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

On March 27, 2013, the Los Angeles County Airport Land Use Commission (“ALUC”) gave the latest in a series of approvals including those from Los Angeles Board of Airport of Commissioners (“BOAC”) and Los Angeles City Planning Commission, of the proposed Los Angeles International Airport Specific Plan Amendment Study Project (“Project”).  The Project includes construction of a new terminal, addition of runway safety lighting, and, its centerpiece, the reconfiguration of the North Runway Complex with movement of runway 6L/24R 260 feet north. 

Most notably, the Project will impose dramatic impacts on surrounding communities, including significant new noise impacts on over 14,000 people, 12,000 in the City of Inglewood alone.  Moreover, the Project adversely impacts the goal of regionalization which is a centerpiece of the Stipulated Settlement signed by the Petitioners in City of El Segundo, et al. v. City of Los Angeles, et al., Riverside County Superior Court Case No. RIC426822.  A principal goal of that settlement was, and remains, diversion of air traffic to other airports in the region, not the encouragement of access to LAX. 
 

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On January 31, 2013, the Cities of Mukilteo and Edmonds, Washington, and concerned citizens and organizations in the vicinity of Paine/Boeing Field, Everett, Washington (“Petitioners”) filed a “Petition for Review of Agency Order,” challenging the adequacy of the Environmental Assessment (“EA”) for the conversion of Paine Field from a proprietary facility to a commercial airport. 

Petitioners’ challenge centers around the limited analysis contained in the EA.  While the projects defined in the EA include the grant of Part 139 Operating Certificates for the airport and two airlines, Horizon and Allegiant, as well as the physical construction of various improvements to the terminal and other facilities, admittedly allowing virtually unlimited commercial aircraft operations, the analysis in the EA is limited to only the first phase of the ultimate project.  It describes the environmental impacts of only a 22,000 square foot addition to the existing terminal, and the projected immediate operations of only the two named airlines, while it also acknowledges that, once a Part 139 Operating Certificate is issued for an airport, the law does not allow any limitation on access by any airline that desires such access.  See, e.g., 49 U.S.C. § 47521, et seq., (“Airport Noise and Capacity Act of 1990”).

Petitioners are represented by Buchalter Nemer, a firm with extensive experience in the fields of airport law, and environmental and land use law related to airport development.
 

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The Federal Aviation Administration (“FAA”) has published in the Federal Register an “Invitation to Comment on Draft FAA Order 5100-38, Airport Improvement Program Handbook” (“Draft AIP Handbook”). 

The Airport Improvement Program (“AIP”) is an airport grant program, pursuant to Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. (“AAIA”).  The Draft AIP Handbook contains regulations implementing the AIP.  This updated version incorporates substantial changes to the governing statutes, including the recently enacted FAA Modernization and Reform Act of 2012. 

While FAA usually does not solicit comments on what it calls “internal orders” (claiming that the Draft AIP Handbook “contains instructions to FAA employees on implementing the AIP”), FAA recognizes the broad impacts of the Draft AIP Handbook, and the impact on all segments of the airport community of its implementation.  Therefore, FAA is accepting comments until March 18, 2013. 
 

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Trucking industry challenges to the Port of Los Angeles’ pollution rules for trucks carrying cargo to and from the Port (“Clean Truck Program”) have hit the United States Supreme Court.  The Court has agreed to accept certiorari to decide whether the rules that require, among other things, that trucking firms enter into agreements with the Port Authority of Los Angeles (“Port Authority”) to govern regular maintenance of trucks, off-street parking, and posting of identifying information are an unconstitutional interference with interstate commerce.  Perhaps most contentious is the requirement that, ultimately, all truck operators must become employees of trucking companies, rather than acting as independent contractors. 

The American Trucking Association originally challenged the Clean Truck Program on the grounds of a Federal law deregulating and preempting local authority “related to a price, route, or service of any motor carrier.”  49 U.S.C. § 14501(c)(1).  Although the Port Authority has had surprising success in the lower courts thus far, the preemption provision relied upon by the trucking industry bears a substantial similarity, even identity, with the provisions in the Airline Deregulation Act, 49 U.S.C. § 40101, et seq. (“ADA”), which has rarely been successfully challenged.
 

