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.  
 

On the one hand, Title II, Unmanned Aircraft Systems Reform Act, § 2142, preempts states and other political subdivisions from enacting or enforcing “any law, regulation, or other provision having the force and effect of law relating to . . . operation . . . of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology, requirements, purposes of operation. . .”  Such a broad brush approach appears to entirely displace efforts at the state level, such as proposed SB 868 in California, authorizing the California Department of Transportation (“Caltrans”) “to adopt reasonable rules and regulations governing the conditions under which remote piloted aircraft may be operated for the purpose of protecting and ensuring the general public interest and safety. . .”  SB 868 is set for hearing April 5.  See also, AB 1724 that would require “a person or public or private entity that owns or operates an unmanned aircraft, to place specific identifying information or digitally stored identifying information on the unmanned aircraft.”  

On the other hand, § 2142(b) purports not to preempt state or local authority “to enforce federal, state or local laws relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems” with the caveat that such local enforcement is only allowable “if such laws are not specifically related to the use of an unmanned aircraft system for those illegal acts.”  See also, § 2142(c) proposing to extend the immunity from preemption to “common law or statutory causes of action,” “if such laws are not specifically related to the use of unmanned aircraft systems.”  In other words, it would seem that operators of UAS must comply with existing laws relating to “nuisance, etc.,” but cannot be subject to new laws enacted specifically to govern the misdeeds of UAS.  
 
Finally, Congress seeks to compensate for this resulting regulatory void in other sections of the legislation, although the legislation is perhaps most notable for its exceptions from those regulatory attempts.  For example, in § 2101, Congress articulates a “privacy policy” which mandates that “the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with federal, state, and local law.”  At the same time, Congress put the responsibility for enforcement into the hands of the Federal Trade Commission, and its complex administrative procedures.  See § 2103.  
 
Further, in § 2015, the legislation establishes a convention of industry stakeholders to “facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft.”  However, the impact of that mandate is somewhat diluted by the fact that the FAA will have two years to develop the required identification standards during which time UAS can operate freely and unidentified.  In addition, § 2124 of the legislation establishes “consensus aircraft safety standards” whereby the FAA is mandated to “initiate a collaborative process to develop risk based, consensus industry airworthiness standards related to the safe integration of small unmanned aircraft systems into the national airspace system.”  This section of the FAA Reauthorization is to be codified at § 44803 of the Federal Aviation Act.  However, as with other sections of the legislation, FAA is relieved of its responsibility by a time lapse of one year to “establish a process for the approval of small unmanned aircraft systems make and models based upon safety standards developed under subsection (a).”  Finally, § 2126(b), amending into the Act § 44806, goes even further by granting to the FAA Administrator the power to use his or her discretion to exempt operators from the regulations, thus allowing certain persons to operate unmanned aircraft systems “(1) without an airman certificate; (2) without an airworthiness certificate for the associated unmanned aircraft; or (3) that are not registered with the Federal Aviation Administration.”
 
In short, the breadth of the legislation is too vast to be fully evaluated here.  Suffice it to say, that, given the exclusion of state and local authorities from the arena of drone regulation, and the long delays inherent in the rulemaking set forth in the proposed legislation, it will be some time before cognizable regulations exist to manage the rapidly growing UAS traffic in the United States.  
 

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.  

H.R. 4441 does not directly address the issues of: (1) whether the Federal Aviation Administration (“FAA”) still have the final determination as to whether a change in the ATC System recommended by the corporation is “safe,” or will that determination also be left in private hands; (2) will the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), applicable to the analysis of the environmental impacts of projects sponsored by a federal agency, still apply to changes in the ATC System effectuated by a private corporation; and (3) will federal preemption of local airport noise and access restrictions, conclusively established in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), apply to determinations by a private corporation?  While many questions are left to be clarified, H.R. 4441 does explicitly answer at least one – it provides that federal preemption of local regulation of airline “prices, routes, and service,” originally established in the Airline Deregulation Act of 1978, 49 U.S.C. 41713(b), will remain in place.  Finally, judicial review under the Act is applied differentially, depending on whether a challenge is to FAA’s grant of a proposal, or its denial.  FAA’s approval of a proposal made by the corporation would be subject to the “abuse of discretion” standard, and the deference normally accorded to a governmental entity charged with the administration of a program established by Congress, which is difficult to overcome.  FAA’s denial of such a proposal, however, likely to be challenged only by the corporation, would not be subject to such deference, making the path to a reversal and ultimate approval of the corporation’s recommendations smoother.  

