It is likely that the public may be somewhat disappointed with Congress’ latest effort to ameliorate the impacts of airport noise on underlying populations. On November 18, 2021, Adam Smith, Member of the House of Representatives from Washington State, introduced the Aviation Noise and Emissions Act, H.R. 6050, a Bill intended to “develop pilot grant programs through the Environmental Protection Agency to research and collect data on aircraft and airport noise and emissions and to use such information and data to develop a mitigation strategy, and for other purposes.” H.R. 6050, p. 1. At its foundation, the Bill calls for a “3-year pilot grant program with eligible entities to measure noise and emissions, including greenhouse gases, particulate matter, ultrafine particles, and other toxic pollutants, in communities near airports or air flight pathways using sophisticated methods and technology that allow tracing of noise and emissions to specific sources . . .,” H.R. 6050, paragraph 2.a., including identifying the primary recipients of such noise such as specific neighborhoods, structures, or impacted areas.
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Environmental
Executive Order Presents a Trade-Off Between Infrastructure Investment and Environmental Regulation
By Barbara Lichman on
On June 4, 2020, President Trump issued an Executive Order, “EO On Accelerating the Nation’s Economic Recovery from the Covid-19 Emergency by Expediting Infrastructure Investments and Other Activities” (“EO”) for the expressed purpose of forestalling “the likelihood of a potentially protracted economic recovery with persistent high unemployment,” EO, Sec. 1, resulting from the business closures necessitated by the onslaught of Covid-19. Predicated on the authority granted in the National Emergencies Act, 50 U.S.C. § 1601, et seq., and the Stafford Act, 42 U.S.C. § 5191(b), § 501(b), the President found that the Covid-19 outbreak in the United States constitutes “a national emergency that posed a threat to our national security.” EO, Sec. 1.
In order to “facilitate the Nation’s economic recovery,” EO, Sec. 2, the EO seeks to “speed infrastructure investments,” EO, Sec. 2, that will “strengthen the economy and return Americans to work, EO, Sec. 2, by, among other things, “expediting the delivery of transportation infrastructure projects, EO, Sec. 3, and civil works projects within the purview of the Army Corps of Engineers, EO, Sec. 4.
All these are laudable goals. The potential problem, however, is in the simultaneous abrogation of environmental protections in such statutes as the Endangered Species Act, 16 U.S.C. § 1531, et seq., and Clean Water Act, 33 U.S.C. § 1344, et seq., as well as other statutes administered by the Army Corps of Engineers. The most notable of these is the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”).…
California Courts Close Loopholes in Definition of “Project” Under CEQA
During the week of August 19, 2019, both the Appellate and Supreme Courts of California issued decisive opinions clarifying the parameters of agency action subject to environmental review under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq., (“CEQA”). The courts were responding to repeated efforts by public entities to circumvent their CEQA obligations by redefining the actions that constitute a “project” subject to analysis under CEQA. Those public entities which have attempted to so minimize their exposure under CEQA include several airports in California, most notably, Los Angeles International Airport (“LAX”). In its environmental review of the Specific Plan Amendment Study of several years ago, LAX relied on precisely the Project Definition soundly rejected by the California courts as set forth below.
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Senate Monitors FAA Airspace Changes Through New Advisory Committee
The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment. Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.
The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown. Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”). The City of Phoenix instituted a two-prong approach in disputing this determination. It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
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Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate
Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”). On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services. The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System. Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed. …
Airlines Will Be Affected by New Federal Ozone Standards
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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Culver City and Inglewood Weigh in on SoCal Metroplex Project
On September 8 and October 8, 2015, the Cities of Culver City and Inglewood, California, filed original and supplemental comments, respectively, with the Federal Aviation Administration (“FAA”) concerning the adequacy of its Draft Environmental Assessment (“DEA”) for the Southern California Metroplex (“SoCal Metroplex”) Optimization of Airspace and Procedures in the Metroplex (“OAPM”) (“Project”). The…
FAA Requires New Integrated Model for Noise and Air Quality Impact Analysis
In a marked change in longtime Federal Aviation Administration (“FAA”) policy regarding analysis of noise and air quality impacts from FAA initiated, directed or funded projects, FAA has substituted a single new model for the long mandated Integrated Noise Model (“INM”) and Emissions and Dispersion Modeling System (“EDMS”). Beginning May 29, 2015, FAA policy “requires” the use of the Aviation Environmental Design Tool version 2b (“AEDT 2b”), which integrates analysis of aircraft noise, air pollutant emissions, and fuel burn. These impacts, according to FAA are “interdependent and occur simultaneously throughout all phases of flight.” 80 Fed.Reg. 27853.
