The U.S. Government Accountability Office today removed FAA air traffic control modernization program in its biennial update of its list of federal programs, policies, and operations that are at "high risk’ for waste, fraud, abuse, and mismanagement or in need of broad-based transformation.  See, High Risk Series:  An Update, issued January 22, 2009.

The GAO added FAA air traffic control modernization to the High-Risk List in 1995 due to cost overruns, schedule delays, and performance shortfalls in the FAA attempts to modernize its air traffic control system.  However, the GAO has found that the FAA is making progress in "addressing most of the root cause of its past problems."  The GAO concluded that the FAA’s efforts "have yielded results, including deploying new systems across the country and incurring fewer cost overruns." 

That being said, the GAO warned the FAA that it "will be closely monitoring FAA’s efforts because the modernization program is still technically complex and costly, and FAA needs to place a high priority on efficient and effective management."  Moreover, because FAA has now extended its modernization efforts to plan for a next-generation air transportation system that is to transform the current radar-based system to an aircraft-centered, satellite-based system, it must fall into the same pitfalls "that have plagued it in the past."

One thing missing from the GAO report is any discussion about how resolving the labor issues with the Air Traffic Controllers would affect the modernization effort currently underway.  With the emphasis in the GAO Report on equipment and deployment of that upgraded equipment, one wonders about making sure that the humans operating that equipment are well-trained and well-paid.

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The California Environmental Quality Act (“CEQA”) is once again under attack.  Governor Arnold Schwarzenegger, in a letter to President-Elect Obama, has conditioned agreement to a budget reconciliation package on the suspension of CEQA compliance for 10 highway projects, ranging from carpool lanes on Routes 50 in Sacramento and 805 in San Diego, to road widenings in Fresno and San Joaquin, to a fourth bore in the Caldecott Tunnel in San Francisco.  The Governor’s initiative is already under siege from myriad environmental organizations including the Sierra Club, the Planning and Conservation League and the National Resources Defense Council.

The Governor partially justifies his actions on the grounds that most of the projects would have to comply with the Federal equivalent of CEQA, the National Environmental Policy Act (“NEPA”).  The well hidden flaw in the Governor’s argument is that he has requested that President-Elect Obama provide funding for the projects under various Federal statutes, and simultaneously suspend Federal environmental compliance standards as well.

The Governor’s proposal has far reaching implications.  First, and most obvious, are the potentially undocumented and unanalyzed, but nonetheless significant, noise and air quality implications of highway expansions.  Second, the decision as to what projects to exempt from environmental review would be made by a commission of executive appointees who would be charged with picking and choosing, without legislative oversight.  As we are all painfully aware, “power corrupts and absolute power corrupts absolutely.”

Finally, the Governor’s initiatives need not be limited to highways.  If the development and/or expansion of airports are granted the same reprieve from environmental regulations as that currently envisioned for highway projects, on the pretext that it is necessary to ensure California’s financial integrity, the sky is literally the limit for environmental impacts around dozens of airports including Los Angeles International Airport, San Diego International Airport and San Francisco International Airport.

CEQA has successfully fought of such attacks in the past.  It is critical, however, that those persons and entities that will be impacted by the proposed suspension of environmental regulations, either now or in the future, contact the Governor’s office at (916) 445-2841 or by sending him an e-mail, and/or their State Legislator, to register their firm opposition to such an opportunistic, but ultimately ineffective solution to California’s budget woes.
 

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 involving auctions of slots, but that rule is currently stayed pending review by the U.S. Court of Appeals for the Second Circuit in New York.  (See, "D.C. Court of Appeals Stays Slot Auctions at JFK, Newark and LaGuardia," posted Dec. 9, 2008).  In this Amendment, the FAA is "mov[ing] toward an hourly limit of 71 operations from 6 a.m. through 9:59 p.m. Eastern Time, Monday through Friday, and 12 noon through 9:59 p.m., Eastern Time, on Sunday."

Unlike with the final rule, under this amendment, the FAA states that it will not force air carriers to relinquish Operating authorizations at the airport, and instead it will "accept voluntary flight reductions for the duration of the Order."  The FAA will then retire the surrendered Operating Authorizations until an hourly average of 71 scheduled operations is achieved.  If the final rule comes into effect and further reductions are necessary, air carriers that voluntarily surrendered their Operating Authorizations will be credited.  In order to receive credit for the voluntary reduction in the future, though, an air carrier must present its offer to reduce scheduled service at LaGuardia no later than February 2, 2009.

