On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.
Tweed-New Haven Airport, seeking to extend its 5,600 foot runway to 7,200 feet, has run into an unexpected roadblock. A Federal Magistrate in the United States District Court for the District of Connecticut has determined that Connecticut’s Gen. Stat. 15-120j(c) (providing, in part, that “[r]unway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet”), is not preempted by federal law. Tweed-New Haven Airport Authority v. George Jepsen, in His Official Capacity as Attorney General for the State of Connecticut, Case No. 3:15cv01731(RAR). The Magistrate concludes that the state statute “does not interfere with plaintiff’s ability to comply with federal aviation safety standards,” because: (1) the “Plaintiff has failed to present evidence that the runway length in this instance is a component part of the field of airline safety,” and, thus, does not violate the Federal Aviation Act, 49 U.S.C. § 40101, et seq., Memorandum of Decision, p. 39; (2) the statute is not expressly preempted by the provision of the Airline Deregulation Act (“ADA”) (49 U.S.C. § 41713(b)(1)) that “prohibits states from enforcing any law ‘relating to rates, routes, or services’ of any air carrier,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992), because the Connecticut statute does not “relate to rates, routes or services [of airlines],” Memorandum of Decision, p. 43; and (3) the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et seq. (“AAIA”), “does not impose any requirements or authorize the promulgation of federal regulations, unless funding is being sought,” Memorandum of Decision, p. 47.
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.
Under federal law, airport operators that have accepted federal grants or have obligations contained in property deeds for property transferred under laws such as the Surplus Property Act generally may use airport property only for aviation-related purposes unless otherwise approved by the FAA. Specifically, the Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97–248), as amended and recodified at 49 United States Codes (U.S.C.) 47107(a)(1), and the contractual sponsor assurances require that the airport sponsor make the airport available for aviation use. Grant Assurance 22, Economic Nondiscrimination, requires the sponsor to make the airport available on reasonable terms without unjust discrimination for aeronautical activities, including aviation services. Grant Assurance 19, Operation and Maintenance, prohibits an airport sponsor from causing or permitting any activity that would interfere with use of airport property for airport purposes. In some cases, sponsors who have received property transfers through surplus property and nonsurplus property agreements have similar federal obligations.
The Los Angeles Times reports that Uber, the ridesharing company, plans to extend its reach into the stratosphere by developing an “on-demand air transportation service.” The plan appears to be that customers will use Uber’s surface transportation ride hailing system to hop a ride to a “vertiport” where an electrically powered aircraft will carry passengers to another vertiport at which they will be met by another phalanx of Uber drivers waiting to take otherwise stranded customers off the roofs of parking garages and into the traffic they supposedly avoided by using the proposed above ground transportation option.
The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m. The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .” In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton.
On January 17, 2017, the United States House of Representatives passed H.R. 5, the “Regulatory Accountability Act of 2017.” Buried deep within its pages is Title II, the “Separation of Powers Restoration Act.” That title, although only two sections long, dramatically changes the legal landscape for challenges to the actions of federal regulatory agencies. Currently, in adjudicating challenges to administrative rulemaking and implementing actions, the federal courts invoke the precedent established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984). In that case, the Supreme Court held: “We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…” In adopting Chevron, the Supreme Court effectively gives administrative agencies almost complete deference, not only in the interpretation of the regulations they implemented, but also, and more controversially, in the way the agencies carry out the mandates of those regulations. Thus, challengers seeking to use the judicial system to point out and rectify what are perceived as misapplication of the regulations, butt up against the reluctance of the courts to question or interfere with the agency’s construction of the regulation or the evidence and its application in carrying out the agency’s order. In Title II, the Congress has stood the current deferential standard on its head.
In an unusual alliance, the Southern California cities of Newport Beach and Laguna Beach, as well as Orange County, owner and operator of John Wayne Airport (“JWA”), joined with Culver City to challenge the adequacy of the Federal Aviation Administration’s (“FAA”) Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) for the Southern California Metroplex OAPM (“Project”). The Project is a redesign of the approaches and departures to and from more than a dozen Southern California airports. Its stated purpose is to enhance “safety and efficiency” by consolidating the various flight paths to and from these airports by using area navigation (“RNAV”), instead of ground based radar, which requires the use of “waypoints” that, in turn, require dispersion of the aircraft over large areas, and, consequently, the consumption of more fuel.
Culver City has issued a Press Release announcing its intention to file a lawsuit against the Federal Aviation Administration related to aircraft overflights. Culver City has retained Barbara E. Lichman, Ph.D. of the firm of Buchalter Nemer to represent it its challenge to the SoCal Metroplex Environmental Assessment ("EA") and Finding of No Significant Impact and Record of Decision ("FONSI/ROD").