City of East Hampton May Be "A Day Late and a Dollar Short" in Challenging the Airport Noise and Capacity Act

The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
 

Although its spokesman, Town Supervisor Larry Cantwell, asserts that “with the stroke of a pen, the Appeals Court decision has federalized our airport and stripped us – and the thousands of similarly situated airports – of the ability to exert local control,” in fact, the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”), containing those prohibitions did that long ago.  ANCA was originally enacted in 1990 for the express purpose of protecting against “uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system.”  49 U.S.C. § 47521(2).  It was not, therefore, the Second Circuit, but rather the United States Congress, that preempted local control of airport noise.  

East Hampton, in the long run, therefore, will have only two options for the imposition of the desired curfew.  The first, the agreement with all aircraft operators has apparently already been unsuccessful. The second is the submission of an application to the Secretary of Transportation, the format for which is set forth in 14 C.F.R. Part 161.  That option is both financially onerous and time consuming.  More ominous, no such Part 161 submission has been approved by the Federal Aviation Administration (“FAA”) in the 25 years that the regulation has existed.  
 
In short, the Supreme Court is unlikely to insert itself between the Congress and the local airport proprietor, especially where, as here, the rules are explicitly set forth in ANCA, and the only debate is over the facts (e.g., whether airport operators were sufficiently informed of the East Hampton Airport’s intent, and, in fact, concurred with it).  East Hampton would, therefore, be better served to devote its time and resources to the uphill battle of developing a Part 161 application, and making it defensible enough to be first of its kind in 25 years approved by the FAA.  
 

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. 

In an apparent attempt to reduce the power of federal agencies, Congress has rejected the Supreme Court’s construct in Chevron and replaced the currently awarded deference with a charge to the courts to 

“decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law.”
Title II, § 202.
 
As a consequence, the courts will have to independently explore the meaning and applicability of, as well as the agency’s compliance with, applicable laws and rules, based on the facts adduced in the case.  This change is momentous because it levels the playing field in an arena that has, traditionally, been dramatically tipped in favor of governmental agencies’ interpretation and implementation of regulations.  
 
In summary, the legislative process has not yet run its course.  It is of course possible that H.R. 5 will be gutted and Title II deleted.  However, given the composition and disposition of the current Congress, it is likely that the Separation of Powers Restoration Act will be the reality in the arena of challenges to governmental rulemaking in the very near future.   
 

City of Santa Monica on Track for Confrontation with Federal Aviation Administration

Predictably, the Federal Aviation Administration (“FAA”) has weighed in strongly in opposition to the City of Santa Monica’s (“City”) plan to close the Santa Monica Airport (“Airport”) within the next two years.  The City, owner and operator of the Airport, plans to begin the process of closure, including cancellation and/or modification of leases held by various aeronautical service providers, such as providers of fuel, maintenance and hangar storage.  Those Airport incumbents are already paying rent on a month-to-month basis, subject to summary eviction. 

 

The apparent basis of Santa Monica’s position is that: (1) its obligation to maintain the airport is based solely on the terms of its contract with FAA for the provision of funding; and (2) according to its terms, that contract expires 20 years after the FAA’s last grant of funding.
 
The FAA’s position, obviously, differs dramatically.  The agency claims that, according to the terms of a $240,000 federal grant to the City in 2003, the City is obligated to keep the Airport open until at least 2023, see, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  Moreover, the FAA asserts that, under the terms of the transfer agreement governing the transfer of the airport property from the military back to the City after World War II, the City is obligated to keep the Airport open in perpetuity.
 

FAA’s position is not unanticipated, as we pointed out in our blog of February 20, 2014.  In the first instance, it is common knowledge among airport operators that the United States Congress has attached to the acceptance of federal funds responsibilities to consumers of the improvements made with those funds.  See, e.g., 49 U.S.C. § 47107(a)(1)-(6), implemented by Grant Assurance 22 which requires, in turn, that the operator of a federally obligated airport “make [its] airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.” See R-T 182, LLC v. Federal Aviation Administration, 519 F.3d 307, 309 (6th Cir. 2008).   

Moreover, while federal fund obligations normally last for the useful life of the facilities, or 20 years, after the grant of the funding, there are notable exceptions.  In addition to the exception that requires that real property purchased with federal funds be used for airport purposes in perpetuity, FAA Order 5190.6B, Chapter 4, §§ 4.6.h(2), there is also the parallel requirement that property transferred from the military pursuant to a surplus property agreement also be used for airport purposes indefinitely.  Both of these conditions apply in the case of the Airport, and both moot the “20 year” escape route relied upon by the City.  
 
Finally, the City plans to oppose, through legal action, FAA’s determination to stop the closure.  The City may be disappointed, however, when it arrives as it plans to do, in Federal District Court.  This is because the United States Congress, in the Federal Aviation Act, 49 U.S.C. § 40101, et seq., requires that any challenge to an FAA order be brought in a Federal Circuit Court of Appeals, either the Circuit in which the project is located, in this case the Ninth Circuit, or in the D.C. Circuit Court of Appeals.  See 49 U.S.C. § 46110(a).  Doubtlessly, City will argue that FAA’s effort to stop the closure is not the sort of agency action that falls within the strictures of that section of the statute.  That contest is inevitable, but the outcome for Santa Monica Airport is far from certain.  Stay tuned. 

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:
 
 
New Operational Limitations under Part 107:
  • Unmanned aircraft must weigh less than 55 lbs. (25 kg). 
  • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer. 
  • At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. 
  • Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle. 
  • Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting. 
  • Must yield right of way to other aircraft. 
  • May use visual observer (VO) but not required. 
  • First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways. 
  • Maximum groundspeed of 100 mph (87 knots). 
  • Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure. 
  • Minimum weather visibility of 3 miles from control station. 
  • Operations in Class B, C, D and E airspace are allowed with the required ATC permission. 
  • Operations in Class G airspace are allowed without ATC permission. 
  • No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time. 
  • No operations from a moving aircraft. 
  • No operations from a moving vehicle unless the operation is over a sparsely populated area. 
  • No careless or reckless operations. 
  • No carriage of hazardous materials.
  • Requires preflight inspection by the remote pilot in command. 
  • A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. 
  • Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375. 
  • External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft. 
  • Transportation of property for compensation or hire allowed provided that- o The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total; 
    • The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and 
    • The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession. 
  • Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver.
 
New Remote Pilot in Command Certification and Responsibilities under Part 107
 
  • Establishes a remote pilot in command position. 
  • A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command). 
  • To qualify for a remote pilot certificate, a person must: 
    • Demonstrate aeronautical knowledge by either: 
      • Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or 
      • Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA. 
  • Be vetted by the Transportation Security Administration. 
  • Be at least 16 years old. 
  • Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application. 
  • Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating.
A remote pilot in command must: 
 
  • Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule. 
  • Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500. 
  • Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation. 
  • Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2). 
A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency.
 
The finalization of the new rule marks the most significant step to date toward the implementation of the federal government’s plan to integrate safe commercial drone operations into the national airspace system.  Check in here for updates on the implementation of Part 107 in the coming months.

Congressional Stalemate Persists over Air Traffic Control Privatization as FAA Reauthorization Deadline Approaches

The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
 
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 
 

Namely, it would not privatize Air Traffic Control.  In the House of Representatives, the pending Aviation Innovation, Reform, and Reauthorization Act of 2016 would completely overhaul domestic Air Traffic Control operations by moving the operations out of the FAA to a non-profit corporation. If successful, the House bill would place approximately 38,000 Air Traffic Control employees, and the management of the safest national airspace system in the world, in the hands of a private corporation.  

Though the Senate and House bills share many commonalities, each passing day without congressional consensus brings mounting fears that the current efforts to modernize American aviation will devolve into an endless string of short-term extensions. The July 15 deadline has industry insiders calling for the House to adopt the Senate’s more measured approach to reauthorization and to table the Air Traffic Control overhaul until 2017.  

New Airport Legislation Targets TSA Wait Times by Redirecting $15.8 Billion and Increasing Efficiency Measures

Airports and airlines across the nation last week welcomed the introduction of two bills aimed at alleviating mounting congestion in airport security lines by increasing TSA efficiency and reallocating billions of dollars in security fees paid by passengers.
 
The FASTER Act (H.R. 5340) is aimed at ensuring passenger security fees are used for aviation security, according to a statement released last week by Rep. Peter DeFazio, Ranking Member of the Transportation and Infrastructure Committee.  Since 2013, the federal government has diverted billions in funds collected from the 9/11 Passenger Security Fee away from aviation and into general government spending.  “At airports across the country, people are forced to wait in long security lines like cattle, causing many to miss their flight,” said DeFazio.  “To add insult to injury, funding to help fix the wait times exists – it’s just being diverted. I doubt most passengers know that a portion of the security fee they pay with every flight is being used for other purposes.  With peak travel season starting this weekend, Congress needs to direct all of the designated funds towards the intended purpose in order to improve the efficiency of airport screening and keep passengers safe.”
 
A second piece of legislation, introduced last week by Homeland Security Subcommittee on Transportation Security Chairman John Katki (R-NY), named the bipartisan Optimization and Efficiency Act of 2016, is aimed at reducing long airport security lines by efficiently reallocating TSA staffing and resources.  “Travelers are frustrated with TSA’s bureaucracy – facing longer lines, and in some cases, missing flights and having to return home or stay overnight in the airport,” said Representative Katko in a statement.  “This is a crisis that must be addressed before we head into the busy summer months of travel.  Today, I’ve introduced legislation which takes the first step in requiring greater coordination between the TSA and local airports so that we can relieve congestion and ensure that travelers are able to make it to their destinations on schedule.”
 
The new bills were introduced amidst a flurry of requests last week by Homeland Security seeking Congressional reallocation of over $60 million to TSA for the expedited hiring of screeners and overtime pay for current security staff.
 
Though these new measures were received with applause by the vast majority of the aviation industry, it remains to be seen whether the effects of additional funding and increased efficiency will be realized in time for the fast-approaching summer travel season.

Senate Monitors FAA Airspace Changes Through New Advisory Committee

The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment.  Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.   

The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown.  Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  The City of Phoenix instituted a two-prong approach in disputing this determination.  It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.  
 
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
 

For one thing, the legislation calls only for the establishment of an “advisory committee” to:

 (1) Review practices and procedures of the FAA with regard to “airspace [changes] that affect airport operations, airport capacity, the environment for communities in the vicinity of airports;” including
 
(A) An assessment of whether there is sufficient consultation between various FAA offices involved in the changes; and
 
(B) Between FAA and affected entities including “airports, aircraft operators, communities, and state and local governments;”
 
(2) Recommend revisions to procedures;
 
(3) Conduct a review of FAA data systems used to evaluate obstructions to air navigation, as defined in 14 C.F.R. Part 77; and
 
(4) Ensure that the data described in section 3 is made publicly accessible.  
 
The aims of the legislation may be virtuous, but the procedures used to achieve those ends may be viewed with a grain of salt.  Specifically, the “advisory committee” mandated by the legislation is composed of: (1) air carriers; (2) general aviation, including business aviation and fixed-wing aircraft and rotorcraft; (3) airports of various sizes and types; (4) air traffic controllers; and (5) state aviation officials, section 2506(c), but does not include any representative of an “affected community,” the very constituency the legislation’s purpose is to assist.  The result is that the interests of those communities will be represented by surrogates, many of whom have interests directly antithetical to those of the communities.  What can be said is that the legislation is a good start at making the FAA more accountable for its decisions with regard to airspace changes.  What is needed now is a next step, perhaps in an amendment to the existing legislation, bringing the affected communities actively into the conversation.  

 

Senate Bill Approves Package Delivery by Drone

On April 19, 2016, the full Senate of the United States passed the “Federal Aviation Administration Reauthorization Act of 2016” (“FAA Act”), which had been previously passed by the full House of Representatives in February, 2016.  The FAA Act contains several notable provisions, the first of which, Section 2142, regarding federal preemption of local drone regulations, was approved by the Senate Commerce, Science and Transportation Committee on March 17, 2016, and reported in this publication on March 31.  

The FAA Act, as finally approved by the Senate, devotes substantial additional space to unmanned aircraft systems (“UAS”), and, most notably for this purpose, Section 2141, “Carriage of Property by Small Unmanned Aircraft Systems for Compensation or Hire.”  (Section 2141 will be codified in the main body of the legislation at Section 44812.)  That provision was clearly authored by Amazon, which has made considerable noise about the capability of UAS to deliver its products expeditiously and at low cost.  The FAA Act gives the Secretary of Transportation two years to issue a final rule authorizing the carrying of property by operations of small UAS within the United States.  
 
The requirement for the contents of the final rule is, however, clearly specified in the Act.  
 

First, each carrier of property will be required to obtain a “Small Unmanned Aircraft System Air Carrier Certificate” which must include:  

A. Consideration the unique characteristics of highly automated unmanned aircraft systems; and
 
B. Minimum requirements for safe operations, including
 
(i) Confirmation of airworthiness;
 
(ii) Qualifications of operators; and
 
(iii) Operating specifications.
 
In addition, the FAA Act requires a process for issuance “that is performance based and ensures required safety levels are met.”  Section 44812(b)(2).  Specifically, the Bill requires the certification process to consider:
 
A. The safety risks of operating UAS around other UAS and over persons and property on the ground;
 
B. Competencies and compliance” of manufacturers, operators, and parts manufacturers of UAS; and
 
C. Compliance with requirements established in other sections of the legislation.
 
Finally, the legislation establishes a “small unmanned aircraft system air carrier classification” to “establish economic authority for the carriage of property,” Section 44812(b)(3), which only requires registration with the Department of Transportation, and a valid Small Unmanned Aircraft System Air Carrier Certificate issued pursuant to the legislation.  
 
Clearly, there is much more involved in assessing the readiness of UAS to transport packages over inhabited areas.  Only the final rule will reveal the full scope of the regulation that may be necessary to monitor and control a proliferating industry. 
 

 

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. 

Los Angeles City Council at Long Last Agrees to Transfer Ontario International Airport to the City of Ontario and Ontario International Airport Authority

In an anticipated, but no less surprising move, the City Council of the City of Los Angeles (“Los Angeles”) agreed to transfer Ontario International Airport (“ONT”), currently owned and operated by Los Angeles, to the Ontario International Airport Authority (“OIAA”) and its members which include the City of Ontario (“Ontario”).  The transfer occurs in settlement of a currently pending lawsuit in the Riverside County Superior Court in which Ontario, the OIAA, and other parties challenged the legal right of Los Angeles to ownership and operation of ONT.  

 
The major provisions of the Settlement Agreement include the following:
 

(1) An immediate release of all of Ontario’s damage claims that were the subject of the litigation in the Riverside Superior Court;

(2) Upon satisfaction of certain conditions, including payment of certain bonds to Los Angeles World Airports (“LAWA”), the Los Angeles agency that operates its various airports, and approval by the Federal Aviation Administration (“FAA”), ONT will be transferred to the OIAA;

(3) If the FAA approves the transfer of ONT, the following payments must be made to LAWA before ONT is transferred:

(a) Reimbursement to Los Angeles of all outstanding ONT bonds, currently approximately $60 million;

(b) Payment by OIAA to Los Angeles of $30 million in cash;

(c) Transfer by LAWA of $40 million from ONT’s unrestricted cash accounts to the cash account for Los Angeles International Airport (“LAX”);

(4) After transfer of ONT, the OIAA will make the following additional payments to LAWA:

(a) No later than five years after transfer, OIAA will pay LAWA $50 million;

(b) No later than ten years after transfer, OIAA will pay LAWA an additional $70 million;

(5) OIAA must provide commercially reasonable assurances of these post-transfer payments before ONT is transferred;

(6) The Settlement Agreement’s Appendix F provides protections for LAWA and other ONT employees;

(7) When the transfer is completed, the pending litigation will be dismissed with prejudice.  