Apparently, the Senate Commerce Committee recognized H.R. 4441’s many unanswered questions, as did the full House of Representatives which has held up approval and caused the House to enact an extension of the FAA’s funding reauthorization to July 15, 2016.  The Senate reacted by passing its version of H.R. 4441 without the privatization provision.  This means that passage of the FAA Reauthorization must wait first until the issue is resolved internally in the House of Representatives.  Even if H.R. 4441 should emerge from the full House including the privatization provision, unless the full Senate should see fit to agree, a Conference Committee will be required and funding for the FAA could be delayed well past the current July 15, 2016 deadline.  
 

City of Burbank Attempts to Strike Deal with FAA for Curfew at Burbank Airport

In what looks like a swap of increased capacity for reduced hours of operation, brokered by Representative Adam Schiff, the City of Burbank has offered the Federal Aviation Administration (“FAA”) a 14 gate replacement terminal at Bob Hope Airport (“Airport”) in return for which the FAA is being asked to approve a mandatory nighttime curfew from 10:00 p.m. to 7:00 a.m.  

What makes this potential deal especially unusual is that in the years since the passage of the Airport Noise and Capacity Act of 1990, 49 U.S.C. §§ 47521-47534 (“ANCA”), the FAA has never agreed to the enactment of a limitation on hours of operation at any airport.  It is true that some airports which had preexisting limitations on hours of operation, such as John Wayne Airport in Orange County, California, were allowed to retain those limitations as exceptions to the constraints of ANCA.  See 49 U.S.C. § 47524(d).  However, as recently as 2009, the FAA maintained its standard position that a mandatory curfew was not reasonable and would “create an undue burden on interstate commerce.”  However, under ANCA, § 47524(c), the FAA has the power to approve a restriction that might otherwise be regarded as violative of the Airport’s contractual obligations to the FAA.  See, e.g., City of Naples Airport Authority v. FAA, 409 F.3d 431 (2005).  Thus, given the quid pro quo of a new 14 gate passenger terminal to enhance passenger access as well aircraft mobility; and the already existing voluntary curfew of the same scope; it is not inconceivable that the FAA may take the hitherto unprecedented step of allowing a mandatory curfew, where none had previously been permitted.  
 
This negotiated outcome would sidestep the failure of Congressman’s Schiff’s efforts to enact a curfew at the federal level which effort made it to the floor of the House of Representatives in 2014 only to be rejected by a margin of four votes.  In the final analysis, the FAA’s willingness even to discuss a curfew may signal a reversal in attitude which could serve the interests of airport impacted communities throughout the nation. 

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.  

Regulations include an 11:00 p.m. to 7:00 a.m. curfew, year round, and 8:00 p.m. to 9:00 a.m., for so-called “noisy” aircraft.  “Noisy” aircraft are defined as aircraft (fixed-wing or helicopter) with Effective Perceived Noise in Decibels (“EPNDB”) approach levels of 91 decibels or greater.  Further, aircraft denominated as “noisy,” will be allowed one take-off and landing per week between May and September.  The Board is scheduled to decide on fines and penalties at its meeting on May 7, 2015.

Not surprisingly, pro-airport groups such as Friends of East Hampton Airport (“Friends”), consisting of, among others, several aviation businesses on the Airport, are displeased with the Board’s decision.  In a graphic demonstration of their disagreement, on April 21, 2015, Friends filed suit in Federal District Court for the Eastern District of New York, challenging the Board’s “authority to promulgate noise or access restrictions that conflict with Federal law and policy.”  Friends base their claim principally on the waiver by the Federal Aviation Administration (“FAA”) of contractual obligations incurred by the Airport when it accepted Federal funding for Airport improvements (“Grant Assurances”).  49 U.S.C. § 47107.  Grant Assurance No. 9, for example, prohibits Airport operators from “discriminat[ing] unjustly between categories and classes of aircraft.”  The FAA, which would normally enforce the Grant Assurances by, among other mechanisms, withholding Federal funds, or even “clawing back” funds already allocated, has apparently agreed that East Hampton’s Grant Assurance obligations expired in 2014.  Friends, on the other hand, take the position that FAA has no authority to waive the Grant Assurances which, by Friends’ calculation, do not expire until 2021.
 