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The competitive position of the United States aircraft manufacturing industry was dealt a blow, beginning on January 19, 2013, with the order by the Federal Aviation Administration (“FAA”) for the grounding of Boeing’s “Dreamliner,” the Boeing 787.  The order, occurring just 17 months after the FAA’s final approval of the aircraft’s formal entry into the market, effectively shuts Boeing out, at least temporarily, of the New Large Aircraft (“NLA”) market.  Several countries around the world, including Japan and Singapore, had already taken that step independently.  Boeing has now ordered the cessation of all 787 manufacturing activities, pending further investigation of the source of the problem. 

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Environmental Protection Agency (“EPA”) Administrator Lisa Jackson’s sudden resignation last week is not surprising in light of the recent revelations about the EPA’s use of “alias” e-mail accounts, purportedly for private communications between EPA officials.  The use of such “aliases,” to protect confidential agency communications, appears on the surface benign.  However, in the face of the statutory mandate for Federal government transparency, represented by the Federal Freedom of Information Act, 5 U.S.C. § 552, et seq., (“FOIA”), it is an ominous harbinger of the secretiveness of those who are appointed to serve the American public. 

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Responding to the concerns of pilots and the California Energy Commission (“CEC”) regarding the impact of exhaust plumes from power plants on overflying aircraft, the Federal Aviation Administration’s (“FAA”) Airport Obstruction Standard Committee (“AOSC”) completed a Supplement to FAA’s 2006 guidance [“Safety Risk Analysis of Aircraft Overflight of Industrial Exhaust Plumes”].  The purpose of the Supplement is to enhance current FAA regulations which only address standards for the physical height of the smoke stacks, and omit regulation of the impacts of the smoke plume emitted from the stacks, or the emissions contained in them. 

The Supplement is also aimed at obtaining definitive answers to the questions: (1) how much turbulence is created by exhaust plumes; (2) is this turbulence great enough to cause loss of pilot control; (3) if so, what size aircraft are impacted; (4) is there a lack of oxygen causing loss of engine power or danger to pilots/passengers; and, if so, (5) what is the harm to those pilots and passengers?

For two years, from 2008 to 2010, the AOSC conducted a Plume Report Study, which was ultimately determined to need further verification and validation.  In 2011, FAA retained the Federally funded Research and Development Center, operated by Mitre Corporation to answer the questions specified in the earlier Plume Report.  The Mitre Study was completed in September 2012 and verified both FAA’s model and what the earlier FAA reports and studies had concluded.
 

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A recent poll of registered voters in California concerning the new State “Cap and Trade” auction program, initiated Wednesday, November 14, 2012, and aimed at reducing greenhouse gas (“GHG”) emissions found strong public support for the program.  As set forth in more detail in the Aviation & Airport Development Law News blog of November 13, 2012, the Cap and Trade program assigns “caps” to carbon emissions (euphemistically called “allowances”) for various industries, including utilities and refineries.  It then allows those companies who have not used the full allotment of allowances to sell their unused allowances to companies that have expended their own allowances.  Effectively, the program would create industry-wide caps on emissions, with flexibility within industry groups as to the way in which to utilize the allowances within the constraint of the caps.  The political significance of the Cap and Trade program as one of the first of its kind in the nation goes well beyond the simplicity of its procedure. 

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Once again taking a forefront position in innovative environmental programs, California, for good or ill, is poised to launch the first of its kind and scope in the nation greenhouse gas (“GHG”) emissions trading system (“Cap and Trade”). 

On November 14, 2012, the California Air Resources Board (“CARB”) will hold an auction mandated by California’s 2006 “Climate Change” law, AB32, in which pollution permits (“Allowances”) will be bartered to more than 350 businesses, including utilities and refineries.  The concept behind Cap and Trade is that polluters must either cut carbon emissions to the level of a specific emission cap placed on individual types of pollutants by AB32, or buy allowances for each metric ton of carbon discharged over cap limits from other companies whose emissions did not reach cap levels.  Through the Cap and Trade program, excess carbon polluters can achieve up to 8% of emissions reductions needed. 
 

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