2014 has been the year of the unmanned aircraft systems (also known as drones). Recently, we had the opportunity to sit down with LXBN TV to discuss the state of the UAS industry and what to expect in the coming months. The interview is available here: LXBN
While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences. The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation.
Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1. He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.” On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations. Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument.
The Federal Aviation Administration (“FAA”) has appealed a recent National Transportation Safety Board administrative decision, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, in which Administrative Law Judge Patrick Geraghty ruled that FAA had no regulatory authority when it fined the operator of an Unmanned Aircraft System (“UAS”) (otherwise known as “drone”) used for commercial photography, for operating a UAS at an altitude below that approved for commercial manned aircraft. It would do well for developers, manufacturers and operators of UAS to listen carefully to FAA’s views because the decision, while preliminary, and subject to appeal through many levels of the Federal Court system, has opened the proverbial Pandora’s Box in the relationship of manned and unmanned aircraft and their joint, or separate regulatory frameworks.
First, it is important for the UAS community to recognize that, while Administrative Law Judge Geraghty found an absence of regulatory authority in the FAA, the Opinion did not acknowledge the seminal issue of “the federal government’s pervasive regulation of aircraft, airspace and aviation safety,” see, Montalvo v. Spirit Airlines, 508 F.3d 464, 472-74 (9th Cir. 2007). That pervasive control arises under the Federal Aviation Act, 49 U.S.C. § 40101 in which Congress expressly granted to the Secretary of Transportation, through his/her designee, the FAA, the tasks of, among other things, “controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both . . .,” 49 U.S.C. § 40101(d)(4), as well as “encouraging and developing civil aeronautics, including new aviation technology.” 49 U.S.C. § 40101(d)(3). That express assignment of responsibility alone gives FAA “skin in the game.”
FAA’s response more specifically addresses what it believes to be misapprehensions about the extent of its power and authority.
The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.
A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
As if seven years of wrangling were not enough, the Federal Aviation Administration (FAA) is now proposing changes to the current airspace utilization at Kennedy and Philadelphia International Airports.
From 2002 to 2009, governmental and private entities from Connecticut to Pennsylvania, including the State of Connecticut, various local jurisdictions in New York State, environmental organizations in New Jersey, and the County of Delaware, Pennsylvania negotiated with, and ultimately challenged, a comprehensive redesign of the airspace affecting approaches and departures to every airport in the North Eastern United States. Of greatest concern, were new flight paths over dense populations and numerous parks and nature preserves without even a cursory nod to required noise or air quality analysis.
After much contention, FAA got its way. Apparently, however, the East Coast Airspace Redesign didn’t quite work out, because FAA is at it again. First, ostensibly because of persistent delays at Newark, JFK and LaGuardia that were supposed to have been remedied by the panacea of the East Coast Airspace Redesign, hundreds of additional flights will be rerouted from JFK over residential areas in Northern and Central New Jersey. To add insult to injury, the changes will be made through an FAA rulemaking process, and not through the formal processes that characterized the first round of redesigns.
Similarly, the FAA is proposing a modification of the Class B airspace surrounding Philadelphia International Airport that will expand areas impacted by overflight to an even greater extent than did the East Coast Airspace Redesign.
In short, those who are looking down the barrel of these changes should take the opportunity to comment on FAA’s proposals, not only to foster dialogue with FAA concerning the ongoing, increasing and apparently inadequately studied procedures and their impacts, but also to exhaust administrative remedies for a legal challenge should FAA continue to “gild the lily” of the East Coast Airspace Redesign with additional enhancements, to the detriment of already impacted residents and businesses on the ground.
In a recent report entitled Civil Aviation Growth in the 21st Century, the Aerospace Industries Association (AIA) recommended that the Federal Aviation Administration (FAA) develop strategies to integrate National Environmental Policy Act (NEPA) review into the FAA’s Next Generation Air Transportation System (NextGen) implementation planning process in a way that would make NextGen environmental reviews less costly and time-consuming.
In the report, the AIA acknowledges that: (1) redesign of terminal airspace by the FAA requires compliance with NEPA; (2) airspace redesign typically has potentially negative environmental impacts and does not qualify as a “categorical exclusion”; and (3) most often, airspace redesigns require an Environmental Assessment (EA). Every EA must result in either a ‘finding of no significant impact” (FONSI) or a more detailed “environmental impact statement” (EIS). Citing the historical duration and cost of FAA actions involving EAs and EISs, the AIA reports that industry stakeholders in NextGen are frustrated with the time-consuming and costly nature of the NEPA review process, consider it a major impediment to the timely rollout of the system, and would like to see additional efforts to expedite the NEPA process. Although the report does not expressly state that all NextGen EAs should result in a FONSI, it could reasonably be read to suggest that approach in order to save costs and fast-track the NEPA review process.
