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

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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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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The U.S. Court of Appeals for the District of Columbia Circuit granted a stay of the slot auctions that were scheduled to take place on January 12, 2009, pending arguments on whether the FAA has the legal authority to auction the slots.

Although the court's order does not go into any details as to why it is granting the Motion for Stay beyond stating that the Petitioners "have satisfied the stringent standards required for a stay pending court review," this is a significant victory for the Petitioners.  First, in order to obtain a stay one must show, among other things, "irreparable injury" and "likelihood of success on the merits."  This standard is a high one that is rarely surmounted.  Thus, it is an indication that the court is looking favorably upon the Petitioners' case.

Second, it pushes the date for the first slot auctions beyond the change of administrations.  The opponents of the slot auctions fervently hope that the Obama Administration will be more receptive to their pleas that slots auctions will not solve the problems at the New York/New Jersey airports.  With the change of administrations, there is hope among the opponents of the slot auctions that "a new, workable plan to reduce flight delays and give New York's airspace and airports the upgrade they need and deserve."

Petitioners' statements regarding the court's ruling:

• Port Authority of New York and New Jersey
• Air Transport Association of America

Neither the Department of Transportation nor the FAA have any press release or statement on their websites regarding the court's ruling.  However, the wire services and newspapers are reporting that Sarah Echols, a spokeswoman for the Department of Transportation, said:  "Today's court decision is bad news for travelers seeking a better flying experience in and out of the New York region.  We are committed to our goal of protecting travelers, giving passengers more options and improving the air travel experience, and will continue to assess our options to provide relief."

Previous blog posts regarding slot auctions:

• FAA Proposes Congestion Management Rule for JFK and Newark (May 21, 2008)
• FAA Issues Order Limiting Scheduled Operations at Newark Liberty (May 21, 2008)
• FAA Suspends Auction of Flight Slots at Newark (August 29, 2008)
• GAO Declares that the FAA Does Not Have Legal Authority to Auction Slots (October 1, 2008)
• Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, LaGuardia and Newark (October 12, 2008)
• Legal Analysis of FAA's Slot Auction Rule for JFK and Newark, Part 1 (October 26, 2008)
• Legal Analysis of FAA's Slot Auction Rule for JFK and Newark, Part 2 (October 28, 2008)

Other news articles:

• The New York Times, Court Order Delays Auction of Landing Slots at Airports
• Business Week, Court blocks FAA plan to auction NYC-area slots
• The Dallas Morning News, Court blocks auction of NY airport slots
• The Associated Press, Court blocks FAA auction of airport slots
• The Wall Street Journal, Court Blocks Plan to Auction Landing Slots at New York Airports

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On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA's 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

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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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The FAA first proposed limiting scheduled operations at Newark Liberty in a proposed order that was published in March 18, 2008, Federal Register.  The FAA has now, on May 21, 2008, issued its Order limiting scheduled operations at Newark Liberty Airport.  In the Order states:

• Takes effect at 6:00a.m. on June 20, 2008;
  
• Total air carrier operations will not exceed 81 per hour between the hours of 6:00 a.m. and 11:00 p.m.;
  
• The order sunsets on October 24, 2009;
  
• Air carriers have been assigned "Operating Authorizations," for specific time slots and operations (i.e., departure or arrival);
  
• In order to maintain the Operating Authorizations, the air carrier must use them at least 80% of the time;
  
• The Operating Authorizations can be sold and traded, so long as the air carrier has maintained the 80% usage prior to selling or trading. 
  

Secretary of Transportation Mary Peters told FAA’s Aviation Forecast Conference in March, 2008, that she believed that the caps at Newark will actually result in an increase in operations at Newark Liberty. She stated that “overall, the caps at Newark allow 30 more operations per day than were offered last summer – just more reasonably spaced."  The question remains, however, whether caps will achieve the goals of reducing delays and congestion without an economic impact on the airlines and quality of life impact on the surrounding communties. 

Alfred Kahn, the Chairman of the Civil Aeronautics Board under President Carter, in a recent working paper, stated his belief that congestion pricing would be a better approach.  He argues that the allocation of scarce airport resources is an economic problem and should be treated as such, therefore, air carriers should pay for the privilege of taking-off or landing at particular times.

With the summer travel season almost here, we will see what effect the caps at Newark and JFK will have on delays at the airport and noise in the community.

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In the May 21, 2008, issue of the Federal Register, the Federal Aviation Administration (FAA) proposed a new rule affecting two airports that are a part of the East Coast Airspace Redesign.  The FAA proposes to establish procedures to address congestion in the New York City area by assigning slots at JFK and Newark Liberty Airports in a way that allows carriers to respond to market forces to drive efficient airline behavior.

• The FAA's proposed rule is similar in many respects to its proposal for LaGuardia airport. 
  
• This proposal, however, takes into account the fact that both JFK and Newark have a large number of international flights, which implicates FAA's international obligations. 
  
• The FAA proposes to
  
  • extend the caps on the operations at the two airports,
    
  • assign to existing operators the majority of slots at the airports, and
    
  • create a market by annually auctioning off a limited number of slots in each of the first five years of this rule.

• the assignment of slots at JFK and Newark would be conducted through a uniform mechanism.
  
• The FAA would auction off a portion of the slots and would use the proceeds to mitigate congestion and delay in the New York City area.
  

• provisions for minimum usage,
  
• capping unscheduled operations, and
  
• withdrawal for operational need.
  

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