 
Clearly, there are hurdles of be crossed before the transfer is complete, not the least of which is obtaining approval from the FAA.  As FAA has provided most of the funding for the development of ONT, it has a “dog in the fight” with respect to the potential operator.  The transaction is made even more complex by its uniqueness.  While Los Angeles and Ontario are currently members of a Joint Powers Agency that has operated ONT nominally, it has been Los Angeles that has been directing the development and operation of ONT for the past 20 years.  Moreover, the transfer of an operating airport is almost unheard of in the annals of airport operation throughout the nation.  In the final analysis, only time will tell if the transaction will gain FAA approval and all the benchmarks to enforcement of the Settlement Agreement achieved.  

 

Airlines Will Be Affected by New Federal Ozone Standards

On October 1, 2015, the United States Environmental Protection Agency (“EPA”) adopted stricter regulation on ozone emissions that will fall heavily on California, and most particularly on the transportation sector, including airlines.  The new standard strengthens limits on ground level ozone to 70 parts per billion (“PPB”), down from 75 PPB adopted in 2008.  The EPA’s action arises from the mandate of the Clean Air Act (“CAA”), from which the EPA derives its regulatory powers, 42 U.S.C. § 7409(a)(1), and which requires that pollution levels be set so as to protect public health with an “adequate margin of safety.  42 U.S.C. § 7409(b).  

The change has inspired significant controversy throughout the country, but most particularly in Southern California which purportedly has the nation’s worst air quality and has already failed to meet previous ozone standards.  The issues arise out of the likelihood that the new standards will require steep emissions cuts falling most heavily on the transportation sector including trains, trucks, ships and, not least, aircraft.  

On the one hand, representatives of manufacturers and of the transportation industry such as the National Association of Manufacturers take the position that the higher level of restrictions “inflict pain on companies that build things in America.”  Supporting this position is the reality that the new ozone limits cannot be attained in Southern California without tougher emissions standards for, among other things, aircraft engines.  The standards for aircraft engines are, however, solely within the combined jurisdiction of the Federal Aviation Administration (“FAA”) and EPA, 42 U.S.C. § 7571(a)(2)(B)(i), and, thus, are outside the jurisdiction of local agencies such as the Southern California Air Quality Management District (“SCAQMD”).  Nor is the EPA tasked with considering costs when establishing ozone and other limits, but can factor in costs which determining the way in which states carry out the rules. 

On the other side of the argument, environmentalists, who were hoping for an even more restrictive standard of 60 PPB, point out that, during the almost five decades that ozone limits have been in effect, air pollution has declined by 70% while gross domestic product has increased threefold.
 
The bottom line is that, ultimately, the responsibility for compliance by aircraft engine manufacturers belongs jointly to the FAA and EPA, but the responsibility for the as yet uncalculated costs, as well as the timeframes required for compliance, belong solely to the manufacturers.  The verdict is still out as to the potential cost to the public health if the prescribed limits were not to be implemented.  

Culver City and Inglewood Weigh in on SoCal Metroplex Project

On September 8 and October 8, 2015, the Cities of Culver City and Inglewood, California, filed original and supplemental comments, respectively, with the Federal Aviation Administration (“FAA”) concerning the adequacy of its Draft Environmental Assessment (“DEA”) for the Southern California Metroplex (“SoCal Metroplex”) Optimization of Airspace and Procedures in the Metroplex (“OAPM”) (“Project”).  The OAPM is one in a long line of airspace redesigns being implemented by FAA throughout the nation, for the purpose of narrowing the flight paths of approach and departure procedures around airports to facilitate use of satellite, rather than ground based, navigation, and thereby save fuel for the airlines.  The critical problem, as set forth in the attached comments, is that FAA failed to fully evaluate the noise, air quality and other impacts of these changes on communities surrounding airports.  

There is no set date, as yet, for the issuance of a Final Environmental Assessment, responding to the comments made on the DEA.  When that occurs, comments by interested parties are both important informationally and necessary in the event of further legal challenge.  

FAA Administrator Announces New "Compliance Philosophy" for the Agency

In a somewhat ambiguous announcement, Administrator of the Federal Aviation Administration (“FAA”), Michael Huerta, announced a “new” safety philosophy for the FAA.  Articulated in a speech last week to the Flight Safety Foundation in Washington, D.C., that “new” philosophy purportedly “challenges the status quo” by focusing on prevention, i.e., “finding problems in the national airspace system before they result in an incident or accident.”  Where problems do occur, the FAA foresees “using tools like training or documented improvements to procedures to ensure compliance.”  

Those would be noble goals if the public were not under the current impression that the FAA’s primary mandate of promoting safety of air transportation were not already being carried out with a primary emphasis on prevention.  What is, perhaps, more surprising is that the “new” philosophy is meant not merely to prevent accidents, but also to “prevent” operators (read “airlines”) from “hiding inadvertent mistakes because they are afraid of punishment.”  
 

The “new” policy is purportedly derived from 10 years of contemplation by the Commercial Aviation Safety Team (“CAST”), and is aimed at an allegedly “new” focus on preemption, i.e., finding a problem, fixing a problem, and making sure it stays fixed.  For those citizens who assume that FAA was already using “critical thinking to work smarter and more efficiently to get to the bottom of safety problems,” the announcement was somewhat troubling.  The FAA never misses an opportunity to justify airspace changes over established communities on the grounds of its primary responsibility for promoting safety in the national airspace system.  With this announcement, FAA has admitted that it has not, in fact, engaged in forethought on safety issues, but has, instead, focused on “intentional reckless behavior, inappropriate risk taking, repeated failures, falsification, failure to fulfill commitments, or deviation from regulatory standards.”  Presumably, the FAA will now focus on fulfilling its full statutory mission of anticipating safety problems as well as belatedly punishing them.  

 
 

NTSB Faults FAA in Private Spacecraft Investigation

In a strange twist on the normal relationship between federal regulatory agencies, the National Transportation Safety Board (“NTSB”) has found the Federal Aviation Administration (“FAA”) a primary culprit in the October 31, 2014 disastrous test flight of Virgin Galactic’s SpaceShipTwo, in which one of the two pilots was killed, and debris was spread over a 33 mile area in San Bernardino County, northeast of Los Angeles.  

 
The issue appears to be the grant of a waiver by FAA from the existing rules governing safety of interplanetary vehicles, despite FAA’s own safety consultant’s warning that Virgin Galactic was violating those rules.  The claim is that, while Congress did not delegate to FAA the authority to implement regulations as stringent as those applicable to commercial aircraft, FAA managers specifically ignored the repeated advice of safety engineers that Virgin Galactic had not fully complied with the regulations that do exist.  Specifically, FAA safety personnel claim that FAA managers based their decision to grant the waiver on the remoteness of the Town of Mojave where the aircraft’s launch company, Scaled, is based, and on the surrounding area where the company planned its test flights.  
 
In the end, the NTSB found that, although the co-pilot had erred by prematurely unlocking the rocketship’s movable tail, the FAA and the launch company bear a disproportionate share of the responsibility.  On the one hand, the launch company had failed to ascertain that a single error by an operator could lead to the ship’s destruction.  On the other hand, the FAA, acceding to pressure to approve the permit quickly, had failed to ensure that the company took this lack of redundancy into account.  Exacerbating the issue is the fact that SpaceShipTwo is one of three commercial rockets to crash in the span of eight months.  
 

FAA safety engineers attribute the agency lapses to a struggle between a duty to protect the public, usually implemented through complex regulations governing everything from aircraft construction to pilot qualification, and its congressionally mandated mission to “encourage, facilitate and promote” American commercial space travel.  In the case of the latter, however, FAA has not been granted the same broad powers as it has over conventional air travel, or as its stated mission would seem to indicate.  To compensate for this absence of oversight, any person flying on a commercial spacecraft must sign a waiver of liability, stating that the passenger has been advised of the risks and accepts them.  

 
Predictably, the fur has started to fly between Scaled and FAA.  FAA asserts that it told Scaled it was not meeting the regulations.  Scaled executives claim that FAA led them to believe that the company was complying with all applicable regulations.  In 2013, however, FAA granted Scaled a waiver from the rules, even though the company claims it never asked for one.  
 
In summary, the ongoing debate is not good for FAA’s persistent position that “safety is our business, our only business.”  Perhaps to stem the erosion of its position caused by the recent spacecraft crashes, FAA plans to issue an official response to Scaled’s accusations and the NTSB’s report by November 21.  
 

Congress Seeks to End Run Federal Aviation Administration on Drone Rules

Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.  

Supported by a host of interest groups, ranging from the Association for Unmanned Vehicle Systems International to the National Association of Broadcasters and Information Technology and Innovation Foundation, the stated purpose of the “Commercial UAS Modernization Act,” S.1314 (“Act”) is to amend the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), to create an interim rule providing basic guidelines for commercial use and testing of small UAS during the period within which FAA finalizes rules governing the operation of commercial UAS.  The Bill allows any person to “operate a small unmanned aircraft for commercial purposes without an airworthiness certificate within the United States, subject to the requirements under subsection (b) and the operating restrictions under subsection (c) during the period beginning on the date of the enactment of this Act and ending on the effective date of a final rule based on the Notice of Proposed Rulemaking Operation and Certification of Small Unmanned Aircraft Systems (80 Fed. Reg. 9544, February 23, 2015).” The Bill’s general requirements include: (1) liability insurance; (2) registration/certification under section 3(a) of the Act; and (3) the operator’s passing of an “aeronautical knowledge test,” Act, subsection (b)(3)(A), as prescribed by FAA in its February 2015 notice.  
 
The permission granted under the proposed legislation is not without limits, however.  
 

In addition, during the relevant period, the UAV operated for commercial purposes: (1) may be operated only under visual line of sight rules, Act, subsection (c)(1) and (5); (2) may not be operated higher than 500 feet above ground level, Act, subsection (c)(2); (3) may not be operated unless the operator has prior authorization from the Air Traffic Control facility having jurisdiction over that airspace, Act, subsection (c)(3)(A) and (B); (4) shall yield to all other users of the national airspace system, Act, subsection (c)(6); (5) shall comply with model aircraft operating standards set forth in FAA Advisory Circular 91-57, June 1981, as revised, Act, subsection (c)(4); (6) may only be operated after a preflight inspection, Act, subsection (c)(8); and, finally, (7) “may not be operated by a person with any physical or mental condition that the individual knows, or has reason to know, would interfere with the safe operation of aircraft.,” Act, subsection (c)(7).  Clearly, the legislation omits several protections that have, until now, been applicable to the operation of UAVs.  First, it does not require that UAVs be operated by licensed pilots.  Second, it appears to leave the determination of whether the operator is competent to operate the aircraft in a safe manner in the hands of the same operator who may or may not have the self-knowledge to make that determination.  

S.1314 has now been referred to the Senate Committee on Commerce, Science and Transportation where it remains as of this date.  

FAA Requires New Integrated Model for Noise and Air Quality Impact Analysis

In a marked change in longtime Federal Aviation Administration (“FAA”) policy regarding analysis of noise and air quality impacts from FAA initiated, directed or funded projects, FAA has substituted a single new model for the long mandated Integrated Noise Model (“INM”) and Emissions and Dispersion Modeling System (“EDMS”).  Beginning May 29, 2015, FAA policy “requires” the use of the Aviation Environmental Design Tool version 2b (“AEDT 2b”), which integrates analysis of aircraft noise, air pollutant emissions, and fuel burn.  These impacts, according to FAA are “interdependent and occur simultaneously throughout all phases of flight.”  80 Fed.Reg. 27853.  

 
The FAA policy provides for differential displacement of existing analytic models.  For air traffic and airspace procedural changes, AEDT 2b replaces AEDT 2a, already in use.  For other, ground based projects, AEDT 2b replaces both the INM, for analyzing aircraft noise, and EDMS for developing emissions inventories and modeling emissions dispersion.  The change was presaged by FAA Administrator Michael Huerta who announced in April that FAA was undertaking an “ambitious project” to revamp its approach to measuring noise.  The “ambitious project” was apparently inspired by the vocal objections to the results of the analysis using current methodologies, voiced by citizens of locals that have experienced the effects of FAA’s current, nationwide reorganization of airspace around major airports to institute procedures based on Performance Based Navigation (“PBN”).  
 

In Phoenix, for example, the community is up in arms over the narrowing of flight tracks that result from the PBN procedures.  The consolidation of flight tracks places the full complement of aircraft over a much smaller geographic area, thus moving and geometrically increasing the noise over those areas, some of which were never previously overflown.  The next place for the controversy to play out will be in Southern California.  FAA intends to launch the environmental review for its soon to be initiated Optimization of Airspace & Procedures in the Southern California Metroplex (“SoCal Metroplex”) project which will realign the airspace over eight airports in the Southern California Region.  The new AEDT 2b methodology will arguably apply to these new environmental analyses which are being commenced after its May 29th initiation date of applicability.  The impact of the new methodology on analytic results, and the way in which those results compare to those that would have been generated by INM and EDMS remain to be seen.  What is certain is that impacted populations and their noise and air quality consultants should make that determination at the earliest time in order to be able to adequately evaluate the true analytic impacts of FAA’s new model AEDT 2b.  

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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.

California State Lawmakers Move to Regulate Drones

California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation.  Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills.  The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.

AB37 would prohibit most public agencies from using drones, with the exception of law enforcement agencies using them to achieve the core mission of the agency, as long as the purpose is unrelated to the gathering of criminal intelligence.  In addition, even where permitted, the agency would be required to give notice of its intent to use a drone; would generally be prohibited from dissemination under the California Public Records Act, Cal. Gov. Code § 6250, et seq., of images, footage and/or data collected, if disclosure would endanger the safety of a person involved in the investigation; and would be further required to permanently destroy the records within one year.   Finally, unless authorized by federal law, AB37 would prohibit a person or entity, including a public agency, from equipping or arming a drone with a weapon or other device that may be carried by, or launched from, a drone that is intended to cause bodily injury, death, or damage to real or personal property.  (A largely identical Bill, except for a provision prohibiting reimbursement of costs to a local agency or school district, was introduced by Assemblymember Quirk and referred to the same Committee. )

While AB37 is largely aimed at regulating the use of drones by public agencies, complimentary legislation, SB142, introduced by Senator Jackson and referred to the Senate Judiciary Committee, and SB271, introduced by Senator Gaines and referred to the Committee on Public Safety, seek to supplement existing law governing private conduct.  SB142 extends the existing liability imposed for physical invasion of privacy, where a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity, and the invasion is offensive to a reasonable person.  In addition, SB142 would define intentional entry upon the land of another also to include operation of a drone below the navigable airspace overlaying the property, and would extend liability for wrongful occupation of real property and damages to a person who, without permission, operates a drone below the navigable airspace.  
 
SB271, in turn, would create a new violation of law for the operation of a drone on or above the grounds of a public school providing instruction in Kindergarten or grades 1-12, inclusive, and would provide for a fine of no more than $150 for the first violation, and no more than $500 for each subsequent violation.  
 
Finally, apparently recognizing the need for a more comprehensive approach, AB14, introduced by Assemblymember Waldron and referred to the Assembly Committee on Transportation, would create an “Unmanned Aircraft Task Force.”  Its purpose would be to formulate a comprehensive plan for state regulation of drones.  The Task Force would be required to submit, among other things, a comprehensive policy draft and suggested legislation pertaining to drones to the Legislature and the Governor on or before January 1, 2018.  The Bill would also provide that these provisions are repealed on January 1, 2022.  
 
While distinguishable, each of these pieces of legislation appears to have the same basic rationale – to ensure that drone operation does not violate Constitutional privacy or self-incrimination protections, and to protect the public from indirect use of deadly force through the use of a drone.  The “jury” remains out on whether any or all of these measures will be enacted in their original forms; or, if they are, whether they will ultimately be in conflict with the terms of yet to be completed federal regulation, thus triggering a battle over the preemptive authority of federal law.  Stay tuned.  
 

