Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

FAA Could Be Player in Airport Closure Battle. --- Cindy Leise, The Chronicle-Telegram, December 18, 2009
Lorain County commissioners have been debating closing Lorain County Regional Airport in Elyria, Ohio as they meet to approve a 2010 budget. The closure of the airport could result in a lawsuit, however, as the Federal Aviation Administration has given Lorain County millions of dollars over the years and expects the airport to remain open. The county commissioners are exploring options to keep the airport open while discussing closure.
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Transit, Airport Changes Coming January 15. --- Cindy Leise, The Chronicle-Telegram, December 29, 2009
Lorain County commissioners plan to close Lorain County Regional Airport in Elyria, Ohio on January 15, and possibly eliminate some transit routes. Commissioners cut their $500,000 of support for transit and are working to bring in extra federal money, but the county does not yet know how much might be forthcoming and cannot solidify plans at this time. Johnson Aviation Co., which sells fuel at the airport, has retained an attorney to challenge whether the county can eliminate financial support for the airport and close it. There is no word yet from the Federal Aviation Administration as to what action is planned to prevent a closing.
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County, FAA to Face Off OverAirport. ‑-- Kelly Metz, The Morning Journal, January 7, 2010
Lorain County commissioners met with Federal Aviation Administration officials in Chicago, Illinois to discuss the county of Lorain County Regional Airport in Elyria, Ohio. The airport was supposed to be shut down on Dec. 31, but was able to stay open a few weeks past deadline. The commissioners will work with the FAA to determine possible solutions to keep the airport operating, as the FAA took action regarding the closing of the airport since the agency had more than $9.2 million in grants invested.
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County Officials Meet with FAA About Airport, But Legal Battle Likely. --- Brad Dicken, The Chronicle-Telegram, January 8, 2010
The meeting between Lorain County officials and the Federal Aviation Administration was “very good, long, [and] intensive,” but there was no successful outcome and a legal battle is likely. The FAA warned the county that a move to close the airport would result in the agency launching an investigation to try to force the airport to remain in operation. The FAA could also ask a federal judge to issue an order to keep the airport operating, though the county would likely fight such a legal challenge and move forward with its plans to close the airport.
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U.S. Airlines Must Let Passengers Off Stuck Planes. --- John Hughes, Bloomberg, December 21, 2009
Under a new federal rule, U.S. airlines must let passengers off planes that are stuck on airport tarmacs after three hours, as well as provide drinking water and snacks after two hours. Airlines that don’t comply could face fines of up to $27,000 a passenger. Carriers oppose the standard, because they believe it will lead to more canceled flights and greater passenger inconvenience. Though the rule applies only to domestic flights, those flights would be exempt if pilots cite safety or security concerns, or if air-traffic controllers determine that returning a plane to the gate would disrupt airport operations.
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New DOT Consumer Rule Limits Airline Tarmac Delays, Provides Other Passenger Protections. --- Department of Transportation Press Release, December 21, 2009
The new Department of Transportation consumer rule limiting airline delays will significantly strengthen consumer protections. DOT Secretary Ray LaHood said that “airline passengers have rights,” and that the new rules will require airlines to live up to obligations to treat their customers fairly. The rule was adopted in response to the high incidence of flight delays and other consumer problems.
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DOT’s 3-Hour Limit on Tarmac Delay Holds - Does It Help or Will Just Make Things Worse? --- Steven Taber, Aviation & Airport Development Law, December 22, 2009
The Department of Transportation’s new rule governing passengers’ treatment for delayed flights enhances passenger protections, but could make things worse in terms of consumer friendliness. Airlines might cancel flights instead of having them wait, for example, and the rule might actually limit passengers’ legal remedies.
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FAA Reminds Employees to Act With Decorum. --- Associated Press, December 22, 2009
Hidden television news cameras showed Federal Aviation Administration employees partying while they were in Atlanta for a $5 million training program, prompting the FAA to remind its employees to act with decorum. The footage showed some of the employees drinking heavily and going to local bars after the meetings.
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Few Aviation-Related Injuries Involve Commercial Craft, Data Show. --- Nicholas Bakalar, The New York Times, December 21, 2009
Researchers analyzing data from 2000 through 2006, gathering information on crashes, parachuting accidents, and other injuries found that more than 1,000 people are hospitalized for aviation-related injuries, with only one-tenth of them passengers in commercial aircraft. The military services established effective surveillance systems to track aviation injuries, but the sources of information on nonmilitary injuries is not as complete.
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FAA Accepts Luis Munoz Marin Airport In Privatization Program. --- Wall Street Journal, December 23, 2009
The Federal Aviation Administration accepted a preliminary application from Puerto Rican airport officials to enter Luis Munoz Marin International Airport into the agency’s airport-privatization program. Puerto Rico can now begin soliciting bids from private investors who may be interested in operating the airport.
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Airlines Turn to Biofuel.