Both sides, however, appear to miss the point.  In 1990, Congress established a higher authority over airport noise and access than even the Grant Assurances, i.e., the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., (“ANCA”).  ANCA gives FAA preemptive authority over the setting of noise levels and imposition of noise and capacity restrictions at airports.  See 49 U.S.C. § 47524(c).  While a limited number of specific exemptions from ANCA do exist, see 49 U.S.C. § 47524(d), the restrictions imposed by East Hampton do not appear to fall within any of those specified exemptions, nor has the Board to date asserted that they do.  Consequently, it further appears that, even if FAA could establish that it properly waived Grant Assurance compliance, the jury remains out as to whether FAA may construe its regulatory function to include an additional waiver of Congress’ express terms and intent as set forth in ANCA, to preempt a “patchwork of local regulations” restricting airport noise and access.

East Hampton Airport Still Subject to FAA Oversight of Noise Restrictions Despite Absence of FAA Funding Constraints

An article of December 23, 2014 in a local East Hampton, New York newspaper, now circulated to a wider audience throughout the nation, gives the impression that, upon expiration of its contractual relationship on January 1, 2015, “East Hampton Town will be free of Federal Aviation Administration oversight and able to set access restrictions at the East Hampton Airport, essentially opening the door for relief from often loud, and sometimes rattling, aircraft noise.”  The article apparently misapprehends, and consequently, vastly overstates the impact of the expiration of the town’s contractual commitments to FAA, in return for funding of airport improvements.  The fact is that, with or without the constraints of such contractual commitments or “grant assurances,” the application of noise and access restrictions will depend entirely upon FAA’s determination concerning the applicability of a parallel set of constraints set forth in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), which, in turn, will depend on the noise levels of the specific types of aircraft the airport wishes to control or eliminate.  

The newspaper article errs in at least two ways.
 

On the one hand, the article fails to grasp that the imposition of FAA’s authority to control noise and access restrictions at any airport does not arise solely out of the constraints of the required grant assurances set forth in 49 U.S.C. § 47107.  Rather, that power is derived from ANCA’s wholly separate statutory provisions.  In fact, the courts have long recognized that  

“On its face, [ANCA] gives the FAA considerably more power than it had when reviewing an airport operator’s Stage 3 restriction at the grant stage.  For one thing, the Stage 3 restriction cannot go into effect without the FAA’s say-so.  For another thing, [ANCA’s] subsection (c)’s requirement of FAA approval is not tied to grants; grants or not, no airport operator can impose a Stage 3 restriction unless the FAA gives its approval.”  

City of Naples Airport Authority v. Federal Aviation Administration, 409 F.3d 431, 432 (D.C. Cir. 2005).  

On the other hand, the newspaper article’s global conclusion fails to articulate the differences in FAA’s authority applicable to aircraft of differing noise levels.  In the case of East Hampton, much of the local unrest arises out of helicopter overflights from John F. Kennedy International Airport (“JFK”) to the beach cities on the far reaches of Long Island, a longtime summer vacation mecca for overcrowded New Yorkers.  Helicopters are generally categorized under 14 C.F.R. Part 36(h)(3) and (4) (“Federal Aviation Regulation” or “FAR”), the ANCA implementing regulations, as no quieter than “Stage 2” noise levels.  FAA’s jurisdiction over the imposition of noise and access restrictions on Stage 2 aircraft, 49 U.S.C. § 47524(b), is substantially less stringent than that applicable to its quieter cousin, Stage 3 aircraft, under 49 U.S.C. § 47524(c).  Restrictions on Stage 3 operations, unlike those on Stage 2 aircraft, including curfews, or restriction on hours of operation, and bans on certain types of aircraft, must be approved by FAA in accordance with six extremely restrictive conditions:  
“(A) the restriction is reasonable, nonarbitrary, and nondiscriminatory;  
 
