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

Developers and local land use jurisdictions beware.  The California Department of Transportation (“CalTrans”) has initiated an update of the 2002 California Airport Land Use Planning Handbook which is scheduled to be completed in 2010.  The Handbook provides guidance to County Airport Land Use Commissions (“ALUC”) in the imposition of height and other zoning and land use restrictions around airports.

An initial problem arises from the Handbook’s interpretation of the airport land use planning process as set forth in the California Aeronautics Act, Public Utilities Code § 21670, et seq.  The California Supreme Court has defined airport land use plans as in the nature of “multi-jurisdictional general plans,” Muzzy Ranch Co. v. Solano County Airport Land Use Commission, 41 Cal.4th 372, 384 (2007), that often supercede local zoning at distances as great as five miles from the end of each runway.  For land use jurisdictions, this means that carefully crafted local regulations within those areas are rendered essentially null, because land use jurisdictions must bring their general and specific plans into consistency with airport land use plans within 180 days of the airport land use plan’s approval, or overrule the approval of the Airport Land Use Plan by a two-thirds vote.  Gov. Code § 65302.3.

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On 40^th Anniversary of the National Environmental Policy Act (NEPA), Jim Tankersley of the Los Angeles Times wrote that

The White House is poised to order all federal agencies to evaluate any major actions they take, such as building highways or logging national forests, to determine how they would contribute to and be affected by climate change, a step long sought by environmentalists.

The Presidential Order would most likely issue from the Council on Environmental Quality, an organization set up by NEPA to oversee the NEPA process. Mr. Tankersley’s article goes on to report that that

The head of the White House Council on Environmental Quality, Nancy Sutley, said in an interview this week that federal agencies "should think about both the effect of greenhouse gas emissions, and the effects of climate change, on decisions they make."

She added that the administration's decision was not yet final.

The White House was originally petitioned in 2008 to formally recognize climate considerations under NEPA, but the White House has not taken any action since then.

However, federal agencies may already be required to include an analysis of climate in their Environmental Impact Statements (EISs) and Environmental Assessments (EAs). NEPA does not mention specific areas that federal agencies must analyze to complete EISs and EAs. Instead, it states that the federal agency shall analyze the effect the federal project will have on the environment, without specifically mentioning any particular areas that need to be examined. Thus, it could be argued that federal agencies should already be examining the effect of the federal project on climate change since that is an “environmental effect” within the purview of NEPA.

As Mr. Tankersley’s article points out, some federal agencies have already taken upon themselves to consider effects on climate. Moreover, there is a growing body of caselaw indicating that the courts are beginning to rule that federal agencies should consider the effect their projects will have on the environment. The U.S. Circuit Court of Appeals for the Ninth Circuit recently held in Center for Biological Diversity v. National Highway Transportation Safety Administration that the NHTSA was required to examine in its EIS the effect of greenhouse gas emissions from the federal project. In coming to that conclusion, the 9^th Circuit summarized the following findings from International Panel on Climate Change reports and other sources:

Carbon dioxide concentrations increasing over the 21st century are virtually certain to be mainly due to fossil-fuel emissions;

The average earth surface temperature has increased by about 0.6 degrees;

There have been severe impacts in the Arctic due to warming, including sea ice decline;

Global warming will affect plants, animals, and ecosystems around the world. Some scientists predict that it will cause 15 to 37 percent of species in certain regions to be extinct;

Global warming will cause serious consequences for human health, including the spread of infections and respiratory diseases;

Climate change is associated with increasing variability and heightened intensity of storm such as hurricanes;

Climate change may be non-linear, meaning there are positive feedback mechanisms that may push global warming past a dangerous threshold (the“tipping point”).

Center for Biological Diversity v. NHTSA, 508 F.3d at 522-23. To the Court, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS. See also, Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8^th Cir. 2003).

In addition, NEPA contains a provision that could be taken to require federal agencies to consider the impact of the greenhouse gas emissions created by the federal project. Section 102(F) of NEPA, 42 U.S.C. 4332(F) states that “all agencies of the Federal government shall:”

Recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.

To be sure, an order from the White House would be beneficial in establishing a nationwide policy and prompt recalcitrant agencies to require consideration of climate change in their EISs and EAs. At least in the Ninth and Eighth Circuits, however, one could argue that the courts have taken the view that NEPA already requires exactly what the order would seek to implement.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

House Passes Bill to Toughen Pilot Training Rules.--- Joan Lowy, Associated Press, October 15, 2009

The House passed a bill, 409-11, to toughen regulations on pilot training, qualifications, and work schedules, after a fatal crash in upstate New York in February and other accidents involving regional airlines. The bill would require that all pilots flying for a passenger-carrying airline have an Air Transport Pilot certificate, which would significantly increase the number of flying hours an entry-level airline pilot must have. Under the bill, the Federal Aviation Administration is also required to update rules governing how many hours airlines may require a pilot to fly before the pilot is permitted rest. The FAA is additionally required to ensure that airlines conduct comprehensive pre-employment screening of prospective pilots, create mentoring programs between experienced and newly hired pilots, and provide remedial training for pilots who perform poorly on skills tests. A companion bill is being introduced in the Senate.

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Passenger ‘Rights’ Advocate Sues Delta, Alleges Email Hacking. --- Justin Bachman, BusinessWeek, October 13, 2009

Kate Hanni, a passenger rights advocate, is accusing Delta Airlines and Metron Aviation aviation consulting firm of hacking into her email and personal computer. Her computer and email account were both accessed illegally this past summer, with some emails stolen and other work materials damaged. Both Delta and Metron deny the allegations and dismiss them as “baseless and without merit.”

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ATA Commends ICAO Member States for Progress on Climate Change Agenda. --- Air Transport Association, October 14, 2009

The Air Transport Association of America commended the member states of the International Civil Aviation Organization for confirming a Program of Action at a recent High Level Meeting on Climate Change. The ATA was pleased with the “groundwork” laid by ICAO in the members’ endorsement of continuing fuel efficiency improvements, and agreement that additional goals like carbon-neutral growth in the medium term need to be considered. ATA President James C. May urged ICAO to fully endorse a global sectoral approach to aviation and climate change over the next year.

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Safety Bill Faces Rough Flight in Senate. --- Jerry Zremski, The Buffalo News, October 16, 2009

The aviation safety bill recently passed in the House is likely to face tough challenges for passage in the Senate due to growing industry opposition, the intrusion of extraneous issues that could delay or doom the safety measures, and a tight Senate schedule. The major airlines are particularly opposed to the provision that would boost the number of flight hours for newly hired pilots from the current 250 to 1,500, citing that experience is not equated with total flight time or level of technical certification. The pilots and their union, however, back the training requirement. The bill also faces a procedural challenge in that it must be merged with the Federal Aviation Administration reauthorization bill pending in the Senate Finance Committee, which has been wrapped up for months with healthcare reform legislation.

