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

February 26, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

 

Watchdog Finds Aircraft Maintenance Problems at American Airlines, Calls FAA Oversight Weak. --- Joan Lowy, Associated Press, February 18, 2010
According to a report released Thursday by the Department of Transportation’s Office of Inspector General, the Federal Aviation Administration’s lax oversight of aircraft maintenance at American Airlines raises concerns about the agency’s ability to regulate aircraft maintenance in general. At least four maintenance-related allegations made two years ago have “potential safety implications,” and despite a significant increase in maintenance problems at American, the FAA did little to address the issues. The report questions the FAA’s effectiveness and notes that the FAA only ever took action after the department had briefed agency officials on the need for them.
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FAA: Body Falls From Miami-Bound Airplane. --- The Denver Channel, February 18, 2010
A person’s body fell from a wheel well of an airplane leaving the Dominican Republic for Miami on Thursday, February 18. The body was recovered in the Dominican Republic.
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State Statistics on General Aviation Pilots, Aircraft, Airports. --- Scripps Howard News Service, February 18, 2010
The Scripps Howard News Service, drawing on information from the Federal Aviation Administration and other sources, has released state-by-state statistics on total general aviation pilots, aircraft, and public and private airports.
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FAA Rules Wouldn’t Stop IRS Attack. --- Des Moines News, February 18, 2010
Despite a “huge compilation” of rules and regulations, the Federal Aviation Administration could not have prevented the incident on Thursday, February 18, in which a man flew a small plane into an Austin, Texas Internal Revenue Service building. The regulations are designed to protect people in the skies and on the ground, but could not have stopped the pilot from intentionally flying into the building. The FAA attempts to prevent situations like the February 17 incident from occurring by requiring every pilot to have regular flight physicals and requiring pilots to be in contact with a control tower before takeoff and later with air traffic control, as well as mandating minimum distances that pilots must stay away from the ground.
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Keeping Watch Over Private Planes Difficult. --- Ben Wear, American-Statesman, February 19, 2010
Federal agencies regularly make attempts to monitor general aviation pilots and planes, particularly after 9/11, with various pilot requirements and background checks, but none of that would likely have made a difference in stopping Andrew Joseph Stack III and the Piper Cherokee plane he is suspected of purposely flying into an office building on Thursday, February 18. Little can be done about a “deranged” person who wants to do damage, and even if Stack had been required to file a flight plan and thereby trigger some scrutiny by air traffic controllers, nothing would have prevented him from veering off path and hitting his target. Jay Carpenter, former president of the Texas Aviation Association, also noted that Stack chose possibly the “least-effective” weapon he could have used, pointing to the relatively light weight of most private aircraft, including Stack’s plane, and the relatively low number of people killed and hurt.
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FAA, Los Angeles Clash Over Airport. --- Andy Pasztor, The Wall Street Journal, February 19, 2010
The Federal Aviation Administration wants Los Angeles International Airport to reconfigure its two northern runways to prevent airliners from blundering onto the wrong strip, but a recent report commissioned by the city from outside experts determined that it was not necessary to relocate one of the runways. The FAA maintains that increasing the distance between the runways is the surest way to reduce the likelihood of planes mistakenly rolling into the path of other aircraft, a significant issue at LAX, which led major U.S. airports in serious near-collisions on the ground. Los Angeles Mayor Antonio Villaraigosa and airport leaders balk at what would be a roughly $500 million project, and such construction plans would also face neighborhood opposition.
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NASA Study: LAX’s North Runways are Safe. --- Associated Press, February 19, 2010
A NASA study finds that chances of a collision are so low that a project to reconfigure two runways at Los Angeles International Airport would only marginally increase safety. In response, the Federal Aviation Administration contends that conclusions that the north airfield is “safe enough now” are not an argument against doing everything possible to make it safer. City Mayor Antonio Villaraigosa says that barring other findings that would indicate safety issues, the city will not move the runway.
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Redefining Safety at LAX. --- The Los Angeles Times, February 22, 2010
The recent NASA study finding that a runway relocation project would not be worth the cost, despite Federal Aviation Administration concerns about the runways’ design flaws, should not be the last word on improvements at Los Angeles International Airport. Although the study convincingly assessed that the risk of a deadly accident at the north airfield is very low, it also found that adding 100 feet of separation between the runways would reduce the risk of fatal collisions by 40%, while adding 340 feet would lower the risk by 55%--with the FAA and airlines putting up the $500 million needed for the project, it could be worthwhile.
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GE Faces $1.2 Million Fine for Jet-Engine Repair Procedures. --- Angela Greiling Keane, Associated Press, February 19, 2010
The Federal Aviation Administration has proposed a $1.2 million fine against General Electric’s GE Caledonian unit for “improper” aircraft-engine maintenance procedures at a repair station in Scotland. The agency said that GE used a procedure to remove parts from engine mounts that deviated from the process outlined by the manufacturer’s manual.
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FAA Proposes to More Icing Regulations for Part 121. --- Aviation News, February 20, 2010
The Federal Aviation Administration is proposing additional standards for Title 14 Code of Federal Regulations Part 121 that would require either the installation of ice detection equipment or changes to the flight manual to ensure timely activation of the airframe ice protection system. The new rules are intended to stop accidents when the flight crew is unaware of the ice.
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Small Airports Play Crucial Role in Aviation Security. --- Ted Strong and Chase Purdy, Daily Progress, February 20, 2010
Regional airports have a less visible but not less essential role in aviation security, because people who board planes at regional airports can work their way to any major airport in the country, and from there can board an aircraft without confronting another checkpoint. Steve Elson, a former Federal Aviation Administration counterterrorism team member said security weaknesses are consistent at airports large and small, and charged the Transportation Security Administration’s “thick bureaucracy” with preventing simple, necessary changes from taking place. Elson praises small airports, however, for their efficiency, because smaller airports allow for more hands-on security since the level of technology at such airports is usually low compared with the equipment found at international airports.
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8 Jobs Lost as FAA Unit Consolidates. --- Rome Sentinel, February 22, 2010
The Federal Aviation Administration is consolidating the radar approach control center at Griffiss International Airport in Rome, New York with the operations at Syracuse’s airport. Eight jobs at Griffiss will be affected, but the air control tower that handles landings and takeoffs will continue to operate as usual.
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GAO Issues Preliminary Report on Aircraft Icing and Winter Operations. --- Government Accountability Office, February 24, 2010
The Government Accountability Office has released a preliminary information report on aircraft icing and winter operations, as part of its testimony before the House Subcommittee on Aviation and Committee on Transportation and Infrastructure. The report provides preliminary information on the extent to which large commercial airplanes have experienced accidents and incidents related to icing and contaminated runways, the efforts of the Federal Aviation Administration and other aviation entities to improve safety in icing and winter weather conditions, and the challenges that continue to affect winter weather aviation operations.
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Investigators Call for More Pilot Training on Icing. --- Jerry Zremski, The Buffalo News, February 24, 2010
The Government Accountability Office says that federal regulators could do much more to guarantee that icing will not lead to a fatal plane crash, like ensuring that pilot training is thorough, relevant, and realistic. A GAO representative, testifying at a House Aviation Subcommittee hearing on aircraft icing, said there was data on hundreds of accidents that occurred between 1998 and 2007 that revealed that icing and contaminated runways pose a substantial risk to aviation safety, and that pilots are likely to encounter icing conditions beyond their aircraft’s capabilities at least once in their career. The GAO recommended a closer look at pilot training and urged the Federal Aviation Administration to speed up its efforts to write rules governing the use of aircraft in icy conditions.
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FAA: Willis Airport Decision is on Hold. --- Pat Murphy, Idaho Mountain Express, February 24, 2010
Actor Bruce Willis has proposed to build a single, 8,500-foot, jet-friendly runway for a privately operated field east of Fairfield, Idaho, but the Federal Aviation Administration will not finalize a decision on his plan until a separate study on possible sites for a replacement for Friedman Memorial Airport is completed. The proposed airport’s operational air space would “have an impact” on Visual Flight Rules operations in the air space of an alternative site being studied as Friedman’s replacement. Until the environmental impact study of that alternative site is complete, no resolution on Willis’ proposal will be reached.
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NTSB Wants to Monitor Pilots’ Cockpit Conversations. --- Catherine Holland, Azfamily.com, February 24, 2010
The National Transportation Safety Board is asking that airlines and unions be allowed to use black-box recordings to regularly listen in on pilots’ conversations, but the pilots’ unions are calling the proposal intrusive. The NTSB says the recommendation is not intended to invade privacy, but to monitor what’s happening in the air and make sure cockpit crews are doing their jobs, as well as promote safety by reducing misbehavior and inattention.
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Alaska Airlines to Offer Gogo Internet Service. --- Seattle Post-Intelligencer, February 24, 2010
Alaska Airlines will offer Aircell’s Gogo Inflight Internet service on all of its aircraft. The Gogo service is currently being installed on a Boeing 737-800 and will begin testing to secure certification from the Federal Aviation Administration; once the equipment has been certified for the 737s, the airline will start outfitting its entire fleet.
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Airport Dispute Continues. --- Sophia Aldous, The Statesman Examiner, February 24, 2010
The City of Colville in Washington is looking to relocate Colville Municipal Airport. A committee on the airport relocation process agreed that a new airport is needed, but no single airport site has been selected yet. The goal of the relocation is to improve safety in the air and on the ground, and to provide opportunity for expanded service and stimulate economic development, but there are many in the community who are opposed to a new airport.
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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Wednesday, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