 (B) the restriction does not create an unreasonable burden on interstate or foreign commerce;  
 
 (C) the restriction is not inconsistent with maintaining the safe and efficient use of the navigable airspace;  
 
 (D) the restriction does not conflict with a law or regulation of the United States;  
 
 (E) an adequate opportunity has been provided for public comment on the restriction; and  
 
 (F) the restriction does not create an unreasonable burden on the national aviation system.”
Therefore, if, as indicated in the newspaper article, the focus of the town’s efforts is the imposition of restrictions on Stage 2 helicopters, it is possible that such a restriction might be implemented where, as here, it is imposed after compliance with the conditions set forth in 49 U.S.C. § 47524(b) including a study of the economic impact of the regulation.  If, however, the airport were to seek a more general set of restrictions, such as curfews and/or bans of certain types of aircraft, encompassing Stage 3 as well as Stage 2 aircraft, as the article implies, then the likelihood of success is slim to none.  In fact, only weeks ago, FAA rejected a restriction on Stage 3 operations between 12:00 midnight and 6:00 a.m. at LAX which had been in effect informally for more than 15 years.  In short, because of the lack of specificity and clarity of this newspaper article, it is ill-advised for any jurisdiction or impacted organization to rely on its discussion as a panacea for its own problems.  
 

FAA Denies LAX Request for Approval of Longtime, "Over-Ocean," Noise Mitigation Measure

In an unexpected turn of events, the Federal Aviation Administration (“FAA”) has denied an application by Los Angeles World Airports (“LAWA”), under 14 C.F.R. Part 161 (“Part 161”), for approval of the nighttime noise mitigation procedure that requires both arrivals and departures to the west and over the Pacific Ocean from 12:00 midnight to 6:00 a.m. (“Application”).  The FAA’s decision was unexpected because the procedure has been in effect on an informal basis for almost 15 years.  LAWA sought FAA approval, pursuant to the requirements of the Airport Noise and Capacity Act of 1990, as amended, 49 U.S.C. § 47521, et seq., (“ANCA”) which requires, among other things, that any restriction on noise or access be approved by FAA or, in the alternative, all the airlines operating at the airport.  In addition, the filing of the Application was required by LAWA’s 2006 settlement with surrounding communities Inglewood, Culver City, El Segundo and the environmental group Alliance for a Regional Solution to Airport Congestion.  

FAA’s denial was based on the Application’s purported noncompliance with three of the six conditions required by ANCA for approval of restrictions on Stage 3, “quieter” aircraft.  These include: (1) the restriction be reasonable, nonarbitrary, and nondiscriminatory; (2) the restriction not create an undue burden on interstate or foreign commerce; (3) the restriction not be inconsistent with maintaining the safe and efficient use of the navigable airspace; (4) the restriction not be in conflict with a law or regulation of the United States; (5) an adequate opportunity be provided for public comment on the restriction; and (6) the restriction not create an undue burden on the national aviation system.  49 U.S.C. § 47524.  
 
FAA’s decision comports with what appears to be its general policy of denying exemptions from ANCA’s stringent restrictions.  

With respect to Condition No. 1, FAA found that LAWA had arbitrarily defined the LAX noise problem as one of night noise associated with departures to the east that do not conform to over-ocean procedures.  FAA found that LAWA’s proposed ban on such departures would benefit less than 0.2% of the population within the defined noise impact area, and, thus, would not contribute to a meaningful solution of LAX’s noise problem, although even that small percentage translates into a substantial number of citizens residing within the dense urban areas to the east of LAX.  

In addition, FAA paid substantial attention to Condition No. 2, and found that LAWA’s required cost/benefit analysis does not demonstrate that the estimated potential benefits of the proposed procedure outweigh the regulatory costs of: (1) the 1.9 million annual lost profits due to compensation paid to passengers required to be offloaded as a result of the restriction; (2) delay of crews from “delayed” aircraft; and (3) the cost of Auxiliary Power Unit operation during offloading “delay.”  
 