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FAA Opposes Plan for Composting at Palo AltoAirport. --- Will Oremus, Silicon Valley Mercury News, October 16, 2009

A citizen task force on compost and aviators are opposed on the issue of building a new compost facility at Palo Alto, California airport. The task force presented a plan to the city council to build a new, high-tech composting facility on four undeveloped acres owned by the airport, but airport backers were incensed they had not been consulted, and some saw the project as a nonstarter. They sent a letter to the city council outlining their opposition and noting that the airport has long sought to use the undeveloped land, but been unallowed to by the council, and raising safety issues about the composting operation.

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FAA Drops Objections to New Jersey Wetland Restoration. --- Associated Press, October 16, 2009

The Federal Aviation Administration dropped its objections to the restoration of wetlands on a 250-acre site near Teterboro Airport in New Jersey. The agency had feared that the project would lead to planes hitting more migratory birds, but now says in an Oct. 5 letter that it will work out a plan to keep birds from the area out of the path of air traffic at the airport.

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FAA Scuttles Wind Turbines at CapeBase. --- Associated Press, October 16, 2009

Six days after approving wind turbines at the Massachusetts Military Reservation on Cape Cod, the Federal Aviation Administration said some could not be built because they would pose a hazard to air navigation. The National Guard filed applications for as many as 17 wind turbines and the FAA originally approved of eight of them, but now just three remain.

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FAA Seeks Certain Safety Work on Boeing Jets. --- Reuters, October 16, 2009

The Federal Aviation Administration is asking airlines to replace fuel pump parts on nearly 700 Boeing 757s and inspect more than 780 newer model 737s for tiny fuselage scratches. Boeing Co. said it recommended that both steps be taken as part of ongoing safety programs for the fleet, and as part of joint safety efforts by Boeing, the FAA, and airlines that include reducing chances that electrical shorts could ignite fuel vapors.

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Audit Forcing Airport to Justify Land Usage. --- D.R. Stewart, Tulsa World, October 17, 2009

A Department of Transportation Office of the Inspector General audit is requiring Tulsa International Airport (Oklahoma) and many other commercial airports to show justification for the use of thousands of acres of property acquired under a federal aircraft noise mitigation program. The 2005 audit found that 11 airports surveyed were holding 3,800 acres of land worth approximately $235 million that were no longer needed for noise compatibility or airport development, and the Federal Aviation Administration is now directing airports that have acquired noise-sensitive properties with FAA grants to inventory the properties, describe their uses or proposed uses, and justify the rationale for keeping or selling them back to the private sector.

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FAA Expands American Airlines Repair Probe. --- Associated Press, October 17, 2009

The Wall Street Journal reports that the Federal Aviation Administration may be expanding its investigation into suspected structural problems found in American Airlines’ McDonnell Douglas MD-80 series jets. An American Airlines spokesman told the newspaper that the carrier has responded to the agency’s formal letter of investigation, and the carrier is also slowly replacing the MD-80s with new, more fuel-efficient planes. Preliminary FAA findings show that as many as 16 jets were operated for months despite substandard repairs.

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Two Passengers Sue United Airlines Over A320 Runway Skid in Chicago Caused by Crossed Wiring. --- Tim Klass, Associated Press, October 20, 2009

Two passengers on a United Airlines A320 that skidded off a runway in Chicago in October 2007 are suing the airline and the manufacturer for damages for pain, suffering, lost pay, medical expenses, and other losses. United has confirmed that a previous United A320 that skidded into snow at Jackson Hole Airport in Wyoming in February 2008, as well as the plane in Chicago and a third not involved in any mishap, had crossed wiring in the main landing gear, which could cause the wheels to lock on both planes that went off the runways. The Federal Aviation Administration has not yet determined the outcome of its investigation into the Chicago skid, however, in August 2008 the agency proposed an $18,000 penalty against United for two maintenance violations that preceded the Jackson Hole skid.

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Airport Expansion Hitting Critical Juncture. --- Keith Benman, In Business, October 21, 2009

Gary/Chicago International Airport (Illinois) must accomplish several tasks in the coming months to remain on schedule for spending approximately $6 million per year in Federal Aviation Administration funding. Land acquisition and other projects have kept the airport on schedule for spending the money, Illinois Representative Ed Soliday says getting positive revenue into the airport is also important. State officials have also been pushing for the privatization of Gary airport, hoping that privatization could help bring airlines to the airport. The airport faces problems in moving railroad tracks, which interfere with a planned runway expansion, in seeking the condemnation of 103 acres of land owned by Gary Community School Corp., which it needs to satisfy federal requirements that any sensitive habitats destroyed by the expansion be replaced, and in fully exploring environmental contamination.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

