Stakeholders to Facilitate the Arrivals Process, but Could Strengthen Reporting of Airport Wait Times, GAO-17-470 (Mar. 30, 2017).

Airport Funding: FAA’s and Industry’s Cost Estimate for Airport Development, GAO-17-504T (Mar. 23, 2017).

Transportation Research Board, Airport Cooperative Research Program

Legal Research Digests

Legal Research Digest 31: Preemption of Worker-Retention and Labor-Peace Agreements at Airports (Feb. 2017).

Reports

Report 173: Use and Potential Impacts of AFFF Containing PFASs at Airports (May 2017).

Report 172: Guidebook for Considering Life-Cycle Costs in Airport Asset Procurement (Apr. 2017).

Report 171: Establishing a Coordinated Local Family Assistance Program for Airports (Apr. 2017).

Report 170: Guidebook for Preparing Public Notification Programs at Airports (Apr. 2017).

Report 166: Interpreting the Results of Airport Water Monitoring (Mar. 2017).

Report 169: Clean Water Act Requirements for Airports (Jan. 2017).

Report 168: Runway Protection Zones (RPZs) Risk Assessment Tool Users’ Guide (Jan. 2017).

Report 167: Guidebook for Developing Ramp Control Facilities (Jan. 2017).

Web-Only Documents

Web-Only Document 31: Improving Stakeholder Engagement in Aircraft Accident Response Planning (Apr. 2017).

Web-Only Document 30: Development of a NO_x Chemistry Module for EDMS/AEDT to Predict NO₂ Concentrations (Mar. 2017).

General Articles

Kaplan Kirsch & Rockwell LLP, P3 Airport Projects: An Introduction for Airport Lawyers (May 2017).

Airports Council International – North America, Airport Infrastructure Needs 2017 – 2021 (Mar. 2017).

Environmental Law Institute, Regulatory Reform in the Trump Era (Mar. 2017).

Unmanned Aircraft Systems

Decided Cases

Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. May 19, 2017) (holding that FAA did not have authority to promulgate regulations requiring hobbyist drone owners to register with the agency, but staying enforcement pending a petition for rehearing).

Boggs v. Merideth, No. 3:16-CV-00006-TBR, 2017 U.S. Dist. LEXIS 40302 (W.D. Ken. Mar. 21, 2017) (dismissing complaint alleging the defendant shot down plaintiff’s unmanned aircraft while over defendant’s property for lack of subject matter jurisdiction and stating that tort claims were properly brought in state court).

Pending Cases

Elec. Privacy Info. Ctr. v. FAA, Case No. 16-1297 (D.C. Cir. petitioner reply brief filed May 12, 2017) (challenging FAA’s decision not to promulgate privacy-specific UAS regulations).

Reports, Studies, and Articles

FAA Drone Advisory Committee – Task Group 3, Tasking on Unmanned Aircraft Systems (UAS) Funding (Mar. 7, 2017).

A PDF of this Semi-annual Airport Law Digest is available.