The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

Continue Reading CEQ’s Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions

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. FAA. There, 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.

Continue Reading Wind Farms Run Into Turbulence with the FAA

Developers and local land use jurisdictions beware.  The California Department of Transportation (“CalTrans”) has initiated an update of the 2002 California Airport Land Use Planning Handbook which is scheduled to be completed in 2010.  The Handbook provides guidance to County Airport Land Use Commissions (“ALUC”) in the imposition of height and other zoning and land use restrictions around airports.

An initial problem arises from the Handbook’s interpretation of the airport land use planning process as set forth in the California Aeronautics Act, Public Utilities Code § 21670, et seq.  The California Supreme Court has defined airport land use plans as in the nature of “multi-jurisdictional general plans,” Muzzy Ranch Co. v. Solano County Airport Land Use Commission, 41 Cal.4th 372, 384 (2007), that often supercede local zoning at distances as great as five miles from the end of each runway.  For land use jurisdictions, this means that carefully crafted local regulations within those areas are rendered essentially null, because land use jurisdictions must bring their general and specific plans into consistency with airport land use plans within 180 days of the airport land use plan’s approval, or overrule the approval of the Airport Land Use Plan by a two-thirds vote.  Gov. Code § 65302.3.

Continue Reading A New Edition of the California Airport Land Use Planning Handbook May Mean Trouble

 

Your local airport is becoming a drain on the local economy. Sure, it provides a few jobs, adds a certain cachet to the area and provides a hobby for the few people who can afford to purchase and maintain aircraft. But the annual expense of keeping the airport running – and running safely – is becoming more and more like a lead weight on your budget. “Let’s just close the thing,” you say. But wait, remember all that money you accepted from the FAA as part of the AIP grant program to lengthen the runway, pay for new taxiways, and purchase property? The FAA remembers. And before you can close the airport, there are many hurdles to clear set by the FAA to discourage the closure of airports.

1.            Take A Look At The Grant Assurances

First, take a look at the documents in your possession – the grant agreements you received from the FAA and signed as a condition of receiving the grants. As you are no doubt aware, under various Federal grant programs, you have agreed to assume certain statutorily defined obligations pertaining to the operation, use and maintenance of the Airport [49 U.S.C. § 47107(a)], that are described and implemented in FAA Order 5190.6B and memorialized in the application for Federal assistance as Grant Assurances, which become a part of the grant offer and bind the grant recipient contractually upon acceptance. 49 U.S.C. § 47107(a); FAA Order 5190.6B, “Guide To Sponsor Obligations” pp. 2-13 to 2-18.

 

Continue Reading Considering Closing an Airport? Be Careful! The FAA Has Set Many Pitfalls to Trap You.

The January 2, 2010 edition of the Los Angeles Times contained an op-ed piece by David Steinberg (not the comedian, but a screenwriter from Santa Monica).  The editorial beautifully capsulizes the irrationality of the Transportation Security Agency’s response to the recent attempted bombing of a Delta airliner bound for the United States from Amsterdam in which the TSA instituted regulations during an overnight session (when participants were apparently not fully awake).  Those regulations, governing incoming flights to the U.S. from certain foreign airports, include requiring that passengers remain locked in their seats during the last hour of flight, and removal of all pillows and blankets to overhead bins during the same period. 

In his editorial, Mr. Steinberg recounts his family’s odyssey home from a vacation in Aruba the day after the attempted bombing.  Their adventure included: (1) the baggage handler, designated as “frisker,” becoming embarrassed as he patted down Mr. Steinberg’s four year old son; (2) the same “frisker” apparently recognizing the absurdity of his act, gratefully passing on the frisk of Mr. Steinberg’s two year old daughter; and (3) Mr. Steinberg’s two year old screaming “bloody murder” as the flight attendant yanked the pillow from under her head.

Honestly, when does enough arbitrary and capricious regulation become enough?  First, the government mandates that passengers have to practically disrobe to get on a plane.  Now the government wants to regulate when passengers can go to the bathroom once they get there.  And for all that nonsense, the attempted bomber got on the plane to the United States, with explosives, not in his shoes, but in his underwear!  Does that mean passengers will now have to take off their underwear and put it through the scanner?

Continue Reading New TSA Regulations Are Arbitrary and Capricious

On 40th Anniversary of the National Environmental Policy Act (NEPA), Jim Tankersley of the Los Angeles Times wrote that

The White House is poised to order all federal agencies to evaluate any major actions they take, such as building highways or logging national forests, to determine how they would contribute to and be affected by climate change, a step long sought by environmentalists.

