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 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.
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.
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.
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.
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 American will review its devotion to the “hub and spoke” system and begin a return to “point to point” routes that have allowed Southwest to remain profitable for a period of 35 years; (2) whether American will maintain its schedules throughout its system during the bankruptcy; (3) whether American will continue to court its best customers with the continuation of the “Advantage Miles” program; and (4) perhaps most urgent, whether American will enhance its customer service, in the model of Southwest Airlines, in order to retain and attract customers. The story is still unwritten. Stay tuned.
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.
The airlines are at it again! This time it’s Continental Express, Flight 2816, detaining passengers in the aircraft, without food, water or adequate sanitary facilities on the tarmac in Rochester, Minnesota, for an unbelievable six (6) hours before freeing them to enter the terminal (not counting another 2.5 hours wait to board the same plane to complete their trip to Minneapolis, only 85 miles away).
There is no doubt that the airline acted stupidly and irresponsibly by not providing a bus to complete the trip, or allowing the passengers back into the terminal. Ultimately, however, it’s the fault of the passengers who allowed themselves to be treated in that fashion. As Chevalier, Allen & Lichman has stated in prior postings (see, “Trapped Airline Passengers Have Rights,” posted April 7, 2008), the airlines when faced with this situation have three choices:
- Take off if its safe to do so;
- If not, allow passengers to leave the aircraft and/or provide alternate transportation or hotel facilities; or,
- Face legal action brought by passengers for violation of the 4th Amendment of the U.S. Constitution, as well as potential state law causes of action such as false imprisonment.
First, it is true that airlines are not allowed to operate when conditions are unsafe such as during inclement weather or when the safety of the passengers is at stake (for example, during the recent bomb scare at LaGuardia). Therefore, where the existence of such conditions can be established, the airline is justified in waiting on the ground until, but only until, the Federal Aviation Administration’s (“FAA”) Air Traffic Control allows it to join a queue for takeoff. Sometimes this takes over two hours. If you have any doubt, call FAA at 1-866-TELL-FAA (1-866-835-5322). That office will know whether conditions at the origin or destination require the delay. The usual problem at this stage is lack of communication from the flight crew. It is far more commonplace to see them talking among themselves than sharing status updates with their paying customers. A radical change in company policies regarding passenger communication would go far in remedying passenger unrest.
Second, when even the normal communication doesn’t seem to be accurate or timely, and you have run out of patience, you may calmly and politely confront the crew with the choice of taking off, or, alternatively, allowing passengers to exit the aircraft. This is where individual responsibility kicks in. If no one asks, the crew has no reason to act. After all, FAA regulations require that the crew leave the plane when its federally mandated shift is up. They will get out even if you can’t. Most importantly, decline to take “no” for an answer. Poll the other passengers, and if there is a consensus that the time already spent is unreasonable and unjustified, and conditions on the plane are deteriorating to the point of health concern, get off the plane, either through the normal exits or through the emergency exit. After all, it is an emergency, isn’t it?
Finally, and most important, don’t be afraid that, by taking these steps, you will be violating the law. In fact, in our view, it is the airline and, by extension, the governmental entities that finance and operate the airport that are violating the law. Specifically, airlines operate on government funded facilities. Airports are funded 80-90% by the federal government and the remainder partially by state and local governments, with the airlines paying for part of the remainder. The tarmac upon which passengers are detained, as well as the Air Traffic Controllers who may provide the rationale for that detention are government funded. Consequently, substantially all activities on an airport may be subject to federal and state statutes including the U.S. Constitution.
The Fourth Amendment prohibits arrest and/or detention without probable cause or the consent of the detained. It is therefore doubly important to protest the detention so as to prevent acquiescence from being construed as consent. Finally, state statutes such as those prohibiting false imprisonment may also apply. However, there would certainly be an argument that such state statutes are preempted by federal law. In the absence of comprehensive federal legislation addressing the issue of unlawful detention on aircraft, the preemption argument would likely fail.
In short, it is not essential to the vindication of passengers’ rights that Congress pass a new statute or a “Passengers’ Bill of Rights,” because we already have a Bill of Rights that applies. However some support from Congress, for example, in legislating a limit on the number of hours passengers can be detained would show the public that their representatives are there for them and not just for campaign contributions from airline lobbyists.
Most important, if you’re “mad as hell” you “don’t have to take it anymore.” The public need not cower from taking all legal steps necessary to defend its own rights and welfare against the airlines who wrongfully cloak themselves in governmental authority without accepting governmental responsibility.
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.
Other Posts on this topic:
- FAA Amends Its December 12, 2006 Order Regarding Operating Limitations at LaGuardia – posted January 15, 2009
- D.C. Circuit Court of Appeals Stays Slot Auctions at JFK, LaGuardia and Newark – posted December 9, 2008
- Legal Analysis of the FAA’s Slot Auction Rule for JFK and Newark Part 2 – posted October 28, 2008
- Legal Analysis of the FAA’s Slot Auction Rule for JFK and Newark Part 1 – posted October 26, 2008
- Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, Newark and LaGuardia – posted October 12, 2008
- GAO Declares FAA Does Not Have Legal Authority to Auction Slots – posted October 1, 2008
- FAA Suspends Auction of Flight Slot at Newark Airport – posted August 29, 2008
- FAA Issues Order Limiting Scheduled Operations at Newark Liberty – posted May 21, 2008
- FAA Proposes Congestion Management Rule for JFK and Newark Liberty – posted May 21, 2008
During July, the Government Accounting Office issued several reports regarding various aviation topics. One of the topics not covered was the East Coast Airspace Redesign, which was supposed to be issued at the end of July, but now probably will not be issued until the end of August.
Of particular interest was the issuance, on July 15, 2008, of the testimony of Ms. Susan Fleming, the GAO Director of Physical Infrastructure, National Airspace System: DOT and FAA Actions Will Likely Have a Limited Effect on Reducing Delays during Summer 2008 Travel Season given to the U.S. Senate Subcommittee on Aviation Operations, Safety, and Security. Over the past decade, there has been a steady increase in flight delays and cancellations, such that a delay at O’Hare or Hartsfield would have a ripple effect across the National Airspace System. The DOT estimated that more than one in four flights either arrived late or was canceled in 2007, making it one of the worst years for delays in the last decade. As a result of the East Coast Airspace Redesign, the delays and cancellations evident at the three New York metropolitan commercial passenger airports–Newark Liberty International (Newark), John F. Kennedy International (JFK), and LaGuardia caused the FAA to propose and promulgate several actions in attempt to reduce congestion and delays.
Ms. Fleming’s testimony addresses (1) the trends in the extent and principal sources of flight delays and cancellations over the last 10 years, (2) the status of federal government actions to reduce flight delays and cancellations, and (3) the extent to which these actions may reduce delays and cancellations for the summer 2008 travel season. This statement is based on an analysis of DOT data on airline on-time performance, a review of relevant documents and reports, and interviews with officials from DOT, FAA, airport operators, and airlines, as well as aviation industry experts and associations. DOT and FAA provided technical comments which were incorporated as appropriate.
Of particular interest is the fact that Ms. Fleming’s testimony states that "to reduce delays and congestion beginning in summer 2008, DOT and FAA are implementing several actions that for the purposes of this review GAO is characterizing as capacity-enhancing initiatives and demand management policies." Some of these actions are already in effect, such as 11 of the 17 short-term initiatives designed to improve capacity at the airport or system level and the hourly schedule caps on operations at the New York area airports.