Buchalter Wins Historic Grant of Exemption for Client Picture Factory, Inc.'s Drone Filming and Photography Operations - First Ever in Midwest

In a landmark decision for film and production companies, the Midwest of the United States, and the unmanned aircraft systems industry, Buchalter Nemer’s Aviation and Aerospace Practice Group made history last week when it secured a Grant of Exemption issued by the Federal Aviation Administration authorizing film and production company Picture Factory, Inc. to operate camera-mounted drones for the purpose of aerial filming and photography.  Picture Factory, Inc. is the first production company in the Midwest to receive a Grant of Exemption allowing commercial filming operations using drones in U.S. airspace.

“We’re proud to offer yet another cutting-edge way to give our clients unique perspectives and moving camera shots from places otherwise impossible to reach,” said Craig Peterschmidt, co-founder of Picture Factory.
 
The FAA’s Grant of Exemption was issued in response to Picture Factory’s Petition for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012, which provides a procedure for expedited authorization of commercial operations using unmanned aircraft systems weighing no more than 55 pounds.  Picture Factory was represented by attorney Paul Fraidenburgh in Buchalter’s Orange County, California office.  Mr. Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.
 

FAA Releases Proposed Rules for Commercial Drones; White House Launches Drone Privacy Policy

On February 15, 2015, the Federal Aviation Administration published its highly anticipated Notice of Proposed Rulemaking (NPRM) on the Operation and Certification of Small Unmanned Aircraft Systems (applicable to UAS weighing 55 lbs. and less).  The proposed rules would add a new Part 107 to Title 14 Code of Federal Regulations to allow for routine civil operation of small UAS in the National Airspace System (NAS).  Although a lengthy comment and revision period is expected to delay finalization of the regulations for another 18-24 months, Section 333 of the FAA Modernization and Reform Act of 2012 will continue to provide a procedure for expedited authorization of commercial small UAS operations in the interim.  The final Part 107 will serve as the foundation for a multi-billion dollar UAS industry in the United States. 

Highlights of the New UAS Rules

UAS Operator Certification – No Pilot’s License Required.  Unlike commercial UAS operations conducted today under Section 333, manned aircraft pilots will no longer enjoy a regulatory monopoly under the proposed rules.  Instead, the FAA has announced an Operator Certification program that would require operators to pass an initial aeronautical knowledge test at an FAA-approved testing center, be over the age of 17, be vetted by TSA, and obtain an unmanned aircraft operator certificate with a small UAS rating.  Similar to existing pilot airman certificates, this certification would never expire so long as the operator passes a recurrent aeronautical knowledge test every 24 months.  Although this significant policy shift was expected, it is a welcome sigh of relief for the UAS community, which has broadcasted a consistent message to the FAA that the skills required to pilot manned aircraft are not the same skills needed for the safe operation of UAS.  The FAA expressly agreed, stating that the existing operator restrictions “impose an unnecessary burden for many small UAS operations.”
 
Operational Parameters – No Preapproval for Operations in Class G Airspace.  Under the proposed rule, small UAS would be prohibited from operating in Class A airspace and would require prior approval from Air Traffic Control to operate in Class B, C, or D airspace, or within the lateral boundaries of the surface area of Class E airspace designated for an airport.  Significantly, no preapproval would be required for operations in uncontrolled (Class G) airspace.  Additionally, operations will be limited to a maximum airspeed of 87 knots (100 mph) at a maximum altitude of 500 feet above ground level, and within the visual line of sight of the operator.
 
Commercial Package Delivery and Amazon Prime Air.  The FAA is well-aware of Amazon’s plans to use UAS to deliver packages to the consumer’s doorstep within 30 minutes of receiving an online order.  The knee-jerk analyzers of the proposed Part 107 widely perceived the new rules as a serious blow to Amazon’s Prime Air program because it prohibits the use of UAS to transport people or property “for compensation.”  However, a more careful analysis of the FAA’s 195 page NPRM reveals that Amazon is inching closer to its goal.  Specifically, the NPRM states that it would not prohibit “operations by corporations transporting their own property within their business under the other provisions of this proposed rule,” and requests comments on “whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a constrained area.”  This means that a factory, for example, could be fully-automated with UAS lifting packages off of conveyor belts and loading them onto trucks.  It also begs the question: what if Amazon takes an end-run around the prohibition on delivering packages “for compensation” by offering free delivery?  Look for a more thorough exploration of this issue during the 60 day rulemaking comment period.
 
No Airworthiness Certification.  In a victory for UAS manufacturers, the FAA will not require preapproval of the UAS design prior to the use of the aircraft in flight operations.  This will promote innovation in the industry and remove what might have become a significant barrier to entry for small/startup UAS manufacturers.
 
Micro UAS Classification.  The FAA is considering adopting a separate set of operational parameters for a “Micro UAS,” class of aircraft, which the FAA has preliminarily defined as aircraft weighing no more than 4.4 lbs., composed of frangible materials that yield on impact so as to present a minimal hazard to any person or object that the aircraft collides with, that will not exceed a speed of 30 knots, and that will be limited entirely to class G airspace away from an airport.  According to the FAA, “No knowledge test would be required in order to obtain an unmanned aircraft operator certificate with a micro UAS rating; instead, the applicant would simply submit a signed statement to the FAA stating that he or she has familiarized him or herself with all of the areas of knowledge that are tested on the initial aeronautical knowledge test.”  Significantly, the Micro UAS would be permitted to fly directly over people not involved in the flight operation.
 
No Visual Observer Required.  The proposed rules would allow the UAS operator to conduct solo operations without the aid of a Visual Observer (VO).  This is a welcome departure from the FAA’s previous requirement of including a VO in operations conducted under Section 333 exemptions.
 
International Operations Excluded to Reduce Operational Limitations.  The International Civil Aviation Organization (ICAO) has issued strict standards and recommended practices (SARPS) directed at UAS operations.  The FAA has limited the scope of Part 107 to apply only to UAS operations conducted entirely within the United States as a way to avoid the imposition of ICAO’s strict standards on domestic UAS operations.  “While we embrace the basic principle that UAS operations should minimize hazards to persons, property or other aircraft, we believe that it is possible to achieve this goal with respect to certain small UAS operations in a much less restrictive manner than current ICAO standards require,” states the FAA’s summary of the proposed rule.  Look for the FAA to address international UAS operations in a future rulemaking.
 
White House Launches Drone Privacy Policy
 
No sooner did the FAA announce its proposed Part 107 than the White House’s issuance of a Presidential Memorandum titled, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.”  The memorandum announces a new federal privacy initiative aimed at taking steps to ensure that the integration of UAS into the NAS is completed with an eye toward limiting and protecting the information gathered by federal agencies using UAS technology.
 
Continuing Importance of Section 333
 
As drone technology continues to disrupt new industries, the importance of Section 333 petitions as the sole avenue for conducting commercial operations has become increasingly clear.  Though the FAA’s release of its comprehensive set of regulations is a significant landmark for the industry, the rules are not expected to be finalized before 2016 (and more likely 2017).  Until then, Section 333 will remain the holy grail for drone operators who plan to conduct commercial operations in the foreseeable future.
 
Attorney Paul Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.

Unmanned Aircraft Systems Video Blog

Paul Fraidenburgh discusses unmanned aircraft systems and Petitions for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012.  Watch Here.

Land Trade and Airport Expansion Expected to Put Mammoth Mountain on "Must Ski" Map

Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
 
Most important in MMSA’s view is the expansion of the airport.  

In August, 2014, the Federal Aviation Administration (“FAA”) approved a new Airport Layout Plan (“ALP”) for the Mammoth Yosemite Airport (“Airport”) which includes proposed runway and associated parallel taxiway extensions, land acquisition for those improvements, as well as a terminal expansion.  MMSA believes that “the combination of the Mammoth Mountain land trade and the FAA approval of an expanded commercial airport in Mammoth Lakes is a game changer. . .,” “now, for the first time, the mountain owns the land it resides on and can make improvements it can own.  Plus the new airport will allow for flights from around the country.”

Environmental groups, not unexpectedly, deplore the new events.  Mammoth Mountain is located on the east side of the Sierra Nevada, surrounded by valuable natural resources, including the Owens and Walker Rivers, which are home to a variety of species fast losing habitat elsewhere.  The debate over the expansion will be more clearly articulated during the environmental review process for the land exchange, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), which will start upon the signing of the Bill authorizing the land exchange.  
 
Moreover, the FAA’s approval of the ALP was based on the satisfaction of certain conditions including that: (1) the proposed runway, taxiway extensions and land acquisition are not approved for short term developments; (2) FAA approve a terminal study that includes acceptable forecasts for use of the terminal; and (3) all development must comply with NEPA.  Therefore, development depends not only on the success of the contemplated land purchases, but also upon satisfaction of environmental requirements.  In California, those requirements involve not only NEPA, but also the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) as well, with its much more rigorous analytic requirements.
 
In summary, although the land trade and associated airport expansion may be seen as a long term benefit to real estate development and the skiing public from outside California, the environmental controversy over the protection of the Eastern Sierra Wilderness will rage for many years to come. 
 

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.  
 

The Federal Surface Transportation Board Finds California Environmental Quality Act Preempted as Applied to High-Speed Rail Projects

In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000, et seq., to the 114 mile high-speed passenger rail line between Fresno and Bakersfield, California is preempted in its entirety by federal law.  The Board’s decision is not only surprising in the context of prevailing legal authority, but also potentially important in the context of other modes of transportation.  

The decision is surprising because it went far beyond the scope of the petition filed by the responsible State agency, the California High-Speed Rail Authority (“Authority”).  The Authority asked only that the Board find that injunctive relief as a remedy under CEQA is foreclosed as preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), Pub.L. 104–88, 104th Congress, and is, thus, barred under 49 U.S.C. § 10501(b) which gives the Board jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,” 49 U.S.C. § 10501(b)(2).  The Authority further argued that, as it had completed CEQA review in May 2014, the Board need not address whether CEQA is generally preempted, but need only address whether injunctive relief resulting in a work stoppage is available as a remedy in the lawsuits filed against the Authority.
 
Despite the Authority’s limited petition, the Board expanded its ruling to include a finding that § 10501(b) prevents the states and localities from intruding into matters that are “directly regulated by the Board (e.g., rail carrier rates, services, construction, and abandonment),” Docket, p. 8, and from “imposing requirements that, by their nature, could be used to deny a rail carrier’s ability to conduct rail operations.”  Id.  The Board employs the rationale that “Section 10501(b) [ ] is intended to prevent a patchwork of local regulation from unreasonably interfering with interstate commerce.”  Id.  
 
The Board recognizes, however, that “[n]ot all state and local regulations that affect rail carriers are preempted by § 10501(b).”  Id. at p. 9.  It acknowledges further that “State and local regulation is appropriate where it does not interfere with rail operations,” Id., and that “[l]ocalities retain their reserved police powers to protect the public health and safety so long as their actions do not unreasonably burden interstate commerce.”  Id.  
 
On that basis, and ignoring that “states and towns may exercise their traditional police powers . . . to the extent that the regulations ‘protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions,’” Id. citing Green Mountain v. Vermont, 404 F.3d 638, 643 (2nd Cir. 2005), the Board concluded that CEQA was categorically preempted as a “state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the Board has specifically authorized, thus impinging upon the Board’s exclusive jurisdiction over rail transportation,” Docket, p. 10, citing DesertXpress Enters., LLC-Pet. For Declaratory Order, slip op. at 5.  The Board further found that CEQA lawsuits “can regulate rail transportation just as effectively as a state statute or regulation.”  Id. at 14, citing, inter alia, Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) [explaining that common law suits constitute regulations].  
 
The Board decision, however, appears to be based on two fundamental misconceptions. 
 

First, from a substantive perspective, the Board’s decision erroneously designates CEQA as a “state . . . permitting or preclearance requirement[ ],” Docket, p. 12, that “attempts to regulate where, how, and under what conditions the Authority may construct the Line.”  Id.  However, the cases interpreting CEQA reject this view on the grounds that “a court’s decision to void the approval of a regulation, ordinance or program [as violative of CEQA] does not necessarily require the court to invalidate or suspend the operation of the regulation, ordinance or program.”  See, Poet, LLC v. California Air Resources Board, 218 Cal.App.4th 681, 761 (2003).  Thus, without the imposition of the injunctive remedy (which was the subject of the Authority’s limited petition in the first instance), the most that a finding of inadequacy under CEQA can accomplish is to require that the environmental review be repeated correctly, either procedurally or substantively, during which time the project, rail or otherwise, may proceed apace.  

Moreover, from a procedural perspective, the Board’s decision is defective, because the case upon which the Board principally relies, Friends of the Eel River v. North Coast Railroad Authority, 178 Cal. Rptr. 3d 752 (2014) (for the proposition that “in the context of railroad operations, CEQA ‘is not simply a health and safety regulation imposing an incidental burden on interstate commerce,’” Id. at 767-71), was accepted for review by the California Supreme Court on December 10, 2014, and, thus, is not citable in support of the Board’s decision.  While the Board claims that its analysis, based on Eel River, is merely offered “as the agency authorized by Congress to administer the Interstate Commerce Act, [and, thus,] ‘uniquely qualified’ to address whether § 10501(b) preempts state law,” Docket, p. 5, citing Town of Atherton v. California High-Speed Rail Authority, 175 Cal. Rptr. 3d 145, 161, n. 4 (2014), to the extent the Board’s decision is predicated on the opinion in Eel River, it is unsupported.  
 
In summary, while the Board’s opinion appears limited to rail projects, its reverberations may be felt throughout numerous modes of transportation, such as aviation, in which the Federal Aviation Act, 49 U.S.C. § 40101, et seq., establishes a system of preemption over the design and operation of airports that is surprisingly similar to that applied by the Board to rail transportation.  See, e.g., 49 U.S.C. § 47521(2).  
 

FAA Reports Increasing Conflict Between Drones and Civil Aviation

The Federal Aviation Administration (“FAA”) reports that close calls between conventional aircraft and unmanned aircraft systems (“UAS” or “drones”) have increased during 2014 to more than 40 per month over earlier reports of 10 such incidents in the months of March and April.  Some of these incidents have occurred in the busy airspace surrounding Los Angeles, California, Washington, D.C., and John F. Kennedy Airport in New York.  Some of these conflicts have arisen because untrained operators of recreational drones are unaware of FAA’s guidelines governing such use.  Those guidelines ask, among other things, that “hobby” drones stay away from civil aviation, below 400 feet AGL, and at least 5 miles from airports.  However, as FAA prepares to release its highly anticipated Notice of Proposed Rulemaking for small unmanned aircraft systems, the focus is not on hobbyists, but on commercial operators.

Operators of commercial drones, unlike “hobby” drones, are currently required to obtain FAA preapproval prior to operating.  This requires commercial UAS operators to submit Petitions for Regulatory Exemption under the FAA Modernization and Reform Act of 2012, § 333 (“FMRA”).  The parameters of the proposed small UAS regulations, due to be released later this month, must be in accordance with the express provisions of FMRA, and will contain provisions requiring, among other things, that drones stay outside of the established perimeters of commercial airports.  A recent decision of the National Transportation Safety Board (“NTSB”) confirmed FAA’s authority to implement such regulations (as if such confirmation, in addition to a Congressional mandate, were necessary), by overturning the decision of an Administrative Law Judge in Pirker v. Huerta.  In that case, the Administrative Law Judge held that FAA did not have the regulatory authority to fine commercial UAS operators for violation of FAA regulations until such regulations are formalized, a position with which NTSB vehemently disagreed.  

Until the Proposed Small UAS Regulations become final, which may take quite some time following a notice and comment period, the only path to operation of commercial UAS is through the approximately 120 day process of requesting exemptions from current regulations pertaining to manned aircraft which FAA is construing as applying equally to drones. Several exemptions for companies in the film and oil drilling industries have already been granted, along with almost pro forma exemptions for law enforcement and Customs and Border Patrol operations.  A number of additional petitions are currently pending.

In summary, no serious accidents have yet occurred in the United States as a result of a drone interfering with manned aircraft operations.  However, as the number of unmanned aircraft systems operators continues to grow, it is clear that a comprehensive set of well-defined UAS regulations is necessary to facilitate Congress’ ultimate goal of integrating UAS into the national airspace system.

