EPA Plans To Release An Advance Notice of Proposed Rulemaking on Aircraft Emissions

At a April 2, 2008, hearing entitled "From the Wright Brothers to the Right Solutions:  Curbing Soaring Aviation Emissions," the EPA indicated its plans to release an advance notice of proposed rulemaking (ANPRM) soon to solicit comments regarding curbing greenhouse gas (GHG) emissions from aircraft engines.  Robert Meyers, principal deputy assistant administrator for the EPA Office of Air and Radiation, testified before the House Select Committee on Energy Independence and Global Warming that the agency had received petitions urging EPA to determine that aircraft emissions cause or contribute to air pollution and endanger public health. The petitions further urge EPA to adopt regulations to control emissions.  The FAA also presented its thought at the Hearing.  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that the FAA believed that strides were already being made toward reducing GHG emitted from aircraft and counseled patience, since aircraft emissions account for only 3% of GHG in the United States.

Also testifying were:

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Update on East Coat Airspace Redesign Litigation

As is well known, the FAA's Record of Decision on September 5, 2007 (and subsequently amended on October 5, 2007) regarding the NY/NJ/PA Airspace Redesign generated a host of litigation.  Twelve Petitions for Review were filed in three different Federal Circuit Courts of Appeal. Seven petitions from counties, municipalities and organizations in Pennsylvania, Delaware and New Jersey were filed in the Third Circuit, located in Philadelphia. Three petitions from the State of Connecticut as well as towns and groups of towns in Connecticut were filed in Second Circuit, located in New York. And two petitions from one county in New York and a New York organization were filed in the D.C. Circuit. Because the first petition filed was in the D.C. Circuit, the Court, by  orders on February 14, 2008 and on March 10, 2008, consolidated all of the petitions in the D.C. Circuit.

Since all of the petitions were consolidated, the D.C. Circuit requested that all of the petitioners devise a proposal as to the format for briefing on this matter. Pursuant to the D.C. Circuit Court of Appeals' March 18, 2008, Order, on April 17, 2008, all of the Petitioners filed a Joint Proposal for Briefing with the court.  Following the court's strict guidelines, the Petitioners suggested to the court that they file one brief covering all of the issues presented by all of the Petitioners that is substantially longer than a normal brief.  Contained in the one brief, however, will be the specific complaints of each of the petitioners. In addition, the Petitioners set out a briefing schedule that took into account the fact that twelve groups of attorneys would be working on a single brief. Thus, the Petitioners suggested that their brief be due on August 1, 2008, the FAA’s brief to be due on October 31, 2008, and the Petitioners’ Reply brief be due on December 19, 2008. These dates and the format of the briefs were agreed to by the Department of Justice, who is representing the FAA in all of the matters.

Group of Concerned Cities, Companies and Citizens Files Comments Regarding EPA's Proposed General Conformity Revisions

On April 11, 2008, a group of concerned cities, companies and citizens filed comments regarding the EPA's proposed revisions to the General Conformity Regulations (see earlier post "EPA Proposes Revisions to General Conformity Rules).  To see the Group's actual Comment letter as filed, click here.

The General Conformity Rules, which the EPA promulgated in 1993 and has not substantially updated since then, require Federal agencies to evaluate the effect their actions will have on air quality prior to their taking any such action.  The Group expressed concern that the revisions that the EPA was suggesting took away some of the protection that the Clean Air Act granted citizens in section 176 (42 U.S.C. 7506).  In addition, the Comment letter stated that the EPA:

  • should not allow Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
  • should not allow Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
  • should not allow the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
  • should add a definition of applicability analysis.
  • should delete the "presumed to conform" program, since only one agency has taken advantage of it in 15 years and it most likely violates the Clean Air Act and the Constitution.

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FAA's Response to Congress: You Want Safety? We'll Give You Safety!

The Federal Aviation Administration’s recent paroxysm of safety concern-- forcing airlines to immediately cancel thousands of MD-80 flights because of a 1/4 inch deviation in the location of an electrical bundle in the wheel well -- reveals at least two “inconvenient truths”: (1) despite it repeated use of the safety rationale to justify repeated violations of Congressional mandates such as compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and the Clean Air Act, 42 U.S.C. 7401 et.seq., the FAA has long been neglecting its primary responsibility of ensuring the safety of airline travel; and (2) FAA is willing to sacrifice the welfare and convenience of air travelers and even the sacrosanct protection of  Interstate Commerce ensured by the Bill of Rights to cover up its own past non-feasance.

