On November 10, 2009, Secretary of Transportation Ray LaHood posted a blog on the Department of Transportation website entitled "The FAA, an Active and Vigilant Partner in Aviation Safety." In his post, Secretary LaHood made the point that the Federal Aviation Adminsitration is seeking to be proactive with respect to safety and "move aggressively to put new safety measures in place." And, in so doing, move forward by working with "key stakeholders to solve aviation problems."

 

The basic point–that safety is this DOT’s number one priority–cannot be said too many times. However, I think it’s important to make one other point very clearly:

The Obama Administration’s Federal Aviation Administration is an active and vigilant partner, and we are moving aggressively to put new safety measures in place.

Now, there are two parts to this claim.

One–the new FAA is active and vigilant.

For that look no further than the recent incident where two Northwest Airlines pilots overflew their destination on the way to Minneapolis. The FAA took action immediately, revoking the pilots’ licenses within a matter of days.

Two–the new FAA is a partner, working with key stakeholders to solve aviation problems.

In June, for example, we issued a call to action encouraging all players in the aviation industry-–labor, management, and the FAA–to come together to scrutinize operations, share best practices, and implement actions we know can improve safety. 

 

To his post, I made this comment.

While I do not for a moment doubt the sincerity of the FAA’s statement that safety is its number one priority, since as a former FAA employee, I know firsthand the commitment the agency and its staff have to safety. The issue I have is when the FAA hides its actions behind the mantra of "safety."

Take, for example, the institution of a RNAV procedure at an airport. To say that the purpose and need for the RNAV procedure is to enhance safety is not entirely accurate. The need for an RNAV procedure is to allow, among other things, shorter separation between planes and more accurate flight tracks. Do those goals create a safer environment for those on the plane or on the ground? Perhaps, but safety is really a secondary goal – a by-product, if you will, of the primary goals.

While whether a RNAV procedure is a safety concern or a congestion concern may be a minor thing, the stakes get raised when the legal consequences are considered. The FAA has long recognized that if denominates the purpose of a project as being "safety," it will get less resistance from the public, and from the courts, if litigation results. That would not be the case if the purpose were "convenience," "ease of congestion" or even "efficiency." Thus, when the FAA drafts an Environmental Impact Report pursuant to the National Environmental Protection Act, it knows that, whatever the project, the purpose and need has to be "safety."

If everything is about safety, then nothing is about safety. Denominating safety as the purpose for every project, diminishes the impact that projects that ARE about safety will have. I applaud the FAA safety efforts, particularly with respect to pilots and air traffic controllers, and hope that it is successful instituting the needed changes in its infrastructure to enhance safety even more. But when a project is clearly not about safety or, at best, a minor part of the purpose of the project, the FAA has tell the public the truth.

The point is: too often the FAA hides behind "safety" to protect itself from criticism about its projects.  Too often valid debate about the need for FAA projects, e.g., runway extensions, RNAV procedures, control towers, etc., is muted because the FAA wraps them up in the mantle of safety.  If the true purposes for the projects are announced, then the debate about whether the project’s pros can be balanced by the cons can be effectively debated. And that, is the whole point of requiring federal agencies to make their projects known to the public.

 

The Federal Aviation Administration has officially rescinded its controversial plan to enact mandatory slot auctions on LaGuardia, JFK, and Newark airports.  See 74 Fed. Reg. 52,132 (Oct. 9, 2009) (LaGuardia) and 74 Fed. Reg. 52,134 (Oct. 9, 2009) (JFK and Newark). 

Both the final rule "Congestion Management Rule for LaGuardia Airport" and "Congestion Management Rule for John F. Kennedy International Airport and Newark liberty International Airport" were published in the Federal Register on October 10, 2008 (73 Fed.Reg. 60544 and 60574).  These final rules established procedures to address congestion in the New York City area by assigning slots at the airports, assigning to existing operators the majority of slots at the airports, and creating a market by annually auctioning off a limited number of slots in each of the first five years of the rule.

The rules have been the subject of litigation and much controversy ever since the Bush Administration first proposed them.  The D.C. Circuit ruled last year that the slot auctions could not take place pending the outcome of the litigation.  They have also been the subject of two Law Review articles:  Benjamin D. Williams’s Comment, Playing the Slots: The FAA Gambles with Its Controversial Congestion Management Plan for New York’s Busiest Airports, 74 J. Air L. & Com. 437 (2009), offers a detailed discussion of the law and policy implications of the FAA’s proposed slot auction rule; and Professor Michael Levine’s article Airport Congestion: When Theory Meets Reality, 26 Yale J. on Reg. 37 (2009) which presents an improved proposal for slot auctions–one which accounts for market realities and provides airlines holding slots to see the full opportunity costs of retaining (and possibly hoarding) their slots

Then the administration changed and on May 14, 2009, the FAA published a notice proposing to rescind the 2008 final rules citing the impact of the Omnibus Appropriations Act on the rules and the state of the economy in general.  And for those reasons, the FAA states that it "has decided to rescind the 2008 final rule effective immediately."

