Congress Moves to Increase Judicial Oversight of Federal Agencies

On January 17, 2017, the United States House of Representatives passed H.R. 5, the “Regulatory Accountability Act of 2017.”  Buried deep within its pages is Title II, the “Separation of Powers Restoration Act.”  That title, although only two sections long, dramatically changes the legal landscape for challenges to the actions of federal regulatory agencies.  Currently, in adjudicating challenges to administrative rulemaking and implementing actions, the federal courts invoke the precedent established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).  In that case, the Supreme Court held: “We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer...”  In adopting Chevron, the Supreme Court effectively gives administrative agencies almost complete deference, not only in the interpretation of the regulations they implemented, but also, and more controversially, in the way the agencies carry out the mandates of those regulations.  Thus, challengers seeking to use the judicial system to point out and rectify what are perceived as misapplication of the regulations, butt up against the reluctance of the courts to question or interfere with the agency’s construction of the regulation or the evidence and its application in carrying out the agency’s order.  In Title II, the Congress has stood the current deferential standard on its head. 

Continue Reading...

FAA Releases New Commercial Drone Regulations, Section 333 Exemption Holders Get "Grandfathered" Compliance Status

Today, the Federal Aviation Administration (“FAA”) announced the finalization of its long-awaited Final Rule governing routine commercial operation of unmanned aircraft systems weighing 55 lbs. or less.  The new 14 C.F.R. Part 107 will become effective 60 days from the date of its publication in the Federal Register, which is likely to happen this week or next.

Below is an explanation of how the new Part 107 will affect entities that have already received a Section 333 exemption, followed by a summary of the new operational requirements and restrictions:
 
Section 333 Exemption Holders Get Best of Both Worlds: “Grandfathered” Compliance Status and the Option to Take Advantage of the New Rules
 
In the Final Rule, the FAA was careful to protect Section 333 exempt entities from the burden of complying with an additional layer of regulations.  Instead, Section 333 exemption holders will be “grandfathered” into compliance, as explained by the FAA below:
 
“The FAA clarifies that current section 333 exemptions that apply to small UAS are excluded from part 107. The FAA has already considered each of these individual operations when it considered their section 333 exemption requests and concluded that these operations do not pose a safety or national security risk.
 
The FAA recognizes, however, that there may be certain instances where part 107 is less restrictive than a section 333 exemption. Therefore, under this rule, a section 333 exemption holder may choose to operate in accordance with part 107 instead of operating under the section 333 exemption. This approach will provide section 333 exemption holders time to obtain a remote pilot certificate and transition to part 107. Operations that would not otherwise fall under part 107 may not take advantage of this option. For example, an operation with a section 333 exemption that does not fall under part 107, such as an operation of a UAS weighing more than 55 pounds, would not have the option of operating in accordance with part 107 rather than with its section 333 exemption.
 
Additionally, when section 333 exemptions come up for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of part 107, which also includes those operations that qualify for a waiver under part 107. The purpose of part 107 is to continue the FAA’s process of integrating UAS into the NAS. If a section 333 exemption is within the operational scope of part 107, there may be no need for the agency to renew an exemption under section 333. Because the FAA’s renewal considerations will be tied to the outstanding section 333 exemptions’ expiration dates, a 3-year transition period is not necessary. This will not affect those section 333 exemptions that are outside of the operational scope of part 107 or where a part 107 waiver would not be considered.”  
(Final Rule, Pages 83-84.)
 
Thus, for Section 333 exemption holders, the result is the best of both worlds.  On the one hand, Section 333 exempt entities are not required to modify their current commercial drone operations to comply with the new regulations.  On the other hand, if a Section 333 exempt entity identifies an opportunity to perform certain operations under less stringent restrictions promulgated in the new Part 107, it may “choose to operate in accordance with part 107 instead of operating under the section 333 exemption.”
 
Here is the FAA’s Summary of the new operational limitations, Pilot in Command and certification responsibilities, and aircraft requirements:
 
 
Continue Reading...

Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 
Continue Reading...

Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate

Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”).  On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services.  The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System.  Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.  

Continue Reading...

Town of East Hampton Explores Limits of Aircraft Noise Regulation

In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  

Continue Reading...

California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government

On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).

More specifically, CARB’s failure to submit constitutes a violation of the general provisions of the Clean Air Act (“CAA”), § 110(a)(2)(D)(i)(I) which requires that CARB submit a SIP revision to comply with the implementation, maintenance and enforcement provisions related to new or revised NAAQS within three years after the promulgation of the revised NAAQS; and that such plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS (“Prong 1”), or interference with maintenance of the NAAQS (“Prong 2”), in any other state.  The final rule implementing the “Finding of Failure” transfers to EPA the obligation to promulgate a Federal Implementation Plan (“FIP”) to address the interstate transport requirements, within 24 months.
 
The issue has come to prominence as a result of the federal/state partnership that is the foundation of the CAA, see 42 U.S.C. § 7401(a)(3) and (4), giving EPA the power of approval over locally developed plans.  
Continue Reading...

FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 
Continue Reading...

FAA Proposes to Increase its Authority Over Off-Airport Development

The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. 

Continue Reading...

EPA Extends Public Comment Period for "Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units"

On March 6, 2014, the Environmental Protection Agency (“EPA”) announced the 60-day extension of the comment period for the January 8, 2014 proposed “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” and the February 26, 2014 notice of data availability soliciting comments on the provisions in the Energy Policy Act of 2005.

Continue Reading...

El Paso County Seeks Control Over Colorado Springs Airport

In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County. 

Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .”  Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest.  December 17, 2013.  The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1.  The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department. 

Therein lies the rub. 
 

Continue Reading...

California Legislators Successful in Obtaining Relief from Helicopter Noise

California Legislators Senator Dianne Feinstein and Representative Adam Schiff of Burbank achieved the seemingly impossible in Congress’ January 14 passage of the $1.012 trillion Omnibus Spending Bill, the Consolidated Appropriations Act, 2014, H.R. 3547 (“Appropriations Act”).  The Appropriations Act contains a provision, § 119D, requiring the Federal Aviation Administration (“FAA”) to achieve reductions in helicopter noise throughout the Los Angeles Basin by 2015.  That section specifies certain voluntary measures, which, if unsuccessful in achieving the desired reductions within one year, must give way to FAA regulations to achieve the stated purposes. 

