The California Airport Land Use Planning Handbook, October 2011 (“2011 Handbook”) was released this week. It supersedes the 2002 Handbook edition. The Handbook constitutes “guidance,” Cal. Pub. Util. Code § 21674.7, for Airport Land Use Commissions (“ALUCs”) in the determination of the scope of their jurisdiction over off-airport land uses as well as in the formulation of noise, overflight, safety and airspace protection policies, as mandated by Cal. Pub. Util. Code § 21670, et seq.

It is important to note at the outset, however, what a Handbook cannot do. First, it cannot grant to ALUCs the power to regulate airports, either in the air or on the ground. Those powers lie exclusively with the Federal Aviation Administration (“FAA”) and the local airport proprietor. Second, it cannot grant to ALUCs the final decision making power over off-airport land uses either. That power lies exclusively with local land use jurisdictions. What the Handbook can do is provide guidelines for the formulation of policies that bring to the attention of local land use policy makers the importance of “ensuring compatible land uses in the vicinity of . . . all new airport and in the vicinity of existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses.” Cal. Pub. Util. Code § 21674(a).

As the 2011 Handbook’s girth exceeds 400 pages, and was issued only this week, the specific ways in which the 2011 Handbook addresses that charge will be the subject of a blog to appear shortly.
 

The proposed location of the first offshore wind farm, 130 wind turbines, each 440 feet tall, in a 25 square mile in Nantucket Sound, has been controversial from the start. The controversy has arisen partially because of Cape Cod’s high profile residents who would be visually impacted (such as the Kennedy family), and partly because of the proximity of the Town of Barnstable which is owner and operator of a municipal airport.

Now the courts have weighed into the controversy. In Town of Barnstable, Massachusetts v. Federal Aviation Administration, 2011 W.L. 5110119 (C.A.D.C.), decided on October 28, 2011, the D.C. Circuit Court of Appeals held that: (1) the petitioners in two consolidated cases, Barnstable and Alliance to Protect Nantucket Sound, had standing to challenge the Federal Aviation Administration’s (“FAA”) determination that the wind farm would not pose a hazard to air navigation under FAA regulation 14 C.F.R. Part 77; and (2) FAA’s finding of “no hazard” to air navigation under that section was a result of the agency’s failure to properly apply its own regulations and the guidance in its own Order JO 7400.2G (April 10, 2008) (“Handbook”).
 

Continue Reading D.C. Circuit Court of Appeals Takes FAA to the Woodshed in Cape Cod Wind Farm Case

Noise abatement procedures are only effective if they are used. Noise impacted communities are frequently heard to complain that, despite the complex, time consuming and expensive process needed to develop and implement noise abatement procedures at airports, either through the FAA’s Part 150 process, or through other airport specific processes, airlines seem to ignore them. The rationale often provided is that each airline is entitled to develop and implement its own flight procedures, some, but not all of which incorporate the specified noise abatement procedures. This situation was exacerbated in 1990 when the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., took noise abatement policy making out of the hands of local airports and placed approval authority exclusively in the hands of the FAA.

A deceptively simple solution to this pervasive problem of airlines non-uniform observance of airport specific noise abatement policies has been developed by a small, new company in Truckee, California, Whispertrack.
 

Continue Reading A New Technological Fix Hopes to Make Airport Noise a “Whisper”

On October 20, 2011, the California Air Resources Board (“CARB”) adopted a new set of rules, called “cap-and-trade,” implementing the requirements of AB32, California’s groundbreaking climate change law. Enacted in 2006, AB32 requires reduction in carbon emissions, usually credited as the cause of “global warming,” to 1990 levels by the year 2020. The new cap-and-trade regulations will be implemented in phases, with the State’s largest emitters required to meet the caps beginning in 2013; and remaining emitters, collectively about 85%, required to begin compliance in 2015.

Continue Reading “Cap-and-Trade” Caps California’s Climate Change Regulations

On September 27, 2011, Governor Jerry Brown signed into law Senate Bill 292 and Assembly Bill 900, both of which are aimed at expediting, or “fast-tracking,” the litigation of lawsuits brought under the California Environmental Quality Act, 42 U.S.C. § 4321 (“CEQA”). SB292 is basically an earmark that will “fast-track” CEQA challenges to the Farmer’s Field National Football League Stadium proposed for downtown Los Angeles, next to the Los Angeles Convention Center and Staples Center, by requiring that such challenges be brought directly in California Courts of Appeals and be heard within 175 days. AB900 reaches more widely, “fast-tracking” all projects costing $100 million or more.

