Federal Aviation Administration (FAA)

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The internet has been abuzz lately with talk about the latest legal action filed by the City of Santa Monica (“City”) against the Federal Aviation Administration (“FAA”), on October 31, 2013, seeking to avoid FAA’s refusal to allow the closure of Santa Monica Airport, see City of Santa Monica v. United States of America, et al., U.S.D.C. Case No. CV13-08046, an active general aviation airport surrounded by residential neighborhoods.

More specifically, the suit seeks to: (1) quiet title to the real property upon which the airport is now located, pursuant to 28 U.S.C. § 2409a, as having been owned in fee simple by the City since approximately 1926; (2) obtain a judicial declaration that any attempt by FAA to prevent closure interferes with the City’s constitutional obligations to protect the public health, safety and welfare and, thus, constitutes a “taking” without just compensation in violation of the Fifth Amendment to the United States Constitution.  The City bases this claim on its ownership of the airport property in fee simple, and any constraint on closure is “constructive confiscation of airport property, and, thus, a violation of the prohibition on takings with just compensation in the Fifth Amendment to the United States Constitution;” (3) establish violation of the Tenth Amendment to the United States Constitution brought about by FAA’s stepping outside the rights given to the federal government under Constitution, and incurring on the powers of protection of the public health, safety and welfare left to the states; and (4) establish violation of the Due Process Clause in the Fifth Amendment to the United States Constitution arising from FAA’s contravention of its own regulatory guidance, which limits FAA’s power to restrict closure to those instances where FAA owned the property upon which the airport to be closed is located. 

Leaving aside: (1) the difficulty of maintaining a case for inverse condemnation, or “taking” by one public entity against another where the express language of the Fifth Amendment provides that “private property [shall not] be taken for public use without just compensation,” see, e.g., Complaint, ¶ 106 [emphasis added]; and (2) the hurdle of obtaining declaratory and injunctive relief as a remedy for unconstitutional taking, where the law is clear that monetary damages are the exclusive remedy, there are several attributes that make this case unique, and, thus, not a precedent for action by others seeking to close airports. 
 Continue Reading Santa Monica Sues for Closure of Airport

The Transportation Security Agency’s (“TSA”) Screening of Passengers Through Observation Techniques (“SPOT”) program, aimed at revealing potential security issues at airports, was roundly criticized by the Government Accountability Office (“GAO”) in a report released Friday, November 15, 2013.  The report found that the results of the three year old program, employing approximately 3,000 “behavior detection officers” at 146 of the 450 TSA regulated U.S. airports are unvalidated, that the model used to confirm the program’s efficacy was flawed and inconclusive, and that the report used improper control data and methodology and, thus, lacks scientific proof that the program could identify potential assailants. 

The program’s critics include Steven Maland, a GAO Managing Director, Representative Benny Thompson of Mississippi, ranking Democrat on the House of Representative’s Homeland Security Committee, and the Chairman of that Committee, Michael McCall of Texas, all of whom take the position that “the proof is in the pudding.”  They cite the recent attack by a gunman at LAX during which TSA officers at the security checkpoint failed to push the panic button to alert local authorities, but instead used an abandoned landline, giving the gunman the opportunity of four minutes and 150 rounds of ammunition before he was stopped.
 Continue Reading $900 Million TSA SPOT Program Found Useless

Inspired by Congressional intervention, the Federal Aviation Administration (“FAA”) has begun the process of revising and reorganizing FAA Order 1050.1E, “Environmental Impact: Policies and Procedures” in a new Order, 1050.1F (by the same name).  78 Fed.Reg. 49596-49600 (August 14, 2013).  That in itself would not be particularly notable, except for the importance of the changes that are being made, and their significance for both airport operators and the communities around airports that are the direct recipients of both the disbenefit of the environmental impacts of airport projects, and the potential benefit of the adequate environmental review of those impacts.

The most important of the potential revisions to Order 1050.1E involves FAA’s relief from the burdens of environmental review granted by Congress in the FAA Modernization and Reform Act of 2012, H.R. 658 (112th) (“FMRA”).  Specifically, two legislatively created categorical exclusions are added in 1050.1F, paragraphs 5-6.5q and 5-6.5r, Exemption from NEPA Review which basically give a free pass to changes to air traffic procedures throughout the country.
 Continue Reading FAA Changes the Rules for National Environmental Policy Act Review

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.Continue Reading FAA Takes Two Important Steps During the Week of April 20

The Federal Aviation Administration (“FAA”) has published in the Federal Register an “Invitation to Comment on Draft FAA Order 5100-38, Airport Improvement Program Handbook” (“Draft AIP Handbook”). 

The Airport Improvement Program (“AIP”) is an airport grant program, pursuant to Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. (“AAIA”).  The Draft AIP Handbook contains regulations implementing the AIP.  This updated version incorporates substantial changes to the governing statutes, including the recently enacted FAA Modernization and Reform Act of 2012. 