Specifically, § 119D mandates that:

“The Secretary shall (1) evaluate and adjust existing helicopter routes above Los Angeles, and make adjustments to such routes if the adjustments would lessen impacts on residential areas and noise-sensitive landmarks; (2) analyze whether helicopters could safely fly at higher altitudes in certain areas above Los Angeles County; (3) develop and promote best practices for helicopter hovering and electronic news gathering; (4) conduct outreach to helicopter pilots to inform them of voluntary policies and to increase awareness of noise sensitive areas and events; (5) work with local stakeholders to develop a more comprehensive noise complaint system; and (6) continue to participate in collaborative engagement between community representatives and helicopter operators:  Provided, That not later than one year after enactment of this Act, the Secretary shall begin a regulatory process related to the impact of helicopter use on the quality of life and safety of the people of Los Angeles County unless the Secretary can demonstrate significant progress in undertaking the actions required under the previous proviso.”

Although a seeming triumph for noise impacted communities, the Appropriations Act is neither an unalloyed victory nor does it set a precedent for future legislative initiatives for the following reasons:
 

Continue Reading...

"Silent Skies Act" is a Nobel Effort Unlikely to Succeed

On December 4, 2013, Representative Joseph Crowley of a district in the Bronx and Queens, New York, heavily impacted by operations at LaGuardia Airport, introduced the “Quiet Skies Act” (H.R. 3650).  Supported by a variety of Congresspersons from other similarly impacted districts, the Act requires passenger airlines to replace or retrofit 25% of their fleets every five years until 2035 to meet a “Stage 4” standard, approximately 10 decibels lower than currently approved “Stage 3” engines. 

The conversion mandated by the Act might seem to result in significant relief to populations impacted by frequent overflights of Stage 3 aircraft.  There are, however, at least two conditions significantly vitiating the Act’s impacts. 
 

Continue Reading...

FAA Changes the Rules for National Environmental Policy Act Review

Inspired by Congressional intervention, the Federal Aviation Administration (“FAA”) has begun the process of revising and reorganizing FAA Order 1050.1E, “Environmental Impact: Policies and Procedures” in a new Order, 1050.1F (by the same name).  78 Fed.Reg. 49596-49600 (August 14, 2013).  That in itself would not be particularly notable, except for the importance of the changes that are being made, and their significance for both airport operators and the communities around airports that are the direct recipients of both the disbenefit of the environmental impacts of airport projects, and the potential benefit of the adequate environmental review of those impacts.

The most important of the potential revisions to Order 1050.1E involves FAA’s relief from the burdens of environmental review granted by Congress in the FAA Modernization and Reform Act of 2012, H.R. 658 (112th) (“FMRA”).  Specifically, two legislatively created categorical exclusions are added in 1050.1F, paragraphs 5-6.5q and 5-6.5r, Exemption from NEPA Review which basically give a free pass to changes to air traffic procedures throughout the country.
 

Continue Reading...

FAA Issues Draft Revisions to the Airport Improvement Program Handbook

The Federal Aviation Administration (“FAA”) has published in the Federal Register an “Invitation to Comment on Draft FAA Order 5100-38, Airport Improvement Program Handbook” (“Draft AIP Handbook”). 

The Airport Improvement Program (“AIP”) is an airport grant program, pursuant to Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. (“AAIA”).  The Draft AIP Handbook contains regulations implementing the AIP.  This updated version incorporates substantial changes to the governing statutes, including the recently enacted FAA Modernization and Reform Act of 2012. 

While FAA usually does not solicit comments on what it calls “internal orders” (claiming that the Draft AIP Handbook “contains instructions to FAA employees on implementing the AIP”), FAA recognizes the broad impacts of the Draft AIP Handbook, and the impact on all segments of the airport community of its implementation.  Therefore, FAA is accepting comments until March 18, 2013. 
 

Continue Reading...

FAA Finally Issues Guidance on Plume Hazards to Aircraft from Power Plants - Or Does It?

Responding to the concerns of pilots and the California Energy Commission (“CEC”) regarding the impact of exhaust plumes from power plants on overflying aircraft, the Federal Aviation Administration’s (“FAA”) Airport Obstruction Standard Committee (“AOSC”) completed a Supplement to FAA’s 2006 guidance [“Safety Risk Analysis of Aircraft Overflight of Industrial Exhaust Plumes”].  The purpose of the Supplement is to enhance current FAA regulations which only address standards for the physical height of the smoke stacks, and omit regulation of the impacts of the smoke plume emitted from the stacks, or the emissions contained in them. 

The Supplement is also aimed at obtaining definitive answers to the questions: (1) how much turbulence is created by exhaust plumes; (2) is this turbulence great enough to cause loss of pilot control; (3) if so, what size aircraft are impacted; (4) is there a lack of oxygen causing loss of engine power or danger to pilots/passengers; and, if so, (5) what is the harm to those pilots and passengers?

For two years, from 2008 to 2010, the AOSC conducted a Plume Report Study, which was ultimately determined to need further verification and validation.  In 2011, FAA retained the Federally funded Research and Development Center, operated by Mitre Corporation to answer the questions specified in the earlier Plume Report.  The Mitre Study was completed in September 2012 and verified both FAA’s model and what the earlier FAA reports and studies had concluded.
 

Continue Reading...

FAA Again Changes its Position on "Through-the-Fence" Agreements with Owners of Residential Property

Spurred on by Congress, FAA has issued a proposed policy revising its current position “concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property, when that property is used as a residence.”  77 Fed.Reg. 44515, Monday, July 30, 2012.  FAA’s current position, set forth in its previously published interim policy of March 18, 2011, 76 Fed.Reg. 15028, prohibited new residential “through-the-fence” access to Federally obligated airports. 

