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

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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