While it is true that NEPA review is costly and time-consuming, there should be no different, attenuated NEPA review process for NextGen than for any other Federally sponsored or funded project. To subject some arbitrarily chosen Federal projects to less stringent review than NEPA prescribes would require an amendment of NEPA (a highly unlikely eventuality). NextGen is no different than any other Federal effort, and the Congress has clearly spoken about the precise protocols that must be followed. Any initiative to the contrary, without a NEPA amendment, would be contrary to law.
On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.
Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.
Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.
Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.
A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.
A summary review of Aviation and Airport Development related news and information that was made public during the past week.
- FAA Administrator Babbitt’s Pilot Fatigue Advisory Committee delivers its recommendations. An advisory committee on pilot fatigue,convened by Administrator Babbitt, delivered its recommendations to the Federal Aviation Administration late Tuesday, September 1, 2009. Committee members said the FAA had asked them not to make their recommendations public. Although FAA Administrator Randy Babbitt has promised to vet the recommendations swiftly and turn them into a formal proposal by the FAA, the process will take months to complete. 09/02/09, Denver Post, http://bit.ly/4wAugf
- FAA gives Southwest until December 24, 2009, to replace unapproved parts. The FAA will require Southwest Airlines to replace unapproved parts associated with hinge fittings for the exhaust gate assembly–and which help protect aircraft flaps from engine heat–by December 24, 2009. All other unapproved parts made by the same vendor must also be located and disposed of, and results of aircraft inspections must be sent to the FAA daily. 09/01/09, FAA Press Release, http://bit.ly/5PAe6
- FAA tells Haines, Alaska, it cannot designate flight paths for helicopters. Haines Borough, Alaska, is looking to eliminate flight-path restrictions and expand the number of clients that companies are permitted for commercial helicopter and heli-skiing activities. The FAA has told the borough that it does not have the authority to regulate airspace, but borough leaders respond that they are only designating flight paths as a condition of a borough permit. 08/27/09, Chilkat Valley News, http://bit.ly/CmFqj
- Connecticut Governor furious about low-flying F-18s. Connecticut Governor Jodi Rell was incensed about a low-flying F-18 when neither the state of Connecticut nor the FAA had received advance notice about its flight. A spokesman for Naval Air Force Atlantic stated that the aircraft operated in accordance with all FAA-approved visual flight rules and remained within speed and altitude restrictions. 08/29/09, Hartford Courant, http://bit.ly/P4waO.
- Expansion of Aero Country Airport in McKinney, Texas Causes Problems. McKinney City Council in Texas has approved development on the east side of the Aero Country Airport that could double its size; nearby residents oppose the expansion plans. City By laws state that the City Council cannot reverse its decision, and Mayor Pro Tem Pete Huff seems unconcerned about homeowners who say they will move if the city does not halt the expansion, citing that the airport is part of the town. 08/27/09, NBCDFW.com, http://bit.ly/3vk14h.
- FAA Announces $2.5M grant to soundproof homes in Key West. The Federal Aviation Administration this week approved a $2.5 million grant to soundproof 38 homes impacted by noise at Key West International Airport. 08/29/09, KeysNet.com, http://bit.ly/phcK7
- FAA gives Miami-Dade $4.2M to extend main runway at Kendall-Tamiami Executive Airport. The FAA gave Miami-Dade $4.2 million to extend the main runway at Kendall-Tamiami Executive Airport, which would allow heavier planes to use the airport to travel to and from destinations in Central America, South America, and the Caribbean. With an extended runway Kendall-Tamiami would be able to receive flights that would normally go to Miami International Airport. 08/28/09, South Florida Business Journal, http://bit.ly/sqmn5.
- FAA signs ROD for Columbus (OH) Regional Airport Authority’s plan to move Columbus Airport’s runway farther south. Columbus Regional Airport Authority’s plans to relocate Port Columbus International Airport’s runway farther south along with other improvements has been approved by the FAA, contingent upon environmental remediation in the area. The next issue for the airport is a decision from the FAA on the level it will be funding the project; the government’s intent to fund only a smaller portion might require the airport authority to reapply. 08/28/09, Columbus Business First, http://bit.ly/flHYd.
