Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

The U.S. Environmental Protection Agency (EPA) has announced that, unless it receives adverse comments by the close of the comment period on August 13, 2010, it will approve revisions to the California State Implementation Plan (SIP). A SIP is an enforceable plan, developed at the state level and submitted to the EPA for approval, that explains how the state will attain and maintain National Ambient Air Quality Standards (NAAQS) set by the EPA for certain criteria pollutants. The Federal Clean Air Act (CAA) requires each state to develop and regularly update a SIP. SIPs are necessary and important. They play a key role in defining compliance with the CAA. The revisions proposed by the EPA are revisions to the Sacramento Metropolitan Air Quality Management District (SMAQMD) and South Coast Air Quality Management District (SCAQMD) portions of the California SIP. Approval of the revisions will enable California and the EPA to regulate volatile organic compound (VOC) emissions from “vanishing oils, rust inhibitors, plastic coatings, rubber coatings, glass coatings and aerospace operations.”  Information on how to submit comments on-line or by e-mail or by mail is available at http://www.regulations.gov. Comments should contain the docket number EPA-R09-OAR-2010-0514.

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Section 21670 of the California State Aeronautics Act requires that every county in which there is an airport that is served by a scheduled airline establish an Airport Land Use Commission (ALUC) “to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses.” One of the duties of the ALUC is to adopt an Airport Land Use Compatibility Plan (ALUCP). In formulating an ALUCP, an ALUC has the power to develop height restrictions on buildings, specify use of land and determine building standards within the Airport Influence Area (AIA) designated by the ALUC.

 

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A recently announced plan by the San Bernardino County Association of Governments (SANBAG) to convert carpool lanes on the 10 and 15 freeways to toll lanes will not realize the proposal’s intended purpose, i.e., to reduce traffic in the carpool lanes. Rather, it will temporarily serve to push freeway carpool lane traffic out of the carpool “frying pan” into the main lanes “fire.”

 

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Proponents of California’s proposed high-speed rail project envision a high-speed rail network connecting Sacramento, San Francisco, Central Valley, Los Angeles, Orange County, the Inland Empire and San Diego. However, there are many obstacles, real or imagined, that could delay or derail the project. First, the House Subcommittee on Transportation voted to fund only $1.4 billion for high-speed rail in FY 2011, compared to the $4 billion they approved last year. The project appears to be plagued by unreliable cost, ridership and revenue projections, uncertainty about private investment and, given the State of California’s finances, the possibility that taxpayers may have to subsidize the project if revenue projections are not met. A high-speed rail system would reduce revenues for Metrolink and Amtrak. A number of cities and communities along the proposed routes oppose the project. Finally, the proposed project will require environmental review. Environmental review will include at least two alternatives (in addition to the mandatory “no-action” alternative) – a “shared track” alternative and a “dedicated track” alternative. Both present problems.

 

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Residents of Eastern Long Island are awaiting the Federal Aviation Administration (FAA) Final Rule regarding the New York North Shore Helicopter Route. If the Final Rule tracks the FAA’s Notice of Proposed Rulemaking (NPRM), helicopters flying along Long Island’s northern shoreline will be required to use the North Shore Helicopter Route. Pilots may deviate from the route only if necessary for safety or when required by weather conditions. The North Shore Route was added to the New York Helicopter Chart in 2008. However the route was developed for visual flight rules (VFR), and use of the route has been voluntary. The new rule would direct pilots to fly at an altitude of 2,500 feet, one mile offshore, and require that when crossing overland they overfly the least populated areas.

 

 The FAA cites 49 U.S.C. sections 40103 and 44715 as authority for the rule. Under section 40103(b)(2), the FAA Administrator has authority to “prescribe traffic regulations on the flight of aircraft (including regulations on safe altitudes) for . . . (B) protecting individuals and property on the ground.” Section 44715(a) provides that to “relieve and protect the public health and welfare from aircraft noise” the Administrator, “as he deems necessary, shall prescribe . . . (ii) regulations to control and abate aircraft noise . . .” If implemented, the Rule would establish the first-ever mandatory regulations that will set minimum altitudes and establish flight patterns for helicopters on Long Island based on noise abatement, rather than on safety or efficient airspace management. The FAA acknowledges in the NPRM that the rule is in response to complaints from, among others, New York Senator Charles Schumer and former senator Hillary Clinton.