• O’Hare Airport hit for safety violations in FAA report. During routine inspections at O’Hare International Airport in Chicago, IL, the Federal Aviation Administration uncovered several violations that endanger airplanes at the most critical phases of flight: takeoffs and landings. In a “letter of correction” to Chicago, the FAA said that O’Hare is out of compliance with federal aviation law and that the airport’s self-inspection program does not reflect actual conditions in the field. The problems noted at O’Hare, considered major violations, have almost all been corrected already and a spokesman for the Chicago Department of Aviation said the rest will be resolved by the end of November. 9/24/09, Jon Hilkevitch, Chicago Tribune, http://bit.ly/xbMHb
• House votes short-term extension for FAA programs. The House has voted to extend existing air transportation programs through the end of the year, the seventh time in two years that it has had to take temporary measures to prevent certain Federal Aviation Administration programs from shutting down. The Senate is expected to follow with a similar bill as it has struggled to get an FAA bill to the floor this year, due to policy differences and a preoccupation in the Senate with the health care issue. 9/24/09, Jim Abrams, Associated Press, http://bit.ly/L1Wg8
• FAA clears India’s safety measures. The Federal Aviation Administration’s International Aviation Safety Assessment team recently revisited India to confirm and validate action taken on earlier concerns raised by an audit in March 2009. The IASA team found India fully compliant with international safety standards as it had taken steps to meet the concerns from the March audit, and reported that it could continue to be maintained in Category-I, which means Indian airlines can expand operations in the U.S. and get new points of call and share codes. 9/24/09, Business Standard, http://bit.ly/hauyN
• AAAE panel mulls lack of long-term FAA reauthorization bill. At the American Association of Airport Executives’ National Airports Conference a panel of industry experts predicted that Congress’ likelihood of passing a long-term Federal Aviation Administration reauthorization bill is slim at present. The passage of a three- to six-month extension of FAA’s authority and funding is only a short-term response to the September 30, 2009 end of the federal fiscal year, and Kate Lang, the FAA’s associate administrator for airports, pointed out that short-term extensions make it difficult for airports to do multi-year projects and a more stable program is needed. 9/23/09, Aviation News, http://bit.ly/17xURv
• Former American Chairman and CEO boosts passenger rights proposals. Former American Chairman and CEO Robert Crandall has joined the call for a federally imposed time limit that would give passengers the option to get off a plane that has been stuck on the tarmac for hours, with a four-hour limit initially that would transition to a three-hour limit on January 1, 2011, to give carriers time to adjust their operations. A passenger rights proposal may be closer to passage now more than ever, with organizations like the Business Travel Coalition and the National Business Travel Association giving their support for the passage of such a bill. Senators Barbara Boxer and Olympia Snowe sponsored passenger rights legislation that is currently in the Senate Commerce Committee’s version of the Federal Aviation Administration reauthorization bill, which has yet to be passed. 9/23/09, Andrew Compart, Aviation Daily, http://bit.ly/8Zoor
• Daley downplays FAA violations at O’Hare. Mayor Richard Daley downplayed Federal Aviation Administration violations recently found at O’Hare International Airport as “not very significant,” declaring that none of the violations deal with the safety of people landing or taking off. He also said that he continues to have confidence in Aviation Commissioner Rosemarie Andolino, and that the city is reviewing and dealing with all of the violations. 9/24/09, Dan Blake, Chicago Tribune, http://bit.ly/P1HlV
• Senate passes three-month FAA extension. The Senate passed H.R. 3607, a bill that extends FAA programs and excise taxes through December 31, 2009, and awaits President Obama’s signing the measure into law before the current extension expires at the end of the month. 9/24/09, Aviation News, http://bit.ly/VI87A
• EIS for the CA high-speed train project from Los Angeles to San Diego via the Inland Empire. The FRA and California High-Speed Rail Authority will jointly prepare a project Environmental Impact Statement and Environmental Impact Report for the Los Angeles to San Diego section of the California High-Speed Train System. The preparation of the EIR/EIS will involve developing preliminary engineering designs and assessing potential environmental effects associated with the construction, operation, and maintenance of the High-Speed Train system. Written comments on the scope of the EIR/EIS should be provided to the appropriate authorities by November 20, 2009, or at any of the public scoping meetings scheduled for various cities from October 13, 2009, to November 3, 2009. 9/24/09, TradingMarkets.com, http://bit.ly/2x1bwb
• FAA Associate Administrator of Aviation Safety Peggy Gilligan’s speech at the ABA Air & Space Forum. In a speech at the American Bar Association’s Air and Space Forum, the Federal Aviation Administration’s Associate Administrator of Aviation Safety Peggy Gilligan stated that safety is the “foundation for public confidence” in aviation. She called for cooperation on safety to ensure the long-term global success of aviation and applauded international cooperation for making great strides over the past 60 years. Ms. Gilligan closed her speech acknowledging that the three-pronged approach in global regulation of aviation that includes holding each other to standards, providing assistance when needed, and proactively identifying and addressing risk, enhances safe air transportation around the world. 9/23/09, Peggy Gilligan, http://bit.ly/ijlZJ
• AEA joins NATA in opposing foreign repair station language in FAA reauthorization bill. The Aircraft Electronics Association and National Air Transport Association are contacting members of Congress in opposition to foreign repair station provisions in both the House and Senate versions of the Federal Aviation Administration reauthorization bill. Each of the bills contains a provision that requires additional FAA oversight of foreign repair stations, and could eliminate a reciprocal audit provision of the U.S.-European Community Bilateral Aviation Safety Agreement, unnecessarily raising costs for E.U.-based repair stations. U.S. repair stations could also face high job loss if companies that hold a U.S.-based European Aviation Safety Agency Part 145 repair station certificate lose the reciprocal audit capabilities between the FAA and EASA. 9/28/09, National Air Transport Association, http://bit.ly/INtRv
• California state court rules that FAA Authorization Act preempts CA’s Unfair Competition Law. California Superior Court Judge Elizabeth White held that the Federal Aviation Administration Authorization Act preempted claims against motor carriers brought under California’s Unfair Competition Law and protected motor carriers from state regulations. The federal law, part of the FAA Authorization Act, prohibits states from enacting and enforcing laws that are related to motor carrier prices, routes, or services, and Judge White held that the attorney general’s case, based on the allegation that the defendants had improperly classified drivers as independent contractors rather than employees, would have a significant effect on motor carrier prices, routes, or services. 9/28/09, Truckinginfo.com News, http://bit.ly/3U9Gkg
• Carbon offset kiosks at SFO help air travelers ditch guilt. San Francisco International Airport has partnered with a private company to install self-serve kiosks where passengers can purchase carbon offsets for their flights. Carbon offsets for travel are unregulated, however, so it is unsure if patrons are getting what they pay for as the idea is rather abstract. Travelers input the number of miles their trip will cover, how long it will take, and the number of passengers they plan to buy offsets for, and receive a piece of paper representing a fact that their money went toward a carbon-offset project somewhere or that an emission did not occur somewhere else. Though more certainty about an offset is preferred, Professor Michael Wara of Stanford University believes the program is “better than nothing” and the airport hopes that the kiosks raise awareness about the environmental impact of flying. 9/29/09, Rori Gallagher, National Public Radio, http://bit.ly/1j6nyE

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I.        Introduction

In the grand scheme of things, aviation may not represent a huge source of concern with respect to climate change. But neither should the aviation industry (airports included) ignore the fact that aviation does contribute to climate change not only through the emission of carbon dioxide (CO2) but also through the emission of nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness. The intent of this series of articles is to examine the effect aviation has on climate change, outline the regulatory and legal framework that is developing, and to suggest avenues for the aviation industry to pursue in the future.  The first challenge is to clear up some misconceptions about aviation and climate change so that we can move forward with accurate and up-to-date information.

II.      Some Facts About Aviation and Climate Change

In Aviation and Climate Change: the Views of Aviation Industry Stakeholders, the aviation industry makes several claims regarding the impact aviation has on climate change. First, the industry claims that “over the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous savings.” As a result, the industry continues, “given the significance of fuel costs to the economic viability of our industry, our economic and environmental goals converge.” Second, the industry claims that “because of our aggressive pursuit of greater fuel efficiency, greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, in order to assist the industry in its obligation “to further limit aviation’s greenhouse gas footprint even as aviation grows to meet rising demand for transportation around the world,” those claims of progress need to come under a microscope.

