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

The Federal Aviation Administration today proposed to rescind the congestion management rules for JFK, LaGuardia and Newark that would have created auctions for slots at those airports.  (Click here for the JFK and Newark proposal, click here for the LaGuardia proposal)  Those rules were ardently opposed by the airlines as well as by the Port Authority of New York and New Jersey.  These proposed rules would rescind the previous rules regarding the slot auctions, although it would not rescind the order limiting scheduled operations at the airports to 81 operations per hour.  That order remains in place until October, 2009.

Although the FAA admits that the Congestion Management Rules was "highly controversial," it does not admit that its position with respect to the FAA's intangible property rights to the slots was necessarily wrong.  The FAA states that a series of events led to its decision to rescind the rules.  First, in December, 2008, the United States Court of Appeals for the District of Columbia Circuit issued an order staying the rule. Then, the Omnibus Appropriations Act, 2009, passed on March 11, 2009, contained a provision denying any funds to implement the auctions. Those two setbacks coupled with the souring economy, the FAA realized that "the halt in funding for this fiscal year makes it impossible for the rule to have the 10-year life originally contemplated, even without considering the challenging and widespread change in current economic conditions that led to the adoption of the American Recovery and Reinvestment Act of 2009."  Thus:

 

Because of the complexity of the issues, the uncertainty caused by the Omnibus Appropriations Act, and the possible impact of the significantly changed economic circumstances on the slot auction program, the FAA believes it would be better to rescind the rule rather than propose to extend it.  Rescission would also eliminate the potential for wasting resources of all parties in the pending litigation.

 

Put off for another day, however, is the issue of whether government licenses are property.  The proposed rules simply state that the FAA is "in the process of considering its options with regard to managing congestion at the airport[s] in ways that provide a means for carriers to either commence or expand operations at the airport[s], thereby introducing more competition and service options to benefit the traveling public."  Thus, slot auctions may be off the table for the time being - at least until the the funding restriction of the Omnibus Appropriations Act expires on September 30, 2009 - but the FAA has not yet totally abandoned the idea.

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During July, the Government Accounting Office issued several reports regarding various aviation topics.  One of the topics not covered was the East Coast Airspace Redesign, which was supposed to be issued at the end of July, but now probably will not be issued until the end of August.

Of particular interest was the issuance, on July 15, 2008, of the testimony of Ms. Susan Fleming, the GAO Director of Physical Infrastructure, National Airspace System: DOT and FAA Actions Will Likely Have a Limited Effect on Reducing Delays during Summer 2008 Travel Season given to the U.S. Senate Subcommittee on Aviation Operations, Safety, and Security.  Over the past decade, there has been a steady increase in flight delays and cancellations, such that a delay at O'Hare or Hartsfield would have a ripple effect across the National Airspace System. The DOT estimated that more than one in four flights either arrived late or was canceled in 2007, making it one of the worst years for delays in the last decade. As a result of the East Coast Airspace Redesign, the delays and cancellations evident at the three New York metropolitan commercial passenger airports--Newark Liberty International (Newark), John F. Kennedy International (JFK), and LaGuardia caused the FAA to propose and promulgate several actions in attempt to reduce congestion and delays. 

Ms. Fleming's testimony addresses (1) the trends in the extent and principal sources of flight delays and cancellations over the last 10 years, (2) the status of federal government actions to reduce flight delays and cancellations, and (3) the extent to which these actions may reduce delays and cancellations for the summer 2008 travel season. This statement is based on an analysis of DOT data on airline on-time performance, a review of relevant documents and reports, and interviews with officials from DOT, FAA, airport operators, and airlines, as well as aviation industry experts and associations. DOT and FAA provided technical comments which were incorporated as appropriate.

Of particular interest is the fact that Ms. Fleming's testimony states that "to reduce delays and congestion beginning in summer 2008, DOT and FAA are implementing several actions that for the purposes of this review GAO is characterizing as capacity-enhancing initiatives and demand management policies." Some of these actions are already in effect, such as 11 of the 17 short-term initiatives designed to improve capacity at the airport or system level and the hourly schedule caps on operations at the New York area airports.  

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The Federal Aviation Administration’s recent paroxysm of safety concern-- forcing airlines to immediately cancel thousands of MD-80 flights because of a 1/4 inch deviation in the location of an electrical bundle in the wheel well -- reveals at least two “inconvenient truths”: (1) despite it repeated use of the safety rationale to justify repeated violations of Congressional mandates such as compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and the Clean Air Act, 42 U.S.C. 7401 et.seq., the FAA has long been neglecting its primary responsibility of ensuring the safety of airline travel; and (2) FAA is willing to sacrifice the welfare and convenience of air travelers and even the sacrosanct protection of  Interstate Commerce ensured by the Bill of Rights to cover up its own past non-feasance.

Whenever FAA wants to approve an airport development project, or, more recently, an airspace redesign, despite those projects patent potential for creating significant environmental impacts, FAA falls back on the time worn mantra of its safety mandate. This is happening even now in the FAA’s sponsorship of a relocation of Runway 24R, the northern most runway  at Los Angeles International Airport, much closer to surrounding communities, with concomitantly increased adverse noise and air quality impacts, and even though other reasonable and patently safe alternatives exist.

Despite the FAA’s lip service to safety, FAA has apparently been giving short shrift to it in practice.  Even though its directive requiring inspection of MD-80s’ purported  wiring problem was issued in 2006, FAA did nothing to ensure compliance until last week, when 2 FAA safety inspectors/whistle blowers revealed FAA’s cavalier attitude toward safety to a Congressional committee.

Overnight, FAA changed its stripes.  Instead of allowing aircraft to be inspected in groups, over time, FAA required that they be instantly taken off-line for inspection; and if so much as a 1/4 inch deviation was found, taken off-line immediately for repair. Sounds good, except that hundreds of thousands of paying passengers have been delayed and displaced, through no fault of their own and at great cost to them in terms of time and money expended for overnight accommodations, food, and even additional costs of seats on other airlines, victims of the FAA’s new-found sense of responsibility.

In short, if those aircraft were dangerous, the FAA knew it, and  the planes should have been taken out of service two years ago when FAA first found out about the problem.  If  the planes are not dangerous, a reasoned, gradual approach to inspection and repair would have been appropriate.  Instead of those rational alternatives, FAA chose a path that does not remedy its nonfeasance, but, rather, calls it to the attention of the public, and , hopefully to their Congressional overseers.

Please be sure to tell your Congressman and the Committee Chairs how you feel.  The Chair of the Commerce, Science and Transportation Committee is Sen. Daniel K. Inouye (dinouye@senate.gov) and the Chair of the Aviation Operations, Safety and Security is Sen. John D. Rockefeller IV (jrockefeller@senate.gov).  On the House side, Rep. James L. Oberstar (joberstar@house.gov) is the Chair of the Transportation and Infrastructure Committee and Rep. Jerry F. Costello (jcostello@house.gov) is the Chair of the Aviation Subcommittee.

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