August 2009

Writing in the Wall Street Journal, Senior Special Writer Andy Pasztor states:

Federal Aviation Administration chief Randy Babbitt, in his most detailed comments yet about combating pilot fatigue, vowed to tailor future regulations to better reflect the safety challenges facing commuter pilots.  In a speech to the country’s largest commercial-pilot union, the agency’s administrator said the current "one size fits all" regulations don’t adequately take into account fatigue typically experienced by commuter pilots, some of whom fly five or more segments per day.

This speech by Administrator Babbitt underscores the growing concern about Pilot fatigue and safety of the aircraft that are flown.  Ever since it came to light that the co-pilot of the Continental Flight 3407, which crashed in Buffalo, New York, had commuted from Seattle to Newark to be on the flight, and that the pilot was not familiar with the de-icing procedures for the type of aircraft he was flying, pilot training, fatigue and maintenance have been hot topics.

Administrator Babbitt vowed in his speech to the Air Line Pilots Air Safety Forum not to wait until the Congress gets its act together and passes legislation.  He said that he has set up a rulemaking committee studying fatigue:  "I want to make sure that we get the answers we need as working men and women aviators.  In rulemaking not only does one size not fit all, but it’s unsafe to think that it can."

Although not part of his rulemaking committee, Administrator Babbitt also mentioned that the FAA is holding a series of 12 nationwide airline safety forums aimed at "stimulat[ing] a safer, more professional enviroment at regional airlines. . . the discussions are focusing on air carrier management responsibilities for crew education and support, professional standards, flight discipline, training standards and performeance."

This is not to say that Congress is standing still waiting to see the outcome of these rules and meetings.  The Senate Subcommittee on Aviation has a held a series of three hearings on Aviation Safety, the most recent being August  6, 2009, which focused on "the relationship between the major, or network, airlines and their regional airline partners." (Witness lists for the three hearings appear after the jump).  The goal, as expressed by Subcommittee Chairman Jay Rockefeller (D-W.Va.) is to "to determine if there are further steps we can or must take to ensure there is one level of safety throughout the commercial air transportation system."

Maybe Administrator Babbitt got it right when he concluded his remarks by stating that "if you think the safety bar is set too high, your sights are set way too low."Continue Reading Pilot Safety Rule Focus of New FAA Administrator Babbitt

John M. Broder, a columnist for the New York Times, writes that:

The changing global climate will pose profound strategic challenges to the United States in coming decades, raising the prospect of military intervention to deal with the effects of violent storms, drought, mass migration and pandemics, military and intelligence analysts say.

Such climate-induced crises could topple governments, feed terrorist movements or destabilize entire regions, say the analysts, experts at the Pentagon and intelligence agencies who for the first time are taking a serious look at the national security implications of climate change.

Against this backdrop, the U.S. Senate Committee on Environment and Public Works held hearing on Thursday, August 6, 2009, on the climate change bill currently under consideration by Senate after being passed by the House earlier this summer.  According to Chairman Barbara Boxer (D-Cal.),  "the hearing will focus "on ensuring that America leads the clean energy transformation as we address the threat posed by climate change.

The battlelines were drawn in the opening statements.  The Democrats emphasized the national security aspects of the failure of the United States to address climate change adequately.  Sen Lautenberg (D-N.J.) said in his opening remarks:

We have also heard from our military leaders that global warming is a serious threat to our national security.  As many as 800 million people are going to face water and cropland scarcity in the next 15 years, setting the stage for conflict and breeding the conditions for terrorism.

These sentiments were echoed by Sen. Cardin (D-Md.) who stated that addressing climate change was "important for national security."

The Republicans seemed to acknowledge the fact that movement on climate change is necessary, but that the energy policy of the United States should focus first and foremost on the economy.  This resulted in Sen. Bond (R-Mo.) calling for off-shore drilling for natural gas and oil, Sens. Voinovich (R-Ohio) and Alexander (R-Tenn.) calling for more nuclear energy, and all of them calling for "Clean Coal," describing the United States the "Saudia Arabia" of coal.  Nuclear energy, in particular because of its "no carbon emissions," is high on the Republican’s agenda.

The basic issue between the two parties seems to be this:  the Republicans believe that the status quo should be protected, because the alternative proposed by the Democrats is too costly and uncertain.  The Democrats, on the other hand, believe that while the costs will be high in some sectors, other sectors will pick up the slack.  While Sen. Voinovich is correct that the economy must be protects, Sen. Whitehouse (D-R.I.) is also correct in stating that to

move the government’s hands in a way that supports a better clean energy future is not a distrubance in the "state of nature" . . . it’s actually making better decisions with the same power we use now.