        A.            Contribution of Aviation to Climate Change Remains Subject to Debate

First, how much aviation contributes to climate change is still up to debate. Several governmental and aviation industry organizations have been reporting a “less than 3%” number for quite some time while environmental groups, particularly in Europe, claim that the percentage is anywhere from 5 to 9%. In examining the claims and counterclaims concerning emissions of GHG, one has to be very careful about the language and the metrics used in determining the “impact” any given industry will have on “climate change.” Many reports and studies focus only on CO2, since the amount of CO2 produced both naturally and by humans is overwhelming. However, as just about everyone knows by now, there are other gases and anthropogenic actions that exacerbate climate change. For example, the U.S. EPA recently proposed regulations that would require major emitters of six “greenhouse gases” to report their emissions to the EPA on an annual basis. Those six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorochemicals (PFCs), and other fluorinated 20 gases (e.g., nitrogen trifluoride and hydrofluorinated ethers (HFEs)). It also should be kept in mind when discussing climate change, especially with respect to aviation, that water vapor is estimate contribute anywhere from 36% to 72% of the greenhouse effect. This is important because the radiative forcing effect of cirrus cloud formation from the aircraft is a significant contributor to the greenhouse effect. As pointed out above, it is generally accepted that for aviation the GHGs of concern are CO2, nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

• Honeywell gets FAA okay on runway safety systems.The Federal Aviation Administration has greenlighted Honeywell International Inc.’s SmartRunway and SmartLanding, designed to prevent runway accidents at crowded airports. The systems reinforce standard operating procedures and add “situational awareness” at crowded airports by alerting pilots about runway and taxi locations, unstable approaches and long landings, and when an aircraft is landing too far down the runway to stop safely.  9/16/09, Phoenix Business Journal, http://bit.ly/C3w3B
• Regulatory abuse by airlines threatens aviation safety. Aircraft Engineers International cites that the largest single cause of the downward trend in aviation safety is the increase in the number of regulatory breaches by airlines that remain uncorrected. Engineers from all over the world will meet in Varna, Bulgaria, from September 23-26, 2009 for the Aircraft Engineers International’s 37th Annual Congress, where they will take a closer look at issues including airlines’ deliberate abuse of aviation regulations to reduce costs, and airworthiness authorities’ adopting a more “hands on” approach to regulation. 9/16/09, Aircraft Engineers International, http://bit.ly/1WQ0gm
• Feds keep little-used airports in business. Congress has directed $15 billion from an obscure federal program that raises billions of dollars a year through taxes on every airplane ticket sold in the United States to general-aviation airports. General-aviation airports have no scheduled passenger flights and operate separately from the commercial airports that handle almost all passenger flights, and comprise the world’s most expansive and expensive network of airports. Critics contend that the number of subsidized airports with no commercial flights is excessive at a time when larger airports are struggling with delays in air traffic, and that only a few private pilots are benefited. Local residents have also complained about the noise and pollution generated by the little-used airports. 9/17/09, Thomas Frank, USA Today, http://bit.ly/5icdM
• FAA announces new efforts to respond to safety concerns. Federal Aviation Administrator Randy Babbitt announced that the FAA has a new focus on improving the agency’s response to public safety complaints and whistleblower contributions, as well as renewing efforts to ensure consistent interpretation of agency regulations and policies. The FAA will also improve how it communicates and interacts with employees, the public, air carriers, and manufacturers. Administrator Babbitt stated that the FAA’s “number-one customer” is the public, and is implementing changes in communication and interpretation of safety information to maintain a safe U.S. fleet and avoid cancellations. 9/17/09, FAA Press Release, http://bit.ly/RaNXC
• FAA launches new accident prevention office. The Federal Aviation Administration’s Office of Aviation Safety launched a new Accident Investigation and Prevention Service that will integrate the work of the Offices of Accident Investigation and Safety Analytical Services. The new organization will consolidate resources and data from accident and incident investigations, historical accidents and incidents, and voluntarily submitted information from industry programs so the FAA can better understand current risks across the aviation community, and identify emerging vulnerabilities and trends. 9/17/09, FAA Press Release, http://bit.ly/Ifx2M
• DOT fines Spirit Airlines for violating bumping and other rules. The Department of Transportation has fined Spirit Airlines $375,000 for various rule violations, including bumping passengers from oversold flights without compensating them and failing to resolve baggage claims within a reasonable time. The DOT’s action is being lauded for clearly protecting airline consumers against unfair and deceptive practices, which is a stated part of the Department’s mission. 9/17/09, Official Blog of the U.S. Secretary of Transportation, http://bit.ly/1s4ru5
• Mountain Home Air Force Base wants more air space. Officials at Mountain Home Air Force Base in Idaho have asked the Federal Aviation Administration to expand the base’s air space deeper into Oregon and Nevada, saying that the expansion would double the effectiveness of the air space and training offered there and potentially making the base more attractive as a future training site for jets more modern and faster than the jets currently housed at the base. If approved, the expansion would increase the air space by nearly 30 percent from the more than 187 square miles the range complex currently covers. 9/17/09, The Associated Press, http://bit.ly/WkklS
• UAL names Jane Garvey to Board of Directors. United Airlines announced that Jane Garvey, former administrator of the Federal Aviation Administration and President Obama advisor, will be joining the company’s Board of Directors. She was the first woman appointed to the role of FAA administrator and served on the transition team for President Obama, which focused on transportation policies and related infrastructure challenges. She has also advised states on financing strategies to facilitate project delivery for state governments and served as acting administrator and deputy administrator for the Federal Highway Administration. 9/17/09, PRNewswire, http://bit.ly/Bcn5o
• FAA reauthorization bill pushed back in Senate. The Senate will not pass a Federal Aviation Administration reauthorization bill by September 30, the time the current bill will expire, and both the House and Senate will have to agree to an extension. The bill is being pushed back for an “inevitable fight” over a labor provision that FedEx adamantly opposes. Jay Rockefeller, chairman of the Senate Commerce Committee, wants final passage of the bill postponed but wants the bill considered sometime during this calendar year. 9/17/09, Bartholomew Sullivan, Memphis Commercial Appeal, http://bit.ly/Qn3sI
• FAA will stop calling airlines “customers.” In a response to complaints that the agency’s relationship with airlines was placing the industry’s economic interests above passenger safety, Federal Aviation Administrator Randy Babbitt has said that the FAA will stop calling airlines “customers.” Administrator Babbitt listed several short- and long-term actions, including making the agency’s engineers available around the clock to support safety inspectors assigned to airlines, to improve airline compliance. A spokesman for the Air Transport Association is optimistic, believing the steps will lead to more succinct instructions for incorporating safety directives and leave less chance for technical ambiguity over compliance. 9/17/09, Joan Lowy, http://bit.ly/21aGlT
• FAA OK’s first step of privatizing New Orleans airport. The Federal Aviation Administration has accepted a preliminary application to lease Louis Armstrong New Orleans International Airport, Louisiana’s largest commercial airport, to a private operator. Under a private operation program approved by Congress, an airport with a private manager could continue to receive FAA funds and grants and collect fees and charges, and the city could use lease proceeds for non-aviation purposes after money was set aside for airport debt service. Up to five public airports have been allowed to participate in the program, and Chicago’s Midway Airport is also considering a privatization plan. The program was started in 1997 to explore privatization as a way of generating private capital for airport projects.  9/17/09, The Associated Press, http://bit.ly/25Neo1
• IATA Director General asks Obama to make aviation policy a priority. International Air Transport Association Director General Giovanni Bisignani wants the Obama administration to renew its role as a leader in the global aviation industry and make aviation policy a priority. Director General Bisignani has presented several policy recommendations to help in the recovery of the U.S. aviation industry in the areas of safety, security, environment and commercial freedoms, which include putting the NextGen system on a “fast track” to reduce delays at airports and airport emissions. 9/18/09, San Francisco Foreign Policy Examiner, http://bit.ly/LpoGt
• Boston airport prepares nation’s first green runway. Boston’s Logan International Airport is nearly finished repaving the first runway in the nation with an environmentally friendly material called warm-mix asphalt. The asphalt is heated to a lower temperature than normal, and burns less fuel and emits less carbon. 9/19/09, The Associated Press, http://bit.ly/2XqAhb
• Will a bigger runway boost the local economy? Carroll County government officials argue that the new, $72 million runway at Carroll County Regional Airport “won’t hurt” in attracting new businesses. Primarily paid for by the Federal Aviation Administration, the new runway will be longer and will have wider separation between the taxiway and runway, making it safer to land there and potentially able to handle more corporate jets. A spokesman for the National Business Aviation Administration said having an airport that can handle corporate aircraft is attractive to companies thinking about where to locate some or all of their businesses, but opponents of the project remain skeptical about the economic benefits or oppose the new runway because of the cost. 9/20/09, Adam Bednar, Carroll County Times, http://bit.ly/y2dix
• Commentary from Federal Times: Charting a new path for the FAA. Dave Bowen, chief information officer for the Federal Aviation Administrator, states that the FAA’s NextGen initiative will enable digital communication, and digital weather modeling and other capabilities, while supporting a level of air traffic more safely, efficiently, and effectively than current levels. NextGen technology includes Wide Area Augmentation, which provides an additional degree of accuracy and reliability, and Traffic Information Service - Broadcast, which combine together into Automatic Dependent Surveillance-Broadcast. With ADS-B, an aircraft would broadcast its Global Positioning System position and receive the broadcasts of other similarly equipped aircraft. While the FAA is working with airlines to get them to put ADS-B equipment in their aircraft, the NextGen initiative as a whole is the “path to the future” for the FAA. 9/21/09, Dave Bowen, Federal Times, http://bit.ly/24CZjo
• FAA approves first U.S. ground based augmentation system. The Federal Aviation Administration has approved Honeywell’s Smartpath Precision Landing System, which would provide precise navigation service based on the global positioning system. The ground based augmentation system augments GPS by providing precision approach guidance to all qualifying runways at an airport by monitoring GPS signals to detect errors and improve accuracy by transmitting correction measures to aircraft. GBAS has been identified as an enabler for descent and approach operations to increase capacity at crowded airports and will be improved over the next few years. 9/21/09, FAA Press Release, http://bit.ly/10xNLl
• Senator Barbara Boxer says airline passenger bill of rights is coming. Senator Barbara Boxer says that passengers’ rights legislation is popular in Congress and likely to pass, even over airline industry objections. The senator’s bill would require airlines to provide food, water, and bathrooms to passengers stranded on flights and would force airlines to allow passengers off planes after three hours of sitting. The legislation is currently included in the Federal Aviation Administration reauthorization bill. Airlines have fought customer-service legislation for over ten years, but Senator Boxer has drawn support from former AMR Corp. and American Airlines chairman Robert Crandall, who believes new rules can be implemented without compromising safety. 9/22/09, Scott McCartney, http://bit.ly/cOau1

