On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 


Continue Reading Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

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.  


Continue Reading Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate

In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  


Continue Reading Town of East Hampton Explores Limits of Aircraft Noise Regulation

On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).

More specifically, CARB’s failure to submit constitutes a violation of the general provisions of the Clean Air Act (“CAA”), § 110(a)(2)(D)(i)(I) which requires that CARB submit a SIP revision to comply with the implementation, maintenance and enforcement provisions related to new or revised NAAQS within three years after the promulgation of the revised NAAQS; and that such plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS (“Prong 1”), or interference with maintenance of the NAAQS (“Prong 2”), in any other state.  The final rule implementing the “Finding of Failure” transfers to EPA the obligation to promulgate a Federal Implementation Plan (“FIP”) to address the interstate transport requirements, within 24 months.
 
The issue has come to prominence as a result of the federal/state partnership that is the foundation of the CAA, see 42 U.S.C. § 7401(a)(3) and (4), giving EPA the power of approval over locally developed plans.  


Continue Reading California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 


Continue Reading FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. 


Continue Reading FAA Proposes to Increase its Authority Over Off-Airport Development

On March 6, 2014, the Environmental Protection Agency (“EPA”) announced the 60-day extension of the comment period for the January 8, 2014 proposed “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” and the February 26, 2014 notice of data availability soliciting comments on the provisions in the Energy Policy Act of 2005.


Continue Reading EPA Extends Public Comment Period for “Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units”

In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County. 

Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .”  Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest.  December 17, 2013.  The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1.  The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department. 

Therein lies the rub. 
 


Continue Reading El Paso County Seeks Control Over Colorado Springs Airport

California Legislators Senator Dianne Feinstein and Representative Adam Schiff of Burbank achieved the seemingly impossible in Congress’ January 14 passage of the $1.012 trillion Omnibus Spending Bill, the Consolidated Appropriations Act, 2014, H.R. 3547 (“Appropriations Act”).  The Appropriations Act contains a provision, § 119D, requiring the Federal Aviation Administration (“FAA”) to achieve reductions in helicopter noise throughout the Los Angeles Basin by 2015.  That section specifies certain voluntary measures, which, if unsuccessful in achieving the desired reductions within one year, must give way to FAA regulations to achieve the stated purposes. 

Specifically, § 119D mandates that:

“The Secretary shall (1) evaluate and adjust existing helicopter routes above Los Angeles, and make adjustments to such routes if the adjustments would lessen impacts on residential areas and noise-sensitive landmarks; (2) analyze whether helicopters could safely fly at higher altitudes in certain areas above Los Angeles County; (3) develop and promote best practices for helicopter hovering and electronic news gathering; (4) conduct outreach to helicopter pilots to inform them of voluntary policies and to increase awareness of noise sensitive areas and events; (5) work with local stakeholders to develop a more comprehensive noise complaint system; and (6) continue to participate in collaborative engagement between community representatives and helicopter operators:  Provided, That not later than one year after enactment of this Act, the Secretary shall begin a regulatory process related to the impact of helicopter use on the quality of life and safety of the people of Los Angeles County unless the Secretary can demonstrate significant progress in undertaking the actions required under the previous proviso.”

Although a seeming triumph for noise impacted communities, the Appropriations Act is neither an unalloyed victory nor does it set a precedent for future legislative initiatives for the following reasons:
 


Continue Reading California Legislators Successful in Obtaining Relief from Helicopter Noise

On December 4, 2013, Representative Joseph Crowley of a district in the Bronx and Queens, New York, heavily impacted by operations at LaGuardia Airport, introduced the “Quiet Skies Act” (H.R. 3650).  Supported by a variety of Congresspersons from other similarly impacted districts, the Act requires passenger airlines to replace or retrofit 25% of their fleets every five years until 2035 to meet a “Stage 4” standard, approximately 10 decibels lower than currently approved “Stage 3” engines. 

The conversion mandated by the Act might seem to result in significant relief to populations impacted by frequent overflights of Stage 3 aircraft.  There are, however, at least two conditions significantly vitiating the Act’s impacts. 
 


Continue Reading “Silent Skies Act” is a Nobel Effort Unlikely to Succeed