Sustainable Airport Policies for Car Sharing and Ride Sharing Companies

“Disruption” has become the buzzword of the decade for technology startups.  Entrepreneurs take aim at existing markets every day with ideas designed to uproot and redefine their industries.  But some of the most innovative disrupters are having trouble bringing their ideas to a place where disruption is generally unwelcome: the airport.

Car sharing services such as Zipcar, Car2Go, and Getaround and ride sharing services such as UberX, Lyft, and Zimride are changing the game in ground transportation.  By using smartphone apps to connect drivers who have open seats in their vehicles with passengers who need rides, the ride sharing movement is reducing traffic and fuel usage.  Similarly, by planting a network of available cars throughout a city and allowing consumers to access the vehicles for a fee, car sharing makes it more practical for consumers to forego vehicle ownership altogether.  In 2014 alone, these companies have amassed hundreds of millions of dollars in venture capital financing.  Many consumers prefer these services to taxi cabs or other traditional methods of ground transportation because they are more convenient, affordable, and in some cases more environmentally friendly.  As with taxi cabs, airports are natural hubs of activity for car sharing and ride sharing services.

Notwithstanding the rising tidal wave of demand, most airports have yet to develop a workable approach to the unique legal and logistical challenges presented by car sharing and ride sharing services.  Instead, airports are prohibiting these companies from picking up or dropping off passengers at their terminals.  At a recent conference of in-house airport lawyers, several representatives from some of North America’s largest aviation hubs expressed serious concerns about these services.  One attendee suggested setting up “stings” by using the popular ride sharing apps to order rides from the airport and arresting the drivers for lack of taxi cab certification when they arrive.

However, non-airport regulators are beginning to appreciate that ride sharing services are not cab companies and should not be subject to the same regulations.  In September of 2013, California became the first state to provide a regulatory framework for Transportation Network Companies (“TNCs”), defined by the California Public Utilities Commission (“CPUC”) as any organization that “provides prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.”  (See CPUC Decision 13-09-045.)  The Illinois House of Representatives followed suit last week when it passed HB 4075, which seeks to implement a set of regulations specific to ride sharing services.

With mounting political and consumer support for car sharing and ride sharing, airports are under increased pressure to adopt policies regulating these services instead of prohibiting them.  Developing practical, sustainable policies that address issues such as airport congestion, service monitoring, and revenue sharing may prove to be a more profitable and efficient solution than denying airport access to car sharing and ride sharing companies.
 

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The Unmaking of the Great Park

A lesson for all those who oppose the development of airports – be careful what you ask for, you might get it.  Ten years ago the City of Irvine, California, won its epic battle over the conversion of El Toro Marine Corps Air Station (“El Toro”) to a new commercial airport for Orange County, California.  The site is more than 3,000 acres in size, and was, at the time, surrounded by a 14,000 acre “no development” buffer zone, that the military had maintained to insulate itself from liability for noise and other impacts from aircraft operations at El Toro. 

Despite the largest land use buffer around any airport in the nation, and the fact that the noisiest military aircraft then in existence, the F-14, F-16 and F-18 fighter jets, had been operating regularly and continuously out of El Toro for more than 50 years, when El Toro was marked for closure under the Base Reuse and Realignment Act, 10 U.S.C. § 2687, et seq., (“BRAC”), and conveyed to Orange County through a public benefit conveyance, a number of cities in South Orange County, including Irvine and Laguna Niguel, banded together to stop the conversion.  Their alternative was a 3,600 acre “Great Park” on the El Toro site, to include sports facilities, entertainment venues, and wildlife preservation areas, and limited commercial and residential development on the periphery. 

It was a very convincing story, and, ultimately, in 2003, after 10 years of political and legal battles and the expenditure of many millions of dollars on both sides, the effort prevailed in the passage of an Initiative, Measure W.  The Initiative transferred land use planning authority from Orange County to the City of Irvine, for the purpose of developing the “Great Park.”  The only problem is, another 10 years and mega-millions of dollars later, the Great Park remains an empty field hosting an occasional tent show or fair, and is on the verge of becoming what its skeptics expected all along.
 

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Ninth Circuit Calls FAA to Task on Environmental Impacts of New Runway

In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration’s (“FAA”) long held position that “aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not,” Barnes, at 16285, and the Federal Court’s traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998).

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Wind Farms and Agricultural Aviation

With the advent of wind energy development, much attention has been given in the aviation community to the impacts wind turbines located near airports might have on aviation safety. However, a not so readily apparent impact that has not been widely addressed is the impact of wind farms on an important segment of aviation, agricultural aviation. Because many of the country’s richest wind resources are located in agricultural areas, an increasing number of wind farms are being built on leased farmland property. Wind farm land leases provide farmland owners a continuing income source. However, in negotiating, preparing and entering into lease agreements, wind energy developers and landowners should consider other potential economic impacts wind farms might have on farming operations which extend beyond the boundaries of the leased property. Continue Reading...

FAA's Most Recent Forecast Sees Massive Increase in Passengers at Region's Airports

The Federal Aviation Administration's most recent forecast of future airline passengers at the region's airports is an eye opener. In the forecast year 2030, FAA is projecting 49.3 million enplanements (98.6 million total passengers) at Los Angeles International Airport; 3 million enplanements (6 million total passengers) at Ontario International Airport; and 6.6 million enplanements (13.2 million air passengers) for John Wayne Airport. This compares to current figures for LAX of approximately 58 million air passengers a year; Ontario, 4.5 million air passengers a year; and John Wayne Airport, 9.8 million air passengers a year.

Of course, 2030 is 20 years away and much can happen between now and then. Therefore, the real eye opener is the comparatively low projected growth of Ontario. Despite the fact that Ontario has new terminals, runways thousands of feet longer than those at John Wayne Airport, and convenient freeway access to all of the Inland Empire as well as northeast Orange County, FAA does not expect it to grow more than 33%, compared to John Wayne Airport’s 38% and LAX’s whopping approximately 60%.

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Federal Aviation Administration Increases Protections for Airline Passengers

On June 2, 2010, the Federal Aviation Administration issued a proposed rule that calls for a new level of protection for airline passengers, including compensation for involuntary "bumping;" permission to cancel reservations within 24 hours without penalty; and prohibition on airline ticket price increases after purchase.

 

This most recent proposal is in addition to the Final Rule promulgated last month which bans lengthy tarmac delays and the imposition of other inconveniences as well as questionable health practices by the airlines.

Interested parties may submit comments on the proposal to the FAA within 60 days. It is a certainty that the airlines will do so, as the proposal appears to have a potential impact on their bottom lines. Further discussion of the proposal can be found at www.dot.gov/affairs/2010/dot11010.html
 

October 1, 2009 - Aviation and Airport Development Updates

A summary review of Aviation and Airport Development related news and information that was made public during the past week.  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

 

Why the Airports and the Aviation Industry Need to Be Concerned About Climate Change: Part One, Facts about Aviation and Climate Change

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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Passengers Detained Have Constitutional and Other Legal Rights

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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U.S. House Transportation Committee Introduce Aviation Safety BIll

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.