Whenever FAA wants to approve an airport development project, or, more recently, an airspace redesign, despite those projects patent potential for creating significant environmental impacts, FAA falls back on the time worn mantra of its safety mandate. This is happening even now in the FAA’s sponsorship of a relocation of Runway 24R, the northern most runway  at Los Angeles International Airport, much closer to surrounding communities, with concomitantly increased adverse noise and air quality impacts, and even though other reasonable and patently safe alternatives exist.

Despite the FAA’s lip service to safety, FAA has apparently been giving short shrift to it in practice.  Even though its directive requiring inspection of MD-80s’ purported  wiring problem was issued in 2006, FAA did nothing to ensure compliance until last week, when 2 FAA safety inspectors/whistle blowers revealed FAA’s cavalier attitude toward safety to a Congressional committee.

Overnight, FAA changed its stripes.  Instead of allowing aircraft to be inspected in groups, over time, FAA required that they be instantly taken off-line for inspection; and if so much as a 1/4 inch deviation was found, taken off-line immediately for repair. Sounds good, except that hundreds of thousands of paying passengers have been delayed and displaced, through no fault of their own and at great cost to them in terms of time and money expended for overnight accommodations, food, and even additional costs of seats on other airlines, victims of the FAA’s new-found sense of responsibility.

In short, if those aircraft were dangerous, the FAA knew it, and  the planes should have been taken out of service two years ago when FAA first found out about the problem.  If  the planes are not dangerous, a reasoned, gradual approach to inspection and repair would have been appropriate.  Instead of those rational alternatives, FAA chose a path that does not remedy its nonfeasance, but, rather, calls it to the attention of the public, and , hopefully to their Congressional overseers.

Please be sure to tell your Congressman and the Committee Chairs how you feel.  The Chair of the Commerce, Science and Transportation Committee is Sen. Daniel K. Inouye (dinouye@senate.gov) and the Chair of the Aviation Operations, Safety and Security is Sen. John D. Rockefeller IV (jrockefeller@senate.gov).  On the House side, Rep. James L. Oberstar (joberstar@house.gov) is the Chair of the Transportation and Infrastructure Committee and Rep. Jerry F. Costello (jcostello@house.gov) is the Chair of the Aviation Subcommittee.

Trapped Airline Passengers Have Rights

Most of us have been caught in airplanes delayed on the tarmac for what seems like an eternity.  Some of us have really been trapped for as long as 10 hours, often without food, water or sanitary facilities.  Some states, like New York, have attempted to pass legislation that would guarantee stalled passengers at least these basic needs.  Their efforts have not met with success in the courts.  As recently as the end of March, 2008, the Federal 2nd Circuit Court of Appeals struck down the New York law as preempted by Federal law governing airline regulation.  

In Chevalier, Allen & Lichman’s view, however, legislation on this subject, though well intended, is superfluous, because passengers are already protected by the Fourth Amendment to the United States Constitution.  Airlines operate on airport property.  Airports receive funding for their development from the Federal government.  In fact, substantially all airfield facilities such as runways, taxiways and navigation aides, as well as a portion of terminal development, are paid for by funds appropriated by Congress and administered by the Federal Aviation Administration.  Moreover, the vast majority, if not all, commercial airports are run by public entities.  Finally, Air Traffic Control is operated directly and exclusively by the FAA.  

Therefore, even though airlines are private companies, they operate on, and, are in fact, dependent upon Federal facilities.  Citizens using those facilities are, in turn, protected by the Federal and State Constitutions, including the constitutional prohibition on “unreasonable search and seizure” set forth in the Fourth Amendment.

It is beyond dispute that imprisoning passengers against their will on a snow bound plane, on an icy airport apron, without food, for an indeterminate period, and without any probable cause to believe they have violated the law, is both “unreasonable” and a “seizure” of their persons.  As a passenger, you may be within your rights to deplane if it is safe to do so.  In the final analysis, you will have a cognizable claim against the airport operator and the airline, both consumers of Federal dollars, under the United States and State Constitutions, and potentially against the airline under state law for false imprisonment, even without additional State or Federal legislation.