Finally, with respect to Condition No. 4, FAA found that LAWA had failed to demonstrate that the proposed restriction does not conflict with existing federal statutes and regulations where the Application does not take into account the effect on the authority of pilots to judge safe operations.  In other words, the FAA views the proposed restriction as a usurpation of pilot discretion.  
 
FAA’s determination to deny any application for a restriction under Part 161 is evidenced by the history of the statute and its implementing regulations under which, in the almost 25 years since ANCA’s passage, and the promulgation of 14 C.F.R. Part 161 implementing ANCA’s provisions, not a single exemption has been granted.  What is unexpected in this case is FAA’s reluctance to sanction an existing procedure, of long duration, and of already proven benefit to affected communities such as Inglewood, located immediately to the east.  The purpose of Part 161, and the integrity of FAA’s interpretation of it, must apparently await another opportunity for resolution.  
 

One Community Gets Relief from Aircraft Noise

In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator.  Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).   

The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport.  The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
 

Since, and partially as a result of, the 1986 settlement and the restrictions it contained, the United States Congress enacted the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521-45733 (“ANCA”).  While ANCA clearly expressed the intent of Congress to preempt the imposition of local airport noise restrictions (“noise policy must be carried out at the national level,” 49 U.S.C. § 47521(3)), it provides two avenues to circumvent that comprehensive preemption.  First, ANCA provides seven express exceptions under which the prohibition on local enactment of airport noise restrictions does not apply.  49 U.S.C. § 47524(d).  The extension of the JWA noise restrictions qualifies under 49 U.S.C. § 47524(d)(4), as “a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety.”   

However, even where an existing or planned local restriction does not fit neatly into any one of the specific categories of exception, ANCA provides for a process whereby a proposed restriction may either: (a) be agreed to by the airport proprietor and all aircraft operators (i.e., airlines); or (b) may be submitted to the Secretary of Transportation, through his/her designee, the Administrator of the Federal Aviation Administration (“FAA”), for approval.  49 U.S.C. § 47524(c).  
 
The standards of review specified in the statute for application by the Secretary are admittedly both vague and draconian.  See, e.g., 49 U.S.C. § 47524(c)(2)(B) [“the restriction does not create an unreasonable burden on interstate or foreign commerce”].  Nevertheless, in some rare instances, such as Los Angeles International Airport’s nighttime over-ocean arrival and departure procedures, which is a local restriction long in effect, and, because of fewer night operations, not uniquely burdensome, the restriction may be able to meet ANCA’s difficult standard.  
 
In short, the currently required process under ANCA, and its implementing regulation, 14 C.F.R. Part 161, for approval of airport noise and access restrictions may not be a guarantee of success, but it is a dramatic illustration of the ancient adage, “if you don’t ask, you don’t get.”
 

"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. 
 

First, new aircraft type designs are already required to meet Stage 4 standards in or after 2006.  70 Fed.Reg. 38742.  Therefore, the legislation duplicates, to some extent, existing mandates.  Second, and perhaps dispositive, is the expected opposition from the legislation’s target, commercial airlines.  The Act requires conversion not merely of new engines, but also of existing aircraft in the fleet.  That, of course, might also require replacement of currently operational and relatively modern aircraft at substantial, even prohibitive expense.  Replacement of the existing fleet is not required by the current rule.  70 Fed.Reg. 38742.  Given the substantial weight wielded by the airline community, it is more than merely likely that the Silent Skies Act will either never reach the floor of the Congress; or will be watered down to a point at which it merely reflects the current rule.

In summary, the responsiveness of the Congresspersons involved is to be commended.  Their efforts would be better spent, however, at a Statement of Congressional Intent directed at influencing the Federal Aviation Administration’s (“FAA”) interpretation and application of the regulations implementing the Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521, et seq., which preempts to the federal government all airport noise and access restrictions at local airports, and which is the primary constraint on new noise restrictions.
 

Cities Challenge Federal Aviation Administration Environmental Assessment for Conversion of Paine/Boeing Field to Commercial Airport

On January 31, 2013, the Cities of Mukilteo and Edmonds, Washington, and concerned citizens and organizations in the vicinity of Paine/Boeing Field, Everett, Washington (“Petitioners”) filed a “Petition for Review of Agency Order,” challenging the adequacy of the Environmental Assessment (“EA”) for the conversion of Paine Field from a proprietary facility to a commercial airport. 