 Other blog posts on this topic:  

FAA Issues Notice of Order to Show Cause Regarding Extension of Limitation of Arrivals at JFK and Newark Airports The FAA, on June 5, 2009, issued two Notices of Order to Show Cause requesting "the views of interested persons on the FAA’s tentative determination to extend through October 30, 2010, the January 15, 2008, order limiting the number of…

 

FAA Proposes Rescission of Congestion Management Rules for JFK, LaGuardia and Newark The Federal Aviation Administration today proposed to rescind the congestion management rules for JFK, LaGuardia and Newark that would have created auctions for slots at those airports. (Click here for the JFK and Newark proposal, click here for the LaGuardia…

FAA Amends Its December 12, 2006 Order Regarding Operating Limitations at LaGuardia The FAA today issued a Notice of Amendment to Order indicating that it is amending its December 12, 2006 Order, which temporarily capped the scheduled operations at New York’s LaGuardia Airport. The FAA published a final rule instituting longer-term regulation…

D.C. Circuit Court of Appeals Stays Slot Auctions at JFK, LaGuardia and Newark The U.S. Court of Appeals for the District of Columbia Circuit granted a stay of the slot auctions that were scheduled to take place on January 12, 2009, pending arguments on whether the FAA has the legal authority to auction…

Legal Analysis of the FAA’s Slot Auction Rule for JFK and Newark Part 2 Analysis of Legal Issues Regarding Slot Auctions, Part Two. Having established previously that the FAA does not have specific authority to lease or otherwise dispose of slots, FAA turns to its general power to dispose of property in order to…

Legal Analysis of the FAA’s Slot Auction Rule for JFK and Newark Part 1 Pt. 1: Setting The Stage When the FAA adopted its slot auction rules for LaGuardia, JFK and Newark Airports, it did so despite the fact that the GAO had issued a legal opinion stating that it believed that the FAA…

Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, Newark and LaGuardia In a gutsy move that is sure to draw the ire of Congressional leaders as well as the Air Transport Association, the FAA announced last Friday, October 10, 2008, that it had promulgated two "congestion management" rules: one for LaGuardia…

GAO Declares FAA Does Not Have Legal Authority to Auction Slots The GAO, in a legal opinion issued September 30, 2008, declared that "FAA currently lacks the authority to auction arrival and departure slots, and thus also lacks authority to retain and use auction proceeds." This legal opinion came as a…

FAA Suspends Auction of Flight Slot at Newark Airport It is being reported by several news outlets that the FAA has suspended its auction of flight slots at Newark Airport. The auction was slated for September 3, 2008. According to Bloomberg News the Order, issued by FAA Chief Counsel,…

FAA Issues Order Limiting Scheduled Operations at Newark Liberty The FAA first proposed limiting scheduled operations at Newark Liberty in a proposed order that was published in March 18, 2008, Federal Register. The FAA has now, on May 21, 2008, issued its Order limiting scheduled operations at Newark Liberty…

FAA Proposes Congestion Management Rule for JFK and Newark Liberty In the May 21, 2008, issue of the Federal Register, the Federal Aviation Administration (FAA) proposed a new rule affecting two airports that are a part of the East Coast Airspace Redesign. The FAA proposes to establish procedures to address…

 

Update 09/30/09 The Boxer-Kerry bill introduced at the press conference this morning – also known as Clean Energy Jobs and American Power Act – dropped the provision requiring the EPA Administrator to promulgate standards for aircraft and aircraft engines.  Instead, it includes a more general provision that

. . . the Administrator may establish provisions for averaging, banking, and trading of greenhouse gas emissions credits within or across classes or categories of motor vehicles and motor vehicle engines, nonroad vehicles and engines (including marine vessels), and aircraft and aircraft engines, to the extent the Administrator determines appropriate and considering the factors appropriate in setting standards under those sections.

In his article that appeared in the New York Times on September 28, 2009, Darren Samuelson stated that Sen. John Kerry (D-Mass) is attempting to move the discussion away from “cap-and-trade” and to focus on “pollution reduction:”

Kerry last week sought to change the vernacular surrounding the climate bill and sell its concepts more broadly, insisting it is not a "cap and trade" proposal but a "pollution reduction" bill. "I don’t know what ‘cap and trade’ means. I don’t think the average American does," Kerry said. "This is not a cap-and-trade bill, it’s a pollution reduction bill"

The early discussion draft that was released on September 29, 2009, reveals that the “Boxer-Kerry” bill is similar to the HR 2454 (also known as “Waxman-Markey” or “American Climate and Energy Security Act”) which was passed by the House earlier this past summer, most notably, they both “contain the same longer-term emissions limits of 42 percent below 2005 levels by 2030 and an 83 percent cut for 2050.”   http://bit.ly/3TPuk   There are, however, a couple of notable differences.