The FAA policy provides for differential displacement of existing analytic models. For air traffic and airspace procedural changes, AEDT 2b replaces AEDT 2a, already in use. For other, ground based projects, AEDT 2b replaces both the INM, for analyzing aircraft noise, and EDMS for developing emissions inventories and modeling emissions dispersion. The change was presaged by FAA Administrator Michael Huerta who announced in April that FAA was undertaking an “ambitious project” to revamp its approach to measuring noise. The “ambitious project” was apparently inspired by the vocal objections to the results of the analysis using current methodologies, voiced by citizens of locals that have experienced the effects of FAA’s current, nationwide reorganization of airspace around major airports to institute procedures based on Performance Based Navigation (“PBN”).
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Land Trade and Airport Expansion Expected to Put Mammoth Mountain on “Must Ski” Map
Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport. The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA. The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA. In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.
Most important in MMSA’s view is the expansion of the airport.
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The Federal Surface Transportation Board Finds California Environmental Quality Act Preempted as Applied to High-Speed Rail Projects
In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000, et seq., to the 114 mile high-speed passenger rail line between Fresno and Bakersfield, California is preempted in its entirety by federal law. The Board’s decision is not only surprising in the context of prevailing legal authority, but also potentially important in the context of other modes of transportation.
The decision is surprising because it went far beyond the scope of the petition filed by the responsible State agency, the California High-Speed Rail Authority (“Authority”). The Authority asked only that the Board find that injunctive relief as a remedy under CEQA is foreclosed as preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), Pub.L. 104–88, 104th Congress, and is, thus, barred under 49 U.S.C. § 10501(b) which gives the Board jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,” 49 U.S.C. § 10501(b)(2). The Authority further argued that, as it had completed CEQA review in May 2014, the Board need not address whether CEQA is generally preempted, but need only address whether injunctive relief resulting in a work stoppage is available as a remedy in the lawsuits filed against the Authority.
Despite the Authority’s limited petition, the Board expanded its ruling to include a finding that § 10501(b) prevents the states and localities from intruding into matters that are “directly regulated by the Board (e.g., rail carrier rates, services, construction, and abandonment),” Docket, p. 8, and from “imposing requirements that, by their nature, could be used to deny a rail carrier’s ability to conduct rail operations.” Id. The Board employs the rationale that “Section 10501(b) [ ] is intended to prevent a patchwork of local regulation from unreasonably interfering with interstate commerce.” Id.
The Board recognizes, however, that “[n]ot all state and local regulations that affect rail carriers are preempted by § 10501(b).” Id. at p. 9. It acknowledges further that “State and local regulation is appropriate where it does not interfere with rail operations,” Id., and that “[l]ocalities retain their reserved police powers to protect the public health and safety so long as their actions do not unreasonably burden interstate commerce.” Id.
On that basis, and ignoring that “states and towns may exercise their traditional police powers . . . to the extent that the regulations ‘protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions,’” Id. citing Green Mountain v. Vermont, 404 F.3d 638, 643 (2nd Cir. 2005), the Board concluded that CEQA was categorically preempted as a “state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the Board has specifically authorized, thus impinging upon the Board’s exclusive jurisdiction over rail transportation,” Docket, p. 10, citing DesertXpress Enters., LLC-Pet. For Declaratory Order, slip op. at 5. The Board further found that CEQA lawsuits “can regulate rail transportation just as effectively as a state statute or regulation.” Id. at 14, citing, inter alia, Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) [explaining that common law suits constitute regulations].
The Board decision, however, appears to be based on two fundamental misconceptions.