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

The Federal Aviation Administration has officially rescinded its controversial plan to enact mandatory slot auctions on LaGuardia, JFK, and Newark airports.  See 74 Fed. Reg. 52,132 (Oct. 9, 2009) (LaGuardia) and 74 Fed. Reg. 52,134 (Oct. 9, 2009) (JFK and Newark). 

Both the final rule "Congestion Management Rule for LaGuardia Airport" and "Congestion Management Rule for John F. Kennedy International Airport and Newark liberty International Airport" were published in the Federal Register on October 10, 2008 (73 Fed.Reg. 60544 and 60574).  These final rules established procedures to address congestion in the New York City area by assigning slots at the airports, assigning to existing operators the majority of slots at the airports, and creating a market by annually auctioning off a limited number of slots in each of the first five years of the rule.

The rules have been the subject of litigation and much controversy ever since the Bush Administration first proposed them.  The D.C. Circuit ruled last year that the slot auctions could not take place pending the outcome of the litigation.  They have also been the subject of two Law Review articles:  Benjamin D. Williams's Comment, Playing the Slots: The FAA Gambles with Its Controversial Congestion Management Plan for New York's Busiest Airports, 74 J. Air L. & Com. 437 (2009), offers a detailed discussion of the law and policy implications of the FAA's proposed slot auction rule; and Professor Michael Levine's article Airport Congestion: When Theory Meets Reality, 26 Yale J. on Reg. 37 (2009) which presents an improved proposal for slot auctions--one which accounts for market realities and provides airlines holding slots to see the full opportunity costs of retaining (and possibly hoarding) their slots

Then the administration changed and on May 14, 2009, the FAA published a notice proposing to rescind the 2008 final rules citing the impact of the Omnibus Appropriations Act on the rules and the state of the economy in general.  And for those reasons, the FAA states that it "has decided to rescind the 2008 final rule effective immediately."

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FAA Issues Notice of Order to Show Cause Regarding Extension of Limitation of Arrivals at JFK and Newark Airports The FAA, on June 5, 2009, issued two Notices of Order to Show Cause requesting "the views of interested persons on the FAA's tentative determination to extend through October 30, 2010, the January 15, 2008, order limiting the number of...

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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.