 

Interview with Avionics Magazine

Aviation and aerospace attorney Paul Fraidenburgh was quoted in “Pirker v. Huerta Ruling Clears the Way to UAS Integration” published in Avionics Magazine on November 25, 2014.  The full article is available here: http://www.aviationtoday.com/av/commercial/Pirker-v-Huerta-Ruling-Clears-the-Way-to-UAS-Integration_83611.html#.VHUKG53Tncv

Bonner County Wins Major Victory in Property Owner's "Takings" Lawsuit

The decision of the Federal District Court for the Northern District of Idaho in SilverWing at Sandpoint, LLC v. Bonner County, a case that has been “hanging fire” for almost two years, was worth the wait.  On Friday, November 21, 2014, the Court granted Defendant Bonner County (“Bonner County”) summary judgment on all Plaintiff SilverWing at Sandpoint, LLC’s (“SilverWing”) federal claims for inverse condemnation, or “taking,” of private property by a public entity without just compensation, in violation of the 5th Amendment to the United States Constitution, and 42 U.S.C. § 1983, or violation of a plaintiff’s constitutional or other federal rights by a person acting under color of state law.  See, e.g., Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978).  In addition, the Court granted summary judgment on SilverWing’s state law contract claim for breach of the covenant of good faith and fair dealing.   

In this case, SilverWing claimed that Bonner County had taken its property by implementing a plan for the airport, an Airport Layout Plan (“ALP”) approved in accordance with the regulations promulgated by the Federal Aviation Administration (“FAA”), that showed the single runway at Sandpoint Airport moving 60 feet to the west, toward SilverWing’s property.  SilverWing argued that forcing the movement of a taxiway that already been constructed to service the “hangar homes” in the development, and thus causing it to incur upon the five lots closest to the runway, making them unbuildable, caused a loss to SilverWing of $26 million.  The Court ruled that implementation of the requirements of the ALP was a federal requirement arising out of federal responsibility for aviation safety and not within the discretion of Bonner County.  
 

The Court’s ruling was substantially based on the concept of federal preemption.  Preemption of state or local law occurs under one of three scenarios: (1) where the federal government affirmatively expresses an intent to preempt (express preemption); (2) where it has enacted laws which so substantially occupy the specified field that they leave no room for state or local law (field preemption); or (3) state or local law directly conflicts with federal law, or state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress (conflict preemption).  See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007).  In this case, therefore, the Court held that Bonner County was acting properly and in accordance with federal law that it had no power to contradict, and, therefore, could not be held responsible for the impacts. 

The Court’s ruling left intact SilverWing’s single claim for promissory estoppel, based on the argument that it had been misled by promises made by Bonner County’s former Airport Commission and former Airport Director.  The Court has given the parties the option of conferring as to whether to take this single claim to mediation, arbitration, judicially sponsored settlement, or trial.  No decision has as yet been made.  
 
A copy of the Court’s Memorandum Decision and Order can be found here.

Pirker Reversed: NTSB Confirms FAA Has Jurisdiction Over Drones

Earlier today, in a landmark decision for the unmanned aircraft systems industry, the National Transportation Safety Board reversed the Administrative Law Judge Patrick Geraghty’s order in the Pirker case and held that unmanned aircraft systems fall squarely within the definition of “aircraft” under the Federal Aviation Regulations.  This is the most significant legal opinion issued to date on the issue of drones in the United States. 

In a twelve page opinion reversing the ALJ’s March 7, 2014 decisional order, the NTSB stated:
“This case calls upon us to ascertain a clear, reasonable definition of ‘aircraft’ for purposes of the prohibition on careless and reckless operation in 14 C.F.R. § 91.13(a). We must look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1: an ‘aircraft’ is any ‘device’ ‘used for flight in the air.’ This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless operation in § 91.13(a) applies with respect to the operation of any ‘aircraft’ other than those subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to determine whether respondent operated the aircraft ‘in a careless or reckless manner so as to endanger the life or property of another,’ contrary to § 91.13(a).”
The Federal Aviation Administration’s success on appeal comes as no surprise to most members of the UAS industry, many of whom have already tacitly recognized the FAA’s jurisdiction over unmanned aircraft by specifically requesting regulatory exemptions to conduct commercial UAS operations under Section 333 of the FAA Modernization and Reform Act of 2012.
 

The overturned decision, which had held that Respondent Raphael Pirker was entitled to dismissal of a $10,000 FAA enforcement action arising out of Mr. Pirker’s UAS operations in the vicinity of the University of Virginia’s campus, condemned the FAA for adopting an “overreaching interpretation” of the definition of “aircraft” under the Federal Aviation Regulations.  The order even went so far as to state that adopting the FAA’s interpretation “would result in reductio ad obsurdum in assertion of FAR regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight.”  The NTSB’s appellate panel unanimously disagreed.

Today’s decision will maintain lasting significance as the FAA moves forward with developing comprehensive UAS regulations and exercising its jurisdiction over this bourgeoning technology – jurisdiction which the FAA impliedly promised in its appellate brief that it would not abuse.
 

FAA Loosens Regulation of Taxes on Aviation Fuel

On November 7, 2014, the Federal Aviation Administration (“FAA”) published its “Final Policy Amendment” (“Amendment”) to its “Policy and Procedures Concerning the Use of Airport Revenue,” first published 15 years ago in the Federal Register at 64 Fed.Reg. 7696, February 16, 1999 (“Revenue Use Policy”).  The Amendment formally adopts FAA’s interpretation of the Federal requirements for use of revenue derived from taxes including sales taxes on aviation fuel imposed by both airport sponsors and governmental agencies, local and State, that are non-airport operators. 

In brief, the FAA concludes that “an airport operator or State government submitting an application under the Airport Improvement Program must provide assurance that revenues from State and local government taxes on aviation fuel will be used for certain aviation-related purposes.”  79 Fed.Reg. 66283.  Predictably, FAA received 25 substantive comments from a diverse group of interested parties, including airport operators, industry and nonprofit associations representing airports, air carriers, business aviation and airport service businesses, air carriers, state government agencies, and private citizens.  For example, in response to the airports’ and governments’ comments that airport sponsors would find it impossible to provide assurance that other governmental agencies would comply with the revenue use statutes for the life of the Airport Improvement Program (“AIP”) grant, and that airports should not be required to agree to a condition compliance with which they have no control, FAA takes the position that Federal statute 49 U.S.C. §§ 47107(b) and 47133 already require this level of control from local proprietors.  This is because “[t]he grant assurances provided by airport sponsors include Grant Assurance 25, which provides, in relevant part: ‘All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other facilities which are owned and operated by the owner and operator of the airport. . .’” 79 Fed.Reg. 66284.  The FAA further concludes that airport sponsors often have influence on the taxation of aviation activities in their States and localities, and the FAA expects airport sponsors to use that influence to shape State and non-sponsor local taxation to conform to these Federal laws.  Id.  Moreover, FAA asserts its power to pursue enforcement action against non-sponsor entities for the purposes of limiting the use of aviation tax revenues under 49 U.S.C. §§ 46301, 47133 and 47111(f). 
 

FAA interprets § 46301 as specifically authorizing the imposition of civil penalties for a violation of § 47133 and does not exclude non-sponsors from its coverage.  Moreover, it views 49 U.S.C. § 47111(f) as inclusive of non-sponsor entities because “Congress did not limit FAA’s enforcement authority in 49 U.S.C. § 47111(f) to just airport sponsors, but rather permitted judicial enforcement to restrain ‘any violation’ of chapter 471 – that includes the requirements of § 47133 – by any person for a violation.  ‘Any violation’ encompasses violations by non-sponsors as well as airport sponsors.”  79 Fed.Reg. 66285 [emphasis in original].

Finally, a number of commenters raised the issue of “federalism,” or the distribution of power between the States and Federal government mandated by the United States Constitution, and the Amendment’s lack of compliance with Executive Order 13132 on federalism, on the ground, among others, that the Amendment was not required by statute.  In response, FAA argues that, although a formal federalism analysis is unnecessary due to the clear applicability of the cited statutes, it closely consulted with “States, local governments, political subdivisions, and interested trade groups,” 79 Fed.Reg. 66287, and thereby satisfied any lingering federalism concerns.  
 
Less predictably, FAA agrees with the majority of commenters that it would be unfair to penalize airport sponsors for taxes imposed by another entity.  79 Fed.Reg. 66284.  Therefore, FAA has also agreed to revise Revenue Use Policy paragraph IV.D.2 to acknowledge the differences in taxes that are and are not controlled by the airport sponsor for purposes of grant compliance.  For taxes within the airport sponsor’s direct control, the airport sponsor must comply with the revenue use requirements of §§ 47107(b) and 47133.  For taxes imposed by non-sponsor States and local governments, however, the airport sponsor is expected to advise those entities of Federal requirements for use of aviation fuel tax revenues, and to take action reasonably within the sponsor’s power to tailor State and local taxation to conform to the requirements of those statutes.  79 Fed.Reg. 66284.  
 
Perhaps most important, however, FAA will not relinquish its power to pursue enforcement action under 49 U.S.C. §§ 46301 or 47111(f) against a non-sponsor State or local government that violates the revenue use policy or the limitations in 49 U.S.C. § 47133.  Id.  Because of that crucial caveat on FAA’s self-imposed limitation on its own authority, jurisdictions with taxing power that include airport uses should be as aware of FAA’s intentions as the airports themselves, and work closely with the relevant airport during the grant application and project approval processes to ensure that the disposition of resulting tax revenues from aviation fuel do not run afoul of FAA’s enforcement intentions.
 

FAA Seeks Input from Governmental Entities Concerning Revised Air Traffic Routes Over Southern California

The Federal Aviation Administration (“FAA”) has scheduled six “briefings” with governmental jurisdictions potentially impacted by the planned “Southern California Optimization of Airspace and Procedures in the Metroplex (SoCal OAPM)” (“Project”).  The Project is expected to involve changes in aircraft flight paths and/or altitudes in areas surrounding Bob Hope (Burbank) Airport (BUR), Camarillo Airport (CMA), Gillespie Field (SEE), McClellan-Palomar Airport (Carlsbad) (CRQ), Montgomery Field (MYF), Los Angeles International Airport (LAX), Long Beach Airport (LGB), Point Magu Naval Air Station (NTD), North Island Naval Air Station (NZY), Ontario International Airport (ONT), Oxnard Airport (OXR), Palm Springs International Airport (PSP), San Diego International Airport (SAN), Santa Barbara Municipal Airport (SBA), Brown Field Municipal Airport (SDM), Santa Monica Municipal Airport (SMO), John Wayne-Orange County Airport (SNA), Jacqueline Cochran Regional Airport (TRM), Bermuda Dunes (UDD), Miramar Marine Corps Air Station (NKX) and Van Nuys Airport (VNY).   
 
These meetings are targeted at “key governmental officials/agencies” for the purpose of soliciting their views on the Environmental Assessment being prepared for the Project pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. 4321.  The meetings will not be open to the public, although public meetings will be scheduled as well.  
 
It is important to note the regional scope of the planned airspace changes, and that they may redistribute noise, air quality, and other impacts over affected communities, thus implicating new populations, and simultaneously raising citizen ire in newly impacted communities.  It is therefore doubly important that governmental entities participate at the initiation of the process to ensure protection at its culmination.  
 
The governmental meetings are planned for the following locations and times:
 
November 18, 2014 - Ventura, CA
E.P. Foster Library - The Elizabeth R. Topping Room
651 East Main St., Ventura, CA 93001
10:30 a.m. - 12:30 p.m.
 
November 19, 2014 - Los Angeles, CA
Pico Union Library- Meeting Room
1030 S. Alvarado St., Los Angeles, CA 90006
10:30 a.m. - 12:30 p.m.
 
November 20, 2014 - Burbank, CA
Buena Vista Branch Library - Meeting Room
300 N. Buena Vista St., Burbank, CA 91505
10:30 a.m. - 12:30 p.m.
 
December 9, 2014 - San Diego, CA
Airport Noise Mitigation/Quieter Home Program Offices
San Diego County Regional Airport Authority - Conference Room
2722 Truxtun Rd., San Diego, CA 92106
10:30 a.m. -12:00 p.m.
 
December 10, 2014 - Palm Desert, CA
Palm Desert Library - Community Room
73-300 Fred Waring Dr., Palm Desert, CA 92260
10:30 a.m. - 12:00 p.m.
 
December 11, 2014 - Costa Mesa, CA
John Wayne Airport
Eddie Martin Administration Building - Airport Commission Hearing Room
3160 Airway Ave., Costa Mesa, CA 92626
10:00 a.m. - 12:00 p.m.
 
Questions should be addressed to Ryan Weller at (425)203-4544; or email at 9-ANM-SoCalOAMP@faa.gov; or facsimile at (425)203-4505.
 

One code to rule them all: Dronecode

Paul Fraidenburgh’s article, “One code to rule them all: Dronecode,” appeared in the October 30, 2014 issue of Computerworld. The article is available here: http://www.computerworld.com/article/2841493/one-code-to-rule-them-all-dronecode.html

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.”
 

Update on Developments in California Drone Law

The governor acted recently on the two bills involving use of unmanned aerial vehicles (“UAVs or “drones”) sitting on his desk, AB 1327 (Gorell) and AB 2306 (Chau). Both were discussed in some depth previously in this space. One bill was signed and the other vetoed. 

These two bills had reached Gov. Brown with overwhelming bipartisan support in the legislature, though the more significant and far reaching of the two, Mr. Gorell’s AB 1327, had garnered opposition from the media and some law enforcement agencies. Specifically, it put limits on law enforcements’ use of drones absent a search warrant. That was the bill the governor vetoed. 

In his message explaining his unwillingness to sign AB 1327, the governor said that the provisions of the bill go “beyond what is required by either the 4th Amendment [to the United States Constitution] or the privacy provisions of the California Constitution.” Apparently, he does not want to add privacy protections to California law, at least in the drone context, beyond the already existing constitutional minimums.  
 
The other bill, Mr. Chau’s AB 2306 which the governor did sign, will take effect January 1, 2015. As discussed before, it creates an actionable invasion of privacy to use a drone to obtain an image or sound recording of a person engaged in a personal or familial activity under circumstances in which the person has a reasonable expectation of privacy. The bill also makes several other changes to California privacy law and provides that the violation of this drone law can result in the imposition of actual, treble, and punitive damages.  
 
Mr. Wagner is Of Counsel to Buchalter Nemer and a member of the California Legislature representing the Central Orange County’s 68th Assembly District.
 

FAA Grants Exemptions for Filming with Unmanned Aircraft Systems

In a landmark decision for the UAS (aka drone) industry and for the aviation industry as a whole, the Federal Aviation Administration announced today that it has granted 6 petitions for regulatory exemptions to operate unmanned aircraft systems for commercial filming operations.  The exemptions will allow the 6 petitioners to operate unmanned aircraft systems for closed set filming in both populated and unpopulated areas.  This highly anticipated decision paves the way not only for other filmmakers who wish to seek exemptions, but for potential future UAS operations in other industries including energy, agriculture, and telecommunications.

EPA Challenged to Issue Endangerment Finding and Rule Governing Greenhouse Gas Emissions from Aircraft Engines

Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions.  See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).  

Earth Justice and Friends of the Earth originally petitioned EPA in 2007, pursuant to CAA Section 231, which directs EPA to study air pollutants from aircraft “to determine (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emissions.”  Section 231(a)(1).  Under subsections (a)(2) and (3), if EPA finds that emissions from aircraft and aircraft engines cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare,” it “shall” propose and issue standards to control such emissions.  In 2010, EPA had still not responded to their 2007 Petition.  
 

Friends of the Earth and Center for Biological Diversity then filed suit, asserting violation of Section 231, to which EPA responded that Section 231 imposes no legal obligation to proceed with an “Endangerment Finding.”  The court disagreed, holding that EPA’s duty is, in fact, compulsory. Center for Biological Diversity v. EPA, 794 F.Supp.2d 151, 162 (D.D.C. 2011).  