IATA goal of halving emissions by 2050 over 2005 levels. The International Air Transport Association stated its goal of cutting emissions in half by 2050 over 2005 levels, through a four-part approach of technology, operational improvements, infrastructure upgrades, and “economic measures.” The airlines plan to present plans by November 2010 to begin trading carbon credits on a global market as part of a global approach to the issue, and to improve carbon efficiency by 1.5% annually through 2020 and show carbon-neutral growth from 2020 onwards. The industry is on pace to improve carbon efficiency by 1.8% this year, but it is worth noting that with fuel being among the largest expenses at an airline, carriers have a clear and immediate incentive to pursue such gains. 9/22/09, Justin Bachman, BusinessWeek, http://bit.ly/17QP9U

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The airlines are at it again! This time it’s Continental Express, Flight 2816, detaining passengers in the aircraft, without food, water or adequate sanitary facilities on the tarmac in Rochester, Minnesota, for an unbelievable six (6) hours before freeing them to enter the terminal (not counting another 2.5 hours wait to board the same plane to complete their trip to Minneapolis, only 85 miles away).

There is no doubt that the airline acted stupidly and irresponsibly by not providing a bus to complete the trip, or allowing the passengers back into the terminal. Ultimately, however, it’s the fault of the passengers who allowed themselves to be treated in that fashion. As Chevalier, Allen & Lichman has stated in prior postings (see, “Trapped Airline Passengers Have Rights,” posted April 7, 2008), the airlines when faced with this situation have three choices:

1. Take off if its safe to do so;
2. If not, allow passengers to leave the aircraft and/or provide alternate transportation or hotel facilities; or,
3. Face legal action brought by passengers for violation of the 4th Amendment of the U.S. Constitution, as well as potential state law causes of action such as false imprisonment.

First, it is true that airlines are not allowed to operate when conditions are unsafe such as during inclement weather or when the safety of the passengers is at stake (for example, during the recent bomb scare at LaGuardia). Therefore, where the existence of such conditions can be established, the airline is justified in waiting on the ground until, but only until, the Federal Aviation Administration’s (“FAA”) Air Traffic Control allows it to join a queue for takeoff. Sometimes this takes over two hours. If you have any doubt, call FAA at 1-866-TELL-FAA (1-866-835-5322). That office will know whether conditions at the origin or destination require the delay. The usual problem at this stage is lack of communication from the flight crew. It is far more commonplace to see them talking among themselves than sharing status updates with their paying customers. A radical change in company policies regarding passenger communication would go far in remedying passenger unrest.

Second, when even the normal communication doesn’t seem to be accurate or timely, and you have run out of patience, you may calmly and politely confront the crew with the choice of taking off, or, alternatively, allowing passengers to exit the aircraft. This is where individual responsibility kicks in. If no one asks, the crew has no reason to act. After all, FAA regulations require that the crew leave the plane when its federally mandated shift is up. They will get out even if you can’t. Most importantly, decline to take “no” for an answer. Poll the other passengers, and if there is a consensus that the time already spent is unreasonable and unjustified, and conditions on the plane are deteriorating to the point of health concern, get off the plane, either through the normal exits or through the emergency exit. After all, it is an emergency, isn’t it?

Finally, and most important, don’t be afraid that, by taking these steps, you will be violating the law. In fact, in our view, it is the airline and, by extension, the governmental entities that finance and operate the airport that are violating the law. Specifically, airlines operate on government funded facilities. Airports are funded 80-90% by the federal government and the remainder partially by state and local governments, with the airlines paying for part of the remainder. The tarmac upon which passengers are detained, as well as the Air Traffic Controllers who may provide the rationale for that detention are government funded. Consequently, substantially all activities on an airport may be subject to federal and state statutes including the U.S. Constitution.

The Fourth Amendment prohibits arrest and/or detention without probable cause or the consent of the detained. It is therefore doubly important to protest the detention so as to prevent acquiescence from being construed as consent. Finally, state statutes such as those prohibiting false imprisonment may also apply. However, there would certainly be an argument that such state statutes are preempted by federal law.  In the absence of comprehensive federal legislation addressing the issue of unlawful detention on aircraft, the preemption argument would likely fail. 

