On May 20, 2022, the Council on Environmental Quality (“CEQ”) will implement revisions to current regulations governing the environmental analyses under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”). Specifically, CEQ will revise 40 C.F.R. § 1502.13, restoring detailed “purpose and need statements” in environmental impact statements (“EIS”); 40 C.F.R. § 1507.3, removing language that could be construed to limit local governmental agencies flexibility to develop and revise NEPA procedures to implement local agency specific programs; and 40 C.F.R. § 1508.1, definition of “environmental effects,” to restore the distinction between “direct, indirect and cumulative” effects.

The reason for the proposed changes lies with the dueling political and environmental concepts of the immediate past and current presidential administrations. In 2017, then President Trump issued Executive Order 13807, requiring CEQ to propose certain changes to then existing regulations. In January 2020, CEQ issued the new rules, making wholesale revisions to the original regulations that limit their applicability, and became effective on September 14, 2020. Immediately thereafter, on January 20, 2021, the new Administration issued Executive Order 13990 revoking the previous Administration’s Executive Order, and requiring CEQ to review and revise all regulations implemented between 2017 and 2020, i.e., those issued during the Trump Administration, to become consistent with later Executive Order 13990. The following constitutes the results of CEQ’s efforts toward “rectifying” the limitations on previous regulations, consistent with the intent underlying the original 1978 implementing regulations.

Continue Reading The CEQ Tries to “Make a Silk Purse from a Sow’s Ear” by Revising NEPA Regulations

It appears that some members of Congress have not given up the fight to bring relief from airport noise impacts to their constituents. Since the beginning of August, 2021, at least eight (8) “Aviation Noise Bills” have been introduced in an attempt to lessen the burden on some communities from aircraft overflight, particularly in the wake of implementation of the Federal Aviation Administration’s (“FAA”) NextGen initiative, which resulted, in many cases, in the consolidation of flight paths, often over communities not previously overflown at all, thus also increasing noise over those and other communities.

Several of these legislative efforts are particularly notable, some for being remarkably ambitious, and others for being wish lists, without a strong chance for passage.

Continue Reading Congress Continues to Search for Relief From Airport Noise Impacts

If there is anything to be learned from the FAA’s distribution of the $10 billion in funds allocated to airports in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, it is that allocating billions of dollars in just a few weeks is more difficult than it sounds. On March 27, 2020, the CARES Act was signed into law as Public Law No. 116-136. The CARES Act is aimed at mitigating the effects of the COVID-19 pandemic on most segments of American business and infrastructure. Title XII of the Act specifically supports airports by directing the FAA to make $10 billion available based on each airport’s level of operations and debt. However, when it came to calculating each airport’s share of the pie, the FAA botched the process by employing a formula that allocated massive amounts to some smaller airports while snubbing larger, busier airports.

In April, the FAA attempted to correct the problem by capping each airport’s CARES Act funding at four times the airport’s annual operating budget. The FAA then issued guidance stating that grant funds not used within four years are “subject to recovery by the FAA,” and designated a four year “period of performance” pursuant to 2 C.F.R. section 200.309. In other words, if you don’t use it, you lose it. But just as the FAA has experienced hiccups distributing the grant funds, airport sponsors will inevitably encounter thorny regulatory issues as they attempt to spend millions of dollars in new grant funding while navigating their compliance obligations under the CARES Act. This begs the question, “What are permissible uses of CARES Act grant funds by airport sponsors?”

Continue Reading Permissible Uses of CARES Act Grant Funds by Airport Sponsors

The concern of the Federal Aviation Administration (“FAA”) regarding the use by airport operators of airport generated revenues to soften budget shortfalls off the airport appears to be growing. In a speech delivered at the November 11, 2019 National Air Transportation Association Leadership (“NATA”) Conference, Kirk Shaffer, FAA’s Associate Administrator for Airports, solicited the assistance of the aviation community in working with jurisdictions on compliance. Mr. Shaffer went on to opine that jurisdictions that operate airports are sometimes unaware of the laws governing revenue diversion, or confused by revenue flows, particularly as related to state and local taxes. He illustrated the problem by sharing the fact that, of the 177 jurisdictions with which the FAA has worked over the past five years on revenue diversion issues, 107 still remain noncompliant.

That number of noncompliant jurisdictions is somewhat surprising as the rules governing the use of airport revenues from airports are fairly explicit. The general rule is that revenues generated by a public airport may only be expended for the capital and operating costs of: (1) the airport; (2) the local airport system; or (3) other facilities owned or operated by the airport operator and directly and substantially related to the air transportation of passengers or property. 49 U.S.C. §§ 47107(b)(1) and 47133(a). The use of airport revenue for purposes other than airport capital or operating costs is generally considered “revenue diversion” and is prohibited by federal law. See Policy and Procedures Governing the Use of Airport Revenue, 64 Fed.Reg. 7696, 7720 (February 15, 1999) (“Revenue Policy”). Airport revenues subject to the revenue use requirements include all fees, rents, charges, or other payments received from anyone who makes use of the airport and from the airport sponsor’s activities on the airport. Id. at 7716.