General Aviation Supporters Cite Benefits of Funding Small Airports. --- D.R. Stewart, Tulsa World, September 30, 2009
Critics of general aviation airports believe that the airports receive too much federal funding that should instead go to 400 infrastructure-constrained commercial airports. In response, supporters contend that the general aviation airports are indispensable because they relieve aircraft traffic at commercial airports, provide an economic lifeline for small communities, and serve as training and medical evacuation centers. Through the 28-year-old Airport Improvement Program Congress has appropriated $15 billion to 2,834 general aviation airports, with the majority of the funding being paid by U.S. airline passengers through a tax on each ticket and a fee for each flight.
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NTSB Recommends Several Revisions on Bird Strike, Operations Regulations. --- The Aero-News Network, September 30, 2009
The National Transportation Safety Board has issued a list of recommendations for changes in Federal Aviation Regulations that should enhance bird strike prevention, as well as safety, for charter operators. The recommendations include revisions to existing regulations, as well as more stringent requirements. The NTSB has also called on the Federal Aviation Administration to assess why its current policies, procedures, and practices have resulted in a failure to detect certain noncompliant operations, and to develop additional methods, measures, or procedures for performing inspections on or following up on complaints about noncompliant charter operations.
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Cockpit Chatter Cited in Six Cases. --- Alan Levin, USA Today, October 1, 2009
Federal law prohibits airline pilots from chatting or joking during critical phases of flight, but the National Transportation Safety Board has cited six violations of the “sterile cockpit rule” in six crashes since 2004. Additionally, more than half of the cockpit recording transcripts released in serious accidents in the last decade contain evidence of violations. While safety advocates and even the Federal Aviation Administration Administrator Randy Babbitt acknowledge that pilots need to improve their discipline and too many of the slips are occurring, Professor Edwin Hutchins of the University of California, San Diego cautions that most violations are minor and research has not shown that they are a threat to safety.
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Angry Residents Confront Port of Seattle and FAA Officials About Airport Noise. --- Ralph Nicols, The B-Town Blog, October 1, 2009
During a two-hour community meeting in Burien, Washington, hundreds of angry residents complained about the additional noise generated by commercial jets using Sea-Tac International Airport’s third runway. The citizens said that the Port of Seattle lied to the public about the use of the third runway, and there was even a suggestion that the runway should be shut down, to save the Port millions of dollars in future lawsuits over noise and noise mitigation. Stan Shepard, manager of Sea-Tac noise programs, replied that the Port would not consider shutting down the runway, and another problem exists in that though the runway was planned and built by the Port of Seattle, which operates the airport, it is the Federal Aviation Administration that directs air traffic, including which runways will be used for each landing and take-off. FAA representatives were also present at the meeting, but gave no indication that the residents’ concerns would have an impact on the FAA’s use of the third runway. Use of the third runway may be reduced in future, however, as the complete rebuilding of the longest runway, which is closest to the terminal, is now complete.
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Air Safety Initiatives Run Into Opposition. --- Sholnn Freeman, The Washington Post, October 1, 2009
A number of air safety proposals have been filed in Congress this year following the February 12, 2009 crash of Continental Connection Flight 3407 outside of Buffalo, New York. The National Transportation Safety Board revealed several aviation safety issues in preliminary hearings and reports, and lawmakers demanded action in response. U.S. aviation colleges have emerged as major opponents to some provisions of the proposed House legislation, fighting the provision that would require all airline pilots to obtain airline transport pilot certificates from the Federal Aviation Administration which would substantially boost the flight time of entry-level pilots and likely force the aviation college graduates to spend an additional year or more acquiring the required hours. In the Senate key lawmakers have been more concerned with grappling with healthcare reform, forcing aviation safety legislation into the back seat.
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Coalition of Aviation Industry says FAA Reauthorization “Critically Overdue.” --- September 25, 2009
In a letter to members of the U.S. Senate, a coalition of aviation industry groups stressed the importance of passing a multi-year reauthorization of the Federal Aviation Administration. The group stated that the reauthorization would provide “desperately needed” funding for airport and airway system improvements, and the extensions that have been passed in the last two years are hampering the necessary investments for national airspace infrastructure. The groups urged both legislative chambers to advance the bill and complete the reauthorization process.
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FAA to Overhaul Process of Tracking Whistle-Blower Reports. --- Sholn Freeman, The Washington Post, September 17, 2009
The Federal Aviation Administration plans to overhaul the way it processes whistle-blower reports, saying that it will create an Office of Audit and Evaluation to accept, track, and coordinate action on such reports. Congressional and Department of Transportation probes into safety lapses by American Airlines and Southwest Airlines found that some of the lapses had been brought to light by FAA whistle-blowers, and both Congress and the DOT slammed the FAA for mishandling safety complaints.
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FAA Administrator Babbitt: Major Carriers Reinforce Commitment to Safety. --- Statement by FAA Administrator Randy Babbitt, FAA Press Release, October 2, 2009
In a public statement, Federal Aviation Administration Administrator Randy Babbitt released a list of respondents and non-respondents to the FAA’s Call to Action, which asked air carriers for written commitments to implement “best practices” and adhere to high professional standards. Administrator Babbitt noted that most of the U.S. air carriers had responded and several who did not are already using the key safety programs the FAA had asked for, while some others may have been too small to have certain programs in place. He reiterated the FAA’s goal to ensure all carriers are operating at the highest levels of safety, and released the list of operator and labor organization non-respondents to show them that the American public, and not just the FAA, would “ultimately judge” their reluctance to adopt proven safety practices.
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More Gary Airport Hurdles Crop Up. --- FlyInsider, October 2, 2009
Gary/Chicago International Airport continues to face hurdles in its expansion plans, with the latest being a scrap yard that will have to make way for a railroad relocation. The airport’s plan to move railroad tracks that sit at the end of the airport’s main runway means the tracks will have to run through the property of a scrap company, and the airport would have to pay for some or all of the scrap yard’s land, and possibly the moving of the business as well. The airport authority is also facing opposition from the Gary Community School Corporation, after the corporation rebuffed an offer from the authority to buy 40 acres of the school corporation’s land that are needed for the expansion.
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New York Flight Caps Extended for LaGuardia, Kennedy, Newark. --- John Hughes, Bloomberg.com, October 5, 2009
The Federal Aviation Administration extended hourly flight limits at LaGuardia, Kennedy, and Newark Liberty airports by two years, to October 29, 2011, to hold down flight delays. The FAA will consequently have more time to craft long-term solutions for holdups at the airports. Newark, LaGuardia, and Kennedy lead the are the three worst airports in the nation, respectively, in delays.
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Airports Get Aid for Device to See Debris. --- Matthew Wald, The New York Times, October 5, 2009
In an advisory circular published September 30, 2009, the Federal Aviation Administration is allowing airports to apply for grants to buy systems that will spot dangerous debris on runways. The systems must meet certain specifications, but can use cameras or radars, and can be fixed or mobile. The first systems should hopefully be in place next year.
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United Airlines Chief Calls For More Investment in Developing the Alternative Jet Fuels Market. --- GreenAirOnline.com, October 5, 2009
Glenn Tilton, Chairman of United Airlines and the Air Transport Association of America, called on the government, investors, and producers to develop aviation biofuels, because airlines need alternative jet fuels to help limit price volatility, increase security of supply, and reduce environmental impact. He said that the airline industry is actively seeking funding for the development but needs the government’s commitment, and that the government should focus on investing in alternative fuels that would decrease emissions, instead of “punitive” economic measures addressing climate change. He cited the airlines’ initiative in putting in “intellectual capital and resources,” but stressed the need for leadership from the government to make the investment attractive.
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FAA Requires New Forecast Numbers Before Agreeing to Runway Extension at T.F. Green Airport. --- John Howell, Warwick Beacon, October 6, 2009
The Federal Aviation Administration is requiring Rhode Island’s T.F. Green Airport to update air traffic forecasts, which would push back the completion of the draft environmental impact statement. A revised study is needed because the FAA believes traffic forecasts should be lower, which would affect the determination of future noise contours. FAA spokesman James Peters said the new analysis will not change the purpose and need of the proposed improvements at T.F. Green, but the administration has found at least 10 major issues with the airport plan. 
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Aspen Runway Extension Pitched as Economic Boost. --- Scott Condon, The Aspen Times, October 7, 2009
Pitkin County, Colorado officials believe that the county’s plan to extend Aspen’s Sardy Field airport’s runway will pump millions of dollars into the economy each year by filling more seats on existing flights, though the extension will not attract larger aircraft. The county is working on a proposal to the Federal Aviation Administration to lengthen the runway by 1,000 feet and is seeking an FAA grant for the $15 million project. The runway would have the same weight limits that exist now, but the extension would allow more efficient use of existing flights, easing challenges presented by weight restrictions. Based on studies conducted, consultant Ryk Dunkelberg says that the demand on flights that could be met by the extended runway would add between $20 to $40 million annually to the Aspen-Snowmass economy without increasing the need for tourist accommodations and services.
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FAA Stimulus Recipients Got Low Priority Ratings. --- Christopher Conkey, The Wall Street Journal, October 7, 2009
The Federal Aviation Administration has directed approximately 25% of the stimulus funds provided to the agency for airport work, over $270 million, to projects that were low-scoring on the agency’s national priority rating system, which it uses to grade potential projects. The FAA typically steers grants to projects scoring above 41 on the 1 to 100 scale, though it raised the threshold to 62 for the stimulus grants. The FAA has awarded $272 million to projects below the 62 threshold, however, and an FAA spokeswoman has said the ratings are not the only criteria the agency uses in awarding grants, and  winning projects with ratings below 62 were justified on other grounds, like safety and security. 
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The Federal Aviation Administration today proposed to rescind the congestion management rules for JFK, LaGuardia and Newark that would have created auctions for slots at those airports.  (Click here for the JFK and Newark proposal, click here for the LaGuardia proposal)  Those rules were ardently opposed by the airlines as well as by the Port Authority of New York and New Jersey.  These proposed rules would rescind the previous rules regarding the slot auctions, although it would not rescind the order limiting scheduled operations at the airports to 81 operations per hour.  That order remains in place until October, 2009.