  1. Boxer-Kerry “diverges from the House measure in its push for a 2020 emissions target of 20 percent, compared with the House’s bill’s 17 percent limit.” http://bit.ly/3TPuk
  2. In Subtitle D “Carbon Market Assurance,” oversight and assurance of carbon markets are given solely to the “Federal Commodities Trade Commission.”  § 431(b)(1). The working group established in § 431(c) will make its recommendations to the Commodity Futures Trading Commission (CFTC).
  3. There is a short Subtitle – “Nuclear and Advanced Technologies,” which covers “nuclear grants and programs,” but nothing else. Although the draft includes a section “Nuclear Waste Research and Development,” it is, for the time being, blank.  Subtitle D, “Nuclear and Advanced Technologies,” §§ 141 and 142.
  4. Boxer-Kerry includes a provision stating that the EPA Administrator shall promulgate greenhouse gas emission standards for aircraft and new aircraft engines. § 821(c).

The early draft also is different from the House Bill for what it does not contain, for example:

  1. Boxer-Kerry does not bar the EPA from considering greenhouse gas emissions from “international indirect land-use changes” when implementing the national biofuels mandate. http://bit.ly/3TPuk
  2. Unlike ACES, Boxer-Kerry does not contain a section that restricts the EPA’s ability to enact climate change regulations. http://bit.ly/3TPuk

Despite these differences, the bulk of the draft Senate bill contains many of the same provisions of ACES. Moreover, this is an early draft of the bill, the completed bill is expected to be released at a Wednesday, September 30, 2009, press conference. As Darren Samuelsohn stated in his New York Times article:

Already last week, several Democratic senators working outside of the Boxer-Kerry camp said their ideas would be melded into the legislation at a later date. "It’s going to need a lot of work," said Sen. Sherrod Brown (D-Ohio).

Yes, indeed.

 

 

I.        Introduction

In the grand scheme of things, aviation may not represent a huge source of concern with respect to climate change. But neither should the aviation industry (airports included) ignore the fact that aviation does contribute to climate change not only through the emission of carbon dioxide (CO2) but also through the emission of nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness. The intent of this series of articles is to examine the effect aviation has on climate change, outline the regulatory and legal framework that is developing, and to suggest avenues for the aviation industry to pursue in the future.  The first challenge is to clear up some misconceptions about aviation and climate change so that we can move forward with accurate and up-to-date information.

II.      Some Facts About Aviation and Climate Change

In Aviation and Climate Change: the Views of Aviation Industry Stakeholders, the aviation industry makes several claims regarding the impact aviation has on climate change. First, the industry claims that “over the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous savings.” As a result, the industry continues, “given the significance of fuel costs to the economic viability of our industry, our economic and environmental goals converge.” Second, the industry claims that “because of our aggressive pursuit of greater fuel efficiency, greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, in order to assist the industry in its obligation “to further limit aviation’s greenhouse gas footprint even as aviation grows to meet rising demand for transportation around the world,” those claims of progress need to come under a microscope.

        A.            Contribution of Aviation to Climate Change Remains Subject to Debate

First, how much aviation contributes to climate change is still up to debate. Several governmental and aviation industry organizations have been reporting a “less than 3%” number for quite some time while environmental groups, particularly in Europe, claim that the percentage is anywhere from 5 to 9%. In examining the claims and counterclaims concerning emissions of GHG, one has to be very careful about the language and the metrics used in determining the “impact” any given industry will have on “climate change.” Many reports and studies focus only on CO2, since the amount of CO2 produced both naturally and by humans is overwhelming. However, as just about everyone knows by now, there are other gases and anthropogenic actions that exacerbate climate change. For example, the U.S. EPA recently proposed regulations that would require major emitters of six “greenhouse gases” to report their emissions to the EPA on an annual basis. Those six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorochemicals (PFCs), and other fluorinated 20 gases (e.g., nitrogen trifluoride and hydrofluorinated ethers (HFEs)). It also should be kept in mind when discussing climate change, especially with respect to aviation, that water vapor is estimate contribute anywhere from 36% to 72% of the greenhouse effect. This is important because the radiative forcing effect of cirrus cloud formation from the aircraft is a significant contributor to the greenhouse effect. As pointed out above, it is generally accepted that for aviation the GHGs of concern are CO2, nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness.

 

Continue Reading Why the Airports and the Aviation Industry Need to Be Concerned About Climate Change: Part One, Facts about Aviation and Climate Change

A summary review of Aviation and Airport Development related news and information that was made public during the past week. Trisha Ton-Nu also contributed to this post.