Petitioners’ challenge centers around the limited analysis contained in the EA.  While the projects defined in the EA include the grant of Part 139 Operating Certificates for the airport and two airlines, Horizon and Allegiant, as well as the physical construction of various improvements to the terminal and other facilities, admittedly allowing virtually unlimited commercial aircraft operations, the analysis in the EA is limited to only the first phase of the ultimate project.  It describes the environmental impacts of only a 22,000 square foot addition to the existing terminal, and the projected immediate operations of only the two named airlines, while it also acknowledges that, once a Part 139 Operating Certificate is issued for an airport, the law does not allow any limitation on access by any airline that desires such access.  See, e.g., 49 U.S.C. § 47521, et seq., (“Airport Noise and Capacity Act of 1990”).

Petitioners are represented by Buchalter Nemer, a firm with extensive experience in the fields of airport law, and environmental and land use law related to airport development.
 

Santa Monica Airport Commission Needs to Look Harder at Federal Law in Proposing Aircraft Access Restrictions

While its zeal to protect its citizens from the noise and emissions of aircraft arriving and departing Santa Monica Airport is commendable and understandable, the Santa Monica Airport Commission’s method is questionable.  That is because its recently proposed proportional limitation on aircraft operations (i.e., a limit on future operations at some percent of current operations) appears to be contrary to Federal law.

More specifically, in a Memorandum of on or about August 2, 2012, the Airport Commission proposed a hypothetical restriction whereby “the number of daily operations would be limited to [approximately] 53% of the daily operations from prior years . . . For example, if there were 100 operations on June 6, 2012, then no more than 53 operations would be allowed on June 6, 2013.”  The Vice Chairman of the Airport Commission argues that, because the proposed restriction does not discriminate between aircraft types (as a prior proposed Santa Monica ordinance limiting operations by jet aircraft did), it would withstand judicial scrutiny.  The Commission has apparently forgotten about the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq., (“ANCA”), and its prohibition on the imposition of noise or access restrictions without approval by the Federal Aviation Administration (“FAA”). 
 

In enacting ANCA, Congress found that, among other things, “(2) community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system; [and] (3) a noise policy must be carried out at the national level . . .,” ANCA § 47521(2) and (3).  To implement ANCA’s purpose of creating such a coordinated noise policy at the Federal level, Congress mandated that: “Except as provided in subsection (d) of this section, an airport noise or access restriction on the operation of stage 3 aircraft not in effect on October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation . . .  Restrictions to which this paragraph applies include -- (B) a restriction on the total number of stage 3 aircraft operations; . . . (E) any other restriction on stage 3 aircraft.”  ANCA § 47524(c)(1)(B) and (E).  Restrictions on stage 2 aircraft (the noisiest aircraft in operation in 1990) are easier to enact and require only “(1) an analysis of the anticipated or actual costs and benefits of the existing or proposed restriction; (2) a description of alternative restrictions; (3) a description of the alternative measures considered that do not involve aircraft restrictions; and (4) a comparison of the costs and benefits of the alternative measures to the costs and benefits of the proposed restriction.”  ANCA § 47524(b)(1)-(4).  These restrictions have been interpreted to apply to general, as well as commercial, aircraft.

The Act also mandates that stage 2 aircraft over 75,000 pounds then in operation be phased out by December 31, 1999, and none be added to the fleet (see, e.g., ANCA § 47529) (“Nonaddition rule”).  The only exception to that mandate was a temporary one for stage 2 aircraft under 75,000 pounds (i.e., principally General Aviation).  Even that exception was limited, however, where the Secretary retained the discretion to “conduct a study and decide on the application of section 47524(A)-(D)” to stage 2 aircraft under 75,000 pounds at a later date.  ANCA § 47525.  The Secretary has now made that determination and applied the statute to the previously exempted stage 2 aircraft under 75,000 pounds (most of which have already exceeded their useful lives in any event), in the FAA Modernization and Reform Act of 2012 (“FMRA”). 

