Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

Following in the footsteps of his colleagues, on January 6, 2012, Assemblyman Mike Feuer introduced legislation that would give rail projects the same type of relief from California Environmental Quality Act (“CEQA”) requirements that were received in the last session by the proposed NFL stadium in Los Angeles, and some renewable energy projects. Notably, the CEQA amendments enacted for the NFL stadium include a very short time frame of 175 days for resolution of CEQA issues. While current CEQA litigation may extend to two years or more, depending on the complexity of the project and workload of the court, it stands to reason that issues surrounding local projects such as the stadium, with local traffic, noise and air quality impacts, may potentially be resolved within the 175 day timeframe. Rail projects are of far different scope, geographic extent, and are subject to a different set of laws.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As far back as 1946 when the California Legislature first passed legislation enabling the establishment of redevelopment agencies, the concept of restoring aging urban neighborhoods has played a key role in the character and identity of California cities. This role, which was enhanced by government money during the era of “urban renewal” in the 1960s, has now been effectively obviated by a ruling of the California Supreme Court which, on Thursday, December 27, 2011, held in favor of a recent State law abolishing the State’s 400 local redevelopment agencies. The Court also ruled against a compromise measure which would have allowed the redevelopment agencies to continue in operation with the sharing of their revenues with the State General Fund. Localities are now faced with the quandary of how to make up the shortfall. Several new ideas have been advanced at both the State and local levels.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The recently published Southern California Association of Governments (“SCAG”) Draft Regional Transportation Plan 2012-2035, Sustainable Communities Strategy (“Draft RTP”) is a study in contrasts. The Draft RTP is meant to be a roadmap to “increasing mobility for the region’s residents and visitors.” Draft RTP, p. 1. Its “vision” purportedly “encompasses three principles that collectively work as the key to our region’s future: mobility, economy and sustainability.” Draft RTP, p. 1. SCAG’s jurisdiction falls largely into compartments: (1) surface transportation such as roadways and rail; and (2) aviation. SCAG has funding authority over the former, but none over the latter.

The purpose of the Draft RTP is to portray transportation from a broader regional, rather than merely local, perspective. On the one hand, the Draft RTP’s analysis of surface transportation growth estimates, trends and proposed policies for the Southern California Region to the year 2035 contains relatively sophisticated and substantially complete analysis and projections that meet its goals. On the other hand, the Draft RTP’s analysis of aviation trends and policies for meeting airport demand is reminiscent of a high school science project.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In National Association of Homebuilders, et al. v. Environmental Protection Agency, et al., 2011 W.L. 6118589 (December 9, 2011) (“Homebuilders”) the D.C. Circuit Court of Appeals has raised the bar for Article III standing in actions involving private petitioners or appellants. While recent years have seen a loosening of the standing requirements for states (see, e.g., Massachusetts v. EPA, 549 U.S. 497, 518 (2007) [“This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, and all the earth and air within its domain”], and municipalities (see, e.g., City of Olmsted Falls v. FAA, 292 F.3d 261, 268 (2002) [“In this Circuit we have found standing for a city suing an arm of the Federal government when a harm to the City itself has been alleged” [emphasis added]], Homebuilders represents an escalation of the existing standing restrictions for individuals and organizations that represent them.