  • FAA promises to change Palm Springs, California takeoff route to appease residents. In an effort to ease Palm Springs residents’ concerns over the increased number of planes flying over their homes, Federal Aviation Administration officials are looking to change Palm Springs International Airport’s takeoff pattern by October 22, 2009. The route was newly changed in January of this year, but officials are hoping to switch to a “hybrid” pattern next month. 09/09/09, Marcel Honore, The Desert Sun, http://bit.ly/NBzzd
  • Quick action on FAA bill unlikely. The American Association of Airport Executives is urging the Federal Aviation Administration to pass the FAA reauthorization bill before September 30, 2009, when the current FAA authorization extension will expire. The Senate Commerce Committee approved the bill in July, but it has yet to go to the Senate floor. AAAE notes that Congress has passed a series of short-term extensions since the last full authorization bill expired almost two years ago, but stresses that the short-term extensions and “uncertain funding levels” are disruptive for airport executives trying to plan construction projects. 09/09/09, Adrian Schofield and James Ott, Aviation Daily, http://bit.ly/1IELDI.
  • Pilots and Airlines urge new fatigue rules. A unified group of representatives from the airline industry and pilot unions have agreed that an overhaul of the rules combating pilot fatigue is necessary. The group urged Federal Aviation Administration Administrator Randy Babbitt to replace old regulations with uniform limits on how many hours a pilot can fly with more flexible rules based on scientific studies about the causes of fatigue. 09/11/09, Andy Pasztor, The Wall Street Journal, http://bit.ly/HENld
  • Department of Transportation aims to step up commuter-airline safety. Transportation Secretary Ray LaHood has stated that enhancing training and oversight of commuter-airline pilots is the Department of Transportation’s top aviation-safety priority. The February crash of a Colgan Air turboprop near Buffalo, New York revealed several training lapses and other safety shortcomings, prompting the DOT to “step up quickly” and show that those issues are its primary concern. Secretary LaHood also said there will be proposals to revise rules to combat fatigue, and that the FAA is collecting additional data on pilot-training programs and devising better ways to track pilots with training failures. 09/10/09, Andy Pasztor, The Wall Street Journal, http://bit.ly/d1UIu.
  • FAA Administrator Babbitt questions professionalism of Colgan Air crew in Buffalo crash. Federal Aviation Administration Administrator Randy Babbitt believes the Colgan Air crash near Buffalo, New York demonstrated “complete inattention to basic details.” Officials from Colgan Air acknowledged that the two pilots were not paying close attention to the aircraft’s instruments and failed to follow the airline’s procedures for handling an impeding stall in the final minutes of a flight. Administrator Babbitt contrasted the actions of the Buffalo crew with those of Capt. Chesley Sullenberger, pilot in the Hudson landing, and called for greater professionalism in the industry, encouraging experienced pilots to mentor newer ones, greater use of professional systems, and fostering an atmosphere that encourages employees to voice their concerns. 09/11/09, Carolyn Thompson, The Associated Press, http://bit.ly/3b6NdS.
  • LAWA Director seeks to reverse decades of LAX underinvestment. Gina Marie Lindsey, executive director of Las Angeles World Airports, is hoping for the passage of legislation that could see an increase in the Passenger Facility Charge, which could help fund expansion of Los Angeles International airport. Ms. Lindsey stated that airport authorities themselves should have the right to raise the PFC independently, and is also advocating other methods to generate extra income for LAX, which she says has faced decades of underinvestment. The bill is currently under a consideration by a Senate committee. 09/14/09, Ben Vogel, Jane’s, http://bit.ly/2HCCFI
  • Congress reluctant to fund ADS-B equipage. US Senate staff said that determining how to pay for the transition to a satellite-based NextGen ATC system is proving difficult; Congress is reluctant to provide funding to allow airlines to fit some aircraft with ADS-B equipment that would enable early NextGen demonstrations and testing. The House of Representatives has already passed an FAA reauthorization bill and the Senate is considering one, but neither legislative proposal details the mechanisms for funding the NextGen transition. A professional staffer on the Senate committee explained that the “philosophical issue” lies in whether Congress would be creating a legacy whereby the government is expected to equip every aircraft, if it were to provide money to equip some aircraft. 09/15/09, Aaron Karp, ATW Daily News, http://bit.ly/wzjQX
  • The FAA is investigating a complaint that raises questions about the validity of Texas Southern University’s School of Aviation. The Federal Aviation Administration is investigating a complaint that alleges that ground and flight training instructors lack instructor certificates from the FAA. If the allegations are true, Texas Southern University’s School of Aviation would be in violation of federal guidelines, and commercial pilots who have already graduated from the program would question the validity of their degrees.A school spokesperson responds that the courses in question do not lead to FAA certifications and do not require FAA certified instructors or FAA approval, though an internal investigation is pending. 09/08/09, Houston News Video, http://bit.ly/YXi8q.