Panel One:  Views From the Obama Administration

Putting aside for the moment the prepared testimony by the witnesses, the nuclear question was addressed through a question from Sen. Boxer to panel by stating "under the analysis of the House Bill, 161 new 1000 megawatt nuclear power plants would result from that bill."  The panelists confirmed that the cap-and-trade system sets up the market mechanisms that would allow the power and energy companies to move forward with the development of nuclear power plants in addition to solar and wind.

Sen. Inhofe attempted to move the discussion away from climate change and toward the issue of reliance on foreign oil.  His point was that we need to develop our oil reserves that we have here, presumably instead of developing solar, wind and nuclear resources.  Hon. Strickland, from the Interior Department, replied that the Interior Department is moving toward developing all of the natural resources of the United States in "responsible manner."  But that should not mean that we should not also develop "renewable" resources.

Panel Two:  Industry and Environmental Group Representatives

The second panel of the day concentrated a little more on reductions of carbon emissions.  Interestingly enough, Mr. Fehrman of the Mid-American Energy seemed to support a hard cap, without any trading of allowances.  His belief is that introducing market mechanisms only raise the costs for energy companies.  In addition, he believes that carbon capture and sequestration will be "commericially available" in 5 to 10 years. 

On the other hand, Mr. Krupp advocated in favor of cap-and-trade to achieve real emission reductions in the nation.  Mr. Krupp also noted that "carbon capture is ready to roll" – in Norway.  The reason why?  Because there is a price on carbon and the rechonology was developed as a result.

Shortly after the hearing was over, the Senate recessed for the rest of the month of August, leaving the big questions regarding climate change until the Fall.

The witness list and a link to the video webcast of the hearing after the jump.Continue Reading Climate Change and Clean Energy Headline U.S. Senate Committee Hearing

Several groups. individuals, cities, and counties who petitioned the United States Court of Appeals for the District of Columbia to review the FAA’s decision to move forward with its redesign of the New York/New Jersey/Pennsylvania airspace have filed Petitions for Rehearing after the rather surprising D.C. Circuit ruled against them in an opinion that reeks of judicial indifference.  See, "D.C. Court of Appeals Decides Against Challenge to East Coast Airspace Redesign," posted June 11, 2009.

Standard

In order to obtain a  rehearing en banc (i.e., by all of the judges currently sitting on the D.C. Circuit), a petitioner must show:

  • The decision of the panel conflicts with the decision of the U.S. Supreme Court or with the decisions of the D.C. Circuit; and/or
  • The proceeding involves "one or more questions of exceptional importance."

Federal Rules of Appellate Procedure (FRAP) 35.  The intent of the rule is to "secure and maintain uniformity of the court’s decisions."  Id.

The standard for obtaining a rehearing by the same panel of three judges who heard the matter the first time is slightly lower.  A petition for rehearing will be granted when the court agrees that points of law or fact were overlooked or misapprehended by the panel.  FRAP 40.  In this case, all three Petitions for Rehearing ask for both a rehearing en banc and a rehearing by the panel.

Delaware County’s Petition for Rehearing

Delaware County’s Petition focuses on the court’s decision that the FAA complied with the conformity provisions of the Clean Air Act by providing a "fuel burn report" instead of a more comprehensive emission inventory  According to Delaware County, this position conflicts with the U.S. Supreme Court case of Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) and two D.C. Circuit cases as well:  Environmental Defense Fund, Inc. v. EPA, 467 F.3d 1329 (D.C. Cir. 2006) and Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006).  These cases, Delaware County argues, require scrupulous compliance with the Clean Air Act as well as the EPA’s implementing regulations. 

The court’s failure to hold the FAA to following the letter of the Clean Air Act and the EPA regulations not only conflicts with other decisions, but also presents an issue of exceptional public importance in that it contravenes  the express purpose of Congress in enacting the Clean Air Act.The D.C. Circuit recently held in Environmental Defense v. EPA, 467 F.3d 1329, 1336 (D.C. Cir. 2006) that the FAA "may not ‘avoid the Congressional intent clearly expressed in the text simply by asserting that its preferred approach would be better policy.’"

In addition, Delaware County argues that the panel misapprehended several critical facts, not the least of which is the fact that the court based its rejection of one the Petitioners’ critical arguments on the Petitioners not raising the issue in their Opening Brief.  The Petition for Rehearing cites the references in the Opening Brief where that issue was raised.

Finally, Delaware County contends that that the panel misapprehends the burden of proof necessary in this matter.  Under the holdings of Alabama Power v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979) and Association of Administrative Law Judges v. Federal Labor Relations Authority, 379 F.3d 957 (D.C. Cir. 2005) the burden is on the agency to fully document that an agency’s action falls within a de minimis exemption.Continue Reading Three Petitions for Rehearing Filed in Airspace Redesign Matter