In June, 2012, EPA responded that it would begin work on the Finding within the court ordered period of 90 days after the United States Court of Appeals for the District of Columbia Circuit ruled on the validity of EPA’s 2009 “Endangerment Finding on Greenhouse Gas Emissions from New Motor Vehicles.”  EPA further committed that the process, involving development of the Finding, publishing and taking comments would take about 22 months.  

Even though the D.C. Circuit had ruled on the EPA’s Endangerment Finding for Greenhouse Gas Emissions from New Motor Vehicles on or about June 26, 2012, more than two years later, EPA had not taken even the preliminary step of issuing a draft Endangerment Finding for aircraft emissions (or of reaffirming that another Endangerment Finding for greenhouse gases is unnecessary, as EPA has repeatedly done in connection with greenhouse gases from other sources).  

Petitioners claim to consider action by EPA urgent, on the asserted grounds that United States domestic aviation may have accounted for about 3% of total United States greenhouse gas emissions in 2005, and, by 2006, was “viewed as the fastest growing source of carbon dioxide emissions worldwide, increasing at a rate of nearly 5% per year.”  

Impatient with further delay, after more than 6 years of delay since the original Petition, the Petitioners have given notice to EPA pursuant to CAA § 7604 (also referred to as “Section 304”) which provides, in pertinent party, that “[t]he district courts of the United States shall have jurisdiction to compel . . . agency action unreasonably delayed,” and requires that any person intending to file a legal action against EPA for unreasonable delay must provide notice of his or her intention to sue 180 days before commencing such action.  See also, 40 C.F.R. § 54.  Therefore, Petitioners have put EPA on notice that by on or about February 1, 2015, 180 days after the date of their letter, they intend to enforce EPA’s obligation either through litigation, or through resolution.  

Petitioners do not, however, touch upon the full panoply of impacts EPA’s issuance of a new rule governing emissions from aircraft engines will have, not only on those who are exposed to greenhouse gas emissions, but also upon those who will suffer the economic impacts of adapting to new restrictions, such as aircraft engine manufacturers and aircraft operators.  The proverbial “jury” is still out as to the way in which those interests will be balanced in EPA’s rulemaking process.  

Water's For Fighting Over

California’s unprecedented drought provided the impetus in Sacramento in the closing weeks of the Legislature’s 2013-14 session for the passage of sweeping new regulations governing groundwater. The new rules, which Gov. Brown likely will sign, amount to a broad re-write of California’s existing groundwater law, the first substantial changes to the law in approximately one hundred years. And with the new rules comes significant new authority for a state agency, drawing upon potentially billions of dollars in new fees, to implement new groundwater management plans over the objections of local water authorities. 

Orange County’s groundwater management system, accomplished across numerous governmental jurisdictions and which has, so far, spared Orange County from the full effects of the drought, is held up as the model for the new state scheme. But the legislation goes well beyond anything done in Orange County. Major changes are coming in the way California regulates and allocates its ground water, and in the way our citizens pay for that water.

 

The two bills awaiting action by the governor are SB 1168 (Pavley) and AB 1739 (Dickenson). Senator Fran Pavley’s bill grants to the State Water Resources Control Board (“SWRCB”) both new regulatory authority over groundwater use and broad discretion to take over management of local groundwater basins.  The goal of SB 1168 is “sustainable groundwater management,” defined in the bill as “the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.” The bill goes on to define such “undesirable results” as: (1) the chronic lowering of groundwater levels, excluding drought; (2) a significant and unreasonable reduction of groundwater storage; (3) significant seawater intrusion; (4) significant and unreasonable degraded water quality; (5) a significant land subsidence that interferes with surface land uses; and, (6) the depletions of interconnected surface water that have adverse impacts on beneficial uses. One can expect years of litigation over these factors. 

The new “sustainable groundwater management” system replaces California’s century-old definition of “safe yield,” defined by our courts as “the maximum quantity of water that can be withdrawn annually from a groundwater basin without causing an undesirable result.” Instead, SB 1168’s new water management scheme, according to the bill, is “to provide multiple benefits without resulting in or aggravating conditions that cause...” certain economic, social, or environmental impacts. This is a broad expansion of existing law. 

Currently, under prevailing court adjudications of groundwater resources, only the rights of property owners are considered. The suddenly changed standard of SB 1168 has as yet completely unknown limits. This will likely cause a great deal of future uncertainty for groundwater users, and could force the re-opening of many existing groundwater management plans. 

Finally, the bill ties together groundwater and surface water in an unprecedented expansion of regulatory authority under the “undesirable result” definition. Specifically, the bill’s new definition of “undesirable result” now explicitly includes certain impacts to surface water that have “adverse impacts on beneficial uses.” That is a broad expansion of current legal interpretations of the connection between groundwater and surface water, providing environmentalists and other interests with a new legal platform to sue groundwater users.  

AB 1739 by Assemblyman Roger Dickenson provides for a host of new regulatory action – and the imposition of new fees – by the SWRCB and local water jurisdictions. For example, it requires a city or county, prior to adoption or revision of a general plan, to review and if necessary, revise, the land use, conservation, open space, or any other element of the general plan to address the adoption of a groundwater sustainability plan or groundwater management plan, or an adjudication of water rights, or an order by the SWRCB to require local agencies to manage groundwater. It also authorizes the SWRCB to adopt emergency regulations for the filing of extraction reports by individual extractors not in a managed basin, to adopt a fee schedule for the costs of planning and implementing groundwater management plans in so-called “probationary basins,” and allows it to issue Cease and Desist Orders to enforce groundwater extraction restrictions or limitations. The board is further authorized to investigate and determine information necessary for any groundwater extraction report, and can significantly fine any user for failure to report.

Local authorities are also given enhanced fee authority under AB 1739. In particular, it authorizes: (1) local agencies to establish fees to recover specified costs, including projects, land acquisition, maintenance, and operations, related to development and implementation of the groundwater management plan; (2) provides for fee collection procedures and penalties for non-payment; (3) authorizes the local agency, following an investigation of groundwater resources, to make a determination fixing the amount of groundwater that can be extracted from groundwater facilities for purposes of levying a groundwater charge; and, (4)  authorizes civil penalties for excess extractions up to $500 per acre-foot of water extracted in excess of the amount authorized and up to $1000 plus $100 each day for violations of rules, regulations, ordinances, or resolutions.

The planning mandates arising out of both bills are quite broad. Initial estimates are that the bills will apply to groundwater basins representing more than 90% of the groundwater pumped in this state. Moreover, that coverage could be expanded even further, for example, by the new authority expressly provided to the Department of Fish and Wildlife in SB 1168 to designate additional basins for the new regulatory requirements “where species and ecosystems are vulnerable to existing or future groundwater conditions.”  

Both measures drew intense criticism. Over fifty diverse organizations, from the California Chamber of Commerce to the Cattlemen’s Association to the Construction and Industrial Materials Association, along with almost all North State and Central Valley agricultural interests most immediately impacted by the comprehensive new regulatory structure formally objected and registered opposition. Environmental and property rights issues were at the fore of the opposition. According to opponents, these bills include multiple provisions that will allow environmental attorneys future opportunities to stake a claim to groundwater rights. These potentially include: (1) requiring groundwater plans to include consideration of “impacts to groundwater dependent ecosystems”; (2) authorizing the Department of Fish and Wildlife to prioritize additional groundwater basins for their environmental values, forcing local property owners and agencies to follow the dictates of Sen. Pavley’s bill; and, (3) the lack of a CEQA exemption for adoption of groundwater plans, which will allow environmental interests to sue local plans.

A significant Constitutional concern also exists about these bills. Specifically, they presume that a local entity – or the SWRCB acting on behalf of the local entity – can use statutory authority to curtail pumping rights on its own, according to its management plan.  The constitutionality of such a provision is unclear at best, and it will certainly lead to extensive litigation.  Access to groundwater has long been held to be a property right in California for an overlying landowner.  While that right is limited (it is “correlative” with other landowners in the same basin, and limited to the “safe yield” of the basin), generally speaking, curtailing a property right requires legal due process not provided for in these bills. That is why the process of adjudication – a court process that determines “safe yield” of a basin and curtails the rights of pumpers accordingly (if necessary) – developed as it did. By removing that protection, an arguable “taking” without just compensation is worked by these bills. 

Mark Twain reportedly said whiskey’s for drinking and water for fighting over. With these two new bills, many more fights over water are in California’s future. 

Mr. Wagner is Of Counsel to Buchalter Nemer and a member of the California State Legislature representing Central Orange County's 68th Assembly District.

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.
 

Specifically, the NAC recommended the “Net Noise Reduction Method,” which would “[p]rovide[] for the computation of the number of people who would experience a reduction in noise and the number of people who would experience an increase in noise with a proposed PBN procedure as compared with the existing instrument procedure, at noise levels of DNL [average] 45 dB and higher.”  79 Fed. Reg. 49142.  FAA concluded that this proposal needs further evaluation because it “would introduce a new method for assessing noise … that is different in a number of respects from current noise analysis methodologies,” Id., and because it “does not produce a quantity of noise on a per flight basis,” 79 Fed.Reg. 49143, (i.e., a single event, or SENEL basis), as mandated by Congress, but instead “allows for averaging [of] noise impact on a representative basis,” (closer to the DNL or average noise level), 79 Fed.Reg. 49142, fn. 3.  

The FAA is further concerned about the extent “to which the Net Noise Reduction Method’s reliance on a net reduction in the number of people exposed to noise constitutes a net reduction in noise, since the two reductions are not the same.”  79 Fed.Reg. 49143.  Ironically, communities exposed to high levels of airport noise have been making the same objection to the DNL metric, the 24 hour average noise metric, for decades, on the ground that while such average is the conventional method of establishing noise impact, individuals do not hear “averages” but rather experience noise on a per flight basis, as has now been recognized by Congress.  

Finally, and despite FAA’s disclaimer that “[a] CATEX is not an exemption or waiver of NEPA review,” a categorical exemption is exactly what it purports to be: an exclusion from the normally applicable requirement to perform review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  Apparently recognizing this, Congress enacted the caveat that a categorical exemption will not apply where “the Administrator determines that extraordinary circumstances exist with respect to the procedure.”  FMRA § 213(c)(1), although what precisely constitutes an “extraordinary circumstance” is not explained in the proposed rule.  

In summary, Congress has now mandated the development of a per flight noise metric for PBN procedures, and FAA will be required to adjust its traditional metric to conform.  FAA is giving the public, including affected communities, their first opportunity to weigh in on this important regulatory distinction by September 18, 2014.  Comments identified by ‘‘Docket Number FAA–2014–0510’’ may be sent either by mail to Docket Operations, M–30, U.S.  Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12–140, West Building Ground Floor, Washington, DC 20590–0001 or electronically to the Federal eRulemaking Portal at http://www.regulations.gov.  

Update:  On September 11, 2014, FAA extended the comment period to October 20, 2014 (79 Fed. Reg. 54342).  

 

Recent Developments in California Drone Law

Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.  

The first of the two bills, AB 1327 by Jeff Gorell, places certain limits on the use of drones, both by the government and private parties. For example, it bans any weaponization of drones unless specifically authorized by federal law. It also extends existing privacy and wiretapping/electronic eavesdropping protections to the private use of drones but does not prohibit their use in situations where privacy concerns are not likely to be significant, such as those circumstances consistent with the “core mission” of non-law enforcement public agencies like fire or oil spill detection. One can expect the inevitable round of litigation to flesh out the limits of such circumstances and situations where privacy concerns are not likely to be significant. 
 
The bill further permits the use of drones by law enforcement agencies without a search warrant in emergency situations such “hot pursuit,” search and rescue operations, fires, and hostage takings. Such use, however, is limited to cases where “there is an imminent threat to life or great bodily harm.”  Although not specified in the legislation, warrants would otherwise seem to be required under the bill consistent with current practice and Constitutional requirements. Finally, the bill makes clear that the public has a right to know about such governmental drone uses. Any “images, footage, or data obtained through the use of an unmanned aircraft system or any record, including but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system” is presumptively subject to disclosure under the Public Records Act.
 
Although AB 1327 passed with overwhelming support in the legislature, it does not hit the governor’s desk without opposition. The California Newspaper Publishers Association, the California State Sheriffs’ Association, and the California Police Chiefs’ Association, among others, argued against the bill. According to the Sheriffs’ Association:  
This measure would impose requirements for the use of unmanned aircraft in excess of what is required for the use of manned aircraft. While we understand the privacy concerns that may arise from the misuse of unmanned aircraft, we believe that it is inappropriate to impose requirements beyond what is necessary under the Fourth Amendment . . . to protect against unreasonable searches and seizures.

In addition, AB 1327 would require law enforcement to destroy information within [six months] of being obtained by an unmanned aircraft system. Unfortunately, criminal investigations do not neatly fall into timelines. [This requirement] will severely hamper investigations for law enforcement. 

Separately, the Newspaper Publishers Association complained that AB 1327 conditioned  
access to information on factors that have no bearing on whether there is a greater public interest to be protected by withholding the record, [which] would make public access to drone information arbitrary. [¶] [The Publishers Association] strongly believes that this approach would create a dangerous precedent that would undermine the presumptive right of public access to information established by the [California Public Records Act] and the California Constitution.
The opposition will now take these arguments to Governor Brown.
 
The second significant drone legislation is AB 2306 by Ed Chau. It also passed through the legislature with overwhelming bipartisan support. In short, it provides that the use of any device, including and especially a drone, to capture an image or sound recording of a person engaged in a personal or familial activity under circumstances in which the person has a reasonable expectation of privacy constitutes a constructive invasion of privacy. Additionally, it is also a constructive invasion of privacy when the drone user attempts to capture through the use of a visual or auditory enhancing device, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the person had a reasonable expectation of privacy. An actual physical trespass to obtain the image or sound is unnecessary if the picture or recording could not have otherwise been obtained without a trespass and without the use of the visual or auditory enhancing device. Any violation of this drone law can result in the imposition of actual, treble, and punitive damages. 
 
As with AB 1327, litigation will likely determine the reach and application of some of the specific sections. However, many of the relevant terms in this bill already exist in California law, and are already well understood by the bench and bar. Thus, this bill seemingly makes few substantial changes to California privacy law other than extending the existing framework to new drone technology. Adding to the idea that Mr. Chau’s AB 2306 does not significantly change the underlying privacy law is the fact that, unlike Mr. Gorell’s bill, AB 2306 did not receive any official opposition. 
 
The Constitutional deadline for Gov. Brown to take action on either of these bills is September 30. If signed, the new laws would take effect January 1, 2015.  
 
Mr. Wagner is Of Counsel to Buchalter Nemer and a member of the California State Legislature representing Central Orange County’s 68th Assembly District.
 

Drone Filmmaking and the Technological Power Shift

MovieMaker Magazine published an article titled “Drone Filmmaking and the Technological Power Shift” by our blog’s co-author Paul Fraidenburgh.  The full text of the article is reprinted after the jump.

 

 

Drone Filmmaking and the Technological Power Shift

By Paul Fraidenburgh on August 13, 2014
 
There is something stirring in the skies, and it’s about to turn the independent filmmaking world upside down. With this year’s arrival of accessible, affordable, and—most importantly—legal unmanned aircraft systems (UAS, or “drones”), aerial cinematography is no longer out of reach for small-scale independent moviemakers. Recent shifts in the technological and regulatory circumstances surrounding small UAS may soon disrupt the filmmaking landscape.
 
Earlier this summer, after extensive back-and-forth with the Federal Aviation Administration, several cinematographers filed petitions for regulatory exemption to operate small UAS (55 lbs and less) mounted with cameras. It now appears highly likely that the FAA will approve the first of these petitions, following a final review of public comments that concluded last month. The petitions were filed pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, which outlines a procedure for expedited authorization for commercial operations using small UAS.
 
The key here is recognizing the difference between “commercial” operations and “recreational” operations. According to the FAA’s recently published “Interpretation of the Special Rule for Model Aircraft,” unless you intend to operate your UAS purely for hobby or recreational purposes, you must obtain an FAA exemption to conduct commercial operations.
 