The Presidential Order would most likely issue from the Council on Environmental Quality, an organization set up by NEPA to oversee the NEPA process. Mr. Tankersley’s article goes on to report that that

The head of the White House Council on Environmental Quality, Nancy Sutley, said in an interview this week that federal agencies "should think about both the effect of greenhouse gas emissions, and the effects of climate change, on decisions they make."

She added that the administration’s decision was not yet final.

The White House was originally petitioned in 2008 to formally recognize climate considerations under NEPA, but the White House has not taken any action since then.

However, federal agencies may already be required to include an analysis of climate in their Environmental Impact Statements (EISs) and Environmental Assessments (EAs). NEPA does not mention specific areas that federal agencies must analyze to complete EISs and EAs. Instead, it states that the federal agency shall analyze the effect the federal project will have on the environment, without specifically mentioning any particular areas that need to be examined. Thus, it could be argued that federal agencies should already be examining the effect of the federal project on climate change since that is an “environmental effect” within the purview of NEPA.

As Mr. Tankersley’s article points out, some federal agencies have already taken upon themselves to consider effects on climate. Moreover, there is a growing body of caselaw indicating that the courts are beginning to rule that federal agencies should consider the effect their projects will have on the environment. The U.S. Circuit Court of Appeals for the Ninth Circuit recently held in Center for Biological Diversity v. National Highway Transportation Safety Administration that the NHTSA was required to examine in its EIS the effect of greenhouse gas emissions from the federal project. In coming to that conclusion, the 9th Circuit summarized the following findings from International Panel on Climate Change reports and other sources:

Carbon dioxide concentrations increasing over the 21st century are virtually certain to be mainly due to fossil-fuel emissions;

The average earth surface temperature has increased by about 0.6 degrees;

There have been severe impacts in the Arctic due to warming, including sea ice decline;

Global warming will affect plants, animals, and ecosystems around the world. Some scientists predict that it will cause 15 to 37 percent of species in certain regions to be extinct;

Global warming will cause serious consequences for human health, including the spread of infections and respiratory diseases;

Climate change is associated with increasing variability and heightened intensity of storm such as hurricanes;

Climate change may be non-linear, meaning there are positive feedback mechanisms that may push global warming past a dangerous threshold (the“tipping point”).

Center for Biological Diversity v. NHTSA, 508 F.3d at 522-23. To the Court, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS. See also, Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).

In addition, NEPA contains a provision that could be taken to require federal agencies to consider the impact of the greenhouse gas emissions created by the federal project. Section 102(F) of NEPA, 42 U.S.C. 4332(F) states that “all agencies of the Federal government shall:”

Recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.

To be sure, an order from the White House would be beneficial in establishing a nationwide policy and prompt recalcitrant agencies to require consideration of climate change in their EISs and EAs. At least in the Ninth and Eighth Circuits, however, one could argue that the courts have taken the view that NEPA already requires exactly what the order would seek to implement.

Secretary of Transportation Ray LaHood announced on Monday, December 21, 2009, that DOT was was issuing its Final Rule "enhancing airline passenger protections" by, among other things, limiting airlines to three hours waiting on the tarmac before requiring that the aircraft return to the terminal and allow the passenger to disembark. The only exceptions allowed would be if the safety or security of the aircraft (as determined by the pilot in command) would not allow a return to the terminal or if air traffic control advises the pilot that returning to the terminal would disrupt airport operations. 

In addition, airlines are required to provide adequate food and potable drinking water for passengers within two hours of the aircraft being delayed on the tarmac and to maintain operable lavatories and, if necessary provide medical attention.

The passengers’ rights advocates were understandably jubilant that the rule had come to pass – particularly since the "Passenger Bill of Rights" that was part of the FAA Reauthorization Act of 2009 has stalled in the Senate.  Kate Hanni, Flyerrights.org’s president and founder issued this statement:

This is indeed a wonderful holiday gift and a major victory for any airline passenger who has ever been subjected to an unnecessary tarmac delay and has endured endless hours without food, water or adequate toilet facilities. Flyersrights.org has fought for legislation in Congress to limit these delays, yet the bill has languished in the Senate despite bipartisan support. We applaud the Obama Administration and Transportation Secretary Ray LaHood for stepping up to the plate and telling the airline industry, and Congress, that ‘enough is enough’.

However, the rule raises several questions as to its consumer friendliness.  It may force airlines to cancel flights instead of having them wait.  As the air travel blogger "Cranky Flier" pointed out in his Tuesday, December 22, 2009, blog post, this past weekend during a massive storm hitting the East Coast only one JetBlue flight was delayed longer than three hours.  Why did that happen?