In short, it is not essential to the vindication of passengers’ rights that Congress pass a new statute or a “Passengers’ Bill of Rights,” because we already have a Bill of Rights that applies. However some support from Congress, for example, in legislating a limit on the number of hours passengers can be detained would show the public that their representatives are there for them and not just for campaign contributions from airline lobbyists.

Most important, if you’re “mad as hell” you “don’t have to take it anymore.” The public need not cower from taking all legal steps necessary to defend its own rights and welfare against the airlines who wrongfully cloak themselves in governmental authority without accepting governmental responsibility.

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On Wednesday, July 29, 2009, the bipartisan leadership of both the Committee on Transportation & Infrastructure and the Subcommittee on Aviation introduced H.R. 3371, the "Aviation Safety Bill" designed to "enhance airline safety by setting new training and service standards for commercial pilots."  This bill came primarily as a response to the Senate Commerce Committee's passage of its version of the FAA Reauthorization Bill (S. 1451), which included aviation safety measures such as a call for the National Academy of Sciences to conduct a study on pilot fatigue and requiring the FAA to establish and maintain a pilot employment, training, and testing database.

After the passage of the House FAA Reauthorization Bill (H.R. 915), hearings were held regarding aviation safety, particularly in response to the crash of Flight 3407 in Buffalo, New York.  As ranking member Thomas E. Petri (R-Wis.) stated at the press conference announcing the bill: "the Buffalo crash and the subsequent Aviation Subcommittee hearing revealed some troubling questions in terms of training, development, and the working environment of pilots - particularly at regional airlines."

The Press Release from the Transportation & Infrastructure Committee indicated that the bill:

• Requires FAA to ensure that pilots are trained on stall, recovery, upset recovery, and that airlines provide remedial training;
• requires airline pilots to hold an FAA Airline Transport Pilot license (1,500 minimum flight hours required);
• Establishes comprehensive pre-employment screening or prospective pilots including an assessment of pilot's skills, aptitudes, airmanship and suitability for functioning in the airline's operational environment;
• Requires airlines to establish pilot mentoring program, create Pilot Professional Development Committees, modify training to accommodate new-hire pilots with different levels and types of flight experience, and provide leadership and command training to pilots in command;
• Directs FAA to update and implement a new pilot flight and duty time rule and fatigue risk management plans to more adequately track scientific research in the field of fatigue.  It also requires air carriers to create fatigue risk management systems approved by FAA.
• Requires the Department of Transportation Inspector General to study and report to Congress on whether the number and experience level of safety inspectors assigned to regional airlines is commensurate with that of mainline airlines;
• Mandates that the first page of an internet website that sells airline tickets disclose the air carrier that operates each segment of the flight;
• Directs a National Academy of Sciences study on pilot commuting and fatigue,;and
• Requires the Secretary of Transportation to provide an annual report to Congress on what the agency is doing to address each open National Transportation Safety Board recommendation pertaining to commercial air carriers.

Once the Senate FAA Reauthorization bill is voted on (and presumably passed) by the full Senate in the Fall, this bill along with H.R. 915, will go to House-Senate conference committee.

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President Obama took a huge step toward reversing the Bush Administration's recently promulgated regulation allowing Federal agencies to forego consultation with the Fish and Wildlife Service and the National Marine Fisheries Service with respect to whether the Federal agencies' activities will have an impact on the Endangered Species Act.  In his memo to "Heads of Executive Departments and Agencies," President Obama requests that the Departments of Interior and Commerce "to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA."

Since the Bush Administration rule was issued as a regulation, President Obama cannot through the use of an Executive Order rescind or overturn the regulation.  Thus, as an interim measure President Obama asked "the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS."

As a side note, it should be pointed out that the Senate is currently considering an Omnibus Appropriations Bill from the House that would allow the Obama Administration to rescind both the ESA rule and a rule issued in conjunction with last year's listing of the polar bear as threatened under the ESA.  That rule exempted greehouse gas emissions and oil devleopment from regulation under the ESA even if they harmed the bears and their melting habitat.

Full text of President Obama's Memorandum, as reported by the L.A. Times, follows on the next page.

Previous related Posts:

• Skipping Consultations Regarding Endangered Species Okay with Bush Administration
  

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The U.S. House Committee on Transportation and Infrastructure has proposed H.R. 915, the FAA Reauthorization Act of 2009.  Since funding authorization for aviation programs and authorization for taxes and fees that provide revenue for the FAA expired at the end of fiscal year 2007 and revenue collections and FAA programs have been extended several times (until March 31, 2009), this bill is a priority item for the FAA. What follows is a summary of the provisions of the Reauthorization Bill.

Funding & Financing

• Taxes on aviation users will be increased - Passenger flight segment tax increased to $3.60; International departure and arrival taxes increased to $16.10; Alaska Hawaii facilities tax increased to $8.00.
• Provides historic funding levels for the FAA’s programs between 2009 and 2012, including $16.2 billion for AIP; $13.4 billion for Facilities and Equipment; $38.9 billion for operations; and $1.35 billion for Research, Engineering and Development.

Airports

• Makes several modifications to the current AIP distribution formula that provide significant increases in AIP funding for smaller airports, which are particularly reliant on AIP for capital financing, as well as more AIP discretionary funding.
• Increases Passenger Facility Charge from $4.50 to $7.00.  This provision was strongly supported by Jim Elwood, representing the American Association of Airport Executives.

ATC Modernization and NextGen

• Provides $13.4 billion for the FAA's Facilities and Equipment account.
• Increases the authority and visibility of the Joint Planning and Development Office.
• Requires the JPDO to develop a work plan that details, on a year-by-year basis, specific NextGen-related deliverables and milestones.
• FAA wants to emphasize "infrastructure" improvements at the nations' airports, which includes a full roll-out of NextGen.

Safety

• Includes several safety provisions, such as authorizing additional funds for runway incursion reduction programs and the acquisition and installation of runway status lights.
• Increases the number of aviation safety inspectors and requires safety inspections of foreign repair stations at least twice a year.
• Directs FAA to commence a rulemaking to ensure that covered maintenance work on air carrier aircraft is performed by part 145 repair stations or part 121 air carriers.
• Creates an independent Aviation Safety Whistleblower Investigation Office within the FAA charged with receiving safety complaints and information submitted by both FAA employees and employees of certificated entities.
• Directs FAA to modify its “customer service initiative” to remove air carriers or other entities regulated by the FAA as “customers.”
• Adds a two-year “post-service” cooling off period for FAA inspectors and requires principal maintenance inspectors to rotate between airline oversight offices every five years.