While that sounds like bad news to some, it is actually great news for independent filmmakers: Section 333 may serve as the great equalizer. By providing a simple and straightforward mechanism for obtaining approval of commercial drone operations, Congress and the FAA have put independent filmmakers on a level playing field with large motion picture companies when it comes to aerial cinematography. With new models of affordable and reliable UAS on the market this year, the technological barriers to entry have already evaporated, and with the FAA finally taking Section 333 seriously, the legal barriers just became far less intimidating.
 
The importance of Section 333 has become increasingly clear over the last several weeks. The Office of Inspector General’s June 26, 2014 Audit Report to the Department of Transportation concluded that the “FAA faces significant barriers” to safely integrating unmanned aircraft systems into the national airspace system on time to meet the FAA’s goal of September 2015. The Audit Report notes that the “FAA’s delays are due to unresolved technological, regulatory, and privacy issues….” In other words, it will be a very long time before we see a comprehensive set of regulations for commercial UAS operations.
 
The delay has broad implications for the UAS industry and for independent filmmakers. First, the delay means Section 333 will remain the holy grail for UAS operators who plan to conduct commercial operations in the foreseeable future. As the sole mechanism by which any person or business can legally use commercial drones in the United States, the importance of Section 333 cannot be overstated.
 
Second, since the FAA considers petitions on a first come, first served basis, the delay means independent filmmakers can position themselves advantageously by seeking FAA approval before the floodgates open. Being amongst the first to conduct domestic UAS filming operations may allow indies to shoot footage that rivals the studios, who have the resources to conduct UAS filming overseas.
 
Nimble artists need nimble technology. The increasing viability of drone photography will allow independent moviemakers to get a bird’s eye view of the next generation of their craft.
 

California Changes the Test of Significance for Traffic Impacts Under CEQA

Taking its queue from the legislature (see Senate Bill 743 [Steinberg 2013]), the California Governor’s Office of Planning and Research (“OPR”) published, on August 6, 2014, a preliminary discussion draft of revisions to OPR’s California Environmental Quality Act (“CEQA”) Guidelines, which serve as regulations implementing CEQA, Cal. Pub. Res. Code § 21000, et seq.,  “Updating Transportation Impacts Analysis in the CEQA Guidelines” (“Update”).  The Update revises existing CEQA Guidelines § 15064.3 to comport with Cal. Pub. Res. Code § 21099(b)(1) which establishes new criteria for determining the environmental significance of surface traffic impacts such as traffic delay and increased emissions resulting from a proposed project.  The purpose of both the amended statute and the Update is to shift the focus of the CEQA analysis of significance from “driver delay” to “reduction of greenhouse gas emissions, creation of multi-modal  networks and promotion of mixed land uses.”  Update, page 3.  

 
The change is effected through a change in the metric for determining environmental significance Level of Service (“LOS”), which measures delay at intersections, to vehicle miles traveled (“VMT”), which is a measure of the number of automobile trips resulting from the project.  The stated rationale underlying the change is that the use of LOS encourages mitigation aimed at reducing delays by increasing traffic flow, including expanded roadways, construction of more lanes and other automobile traffic facilitation measures; which theoretically leads to “induced demand,” i.e., more capacity at intersections allowing additional cars to use them; and, ultimately, to more air quality and greenhouse gas impacts from those additional cars.  As the story goes, a standard of environmental significance based on VMT will encourage the use of mitigation measures such as increased bicycle paths, accommodations for pedestrians, and other measures that will reduce automobile ridership in the long term.  The problem is that the theory underlying the Update is made up more of holes than of cheese. 
 

First, the current draft of the Update rejects the LOS metric categorically, based on the bare conclusion that “a project’s effect on automobile delay does not constitute a significant environmental impact.”  Update, § 15064.3(a).  However, the adoption of the VMT metric, which supposedly captures the emissions impacts caused by a number of cars rather than the time of idling at intersections, is based on a distinction without a difference.  This is because numerous studies have established that a larger number of cars operating at optimal speed will emit fewer air contaminants than a smaller number of cars idling for long periods at congested intersections.  

 
Second, the Update reaches the further unexplained conclusion that “development projects that locate within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor may be considered to have a less than significant transportation impact.”  § 15064.3(b)(1).  Such generalizations cannot withstand rational scrutiny even with respect to relatively small, private residential and commercial projects, without taking into account their size and use.  They are, therefore, clearly inapplicable to large, public use projects such as improvements at Los Angeles International Airport, the raison d'être of which is to facilitate passenger access and growth.  Both of those goals rely principally on automobile access for which a single rail line one-half mile away cannot substitute.  The notion that increases in traffic impact of such  large scale public works projects are environmentally insignificant because of a fortuitous location in relative proximity to a mass transit line amounts to  mere opinion, unsupported by any evidence, let alone substantial evidence.  
 
Finally, revised § 15064.3(c) decrees that “previously adopted measures to mitigate congestion impacts may continue to be enforced, or modified, at the discretion of the lead agency.”  The discussion at Update page 11 goes even further by stating “in fact, within the bounds of other laws, including adopted general plans, lead agencies have discretion to apply or modify previously adopted mitigation measures.  [Quoting Napa Citizens for Honest Government v. Napa County Board of Sup., (2001) 91 Cal.App.4th 342, 358 (because “mistakes can be made and must be rectified, and . . . the vision of a region’s citizens or its governing body may evolve over time. . . There are times when mitigation measures, once adopted, can be deleted.)]  
 
Apparently the authors of the Update did not read far enough in Napa Citizens.  That court specifically held that post hoc abrogation of a mitigation measure requires a legitimate reason and support by substantial evidence.  Id. at 359.  Moreover, that evidence is only provided in the context of a modified land use plan and accompanying revised EIR setting forth the reason for the deletion of the prior mitigation measure and justification for the substitute measures.  Id.   The Update, on the other hand, purports to give carte blanche to elimination of a previously enacted mitigation measure without any additional environmental review on the sole ground that “. . . section 21099 of the Public Resources Code states that automobile delay is not a significant impact under CEQA.”  Update, page 11.  The Napa Citizens court, however, would disagree.  Because CEQA requires that mitigation measures not only be stated but enforced; and because the public has the right to depend on that enforcement; any deletion of a previously enacted mitigation measure without the requisite subsequent analysis and formal action replacing it would be “invalid and cannot be enforced.”  Napa Citizens, supra, 91 Cal.App.4th at 359.  
 
In short, while OPR’s goals may be admirable, its methods leave something to be desired.  At a minimum, OPR should recognize that facilitation of traffic flows represented in the LOS metric and reduction in the number of motor vehicles on streets and highways represented by the VMT metric may be identical with respect to the desired result of reducing emissions, and that there are more ways to reach those goals (e.g., re-striping, peak-period parking restrictions, improved traffic signal synchronization, all of which facilitate bus travel which is more available than fixed rail transit) than are, apparently, “dreamt of in [its] philosophy,” or set forth in its Update.  
 
Comments are due before October 10, 2014 at 5:00 p.m. and should be sent to Christopher Calfee, Senior Counsel, Governor’s Office of Planning and Research, 1400 10th Street, Sacramento, California 95814.
 

Professional Cinematography Using UAS

Paul Fraidenburgh was quoted by the Digital Cinema Society regarding the use of unmanned aircraft systems for commercial aerial filming operations. The full article is available here.

Amazon Prime Air

Amazon has announced it will use unmanned aircraft systems to deliver packages.  But how soon?  Westlaw Journal Aviation quoted Barbara Lichman and Paul Fraidenburgh today in an article entitled “The FAA’s recent notice and Amazon drone delivery.”  

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. 

In proposing its new supplement to the Part 77 obstruction regulations, FAA invokes its authority to regulate the safe and efficient use of airspace, 49 U.S.C. § 40103(a), and to issue air traffic rules to govern the flight, navigation, protection and identification of aircraft for the protection of persons and property on the ground and for the efficient use of the navigable airspace.  49 U.S.C. § 40103(b).  It should be noted that FAA’s statutory mandate does not include governance of property outside the airport, 79 Fed.Reg. 23302.  Land use authority is vested entirely in surrounding local governments.  What FAA regulations attempt to accomplish, however, is to provide “guidance” to local jurisdictions to identify obstacles that may have an adverse impact on the navigable airspace within certain geographic parameters around airports.  The closer to the airport, the lower the advisable height of structures.  See 14 C.F.R. Part 77.17. 

In general, FAA’s regulations require that a developer of a structure that meets or exceeds FAA’s notice requirements submit a “Notice of Proposed Construction or Alteration,” Form 7460-1, within a certain time period before commencing construction.  14 C.F.R. Part 77.7.  The FAA may then find the structure an obstruction, and if it interferes with terminal procedures (“TERPS”), a hazard to air navigation.  Until now, however, these regulations did not include an algorithm that addressed the impact of arrival or departure of an aircraft that has unexpectedly lost an engine during either one of these operations. 

The addition to existing Part 77 of such a restriction is a dramatic example of the law of unintended consequences.  First, it would significantly extend the geographic scope of FAA’s obstruction regulation to as much as 10 miles from an airport runway, and, at the same time, lower the permissible height of buildings to remain consistent with OEI operations.  For example, some analyses anticipate that changing the way FAA assesses proposals to build new structures or modify existing structures to incorporate OEI procedures would lower the permissible height of a building as far as 10,000 feet from the end of a runway at a commercial airport from 250 feet to 160 feet, thus simultaneously lowering the building’s utility and value. 

These changes would have significant consequences not only for building owners but also for the public entities within which developments are located.  While FAA cannot dictate land use to a local jurisdiction, a finding that a proposed structure interferes with OEI procedures, and, thus, constitutes a hazard to air navigation, 79 Fed.Reg. 23303, might strongly influence a jurisdiction to amend long standing plans for development.  Such changes could have dramatic impacts on property tax potential and, therefore, the economic future of the community. 

Finally, FAA proposes to make these changes without a formal rulemaking process, 79 Fed.Reg. 23302, although it is working with affected public entities, airlines and other involved parties to address the proposal’s potential impacts by designating a single flight path at each airport to be used for OEI procedures, thus simultaneously lessening the potential impact on other surrounding land uses.  In addition, FAA has extended the period for public comment on the OEI proposal to July 28, 2014.
 

UAS Update Interview with LXBN TV

2014 has been the year of the unmanned aircraft systems (also known as drones).  Recently, we had the opportunity to sit down with LXBN TV to discuss the state of the UAS industry and what to expect in the coming months.  The interview is available here: LXBN 

FAA Weighs in on the Regulation of "Model Aircraft"

On June 25, 2014, the Federal Aviation Administration (“FAA”) published in the Federal Register, 79 Fed.Reg. 36172, its “Interpretation of the Special Rule for Model Aircraft” (“Interpretation”) established by Congress in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95, § 336 (“FMRA”).  Despite its name, FAA’s interpretation goes far beyond mere definitional clarification.  It is, instead, the first step in establishing FAA’s preemptive authority over Unmanned Aircraft Systems (“UAS”) as “aircraft” utilizing the National Airspace System (“NAS”), even where the operator of an UAS chooses to denominate it a “model aircraft.” 

As a first step in asserting its regulatory authority, FAA takes the position that Congress’ rule in the FMRA is nothing new, but, instead, relies heavily on the long standing statutory and regulatory definition of model aircraft as “aircraft,” i.e., mechanisms that are “invented, used or designed to navigate or fly in the air,” 49 U.S.C. § 40102; 14 C.F.R. § 1.1.  FAA also applies its own 2007 guidelines regarding UAS operating in the NAS, which recognizes that UAS fall within the statutory and regulatory definition of “aircraft” as “devices that are used or intended to be used for flight in the air with no onboard pilot.”  72 Fed.Reg. 6689 (February 13, 2007). 

FAA’s Interpretation, however, goes far beyond the simple inclusion of “model aircraft” in the category of “aircraft.”  The Interpretation expands even further upon FMRA’s three part test defining a “model aircraft” as an “unmanned aircraft” that is: “(1) capable of sustained flight in the atmosphere; (2) flown within the visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”  FMRA, § 336(d). 
 
With regard to FMRA’s second factor, the requirement that the model aircraft stay within the “visual line of sight” of the user, FAA interprets that requirement consistent with FMRA, § 336(c)(2) to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (including corrective lenses) and not goggles or other vision enhancing devices; and (3) people other than the operator may not be used to maintain the line of sight.  In other words, to maintain the identity as a “model aircraft,” the aircraft cannot be “remotely controlled” from a location other than that at which it is being flown.

The third factor, the definition of what constitutes “hobby or recreational use” is perhaps the thornier. 
 

FAA has defined the terms in accordance with the ordinary meaning reflected in the Merriam-Webster Dictionary definition of “hobby” [“pursuit outside one’s regular occupation engaged in especially for relaxation”], and “recreation” [“refreshment of strength or spirit after work”] [emphasis added].  On that basis, FAA unequivocally asserts that neither “commercial operations” [an aircraft operated by a “person who for compensation or hire engages in the carriage by aircraft in air commerce of persons or property,” 14 C.F.R. § 1.1], nor flights that are in furtherance or are incidental to a business, are for hobby or recreational purposes, and, thus, fall outside the definition of “model aircraft.”  FAA asserts its authority under 14 C.F.R. Part 91 to govern those flights that are for business purposes but do not involve common carriage.  Obviously, the FAA’s interpretation would foreclose from the definition of “model aircraft” any aircraft used in return for compensation or the prospect of compensation.

Even if a model aircraft meets the definition in FMRA § 336(d), it will not automatically be exempt from FAA regulation.  In addition, it must meet the following five factors set forth in FMRA § 336(a)(1)-(5): (1) the aircraft is flown strictly for hobby or recreational use (the same factor as contained in the underlying definition); (2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 lbs. unless otherwise certified through a design, construction, inspection, flight test and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) when flown within five miles of an airport, the operator of the aircraft provides the airport operator and airport traffic control tower with prior notice of the operation. 

FAA interprets the “community-based” set of standards requirement, consistently with the Congressional history of FMRA, to include a “comprehensive set of safety guidelines” established by a “membership based association that represents the aeromodeling community within the United States; [and] provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground.”  U.S. House of Representatives, FAA Modernization and Reform Act, Conference Report (to Accompany H.R. 658), 112 H. Rpt. 381 (Feb. 1, 2012). 

The requirement that the model aircraft weigh 55 lbs. or less refers to the weight of the aircraft at the time of the operation, not the weight of the aircraft alone.  This limitation is for the purpose of avoiding the situation in which an aircraft could be weighted down with equipment and still meet the 55 lbs. standard.  79 Fed.Reg. 36174 (although the 55 lbs. standard may be exceeded if it meets certain requirements set forth in § 336(a)(3)). 

Finally, FAA is not merely a paper tiger with respect to enforcement of these rules, even where model aircraft meet all the requirements for an exemption, and even where an exemption is applicable.  FAA interprets FMRA to require compliance by model aircraft of rules applicable to all aircraft in general, incorporating: (1) how the aircraft is operated (including the dropping of objects so as to create a hazard to persons or property, 14 C.F.R. § 91.13-15); (2) operating rules for designated airspace (to minimize risk of collisions, 14 C.F.R. § 91.126-35); and (3) special restrictions such as temporary flight restrictions and notices to airmen (NOTAMs) (to accommodate unique and unexpected obstacles to operation, 14 C.F.R. § 91.137). 

FAA interprets its enforcement power to derive not only from FMRA § 336 itself [“Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system,” § 336(b)], but also from its existing statutory authority “to prescribe regulations to protect people and property on the ground,” 49 U.S.C. § 40103(b)(2); see also 14 C.F.R. § 91.119 governing the altitude of aircraft over populated areas.

In short, there can be no mistake that both the Congress and the FAA regard “model aircraft” as “aircraft,” potentially exempt from specific operating rules under specified circumstances, but not exempt from the safety rules governing all “aircraft” using the NAS.  UAS operators seeking to take refuge behind the denomination of “model aircraft” will do well to seek an exemption under FMRA § 336(a)(1)-(5), and to operate in a manner consistent with FAA general rules governing aircraft safety and the protection of the airspace system and people and property on the ground, or expose themselves to lengthy and expensive enforcement actions that can be avoided with careful scrutiny and understanding of operant law and regulation. 