The change came in response to Congress’ passage of the FAA Modernization and Reform Act of 2012 (“FMRA”) on February 14, 2012.  Section 136 of FMRA permits general aviation (“GA”) airports, defined by the statute as “a public airport . . . that does not have commercial service or has scheduled service with less than 2,500 passenger boardings each year,” to extend or enter into residential through-the-fence agreements with property owners, or associations representing property owners, under specified conditions.  77 Fed.Reg. 44516.  Sponsors of commercial service airports, however, are treated quite differently. 

Continue Reading...

Make No Mistake: The Supreme Court's Decision on Obamacare Has No Impact on Applicable Aviation and Airport Law

It has come to our attention that a legal colleague has authored a blog analogizing the United States Supreme Court’s recent decision upholding the Obama Administration’s health care legislation (“Obamacare”), National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. ___ (2012), to the Federal statutes preempting state and local control of the regulation of aircraft operations and their free and open access to airports.  The blog attempts to make the case that, because the Court ruled that the Commerce Clause of the United States Constitution does not justify requiring all uninsured Americans to purchase health insurance, so the Commerce Clause somehow cannot justify exclusive Federal regulation of the “safety of navigable airspace,” 49 U.S.C. § 40103(a), and airlines “rates, routes and charges,” 49 U.S.C. § 41713(b)(1).  This analysis not only manifestly misapprehends the clear distinction between the two cases, but can also send a damaging message to those who justifiably seek legally supportable means of controlling airport impacts. 

Continue Reading...

FAA Issues Temporary "Final Rule" for the New York North Shore Helicopter Route

In a surprising climax to the long controversy concerning helicopter flights and attendant noise impacts on the North Shore communities of New York’s Suffolk County, the FAA, on July 6, issued a “Final Rule,” making mandatory the current voluntary flight path for helicopters one mile offshore, but allowing the “Final Rule” to sunset on August 6, 2014, two years from the effective date, “unless the FAA determines a permanent rule is merited.”  The route commences 20 miles northeast of LaGuardia, near Huntington, New York, and remains approximately one mile offshore until reaching Orient Point, near the eastern end of Long Island, with deviations allowed for safety reasons, and to allow helicopters to transit over land to reach their ultimate destinations. 

The FAA discloses that its decision to promulgate the original voluntary rule arose from the numerous complaints of noise from helicopter overflights brought to its attention by Senator Charles Schumer of New York and Representative Tim Bishop of Long Island’s North Shore in October, 2007.  The subsequent mandatory rule apparently resulted from continued political pressure by residents who are “unbearably and negatively” impacted, particularly during the summer months when the number of helicopters, as well as deviations from the voluntary routing, seem to increase dramatically.  The real surprises in the “Final Rule,” however, are FAA’s rationale for: (1) making the route mandatory, a rationale which seems to apply equally to currently voluntarily procedures at other airports; and (2) the Rule’s sunset provision. 
 

Continue Reading...

EPA Adopts Final Rule Further Restricting NOx Emissions from New Aircraft Engines

On June 18, 2012, the Environmental Protection Agency (“EPA”) posted in the Federal Register, Vol. 77, No. 117, 36342, its Final Rule adopting several new aircraft engine emission standards for oxides of nitrogen (“NOx”) for aircraft turbofan or turbojet engines with rated thrusts greater than 26.7 kilonewtons (kN), or in common parlance, commercial passenger and freighter aircraft normally used at airports across the United States.  The rule applies only to the manufacture of new aircraft engines, not to retrofit of existing aircraft engines. 

The EPA’s stated purpose in enacting the new rule is two-fold.  First, NOx is strongly correlated with nitrogen dioxide (“NO2”) which is a “criteria pollutant” under the EPA’s National Ambient Air Quality Standards (“NAAQS”), and is an important precursor gas in the formation of ozone and secondary particulate matter (“PM2.5”) which are common air pollutants in urban areas where airports are often located.  Second, the new rule will bring United States’ emissions standards into consistency with those established by the International Civil Aviation Organization (“ICAO”), see ICAO Annex 16, Vol. II, 2010 that the U.S. helped to develop and supports as part of the international process. 

The rule contains six major provisions.
 

Continue Reading...

FAA Reopens Comment Period on Massive Changes to the Part 16 Adjudication Process

On May 17, 2012, FAA published in the Federal Register a “Notice of Proposed Rulemaking (NPRM); Reopening of Comment Period” for “Rules of Practice for Federally Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” first published in March, 2012.  In plain language, FAA is making substantial changes to the procedures for bringing a challenge to airports’ compliance with FAA grant assurances under 14 C.F.R. Part 16.  “Grant assurances” are those commitments made by airport sponsors in return for receipt of federal funding of airport projects, as required by 49 U.S.C. § 47107.  Any changes in the procedures for enforcing grant assurances are of significant interest not only to the airports, which may benefit from a relaxation in the procedures for challenging their actions, but also to airport users, such as fixed-base operators (“FBO”), airlines, and other airport related businesses.  The proposed changes are broad in scope and purportedly made for the purpose of, among other things, becoming consistent with the Federal Rules of Civil Procedure. 

Continue Reading...

EPA's Proposed Carbon Pollution Standard for New Power Plants Creates Controversy

On March 27, 2012, the Environmental Protection Agency (“EPA”) proposed a Carbon Pollution Standard for New Power Plants (“Carbon Standard”), setting national limits on the amount of carbon pollution power plants built in the future can emit.  The rules are a reaction to the United States Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which, among other things, the Supreme Court held that greenhouse gases, including carbon dioxide (“CO2”) are air pollutants under the Clean Air Act.  EPA was charged by the court with issuing an “endangerment finding,” i.e., a determination that greenhouse gases threaten public health and welfare which was issued on December 15, 2009. 

Immediately upon their initial promulgation, the Carbon Standard generated more contention than power plants generate greenhouse gases.  The Wall Street Journal charged, in an article entitled “Killing Coal,” that “because the putative ‘regulatory impact’ would be zero, there are also no benefits.”  It went on to say that, because the rule would apply not only to new plants but also to every plant upgrade or modification in existing facilities; and because the technology required to meet the standard is still speculative, the EPA’s real goal must be to put a stop to the use of coal in electricity generating. 