--- Sarah Nassauer, Grace L. Williams, and Angel Gonzalez,

Wall Street Journal

, December 24, 2009

Fifteen major airlines and air-cargo companies are negotiating to buy billions of gallons of fuels made from vegetable oil, coal, and petroleum coke, a petroleum-refining byproduct. The fuel has a smaller carbon footprint than petroleum, and the Federal Aviation Administration recently approved use of this type of fuel in commercial flights when blended equally with traditional jet fuel. However, though these fuels burn more cleanly than traditional jet fuel, there is only a “small reduction” of emissions over the life cycle of the product.

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Midway Airport Privatization Prepares to Take Off Again. --- Paul Merrion, Chicago Business, January 5, 2010
Chicago is close to completing its plans to revive privatization of Midway Airport in Illinois. Flight volume at Midway was up 4% and passenger traffic was up more than 14% in November, compared with the same month in 2008. Talks will likely resume soon with potential investors and operators who previously bid on privatizing Midway last year, but Southwest Airlines is still onboard with the city’s legal and financial team.
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Daley Hints at Privatizing MidwayAirport. --- WLS-TV, January 6, 2010
Chicago, Illinois Mayor Richard Daley hinted that the city may push to privatize Midway Airport once the economy improves. A deal fell apart last spring because of financing issues, but the mayor said it is “very progressive” legislation that cities have done all over the world.
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Bakersfield Airport Shut After Hazardous Material is Found in Checked Bag. --- Dan Weikel, Los Angeles Times, January 5, 2010
Bakersfield Airport in California was shut down and some arriving flights were diverted to nearby Los Angeles International Airport after a hazardous material was found in a checked bag. A hazardous material crew and bomb squad were also called to the airport.
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FAA Issues Final Rule Allowing the Use of Additional Portable Oxygen Concentrator Devices Onboard Aircraft. --- Federal Register, January 6, 2010
The Federal Aviation Administration announced a new final rule that will allow the use of four additional portable oxygen concentrator (POC) devices on board aircraft. When the rule becomes effective there will be 11 different FAA-suitable POC devices acceptable for onboard use. Passengers will be able to carry these devices on board the aircraft and operate them with the approval of the aircraft operator.
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EPA Proposes to Expand Lead Monitoring. --- Aviation News, January 6, 2010The Environmental Protection Agency proposed to expand the lead air quality monitoring network to include sources that emit a half ton or more of lead annually, compared to the current threshold of one ton a year. The proposed changes would expand the existing network by approximately 140 sites, and airports would be treated the same as other sources of lead when determining if source-oriented lead monitoring is needed.
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When the light-duty vehicle rule is finalized, the GHGs subject to regulation under that rule (i.e., the six greenhouse gases identified in the Endangerment Finding) would become immediately subject to regulation under the PSD program, meaning that from that point forward, prior to constructing any new major source or major modifications that would increase GHGs, a source owner would need to apply for, and a permitting authority would need to issue, a permit under the PSD program that addresses these increases. Similarly, for the Title V operating permit program, it would mean that any new or existing source exceeding the major source applicability level for those regulated GHGs, if it did not have a title V permit already, would have 1 year to submit a title V permit application.