The public may submit comments identified by Docket No. FAA-2014-0396 on or before July 25, 2014 as set forth in 79 Fed.Reg. 36172.

Commercial vs. Recreational Drones: Are Existing Regulations Backwards?

A problem with the regulatory philosophy towards unmanned aircraft systems is quickly coming into view.  While foreign and domestic governments are investing time and money developing strict standards for commercial drone use, the more pressing threat of recreational use has largely escaped the regulatory spotlight.

 
The Australian Transport Safety Bureau (ATSB) finalized two reports last week that shed some light on the perils of recreational drone use.  The first report describes a near collision of a passenger plane with an unmanned aerial vehicle (UAV) near Perth Airport in Western Australia.  While approaching the airport for landing, the crew “sighted a bright strobe light directly in front of the aircraft,” reports the ATSB.  The UAV tracked towards the aircraft and the pilot was forced to take evasive action, dodging the UAV by about 20 meters.  The ATSB has been unable to locate or identify the operator of the UAV, which was flying in restricted airspace at the time of the incident.
 
The second report describes another near collision with a recreational drone just three days later in the airspace over Newcastle, the second most populated city in the Australian state of New South Wales.  In that incident, the crew of a rescue helicopter spotted a UAV hovering over Hunter Stadium during an Australian football match.  The UAV tracked towards the helicopter as the helicopter began its descent.  The ATSB’s report was supplemented with a comment by Australia’s Civil Aviation Safety Authority (CASA), which explained that the UAV appeared to be a “first person view” vehicle that was transmitting a live video feed back to its operator.  In other words, the operator was watching the game.  Neither the venue nor the official broadcaster took or authorized any aerial footage of the game.  CASA noted that over 90% of complaints received about UAVs relate to incidents caused by first person view drones.
 
Though these reports come from halfway around the world, they highlight a flaw in the Federal Aviation Administration’s (FAA) approach to the use of drones in American airspace.  The FAA subjects commercial drone users to strict regulations arising from traditional “aircraft used in commerce” standards while applying the more liberal “model aircraft” standards to recreational drone users.  (See 14 C.F.R. § 91.119 [requiring aircraft used in commerce to stay at 500 feet or more in altitude above rural areas and 1,000 feet above urban areas].)  The FAA staunchly defended this system in its appeal of the Pirker case, in which the FAA seeks to overturn the decision of an administrative law judge who ruled the FAA had no regulatory authority when it fined the operator of a drone used for commercial photography.  So does it make sense for the FAA to take a hard stance towards commercial drones and a more liberal stance towards recreational drone users?
 
Probably not.  Here’s why:

  

Google, Facebook, and Amazon are among the companies preparing to use drones in the ordinary course of their businesses.  Google and Facebook plan to blanket the earth with internet access and Amazon plans to deliver packages.  These companies have invested millions of dollars not only to develop commercial drone technology, but to monitor the pulse of the regulatory environment for commercial drones.  When the FAA finally issues its new drone regulations (due by September 2015), these companies will have teams of attorneys prepared to advise on how they can legally and safely mobilize their fleets.
 
Unlike commercial drone users, recreational drone users are extremely difficult to regulate.  The person flying a drone over the football game is unlikely to be as responsive to the new regulations as Amazon or Google.  Recreational drone users do not have the same profit-driven concerns as commercial users, meaning they have less incentive to monitor and comply with current regulations.  Remember, recreational drone users, by definition, are just having fun.  They may not even know what the FAA is.  The activities of recreational drone users are also more difficult to monitor.  Combined with the increasing availability and affordability of drones, recreational drone users will pose a far greater threat to safety in the air and on the ground than the Googles and Amazons of the world.
 
With the highly anticipated new drone regulations due out within the next 15 months, only time will tell whether the FAA will correct its disproportionate treatment of commercial and recreational drone users.
 

 

Santa Monica Airport Commission's Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law

The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft.  The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines. 

The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines.  “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.”  42 U.S.C. § 7571(a)(2)(A) and (a)(3).  There are, however, some limits on EPA’s authority.
 

The principal constraint on the EPA’s authority is the requirement that it consult with the Federal Aviation Administration (“FAA”), 42 U.S.C. § 7571(a)(2)(B)(i), [“Any regulation prescribed under this section (and any revision thereof) shall take effect after such period as the Administrator finds necessary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology . . .,” 42 U.S.C. § 7571(b)].  Only the President of the United States has the authority to change or veto regulations promulgated by EPA, also after consultation with FAA.  [“Any regulations . . . or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety,” 42 U.S.C. § 7571(c)].

Finally, the law explicitly forecloses any action such as that proposed by the City of Santa Monica to adopt and enforce emissions regulations different from those established by the EPA.  “No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such aircraft under this part.”  42 U.S.C. § 7573.  [Emphasis added.]

In summary, it is not necessary to go beyond the face of the statute to determine that the establishment and enforcement of regulations governing aircraft engines is wholly within the jurisdiction of the federal government.  Therefore, any attempt by the City of Santa Monica to adopt or enforce different regulations requiring certain aircraft to create lower emissions that those established by the EPA, or sacrifice access to Santa Monica Airport, would be void from the outset.  Given the above statutory and regulatory framework, the City of Santa Monica clearly needs to look further for a solution to its problems. 
 

Decision in Pirker Case Invokes Specter of Local Regulation of Unmanned Aircraft Systems

While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences.  The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation. 

Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1.  He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.”  On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations.  Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument. 
 

First, the term “model aircraft” is explicitly defined in FMRA, § 336(c)(1)-(3), as, among other things, “unmanned aircraft that is . . . (3) flown for hobby or recreational purposes.”  While Pirker does not explicitly state what has since come to light, i.e., that he was operating the aircraft for compensation, he does acknowledge that he “operated the model for the purpose of supplying aerial video and photographs of the University of Virginia campus to an advertising agency.”  Motion, p. 3.  Consequently, Pirker’s activities fall outside the scope of Congress’ definition of “model aircraft.”  See, Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 842-43 (1984) [“If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress.”].  

Second, even if, for argument’s sake, Pirker were correct that UAS are “model” aircraft, which he is not, then regulation of UAS would be thrown open to “a community based set of safety guidelines,” i.e., local regulation.  FMRA, § 336(a)(2).  The result could be a diverse and inconsistent set of regulations enacted by local communities throughout the country who may not be knowledgeable about the beneficial purposes to which UAS can be put, but are justifiably concerned about their careless, or potentially dangerous operation.

In the final analysis, under the incontestable mandates of FMRA, UAS operated for commercial purposes are engaged in interstate commerce and are, thus, subject to regulation by FAA.  [See, e.g., 49 U.S.C. 40103(a)(1) re: “Sovereignty and the Right of Public Transit – (1) The United States Government has exclusive sovereignty of airspace of the United States.”]  That regulations specific to UAS have not been finalized, and that FAA acknowledges the inapplicability of some current regulations to UAS, does not exempt UAS operated for commercial purposes from complying with those regulations that can reasonably be applied.  Which regulations may be applicable, and the extent to which they can reasonably be applied, must be, like the development of new regulations, the subject of ongoing conversations with FAA as it works its way through the revolutionary new processes and accompanying new issues presented by the exploding operations of UAS throughout the United States. 
 

FAA Pushes Back Against Advocates of Unregulated Drone Operations

The Federal Aviation Administration (“FAA”) has appealed a recent National Transportation Safety Board administrative decision, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, in which Administrative Law Judge Patrick Geraghty ruled that FAA had no regulatory authority when it fined the operator of an Unmanned Aircraft System (“UAS”) (otherwise known as “drone”) used for commercial photography, for operating a UAS at an altitude below that approved for commercial manned aircraft.  It would do well for developers, manufacturers and operators of UAS to listen carefully to FAA’s views because the decision, while preliminary, and subject to appeal through many levels of the Federal Court system, has opened the proverbial Pandora’s Box in the relationship of manned and unmanned aircraft and their joint, or separate regulatory frameworks. 

First, it is important for the UAS community to recognize that, while Administrative Law Judge Geraghty found an absence of regulatory authority in the FAA, the Opinion did not acknowledge the seminal issue of “the federal government’s pervasive regulation of aircraft, airspace and aviation safety,” see, Montalvo v. Spirit Airlines, 508 F.3d 464, 472-74 (9th Cir. 2007).  That pervasive control arises under the Federal Aviation Act, 49 U.S.C. § 40101 in which Congress expressly granted to the Secretary of Transportation, through his/her designee, the FAA, the tasks of, among other things, “controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both . . .,” 49 U.S.C. § 40101(d)(4), as well as “encouraging and developing civil aeronautics, including new aviation technology.”  49 U.S.C. § 40101(d)(3).  That express assignment of responsibility alone gives FAA “skin in the game.” 

FAA’s response more specifically addresses what it believes to be misapprehensions about the extent of its power and authority. 
 

First, FAA addresses the “myth” that it doesn’t control airspace below 400 feet, by reference to 14 C.F.R. § 91.119 which requires that aircraft used in commerce stay at 500 or more feet in altitude above rural areas and 1,000 feet above urban areas.  Second, and related, FAA disputes that model aircraft guidelines apply, i.e., that UAS used in commerce should be treated in the same way as models operating below 400 feet, three miles from an airport, and away from populated areas. 

Third, FAA takes the position that “there are no shades of gray in FAA regulations,” and, thus, anyone who wants to fly, manned or unmanned in the United States airspace needs some level of FAA approval.  FAA states that:

“Private sector (civil) users can obtain an experimental airworthiness certificate to conduct research and development, training and flight demonstrations.  Commercial UAS operations are limited and require the operator to have certified aircraft and pilots, as well as operating approval. To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified, and they can only fly in the Arctic. Public entities (federal, state and local governments, and public universities) may apply for a Certificate of Waiver or Authorization (COA).”

Finally, FAA attempts to dispel what it believes to be the misconception that all commercial UAS operations will be allowable after the deadline established by Congress for the development of regulations, September 30, 2015.  Promulgation of regulations will be incremental beginning with UAS under 55 pounds, later this year, with as yet unspecified provisions applicable to commercial operations. 

In fact, FAA has already started planning the rule making process in its November 7, 2013 publication of “Integration of Civilian Manned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap” (“Roadmap”) which sets forth “the tasks and considerations needed to enable UAS integration into the NAS . . .” Roadmap, p. 5.  FAA plans to follow up with an annual publication setting forth “further refined goals, metrics and target dates.”  Id. 

In the final analysis, and despite the recent administrative court decision bruited about by the press, the real challenge for UAS developers, manufacturers and operators, both present and future, is to successfully navigate the dangerous shoals of FAA regulation and to “work collaboratively and apply the necessary resources to bring this transition to fruition while supporting evolving UAS operations in the NAS.”  Id. at p. 5. 
 

Sustainable Airport Policies for Car Sharing and Ride Sharing Companies

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

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

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

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

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

Technological solutions such as geofencing may solve many of the problems related to airport regulation of TNCs because car sharing and ride sharing companies typically connect with consumers through smartphones.  Geofencing would allow airports to set up a virtual perimeter around the airport that would trigger a notification (and corresponding fee payment) every time a TNC driver arrives at the airport to pick up or drop off a passenger.  Additionally, airports could coordinate with car sharing companies to designate paid parking areas for vehicles within the car sharing network.  By tapping into the technological platforms TNCs have already developed, airports would have the benefit of adding streamlined sources of revenue without the burden of developing their own monitoring and networking solutions.

There is another reason why airports may want to take advantage of such innovative solutions rather than “killing the cow.”  The fact that airports are predominantly government entities means legal pressures could also play a significant role in the efforts by car sharing and ride sharing companies to break into the airport market.  Unlike private actors, government entities like airports owe constitutional rights to businesses.  Airports that maintain outright bans on car sharing and ride sharing services may face challenges under the Dormant Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment, among other sources of law.  The federal statute 42 U.S.C. § 1983 provides litigants with a private right of action for damages resulting from a deprivation of federal constitutional or statutory rights.

Thus, airports may profit by shifting focus away from how to exclude car sharing and ride sharing services and towards how to include and regulate these companies.
 

Appellate Court Grants Wide Discretion to Newhall Land and Farming Project Proponents in the Determination of the Significance of Greenhouse Gas Emissions Under CEQA

The California Court of Appeal last week reversed a lower court decision that would have indefinitely delayed the development by Newhall Land and Farming Company of 21,308 residential units, 629 acres of mixed use development, 67 acres of commercial use, 249 acres of business park, and 1,014 acres of open space in northwestern Los Angeles County over the next 25-30 years (“Project”).  The lower court’s decision had originally granted the Petition for Writ of Mandate brought by, among others, the Center for Biological Diversity (“Respondents”), challenging, among other actions by the California Department of Fish and Wildlife (“DFW”) (“Appellant”), the revised Joint Federal/State Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”) for the Project.

While the Appellate Court’s 112 page decision addressed numerous causes of action brought by Respondents in the trial court, one of the most unique and far reaching was its disposition of Respondents’ claim that the EIS/EIR’s baseline for assessing the cumulative impacts of the Project’s Greenhouse Gas (“GHG”) emissions is a procedural issue properly evaluated under the “failure to proceed in a manner required by law” standard, applicable to procedural actions, and that, employing the correct standard, the EIS/EIR’s analysis was predicated on an illusory baseline.  In a decision that is likely to be adopted in the adjudication of other California Environmental Quality Act (“CEQA”) actions challenging the evolving state and federal GHG standards, the Appellate Court firmly disagreed. 
 

The Appellate Court held that “the determination of an environmental baseline for the existing conditions in a project area is largely factual in nature.”  Center for Biological Diversity, et al. v. Department of Fish and Wildlife, Court of Appeal of the State of California, Second Appellate District, Division Five, Case No. B245131 (Super. Ct. No. BS131347), March 2, 2014, p. 99, citing Neighbors for Smart Rail v. Exposition Metro Line Const. Authority, 57 Cal.4th 439, 449 (2013), and, thus, “an agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all [CEQA] factual determinations, for support by substantial evidence.”  Id.   The Appellate Court then went on to find that the environmental baseline for the Project’s GHG emissions had been supported by substantial evidence in this case, where the Appellant adequately identified the amount of GHG emissions currently emanating from the Project site as the existing environmental setting, typically used as the baseline.  Id., citing CEQA Guidelines § 15125, subd. (a); Neighbors for Smart Rail, supra, 57 Cal.4th at 448. 

The Appellate Court went on to decide that the Appellant had properly declined to make a determination of the significance of the GHG emissions produced by the Project, even though the emissions were estimated in the EIS/EIR to exceed the baseline level of 10,272 metric tons per year by 259,000 metric tons per year, where the conditions without the Project’s environmental “efficiencies and strategies” were estimated to result in emissions totaling 390,046 metric tons per year.  The Appellate Court agreed with the Appellant that “the increase alone is not sufficient to support a significance determination because of the absence of scientific or factual information regarding when particular quantities of GHG emissions become significant (as climate change is a global issue).”  Center for Biological Diversity, supra, at 103.  The Appellate Court went on to find the Appellant “has discretion to select the significance criterion for [GHG] emissions,” Center for Biological Diversity, supra, at 105, citing CEQA Guidelines § 15064.4, subd. (a)], and to hold proper the Appellant’s significance criterion of choice, i.e., “[w]ill the proposed [project’s] [GHG] emissions impede compliance with the [GHG] emission reductions mandated in [the global warming act]?” 

In summary, the Appellate Court’s decision in this case lays the groundwork for future GHG analyses by leaving it up to the project proponent to choose, after providing evidence of the basis of its decision, both the criterion for the determination of significance and the definition of significance itself for GHG emissions, a very wide latitude for developers and other project proponents who now find themselves on the cutting edge of the interface between development and scientific analysis.
 

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.