A summary review of Aviation and Airport Development related news and information that was made public during the past week.  Trisha Ton-Nu also contributed to this post.

  • Administrative Law Judge orders FAA to pay $120,169.35 in attorney fees and costs to Florida-based air ambulance service. The Honorable William A. Pope, II, NTSB Administrative Law Judge, ordered the Federal Aviation Administration to pay Florida-based Air Trek $120,169.35 in attorney fees and costs because the Administrator failed to achieve his ultimate goal in the revocation of Air Trek’s air carrier certificate. The fees and costs awarded were pursuant to the Equal Access to Justice Act (EAJA). Judge Pope found that the Administrator was inadequately prepared to proceed to a hearing against Air Trek and did so without substantial justification. The FAA appealed the judge’s decision and were denied. 09/02/09, PRNewswire, http://bit.ly/4CdZvp
  • FAA’s glacial pace puts local man’s business in deep freeze for years. Anthony Reguero, an Orange County, California businessman has seen his investment in his Cota de Caza, California, business – Choice Aviation – frozen for over two years as a result of stonewalling on the part of the Federal Aviation Administration. The local FAA Flight Standards District Office has delayed processing his application for over two years and cites understaffing as the problem. 09/02/09, Dena Bunis, Orange County Register, http://bit.ly/4czoum.
  • FAA issues Airworthiness Directive requiring Thales Avionics to replace pitot probes on certain models of the Airbus A330 and A340. The Federal Aviation Administration has adopted a new Airworthiness Directive for certain Airbus models. The AD requires the replacement of certain Thales Avionics to replace pitot probes with certain other pitot probes, because of reports of airspeed indication discrepancies while flying at high altitudes in inclement weather conditions. This action was taken as a result of the crash of the Air France flight over the Atlantic and the resulting investigation which indicated that the airspeed indicator was malfunctioning. 09/03/09, Federal Register, http://bit.ly/3siaVi.
  •  Port Columbus’ request for $20 million in stimulus funds for airports denied by the FAA. The Columbus Regional Airport Authority (Ohio) applied to the Federal Aviation Administration for more than $20 million in stimulus funds for six projects. Although t south runway project at Port Columbus was approved, none of the authority’s stimulus proposals was accepted. 09/02/09, Doug Caruso, The Columbus Dispatch, http://bit.ly/Io440.
  • Personal items in seatback pocket rule varies by airline, not by FAA regulation. The Federal Aviation Administration mandates Federal Aviation Regulations that require by law that laptops and major personal belongings be properly stowed in overhead bins or the seat in front of the passenger. Airlines can establish their own “guidance” regarding whether even small personal items should be banned from the seatback pocket. 09/03/09, Sean O’Neill, Budget Travel Blog, http://bit.ly/LEmrZ.
  • Ellington, Connecticut asks FAA for Feasibility Study for the purchase of EllingtonAirport. The town of Ellington, Connecticut has asked the Federal Aviation Administration for a feasibility study about the purchase of Ellington Airport. The study will look into various issues, including whether it would be beneficial for the town to buy the airport, which has been for sale for a while. 09/03/09, Larry Smith, Hartford Courant, http://bit.ly/T8lrW  
  • RiversideCounty grounds glider flights at Hemet-RyanAirport. Riverside County has decided to ban sailplane flying, which relies on natural forces to stay aloft, at Hemet-Ryan Airport. Sailplane activity could conflict with future expansions planned for the airport, and the sailplane business operating at the airport had also asked for an earlier conclusion to its lease because of a downturn in business. A spokesman for the county’s Economic Development Agency also stated that closing the airport to gliders was a safety issue, as glider operations had resulted in “fatalities, injury, and serious violation of regulations over the years.” 09/04/09, The Valley News, http://bit.ly/QrmVb.
  • The FAA is investigating a complaint that raises questions about the validity of Texas Southern University’s School of Aviation. The Federal Aviation Administration is investigating a complaint that alleges that ground and flight training instructors lack instructor certificates from the FAA. If the allegations are true, Texas Southern University’s School of Aviation would be in violation of federal guidelines, and commercial pilots who have already graduated from the program would question the validity of their degrees.A school spokesperson responds that the courses in question do not lead to FAA certifications and do not require FAA certified instructors or FAA approval, though an internal investigation is pending. 09/08/09, Houston News Video, http://bit.ly/YXi8q

 

A summary review of Aviation and Airport Development related news and information that was made public during the past week. 

