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. 


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In a surprising climax to the long controversy concerning helicopter flights and attendant noise impacts on the North Shore communities of New York’s Suffolk County, the FAA, on July 6, issued a “Final Rule,” making mandatory the current voluntary flight path for helicopters one mile offshore, but allowing the “Final Rule” to sunset on August 6, 2014, two years from the effective date, “unless the FAA determines a permanent rule is merited.”  The route commences 20 miles northeast of LaGuardia, near Huntington, New York, and remains approximately one mile offshore until reaching Orient Point, near the eastern end of Long Island, with deviations allowed for safety reasons, and to allow helicopters to transit over land to reach their ultimate destinations. 

The FAA discloses that its decision to promulgate the original voluntary rule arose from the numerous complaints of noise from helicopter overflights brought to its attention by Senator Charles Schumer of New York and Representative Tim Bishop of Long Island’s North Shore in October, 2007.  The subsequent mandatory rule apparently resulted from continued political pressure by residents who are “unbearably and negatively” impacted, particularly during the summer months when the number of helicopters, as well as deviations from the voluntary routing, seem to increase dramatically.  The real surprises in the “Final Rule,” however, are FAA’s rationale for: (1) making the route mandatory, a rationale which seems to apply equally to currently voluntarily procedures at other airports; and (2) the Rule’s sunset provision. 
 


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On June 18, 2012, the Environmental Protection Agency (“EPA”) posted in the Federal Register, Vol. 77, No. 117, 36342, its Final Rule adopting several new aircraft engine emission standards for oxides of nitrogen (“NOx”) for aircraft turbofan or turbojet engines with rated thrusts greater than 26.7 kilonewtons (kN), or in common parlance, commercial passenger and freighter aircraft normally used at airports across the United States.  The rule applies only to the manufacture of new aircraft engines, not to retrofit of existing aircraft engines. 

The EPA’s stated purpose in enacting the new rule is two-fold.  First, NOx is strongly correlated with nitrogen dioxide (“NO2”) which is a “criteria pollutant” under the EPA’s National Ambient Air Quality Standards (“NAAQS”), and is an important precursor gas in the formation of ozone and secondary particulate matter (“PM2.5”) which are common air pollutants in urban areas where airports are often located.  Second, the new rule will bring United States’ emissions standards into consistency with those established by the International Civil Aviation Organization (“ICAO”), see ICAO Annex 16, Vol. II, 2010 that the U.S. helped to develop and supports as part of the international process. 

The rule contains six major provisions.
 


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On May 17, 2012, FAA published in the Federal Register a “Notice of Proposed Rulemaking (NPRM); Reopening of Comment Period” for “Rules of Practice for Federally Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” first published in March, 2012.  In plain language, FAA is making substantial changes to the procedures for bringing a challenge to airports’ compliance with FAA grant assurances under 14 C.F.R. Part 16.  “Grant assurances” are those commitments made by airport sponsors in return for receipt of federal funding of airport projects, as required by 49 U.S.C. § 47107.  Any changes in the procedures for enforcing grant assurances are of significant interest not only to the airports, which may benefit from a relaxation in the procedures for challenging their actions, but also to airport users, such as fixed-base operators (“FBO”), airlines, and other airport related businesses.  The proposed changes are broad in scope and purportedly made for the purpose of, among other things, becoming consistent with the Federal Rules of Civil Procedure. 


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On March 27, 2012, the Environmental Protection Agency (“EPA”) proposed a Carbon Pollution Standard for New Power Plants (“Carbon Standard”), setting national limits on the amount of carbon pollution power plants built in the future can emit.  The rules are a reaction to the United States Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which, among other things, the Supreme Court held that greenhouse gases, including carbon dioxide (“CO2”) are air pollutants under the Clean Air Act.  EPA was charged by the court with issuing an “endangerment finding,” i.e., a determination that greenhouse gases threaten public health and welfare which was issued on December 15, 2009. 

Immediately upon their initial promulgation, the Carbon Standard generated more contention than power plants generate greenhouse gases.  The Wall Street Journal charged, in an article entitled “Killing Coal,” that “because the putative ‘regulatory impact’ would be zero, there are also no benefits.”  It went on to say that, because the rule would apply not only to new plants but also to every plant upgrade or modification in existing facilities; and because the technology required to meet the standard is still speculative, the EPA’s real goal must be to put a stop to the use of coal in electricity generating. 