The EPA immediately fired back, characterizing the critique of the Carbon Standard in, among others, the Wall Street Journal, as examples of “fact free assault.”  Assistant Administrator Gina McCarthy pointed to the “example” that, in fact, “this standard only applies to new sources – that is power plants that will be constructed in the future.  This standard would never apply to existing power plants.”  Moreover, again pointing to the Wall Street Journal editorial, she stated “the proposed rule explicitly does not apply to facilities making such modifications.  In fact, EPA did not propose a standard for any modifications.”

The proposed Carbon Standard speaks for itself. 

Continue Reading...

EPA Issues "Amendment" to Definition of Condensable Particulate Matter as Regulated New Source Review Pollutant

On Thursday, March 16, 2012, the Environmental Protection Agency (“EPA”) took the almost unprecedented step of publishing in the Federal Register a correction to its prior definition of “regulated new source review pollutant” (“Rule”) contained in two sets of Prevention of Significant Deterioration (“PSD”) regulations, 40 C.F.R. §§ 51.166 and 52.21, and in EPA’s Emissions Offset Interpretative Ruling, 40 C.F.R. Part 51, Appendix S, 77 Fed.Reg. 15,656. The purpose of the revision is to correct an “inadvertent error” dating back to the Rule’s promulgation in 2008 when the then-existing definition was changed to require that particulate matter emissions, both PM10 and PM2.5, representing three separate size ranges of particulates, must include “gaseous emissions, source or activity which condense to form particulate matter at ambient temperatures,” i.e., condensable particulate matter.  See, e.g., 40 C.F.R. § 51.166(b)(49)(vi).  Previously, EPA’s regulations only required the filterable fraction, not the condensable particulate matter, to be considered for new source review purposes.  The 2008 change therefore imposed an unintended new requirement on State and local agencies and the regulated community.

Continue Reading...

The EPA Announces Revisions to the California State Implementation Plan

The U.S. Environmental Protection Agency (EPA) has announced that, unless it receives adverse comments by the close of the comment period on August 13, 2010, it will approve revisions to the California State Implementation Plan (SIP). A SIP is an enforceable plan, developed at the state level and submitted to the EPA for approval, that explains how the state will attain and maintain National Ambient Air Quality Standards (NAAQS) set by the EPA for certain criteria pollutants. The Federal Clean Air Act (CAA) requires each state to develop and regularly update a SIP. SIPs are necessary and important. They play a key role in defining compliance with the CAA. The revisions proposed by the EPA are revisions to the Sacramento Metropolitan Air Quality Management District (SMAQMD) and South Coast Air Quality Management District (SCAQMD) portions of the California SIP. Approval of the revisions will enable California and the EPA to regulate volatile organic compound (VOC) emissions from “vanishing oils, rust inhibitors, plastic coatings, rubber coatings, glass coatings and aerospace operations.”  Information on how to submit comments on-line or by e-mail or by mail is available at http://www.regulations.gov. Comments should contain the docket number EPA-R09-OAR-2010-0514.

EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA's General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.

Continue Reading...

EPA Seeks Public Comment on Aircraft Lead Emissions

On April 21, 2010, the EPA announced that it would seek public comment on data available for evaluating emissions and potential exposure to lead in gas used in piston-engine aircraft.  As the EPA stated:

Emissions of lead from piston-engine aircraft using leaded avgas comprise approximately half of the national inventory of lead emitted to air.  EPA estimates that approximately 14.6 billion gallons of leaded avgas were consumed between 1970 and 2007, emitting approximately 34,000 tons of lead.

The EPA will publish an Advanced Notice of Proposed Rulemaking in the Federal Register which describes the data that are currently available and being collected that would help evaluate health impacts from piston-engine aircraft emissions.  That will start the 60-day public comment period.

The ANPR is one of the steps EPA has taken in response to a petition that Friends of the Earth filed on October 3, 2006 requesting that the Administrator find that aircraft lead emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, and that EPA regulate those emissions.  The EPA had previously issued a Notice requesting public comment on the Petition in November, 2007, ended up not taking any action.

The Aircraft Owners and Pilots Association (AOPA) has long argued that lead is a necessary component of 100 octane leaded aviation gasoline.  For example, two years ago, in response to the Friends of Earth petition, AOPA commented that:

Currently, there is no simple alternative for 100LL avgas.  Any change in the current fuel standard will have a direct impact on the safety of flight and therefore must be fully tested and FAA approved before any operational changes occur.

Thus, it is highly likely that EPA's new push to get the lead out will be met with some resistance again from AOPA.

Wind Farms Run Into Turbulence with the FAA

With the current emphasis on “renewable energy” and sustainability, along with a healthy dose of federal funding, many companies have been developing plans for wind farms to help move this nation from the grip of over-reliance on petroleum products for its energy needs. While barriers to their construction are not new, with wind turbine companies fending off Endangered Species Act lawsuit (endangered bats running into blades) and other environmental issues, the FAA recently raised an additional issue: obstruction to aviation.

On Wednesday, January 6, 2010, the FAA found that 15 of Gamesa’s proposed 30 wind turbines for Shaeffer Mountain in Somerset County, Pennsylvania, exceed “obstruction standards and/or would have an adverse physical or electromagnetic interference effect” on the airspace above the ridge or nearby airports and flight routes. Two days later, on Friday, January 8, 2010, the FAA ruled that one of the two wind turbines proposed for the Dartmouth, Massachusetts owned land is a hazard to air traffic and must be lowered. 

The FAA may have learned its lesson, since back in April, 2008, it was told to go back to the drawing board with its “Does Not Exceed” determinations for a proposed wind farm above a proposed airport just south of Las Vegas in Ivanpah, Nevada. Clark County v. FAAThere, the court determined that the FAA’s findings flew in the data that the 400 ft towers would penetrate the FAA’s 40:1 slope and that 83 turbines would appear as a “fleet of jumbo jets” to the air traffic controllers.

It may be prudent, then, to review the process established by the FAA for determining if an object will be considered to be an “obstruction.”