  • FAA Administrator Babbitt’s Pilot Fatigue Advisory Committee delivers its recommendations.  An advisory committee on pilot fatigue,convened by Administrator Babbitt, delivered its recommendations to the Federal Aviation Administration late Tuesday, September 1, 2009.  Committee members said the FAA had asked them not to make their recommendations public. Although FAA Administrator Randy Babbitt has promised to vet the recommendations swiftly and turn them into a formal proposal by the FAA, the process will take months to complete.  09/02/09, Denver Post,  http://bit.ly/4wAugf 
  • FAA gives Southwest until December 24, 2009,  to replace unapproved parts. The FAA will require Southwest Airlines to replace unapproved parts associated with hinge fittings for the exhaust gate assembly–and which help protect aircraft flaps from engine heat–by December 24, 2009.  All other unapproved parts made by the same vendor must also be located and disposed of, and results of aircraft inspections must be sent to the FAA daily.  09/01/09, FAA Press Release,  http://bit.ly/5PAe6
  • FAA tells Haines, Alaska, it cannot designate flight paths for helicopters.  Haines Borough, Alaska, is looking to eliminate flight-path restrictions and expand the number of clients that companies are permitted for commercial helicopter and heli-skiing activities.  The FAA has told the borough that it does not have the authority to regulate airspace, but borough leaders respond that they are only designating flight paths as a condition of a borough permit.  08/27/09, Chilkat Valley News, http://bit.ly/CmFqj
  • Connecticut Governor furious about low-flying F-18s. Connecticut Governor Jodi Rell was incensed about a low-flying F-18 when neither the state of Connecticut nor the FAA had received advance notice about its flight.  A spokesman for Naval Air Force Atlantic stated that the aircraft operated in accordance with all FAA-approved visual flight rules and remained within speed and altitude restrictions.  08/29/09, Hartford Courant, http://bit.ly/P4waO.
  • Expansion of Aero Country Airport in McKinney, Texas Causes Problems. McKinney City Council in Texas has approved development on the east side of the Aero Country Airport that could double its size; nearby residents oppose the expansion plans.  City By laws state that the City Council cannot reverse its decision, and Mayor Pro Tem Pete Huff seems unconcerned about homeowners who say they will move if the city does not halt the expansion, citing that the airport is part of the town.  08/27/09, NBCDFW.com, http://bit.ly/3vk14h.
  • FAA Announces $2.5M grant to soundproof homes in Key West.  The Federal Aviation Administration this week approved a $2.5 million grant to soundproof 38 homes impacted by noise at Key West International Airport.  08/29/09, KeysNet.com, http://bit.ly/phcK7
  • FAA gives Miami-Dade $4.2M to extend main runway at Kendall-Tamiami Executive Airport. The FAA gave Miami-Dade $4.2 million to extend the main runway at Kendall-Tamiami Executive Airport, which would allow heavier planes to use the airport to travel to and from destinations in Central America, South America, and the Caribbean. With an extended runway Kendall-Tamiami would be able to receive flights that would normally go to Miami International Airport. 08/28/09, South Florida Business Journal, http://bit.ly/sqmn5.
  • FAA signs ROD for Columbus (OH) Regional Airport Authority’s plan to move Columbus Airport’s runway farther south. Columbus Regional Airport Authority’s plans to relocate Port Columbus International Airport’s runway farther south along with other improvements has been approved by the FAA, contingent upon environmental remediation in the area. The next issue for the airport is a decision from the FAA on the level it will be funding the project; the government’s intent to fund only a smaller portion might require the airport authority to reapply.  08/28/09, Columbus Business First, http://bit.ly/flHYd.
  • NTSB suggests to FAA new altitudes for Hudson Corridor.  The NTSB recommended new altitudes to the FAA for helicopters and planes over the Hudson Corridor to prevent something like the Aug. 8 midair collision that killed nine people from reoccurring. In the past, the FAA has often failed to heed NTSB suggestions, with many outstanding recommendations up to 10-15 years old.  08/27/09, The New York Times, http://bit.ly/rFOqg
  • Connecticut Attorney General Blumenthal says he will take Airspace Redesign fight to Supreme Court.  Connecticut Attorney General Richard Blumenthal is disappointed that the U.S. Court of Appeals for the D.C. Circuit has denied an Aug. 19 request to reconsider its refusal to halt the new FAA airspace redesign project. Mr. Blumenthal is preparing an appeal to the U.S. Supreme Court asking it to overturn the ruling and override the FAA, since the FAA used defective data on noise and traffic and failed to follow its own rules and procedures. 08/26/09, acorn-online.com, http://bit.ly/2UUXRs
  • FAA investigates Southwest regarding use of unauthorized parts.  FAA air-safety regulators are investigating unauthorized parts installed on at least 42 Southwest Airlines jets and why the carrier’s maintenance-control procedures failed to identify the problem. The suspect parts do not pose an “immediate safety issue” but planes were temporarily grounded. The controversy exemplifies continuing friction between airlines and federal regulators on how to deal with minor maintenance lapses.  08/26/09, Wall Street Journal, http://bit.ly/4n2Srj.
  • Houston receives $8.8 million in grants from the FAA. The City of Houston Dept. of Aviation received $8.8 million in grants from the FAA to install new state-of-the-art equipment at George Bush Intercontinental Airport (IAH). The grants, awarded through the FAA’s Airport Improvement Program (AIP) and Voluntary Airport Low Emission (VALE) program, will allow the purchase of equipment and vehicles that are expected to reduce emissions by up to 60 percent. 08/25/09, PRNewswire, http://bit.ly/4hcaM9.