$3.3M Airport Project in Works. --- Stillwater News Press, November 24, 2009
Stillwater Regional Airport in Oklahoma was approved for a $3.3 million taxiway and apron project that may be built in mid-2011. Five percent of the project will be funded by the state and Stillwater City Council, while federal money will account for the remaining 95 percent. The improvement plan will stall however until Congress approves a budget for the Federal Aviation Administration; Congress has passed a resolution providing temporary funding while it reviews and approves the FAA’s budget.
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FAA Fines Airlines for Stranding. --- United Press International, Inc., November 24, 2009
Federal Aviation Administration regulators fined three airlines $175,000 for an August incident where passengers were stranded overnight in a plane in Rochester, Minnesota. Department of Transportation Secretary Ray LaHood expressed his hope that the FAA’s investigation and resulting fine would serve as a signal to the rest of the airline industry that the DOT is expecting airlines to respect air travelers’ rights. The penalty is the first of its kind for the FAA, involving passengers left on the tarmac for an unreasonable period.
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Rockefeller Eyes FAA Extension. --- Adrian Schofield, Aviation Week, November 25, 2009
Commerce Committee Chairman Jay Rockefeller is proposing extending the Federal Aviation Administration’s operating authority through the end of March 2010. The seventh and current extension expires December 31, and it is likely that Congress would need even another extension into the summer. Airport groups will likely be frustrated as they have been pushing for the reauthorization bill to be passed this year, though it is unlikely airlines will be upset since they oppose some significant elements of the House bill.
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Aviation Industry Seeks Stimulus Money to Cut Delays at the Airport. --- Jim Snyder, The Hill, November 26, 2009
Commercial airlines and the private and business aviation industry have joined together to ask Congress to add money for a new air traffic control system in a second stimulus. The two lobbies agree that the NextGen system of satellite-based radar would reduce flight delays and help meet the growing demand for flight travel, but have been divided over how to pay for it.
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Jet Contrails Alter Average Daily Temperature Range. --- Science Daily via Jonathan Guillou, November 28, 2009
A study conducted during the three days after September 11, 20001, when the Federal Aviation Administration grounded commercial aircraft in the U.S., found that jet exhaust contrails affected average daily temperature ranges. Contrails form when water vapor and particles from jet engine exhaust enter the atmosphere, but not all jet exhausts create contrails, especially in warmer areas. Without the contrails from September 11-14, 2001, the daytime temperature was slightly higher and the nighttime temperature slightly lower, creating an increased range between the lowest and highest temperatures. Contrails alter temperature the way natural high clouds do, with the layer of ice crystals shielding the ground from some of the sun’s energy during the day, and preventing some of the Earth’s heat from dissipating into the vaccum at night.
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Wayward Pilots Were “Distracted,” Transcripts Show. --- Matthew Wald, New York Times, November 27, 2009
Transcripts from the October Northwest Flight 188 incident involving a Northwest Airlines plane that overshot its destination and was out of radio contact for over an hour reveal that the pilots were distracted. The transcripts and audio files were released Friday, November 27, 2009 by the Federal Aviation Administration, but the National Transportation Safety Board, which is also investigating, may release the transcript or a summary of it later this year. The FAA classified the incident as a “pilot deviation” and revoked the licenses of the two pilots, who are appealing.
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Report: FAA Accused of “Gross Mismanagement” at Newark Airport. --- David Porter, Associated Press, November 28, 2009
The Office of Special Counsel, a federal agency that handles whistle-blower complaints, has accused the Federal Aviation Administration of endangering public safety by not changing landing procedures at Newark International Airport in New Jersey. An air traffic controller filed a complaint last year describing safety issues with planes landing on intersecting runways at the airport. The report was filed last month and the FAA said it would make changes to the landing procedures by October 26, and later reported that it had done so when it hadn’t. The Office of Special Counsel sent a letter November 19 to White House counsel Gregory Craig reporting the FAA’s gross mismanagement.
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Coyotes Pose an Obstacle at North Carolina Airport. --- McClatchy Newspapers, November 27, 2009
Airport officials at Raleigh-Durham International Airport in North Carolina have noted a recent increase in the number of coyotes crossing the paths of taxiing airplanes and are looking to address the problem. Airport workers and federal wildlife managers usually try to scare coyotes off with cap guns or bottle rockets, but the airport is working on a larger wildlife management plan for the Federal Aviation Administration to review. The proposal recommends improving fencing and keeping grasses trimmed low to manage coyotes and other wildlife on the property.
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Edward Stimpson, Aviation Advocate, Dies at 75. --- John Miller, Associated Press, November 26, 2009
Edward Stimpson, an aviation advocate who pushed to rejuvenate struggling small aircraft manufacturers in the 1990s, died Wednesday, November 25, 2009 from complications related to lung cancer. He was a major proponent of legislation signed by President Bill Clinton in 1994 to prevent general aviation companies from being named as defendants in lawsuits in crashes of small planes 18 years old or older. He also advocated against record flying attempts and was a chairman of the “Be A Pilot” education and research program aimed at increasing the number of people learning to fly.
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Airports Push for Increased Facility Charge. --- Carl Unger, Smarter Travel, November 30, 2009
U.S. airports would like to see the current passenger facility charge (PFC) of $4.50 increased to $7.50 per segment, a 66 percent increase. The fees go toward updating runways, gates, and terminal facilities, but airports say they need higher fees to keep up with the rising costs of these improvements. Airlines oppose the proposed raise, saying that it would impose an additional and unwarranted $2-billion-per-year tax increase on commercial passengers. 
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Airports Want Passenger Fee Charge Increased. --- Roger Yu, USA Today, November 30, 2009
Airports have been lobbying Congress to raise the cap on passenger facility charges (PFCs) that fliers pay as part of their airline tickets, to index them to the inflationary cost of construction. Airlines oppose the increase, but airports have raised more than $27.5 billion since Congress approved the facility charge in 1992. John Meenan of the airline association says airports have too often used the money for projects they shouldn’t that the Federal Aviation Administration has been lax in approving.
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Regulators Reject Boeing 777 Safety Warnings. --- Andy Pasztor, Wall Street Journal, November 30, 2009
Federal Aviation Administration regulators have decided to allow more than 60 Boeing Co. 777 jetliners to continue flying long-distance international trips through early 2011 despite safety warnings from crash investigators and pilots. The jetliners have suspect parts that have caused engines in extremely rare instances to ice up and shut down in midair.
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Mending Fences: FAA Proposes Guidance on Through-The-Fence Operations. --- Mike France, National Air Transport Association, November 30, 2009
The Federal Aviation Administration released a proposed guidance document on through-the-fence (TTF) operations at federally obligated airports that has generated some controversy. A TTF agreement is an agreement entered into by an airport sponsor that would allow access to airport facilities by aircraft based on property adjacent to, but not owned by, the airport. The FAA’s proposed strict prohibition on TTF access for residential uses may create situations where airports’ sponsors are forced to use extraordinary measures to cancel existing TTF agreements. The National Air Transport Association is hoping to work with the FAA to ensure that existing agreements are structured in a way that honors their original intent without placing airports in danger of violating grant assurances.
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FAA Bans Takeoff with “Polished Frost.” --- Aubrey Cohen, Seattle Post-Intelligencer, November 30, 2009
The Federal Aviation Administration announced a new law which will take effect January 30 banning takeoffs with “polished frost” on the wings, stabilizers, and control surfaces of several classes of aircraft. Major and regional air carriers are already prohibited from operating with polished frost, but the new rule will affect 57 operators flying 188 aircraft.
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FAA Press Release: FAA Bans Takeoffs with “Polished Frost.” ---Federal Aviation Administration, November 30, 2009
The Federal Aviation Administration’s new rules, effective January 30, 2010, will prohibit takeoffs with “polished frost,” for several classes of aircraft. Frost can affect wings aerodynamics and control surfaces, and the new rules include four alternatives to removing frost that operators may consider.
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Plume of Pollutants From a Small Airport. --- Henry Fountain, New York Times, November 30, 2009
A study of the air around Santa Monica Airport by researchers at the University of California, Los Angeles found high concentrations of ultrafine particles of organic carbon and sooty black carbon that extended in a plume more than 2,000 feet downwind of the airport—longer than those typically found around highways in daytime. Dr. Paulson, one of the researchers, said that epidemiological studies have shown the health risks associated with these kinds of emissions by vehicles, but that there has not been similar analyses done around airports. Air quality around airports has not been studied much and when it has, the focus has usually been on larger airports.
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FAA Clarifies What Can Be Stowed in Seat Back. --- Joe Sharkey, New York Times, November 30, 2009
New Federal Aviation Administration guidelines clarify formerly confusing policies on whether passengers may put personal items in airplane seat-back pockets. In a recent FAA clarification notice sent to airlines, the notice stated that airline seat pockets are designed to safely hold about three pounds of weight and small, lightweight items can be placed in the pocket without exceeding its total designed weight limitation or blocking anyone from safely evacuating the row of seats. The status quo has allowed for items of reasonable size to be placed in the seat-back pocket, but airlines were being told different things by regional FAA inspectors, perhaps prompting the need for the clarification.
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FAA Asked to Do More to Fix Morale. --- Sholnn Freeman, Washington Post, December 1, 2009
A Government Accountability Office report released Monday, November 30, 2009 called on the Federal Aviation Administration to step up its efforts to promote diversity and do more to counter low morale by broadening its training programs. The GAO said the FAA’s morale and culture problems could obstruct its ability to attract and retain tech-savvy workers, critical as the need for workers will grow as the FAA moves to more advanced equipment and faces a wave of retirements.
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GAO Report: Mica Attacks Controllers as Cause For Morale Problems at FAA. --- The Potomac Current and Undertow, December 1, 2009
After the recently released Government Accountability Office report on poor Federal Aviation Administration morale, Representative John Mica attacked air-traffic controllers as the cause of the problems. He also said that conditions would be unlikely to improve under a “controversial labor contract” that unfairly benefited only one group of FAA employees.
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I.        Introduction

In the grand scheme of things, aviation may not represent a huge source of concern with respect to climate change. But neither should the aviation industry (airports included) ignore the fact that aviation does contribute to climate change not only through the emission of carbon dioxide (CO2) but also through the emission of nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness. The intent of this series of articles is to examine the effect aviation has on climate change, outline the regulatory and legal framework that is developing, and to suggest avenues for the aviation industry to pursue in the future.  The first challenge is to clear up some misconceptions about aviation and climate change so that we can move forward with accurate and up-to-date information.

II.      Some Facts About Aviation and Climate Change

In Aviation and Climate Change: the Views of Aviation Industry Stakeholders, the aviation industry makes several claims regarding the impact aviation has on climate change. First, the industry claims that “over the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous savings.” As a result, the industry continues, “given the significance of fuel costs to the economic viability of our industry, our economic and environmental goals converge.” Second, the industry claims that “because of our aggressive pursuit of greater fuel efficiency, greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, in order to assist the industry in its obligation “to further limit aviation’s greenhouse gas footprint even as aviation grows to meet rising demand for transportation around the world,” those claims of progress need to come under a microscope.

        A.            Contribution of Aviation to Climate Change Remains Subject to Debate

First, how much aviation contributes to climate change is still up to debate. Several governmental and aviation industry organizations have been reporting a “less than 3%” number for quite some time while environmental groups, particularly in Europe, claim that the percentage is anywhere from 5 to 9%. In examining the claims and counterclaims concerning emissions of GHG, one has to be very careful about the language and the metrics used in determining the “impact” any given industry will have on “climate change.” Many reports and studies focus only on CO2, since the amount of CO2 produced both naturally and by humans is overwhelming. However, as just about everyone knows by now, there are other gases and anthropogenic actions that exacerbate climate change. For example, the U.S. EPA recently proposed regulations that would require major emitters of six “greenhouse gases” to report their emissions to the EPA on an annual basis. Those six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorochemicals (PFCs), and other fluorinated 20 gases (e.g., nitrogen trifluoride and hydrofluorinated ethers (HFEs)). It also should be kept in mind when discussing climate change, especially with respect to aviation, that water vapor is estimate contribute anywhere from 36% to 72% of the greenhouse effect. This is important because the radiative forcing effect of cirrus cloud formation from the aircraft is a significant contributor to the greenhouse effect. As pointed out above, it is generally accepted that for aviation the GHGs of concern are CO2, nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness.

 

 

The predominance of CO2 as the GHG of concern leads to another issue: measurement of GHG. Many reports state their findings in terms of “CO2e,” or CO2 equivalent. Carbon dioxide equivalency is a quantity that describes, for a given mixture and amount of greenhouse gas, the amount of CO₂ that would have the same global warming potential (GWP), when measured over a specified timescale (generally, 100 years). For example, the generally accepted GWP for methane over 100 years is 25 and for nitrous oxide 298. This means that emissions of 1 million metric tons of methane and nitrous oxide, respectively, is equivalent to emissions of 25 and 298 million metric tons of carbon dioxide. This article will keep the convention of designating GHG other than CO2 in terms of “CO2e.”

Most reports and studies begin with the groundbreaking work of the United Nation Intergovernmental Panel on Climate Change (IPCC), which, in 1999 estimated that, based on earlier data, fuel combustion for aviation contributes approximately 2% to the total anthropogenic CO2 emissions inventory, and, if left unmitigated, this could grow to as much as 4% by 2050. Despite the age of the data, the 2% number has been used consistently throughout the first decade of the 21^st century. The International Air Transport Association (IATA) in a 2006 press release relied on IPCC report by stating that “[a]ir transport contributes a small part of global CO2 emissions – 2%.” IATA press release , 2^nd Aviation Environment Summit. Even as recently as September, 2009, the Transportation Research Circular of the Transportation Research Board fudges the issue by stating in the section about climate change and greenhouse gases that “fuel combustion for aviation contributes approximately 2% to the total anthropogenic CO2 emissions inventory.” What these estimates leave aside is the fact that CO2 emissions are only one facet of the greenhouse gas equation. 

The aviation industry tried to correct this in its paper Aviation and Climate Change: Views of Aviation Industry Stakeholders, published in February, 2009, by stating that “greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, the report that the paper cites to, the U.S. EPA’s Inventory of Greenhouse Gas Emissions and Sinks: 1990-2006 (April 15, 2008) (2008 EPA Inventory), only mentions emissions of CO2 in its discussion of its inventory of greenhouse gases in the creation of energy. See, 2008 EPA Inventory, Chapter 3. Moreover, the EPA only examined the aviation sector’s combustion of fossil fuel, and did not, for example, take into account the radiative forcing effect of cirrus cloud formation has on climate change. When the EPA published its next inventory, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2007, (March 2009) (2009 EPA Inventory), the contribution of aviation to carbon dioxide emissions increased. It estimated that when international fuels were included, domestic and international commercial, military, and general aviation flights represented about 3.4 percent of the total emissions of CO2 in United States. 

There is no question that the emission of CO2, and, for that matter, the combustion of fossil fuels, does not tell the whole story with respect to aviation. However, there are relatively few studies that focus solely on aviation and examine the effects of all GHGs and not just CO2. In 2005, Robert Sausen and a group of climate scientists published their article Aviation Radiative Forcing in 2000: An Update on IPCC (1999) (Sausen 2005). That article concluded that when NOx emissions, contrails and cirrus clouds are added into the mix, aviation’s impact on climate change is about 2 to 5 greater than that of CO2 alone worldwide. This would mean that aviation would have an impact on climate change in the range of 4% to 10% when all aspects of emissions of GHG and other radiative forcing factors are taken into account. These numbers were updated in a July, 2009, article Aviation and Global Climate Change in the 21^st Century (Lee et al., 2009) which appeared in the periodical Atmospheric Environment. The authors, a group of atmospheric scientists, concluded that when aviation-induced cirrus radiative forcing is included, aviation represents 4.9% of total anthropogenic “radiative forcing of climate.” While these studies are not United States specific, as the EPA inventories are, since these studies consider all GHGs emitted by aviation (not just carbon dioxide), are focused entirely on the climate effect of aviation, and are based more recent data, the conclusion that aviation contributes close to 5% of climate change is more accurate than the “under 2%” used by many in the aviation industry.

B.            Claims of More Fuel Efficient Aircraft Are a Little Exaggerated

If one were to rely solely on the aviation industry’s press releases, one could come to the conclusion that the aviation industry is doing its part to fight climate change by virtue of the fact that all aircraft have become more fuel efficient. In the aviation industry paper Aviation and Climate Change: The Views of Aviation Industry Stakeholders they state that “[o]ver the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous GHG savings.” February 2009, citing International Civil Aviation Organization, Environmental Report 2007, p. 107.   This is also the position that the International Air Transport Association has taken in its publications.   For example, in a press release regarding the Second Aviation and Environment Summit in 2005 IATA claimed that “Aircraft entering today’s fleets are 70% more fuel efficient than they were 40 years ago.” Likewise, the Air Transport Action Group (ATAG) website, www.atag.org states that “[t]oday’s world fleet is about 70% more fuel efficient than they were 40 years ago.” Seventy percent is also the number used by IATA for the amount of reduction of CO2 emissions per passenger kilometer. Aviation Environment Summit conclusions, 2005 (“Over the past 40 years, the commercial aviation industry has made tremendous progress in . . . reducing CO2 emissions per passenger kilometer (by 70%) and in improving fuel efficiency”). As recently as May 6, 2008, Douglas Lavin, Regional Vice President of North America for IATA testified before the U.S. House Subcommittee on on Aviation that “[o]ver the last forty years, the commercial airline industry . . . improved its fuel efficiency by 75%, leading to a similar reduction in CO2.” The improvement in fuel efficiency is at the heart of the industry’s proposals for meeting climate change challenges.

All of these statements, however, are based, in part, on the IPCC’s 1999 report, Special Report on Aviation and the Global Atmosphere. What one will note in reviewing the 1999 report is that it compares current jets with jets of the early 1960s. It does not, however, compare jets to piston engine aircraft. If they did that, a 2005 study from the Dutch National Aerospace Laboratory (NLR), which uses the IPCC data, concludes that aircraft have not made any progress in terms of fuel efficiency. “If one takes new aircraft from the early fifties (i.e. the last piston-engine aircraft) as the baseline, it shows that these last long-haul piston-powered airliners were as fuel-efficient as today’s average turbojet aircraft.” Fuel Efficiency of Commercial Aircraft: An Overview of Historical and Future Trends, NLR 2005, p.18. The GAO picked up on this dichotomy in its June, 2009, report Aviation and Climate Change GAO-09-554, p.4, fn. 5  noting that “some aircraft available in the 1950s were about equally as fuel efficient as jets currently available today.”

The Dutch report goes further and claims that even the report of 70% increase in the efficiency of jet engines from the early 60’s until the present may be overstated. Instead, the report claims, the fuel efficiency savings is closer to 55%. “If one takes new aircraft from the early sixties (i.e. the first jets) as the baseline (as presented in the IPCC report), an improvement of 55% is found rather than the 70% presented in the IPCC report.” NLR 2005, p. 18.   The Dutch report explains that main reason for this difference “is the different choice of baseline aircraft (B707 instead of DH Comet 4). The IPCC reference aircraft – the DH Comet 4 – has a rather atypical (i.e. very low) energy efficiency and only a very limited number were in operation. Further, the difference between the old and new aircraft chosen for the micro analysis is somewhat less than given by the IPCC.” NLR 2005, p,18. Thus, reliance on increases in fuel efficiency may not be an effective method to compensate for the effect that aviation has on climate change.

The industry reliance on innovation in creating more fuel efficient engines and aircraft, however, may be misplaced. Although recent innovations in engine and airframe design may eventually result in a more fuel efficient fleet of aircraft, they may not be sufficient to carry the industry forward to meet increasing demands on aviation to cut GHG emissions, at least in the short run. The GAO in its recent report concluded:

While airlines currently rely on a range of improvements, such as fuel-efficient engines, to reduce emissions, some of which may have limited potential to generate future reductions, experts we surveyed expect a number of additional technological, operational, and alternative fuel improvements to help reduce aircraft emissions in the future. However, according to experts we interviewed, some technologies, such as advanced airframes, have potential, but may be years away from being available, and developing and adopting them is likely to be costly. In addition, according to some experts we interviewed, incentives for industry to research and adopt low-emissions technologies will be dependent to some extent on the level and stability of fuel prices. Finally, given expected growth of commercial aviation as forecasted by IPCC, even if many of these improvements are adopted, it appears unlikely they would greatly reduce emissions by 2050.

GAO 2009, p.1. Over the short run, then, (i.e., between now and 2050) increases in fuel efficiency cannot be relied upon for decreases in GHG emissions. This was also the conclusion of the authors of Aviation and Global Climate Change in the 21^st Century (2009). They concluded that “[a]n examination of a range of future technological options shows that substantive reductions in aviation fuel usage are possible only with the introduction of radical technologies.” Despite the aviation industry’s claims of increased fuel efficiency and its belief that reducing GHG emissions makes economic sense, it may very well be that the reductions necessary to achieve the goals currently under discussion will not be possible.

Moreover, there are distinct trade-offs between fuel efficiency that may not necessarily reduce emission of elements that cause climate change. As Mahmood Manzoor, a Senior Specialist with Messier-Dowty, Inc., points out in his article Sustainable Development – A Major Challenge to the Aviation Industry (Manzoor 2009):

Over the past 40 years, the aviation industry has made tremendous progress in improving fuel consumption (by 70%) and reducing gaseous emissions of CO and hydrocarbons by 50% and 90% respectively. However, the high combustion temperatures and pressures of aircraft engines tend to increase the production of particulate matter and NOx [both of which contribute to climate change].

Manzoor, § 4.2. Resolving this dilemma has proven to be a nettlesome problem for the industry. Mahmood Manzoor continues:

Environmental trade-offs between NOx and other emissions, noise and CO2 that are inherent in aircraft and engine design, continue to be discussed in detail within CAEP [Committee on Aviation Environmental Protection]. The low emissions TALON II™ combustor reduced NOx by over 25%, but at the expense of an increase in smoke from 30% to 93% of the ICAO [International Civil Aviation Organization] standard. Similarly, a trade-off for a Dual Annular Combustor (DAC) where NOx and smoke were reduced by approximately 30% and 67% respectively while hydrocarbons and CO increased by 15% and 130%. . . . All trade-offs are important, but with the emphasis on minimizing fuel burn (therefore CO2) and reducing noise, manufacturers are being forced to optimize engine design within a narrow physical design space.

Manzoor, § 4.3. The result is that there is not a direct correlation between an increase in fuel efficiency and decrease in the impact of climate change. Fuel efficient engines, operating at higher temperatures at high altitudes could create more of an impact on climate change even if they are emitting less CO2.

 

C.            Aviation is More “Climate Intensive” Than Previously Thought

 

As a corollary to the previous section, the aviation industry has long claimed that it is the least “climate intensive” of all of the transportation sectors. That is, on “liter per passenger kilometer,” or “gallon per passenger mile,” modern aircraft are more “climate-friendly” than cars, trucks, buses and even high-speed trains. IATA trumpets this fact on its website: “modern aircraft achieve fuel efficiencies of 3.5 litres per 100 passenger km [approximately 78 passenger miles per US gallon] . . . The A380 and B787 are aiming for 3 litres per 100 passenger km – better than a compact car!” http://www.iata.org/whatwedo/environment/fuel_efficiency.htm; see also, Airbus A380 website  http://events.airbus.com/product/a380_backgrounder.asp (“The green giant, more fuel-efficient than your car”).

Environmental groups, on the other hand claim that Aviation is between two and ten times more climate-intensive than surface transportation. They claim that the aviation industry data ignore four crucial factors:

1. The figure of 3 or 3.5 liters per 100 passenger kilometer assume a full aircraft, i.e., a load factor of 100%. Thus, the number is representative of “aircraft seat” rather than “passenger.”
2. The occupancy rate of cars (and trucks) at distance competing with aircraft (i.e., long hauls) is higher than the average occupancy rate of 1.6 that is frequently used when assessing the climate impact of cars.
3. The figure of 3 to 3.5 liters per 100 seat kilometers applies to long-haul flights with large aircraft. Aircraft that do indeed compete with surface transport are smaller and fly shorter distances and are hence less efficient than 3.5 liters per 100 seat kilometers.
4. The climate impact of non-CO2 emissions is ignored. Because of the effects of NOx, contrails and cirrus clouds at high altitude, a liter of fuel burnt in an aircraft at such altitudes has a greater climate impact than a liter burnt by surface transportation.

With load factors between 70% to 80% currently, the actual amount “per passenger” will be higher than the 3 to 3.5 liters per 100 passenger kilometer. The GAO avoided this trap by showing how modern aircraft fuel efficiency has increased on a “available seat miles per gallon.” As a result, the GAO’s report shows the current efficiency to be at 58 gallons per available seat mile, which is significantly lower than the 78 gallons per available seat mile reported by the IATA.

Taking the above factors into consideration, a CE Delft report To Shift or Not to Shift, That’s the Question: The Environmental Performance of the Principal Modes of Freight and Passenger Transport in the Policy-Making Context concluded that aviation performs three to ten times worse in terms of climate impact than cars on competing distances, and some two to ten times worse than high-speed trains. Likewise, when one examines aviation as a freight hauling industry, it does not do any better when compared to surface modes of transportation. The study External Costs of Transport (INFRAS/IWW 2004) showed that when it comes to freight transport, aviation is even worsein terms of emissions than passenger transport. The external costs of aircraft-related climate change are approximately ten times greater than for trucks, the second worst mode. Although none of these reports can be said to be the definitive word on whether aviation is more or less climate intensive than surface transportation, it does highlight the fact that aviation is probably more climate intensive than what was thought.

 

I.        Conclusion: Policy and Legal Implications

So what are the policy and legal implications of these facts? First and foremost, it is evident that aviation plays a larger role in climate change than most in the aviation industry would like to admit. This means that now is not the time for complacency or resting on illusory laurels. If aviation is not to be left behind by the auto and truck industry as well as shipping, it needs to take action sooner rather than later to control its impact on climate change. Second, these facts indicate that, at least in the short run, technological innovations will not noticeably affect the impact that aviation has on climate change. As both the GAO and Lee et al. pointed out, although the aviation industry is making technological advances that will reduce emissions that create climate change, these advances will not be available for implementation in the near future. Third, airports cannot walk away from issues surrounding the climate change impact created by aircraft. Although according to a 2006 Seattle-Tacoma International Airport greenhouse gas inventory 90% of total CO2 emissions associated with that airport were form aircraft operating above 3,000 feet, the airport is still responsible for those emissions. Using simple “but for” logic, if it were not for Seattle-Tacoma Airport, those airplanes would not be landing there, therefore, the airport should take responsibility for all incoming flights.

 

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Although originally billed as a Senate hearing on FAA Reauthorization, because another continuing resolution was passed last week, the Senate Subcommittee on Aviation Operations, Safety and Security switched the focus of the hearing from Reauthorization to NextGen and "the Benefits of Modernization." 

Essentially, this hearing was a scaled-down version of the hearing that the House held last week.  (See, "U.S. House Subcommittee on Aviation Holds Hearing on FAA's NextGen and ATC Modernization Efforts,"  posted March 22, 2009). Indeed, the written testimony of Dr. Dillingham is almost word for word identical to the written testimony presented to the House Subcommittee.  Likewise, the written testimony of Dale Wright, NATCA's Director of Safety and Technology, was in most respects the same as Patrick Forrey's last week.  As Sen. John D. Rockefeller, IV, Chairman of the full Committee stated in his opening statement, this hearing was a first step to "move the U.S. past Mongolia in the ranking of air traffic control systems."

It was also Sen. Rockefeller who summed up the problems the FAA has been having not only with respect to NextGen, but many other issues as well:  "[r]ivalries in the aviation community have hampered the industry's ability to speak with one voice for far too long.  Without that one voice, you will fail."  The simmering labor disputes between the Air Traffic Controllers and the FAA; the mistrust between the Pilots and General Aviation; the airlines' position with the FAA have all made it difficult for anything to be resolved, even if everyone agrees that some form of NextGen is an absolute necessity.

Thus, the hearing had Hank Krakowski, Chief Operating Officer of the Air Traffic Organization at the FAA, patting FAA on the back for getting ATC Modernization off of GAO's "High Risk List," (see, "GAO Removes FAA Air Traffic Control Modernization Program From Its High Risk List," posted January 22, 2009) and generally touting how invested the FAA is in working with all stakeholders to achieve the goals.  In counterpoint, NATCA's Wright, talked about the human cost of NextGen, and telling the Subcommittee that the "FAA  must collaborate meaningfully with stakeholders" pointing out that "to date [NATCA has] received no indication from the FAA that the Agency has any intention of meaningfully collaborating with NATCA."

Likewise, T.K. Kallenbach of Honeywell Aerospace lauded the environmental benefits of Continuous Descent, which is possible with the new NextGen technology.  Meanwhile United Airlines' Joe Kolshak understandably lobbied hard for NextGen, since the airlines anticipate a huge drop in fuel costs, although the airlines might be looking for some assistance to get the required technology installed into the cockpits.  And finally, Dr. Dillingham once again told a Congressional panel that the "FAA faces challenges in resolving human capital," research and development, and facilities issues.

So, where does that leave us? Two "foundational" and "critical" hearings in which the same people are saying essentially the same thing that they (or their agencies/organizations) have been saying for at least the past two years.  With FAA Reauthorization stalled in the House (see "User Fees Issues Probably Will Force Short-Term Extension of FAA's Authorization Instead of Full Reauthorization," posted March 16, 2009), and the Obama administrative set to present its proposal in Mid-April, it seems unlikely that anything will get rolling anytime soon.

A list of the witnesses and their written testimonies follows.

Majority Statement - Sen. John D. Rockefeller, IV

Minority Statement - Sen. Kay Bailey Hutchison

Written Testimony and Witness List:

• Dale Wright, Director of Safety & Technology, National Air Traffic Controllers Association.
• T. K. Kallenbach Vice President Marketing and Product Management.
• Dr. Gerald Dillingham Director of Physical Infastructure Issues,United States Government Accountability Office.
• Joe Kolshak, Senior Vice President of Operations, United Airlines.
• Henry P. Krakowski, Chief Operating Officer, Air Traffic Organization, Federal Aviation Administration.

Archived video of the hearing.

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On March 18, 2009, the U.S. House Subcommittee on Aviation held a hearing entitled "Air Traffic Control Modernization and the Next Generation Air Transportation System:  Near-Term Achievable Goals."  The Subcommittee and the FAA are placing much of their hopes and dreams on the viability and success of NextGen and Air Traffic Control Modernization.  In opening comments, it seemed that if ATC Modernization and NextGen are fully implemented all of the current ills of the FAA will be resolved and world peace will be achieved:  safety will be improved, delays will be diminished, air traffic controllers will be able to handle more operations more quickly and more efficiently, pilots will be able to fly better, and, oh, it is good for the environment, too.  While, only being a tad sarcastic, it seems that many dreams have been placed on NexGen's shoulders.

There can be no doubt that NextGen is needed.  All of the technical witnesses testified that ATC modernization and NextGen are absolutely critical to maintaining the U.S.'s airspace.  Captain Rory Kay, Executive Air Safety Chairman of ALPA, stated that:

NextGen has the potential to revolutionize the National Airspace System and our air transportation system . . . Forecasted increases in air traffic of two to three times today's traffic cannot be met in today's NAS.

So what are the problems?  First and foremost, it is a question of funding. As former FAA Administrator Marion Blakey stated, in testimony as President and CEO of Aerospace Industries Association:

Much of what is needed for NextGen falls under the category of "new starts" which, as you well know, are prohibited under funding extensions. A large number of FAA NextGen pre-implementation issues - including development and acquisition decisions, have been adversely affected.

Now that FAA Reauthorization has been put on the back burner with the passage of yet another continuing resolution, do not look for these new NextGen projects to see the light of day any time soon.

Another issue is human resources.  NextGen represents a fundamental shift in the responsibilities and practices of pilots and air traffic controllers.  As Patrick Forrey, President of National Air Traffic Controllers Association, stated:

Under the proposed system, air traffic control would shift to what the FAA is euphemistically referring to as "Trajectory Management."  Essentially, air traffic controllers would discontinue active air traffic control and shift instead to air traffic monitoring and route management.  This could have serious implications for the safety of the NAS.

NATCA worries that "air traffic managers" would rely heavily on an automated system and not how to handle an emergency situation should the automated system go down.

For the airlines and general aviation, the problem with NextGen is the "equipage."  NextGen relies on up-to-date technology not only on the ground, but on the aircraft.  In the early 2000's, for example, American Airlines retrofitted its fleet to install the Controller Pilot Data Link Communication system only to have FAA abandon its efforts in 2004.  Airlines probably will be reluctant to equip their fleets until the FAA is able to effectively address the legitimate concern that the technology is good investment.  And that is difficult to do when the funding for the programs to develop the technology is not in place and has not been in place for the past 2 years.

All this assumes that the FAA has in place the management infrastructure to effectively manage and implement NextGen.  Although the GAO pulled ATC Modernization off of its "High-Risk" list, NextGen, as soon as its implementation begins will land on the list.  The GAO has found that the JPDO and ATO have made progress in planning for and developing NextGen, but much is left to do.  As Calvin Scovel, the Department of Transportation Inspector General pointed out, the FAA needs to :

(1) establish[ ] priorities and Agency commitments with stakeholders and reflecting them in budget and plans; (2) manage[ ] NextGen initiatives as portfolios and establish[ ] clear lines of responsibility, authority, accountability; (3) acquire[ ] the necessary skill mix for managing and executing NextGen; and (4) examine[ ] what can reasonably be implemented in given time increments.

Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) stated that this was a "foundational" hearing on a topic of importance.  While Congress debates FAA Reauthorization, NextGen and ATC Modernization must move forward.

Lists of Hearing Witnesses and Links to their written testimonies can be found by clicking on the "Continue Reading" link.

 

Summary of the hearing drafted by the Subcommittee on Aviation Staff.

Written Testimony:

Panel 1

• Ms. Victoria Cox, Senior Vice President for NextGen and Operations Planning Services, Air Traffic Organization, Federal Aviation Administration.
• Dr. Karlin Toner, Director, Staff to the Secretary and Senior Policy Committee for NextGen Coordination, Department of Transportation.
• Dr. Gerald Dillingham, Director, Physical Infrastructure Issues, Government Accountability Office.
• The Honorable Calvin L. Scovell III, Inspector General, Department of Transportation.
  
• Dr. Agam N. Sinha, Sr., Senior Vice President and General Manager, The MITRE Corporation.
• Mr. Robert Tobias, Panel Member, NextGen Study, American University.

Panel 2

• Ms. Marion C. Blakey, President and Chief Executive Officer, Aerospace Industries Association of America, Inc.
• Mr. Peter Bunce, President and CEO, General Aviation Manufacturers Association.
• Mr. James C. May, President and CEO, Air Transport Association.
• Capt. Rory Kay, Executive Air Safety Chairman and United Airlines Pilot, Air Line Pilots Association.
• Mr. Patrick Forrey, President, National Air Traffic Controllers Association.
• Mr. Tom Brantley, President, Professional Aviation Safety Specialists, AFL-CIO.

Video of the Hearing

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On March 10, 2009, the GAO made public its response to questions submitted for the record related to the February 11, 2009, hearing concerning  the FAA Reauthorization Act of 2009.  At that hearing, Dr. Gerald Dillingham, Director, Physical Infrastructure Issues, was asked a series of questions to which he replied that he would supply written responses at later date.  This document that GAO has now made public are those responses.

Most of the questions concerned NextGen, its implementation, and potential pitfalls that the GAO believes the FAA will encounter.

1. How can the FAA provide incentives to get aircraft equipped to handle NextGen?

Answer:  Through use of some combination of mandated deadlines, operational credits or equipment investment credits.  FAA has proposed a "best-equipped, best-served" program whereby FAA would offer those aircraft operators who choose to equip their aircraft as soon as possible with various operational benefits, such as preferred airspace, routings, or runway access.  Boeing has proposed a "reverse auction" in which federal investment tax credits would be combined with operational benefits.  This program, however would cost about $750 million annually over and above the cost of the implementation of NextGen.

2. List of NextGen technology demonstration projects

Answer:  See the next page for a table of the demonstration projects.

3. Does the GAO distinguish between ATC Modernization and NextGen?

Answer:  The ATC modernization program focused primarily on the acquisition of ATC systems. NextGen is a total transformation of the air transportation system, representing a paradigm shift from air traffic control to air traffic management. It is a shift from ground based radar control of aircraft to a satellite-based, aircraft-centric national airspace system.

4. If Congress were to provide the level of funding outlined in the FAA's preliminary estimate, approximately $1 billion more through 2012 than the most recent Capital Investment Plan, would it help to accelerate the development and deployment of NextGen?

Yes, if Congress provided FAA with additional funding, that funding could be applied to a variety of projects and initiatives that would help to accelerate the development and deployment of NextGen.

5. Would additional funding help to bridge the so-called "NASA Gap?"

The NASA gap has increased in recent years from both the previous administration's cuts to NASA's aeronautics research funding and the expanded requirements of NextGen.

6. Additional research, development and deployment that could be done with funding over and above FAA's Capital Investment Plan funding levels?

GAO found that avionics development and aircraft equipage are two areas that are critical and time sensitive for the implementation of NextGen and could be candidates for increased funding. In addition, additional funding for human factors to aid in the transition from "air traffic control" to "air traffic management" could be used to elucidate the new roles for all participants.

 

NextGen Demonstration Projects

Project	Description	Location	Partners
Surface Traffic Management	Provide situational awareness information to and data exchange among airport stakeholders using technology such as Airport Surface Detection equipment-Model X (ASDE-X) to support new decision support tools.	Memphis, John F. Kennedy, and Orlando airports	Airport authorities, FedEx, and Northwest Airlines
Surface Conformance Monitoring	Begin to link the movement of aircraft on the surface between air traffic control and future cockpit moving map displays.	TBD	TBD
Arrival Management (Continuous Descent Arrivals, Tailored Arrivals)	Use integrated automation tools and data communication to provide a cleared trajectory path, which is transferred to the aircraft and flown by the flight management system.	Miami, Charlotte, Atlanta, Los Angeles, Charleston (SC), and San Francisco airports	NASA Ames, Boeing, Sensis, American Airlines, Delta Airlines, U.S. Air Force Mobility Command, Georgia Institute of Technology, MITRE Corporation, and foreign carriers
Three-dimensional Path Arrival Management (3D-PAM)	Will provide, at high-density airports, a means to achieve accurate, predictable, and fuel-efficient routes, which are designed to decrease controller and pilot workload, as well as decrease adverse environmental impacts (emissions and noise) while potentially enhancing airport throughput.	Denver	NASA Ames, Boeing
Ground Based Augmentation System (GBAS)	Initially define and test Area Navigation/ Required Navigation Performance (RNAV/RNP) approach routes into and out of Teterborough, and separate Teterborough traffic from Newark's traffic. Operational demonstrations will be conducted using satellite navigation (SATNAV) technology in a complex environment to assist in identifying and implementing RNAV/RNP operations for performance-based navigation.	Newark and Teterborough airports	NY Port Authority and Continental Airlines
Oceanic Trajectory Based Operations (AIRE and ASPIRE)	Demonstrate potential benefits for oceanic trajectory optimization in terms of fuel savings and emissions reductions.	Atlantic and Pacific Oceans (beginning in fiscal year 2010) operational areas	Boeing; CSSI, Inc.; MITRE Corporation; American Airlines; foreign carriers and European partners
International Flight Data Object (IFDO)	Conduct research, development, and laboratory proof of concept of IFDO exchange using collaborative flight planning capability for oceanic and en route air traffic services.	Daytona Beach Airport	Lockheed Martin, Computer Sciences Corporation, Boeing, Harris, Adacel, and Nav Portugal
Four-Dimensional Flight Management System	One of a series of joint demonstration projects aimed at promoting global air traffic control leadership and collaboration with research and development activities in other countries.	TBD	TBD
Unmanned Aircraft Systems (UAS)	Examine potential for widespread integration of UASs into the future NextGen environment.	Kennedy Space Center	AAI Corporation, General Atomics, and GE
Network Enabled Operations Program	Develop and leverage network information technology to provide an agile, highly connective network for net-centric shared situational awareness.	TBD	TBD
Staffed NextGen Towers	Provide surface and tower services without the requirement for direct visual observation by air traffic control personnel from an airport tower cab.	TBD	TBD
Weather Integrated into Traffic Management Advisor and En Route Automation Modernization	Research, evaluate, and demonstrate NextGen concepts, procedures, technologies, and capabilities. Initial demonstration to show the incorporation of convective weather data into the Traffic Management Advisor tool to better maintain airport arrival rates.	Daytona Beach airport	Embry-Riddle Aeronautical University; Lockheed Martin; Computer Sciences Corporation; ENSCO, Inc.

 

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The U.S. Government Accountability Office today removed FAA air traffic control modernization program in its biennial update of its list of federal programs, policies, and operations that are at "high risk' for waste, fraud, abuse, and mismanagement or in need of broad-based transformation.  See, High Risk Series:  An Update, issued January 22, 2009.

The GAO added FAA air traffic control modernization to the High-Risk List in 1995 due to cost overruns, schedule delays, and performance shortfalls in the FAA attempts to modernize its air traffic control system.  However, the GAO has found that the FAA is making progress in "addressing most of the root cause of its past problems."  The GAO concluded that the FAA's efforts "have yielded results, including deploying new systems across the country and incurring fewer cost overruns." 

That being said, the GAO warned the FAA that it "will be closely monitoring FAA’s efforts because the modernization program is still technically complex and costly, and FAA needs to place a high priority on efficient and effective management."  Moreover, because FAA has now extended its modernization efforts to plan for a next-generation air transportation system that is to transform the current radar-based system to an aircraft-centered, satellite-based system, it must fall into the same pitfalls "that have plagued it in the past."

One thing missing from the GAO report is any discussion about how resolving the labor issues with the Air Traffic Controllers would affect the modernization effort currently underway.  With the emphasis in the GAO Report on equipment and deployment of that upgraded equipment, one wonders about making sure that the humans operating that equipment are well-trained and well-paid.

Other information regarding this document:

• GAO's 2009 High-Risk Series in a list format
• Summary of the GAO Report "High-Risk Series:  An Update"
• Highlights of the GAO Report "High-Risk Series:  An Update"

 

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Analysis of Legal Issues Regarding Slot Auctions, Part Two.

Having established previously that the FAA does not have specific authority to lease or otherwise dispose of slots, FAA turns to its general power to dispose of property in order to justify its auctioning of the slots.  Under 49 U.S.C. 106 FAA is authorized to:

acquire, construct, improve, repair, operate, and maintain . . . real and personal property . . . and to lease to others such real and personal property . . .” as well as to enter into “such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out the functions of FAA.

49 U.S.C. 106(l).  In addition 49 U.S.C. 40110 authorizes FAA “[to] dispose of an interest in property for adequate compensation . . .”  Thus, the FAA theorizes, if a slot is “property,” then by virtue of these three provisions it has all the authority it needs to dispose of the “property.”  

Leaving aside the statutory construction arguments that the FAA’s property disposition authority does not extend to such evanescent and intangible property rights as “slots,” the real legal question comes down to this:  Are slots a property right owned by the FAA?  

The controversy turns an interpretation of Cleveland v. United States, 531 U.S. 12 (2000), which was mentioned in the GAO Legal Opinion, IATA’s comments and ATA’s comments.  Cleveland stands for the proposition that the government’s regulatory powers to issue licenses to do something which otherwise would not be permitted does not create a property right for the government.  It only becomes a property right to the licensee after the issuance of the license.  In Cleveland, Louisiana claimed that licenses it issued to run video poker devices were its “property.”  The U.S. Supreme Court saw it a little differently:

Without doubt, Louisiana has a substantial economic stake in the video poker industry.  The State collects an upfront “processing fee” for each new license application . . ., a separate “processing fee” for each renewal application . . ., an “annual fee” from each device owner . . ., an additional “device operation” fee . . ., and, most importantly, a fixed percentage of net revenue from each video poker device . . . It is hardly evident, however, why these tolls should make video poker licenses “property” in the hands of the State.  The State receives the lion share of its expected revenue not while the licenses remain in its own hands, but only after they have been issued to licensees.  Licenses pre-issuance do not generate an ongoing stream of revenue.  At most, they entitle the State to collect a processing fee from applicants for new licenses.  Were an entitlement of this order sufficient to establish a state property right, one could scarcely avoid the conclusion that States have property rights in any license or permit requiring an up front fee, including drivers’ licenses, medical licenses, and fishing and hunting licenses.  Such licenses, as the Government itself concedes, are “purely regulatory.”

531 U.S. at 22. In other words, absent a statutory provision, so long as the “property” (the license in Cleveland) is the product of the Government’s regulatory power, or its police powers, it is not property while it is in the Government’s hands.  In this case, it would seem, based on Cleveland, that since the FAA derives its authority to assign slots from its regulatory authority over “navigable airspace,” slots are not property rights in the hands of the FAA.

FAA attempts to get around Cleveland by asserting that “Section 40110(a)(2) does not speak to whether the FAA actually owns property that is being disposed of.  It only speaks to the disposal of a property interest.  Only the FAA has authority to assign the use of navigable airspace under section 40103.”  73 Fed.Reg. at 60549.  The FAA concludes that even though the property right is created “at the time of transference” of the slot, it still falls within its property disposition power under 40110(a)(2) since it is “disposing of” a “property right.”  This however, ignores the fact that the FAA has no property interest to “dispose of,” and that in assigning slots it carrying out its regulatory duties with respect to the airspace.

Similar to the FAA, in Cleveland, Louisiana tried to compare its interest in video poker licenses to a patent holder’s interest in a patent that she has not yet licensed.  The court rejected that argument:

Louisiana does not conduct gaming operations itself, it does not hold video poker licenses to reserve that prerogative, and it does not “sell” video poker licenses in the ordinary commercial sense.  Furthermore, while a patent holder may sell her patent . . ., the State may not sell its licensing authority.  Instead of patent holder’s interest in an unlicensed patent, the better analogy is to the Federal Government’s interest in an unissued patent.  That interest, like the State’s interest in licensing video poker operations, surely implicates the Government’s role as sovereign, not as property holder.

531 U.S. at 23-24.  In other words, if it is not a property right until after it is sold or licensed, you do not have a “property right” to “dispose of.”  The FAA’s assigning use of navigable airspace “implicates the Government’s role as sovereign, not as property holder.”  Thus, it seems that since the Supreme Court has spoken on this issue, the FAA will be hard pressed to successfully argue that it can auction slots by virtue of its property disposition authority.

Next Post: Even if slots are FAA property, does the FAA violate the IOAA by accepting money for them?

 

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Pt. 1: Setting The Stage

When the FAA adopted its slot auction rules for LaGuardia, JFK  and Newark Airports, it did so despite the fact that the GAO had issued a legal opinion stating that it believed that the FAA did not have a legal basis to conduct auctions of slots at the airports. 

Needless to say, the FAA's decision brought some criticism from Congress.  Rep. James Oberstar (D-Minn.) and Rep. Patty Murray (D-Wash.) sent a letter to the FAA Inspector General, Hon. Calvin Scovel, requesting that he look into the matter and assess whether the FAA's actions were "potential willful violations of the Purpose Statute [31 U.S.C. 1301(a)] and the Antideficiency Act [31 U.S.C. 1341(a)(1)(A)]." 

The stakes got higher when, on October 10, 2008, the Port Authority of New York and New Jersey filed a Petition for Review in the U.S. Court of Appeals for the District of Columbia.  That Petition was followed on October 14, 2008, by similar Petitions for Review filed by the International Air Transport Association and the Air Transport Association of America.  All of the Petitions for Review were consolidated by the Court on October 27, 2008.

There seems to be agreement among all of the parties that the FAA has the regulatory authority to impose caps on hourly arrival and departure slots based on its authority under 49 U.S.C. 40103(b)(1) and (2), which allows the FAA to "ensure efficient use of the airspace."  The issue that separates the FAA from GAO, IATA, ATA and PANYNJ is whether the FAA may raise funds in connection with its assignment of slots through a slot auction, imposing a user fee, assessing a tax, or by some other mechanism.

In analyzing this fundamental disagreement some consensus emerges.  It is agreed that Congress has granted FAA explicit statutory authority to collect fees in several different situations, but that FAA has no explicit authority to impose fees related to the assignment of slots.  Indeed, the FAA has long sought such explicit authorization from Congress, which Congress has not yet granted.  See, e.g., 71 Fed.Reg. 51362 (Aug. 29, 2006) ( ". . . the FAA currently does not have the statutory authority to assess market-clearing charges for a landing or departure authorization").  It is FAA's efforts to get around the fact that it lacks explicit authority that is at the heart of the matter.

In order to claim authority to collect funds in connection with its assignment of slots, FAA makes two connected arguments.  First, FAA claims that a "slot" is an "intangible" form of property that it may lease pursuant to its "property disposition" power granted to it by Congress under 49 U.S.C. 106(l)(6) and (n) and 40110(a)(2).  Second, since the slot is a property right being leased, it is not an "user fee" or "tax."  Therefore, it is not subject to the Independent Offices Appropriations Act (IOAA), 31 U.S.C. 9701 et seq.  The opposing parties have claimed that the FAA is wrong on both counts.

Next Post:  Analysis of FAA's claims that it possesses a property interest in slots at airports.

 

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In a gutsy move that is sure to draw the ire of Congressional leaders as well as the Air Transport Association, the FAA announced last Friday, October 10, 2008, that it had promulgated two "congestion management" rules:  one for LaGuardia Airport, and the other for JFK and Newark Airports.  In these rules, the FAA stated that it would proceed with its auctions of slots at the airports despite the GAO Report indicating that it was unlawful to do so. (See, GAO Declares FAA Does Not Have Legal Authority to Auction Slots).

The Rule for JFK and Newark and the Rule for Newark, which both become effective December 9, 2008, establish procedures to address "congestion in the New York City area by assigning slots" at the three airports in a way that the FAA believes will allow "carriers to respond to market forces to drive efficient airline behavior."  The JFK/EWR Rule extends the caps on the operation at the two airports, assigns to existing operators the majority of slots at the airports, while the LGA Rule grandfathers the majority of operations at the airport.  The FAA claims that both Rules will develop a "robust" secondary market by annually auctioning off a limited number of slots in each of the first five years of this rule.  The FAA states that the proceeds of the auction will be used to mitigate congestion and delay in the New York City area.  Finally, the Rule also contains provisions for minimum usage, capping unscheduled operations, and withdrawal for operational need.  Leases obtained in the first auction will start on October 25, 2009.

Most of the Federal Register notice announcing the promulgation of the Rules is spent justifying the Rules in the face of the GAO's report that concluded that the FAA did not have the authority to auction the slots.  The FAA concludes that "the issues involved represent novel legal issues upon which reasonable poeple, and agencies, acting in good faith, have disagreed.  The FAA disagrees with the GAO conclusions and has decided to proceed with the adoption of this final rule."

An analysis of the legal statements will be forthcoming in future blogs.

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The GAO, in a legal opinion issued September 30, 2008, declared that "FAA currently lacks the authority to auction arrival and departure slots, and thus also lacks authority to retain and use auction proceeds."  This legal opinion came as a result of a Congressional request.

In April and May, 2008, the FAA issued proposed regulations to conduct auctions of the airport arrival and departure slots at LaGuardia, JFK and Newark airports. (See, FAA Proposes Congestion Management Rule for JFK and Newark Liberty).  Since then, the FAA indicated in August that that it was proceeding with an auction of two specific slots at Newark airport on September 3, 2008.  Although that action was administratively stayed (See, FAA Suspends Auction of Flight Slot at Newark Airport), the stay (issued by the FAA's Office of Dispute Resolution for Acquisition) was subsequently lifted on September 30, 2008.  Moreover, the FAA, on September 16, 2008, announced that it "may" auction slots at Newark, LaGuardia and JFK starting on January 12, 2009.

The FAA claimed that the slots are "intangible property" that it "constructs, owns, and may lease" for "adequate compensation under 49 U.S.C. 106(l)(6) and (n) and 40110(a)(2).  The GAO stated:

An examination of those statutes read as a whole, however, makes clear that Congress was using the term "property" to refer to traditional forms of property.  It was not referring to FAA's regulatory authority to assign airspace slots, no matter how valuable those slots may be in the hands of the regulated community.  Related case law confirms our conclusion.

The GAO concluded that if the auctions were to go ahead, and the FAA retained the proceeds that the the GAO "would raise exceptions under its account settlement authority for violations of the 'purpose statute,' 31 U.S.C. 1301(a), and the Antideficiency Act, 31 U.S.C. 1341(a)(1)(A)."

Needless to say the Department of Transportation was not too pleased with the outcome, stating that the GAO did not have time to do a thorough review given the "complexities of aviation law."  If the GAO had the opportunity to reflect, the DOT was "confident that GAO will better understand both the validity and the effectiveness of [the FAA's] approach."

On the other side of the fence, both the Air Transport Association and the Port Authority of New York and New Jersey issued press releases applauded the GAO's legal opinion.  Rep. James Oberstar (D-Minn.), the Chairman of the U.S. House Transportation and Infrastructure Committee, said in a press release that the "FAA should now reconsider its plan to auction slots in light of the GAO finding."

(For my commentary on the situation, see the blog post The "Tragedy of the Commons" and Airport Congestion Management)

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The Government Accountability Office issued a report to the Chairman of the U.S House Committee on Transportation and Infrastructure entitled "FAA Has Taken Steps to Determine That It Has Made Correct Medical Certification Decisions" on September 30, 2008.

In 2005, a joint investigation known as "Operation Safe Pilot" was conducted by the Department of Transportation Office of the Inspector General, Social Security Administration's Office of Inspector General, and California's U.S. Attorney Office.  That investigation revealed that the FAA had issued medical certificates to a small percentage of pilots who had disqualifying medical conditions that they did not report on their medical certification applications.  Calling some of the medical certificate cases "egregious," the DOT IG stated that 45 individuals identified as having falsified their certificates were prosecuted criminally as a result of the investigation. 

In March, 2007, the House Committee issued a report showing that a significant number of pilots were flying with fraudulent medical certificates and asked the GAO to assess FAA's efforts for screening medical certification applicants and identifying medically unqualified pilots.  The Report published on September 30, 2008, is the result of that request.

In sum, the GAO reported that the FAA has developed programs to help it determine whether it has properly issued medical certificates.  In particular, the FAA has instituted two quality assurance review programs, one to evaluate certificate that the Aviation Medical Examiners issued and a second to evaluate certificate decisions made by FAA application examiners.  In addition, the FAA checks each pilot applicant against the National Driver Register to look for drug- and alcohol-related motor vehicle actions and indications of substance abuse.

However, due to "recently resolved litigation," the FAA currently does not check federal disability benefits databases for indications that pilots may have disqualifying medical conditions.  The GAO's analysis of the Social Security Administration's disability databases found that 1,246 of the 394,985 medically certified pilots were receiving disability benefits.  Since this was the crux of the DOT IG's "Safe Pilot" investigation, the GAO's recommendation that "federal disability data bases can provide useful information on potentially disqualifying medical conditions" is a bit of an understatement.  That being said, the GAO correctly points out that just because a pilot is receiving disability benefits does not automatically mean that they are medically unfit to fly.

On September 26, 2008, Chairman James Oberstar (D-Minn.) issued a press release stating that although he was pleased that progress is being made, the fact that there are still medical certificates being issued to unfit applicants is troubling.  “Progress is good, but progress must lead to a goal,” Oberstar said. “In this case, the goal should be 100 percent certainty that certificates are not obtained fraudulently or erroneously. Perhaps that is an impossible goal, but it should be our goal nonetheless.”

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The U.S. House Subcommittee on Aviation met on September 25, 2008 to receive testimony on runway safety.  This hearing was a follow-up to the Subcommittee's February 13th hearing.  Rep. Jerry Costello (D-Ill.) stated in his opening remarks that although the U.S. air transportation system is the safest in the world, there remain many issues to be addressed to keep it that way.  In particular, he was concerned about the fact that although air traffic is down by 3% for the first six months of 2008 compared with 2007, runway incursions are up slightly.  While agreeing that the FAA is headed in the right direction with respect to the development and the deploying of new runway technology, Rep. Costello wanted the FAA to address the very real human factors that the GAO raised in the previous hearing, i.e., the air traffic controller shortage and the adequacy of the training of air traffic controllers.  Rep. Costello specifically mentioned the serious runway incursion that occurred at Lehigh Valley International Airport in Allentown, Pennsylvania, on September 19, 2008, where a trainee failed to notice that a small single engine airplane had not yet vacated the runway prior to allowing a regional jet to take-off on the same runway.  It was reported that 35% of the controllers at the tower at Allentown are trainees.

With respect to the increase of runway incursions, Hank Krakowski, FAA's Chief Operating Officer, explained that after the FAA adopted the International Civil Aviation Organization's (ICAO) definition of "runway incursion," it has seen a spike in incursions due to the more inclusive nature of the ICAO definition.  That being said, Mr. Krakowski spent most of his time offering an update about the technological innovations and the progress on the testing in the field.  However, Mr. Krakowski did not address Rep. Costello's concerns head-on.  Although he addressed some of the "human factors," by mentioning certain procedural changes and a "first ever" fatigue symposium (which are, by all accounts, steps in the right direction), he did not mention anything about staffing levels and quality of the training.

The necessity of the FAA to increase its focus on the "human factors" was echoed in Dr. Gerald Dillingham's, GAO's Director of Physical Infrastructure Issues, testimony.  Dr. Dillingham stated that the FAA is making progress in continuing to develop and test new technology, promoting changes in airport layout, markings, signage and lighting and issuing new air traffic procedures, but still could focus more on the human factors.  The GAO believes that increased training for pilots and air traffic controllers could help address the human factors issues.

Mr. Patrick Forrey, President of NATCA, found himself in the position of reiterating NATCA's previous recommendation.  Mr. Forrey called for Local Airport Committees for Runway Incursion Prevention, proper staffing of Air Traffic Control Towers, increased modernization of technological components, use of "end-around" taxiways and staggered arrivals into intersecting runways.

Written Testimony provided by:

• Mr. Hank Krakowski, Chief Operating Officer, Air Traffic Organization, Federal Aviation Administration;
• Dr. Gerald L. Dillingham, Director Physical Infrastructure Issues, Government Accountability Office;
• Mr. Patrick Forrey, President, National Air Traffic Controllers Association;
• Capt. John Prater, President, Air Line Pilots Association, International;
• Mr. James M. Crites, Executive Vice President of Operations, Dallas/Fort Worth International Airport.

For a video of the hearing click here.

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The Government Accountability Office (GAO) has issued its long awaited "FAA Airspace Redesign:  An Analysis of the New York/New Jersey/Pennsylvania Project."  Although the GAO promised to publish the report by August 1, 2008, it waited until the same day the Petitioners in the Airspace Redesign litigation filed their opening brief to publish the Report.  Although the GAO promised members of Congress to examine "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review" (p.3), it failed to take into two important aspects of the FAA's environmental review of its Airspace Redesign project, namely the Clean Air Act and section 4(f) of the Department of Transportation Act (for a full treatment of these issues, see the Joint Brief filed by the 12 sets of Petitioners in the Airspace Redesign litigation).

The GAO, making several critical assumptions about the Project, found, in general, that the FAA's approach, at least with respect to NEPA, was "reasonable."  First, the GAO found that the statement of the project's purpose and need, which, according to the GAO, was to increase the efficiency and reliability of the airspace while maintaining safety and reducing delays, was reasonable.  Most importantly, the GAO concluded that the FAA "reasonably excluded noise reduction."  Second, the GAO found that the FAA developed a reasonable range of alternatives.  Third, the FAA acted reasonably in not analyzing the indirect environmental effects of potential growth, the GAO said, resulting from the redesign.  Next, the GAO opined that the FAA reasonably involved the public throughout the environmental review process.  Finally, the GAO found that the FAA satisfied environmental justice directives in Executive Order 12898 and implementing CEQ guidance and DOT Order.

The GAO did identify some limitations to the FAA's methodology, but concluded that the FAA was not required by law to address them.  These "limitations" included the fact that because the FAA assumed that traffic demand and flight operations would not increase in response to airspace system improvements, the FAA did not account for the potential effect of the system improvements in its operational analysis.  Second, the FAA did not fully assess the uncertainty associated with each alternative estimated impacts.  And when the purported benefit of the Project is only a 0.8% reduction in fuel burnt, that "limitation" becomes more important.  Finally, the GAO believed that the FAA should have undertaken an analysis of the economic impacts using both an uncertainty analysis and a benefit-cost analysis.

What the GAO Report did not take into account are two important statutory requirements that are outside of NEPA's procedural requirements.  First, the GAO failed to take into account the fact that the FAA did not perform a "conformity applicability analysis" as required by the Clean Air Act, EPA regulations, and FAA orders.  The air quality in the areas around Philadelphia and New York are subject will be affected by the Airspace Redesign and there is no analysis anywhere in the FAA's environmental review regarding air quality.  Second, the GAO did not report on the FAA's failure to properly take section 4(f) of the Department of Transportation Act into account.  Section 4(f) protects federal, state and local natural areas from the environmental effects of Federal transportation projects.  The GAO Report did not mention the FAA's failure to properly identify and account for the environmental effects of the Project on those natural areas.

In the end, then, the GAO failed to answer the first question posed by Congress:  "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review?"  Without a discussion of the Clean Air Act and 4(f), the Report is incomplete.

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

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

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

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

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Yesterday, June, 11, 2008, the House Aviation Subcommittee heard testimony (click on link for video the hearing) on a situation that is becoming more dire as every day passes - Air Traffic Controllers are retiring, leaving a dearth of qualified, trained controllers to take their places.  The House Aviation Subcommittee convened the hearing to find out what can be done about the situation.

First up in Panel 1, were the bureaucrats.  Hank Krakowski from the FAA, Patrick Forrey from the National Air Traffic Controllers Association, along with Dr. Gerald Dillingham from the GAO, Calvin Scovey from the Department of Transportation Office of the Inspector General and David Conley of the FAA Managers Association.  Predictably, Mr. Krakowski downplayed any crisis, stating in his prepared remarks that the FAA was on top of the situation:  hiring 2000 controllers this year, seeking ways to retain retirement-eligible controllers, and working on a contract with NATCA.  

Mr. Forrey, had a different view.  He stated that “this country is facing an air traffic control staffing crisis” leading to “an unacceptable compromise in safety.”  First and foremost, to him, the FAA needs to return to the bargaining table with the NATCA to work on a contract.  That will lead to a higher retention rate of both experienced controllers and new hires.

Subcommittee members in their questioning sought to resolve the differences between the FAA and NATCA and implored the GAO and DOT-IG to assist in that effort.  Both the FAA and NATCA say they want a contract, but how they are going to get there is the open question.

The second panel was where the rubber hit the road.  Three air traffic controllers, Don Chapman from Philadelphia, Steven Wallace from Miami and Melvin S. Davis from Los Angeles testified about the problems they are facing at each of their facilities.  Although each mentioned specific challenges their facilities faced, they all came back to three major issues:  inadequate staffing (which raises safety concerns); inadequate training of new hires (which also raises safety concerns); and controller fatigue because the first two issues.  The Subcommittee seemed to take to these men and their "view from the front line."

(It should be mentioned that the Blog, "The Potomac Current and Undertow," offered an e-mail sent to FAA Air Traffic District Managers to find Air Traffic Controllers who would support the FAA's position that things are headed in the right direction.  Since only Messrs. Chapman, Wallace and Davis were the only controllers who appeared as witnesses, their effort seemed to fall short.)

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The Government Accountability Office published the testimony that Dr. Gerald Dilllingham gave to the  House Subcommittee on Aviation regarding the FAA's efforts to hire and train more air traffic controllers. 

The Dr. Dillingham's testimony, entitled "FAA's Efforts to Hire, Staff and Train More Air Traffic Controllers Are Generally on Track, but Challenges Remain" addresses the FAA's efforts to hire and train nearly 17,000 controllers over the next decade to replace over 15,000 current controllers, most of whom will be retiring. The challenge to the FAA is assuring that the Air Traffic Control facilities are adequately staffed with a proper mix of new trainees and fully certified controllers.  Dr. Dillingham, as well as the NTSB, strongly believe that having controllers work more overtime will lead to serious consequences.

Moreover, this massive hiring effort will occur as FAA begins to implement the next generation air transportation system (NextGen), which will integrate new technologies and procedures into air traffic operations and fundamentally change the role of air traffic controllers from controlling individual aircraft to managing air traffic flow. Hence, FAA will need to train experienced controllers to use the new technologies at the same time that it hires and trains new controllers to operate both the current and the new technologies.

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At a May 6, 2008, hearing of the U.S. House Subcommittee on Aviation, the FAA sought to dispel several "myths" concerning the effect that aircraft emissions of greenhouse gases have on the environment.  Coming a little over one month after the EPA announced its plans to issue an Advance Notice of Proposed Rulemaking for aircraft emissions of GHG (see, "EPA Plans to Release an Advance Notice of Proposed Rulemaking Emissions" below),  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that there were three myths that needed to be put to rest.  First, Mr. Elwell stated that aircraft emissions account for only 3% of GHG emissions, and “the largest aviation market in the world is burning less fuel today than in 2000.”  Indeed, Mr. Elwell, said, aviation in general and aircraft in particular are becoming more fuel efficient, now outstripping automobiles in terms of energy intensity - that is automobiles burn more BTUs per passenger mile than aircraft.  This increase in fuel efficiency and the attend reduction in GHG emissions was one of the primary themes of several other witnesses as well:

• Bill Glover, Managing Director, Environmental Strategy, Boeing Commercial Airplanes;
• James C. May, President and CEO, Air Transport Association of America, Inc.;
  
• Douglas E. Lavin, Regional Vice-President (North America), International Air Transport Association; and
  
• James K. Coyne, President, National Air Transportation Association.

Second, Mr. Elwell stated that CO2 emissions by aircraft at altitude do not have any more (or any less) effect on climate change than CO2 at ground level.  David H. Fahey, a research physicist for NOAA, has a small issue with that statement, when he responded to Rep. Ehlers' question about the effects of emissions.  Dr. Fahey stated that although CO2 does not affect atmosphere any differently at altitudes, nitrous oxides, a component of aircraft emissions, do.  That, in turn, affects ozone creation and methane. “That aspect of aviation is one that stands out,” Dr. Fahey stated. Moreover, Dr. Fahey continued, aircraft emission create water vapor in the upper atmosphere, i.e., contrails, which in turn creates clouds, which in turn creates "radiative forcing," a primary element of climate change.

Finally, Mr. Elwell wanted to make clear that the U.S. was not falling behind Europe in terms of environmental impact of aircraft emissions.  European aviation emissions, Mr. Elwell testified, have increased three times faster in recent years than U.S. emissions. He says that the U.S. is happy to participate in market-based environmental initiatives, as long as they are “based on mutual consent.”

This led to perhaps the testiest exchange, though came when the Subcommittee heard from Ambassador John Bruton, Head of the Delegation of the European Commission to the United States.  Ambassador Bruton testified about the controversial inclusion of aviation in EU's Emission Trading Scheme.  He believed that because aviation emits far more CO2 than other industries included in ETS, such as steel and oil, aviation must be included in the ETS.  Everyone seemed to acknowledge, however, that ICAO was the proper forum, although Ambassador Bruton indicated that the EU has attempted to go that route, but did not receive any indication that ICAO would take any action.  The members of the Subcommittee apparently did not cotton to the idea that the EU was taking the lead on this issue.  It also should be pointed out that the Lieberman-Warner Bill, currently before the Senate contains an emissions trading program.

Dr. Gerald L. Dillingham, Director, Physical Infrastructure Issues, for the U.S. Government Accountability Office also testified.  It was his belief that the aviation inductry could achieve significant reductions in emissions through the use of "Next Generation Air Transportation System" (NextGen) and an increase in research and development to promote such technologies as biofuels and fuel cells.  NextGen involves new technologies and air traffic procedures that can reduce aviation emissions and incorporates research and development on emissions-reducing technologies.

In short, the industry stated that it was making strides toward fuel efficiency, which would lower the amount of GHG emissions, although a more fuel efficient fleet would also increase the airlines' and aircraft manufacturers' bottom line, as well.  The government pointed to (reasonably) successful efforts made in better management of the airports and airways.  What remains to be seen is what action, if any, the House will take.

Also testifying:

• Captain Mary Ann Schaffer, Chairperson, Air Lines Pilots Association;
• Mark M. Reis, Managing Director, Seattle-Tacoma International Airport;
• Richard L. Altman, Executive Director, Commercial Aviation Alternative Fuels Initiative; and
• Opening Remarks of Subcommittee Chair, Rep. Jerry F. Costello.

For video of the session, click here for Panel I and here for Panel II.

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