While FAA usually does not solicit comments on what it calls “internal orders” (claiming that the Draft AIP Handbook “contains instructions to FAA employees on implementing the AIP”), FAA recognizes the broad impacts of the Draft AIP Handbook, and the impact on all segments of the airport community of its implementation.  Therefore, FAA is accepting comments until March 18, 2013. 
 Continue Reading FAA Issues Draft Revisions to the Airport Improvement Program Handbook

The competitive position of the United States aircraft manufacturing industry was dealt a blow, beginning on January 19, 2013, with the order by the Federal Aviation Administration (“FAA”) for the grounding of Boeing’s “Dreamliner,” the Boeing 787.  The order, occurring just 17 months after the FAA’s final approval of the aircraft’s formal entry into the market, effectively shuts Boeing out, at least temporarily, of the New Large Aircraft (“NLA”) market.  Several countries around the world, including Japan and Singapore, had already taken that step independently.  Boeing has now ordered the cessation of all 787 manufacturing activities, pending further investigation of the source of the problem. Continue Reading U.S. Aircraft Manufacturing Industry Takes a Hit with Federal Aviation Administration Grounding of Boeing 787 Aircraft

Responding to the concerns of pilots and the California Energy Commission (“CEC”) regarding the impact of exhaust plumes from power plants on overflying aircraft, the Federal Aviation Administration’s (“FAA”) Airport Obstruction Standard Committee (“AOSC”) completed a Supplement to FAA’s 2006 guidance [“Safety Risk Analysis of Aircraft Overflight of Industrial Exhaust Plumes”].  The purpose of the Supplement is to enhance current FAA regulations which only address standards for the physical height of the smoke stacks, and omit regulation of the impacts of the smoke plume emitted from the stacks, or the emissions contained in them. 

The Supplement is also aimed at obtaining definitive answers to the questions: (1) how much turbulence is created by exhaust plumes; (2) is this turbulence great enough to cause loss of pilot control; (3) if so, what size aircraft are impacted; (4) is there a lack of oxygen causing loss of engine power or danger to pilots/passengers; and, if so, (5) what is the harm to those pilots and passengers?

For two years, from 2008 to 2010, the AOSC conducted a Plume Report Study, which was ultimately determined to need further verification and validation.  In 2011, FAA retained the Federally funded Research and Development Center, operated by Mitre Corporation to answer the questions specified in the earlier Plume Report.  The Mitre Study was completed in September 2012 and verified both FAA’s model and what the earlier FAA reports and studies had concluded.
 Continue Reading FAA Finally Issues Guidance on Plume Hazards to Aircraft from Power Plants – Or Does It?

Spurred on by Congress, FAA has issued a proposed policy revising its current position “concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property, when that property is used as a residence.”  77 Fed.Reg. 44515, Monday, July 30, 2012.  FAA’s current position, set forth in its previously published interim policy of March 18, 2011, 76 Fed.Reg. 15028, prohibited new residential “through-the-fence” access to Federally obligated airports. 

The change came in response to Congress’ passage of the FAA Modernization and Reform Act of 2012 (“FMRA”) on February 14, 2012.  Section 136 of FMRA permits general aviation (“GA”) airports, defined by the statute as “a public airport . . . that does not have commercial service or has scheduled service with less than 2,500 passenger boardings each year,” to extend or enter into residential through-the-fence agreements with property owners, or associations representing property owners, under specified conditions.  77 Fed.Reg. 44516.  Sponsors of commercial service airports, however, are treated quite differently. Continue Reading FAA Again Changes its Position on “Through-the-Fence” Agreements with Owners of Residential Property

While its zeal to protect its citizens from the noise and emissions of aircraft arriving and departing Santa Monica Airport is commendable and understandable, the Santa Monica Airport Commission’s method is questionable.  That is because its recently proposed proportional limitation on aircraft operations (i.e., a limit on future operations at some percent of current operations) appears to be contrary to Federal law.

More specifically, in a Memorandum of on or about August 2, 2012, the Airport Commission proposed a hypothetical restriction whereby “the number of daily operations would be limited to [approximately] 53% of the daily operations from prior years . . . For example, if there were 100 operations on June 6, 2012, then no more than 53 operations would be allowed on June 6, 2013.”  The Vice Chairman of the Airport Commission argues that, because the proposed restriction does not discriminate between aircraft types (as a prior proposed Santa Monica ordinance limiting operations by jet aircraft did), it would withstand judicial scrutiny.  The Commission has apparently forgotten about the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq., (“ANCA”), and its prohibition on the imposition of noise or access restrictions without approval by the Federal Aviation Administration (“FAA”). 
 Continue Reading Santa Monica Airport Commission Needs to Look Harder at Federal Law in Proposing Aircraft Access Restrictions

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. Continue Reading Make No Mistake: The Supreme Court’s Decision on Obamacare Has No Impact on Applicable Aviation and Airport Law