The third prong provides unique revenue allocation opportunities to airport sponsors that own or operate other facilities.

Continue Reading FAA Focuses on Controlling Revenue Diversion

In a decision of October 21, 2019, the Federal Aviation Administration (“FAA”) defied its own regulations, federal law, and logic in determining that the City of Santa Monica had properly expended airport revenues in the demolition of 3,500 feet of the runway at Santa Monica Municipal Airport (“SMO”), for the express purpose of limiting access by turbojet aircraft.

In its decision, FAA stated “[w]e conclude that airport revenue may be used to fund the payment removal, pavement pulverization, and hydro-seeding project, including the work within the Runway Safety Area, at SMO. The removal of the subject pavements, pavement pulverization and reuse, and the soil stabilization at SMO appears justified as an airport operating cost.” [Emphasis added]. Existing law and governing regulations would, however, appear to lead to the contrary conclusion.

Continue Reading FAA Ignores Its Own Regulations in Allowing Expenditure of Airport Revenue to Demolish Runway at Santa Monica Municipal Airport

In recent months, since the tragic crashes of two Boeing 737-Max aircraft in disparate areas of the globe, both the public and the press have expressed surprise at the finding that the Federal Aviation Administration (“FAA”) was delegating to the aircraft manufacturing industry the principal responsibility for formal certification of aircraft safety. They shouldn’t have been so surprised.

The press consistently blames “agency capture,” the process by which federal agencies purportedly develop cooperative, and even symbiotic, relationships with the industries they are tasked with regulating. In fact, in this instance, it was the United States Congress, in Section 312 of the FAA Modernization and Reform Act of 2012 (“FMRA”), that opened the door to the now questioned delegation of authority over aircraft safety.

Continue Reading Congress Gives the Aviation Industry the Keys to the Hen House

The Federal Aviation Administration (“FAA”) Reauthorization Act of 2018 (“Act”), passed by Congress on October 3, 2018, devotes an entire section, Title 1, Authorizations, subtitle D, to “Airport Noise and Environmental Streamlining.” Among the 22 provisions enacted by the subtitle, at least 12 deal directly or indirectly with aircraft noise. These provisions almost exclusively require “studies,” “research,” “consideration,” and “reports,” and notably lack, with only three exceptions, any mandate for substantive action.
Continue Reading Congress Provides for Numerous Noise Studies in 2018 FAA Reauthorization Act

In an unusual divergence of opinion between aviation related organizations concerning progress in the operation and development of the national air traffic system, the Airline Owners and Pilots Association (“AOPA”), the nationwide organization of private aircraft owners, opposes the plan set forth in the 21st Century Aviation Innovation, Reform, and Reauthorization Act, H.R. 2997 (“AIRR Act”).  That plan calls for the air traffic control (“ATC”) system currently managed by the Federal Aviation Administration (“FAA”) to be removed from federal government control, and turned over to a 13 member, largely private, board, the dominant members of which are the nation’s commercial airlines.  See § 90305.  

The apparent rationale behind the shift, heavily supported by the commercial airline industry, is the consistent delays and resulting costs in fuel and efficiency that have been endemic to the ground based radar air traffic control system in effect since World War II.  The airline industry maintains that insufficient progress has been made in expediting operations to accommodate the increasing number of operations in the United States airspace.  The commercial airlines’ position is supported by the legislative purpose which is “to provide for more efficient operations and improvement of air traffic services.”  See § 201.  
 
AOPA, on the other hand, relies on examples of the disputed improvements in system management which it maintains undercut the airline industry rationale for pursuing privatization.  


Continue Reading The Privatization of Air Traffic Control Vigorously Opposed by General Aviation Groups

Up against a September 30th deadline for the passage of legislation before its recess, Congressman Bud Shuster introduced the 21st Century Aviation Innovation, Reform, and Reauthorization Act (“21st Century AIRR Act” or “Act”), H.R. 2997.  Although somewhat obscured by its name and size (in excess of 200 pages), one of the central points of the Bill is the transfer of air traffic control responsibility from the Federal Aviation Administration (“FAA”) to a private sector corporation (“Corporation), i.e., privatization of the air traffic control system.  The Bill betrays the speed of its development through its lack of specificity on a number of critical issues.

Continue Reading Congress’ Attempt to Transfer Air Traffic Control to a Private Corporation Leaves a Great Deal to the Imagination