The EPA immediately fired back, characterizing the critique of the Carbon Standard in, among others, the Wall Street Journal, as examples of “fact free assault.”  Assistant Administrator Gina McCarthy pointed to the “example” that, in fact, “this standard only applies to new sources – that is power plants that will be constructed in the future.  This standard would never apply to existing power plants.”  Moreover, again pointing to the Wall Street Journal editorial, she stated “the proposed rule explicitly does not apply to facilities making such modifications.  In fact, EPA did not propose a standard for any modifications.”

The proposed Carbon Standard speaks for itself. 


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On Thursday, March 16, 2012, the Environmental Protection Agency (“EPA”) took the almost unprecedented step of publishing in the Federal Register a correction to its prior definition of “regulated new source review pollutant” (“Rule”) contained in two sets of Prevention of Significant Deterioration (“PSD”) regulations, 40 C.F.R. §§ 51.166 and 52.21, and in EPA’s Emissions Offset Interpretative Ruling, 40 C.F.R. Part 51, Appendix S, 77 Fed.Reg. 15,656. The purpose of the revision is to correct an “inadvertent error” dating back to the Rule’s promulgation in 2008 when the then-existing definition was changed to require that particulate matter emissions, both PM10 and PM2.5, representing three separate size ranges of particulates, must include “gaseous emissions, source or activity which condense to form particulate matter at ambient temperatures,” i.e., condensable particulate matter.  See, e.g., 40 C.F.R. § 51.166(b)(49)(vi).  Previously, EPA’s regulations only required the filterable fraction, not the condensable particulate matter, to be considered for new source review purposes.  The 2008 change therefore imposed an unintended new requirement on State and local agencies and the regulated community.


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On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA’s General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.
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On April 21, 2010, the EPA announced that it would seek public comment on data available for evaluating emissions and potential exposure to lead in gas used in piston-engine aircraft.  As the EPA stated:

Emissions of lead from piston-engine aircraft using leaded avgas comprise approximately half of the national inventory of lead emitted to

With the current emphasis on “renewable energy” and sustainability, along with a healthy dose of federal funding, many companies have been developing plans for wind farms to help move this nation from the grip of over-reliance on petroleum products for its energy needs. While barriers to their construction are not new, with wind turbine companies fending off Endangered Species Act lawsuit (endangered bats running into blades) and other environmental issues, the FAA recently raised an additional issue: obstruction to aviation.

On Wednesday, January 6, 2010, the FAA found that 15 of Gamesa’s proposed 30 wind turbines for Shaeffer Mountain in Somerset County, Pennsylvania, exceed “obstruction standards and/or would have an adverse physical or electromagnetic interference effect” on the airspace above the ridge or nearby airports and flight routes. Two days later, on Friday, January 8, 2010, the FAA ruled that one of the two wind turbines proposed for the Dartmouth, Massachusetts owned land is a hazard to air traffic and must be lowered. 

The FAA may have learned its lesson, since back in April, 2008, it was told to go back to the drawing board with its “Does Not Exceed” determinations for a proposed wind farm above a proposed airport just south of Las Vegas in Ivanpah, Nevada. Clark County v. FAAThere, the court determined that the FAA’s findings flew in the data that the 400 ft towers would penetrate the FAA’s 40:1 slope and that 83 turbines would appear as a “fleet of jumbo jets” to the air traffic controllers.

It may be prudent, then, to review the process established by the FAA for determining if an object will be considered to be an “obstruction.”

Notification

Part 77 of the Federal Aviation Regulations (14 C.F.R., Part 77) establishes standards and notification requirements for objects affecting navigable airspace. This notification serves as the basis for:

  • Evaluating the effect of the construction or alteration on operating procedures
  • Determining the potential hazardous effect of the proposed construction on air navigation
  • Identifying mitigating measures to enhance safe air navigation
  • Charting of new objects.

Notification allows the FAA to identify potential aeronautical hazards in advance thus preventing or minimizing the adverse impacts to the safe and efficient use of navigable airspace.


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