Notification

Part 77 of the Federal Aviation Regulations (14 C.F.R., Part 77) establishes standards and notification requirements for objects affecting navigable airspace. This notification serves as the basis for:

  • Evaluating the effect of the construction or alteration on operating procedures
  • Determining the potential hazardous effect of the proposed construction on air navigation
  • Identifying mitigating measures to enhance safe air navigation
  • Charting of new objects.

Notification allows the FAA to identify potential aeronautical hazards in advance thus preventing or minimizing the adverse impacts to the safe and efficient use of navigable airspace.

Continue Reading...

EPA Extends Public Comment Period for Effluent Guidelines and New Source Performance Standards for the Airport Deicing Category

On August 28, 2009 (74 FR 44676), EPA published a proposed rule entitled ‘‘Effluent Limitation Guidelines and New Source Performance Standards for the Airport Deicing Category; Proposed Rule.’’ Written comments on the proposed rulemaking were to be submitted to EPA on or before December 28, 2009 (a 120-day public comment period). Since publication, the Agency has received several requests for additional time to submit comments. EPA is extending the public comment period until February 26, 2010.

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.

 

Continue Reading...

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.

Day Four of Waxman-Markey Bill Hearings: Al Gore, John Warner and Newt Gingrich Steal the Show

 The Waxman-Markey Bill (also known as the American Clean Energy and Security Act) hearings ended with a bang, featuring Former Vice President and Nobel Laureate Al Gore, former Senator John Warner and former Speaker of the House Newt Gingrich. The testimony they gave was no surprise, but it underlined the deep divisions that exist, at least at the political level, and the uphill battle that this Bill faces.

Gore's Testimony

Former Vice President Gore was first in the witness chair. He gave his standard (and very effective) stump speech about climate change: the country is at risk on three fronts: economy, national security and climate. He likened the Waxman-Markey bill to a civil rights bill: “the most important of our lives. It is a moral imperative.” He stated that it is an environmental Marshall Plan, which is what he called for (and outlined) in his book “Earth in the Balance.” Gore then started talking about “tipping points,” his belief that the levels of CO2 in the air and other factors that might tip the balance to a point that it is irreparable. He ended his statement with “the USA is the world’s leader. Once we find the courage to take on this issue the world will also act. We need to act.” 

The Climate Change skeptics on the Committee sought to discredit Gore, but were largely unsuccessful. First, Rep. Fred Upton (R.-Mich.) tried to paint Gore as being anti-nuclear. Gore responded that he is not anti-nuclear, it is just his belief that the problems associated with nuclear energy, i.e., waste, accidents, size, fuel sources, weapons issues, are not easily addressed. Rep. Steve Scalise (R.-La.) took a shot at Gore accusing him of conspiring with Ken Lay of Enron for setting up insider trading deals that are contained in the cap-and-trade portion of the Bill. Gore responded with the respect that such a comment deserves: “there are people that still think the moon landing was staged in a Hollywood studio.” Rep. Marsha Blackburn (R.-Tenn.) also attempted an ad hominem attack, asking whether Gore personally profited “from this push towards a cap-and-trade system?” She specifically referred to Gore’s presence on the Board of the firm Kliner Perkins. Gore responded incredulously “are you serious? Do you think I have devoted the past 30 years of my life to this cause just so I could benefit from a bill that is up for debate right now?” In all, the attacks on Gore did not move the skeptic’s agenda forward.

Warner's Testimony

Former Sen. Warner, a Republican from Virginia, who was the co-author of last year’s Warner-Lieberman Bill which covered much of the same ground as this bill, echoed Gore.  Warner stated that “energy independence, global climate change and national security are very interwoven.” Warner recognized that there will be costs to industry and to the people, but that “if we keep on with business as usual, we will reach a point where the worst effects are inevitable.”

Gingrich's Testimony

By contrast, former Speaker of House Newt Gingrich’s testimony focused on his proposal that instead of clean energy, the U.S. ought to expand off-shore drilling, oil shale, oil refineries, “green” coal, and nuclear energy to resolve its energy security issues. Gingrich heightened the rhetoric by calling the EPA economic analysis “intellectually dishonest” in not presenting both sides of the story. This tactic, reminiscent of the debate over evolution, seeks to paint one side as presenting something that is not certain and claiming that that side is not releasing all of the facts. 

The Democrats ripped into Gingrich. Chairman Henry Waxman (D.-Calif.) excoriated Gingrich for using scare tactics and talking in circles, ending by asking “if you are scared to work with us, what are doing here?” Likewise, Rep. Jay Inslee (D.-Wash.) asked Gingrich “you were asked in 2007 if you supported a cap on carbon. You responded ‘frankly, it is something I would strongly support.’ What happened?” Indeed, Gingrich appeared in ads for Gore’s “We” campaign promoting the reduction of greenhouse gas emissions. Gingrich did not have a reply.

Industry and Regulator Testimony

In the afternoon, various industry officials paraded before the Committee to ask for specific changes to the Bill that would benefit their industry and regulators stating that those changes should not be made. For example, Dr.  Dan Sperling from the University of California at Davis stated that the California Air Resources Board voted for a Low Carbon Fuel Standard, and the U.S. should follow California’s lead. On the other hand, Charles Drevna, President of the National Petrochemical and Refiners Association testified that Low Carbon Fuel Standard is redundant, costly and punitive. There were a few good points made, though. Ian Bowles, from the Massachusetts Office of Energy and Environmental Affairs, updated the Committee on Massachusetts’ experience with 100% auctions, concluding that auctions work and they work “brilliantly.”

Click on "Continue Reading" for a Witness List with links to their prepared testimony as well as links to video of the session.

 

Continue Reading...

Day Three of Waxman-Markey Bill Hearings: No Headliners, Just Lots of Talk

On Day Three of the Waxman-Markey Bill (also known as the American Clean Energy and Security Act) hearings, perhaps the best place to begin is with Rep. Edward Markey's (D-Mass) closing remarks, where he asked the panelists "do you think we can construct a cap-and-trade system?"  All of the panelists replied in the affirmative.  This session, without the Administration headliners of yesterday and the Pop culture icons that are scheduled for tomorrow (Al Gore and Newt Gingrich), was noticeably less on point and more meandering.  There were, however, several central themes:  cap-and-trade, Carbon Capture and Storage, and renewable energy.