It’s all because of gate issues. JetBlue and other airlines started pre-canceling a lot of flights, as I noted on BNET yesterday. Obviously the more flights you pre-cancel, the better chance the remaining flights will operate, but it means that there are a lot of airplanes around and shuffling them to make gates available during a blizzard is a tricky thing. You never want to see a plane sitting around for more than 3 hours, but if it’s only one (and JetBlue compensated the passengers), then that’s not too bad for the storm of the decade.

But all this pre-canceling comes at a price. That means there are a lot more people who aren’t getting home for Christmas because so many flights were canceled.

There’s no question that airlines would have had to cancel a lot of flights, but were they more conservative because of public backlash on delays? That’s my guess. Would you rather sit on an airplane for 4 hours or just have your flight canceled? I imagine that some would be happy to sit around for 4 hours if it meant they’d get out of town. Now they find themselves stuck.

The discretion to stay in line and wait to take off has been taken away and now, after three hours, the aircraft must return to the gate.

We all know why this rule was instituted.  Indeed, the DOT’s press release specifically states the cause:

This rule was adopted in response to a series of incidents in which passengers were stranded on the ground aboard aircraft for lengthy periods and also in response to the high incidence of flight delays and other consumer problems. In one of the most recent tarmac delay incidents, the Department fined Continental Airlines, ExpressJet Airlines and Mesaba Airlines a total of $175,000 for their roles in a nearly six-hour ground delay at Rochester, MN.

However, incidents like the one in Rochester, MN, are the exception rather than the rule. Moreover, it is not clear from the way things played out at Rochester that this rule would have changed anything. The incident at Rochester was due to a confederacy of dunces, each contributing their own stupidity to make a bad situation even worse. Since people will still have the ability to mess things up despite the rule, whether that sort of incident can be avoided remains to be seen.

This may be one of those times that government regulation may not be the answer to the problem.  Extended tarmac delays, i.e., over three hours, are exceptions. Moreover, prior to the institution of the rule, passengers had a "bill of rights," it is called the U.S. Constitution.  See, Dr. Barbara E. Lichman’s Article "Passengers Detained Have Constitutional and Other Legal Rights."  The DOT rule, however, may have given the airlines a "safe harbor." That is, so long as the flight is delayed less than three hours, the airlines would have a defense to any passenger complaints about being delayed on the tarmac.  Thus, the 3-hour rule may actually have the effect of limiting the passengers’ legal remedies.

Government regulation works best when it is proactive rather than re-active.  The legal system, on the other hand, is intended to step in to "make things right," when exceptions, such as the Rochester incident, happen. So long as passengers know that they have legal rights when they are on aircraft, and remedies if the airlines’ and FAA’s discretion is abused, then they are protected.  While the DOT’s intent was laudable, it is not entirely clear that the rule will have the desired effect of assisting passengers who are trapped on aircraft.

On August 28, 2009 (74 FR 44676), EPA published a proposed rule entitled ‘‘Effluent Limitation Guidelines and New Source Performance Standards for the Airport Deicing Category; Proposed Rule.’’ Written comments on the proposed rulemaking were to be submitted to EPA on or before December 28, 2009 (a 120-day public comment period). Since publication, the Agency has received several requests for additional time to submit comments. EPA is extending the public comment period until February 26, 2010.

When the U.S. Environmental Protection Agency issued its final finding that emission of six greenhouse gases endangered the public’s health and the environment because of their effect on climate change, the business community wondered how it should respond to the news.  At first glance, there seems to be blinding maze of legal and policy issues that will affect business decisions.  Although far from clear, there is a way out of the maze – although businesses with significant greenhouse gas emissions should be prepared to tackle the important issues that the Endangerment Finding raises.

Businesses Need to Take a Deep Breath (Irony Intended)

The road to the endangerment finding began in 2007, when the U.S. Supreme Court decided in Massachusetts v. EPA that carbon dioxide and other greenhouse gases constituted “air pollutants” under the Clean Air Act.  To most savvy businessmen this was a clear signal to start planning how their businesses would cope with the establishment of limits on emission of greenhouse gases.  Although the Bush Administration EPA successfully sat on the issue, when the Obama Administration took office, most companies recognized that an endangerment finding would top the EPA’s list of major environmental actions.  Thus, EPA’s announcement this past April of its proposed finding and its announcement of the final endangerment finding should have come as no surprise to anyone who has been monitoring this issue.

The key thing for businesses to remember is that the endangerment finding by itself does not regulate the emission of greenhouse gases from any source, large or small.  That being said, it does have a direct impact on mobile sources (because of section 202(a) of the Clean Air Act), with the EPA planning on issuing its final “light-duty vehicle” greenhouse gas emissions rule some time in Spring 2010.

Continue Reading What Does EPA’s Finding that Greenhouse Gas Emissions Endanger Public Health and the Environment Mean to Business?

On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.

Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.

Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.

Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.

A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.