Small Communities

• Increases the total amount authorized for Essential Air Services each year from $127 million to $200 million.
• Requires 50% of over-flight fees collected in excess of $50 million be dedicated to EAS.
• Authorizes the Secretary to enter into long-term EAS contracts that would provide more stability for participating air carriers.
• Reduces local share of AIP projects from 10% to 5% for economically depressed communities.
• Includes several provisions to mitigate the effects of increases in aviation fuel costs by increasing the existing $200 per passenger subsidy cap.
• Extends the Small Community Air Service Development Program through fiscal year 2011, at the current authorized funding level of $35 million per year.

Consumer Protections

• Includes several provisions to ensure passenger needs are met including a mandate that air carriers and airports submit emergency contingency plans and detail in their plans how they allow passengers to deplane following excessive delays.
• DOT is required to publicize and maintain a hotline for consumer complaints, establish an Advisory Committee for Aviation Consumer Protection, expand consumer complaints investigated, and require air carriers to report diverted and canceled flight information monthly.
• DOT Inspector General is asked to report on the causes of air carrier flight delays and cancellations.

Environmental Provisions

• Includes several provisions related to the environment, noise mitigation and land use initiatives, including:
  • An environmental mitigation pilot program;
  • The phasing out of noisy Stage II aircraft;
  • An aircraft departure queue management pilot program;
  • Broadened AIP eligibility to include several energy saving terminal projects; and
  • Requirements for the FAA to build sustainable air traffic control facilities.
• Allows airport operators to reinvest the proceeds from the sale of land that an airport acquired for a noise compatibility purpose, but no longer needs for that purpose, giving priority, in descending order to:
  • Reinvestment in another noise compatibility project;
  • Environmentally-related project
  • Another otherwise-eligible AIP project;
  • Transfer to another public airport for a noise compatibility project; or
  • Payment to the Trust Fund.
• Provides authorization for the Continuous Lower Energy, Emissions and Noise (“CLEEN”) Engine and Airframe Technology partnership to develop, mature and certify CLEEN engine and airframe technology for aircraft over the next 10 years.

Labor

• Modifies the dispute resolution process for proposed changes to the FAA personnel management system, and replaces it with a new dispute resolution process.
• Applies the new dispute resolution process to the ongoing dispute between NATCA and the FAA. That is the changes implemented by the FAA on and after July 10, 2005, would be null and void and the parties will be governed by their last mutual agreement.
• Amends the Railway Labor Act to clarify that employees of an “express carrier” shall only be covered by the RLA if they are employed in a position that is eligible for certification under FAA’s rules and they are actually performing that type of work for the express carrier.
• Requires an assessment of training programs for controllers and air traffic technicians.
• Requires that FAA include employee unions as stakeholders in the development and planning for NextGen.
• Requires the establishment of a Task Force on Air Traffic Control Facility Conditions to determine whether employees are exposed to dangerous environmental conditions in their work place.
• Requires the Secretary to establish within the FAA a working group to develop criteria and make recommendations for the realignment and consolidation of services and facilities.

Aviation Insurance

• Extends requirement until September 30, 2012, that the FAA provide U.S. airlines’ aviation insurance from the first dollar of loss at capped premium rates, after which the requirement becomes discretionary until September 30, 2019.
• After December 31, 2019, such insurance must be provided instead by airline industry-sponsored risk-sharing arrangement approved by the Secretary.

Next Article: Summary of Comments regarding Safety Provisions.

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The California Environmental Quality Act (“CEQA”) is once again under attack.  Governor Arnold Schwarzenegger, in a letter to President-Elect Obama, has conditioned agreement to a budget reconciliation package on the suspension of CEQA compliance for 10 highway projects, ranging from carpool lanes on Routes 50 in Sacramento and 805 in San Diego, to road widenings in Fresno and San Joaquin, to a fourth bore in the Caldecott Tunnel in San Francisco.  The Governor’s initiative is already under siege from myriad environmental organizations including the Sierra Club, the Planning and Conservation League and the National Resources Defense Council.

The Governor partially justifies his actions on the grounds that most of the projects would have to comply with the Federal equivalent of CEQA, the National Environmental Policy Act (“NEPA”).  The well hidden flaw in the Governor’s argument is that he has requested that President-Elect Obama provide funding for the projects under various Federal statutes, and simultaneously suspend Federal environmental compliance standards as well.

The Governor’s proposal has far reaching implications.  First, and most obvious, are the potentially undocumented and unanalyzed, but nonetheless significant, noise and air quality implications of highway expansions.  Second, the decision as to what projects to exempt from environmental review would be made by a commission of executive appointees who would be charged with picking and choosing, without legislative oversight.  As we are all painfully aware, “power corrupts and absolute power corrupts absolutely.”

Finally, the Governor’s initiatives need not be limited to highways.  If the development and/or expansion of airports are granted the same reprieve from environmental regulations as that currently envisioned for highway projects, on the pretext that it is necessary to ensure California’s financial integrity, the sky is literally the limit for environmental impacts around dozens of airports including Los Angeles International Airport, San Diego International Airport and San Francisco International Airport.

CEQA has successfully fought of such attacks in the past.  It is critical, however, that those persons and entities that will be impacted by the proposed suspension of environmental regulations, either now or in the future, contact the Governor’s office at (916) 445-2841 or by sending him an e-mail, and/or their State Legislator, to register their firm opposition to such an opportunistic, but ultimately ineffective solution to California’s budget woes.
 

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On Thursday, December 11, 2008, the Bush Administration issued final regulations that will allow federal agencies to skip having to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Services before making a determination that no harm will come to an endangered species.  This change will have an impact on projects at airports that use federal funds.

In his prepared statement announcing the final regulations, Interior Secretary, Dirk Kempthorne emphasized that the responsibility to initiate consultation will still be with the federal agency undertaking the action.  The only difference, he stated, was when the federal agency determined that when:

• an action is not anticipated to harass, harm, kill or otherwise “take” a listed species; and
• The action has no effect what-so-ever on a listed species or critical habitat, such as replacing a culvert when the species is not present; or
• The action is completely and totally beneficial, such as expanding the no hiking zone from 15 yards to 30 yards around nesting sites; or
• The effects of the action are so insignificant that they can’t be detected or measured, such as when a federal project generates noise at such low levels that scientists can’t accurately detect its harm to a species; or
• The effects of the action are the result of global processes that are too broad to measure.

This, however, is a marked change from the current rule where federal agencies first determine if their proposed action may affect a listed species or critical habitat.  If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

How will this affect airport planning?  Since compliance with the Endangered Species Act is part of NEPA requirements, all Environmental Impact Statements are required to state whether the FAA has consulted with the Fish and Wildlife Service or the National Marine Fisheries Service and indicate their response.  Under the new rule, the FAA can make its own determination that the proposed action (i.e., runway expansion, terminal project, etc.) will not harm any endangered species.  The question remains, however, whether federal agencies, like the FAA, have the resources to make such a determination.  Moreover, because the FAA is not an expert in the field of endangered species, it will, most likely, provide another avenue of attack for opponents to a particular proposed project.