Cap-and-trade

Although this topic was discussed extensively yesterday, the first panel consisted of representatives of various utility groups and consumer groups.  The electric utilities all seemed to want the same thing:  free allowances instead of having to pay for them at auctions.  They claim that this will allow the utilities to keep their prices down.  There is no surprise there.  The only interesting quote from a Congressman came, once from Rep. Joe Barton (R. Texas), who told the witnesses that "hybrid cars never pay off and American won't drive them unless forced by the government, backed by the Army."  How dead was it in the Committee room?  One report indicated that "the Chairman is reading a paper and only about 3 Reps are paying attention to these guys begging for handouts."

Carbon Capture and Storage/Clean Coal

During the hearings there has been talk about "Carbon Capture and Storage."  Carbon capture and storage (CCS) is an approach to mitigating the contribution of fossil fuel emissions to global warming, based on capturing carbon dioxide (CO2) from large point sources such as fossil fuel power plants and storing it away from the atmosphere.  The utilities and the coal industry believe that CCS is the way to go because it will allow them to go on using coal without producing CO2.  However, the technology is not there yet, and there is a fear that the development of CCS would draw needed dollars away from the development of other sources of energy.  Interestingly, David Hawkins of the Natural Resources Defense Council stated that CCS can happen if it has adequate policy support.

Renewable Energy

On the other hand you have the advocates for "renewable energy."  Although most people think of solar and wind power when they think of renewable energy, there are other sources.  Geothermal energy is one such source.  Dan Reicher of Google (yes, that Google) testified that "engineered geothermal energy potential in Texas could provide 100% of Texas' electricity needs."  Supporters of renewable energy also came from unlikely sources, Jim Robo, President and COO of Florida Power & Light told the Committee that "we've barely begun to tap renewable energy . . . Unchecked climate change will cost us tens of billions of dollars."  This thinking leads to the Waxman-Markey Bill's call for a goal to be set that a certain percentage of energy be from renewable sources.  This has also led to various Representatives to call for the definition of renewable energy to include nuclear energy, biomass, and "clean coal."

In the end, there was a chorus among the last panel, calling for a strong legislation to deal with climate change and energy.   One can hope that the last day of the hearings, with some heavy hitters taking the witness chair, the questioning will be a little more interesting.

Click on "continue reading" for a complete Witness List with links to the witnesses written testimony and links to the video of the Hearing.

Continue Reading...

EPA Finally Issues Endangerment Finding for Six Greenhouse Gases, Including Carbon Dioxide

Over two years ago, on April 2, 2007, the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), directed the EPA Administrator to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.  Finally, after two years and much hand-wringing, EPA Administrator Lisa Jackson issued her proposed finding that carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride may endanger public health or welfare.

In actuality, the EPA proposed two findings:  (1) an endangerment finding, that the six GHG endanger public health and welfare; and (2) a “cause and contribute finding” that the combined emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence add to the threat of climate change.

EPA characterizes its proposed Endangerment Finding as follows:

This is not a close case in which the magnitude of the harm is small and the probability great, or the magnitude large and the probability small. In both magnitude and probability, climate change is an enormous problem. The greenhouse gases that are responsible for it endanger public health and welfare within the meaning of the Clean Air Act.

The EPA, however, was careful to walk a fine line between complying with the dictates of Massachusetts and actually regulating GHG.  While this proposed rule does not actually regulate GHG,  it does propose defining greenhouse gases as “air pollutants” under the Clean Air Act. EPA proposes defining the six GHG as a single pollutant, rather the defining them individually - similar to the approach the EPA took with ozone years ago. EPA explained its decision as follows:

It is the Administrator’s judgment that this collective approach for the contribution test is most consistent with the treatment of greenhouse gases by those studying climate change science and policy, where it has become common practice to evaluate greenhouse gases on a collective CO2-equivalent basis

Although the EPA usually issues emission control standards concurrently with an endangerment finding, in this case, the EPA indicated that the emission standards would be issued “several months from now.”   This bifurcation of the normal process has been taken by observers to mean that these rules are meant to goad the Congress into action, rather than a serious proposal that EPA regulate GHG.  Indeed, the EPA’s Press Release on the Endangerment finding specifically stated that “[n]otwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy.”

And Congressional leadership seems ready to oblige.  Rep. Edward Markey (D.Mass.), Chair of the Energy and Environment Subcommittee, had this to say about the EPA’s Endangerment Ruling:

This decision is a game-changer. It is now no longer a choice between doing a bill or doing nothing. It is now a choice between regulation and legislation. EPA will have to act if Congress does not act.

Markey and Rep. Henry Waxman (D-Calif.) have introduced the American Clean Energy and Security Act of 2009 (ACES) to set up a system for reducing emissions from all sources and creating a financial incentive for companies to stay within emission limits.   See, “U.S. House Energy and Commerce Committee Releases Draft Climate Change Act,” posted April 2, 2009.  Waxman wants to pass the bill from his Energy and Commerce Committee by the end of May, but its fate is uncertain in the Senate.

Aircraft and other aviation sources seem to have received a pass with respect to these regulations:

EPA has received a petition under the Act to consider the regulation of 64 aircraft emissions (water vapor and NOx) that lead to formation of contrails (in addition to aircraft greenhouse gas emissions), and EPA plans to evaluate this issue further. At this time, the Administrator is not proposing to include aircraft-related contrails or emissions that are not greenhouse gases within the definition of air pollution for purposes of section 202(a).

This does not mean, however, that once the emission control standards are promulgated (if they are promulgated), aviation sources will not also be regulated.  Likewise, the Waxman-Markey bill may affect aviation sources as well.

A 60-day comment period will follow publication of the proposed rule in Federal Register, which has not yet occurred.  There will be public hearings in Arlington, Virginia, and Seattle, Washington in May, 2009.   Click on Continue Reading at the bottom of this post for details about written comments and public hearings.