The stated intentions of the Bills’ sponsors are, on their faces, noble ones — to provide more job opportunities, and spur increased spending and attendant tax revenue for the State, matters which seem urgent in light of the State of California’s economy. The problems raised by the Bills are less immediate, but no less important.
 

Continue Reading CEQA and the Law of Unintended Consequences

Recent appellate cases have once again brought to the fore the critical importance of the “exhaustion of administrative remedies” for any potential challenger to an agency action based on noncompliance with the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act (“NEPA”) and other laws meant to protect the environment and public.

In California, as example, public projects such as road construction, airport development, and power facilities, as well as private projects such as shopping centers are challenged on the basis of the failure to exhaust administrative remedies, or to present the alleged grounds of noncompliance “to the public agency orally or in writing . . . during the public comment period provided by this division or prior to the close of the public hearing . . .” Cal. Pub. Res. Code § 21177.

All too often, individuals, environmental organizations and public agencies wait to make their decisions to challenge the analysis of a project’s environmental impacts until their frustration peaks, and the time for filing a legal challenge arrives. [The usual time for filing a CEQA challenge is very short – 30 days from the filing by the agency of its Notice of Determination (“NOD”) which marks the final agency action in the CEQA process. NEPA is normally 60 days from the signing of the Record of Decision (“ROD”).] By that time, however, it is too late, because “exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184, 1199 (2004).
 

Continue Reading Don’t Procrastinate: Make Your Comments on Environmental Analyses Early and Often

In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration’s (“FAA”) long held position that “aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not,” Barnes, at 16285, and the Federal Court’s traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998).

Continue Reading Ninth Circuit Calls FAA to Task on Environmental Impacts of New Runway

In National Resources Defense Council v. Southern California Air Quality Management District, 2011 W.L. 2557246 (C.A. 9 (Cal.)), the National Resources Defense Council (“NRDC”) sought to call the Southern California Air Quality Management District (“SCAQMD”) to account for purportedly using invalid “offsets” for emissions increases resulting from new stationary sources. A panel of the Federal Ninth Circuit Court of Appeals found, however, that: (1) the District Court’s decision refusing to hold SCAQMD to a validity standard for its internal “offsets” for emissions increases was correct because such a validity standard is not required by the Clean Air Act (“CAA”), 42 U.S.C. section 7503(c) (“Section 173(c)”); and (2) ironically, the District Court lacked jurisdiction to reach that decision where original jurisdiction lies in the Courts of Appeals pursuant to CAA section 7607.

Continue Reading The National Resources Defense Council Challenge to the Southern California Air Quality Management District Administration of Emissions Credits Rejected by Ninth Circuit Court of Appeals

Representative Howard Berman of Los Angeles’ San Fernando Valley has been getting an earful lately from constituents disgruntled by constant, low level overflights from sightseeing, paparazzi and media helicopters from nearby Burbank Airport. In response, Berman introduced the Los Angeles Residential Helicopter Noise Relief Act which would require the Federal Aviation Administration (“FAA”) to establish rules on flight paths and minimum altitudes for helicopter operations above residential neighborhoods within one year of the bill having been signed into law. The bill would contain exemptions for emergency responders and the military. Surprisingly, while FAA regulation 14 C.F.R. section 91.119 establishes minimum altitudes for fixed-wing aircraft, it exempts helicopters from such requirements. “A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA.” 14 C.F.R. section 91.119(d)(1).

Continue Reading Proposed Legislation Would Grant Noise Relief from Helicopter Overflights

The Los Angeles Times reports that, while economic conditions are slowly improving throughout most of the nation, including most of California, California’s Inland Empire, comprised of Riverside and San Bernardino Counties is not so fortunate. The Times reports that the volume of home sales in San Bernardino County dropped 18.3% from last June, and in Riverside County 14.7%. Similarly, jobs fell throughout the Inland Empire in sectors such as leisure and hospitality (minus 3,200 jobs in June) and educational and health services (minus 1,300 positions in June). Finally, the region lost 3,900 construction jobs over the year, and more than 75,000 since the peak of construction in June, 2006.

As part of the solution to this ongoing problem, the City of Ontario and County of San Bernardino have joined together to negotiate a return of Ontario International Airport (“ONT”), operated by the City of Los Angeles through its Airport Department, L.A. World Airports (“LAWA”) since 1967, to local control. ONT has, consistent with the condition of the local economy, seen an approximate 30% decrease in operations since 2007.
 

Continue Reading Inland Empire’s Economic Woes Remediable Through Local Control of Ontario International Airport