 

EPA Administrator signed a Notice on August 17, 2009, proposing Airport Deicing Effluent Guidelines. In that Notice, EPA is proposing "technology-based effluent standards for discharges from airport deicing operations."  Effluent guidelines and new source performance standards are technology-based regulations that are developed by EPA for a category of dischargers. In this case, the deicing effluent guidelines are based on the performance of control and treatment technologies.

In general, the regulations would apply to "wastewater associated with the deicing of aircraft and airfield pavement at primary commercial airports."  (Although various industry groups have objected to using the term "wastewater" to describe the deicing effluent, since that is the term that the EPA uses in the proposed rule, that is the term used in this article).  The proposed regulations would affect airports that

  1. conduct aircraft deicing operations,
  2. have 1,000 or more annual jet departures, and
  3. 10,000 or more total annual departures.

Such airports would be required to collect spent aircraft deicing fluid (ADF) and treat the wastewater. They may either treat the wastewater on-site or send it to an off-site treatment contractor or publicly owned treatment works. Some airports would be required to reduce the amount of ammonia discharged from urea-based airfield pavement deicers or use more environmentally friendly airfield deicers that do not contain urea.

Summary of Proposed Airport Deicing Effluent Limitation Guidelines and Standards

Regulatory Level

Technology Basis

Technical Components

Airports >1,000 Annual Jet Departures and >=10,000 Annual Departures

Airports >1,000 Annual Jet Departures and <10,000 Annual Departures

Best Available Technology Economically Achievable (BAT)

1. 60% or 20% Aircraft Deicing Fluid (ADF) capture
2. Biological treatment
3. Pavement deicer product substitution

1. Capture 60% of available ADF (for airports having >=460,00 gal. ADF usage) or capture 20% (for airports <460,000 gal. ADF usage)
2. Treat wastewater to meet effluent limit for chemical oxygen demand (COD)
3. Certify use of non-urea-based pavement deicers
or
Meet effluent limit for ammonia

1. Certify use of non-urea-based pavement deicers
or
Meet effluent limit for ammonia

New Source Performance Standards (NSPS)

1. 60% ADF capture
2. Biological treatment
3. Pavement deicer product substitution

1. Capture 60% of available ADF
2. Treat wastewater to meet effluent limit for chemical oxygen demand (COD)
3. Certify use of non-urea-based pavement deicers
or
Meet effluent limit for ammonia

1. Certify use of non-urea-based pavement deicers
or
Meet effluent limit for ammonia

Note: All references to ADF are for normalized ADF, which is ADF less any water added by the manufacturer or customer before ADF application

Although EPA Administrator signed the notice on August 17, 2009, it has not yet been published in the Federal Register.  The public comment period on the regulations will run for 120 days after publication in the Federal Register.

The airlines are at it again! This time it’s Continental Express, Flight 2816, detaining passengers in the aircraft, without food, water or adequate sanitary facilities on the tarmac in Rochester, Minnesota, for an unbelievable six (6) hours before freeing them to enter the terminal (not counting another 2.5 hours wait to board the same plane to complete their trip to Minneapolis, only 85 miles away).

There is no doubt that the airline acted stupidly and irresponsibly by not providing a bus to complete the trip, or allowing the passengers back into the terminal. Ultimately, however, it’s the fault of the passengers who allowed themselves to be treated in that fashion. As Chevalier, Allen & Lichman has stated in prior postings (see, “Trapped Airline Passengers Have Rights,” posted April 7, 2008), the airlines when faced with this situation have three choices:

  1. Take off if its safe to do so;
  2. If not, allow passengers to leave the aircraft and/or provide alternate transportation or hotel facilities; or,
  3. Face legal action brought by passengers for violation of the 4th Amendment of the U.S. Constitution, as well as potential state law causes of action such as false imprisonment.

First, it is true that airlines are not allowed to operate when conditions are unsafe such as during inclement weather or when the safety of the passengers is at stake (for example, during the recent bomb scare at LaGuardia). Therefore, where the existence of such conditions can be established, the airline is justified in waiting on the ground until, but only until, the Federal Aviation Administration’s (“FAA”) Air Traffic Control allows it to join a queue for takeoff. Sometimes this takes over two hours. If you have any doubt, call FAA at 1-866-TELL-FAA (1-866-835-5322). That office will know whether conditions at the origin or destination require the delay. The usual problem at this stage is lack of communication from the flight crew. It is far more commonplace to see them talking among themselves than sharing status updates with their paying customers. A radical change in company policies regarding passenger communication would go far in remedying passenger unrest.

