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.  
 

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).  
 

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. 
 

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

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

Specifically, the argument that the decision on Obamacare somehow lends support to local regulation of airports turns the Sebelius decision on its head.  In the Obamacare decision, the Court held, regarding the universal mandate to purchase insurance, that the Commerce Clause could not be used as a pretext to force the uninsured, who have not chosen to voluntarily engage in interstate commerce through the purchase of health insurance, to engage in commerce involuntarily by mandating such a purchase. 

In the context of Federal regulation of airports, however, the Commerce Clause has been applied to ensure that voluntary entrants into interstate commerce, i.e., the airlines and passengers, will not be obstructed by a web of disparate local regulations.  In upholding this application of the Commerce Clause to voluntary entrants into the air transportation system, as it has done consistently since the passage of the Federal Aviation Act in 1958, 49 U.S.C. § 40101, et seq., as amended, the Court held:

“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cite omitted], and the protection of persons on the ground. . . 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.” 

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

In fact, the airline/airport industry, which developed for the express purpose of facilitating business between states, and the United States and other countries (witness the impact of Lindbergh’s transatlantic flight in 1927), is the quintessential “voluntary” participant that our Founding Fathers authored the Commerce Clause to protect. 

In short, it is important to correct any false impression about the applicability of the Sebelius decision in the airline context, in order to save those readers looking for solutions to the widespread problem of airport impacts from wasting resources attempting to bring the national aviation system under local control.  Such time could be far better spent on the employment of other more effective strategies based on environmental and other statutes for working toward a better balance of commerce and its impacts.
 

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

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

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

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

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

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

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