- NTSB suggests to FAA new altitudes for Hudson Corridor. The NTSB recommended new altitudes to the FAA for helicopters and planes over the Hudson Corridor to prevent something like the Aug. 8 midair collision that killed nine people from reoccurring. In the past, the FAA has often failed to heed NTSB suggestions, with many outstanding recommendations up to 10-15 years old. 08/27/09, The New York Times, http://bit.ly/rFOqg
- Connecticut Attorney General Blumenthal says he will take Airspace Redesign fight to Supreme Court. Connecticut Attorney General Richard Blumenthal is disappointed that the U.S. Court of Appeals for the D.C. Circuit has denied an Aug. 19 request to reconsider its refusal to halt the new FAA airspace redesign project. Mr. Blumenthal is preparing an appeal to the U.S. Supreme Court asking it to overturn the ruling and override the FAA, since the FAA used defective data on noise and traffic and failed to follow its own rules and procedures. 08/26/09, acorn-online.com, http://bit.ly/2UUXRs
- FAA investigates Southwest regarding use of unauthorized parts. FAA air-safety regulators are investigating unauthorized parts installed on at least 42 Southwest Airlines jets and why the carrier’s maintenance-control procedures failed to identify the problem. The suspect parts do not pose an “immediate safety issue” but planes were temporarily grounded. The controversy exemplifies continuing friction between airlines and federal regulators on how to deal with minor maintenance lapses. 08/26/09, Wall Street Journal, http://bit.ly/4n2Srj.
- Houston receives $8.8 million in grants from the FAA. The City of Houston Dept. of Aviation received $8.8 million in grants from the FAA to install new state-of-the-art equipment at George Bush Intercontinental Airport (IAH). The grants, awarded through the FAA’s Airport Improvement Program (AIP) and Voluntary Airport Low Emission (VALE) program, will allow the purchase of equipment and vehicles that are expected to reduce emissions by up to 60 percent. 08/25/09, PRNewswire, http://bit.ly/4hcaM9.
Several groups. individuals, cities, and counties who petitioned the United States Court of Appeals for the District of Columbia to review the FAA’s decision to move forward with its redesign of the New York/New Jersey/Pennsylvania airspace have filed Petitions for Rehearing after the rather surprising D.C. Circuit ruled against them in an opinion that reeks of judicial indifference. See, "D.C. Court of Appeals Decides Against Challenge to East Coast Airspace Redesign," posted June 11, 2009.
In order to obtain a rehearing en banc (i.e., by all of the judges currently sitting on the D.C. Circuit), a petitioner must show:
- The decision of the panel conflicts with the decision of the U.S. Supreme Court or with the decisions of the D.C. Circuit; and/or
- The proceeding involves "one or more questions of exceptional importance."
The standard for obtaining a rehearing by the same panel of three judges who heard the matter the first time is slightly lower. A petition for rehearing will be granted when the court agrees that points of law or fact were overlooked or misapprehended by the panel. FRAP 40. In this case, all three Petitions for Rehearing ask for both a rehearing en banc and a rehearing by the panel.
Delaware County’s Petition for Rehearing
Delaware County’s Petition focuses on the court’s decision that the FAA complied with the conformity provisions of the Clean Air Act by providing a "fuel burn report" instead of a more comprehensive emission inventory According to Delaware County, this position conflicts with the U.S. Supreme Court case of Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) and two D.C. Circuit cases as well: Environmental Defense Fund, Inc. v. EPA, 467 F.3d 1329 (D.C. Cir. 2006) and Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006). These cases, Delaware County argues, require scrupulous compliance with the Clean Air Act as well as the EPA’s implementing regulations.
The court’s failure to hold the FAA to following the letter of the Clean Air Act and the EPA regulations not only conflicts with other decisions, but also presents an issue of exceptional public importance in that it contravenes the express purpose of Congress in enacting the Clean Air Act.The D.C. Circuit recently held in Environmental Defense v. EPA, 467 F.3d 1329, 1336 (D.C. Cir. 2006) that the FAA "may not ‘avoid the Congressional intent clearly expressed in the text simply by asserting that its preferred approach would be better policy.’"
In addition, Delaware County argues that the panel misapprehended several critical facts, not the least of which is the fact that the court based its rejection of one the Petitioners’ critical arguments on the Petitioners not raising the issue in their Opening Brief. The Petition for Rehearing cites the references in the Opening Brief where that issue was raised.
Finally, Delaware County contends that that the panel misapprehends the burden of proof necessary in this matter. Under the holdings of Alabama Power v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979) and Association of Administrative Law Judges v. Federal Labor Relations Authority, 379 F.3d 957 (D.C. Cir. 2005) the burden is on the agency to fully document that an agency’s action falls within a de minimis exemption.