Recognizing this incidental effect, the EPA proposed a “tailoring rule” on September 30, 2009.  In the Tailoring Rule, EPA proposed to set a new threshold of 25,000 metric tons of GHG emissions to define when Clean Air Act permits under the New Source Review and Title V operating permits programs would be required.  The proposed thresholds would “tailor” these permit programs to limit which facilities would be required to obtain permits and would cover nearly 70 percent of the nation’s largest stationary source GHG emitters—including power plants, refineries, and cement production facilities, while shielding small businesses and farms from permitting requirements. Thus, businesses that emit less than 25,000 metric tons of GHG and businesses that currently have a Title V operating permit will not, for the most part, be covered by the Tailoring Rule.

Should Businesses Make Voluntary Reductions in Greenhouse Gas Emissions?

So what should companies do in the meantime?

Many businesses have been evaluating their carbon footprint over the past few years (particularly since the Massachusetts v. EPA decision) and have been looking at ways to reduce GHG emissions. For many companies energy is a cost, and in some cases, greenhouse gases may be a lost resource.  By increasing efficiency, costs are reduced and the business operates better.  For example, the aviation industry loves to trumpet how it is getting “greener,” because it is reducing GHG emissions.  However, that greening has come about by reducing fuel consumption, which became a necessity when fuel prices spiked because fuel costs represent a huge percentage of the aviation industry’s costs.  The result?  Increased fuel efficiency=fewer emissions=reduction in emissions of GHG, with a reduction in fuel costs to top it off.  Moreover, there are ways that would reduce GHG emissions and accrue tax benefits, such as cogeneration or combined heating power.  These types of programs that reduce GHG emissions and accrue a direct benefit to the company’s bottom line should be pursued regardless of the regulatory environment.  The caveat would be that businesses should check in with their environmental law attorney to see if there are any carbon banks or carbon credit systems set up that they could participate in order to get “credit” for any reduction in GHG emissions.

Outside of those programs, however, caution should be taken with respect to taking on projects that would reduce GHG emissions, but represent a net cost to the business.  Many businesses are taking a “wait and see” attitude, relying on their environmental law attorneys to monitor developments, report to them about those developments and assist them in develop strategies and manage the risk.  It is only when the regulatory regime is in place that businesses can assess what changes need to be made to their processes and to their equipment in order to comply with the regulations.  Particularly when the costs to comply are substantial, businesses are going to want to wait until the requirements become fixed before they undertake a far-reaching GHG emission reduction program.

Congressional Outlook:  Who Knows What They Are Up To?

The progress in Congress on new Climate Change legislation is an additional reason for businesses to sit tight.  Since Monday’s Endangerment Finding, most business and industry groups have stated that they would much prefer either one of the bills currently being considered in Congress to regulation by the EPA.  The primary reason for this is the fact that both the Boxer-Kerry bill and the Waxman-Markey bill have “cap-and-trade” provisions, which, although excoriated by the Republicans, are much better for businesses than an EPA-centric “command-and-control” regulatory regime.  A good example of this change of heart is Sen. Mark Pryor (D.Ark.), who was reported as being more willing to consider a cap-and-trade proposal now that the EPA has issued its endangerment finding.

At the same time, the failure to come up with a bill for the President’s approval prior to the Copenhagen Climate Change Conference, the release of the hacked e-mails from East Anglia University’s Climate Research Unit, and the inexorable march of time have led to the Senate going back to the beginning.  Indeed, Sens. Kerry, Lieberman and Graham have put forth a new outline for Climate Change legislation. Thus, it is unlikely that Congress will have anything to offer until after the EPA has finalized the light-duty vehicle regulations, and perhaps after the Tailoring Rule is finalized.

Conclusion: Now Is The Time for Self-Assessment

The upshot of the Endangerment Finding and, for that matter, EPA’s regulation of GHG emissions, is that now would be a good time for businesses to assess just how much GHG emissions they produce.  The potential impact of EPA’s regulation of GHG emissions will be felt by companies that have not been traditionally required to examine their exposure to Clean Air Act regulation.  To state that there is not much clarity as which companies will be affected by the EPA’s Tailoring Rule, for example, is an understatement.  Even the EPA recognizes in its rule that it will need to fine tune it over the years so that does what it is supposed to do.  Thus, the more businesses know about their operations and the amount of GHG they emit, they better they will be able to assess their place in just about any scenario that may come up.