On October 1, 2015, the United States Environmental Protection Agency (“EPA”) adopted stricter regulation on ozone emissions that will fall heavily on California, and most particularly on the transportation sector, including airlines.  The new standard strengthens limits on ground level ozone to 70 parts per billion (“PPB”), down from 75 PPB adopted in 2008.  The EPA’s action arises from the mandate of the Clean Air Act (“CAA”), from which the EPA derives its regulatory powers, 42 U.S.C. § 7409(a)(1), and which requires that pollution levels be set so as to protect public health with an “adequate margin of safety.  42 U.S.C. § 7409(b).  

The change has inspired significant controversy throughout the country, but most particularly in Southern California which purportedly has the nation’s worst air quality and has already failed to meet previous ozone standards.  The issues arise out of the likelihood that the new standards will require steep emissions cuts falling most heavily on the transportation sector including trains, trucks, ships and, not least, aircraft.  


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The decision of the Federal District Court for the Northern District of Idaho in SilverWing at Sandpoint, LLC v. Bonner County, a case that has been “hanging fire” for almost two years, was worth the wait.  On Friday, November 21, 2014, the Court granted Defendant Bonner County (“Bonner County”) summary judgment on all Plaintiff SilverWing at Sandpoint, LLC’s (“SilverWing”) federal claims for inverse condemnation, or “taking,” of private property by a public entity without just compensation, in violation of the 5th Amendment to the United States Constitution, and 42 U.S.C. § 1983, or violation of a plaintiff’s constitutional or other federal rights by a person acting under color of state law.  See, e.g., Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978).  In addition, the Court granted summary judgment on SilverWing’s state law contract claim for breach of the covenant of good faith and fair dealing.   

In this case, SilverWing claimed that Bonner County had taken its property by implementing a plan for the airport, an Airport Layout Plan (“ALP”) approved in accordance with the regulations promulgated by the Federal Aviation Administration (“FAA”), that showed the single runway at Sandpoint Airport moving 60 feet to the west, toward SilverWing’s property.  SilverWing argued that forcing the movement of a taxiway that already been constructed to service the “hangar homes” in the development, and thus causing it to incur upon the five lots closest to the runway, making them unbuildable, caused a loss to SilverWing of $26 million.  The Court ruled that implementation of the requirements of the ALP was a federal requirement arising out of federal responsibility for aviation safety and not within the discretion of Bonner County.  
 


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A recent analysis of the relationship of airline mergers to airline service and pricing reports the unsurprising result that, since the mergers of Southwest Airlines and AirTran, United Airlines and Continental Airlines, and Delta Airlines and Northwest Airlines, airline capacity measured by the number of available seats, has gone down across the board at the top 100 airports in the 48 contiguous states since 2005 while prices have increased equally broadly.  For example, at the largest airport in the United States, Atlanta-Hartsfield, the number of seats has fallen by 12.3%, while the average fare price has increased by 3.7%.  Similarly, at Boston Logan, the number of seats has dropped by 10%, while the fares have increased at an average of 2.2%.  Those changes, moreover, are not limited to the top 100 airports.  At secondary airports in metropolitan areas with multiple airports, the same trend persists.  At Oakland Airport in the San Francisco Bay area, fares have increased 6%.  And those ominous trends appear to continue.

In response to the proposal of a merger between American Airlines and U.S. Airways, the Justice Department promptly brought suit on the grounds of, among other things, restraint of trade and violation of the Sherman Antitrust Act.  Last week, the Justice Department settled with the airlines on the promise by the airlines to surrender gates and slots at major airports. 
 


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During the past week, the Federal Aviation Administration (“FAA”) has taken two actions likely to elicit “equal and opposite reactions” from the aviation community specifically, and the American public in general.  On the positive end of the spectrum lies FAA’s approval of a presumed cure for the dramatic malfunctions of the lithium ion batteries installed by the Boeing Company in place of the hydraulic system in the company’s 787 Dreamliner passenger jet.  This “fix” will allow Boeing to begin deliveries of the aircraft again after an FAA mandated hiatus since January 16, 2013.  At the extreme opposite end of the spectrum lies FAA’s decision to begin the furloughing of air traffic controllers, a move that has already precipitated the filing of petitions with the United States Court of Appeals for the District of Columbia Circuit by, among others, the aviation trade group for the nation’s airlines, Airlines for America, the Airline Pilots Association, and the Regional Airline Association.


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


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This morning, November 29, 2011, American Airlines, one of the biggest airlines in the world, announced that it had declared Chapter 11 bankruptcy. It is not unexpected news, as American has been declaring losses in excess of $1 billion per year for some time. What remains to be seen is, among other things: (1) whether

Yet another project at Los Angeles International Airport (“LAX”) has skated under the requirements of the California Environmental Quality Act (“CEQA”). The project, the “American Airlines Commuter Facility Improvement Project,” allegedly constitutes a mere replacement of the facilities once occupied by United Airlines. Not exactly. The project actually includes, but is not limited to: (1) more than doubling the size of the passenger terminal/administration building to add passenger accommodations and office space; (2) addition of an almost 10,000 square foot building for baggage handling, office space and storage; and (3) replacement of a remote gate, accessed by foot or bus, with an enclosed contact gate such as those which are used inside the main terminals.

Despite the expansionary nature of the project, Los Angeles World Airports (“LAWA”), the Department of the owner, City of Los Angeles, responsible for operating LAX does not give so much as a passing nod to compliance with CEQA. If the project could simply be described as “new lease with American Airlines,” as a recent “Transmittal for Review of LAX Tenant Improvement Project” would have the public believe, the omission to conduct environmental review might be justified by a categorical exclusion from CEQA, 14 Cal. Code Regs. section 15301. That exclusion, however, does not apply here. The project, far from being “negligible” in scope, clearly constitutes a massive expansion of the previous passenger hold room and other passenger serving facilities.
 


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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

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

Of particular interest was the issuance, on