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Historically, General Aviation (GA) airports have not been subject to Federal rules governing airport security. Prior to September 11, 2001, the Federal government's role in airport security focused exclusively on airports serving scheduled operations. Following 9/11, Congress enacted the Aviation and Transportation Security Act (ATSA), which created the Transportation Security Administration (TSA). The TSA was established to develop, regulate and enforce security standards for all modes of transportation. In the ATSA, Congress transferred most of the Federal Aviation Administration’s (FAA) civil aviation security responsibilities to the TSA.

In May 2004, TSA published Information Publication A-001, Security Guidelines for General Aviation Airports (“Guidelines”). The Guidelines provide GA airport owners, sponsors and operators a set of security best practices and a method for determining when and where security enhancements would be appropriate. The Guidelines do not contain regulatory language, and do not require that GA airports meet the same security requirements as commercial airports. The Guidelines are not mandatory, and do not establish any criteria that must be met in order to qualify for Federal funds. (TSA does require GA facilities located within the Washington D.C. Airspace Defense Identification Zone Flight Restricted Zone to implement security measures.)

 

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The Federal Aviation Administration (FAA) has accepted the preliminary application by Gwinnett County Airport Briscoe Field (Airport) to participate in the FAA Airport Privatization Program. The airport sponsor, Gwinnett County, may now negotiate an agreement with a private company to operate the Airport. Gwinnett County may then submit a final application to the FAA for approval. If the final application is approved, the Airport would qualify as the one general aviation airport required by the Pilot Program, and be eligible to receive exemptions from certain Federal statutory and regulatory requirements.

 

The FAA published notice of the preliminary application in the July 7, 2010, Federal Register. The FAA will be required to publish notice of receipt of the final application in the Federal Register and allow a 60-day period for public review and comment.

An update on the Airport Privatization Program was posted by Chevalier, Allen & Lichman, LLP on this Aviation & Airport Development Law Blog on July 6, 2010.

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Many in the aviation community have been monitoring the progress of Chicago's efforts to privatize Midway International Airport (MDW) under the Federal Aviation Administration’s (FAA) Airport Privatization Pilot Program. The City faces a July 31, 2010 deadline to either select a private operator for MDW or seek an extension of the City’s slot in the Program from the FAA. Chicago is the only approved applicant for the Program’s only large-hub slot. If the application is approved, MDW would be the first privatized large-hub airport in the U.S. 

 

The Airport Privatization Pilot Program was established in 1996 by Section 149 of the Federal Aviation Administration Authorization Act, which added a new Section 47134 to Title 49 of the U.S. Code. Section 47134 authorizes the Secretary of Transportation and, through delegation, the FAA Administrator, to exempt a sponsor of a public use airport that has received Federal assistance from certain Federal requirements in connection with the privatization of the airport by sale or lease to a private party.

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Much has been made by progressive bloggers and commentators of the 17 energy investments owned by Judge Martin Feldman of the Federal District Court in New Orleans. Judge Feldman recently granted a preliminary injunction to energy company challengers to the Obama Administration’s May 22, 2010 moratorium on deep water drilling in the Gulf of Mexico. Those commentators missed the point. While Judge Feldman may, or may not, have breached the Canon of Judicial Ethics by deciding a case in which he had a financial interest, it is Chevalier, Allen & Lichman’s view, based on extensive experience in litigation against government agencies in the Federal courts, that Judge Feldman made manifest errors of law by failing to grant deference to the Department of the Interior in its determination that further drilling without additional safety inspections would endanger the public safety, and by allowing the economic interests of drilling companies to carry the weight in the balance of harms.

 

 

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