Second, when even the normal communication doesn’t seem to be accurate or timely, and you have run out of patience, you may calmly and politely confront the crew with the choice of taking off, or, alternatively, allowing passengers to exit the aircraft. This is where individual responsibility kicks in. If no one asks, the crew has no reason to act. After all, FAA regulations require that the crew leave the plane when its federally mandated shift is up. They will get out even if you can’t. Most importantly, decline to take “no” for an answer. Poll the other passengers, and if there is a consensus that the time already spent is unreasonable and unjustified, and conditions on the plane are deteriorating to the point of health concern, get off the plane, either through the normal exits or through the emergency exit. After all, it is an emergency, isn’t it?

Finally, and most important, don’t be afraid that, by taking these steps, you will be violating the law. In fact, in our view, it is the airline and, by extension, the governmental entities that finance and operate the airport that are violating the law. Specifically, airlines operate on government funded facilities. Airports are funded 80-90% by the federal government and the remainder partially by state and local governments, with the airlines paying for part of the remainder. The tarmac upon which passengers are detained, as well as the Air Traffic Controllers who may provide the rationale for that detention are government funded. Consequently, substantially all activities on an airport may be subject to federal and state statutes including the U.S. Constitution.

The Fourth Amendment prohibits arrest and/or detention without probable cause or the consent of the detained. It is therefore doubly important to protest the detention so as to prevent acquiescence from being construed as consent. Finally, state statutes such as those prohibiting false imprisonment may also apply. However, there would certainly be an argument that such state statutes are preempted by federal law.  In the absence of comprehensive federal legislation addressing the issue of unlawful detention on aircraft, the preemption argument would likely fail. 

In short, it is not essential to the vindication of passengers’ rights that Congress pass a new statute or a “Passengers’ Bill of Rights,” because we already have a Bill of Rights that applies. However some support from Congress, for example, in legislating a limit on the number of hours passengers can be detained would show the public that their representatives are there for them and not just for campaign contributions from airline lobbyists.

Most important, if you’re “mad as hell” you “don’t have to take it anymore.” The public need not cower from taking all legal steps necessary to defend its own rights and welfare against the airlines who wrongfully cloak themselves in governmental authority without accepting governmental responsibility.

Writing in the Wall Street Journal, Senior Special Writer Andy Pasztor states:

Federal Aviation Administration chief Randy Babbitt, in his most detailed comments yet about combating pilot fatigue, vowed to tailor future regulations to better reflect the safety challenges facing commuter pilots.  In a speech to the country’s largest commercial-pilot union, the agency’s administrator said the current "one size fits all" regulations don’t adequately take into account fatigue typically experienced by commuter pilots, some of whom fly five or more segments per day.

This speech by Administrator Babbitt underscores the growing concern about Pilot fatigue and safety of the aircraft that are flown.  Ever since it came to light that the co-pilot of the Continental Flight 3407, which crashed in Buffalo, New York, had commuted from Seattle to Newark to be on the flight, and that the pilot was not familiar with the de-icing procedures for the type of aircraft he was flying, pilot training, fatigue and maintenance have been hot topics.

Administrator Babbitt vowed in his speech to the Air Line Pilots Air Safety Forum not to wait until the Congress gets its act together and passes legislation.  He said that he has set up a rulemaking committee studying fatigue:  "I want to make sure that we get the answers we need as working men and women aviators.  In rulemaking not only does one size not fit all, but it’s unsafe to think that it can."

Although not part of his rulemaking committee, Administrator Babbitt also mentioned that the FAA is holding a series of 12 nationwide airline safety forums aimed at "stimulat[ing] a safer, more professional enviroment at regional airlines. . . the discussions are focusing on air carrier management responsibilities for crew education and support, professional standards, flight discipline, training standards and performeance."

This is not to say that Congress is standing still waiting to see the outcome of these rules and meetings.  The Senate Subcommittee on Aviation has a held a series of three hearings on Aviation Safety, the most recent being August  6, 2009, which focused on "the relationship between the major, or network, airlines and their regional airline partners." (Witness lists for the three hearings appear after the jump).  The goal, as expressed by Subcommittee Chairman Jay Rockefeller (D-W.Va.) is to "to determine if there are further steps we can or must take to ensure there is one level of safety throughout the commercial air transportation system."

Maybe Administrator Babbitt got it right when he concluded his remarks by stating that "if you think the safety bar is set too high, your sights are set way too low."

Continue Reading Pilot Safety Rule Focus of New FAA Administrator Babbitt