An Interior Department spokesman, Chris Paolino, said that the regulations were an "attempt to refocus the resouces, time and manpower of both the U.S. Fish and Wildlife Service and National Marine Fisheries to focus on those projects that have a measurable, adverse impact on endangered species."

Needless to say, environmental groups were not too pleased that in the last hours of the Bush Administration

Andrew Wetzler, Director of the Natural Resources Defense Council's Endangered Species Program, commented on the NRDC's website:

This administration has rejected anything with a whiff of science -- so before sulking out the back door, they are going after rules that require Fish and Wildlife Service scientists to prevent harm to our last wild animals and places. Despite today’s feel-good statements, we remain convinced that these changes are illegal. We will look at the final language when it is published tomorrow, but I think we will see them in court.

This action eviscerates key protections that have helped safeguard and recover endangered fish, wildlife and plants for the past 35 years.
Our government is founded in a system of checks, balances and accountability.  President Bush has violated each of these principles by finalizing this rule in his waning days of power.

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The California Air Resources Board unanimously adopted its Scoping Plan to implement the sweeping changes in greenhouse gas emission dictated by AB 32.

As envisaged by the Scoping Plan, the state's greenhouse gas emissions would be cut by 15% over the next 12 years.  Although it seems to lay out targets for most sectors of the economy, there are some sectors that are missing, like aircraft and airports. All told,  it amounts to an average cut of four tons of carbon dioxide and other greenhouse gases for every person in the state.

The Scoping Plan, which  will be implemented over the next two years, puts California at the forefront of national climate policy at a time when President-elect Barack Obama has vowed to put control of greenhouse gas emissions at the top of his environmental agenda.

Past posts on this topic:

• California Air Resources Board Seeks Comments on Its Climate Change Proposed Scoping Plan (Nov. 13, 2008)
  
• California's Proposal for Interim Significance Thresholds for Greenhouse Gases Will Affect Airport Planning (Nov. 14. 2008)

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On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA's 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

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The Global Warming Solutions Act of 2006 (AB 32) designated the California Air Resources Board (CARB) as the lead agency for  its implementation.  The next milestone for CARB is developing a Scoping Plan outlining California's strategy to achieve the 2020 greenhouse gas (GHG) emissions limit.  So on October 15, 2008, CARB published its Climate Change Proposed Scoping Plan:  A Framework for Change.  The Scoping Plan contains the main strategies California will use to reduce the greenhouse gases that cause climate change. Since this plan has the potential to affect just about every sector of California, CARB is seeking the public's comments.  Comments on the Scoping Plan are due no later than December 10, 2008.  The Scoping Plan will be presented for approval at the CARB’s December 11, 2008, meeting

The Scoping Plan proposes a comprehensive set of actions designed to reduce overall greenhouse gas emissions in California.  Among the solutions it proposes are "improving our state's infrastructure, transitioning to cleaner and more secure sources of energy, and adopting 21st century land use planning and development practices."  Moreover, CARB lists as the key elements of its recommendations:

• Establishing targets for transportation-related greenhouse gas emissions for regions throughout California, and pursuing policies and incentives to achieve those targets;
• Developing a California cap-and-trade program that links with other Western Climate Initiative partner programs to create a regional market system; including California's clean car standards, goods and movement measures, and the Low Carbon Fuel Standard;
• Adopting and implementing measures pursuant to existing State laws and policies,
• Expanding and strengthening existing energy efficiency programs as well as building and appliance standards;
• Achieving a statewide renewables energy mix of 33 percent; and
• Creating targeted fees, including a public goods charge on water use, fees on high global warming potential gases, and a fee to fund the administrative costs of the State's long term commitment to AB 32 implementation.

Noticeably absent from the Scoping Plan is any mention of airports or aircraft.  This is due to the CARB's perceived inability  to do much about airports and aircraft due to FAA's pre-empting the field.  Indeed, about the only mention of airports and aircraft in the AB 32 materials comes in Appendix C of the Draft Scoping Plan:

Emissions from the fuel used in planes is an important consideration, however, the State does not have regulatory authority over aviation. ARB has not identified aviation specific measures; however, successful deployment of High Speed Rail could divert some air passengers to rail.

Draft Proposed Scoping Plan, Appendix C, p. C-21.  Nor does the Scoping Plan take the emissions of aircraft have while they are in air.

As a final note, there will be a public hearing on the Scoping Plan on November 20, 2008, in Sacramento, to consider the AB 32 Scoping Plan to reduce Greenhouse Gas emissions in California.  Click here for the Agenda.

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As part of the California Air Resources Board's (CARB) "Climate Change Proposed Scoping Plan," the Board, on October 24, 2008, released its Preliminary Draft Staff Proposal on recommended approaches for setting Interim significance thresholds for greenhouse gases under the California Environmental Quality Act (CEQA).  Since these thresholds of significance will affect the conduct of EIRs for projects subject to CEQA, such as airport development projects and Airport Land Use Compatibility Plans, participation in the setting of these standards is critical.

California law provides that climate change is an environmental effect subject to the CEQA.  Lead agencies, such as Airport Land Use Commissions, are therefore obligated to determine whether a project's climate change-related effects may be significant, thereby requiring preparation of an Environmental Impact Report and to impose feasible mitigation to substantially lessen any significant effects.

CARB is specifically requesting participation from the public stakeholders and local lead agencies.  The Preliminary Draft Staff Proposal suggests a "sector approach" due to the fact that "(1) some sectors contribute more substantially to the problem, and therefore should have a greater obligation for emissions reductions, and (2) looking forward, there are differing levels of emissions reductions expected from different sectors in or to meet California's climate objectives."

The PDSP includes flowcharts that address CARB's "threshold concepts" for industrial projects and for residential and commercial projects.  The PDSP also states that that the staff is working on a proposal for an interim approach for thresholds for transportation projects.  CARB proposes, for example, a significance threshold of 7,000 metric tons of CO2e/year.  For Projects that go over that amount, an EIR would have to be prepared and "all feasible GHG mitigation measures implemented."

CARB has identified a few questions to solicit public comment, but notes that the "list is not exhaustive."

• Will the recommended approaches have any unintended consequences, for example, encouraging the piecemealing of projects?
• As set out in the attachments to the Staff Proposal, staff proposes to define certain performance standards (e.g., for energy efficiency) by referencing or compiling lists from existing local, State or national standards.  For some sub-sources of GHG emissions (e.g., construction, transportation, waste), ARB staff has not identified reference standards.  How should the performance standards for these sub-sources be defined?
• Are any of the industrial, residential, or commercial project types eligible for categorical exemptions likely to contribute more significantly to climate change than staff's preliminary analysis indicates?
• For residential and commercial projects, staff has proposed that the GHG emissions of some projects that meet GHG performance standards might under some circumstances still be considered cumulatively considerable and therefore significant.  What types of projects might still have climate change-related impacts?

As noted above, since these thresholds of significance will affect the conduct of EIRs for projects subject to CEQA, such as airport development projects and Airport Land Use Compatibility Plans, participation in the setting of these standards is critical.

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