Article III of the United States Constitution “limits Federal Court jurisdiction to ‘cases’ and ‘controversies.’ Those two words confine ‘the business of Federal Courts to questions represented in an adversary context and in a forum historically viewed as capable of resolution through the judicial process.’” Massachusetts, supra, 549 U.S. at 515, quoting Flast v. Cohen, 392 U.S. 83, 95 (1968). In order to establish Article III standing, “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts, supra, 549 U.S. at 517. In Homebuilders, the National Association of Homebuilders (“NAHB”), which represents a variety of individual developers, brought suit challenging the determination by the United States Environmental Protection Agency (“EPA”) and United States Army Corps of Engineers (“ACOE”) that certain reaches of the Santa Cruz River in Arizona constitute “Traditional Navigable Waters” (“TNW”), thus subjecting those reaches to Federal regulation. The Court in Homebuilders rejected NAHB’s attempts to fit under the umbrellas of organizational, representational or procedural standing on the following grounds.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An interesting dichotomy was observable in recent news coverage of the utilization of the two major airports owned and operated by the City of Los Angeles. On the one hand, in a recent story, the Los Angeles Times reported that the City of Los Angeles’ Board of Airport Commissioners, the administrative agency charged with overseeing the operation of the City’s airports, is considering closing one of the two terminals at Ontario International Airport (located in the City of Ontario, but operated by Los Angeles World Airports (“LAWA”)). The stated reason was that Ontario has lost one-third of its peak 7.2 million passengers from 2007 to 2010, putting Ontario “on track to have as many passengers as it saw in 1987.” On the other hand, a story in the Los Angeles Business Journal touts passenger increases at LAX of between 3% and 10% over the period April through October, 2011. What the latter story does not do is venture an analysis of the potential causes of this enormous disparity.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This morning, November 29, 2011, American Airlines, one of the biggest airlines in the world, announced that it had declared Chapter 11 bankruptcy. It is not unexpected news, as American has been declaring losses in excess of $1 billion per year for some time. What remains to be seen is, among other things: (1) whether American will review its devotion to the “hub and spoke” system and begin a return to “point to point” routes that have allowed Southwest to remain profitable for a period of 35 years; (2) whether American will maintain its schedules throughout its system during the bankruptcy; (3) whether American will continue to court its best customers with the continuation of the “Advantage Miles” program; and (4) perhaps most urgent, whether American will enhance its customer service, in the model of Southwest Airlines, in order to retain and attract customers. The story is still unwritten. Stay tuned.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The California Airport Land Use Planning Handbook, October 2011 (“2011 Handbook”) was released this week. It supersedes the 2002 Handbook edition. The Handbook constitutes “guidance,” Cal. Pub. Util. Code § 21674.7, for Airport Land Use Commissions (“ALUCs”) in the determination of the scope of their jurisdiction over off-airport land uses as well as in the formulation of noise, overflight, safety and airspace protection policies, as mandated by Cal. Pub. Util. Code § 21670, et seq.

It is important to note at the outset, however, what a Handbook cannot do. First, it cannot grant to ALUCs the power to regulate airports, either in the air or on the ground. Those powers lie exclusively with the Federal Aviation Administration (“FAA”) and the local airport proprietor. Second, it cannot grant to ALUCs the final decision making power over off-airport land uses either. That power lies exclusively with local land use jurisdictions. What the Handbook can do is provide guidelines for the formulation of policies that bring to the attention of local land use policy makers the importance of “ensuring compatible land uses in the vicinity of . . . all new airport and in the vicinity of existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses.” Cal. Pub. Util. Code § 21674(a).

As the 2011 Handbook’s girth exceeds 400 pages, and was issued only this week, the specific ways in which the 2011 Handbook addresses that charge will be the subject of a blog to appear shortly.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The proposed location of the first offshore wind farm, 130 wind turbines, each 440 feet tall, in a 25 square mile in Nantucket Sound, has been controversial from the start. The controversy has arisen partially because of Cape Cod’s high profile residents who would be visually impacted (such as the Kennedy family), and partly because of the proximity of the Town of Barnstable which is owner and operator of a municipal airport.

Now the courts have weighed into the controversy. In Town of Barnstable, Massachusetts v. Federal Aviation Administration, 2011 W.L. 5110119 (C.A.D.C.), decided on October 28, 2011, the D.C. Circuit Court of Appeals held that: (1) the petitioners in two consolidated cases, Barnstable and Alliance to Protect Nantucket Sound, had standing to challenge the Federal Aviation Administration’s (“FAA”) determination that the wind farm would not pose a hazard to air navigation under FAA regulation 14 C.F.R. Part 77; and (2) FAA’s finding of “no hazard” to air navigation under that section was a result of the agency’s failure to properly apply its own regulations and the guidance in its own Order JO 7400.2G (April 10, 2008) (“Handbook”).
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Noise abatement procedures are only effective if they are used. Noise impacted communities are frequently heard to complain that, despite the complex, time consuming and expensive process needed to develop and implement noise abatement procedures at airports, either through the FAA’s Part 150 process, or through other airport specific processes, airlines seem to ignore them. The rationale often provided is that each airline is entitled to develop and implement its own flight procedures, some, but not all of which incorporate the specified noise abatement procedures. This situation was exacerbated in 1990 when the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., took noise abatement policy making out of the hands of local airports and placed approval authority exclusively in the hands of the FAA.

A deceptively simple solution to this pervasive problem of airlines non-uniform observance of airport specific noise abatement policies has been developed by a small, new company in Truckee, California, Whispertrack.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link