Although the FAA admits that the Congestion Management Rules was "highly controversial," it does not admit that its position with respect to the FAA's intangible property rights to the slots was necessarily wrong.  The FAA states that a series of events led to its decision to rescind the rules.  First, in December, 2008, the United States Court of Appeals for the District of Columbia Circuit issued an order staying the rule. Then, the Omnibus Appropriations Act, 2009, passed on March 11, 2009, contained a provision denying any funds to implement the auctions. Those two setbacks coupled with the souring economy, the FAA realized that "the halt in funding for this fiscal year makes it impossible for the rule to have the 10-year life originally contemplated, even without considering the challenging and widespread change in current economic conditions that led to the adoption of the American Recovery and Reinvestment Act of 2009."  Thus:

Because of the complexity of the issues, the uncertainty caused by the Omnibus Appropriations Act, and the possible impact of the significantly changed economic circumstances on the slot auction program, the FAA believes it would be better to rescind the rule rather than propose to extend it.  Rescission would also eliminate the potential for wasting resources of all parties in the pending litigation.

Put off for another day, however, is the issue of whether government licenses are property.  The proposed rules simply state that the FAA is "in the process of considering its options with regard to managing congestion at the airport[s] in ways that provide a means for carriers to either commence or expand operations at the airport[s], thereby introducing more competition and service options to benefit the traveling public."  Thus, slot auctions may be off the table for the time being - at least until the the funding restriction of the Omnibus Appropriations Act expires on September 30, 2009 - but the FAA has not yet totally abandoned the idea.

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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 (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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