Previous posts on this subject:

Continue Reading...

EPA Proposes National Reporting Rules for Emissions of Greenhouse Gases

On March 10, 2009, the U.S. Environmental Protection Agency issued a news release proposing the first comprehensive national system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States.  Although the EPA has yet determine whether greenhouse gases, such carbon dioxide, are "pollutants" under the Clean Air Act, the EPA has taken this step to gather "comprehensive and accurate data about the production of greenhouse gases."

The EPA stated that the new reporting requirements would apply to suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, as well as large direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year.  The EPA estimates that it will affect approximately 13,00 facilities, which account for about 85% to 90% of greenhouse gases emitted in the United States.  For a listing of the various industries that EPA believes will be affected, see the end of this post.

In order to differentiate it from the mandatory greenhouse gas reporting programs developed by states and regional programs, the EPA will require automobile, truck and engine manufacturers to report emissions from the engines they produce.  The first annual report would be submitted to EPA in 2011 for the calendar year 2010, except for vehicle and engine manufacturers, which would begin reporting for model year 2011.

The proposed rule will be open for public comment for 60 after publication in the Federal Register, which has not yet occurred.  Two public hearings will be held during the comment period.

The Proposed Rule:

Information regarding the public hearing:

Other Information regarding the Proposed Rule:

Continue Reading...

Several Amendments Made to H.R. 915, FAA Reauthorization Act of 2009

On March 4, 2009, Rep. James Oberstar (D. Minn.), the Chairman of the House Transportation and Infrastructure Committee offered several amendments to  H.R. 915, The “FAA Reauthorization Act of 2009."  The following summary of the changes was provided:

Funding of FAA Programs

Revises sections 101, 102, and 104 of H.R. 915 to better align the Federal Aviation Administration’s (“FAA”) Airport Improvement Program (“AIP”) and Facilities & Equipment (“F&E”) funding provisions with the account structure outlined in the FAA’s National Aviation Research Plan. The manager’s amendment moves the Airport Cooperative Research Program and Airports Technology Research funding from the Research, Engineering and Development (“RE&D”) account to the AIP. Similarly, the manager’s amendment shifts funding for the Center for Advanced Aviation System Development from the RE&D account to the F&E account. The manager’s amendment also reduces total funding for RE&D by the same amount as the programs shifted to AIP and F&E.

Authorized Expenditures

Revises section 106(k) to improve safety for medical helicopters by reauthorizing funding for the development and maintenance of approach procedures for heliports that support all-weather, emergency services. This provision was originally included in Title 49 by AIR 21 (P.L. 106-181).

Revises section 106(k) to reauthorize funding for the Alaska aviation safety project with respect to three-dimensional terrain mapping of Alaska’s main aviation corridors for pilot training. This program was originally included in Title 49 by Vision 100 (P.L. 108-176).

Funding for Aviation Programs

Revises section 105 to change the amount initially made available from the Airport and Airway Trust Fund (“Trust Fund”) to support FAA’s budget from 95 percent of the estimated Trust Fund revenues, to 90 percent. This change would provide greater room for error in revenue estimates until the actual level of revenues received for that year is known, and an adjustment is made to reconcile actual amounts deposited to the Trust Fund with actual amounts appropriated from it. Given recent revenue estimates, a 10 percent margin of error is necessary. A year ago, fiscal year (“FY”) 2009 revenues were estimated to be $13.04 billion, but are now estimated to be $11.68 billion, a decrease of approximately 10 percent.

Qualifications-Based Selection

New section 113 requires Qualifications Based Selection (“QBS”) to be used to select planning, architectural and engineering contracts for any airside project funded by Passenger Facility Charges (“PFC”). QBS is an open, competitive procurement process where firms compete on the basis of qualifications, past experience, and the specific expertise they can bring to the project. QBS is currently applicable to planning, architectural, and engineering contracts that utilize AIP funding. Many airports use a mixture of PFC and AIP funds for airside projects.

Solid Waste Recycling Plans

New section 150 requires that airport master plans address the feasibility of solid waste recycling. The Secretary of Transportation may approve a grant for an airport project only if he is satisfied that the airport has a master plan that addresses the feasibility of solid waste recycling at the airport and minimizing the generation of solid waste at the airport. This provision also clarifies that solid waste recycling plans at airports are AIP-eligible by broadening the definition of airport planning.

Personal Net Worth Test for Disadvantage Business Enterprise Programs

New section 137 adjusts the personal net worth (“PNW”) cap for the Disadvantaged Business Enterprise (“DBE”) program as it relates to airport construction projects and airport concessions. To be certified as a DBE (for airport contracting) or an airport concession DBE (“ACDBE”) an individual business owner must be economically disadvantaged. Currently, to be considered economically disadvantaged, a business owner must, among other requirements, have a PNW that does not exceed $750,000, excluding the equity in the individual’s primary residence and the value of their ownership interest in the firm seeking certification. Individuals seeking an ACDBE certification may exclude other assets that the individual can document, which are necessary to obtain financing or a franchise agreement for the initiation or expansion of his or her ACDBE firm (or have in fact been encumbered to support existing financing for the individual's ACDBE business), up to a maximum of $3 million. This provision would adjust the personal net worth cap for inflation for both programs, making an initial adjustment to correct for the impact of inflation since the cap was originally imposed by the Small Business Administration in 1989, and then making annual adjustments thereafter.

Airport Security Program

Revises section 144 of H.R. 915. The manager’s amendment amends 49 U.S.C. 47137 to allow FAA more flexibility to award contracts, cooperative or other agreements in addition to grants, to a consortium composed of public and private persons including an airport sponsor. The provision also reiterates the DOT’s and other agencies’ obligation to cooperate and provide technical expertise as needed to administer the program, while the DOT retains overall program oversight and funding responsibility. The provision specifies that the award designee be a nonprofit consortium with at least ten years of demonstrated experience in testing and evaluating anti-terrorist technologies at airports. The annual authorization for this program is increased from $5 million to $8.5 million. This provision was originally included in Title 49 by AIR 21 (P.L. 106-181) and amended by Vision 100 (P.L. 108-176).