In summary, ANCA seems to say that neither Santa Monica nor any other airport can limit the operations of stage 3 aircraft, commercial or general aviation, without Federal approval.  The penalty is loss of FAA funding.  ANCA § 47526.  Granted there is some ambiguity in certain sections of ANCA with respect to applicability to private stage 3 aircraft (see § 47528 [“Prohibition on operating certain aircraft not complying with stage 3 noise levels”]).  Moreover, one or more of the exemptions set forth in ANCA § 47524(d) may apply to Santa Monica Airport.  However, the Airport Commissioners’ Memorandum did not rely upon those potentially applicable exemptions. 

Therefore, despite the Commission’s best intentions, absent an in-depth analysis of ANCA’s applicability not yet in evidence, the Airport Commission’s optimism concerning the sustainability of its proposal, and, ultimately, its ability to withstand administrative and/or judicial scrutiny is in serious question.
 

Local Land Use Restrictions on Hydraulic Fracturing Upheld in Pennsylvania

On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries.  Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’”  Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).  Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas.  Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process.  Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry.  Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).

The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
 

Initially, where local regulation of airports was at issue, aviation interests, like the oil and gas interests in Pennsylvania, claimed that Interstate Commerce was being damaged by a patchwork of local regulation of airport noise and other impacts.  Local authorities responded by calling upon the long tradition of local control of land use within their jurisdictions, including the use of the land by airports.  In response, the United States Supreme Court in City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973) found that there was a need for “a uniform and exclusive system of federal regulation,” Id. at 638-639, to protect Interstate Commerce. 

Despite this benchmark, the court in Burbank, as well as later courts, also upheld a local airport proprietor’s right to impose reasonable, nondiscriminatory regulation on noise and land use to protect itself from liability for adverse noise and safety impacts.  That right was only abrogated 17 years later, not by the Supreme Court, but by Congress’ passage of the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., which effectively preempted any action that might be taken by local jurisdictions or airport sponsors to control the impacts of airports. 

The Pennsylvania court’s decision on fracking in Pennsylvania may face the same fate.  If the Pennsylvania Appellate Court’s decision upholding local zoning withstands the scrutiny of the Pennsylvania State Supreme Court, the potential difference of that high court’s opinion with those of other state high courts will open the way to the United States Supreme Court, and, ultimately, for Congressional intervention, either of which may have the unintended consequence of sealing the fate of local regulation of land use throughout the United States.
 

SCAG's Regional Transportation Plan Falls Down Hard on Aviation Policy

The recently published Southern California Association of Governments (“SCAG”) Draft Regional Transportation Plan 2012-2035, Sustainable Communities Strategy (“Draft RTP”) is a study in contrasts. The Draft RTP is meant to be a roadmap to “increasing mobility for the region’s residents and visitors.” Draft RTP, p. 1. Its “vision” purportedly “encompasses three principles that collectively work as the key to our region’s future: mobility, economy and sustainability.” Draft RTP, p. 1. SCAG’s jurisdiction falls largely into compartments: (1) surface transportation such as roadways and rail; and (2) aviation. SCAG has funding authority over the former, but none over the latter.

The purpose of the Draft RTP is to portray transportation from a broader regional, rather than merely local, perspective. On the one hand, the Draft RTP’s analysis of surface transportation growth estimates, trends and proposed policies for the Southern California Region to the year 2035 contains relatively sophisticated and substantially complete analysis and projections that meet its goals. On the other hand, the Draft RTP’s analysis of aviation trends and policies for meeting airport demand is reminiscent of a high school science project.
 

For example, the Draft RTP anticipates that, after the “urban capacity constrained airports of Los Angeles International (“LAX”), Bob Hope, Long Beach and John Wayne Airports (sic)” all meet their “defined legally allowable or physical capacity constraints,” the remainder of the demand will be served at “suburban airports with ample capacity to serve future demand, including Ontario International, San Bernardino International, March Inland Port, Palmdale Regional, Southern California Logistics and Palm Springs airports.” Draft RTP, p. 58. While SCAG is correct about the availability of unused capacity at Ontario International (“ONT”) (which is at its lowest passenger level since 1987 despite ample facilities including a new, unused, terminal), SCAG is flat wrong in the assumption that: (1) the other named airports actually have usable capacity; and (2) the “remainder of the demand” will automatically be siphoned off to airports more remote than ONT (which is actually an urban airport in the midst of a highly developed and developing Inland Empire). For example, San Bernardino International Airport (“SBIA”), while sporting a new, completely empty, terminal with apparently ample groundside capacity, has serious airspace conflicts with ONT, as well as a $4,000 foot high mountain at the end of its principal runway.

