Once again taking a forefront position in innovative environmental programs, California, for good or ill, is poised to launch the first of its kind and scope in the nation greenhouse gas (“GHG”) emissions trading system (“Cap and Trade”). 

On November 14, 2012, the California Air Resources Board (“CARB”) will hold an auction mandated by California’s 2006 “Climate Change” law, AB32, in which pollution permits (“Allowances”) will be bartered to more than 350 businesses, including utilities and refineries.  The concept behind Cap and Trade is that polluters must either cut carbon emissions to the level of a specific emission cap placed on individual types of pollutants by AB32, or buy allowances for each metric ton of carbon discharged over cap limits from other companies whose emissions did not reach cap levels.  Through the Cap and Trade program, excess carbon polluters can achieve up to 8% of emissions reductions needed. 
 

Continue Reading “Cap and Trade” in Greenhouse Gas Emissions Launched in California

On August 21, 2012, in a highly unusual disagreement with a rulemaking action by a Federal agency, the D.C. Circuit Court of Appeals sent the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution, or Transport, Rule, governing sulfur dioxide (“SO2”) and oxides of nitrogen (“NOx”) emissions, back to the agency with firm instructions to try again, and, next time, do a better job.  What makes this decision somewhat unusual is that cross-state rules had previously been implemented by EPA for PM2.5 and ozone, and upheld by the D.C. Circuit, see, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). 

In its decision in EME Homer City Generating, L.P., et al. v. EPA, et al., Case No. 11-1302, the D.C. Circuit took strong issue with EPA’s attempt to meet its responsibility under Clean Air Act § 110(a)(2)(D)(i)(I), 49 U.S.C. § 7410(a)(2)(D).  That section, the “good neighbor” provision, requires, in pertinent part, that, after EPA sets National Ambient Air Quality Standards (“NAAQS”), 42 U.S.C. § 7409, and designates areas within each state which exceed the NAAQS, 42 U.S.C. § 7407(d), or “nonattainment” areas, states must develop a state implementation plan (“SIP”), 42 U.S.C. § 7410, which includes provisions prohibiting any emissions source or activity “which will – contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.”  The D.C. Circuit found major legal flaws in EPA’s Transport Rule. 
 

Continue Reading The D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule

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

On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries.  Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’”  Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).  Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas.  Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process.  Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry.  Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).

The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
 

Continue Reading Local Land Use Restrictions on Hydraulic Fracturing Upheld in Pennsylvania

On July 27, 2012, Los Angeles World Airports (“LAWA”) released the “Specific Plan Amendment Study Draft Environmental Impact Report” (“DEIR”), involving, among other things: (1) a realignment and extension of runways to the east on the North Airfield Complex, including a separation of the two north runways to permit their unimpeded use by the largest operating aircraft, A-380s and 747-800s (“Category VI”); (2) expansion and renovation of the terminals; and (3) associated movement and potential undergrounding of surrounding thoroughfares including Lincoln Boulevard.  Sides are already forming over the proposed plan. 

Continue Reading Draft Environmental Impact Report for Los Angeles International Airport Airfield Project Released

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

A lesson for all those who oppose the development of airports – be careful what you ask for, you might get it.  Ten years ago the City of Irvine, California, won its epic battle over the conversion of El Toro Marine Corps Air Station (“El Toro”) to a new commercial airport for Orange County, California.  The site is more than 3,000 acres in size, and was, at the time, surrounded by a 14,000 acre “no development” buffer zone, that the military had maintained to insulate itself from liability for noise and other impacts from aircraft operations at El Toro. 

Despite the largest land use buffer around any airport in the nation, and the fact that the noisiest military aircraft then in existence, the F-14, F-16 and F-18 fighter jets, had been operating regularly and continuously out of El Toro for more than 50 years, when El Toro was marked for closure under the Base Reuse and Realignment Act, 10 U.S.C. § 2687, et seq., (“BRAC”), and conveyed to Orange County through a public benefit conveyance, a number of cities in South Orange County, including Irvine and Laguna Niguel, banded together to stop the conversion.  Their alternative was a 3,600 acre “Great Park” on the El Toro site, to include sports facilities, entertainment venues, and wildlife preservation areas, and limited commercial and residential development on the periphery. 

It was a very convincing story, and, ultimately, in 2003, after 10 years of political and legal battles and the expenditure of many millions of dollars on both sides, the effort prevailed in the passage of an Initiative, Measure W.  The Initiative transferred land use planning authority from Orange County to the City of Irvine, for the purpose of developing the “Great Park.”  The only problem is, another 10 years and mega-millions of dollars later, the Great Park remains an empty field hosting an occasional tent show or fair, and is on the verge of becoming what its skeptics expected all along.
 

Continue Reading The Unmaking of the Great Park

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. 
 

Continue Reading FAA Issues Temporary “Final Rule” for the New York North Shore Helicopter Route

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.
 

Continue Reading EPA Adopts Final Rule Further Restricting NOx Emissions from New Aircraft Engines