Airport Master Plans

New section 151 requires the Secretary of Transportation (“Secretary”) to encourage airports to consider customer convenience, airport ground access, and access to airport facilities in airport master plans.

Continue Reading...

U.S. House Transportation & Infrastructure Committee Holds Hearings on FAA Reauthorization Bill

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.

Continue Reading...

GAO Reports That FAA's "Voluntary Airport Low Emissions" Program Has Yet To Meet Expectations

The GAO released its Report to Congressional Committees on the FAA's "Voluntary Airport Low Emissions" (VALE) program on November 10, 2008.  Entitled Aviation and the Environment:  Initial Voluntary Low Emissions Program Projects Reduce Emissions, and FAA Plans to Assess the Program's Overall Performance as Participation Increases, the GAO reports on how the VALE has been implemented and the outcomes attributable to it.

In 2003, Congress established VALE to reduce airport ground emissions at commercial service airports in areas failing to meet or maintain air quality standards.  FAA administers the program and provides funding for it through Airport Improvement Program grants or Passenger Facility Charges.  Participating airports receive credits for the emission reductions achieved through VALE projects.  Airports can then use these credits to offset emissions resulting from development projects to comply with federal Clean Air Act requirements.

The GAO reports that as of September, 2008, only 9 of the 160 airports that were eligible had or were planning to initiate a VALE project.  Those airports are:

  • Bush Intercontinental Airport, Houston, TX
  • Hobby Airport, Houston, TX
  • Detroit Metropolitan Airport, Detroit, MI
  • Erie International Airport, Erie, PA
  • Greater Rochester International Airport, Rochester, NY
  • Albany International Airport, Albany, NY
  • Stewart International Airport, Newburgh, NY
  • Westchester County Airport, White Plains, NY
  • Philadelphia International Airport, Philadelphia, PA

Although FAA expects participation in VALE to increase as more airports become familiar with the program, GAO reported that non-participating airports stated they were aware of the program, but did not want to participate.  One reason for the lack of participation is that some airports have a misperception that VALE projects compete with other projects for AIP funding, thereby limiting the funds an airport could receive for other projects.  VALE projects, however, are funded through discretionary AIP set-aside for noise and emission projects.

This is not to say that VALE is not without success. Houston Hobby Airport and Bush Intercontinental Airport have both taken advantage of the program to obtain emission credits for planned construction projects.  Likewise, Philadelphia International Airport plans to use the program to satsify CAA conformity requirements to offset emissions produced in the constructionof its ongoing capacity enhancement project.

Despite the marked lack of participation, FAA seeks to use VALE as a "new model for government efforts to promote clean fuels and technology."  For this reason, the FAA and the GAO point out that EPA is recommending in current proposed revisions to its General Conformity Regulations that the VALE system for granting emissions credits be expanded to all action subject to General Conformity Regulations.

Related articles and documents:

 

Would Re-Regulating Airlines Decrease Their Woes?

Anyone who has recently traveled for business, read the business section of the local newspaper, or watched CNN knows that the airline industry is in dire economic straits.  Pundits typically attribute that weakness to increased fuel prices.  But the reality is that the deterioration began at almost the same time as the passage of the Airline Deregulation Act in 1978 and results from at least two major factors:  (1) predatory competition pitting legacy carriers against startups; and (2) the airlines' flawed business model which depends on "hubbing," an expensive process of concentrating resources in a few locations to aggregate as much demand as possible (versus "point to point" operations, a model used consistently and successfully for the entire period since the advent of deregulation).

The Airline Deregulation Act was Congress' test of the viability of transforming the airline industry, an industry that had, until that time, been considered in the nature of a regulated utility, into a model of the benefits of economic competition.  Specifically, the ADA eliminated Federal control over airline routes and pricing, and prohibited any local or state government from exercising that control.  Its intended purpose was to increase competition thus expanding service and lowering prices to the public.

The fundamental problem with this conversion from utility to free market is that is ignores the fundamental reality that airlines like other transportation industry components have never been able to survive for long without government subsidies.  They are continuously subsidized out of the taxpayers' pockets in at least two ways:  (1) construction and improvement of airports upon which airlines operate are paid for 80-90% by grants from the Federal Aviation Administration ("FAA"), to which development airlines contribute through landing fees and other charges; and (2) in times of economic upheaval such as the aftermath of 9/11, they received direct gifts from the government to keep them afloat.  Until September/October, 2008, when banks began getting Federal government handouts, airlines were among the principal U.S. businesses relying upon such taxpayer largesse.

A debate has now arisen within the airline industry cncerning the wisdom of some form of re-regulatoin.  On the one hand, Robert Crandall, former President of American Airlines, argues, in his article of June 16, 2008, in Aviation Week and Space Technology, that "unfettered competition does not work.  Airlines are more like utilities," and that "a fundamental problem is how the industry prices its product.  The instant perishability of empty seats and the impossibility of quickly reducing fixed costs when demand falters, create a temptation to sell seats too cheaply."  He suggest, among other things, some combination of "modest price regulation," and "capacity controls at congested airports, revised bankruptcy and labor laws, and a more accommodating stance toward industry collaboration."  Id., see also, Aviation Week and Space Technology, October 27, 2008.

On the other hand, those who disagree contend that deregulation should be extended to "completing the move to deregulation in areas as foreign investment [in U.S. airlines] laws, security mandates, bankruptcy reform, and operational restrictions."  Id.

Whichever way it goes in the future, the traveler is being squeezed now.  Aircraft operations are being cut back, services are being eliminated, delays are increasing, baggage incurs additional charges, and, adding insult to injury, travelers are paying "fuel surcharges."  Ironically, however, deregulation has also allowed airlines to consolidate, thus freezing out startups, and raising prices to the public, the opposite of the effect deregulation was supposed to have had.  No one argues that airlines are not an indispensable part of the nation's transportation system.  It is, therefore, clear tha they will have to continue to survice and, hopefully, to thrive.  However, the question raised by Bob Crandall, i.e., whether a heavily subsidized airline industry can survive in the guise of free market enterprises, still hangs in the air.

Related Articles: