Why the Airports and the Aviation Industry Need to Be Concerned About Climate Change: Part One, Facts about Aviation and Climate Change

Posted on September 24, 2009 by Steven Taber

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 21st 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 , 2nd 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 21st 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 21st 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.

 
Tags: , , , , , , , , , , , , , , , , , , , , , , ,

Aviation and Airport Development Updates - September 23, 2009

Posted on September 23, 2009 by Steven Taber

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.

  • Honeywell gets FAA okay on runway safety systems.The Federal Aviation Administration has greenlighted Honeywell International Inc.’s SmartRunway and SmartLanding, designed to prevent runway accidents at crowded airports. The systems reinforce standard operating procedures and add “situational awareness” at crowded airports by alerting pilots about runway and taxi locations, unstable approaches and long landings, and when an aircraft is landing too far down the runway to stop safely.  9/16/09, Phoenix Business Journal, http://bit.ly/C3w3B
  • Regulatory abuse by airlines threatens aviation safety. Aircraft Engineers International cites that the largest single cause of the downward trend in aviation safety is the increase in the number of regulatory breaches by airlines that remain uncorrected. Engineers from all over the world will meet in Varna, Bulgaria, from September 23-26, 2009 for the Aircraft Engineers International’s 37th Annual Congress, where they will take a closer look at issues including airlines’ deliberate abuse of aviation regulations to reduce costs, and airworthiness authorities’ adopting a more “hands on” approach to regulation. 9/16/09, Aircraft Engineers International, http://bit.ly/1WQ0gm
  • Feds keep little-used airports in business. Congress has directed $15 billion from an obscure federal program that raises billions of dollars a year through taxes on every airplane ticket sold in the United States to general-aviation airports. General-aviation airports have no scheduled passenger flights and operate separately from the commercial airports that handle almost all passenger flights, and comprise the world’s most expansive and expensive network of airports. Critics contend that the number of subsidized airports with no commercial flights is excessive at a time when larger airports are struggling with delays in air traffic, and that only a few private pilots are benefited. Local residents have also complained about the noise and pollution generated by the little-used airports. 9/17/09, Thomas Frank, USA Today, http://bit.ly/5icdM
  • FAA announces new efforts to respond to safety concerns. Federal Aviation Administrator Randy Babbitt announced that the FAA has a new focus on improving the agency’s response to public safety complaints and whistleblower contributions, as well as renewing efforts to ensure consistent interpretation of agency regulations and policies. The FAA will also improve how it communicates and interacts with employees, the public, air carriers, and manufacturers. Administrator Babbitt stated that the FAA’s “number-one customer” is the public, and is implementing changes in communication and interpretation of safety information to maintain a safe U.S. fleet and avoid cancellations. 9/17/09, FAA Press Release, http://bit.ly/RaNXC
  • FAA launches new accident prevention office. The Federal Aviation Administration’s Office of Aviation Safety launched a new Accident Investigation and Prevention Service that will integrate the work of the Offices of Accident Investigation and Safety Analytical Services. The new organization will consolidate resources and data from accident and incident investigations, historical accidents and incidents, and voluntarily submitted information from industry programs so the FAA can better understand current risks across the aviation community, and identify emerging vulnerabilities and trends. 9/17/09, FAA Press Release, http://bit.ly/Ifx2M
  • DOT fines Spirit Airlines for violating bumping and other rules. The Department of Transportation has fined Spirit Airlines $375,000 for various rule violations, including bumping passengers from oversold flights without compensating them and failing to resolve baggage claims within a reasonable time. The DOT’s action is being lauded for clearly protecting airline consumers against unfair and deceptive practices, which is a stated part of the Department’s mission. 9/17/09, Official Blog of the U.S. Secretary of Transportation, http://bit.ly/1s4ru5
  • Mountain Home Air Force Base wants more air space. Officials at Mountain Home Air Force Base in Idaho have asked the Federal Aviation Administration to expand the base’s air space deeper into Oregon and Nevada, saying that the expansion would double the effectiveness of the air space and training offered there and potentially making the base more attractive as a future training site for jets more modern and faster than the jets currently housed at the base. If approved, the expansion would increase the air space by nearly 30 percent from the more than 187 square miles the range complex currently covers. 9/17/09, The Associated Press, http://bit.ly/WkklS
  • UAL names Jane Garvey to Board of Directors. United Airlines announced that Jane Garvey, former administrator of the Federal Aviation Administration and President Obama advisor, will be joining the company’s Board of Directors. She was the first woman appointed to the role of FAA administrator and served on the transition team for President Obama, which focused on transportation policies and related infrastructure challenges. She has also advised states on financing strategies to facilitate project delivery for state governments and served as acting administrator and deputy administrator for the Federal Highway Administration. 9/17/09, PRNewswire, http://bit.ly/Bcn5o
  • FAA reauthorization bill pushed back in Senate. The Senate will not pass a Federal Aviation Administration reauthorization bill by September 30, the time the current bill will expire, and both the House and Senate will have to agree to an extension. The bill is being pushed back for an “inevitable fight” over a labor provision that FedEx adamantly opposes. Jay Rockefeller, chairman of the Senate Commerce Committee, wants final passage of the bill postponed but wants the bill considered sometime during this calendar year. 9/17/09, Bartholomew Sullivan, Memphis Commercial Appeal, http://bit.ly/Qn3sI
  • FAA will stop calling airlines “customers.” In a response to complaints that the agency’s relationship with airlines was placing the industry’s economic interests above passenger safety, Federal Aviation Administrator Randy Babbitt has said that the FAA will stop calling airlines “customers.” Administrator Babbitt listed several short- and long-term actions, including making the agency’s engineers available around the clock to support safety inspectors assigned to airlines, to improve airline compliance. A spokesman for the Air Transport Association is optimistic, believing the steps will lead to more succinct instructions for incorporating safety directives and leave less chance for technical ambiguity over compliance. 9/17/09, Joan Lowy, http://bit.ly/21aGlT
  • FAA OK’s first step of privatizing New Orleans airport. The Federal Aviation Administration has accepted a preliminary application to lease Louis Armstrong New Orleans International Airport, Louisiana’s largest commercial airport, to a private operator. Under a private operation program approved by Congress, an airport with a private manager could continue to receive FAA funds and grants and collect fees and charges, and the city could use lease proceeds for non-aviation purposes after money was set aside for airport debt service. Up to five public airports have been allowed to participate in the program, and Chicago’s Midway Airport is also considering a privatization plan. The program was started in 1997 to explore privatization as a way of generating private capital for airport projects.  9/17/09, The Associated Press, http://bit.ly/25Neo1
  • IATA Director General asks Obama to make aviation policy a priority. International Air Transport Association Director General Giovanni Bisignani wants the Obama administration to renew its role as a leader in the global aviation industry and make aviation policy a priority. Director General Bisignani has presented several policy recommendations to help in the recovery of the U.S. aviation industry in the areas of safety, security, environment and commercial freedoms, which include putting the NextGen system on a “fast track” to reduce delays at airports and airport emissions. 9/18/09, San Francisco Foreign Policy Examiner, http://bit.ly/LpoGt
  • Boston airport prepares nation’s first green runway. Boston’s Logan International Airport is nearly finished repaving the first runway in the nation with an environmentally friendly material called warm-mix asphalt. The asphalt is heated to a lower temperature than normal, and burns less fuel and emits less carbon. 9/19/09, The Associated Press, http://bit.ly/2XqAhb
  • Will a bigger runway boost the local economy? Carroll County government officials argue that the new, $72 million runway at Carroll County Regional Airport “won’t hurt” in attracting new businesses. Primarily paid for by the Federal Aviation Administration, the new runway will be longer and will have wider separation between the taxiway and runway, making it safer to land there and potentially able to handle more corporate jets. A spokesman for the National Business Aviation Administration said having an airport that can handle corporate aircraft is attractive to companies thinking about where to locate some or all of their businesses, but opponents of the project remain skeptical about the economic benefits or oppose the new runway because of the cost. 9/20/09, Adam Bednar, Carroll County Times, http://bit.ly/y2dix
  • Commentary from Federal Times: Charting a new path for the FAA. Dave Bowen, chief information officer for the Federal Aviation Administrator, states that the FAA’s NextGen initiative will enable digital communication, and digital weather modeling and other capabilities, while supporting a level of air traffic more safely, efficiently, and effectively than current levels. NextGen technology includes Wide Area Augmentation, which provides an additional degree of accuracy and reliability, and Traffic Information Service - Broadcast, which combine together into Automatic Dependent Surveillance-Broadcast. With ADS-B, an aircraft would broadcast its Global Positioning System position and receive the broadcasts of other similarly equipped aircraft. While the FAA is working with airlines to get them to put ADS-B equipment in their aircraft, the NextGen initiative as a whole is the “path to the future” for the FAA. 9/21/09, Dave Bowen, Federal Times, http://bit.ly/24CZjo
  • FAA approves first U.S. ground based augmentation system. The Federal Aviation Administration has approved Honeywell’s Smartpath Precision Landing System, which would provide precise navigation service based on the global positioning system. The ground based augmentation system augments GPS by providing precision approach guidance to all qualifying runways at an airport by monitoring GPS signals to detect errors and improve accuracy by transmitting correction measures to aircraft. GBAS has been identified as an enabler for descent and approach operations to increase capacity at crowded airports and will be improved over the next few years. 9/21/09, FAA Press Release, http://bit.ly/10xNLl
  • Senator Barbara Boxer says airline passenger bill of rights is coming. Senator Barbara Boxer says that passengers’ rights legislation is popular in Congress and likely to pass, even over airline industry objections. The senator’s bill would require airlines to provide food, water, and bathrooms to passengers stranded on flights and would force airlines to allow passengers off planes after three hours of sitting. The legislation is currently included in the Federal Aviation Administration reauthorization bill. Airlines have fought customer-service legislation for over ten years, but Senator Boxer has drawn support from former AMR Corp. and American Airlines chairman Robert Crandall, who believes new rules can be implemented without compromising safety. 9/22/09, Scott McCartney, http://bit.ly/cOau1

IATA goal of halving emissions by 2050 over 2005 levels. The International Air Transport Association stated its goal of cutting emissions in half by 2050 over 2005 levels, through a four-part approach of technology, operational improvements, infrastructure upgrades, and “economic measures.” The airlines plan to present plans by November 2010 to begin trading carbon credits on a global market as part of a global approach to the issue, and to improve carbon efficiency by 1.5% annually through 2020 and show carbon-neutral growth from 2020 onwards. The industry is on pace to improve carbon efficiency by 1.8% this year, but it is worth noting that with fuel being among the largest expenses at an airline, carriers have a clear and immediate incentive to pursue such gains. 9/22/09, Justin Bachman, BusinessWeek, http://bit.ly/17QP9U

 

Tags: , , , , , , , , , , , , , , , , , , , , , , , , ,

Legal Analysis of the FAA's Slot Auction Rule for JFK and Newark Part 2

Posted on October 28, 2008 by Steven Taber

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?

 

Tags: , , , , , , , , , , , , , , ,

Legal Analysis of the FAA's Slot Auction Rule for JFK and Newark Part 1

Posted on October 26, 2008 by Steven Taber

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.

 

Tags: , , , , , , , , , , , , ,