The Federal Register gives somewhat inconsistent instructions regarding comments on the proposed order.  Although EPA’s announcement of the 60-day extension [79 FR 12681] provides, with respect to the submission of written comments:  “Please refer to the proposal (79 FR 1352) for the addresses and detailed instructions,” 79 FR 1352 is actually the “Withdrawal of Proposed Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units.”  However, on January 8, 2014, EPA also published “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units; Proposed Rule” [79 FR 1429], and that document does contain comment information.  See 79 FR 12681 for further information. 

Written comments may now be submitted until May 9, 2014. 
 

High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations

On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories. 

This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation.  In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions.  The High Court effectively upheld those rules by refusing to hear the challenges against them.  The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses.  EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals.  The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues. 
 

In one corner of the ring is a political juggernaut made up of Texas, Florida and 15 other conservative states, together with business and energy groups who are accusing the Administration of having overstepped its legal and constitutional authority by refusing to wait for Congressional action, and instead expanding the regulatory scope of the Federal Clean Air Act, 42 U.S.C. § 7401, et seq., (“CAA”) administratively.  In the words of the United States Chamber of Commerce, the Administration has enacted “the costliest, farthest reaching, and most intrusive regulatory apparatus in the history of the American administrative state.”  Specifically, the challengers argue that the scope of the regulations, while nominally limited to sources such as power plants and factories, would, in fact, include millions of other sources such as hospitals, shopping malls and universities, and would cause the cost of energy to rise dramatically. 

In the other corner are the EPA and environmental groups.  EPA argues that the Administration’s regulatory initiative was already sanctioned by the High Court as long ago as 2007, when the Court agreed with EPA that carbon monoxide, methane and nitrous oxide are pollutants subject to EPA regulation under the CAA.  The Court split in that decision, however, with the four conservative Justices taking the position that the Clean Air Act only covers air pollutants that affect breathing, not those that trap solar energy and contribute to climate change.  Observers expect a similar split this time, with Justice Anthony Kennedy, who voted with the majority in 2007, once again providing the deciding vote. 

Environmentalists argue the narrow scope of the regulation which they claim is limited to new, major emitters of GHGs, such as power plants, not any facility that emits GHGs, and that the targeted facilities are required to use “best available technology” to obtain a permit, a requirement that would exclude all less intrusive uses.  Until the High Court acts, however, the final bell will not be rung on the legal and political contests over the proper scope of GHG regulation under the CAA. 

D.C. Circuit Upholds FAA's "No Hazard" Determinations Regarding Electromagnetic Radiation from Nantucket Sound Wind Turbines

After protracted litigation challenging plans to build 130 wind turbines, each 440 feet tall, in a 25 square mile area of Nantucket Sound, the D.C. Circuit last month denied petitions for review of the Federal Aviation Administration's (“FAA”) determination that the turbines would pose no hazard to air navigation.

The petitioners, the Town of Barnstable, Massachusetts and a non-profit group of pilots and others, challenged the no hazard determinations based on the FAA’s failure to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.  The D.C. Circuit had previously vacated a 2010 no hazard determination based on the FAA’s failure to consider potential adverse effects of the turbines on pilots operating under visual flight rules (“VFR”) and the potential that electromagnetic radiation from the turbines would interfere with radar systems in nearby air navigation facilities.

Noting the circumstances had changed after the FAA upgraded the radar and beacon at Otis Airfield, the circuit court’s January 22, 2014 opinion upheld the FAA’s 2012 no hazard determinations.  The court concluded that the FAA properly based its determinations on aeronautical studies conducted according to the FAA Handbook, Procedures for Handling Airspace Matters, FAA Order JO 7400.2J (February 9, 2012), of which Section 3 on identifying and evaluating aeronautical effect was applicable.  According to the court, the FAA could reasonably view its Handbook procedures implementing the Secretary of Transportation’s regulations as requiring a threshold finding before triggering the need for a more advanced “adverse effects” analysis under Handbook Section 6–3–3 which states that “[a] structure is considered to have an adverse effect if it first ... is found to have physical or electromagnetic radiation effect on the operation of air navigation facilities.”
 

Additionally, the FAA was not required to prepare an environmental impact statement (“EIS”) because the U.S. Department of the Interior had already prepared one for the project and “[n]o hazard determinations generally do not require preparation of an environmental impact statement because they are not legally binding.”

The FAA’s no hazard determination was a precondition to the Department of the Interior’s approval of the lease needed to begin construction of the offshore wind farm in Nantucket Sound.
 

Judge Blocks City of Santa Monica's Latest Effort to Close the Santa Monica Airport

Predictably, Judge John Walter of the Los Angeles Federal District Court summarily dismissed a lawsuit brought by the City of Santa Monica (“Santa Monica”) aimed at closing the Santa Monica Airport, based on, among other things, unconstitutional taking of property without just compensation.  The court’s decision was made on the procedural grounds that, among other things, the lawsuit was brought too late and in the wrong court.

First, the court found that Santa Monica had brought the suit after the applicable 12 year statute of limitations had expired.  28 U.S.C. § 2409(a)(g).  The court’s rationale was that Santa Monica knew as long ago as 1948 that the Federal Aviation Administration (“FAA”) had a residual claim to the property arising from the Deed of Transfer of the federal government’s lease back to the City of Santa Monica.  That residual claim, therefore, required that Santa Monica’s suit be brought no later than the early 1960s. 

In addition, the court found that, even if a claim for unconstitutional taking could be sustained under the applicable statute of limitations, it was improperly brought in the District Court, as the Tucker Act, 28 U.S.C. § 1491(a)(1) vests exclusive subject matter jurisdiction over monetary claims against the federal government exceeding $10,000 with the Court of Federal Claims.  Santa Monica does not, of course, dispute that the value of the airport property that it wishes to recover and use for other purposes exceeds $10,000. 

Although the court chose the procedural route in making its decision, there appear to be relevant substantive grounds as well.
 

First, the parties continue to debate the factual issue of whether Santa Monica’s contractual relationship with the federal government extends only to the year 2015, or as far out as 2023.  The FAA’s reliance on the latter date arises from the fact that Santa Monica took its final federal grant in 2003, and its contract with the federal government is presumed to extend for the “useful life” of the facilities purchased with the most recent grant, or 20 years.  See, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  There is also the issue of real property purchased for the airport with federal funds.  In the case of Santa Monica Airport, the then existing Works Progress Administration (“WPA”) and Civil Aeronautics Authority (“CAA”) used eminent domain to acquire additional land in order to replace two runways with a modern 5,000 foot long runway.  As that section was purchased with federal funds, the obligation to keep that portion of the property, at least, in aviation use arguably remains in perpetuity.  Id. at § 4.6.h(2). 

Finally, there is the legal issue of whether the 5th Amendment’s “takings” clause applies to make whole a City like Santa Monica.  The 5th Amendment specifically states: “. . . nor shall private property be taken for public use, without just compensation.”  [Emphasis added.]

Therefore, there may be a strong argument that the 5th Amendment does not apply where one public entity is alleged to have “taken” the property of another public entity without paying for it. 

For all those reasons, and others, not the least of which is the preemptive authority of the Interstate Commerce Clause of the United States Constitution which militates against the closure of aviation resources, especially where options are as severely constrained as they are in the Los Angeles region, it is doubtful that Santa Monica will prevail in closing its airport.  A more fruitful approach might be an application to the FAA under 14 C.F.R. Part 161 for mitigation measures that can relieve the surrounding population to some extent of the impacts of noise and pollution which were so instrumental in precipitating the lawsuit requesting closure in the first instance.
 

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. 
 

To the extent that the Resolution purports to control the Airport’s airfield configuration, and because the Airport is owned and operated by another jurisdiction, the City of Colorado Springs, the Resolution runs into the brick wall of federal preemption.  “Under the doctrine of preemption, federal law prevails over state law if Congress has expressed an intent to occupy a given field in which federal law is supreme.”  Bethman v. Ukiah, 216 Cal.App.3d 1395, 1405 (1989).  By virtue of Congress’ clearly expressed intent in the Federal Aviation Act, 49 U.S.C. § 40101, et seq., to occupy the field of aircraft safety, federal law expressly preempts state law in those areas enumerated in Federal Aviation Act § 40103(b). 

Under Federal Aviation Act § 40103(b), the FAA Administrator is exclusively tasked with developing “plans and policies for the use of navigable airspace and assign[ing] by regulation or order the use of the airspace necessary to ensure the safety of aircraft and efficient use of airspace.”  Federal Aviation Act § 40103(b)(1).  The scope of the mandated air traffic regulations is broad, including, but not limited to, “(B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.”  Federal Aviation Act § 40103(b)(2)(B)-(D).  Toward that end, FAA also mandates the airfield dimensions necessary to safely accommodate the arrival and departure of aircraft, including runway and taxiway dimensions and certain zones around airports such as the Runway Protection Zone that airports must keep free of obstructions both on the ground and in the air.  See, e.g., 14 C.F.R. Part 77; FAA Order 5190.6B, Part IV, Chapter 21, § 21.6(f)(6), p. 21-9.  The United States Supreme Court has also recognized the supremacy of federal law governing aviation safety. 

“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cites omitted] and the protection of persons on the ground.  [Cites omitted] . . .  The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.  [Cites omitted].”

City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973). 

While the Resolution purports to be exclusively aimed at protecting nearby land uses; and while it is true that the Congress did not bestow upon FAA authority to regulate off-airport land uses, see, e.g., FAA Order 7400.2J, § 5-1-2.a, to the extent that the Resolution aims at controlling airport operations (which are the source of off-airport noise), or configuration (e.g., runway alignments), the Resolution falls squarely into the area of authority assigned exclusively to the federal government.

The Colorado Springs City Attorney’s Office agrees that the rules are vaguely drafted and in some conflict with federal regulations.  That opinion does not, however, go far enough.  The City should find guidance in the experience of the State of California’s Department of Transportation’s (“Caltrans”) attempt to impose a curfew upon operators at San Diego International Airport.  San Diego Unified Port District v. Gianturco, 651 F.2nd 1306, 1317 (9th Cir. 1981).  That case teaches that the local land use jurisdiction surrounding an airport should seek to control airport impacts by controlling proximate sensitive land uses, including residential uses, within their jurisdictions, not by controlling airport operations and physical development located outside it. 
 

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:
 

First, from a technical perspective, helicopters are obviously different in their operational capabilities from fixed-wing aircraft.  Their flight paths are somewhat flexible, both with respect to direction and altitude (depending on the approach and departure paths to proximate airports).  The flight paths of fixed-wing aircraft on approach and departure from airports, the time of maximum impact on surrounding communities, are, on the other hand, determined to a large extent by runway orientation, an inflexible determinant.  Thus, while it is conceivable that the FAA could obtain some voluntary adjustment to helicopter flight paths, the same adjustment is much more difficult to accomplish with fixed-wing aircraft, as is demonstrated by the number of years it has taken the FAA to enact regulations governing satellite guided approach and departure operations. 

Second, from a legislative perspective, the Appropriations Act, like most legislation establishes broad purposes, but suggests no measures by which to judge the FAA’s success in accomplishing those purposes.  For example, while the FAA is required to “evaluate” whether a specific route adjustment would “lessen impacts on residential areas,” the Bill does not define what constitutes “lessening” and, thus, leaves the door open to the utilization of FAA’s standard measure of noise significance, i.e., whether average noise over a 24 hour period has increased or decreased.  It is therefore conceivable, that FAA could, on the basis of that “average” measure, find that voluntary initiatives are sufficient, thus obviating the need for the regulations sought by impacted communities.

Finally, from a purely political perspective, it is notable that the vehicle used to enact § 119D is an “omnibus” spending bill which includes all of the 12 individual annual spending bills that cover the largest portion of the federal government’s annual discretionary spending (except Social Security and Medicare).  The Appropriations Act gained partisan support in the Congress, largely because it protects against another catastrophic government shutdown.  Outside of a similar vehicle with similar justification, and given the active interest of the aviation community in such legislation, it is highly unlikely that passage of mandates such as that contained in § 119D will be a regular occurrence.  Nevertheless, its passage gives confidence to noise impacted communities that federal legislators are not deaf to their issues. 
 

Reliever Airports Face Increasing and Competitive Woes

Reliever airports, once touted as the solution to major metropolitan airport congestion and its environmental impacts on surrounding communities are now facing daunting financial and competitive challenges from the very same airports they were supposed to relieve.

Reliever airports, defined as “general aviation airports in major metropolitan areas that provide pilots with attractive alternatives to using congested hub airports,” Federal Aviation Administration (“FAA”) Advisory Circular 150/5070-6B, Appendix A, Glossary, were typically developed to occupy a market niche in their local regions.  For years, they succeeded in their task.  Since 2009, however, reliever airports throughout the country have lost substantial proportions of their passengers to the major urban airports.  In Southern California alone, reliever airports such as Ontario International Airport (“ONT”) and Long Beach Airport (“LGB”) have seen massive reductions in their passenger counts.  Now these airports are forced to take drastic steps to remain viable. 
 

ONT, located in San Bernardino County, California was developed by the City of Los Angeles (which entered into a Joint Powers Agreement with the City of Ontario, California, its original owner, in 1969) to serve travelers in Eastern Los Angeles County and Northern Orange County, and to take the pressure off Los Angeles International Airport (“LAX”) which, until 2007, was fast approaching its airfield constrained level of operations of 78.9 million air passengers (“MAP”) a year. 

To enhance ridership, the City of Los Angeles invested hundreds of millions of dollars in new terminals and parking lots and other facilities at ONT.  With the 2007 recession and subsequent economic downturn, however, LAX management came to see the use of ONT as competitive with LAX for scant passengers and made affirmative attempts, including reduction in ONT’s marketing budget, to lure airlines to LAX and away from ONT to reduce the competition and perceived drain on LAX resources.  As a consequence, ONT has lost 9.27% of its revenue producing passengers over the last year alone, and is now on the verge of closure as a result.  The City of Ontario has taken legal action against the City of Los Angeles to reclaim ownership of ONT, based on, among other things, Los Angeles’ alleged breach of their 1969 Joint Powers Agreement. 

A similar syndrome has impacted an airport 3,000 miles across the country in Long Island, New York.  Between 2009 and 2012, MacArthur Airport, in Suffolk County, went from a $758,448 annual profit to a $2,068,017 annual loss.  MacArthur’s woes are due not as much to its competition with the major New York airports, LaGuardia and Kennedy which are closer to New York, but to bad bargains with Southwest Airlines (whereby MacArthur paid for the building of eight new gates for Southwest that are now sitting largely idle), and a parking lot operation whose contract with the airport is draining 25% of the airport’s potential profits from concessions.  MacArthur’s management sees privatization, i.e., sale to a private airport operating company, as a possible fix.  That, however, is a difficult road because MacArthur has received millions of dollars in airport development funds from the FAA over the years, which may have to be paid back in its entirety by the private operator as a condition of sale. 

Finally, some frustrated airport operators are attempting to take the drastic step of closure.  The City of Santa Monica, operator of Santa Monica Municipal Airport (“SMO”), is now challenging on constitutional grounds the rule promulgated by FAA which requires, as a precondition of closure, not only the repayment of funds paid by FAA for development of airport facilities, but also reimbursement to FAA of the current fair market value of the property upon which the airport is located, if any portion of the property was purchased with federal funds.  See, City of Santa Monica v. United States of America, et al., U.S.D.C. Case No. CV13-08046.

Of course, there are exceptions to every rule.  Southern California’s John Wayne Airport (“SNA”) and Palm Springs Airport (“PSP”) have increased in ridership even during the economic downturn, largely because of the relative economic viability of local markets in those locations.  These, however, are anomalies in the larger picture of reliever airport economic deterioration. 

Understanding that there is no problem to which there is no solution, however, remedies can be found, not only in the independent upturn in economic viability of target markets, but also in conversion to local control of those reliever airports which are jointly controlled with major airports, such as LAX, to remove the inherent conflicts and competitive interests, and to allow local authorities most benefited by the airports to develop innovative methods to support them.