The Draft RTP further opines that “congested airports have an interest in shifting traffic to less congested airports.” Draft RTP, p. 61. No they don’t. Airports earn revenue by, among other things, airline landing fees and concessions revenues like food and parking, which in turn depend on increasing numbers of passengers. The favored (although not always desirable) solution for congested airports is to simply create more capacity which is largely funded by Federal dollars appropriated by the Federal Aviation Administration (“FAA”), with little or no downside to the local operator.

Finally, the Draft RTP opines that “for airports like LAX which has a significant component of international traffic that generates more revenue than domestic flights, it may be more efficient to limit domestic flights that could be accommodated at other airports in the region, thereby freeing up capacity for more lucrative international flights.” Draft RTP, p. 61. As an organization charged with understanding transportation laws and regulations, SCAG should be aware that it is not up to the airport or the local jurisdiction that operates it to “limit domestic flights” or any flights for that matter. “The United States government has exclusive sovereignty of airspace of the United States,” 49 U.S.C. § 40103(a)(1), including the type of aircraft allowed to fly and where they may land. While other laws such as the Airport Noise and Capacity Act of 1990 (49 U.S.C. § 47521, et seq.) circumscribe the Federal government’s preemptive sovereignty to some extent, the local airport operator may only choose to construct, or not to construct, facilities to accommodate aircraft operations. Once such facilities exist, a local operator may not choose between operations based on their ultimate destinations.

In summary, while the Draft RTP’s general conceptual framework, analyzing transportation as a regional and cooperative issue among regional jurisdictions is supportable, the Draft RTP entirely omits from its aviation analysis reference to, or consideration of, the third party with the real power to make a difference in the allocation of regional air transportation resources – the FAA. Without such consideration, the Draft RTP’s aviation policies amount to nothing more than a wish list. The comment period on the Draft RTP extends until February 14, 2012.
 

A New Technological Fix Hopes to Make Airport Noise a "Whisper"

Noise abatement procedures are only effective if they are used. Noise impacted communities are frequently heard to complain that, despite the complex, time consuming and expensive process needed to develop and implement noise abatement procedures at airports, either through the FAA’s Part 150 process, or through other airport specific processes, airlines seem to ignore them. The rationale often provided is that each airline is entitled to develop and implement its own flight procedures, some, but not all of which incorporate the specified noise abatement procedures. This situation was exacerbated in 1990 when the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., took noise abatement policy making out of the hands of local airports and placed approval authority exclusively in the hands of the FAA.

A deceptively simple solution to this pervasive problem of airlines non-uniform observance of airport specific noise abatement policies has been developed by a small, new company in Truckee, California, Whispertrack.
 

The concept behind the Whispertrack system is simple: to “give airports an intuitive, web based tool to manage and update their noise abatement procedures” (Esaassoc.com/Airports, Summer 2011 Aviation Rising), as well as to distribute the various noise abatement procedures to flight crews and aircraft operators throughout the entire national air transportation system.

 

The Whispertrack system distributes noise abatement procedures in much the same way as Instrument Flight Rule procedures are distributed today: through flight planning/dispatch services developed by companies such as Honeywell, Universal, flightplan.com, AIRNAV and others. In essence, Whispertrack establishes a technical process extending across all categories of noise abatement procedure, and is intended to transmit this information universally, so that noise abatement procedures developed painstakingly by cooperative processes between aircraft and airport operators, air traffic controllers, and communities won’t be ignored by failure to integrate them into the normal flight planning system.

Whether Whispertrack will remedy the frequent divergence of aircraft from established noise abatement procedures is yet to be established by the year old process. What is certain is that Whispertrack is a step toward eliminating the “nobody told me” defense that so often accompanies divergence from established noise abatement procedures, observance of which is so heavily relied upon by noise impacted communities.