The following comments were received by the FAA: 

 

After several months of delays, the FAA filed its Brief for Federal Respondents in the East Coast Airspace Redesign case that is pending before the U.S. Court of Appeals for the District of Columbia Circuit.  As expected, the brief alleges simply that the FAA performed the Environmental Impact Study for the airspace redesign "adequately" – which is all that is required under NEPA – "adequately" addressing cumulative impacts, "adequately" analyzing noise impacts, and "properly" assessing environmental justice impacts.

There is one interesting note contained in the Brief.  The FAA argues that the Airspace Redesign is "presumed to conform" with the Clean Air Act (Brief, p.108).  If the project is "presumed to conform" the FAA can forego its duty under the Clean Air Act from performing a conformity applicability analysis.  This position is contrary to the position that the FAA took in a lawsuit brought by Delaware County, Pennsylvania, in which the FAA argued the Airspace Redesign project did not rely on the presumed to

Continue Reading FAA Files Its Brief In The East Coast Airspace Redesign Lawsuit

In the January 9, 2009, edition of the Federal Register, the FAA announced that the Record of Decision (ROD) for the development and expansion of Runway 9R/27L and other associated airport projects at Fort Lauderdale-Hollywood International Airport is now available.  With the publication of this notice in the Federal Register, opponents of the project have 60 days (i.e., until Tuesday, March 10, 2009) to file a Petition for Review of the ROD and the Final Environmental Impact Statement (FEIS).

The FAA identified "Alternative B1b" as its "preferred alternative" in the ROD.  That was also its preferred alternative in the FEIS.  This alternative includes the expansion of Runway 9R/27L ti an overall length of 8,000 feet and width of 150 feet.  The runway will extend to the east without encroaching onto NE 7th Avenue and would be elevated over the Florida East Coast Railway and U.S. Highway 1.  The western extent of the runway is the Dania Cut-Off Canal.  Alternative B1b also includes the following projects:

  • construct a new full-length parallel taxiway 75 feet wide on the north side of Runway 9R/27L with separation of 400 feet from 9R/27L;
  • contruct an outer dual parallel taxiway that would be separated from the proposed north side parallel taxiway by 276 feet;
  • construct connecting taxiways from the proposed full-length parallel taxiway to existing taxiways;
  • construct an Instrument Landing System (ILS) for landings on Runways 9R and 27L;
  • Runway 13/31 would be decommissioned and permanently closed due to the increased elevation of the expanded Runway 9R/27L at its intersection with Runway 13/31.

Opposition to the expansion centers around the increased noise that the expansion will bring, as well as damage to the surrounding environment.

Continue Reading FAA Issues ROD Approving Expansion of Ft. Lauderdale Airport

The White House announced today, January 6, 2009, that Lynne A. Osmus will take over for Bobby Sturgell effective January 16, 2009.  Near the end of a "personnel announcement," announcing many of President Bush’s last minute appointments is the the statement:  "The President intends to designate Lynne A. Osmus, of Virginia, to be Acting Administrator of the Federal Aviation Administration, to become effective January 16, 2009."

Ms. Osmus is currently the FAA Assistant Administrator for Security and Hazardous Materials, a position she has held since July 1, 2003.  She has been with the FAA since 1979, and an executive since 1990, primarily in the field of aviation security.  She was appointed to be the Deputy Associate Administrator of FAA’s Civil Aviation Security Program just three months prior to the 9/11 attacks and then led the FAA’s transition of the security programs to the TSA.

More recently, Ms. Osmus was designated as the "transition executive" for the Obama Transition team.  This reunited her with her old boss Jane Garvey, the former FAA Administrator under President Clinton, for whom Ms. Osmus was Chief of Staff.  Ms. Garvey is a member of the Obama Transition team and had been mentioned as a possible nominee for Secretary of Transportation.

The appointment comes as a bit of a surprise, since the current Acting Administrator, Bobby Sturgell, has not been reported as having resigned.  That being said, it was widely assumed that he would be stepping down at the end of the Bush Administration since his effort to remove the "acting" from his title was unsuccessful.  In addition, reports from sources in the FAA had indicated that Mr. Sturgell had presented Ms. Osmus as the new Deputy Administrator in an internal e-mail as recently as Monday, January 5, 2009.

On Thursday, December 11, 2008, the Bush Administration issued final regulations that will allow federal agencies to skip having to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Services before making a determination that no harm will come to an endangered species.  This change will have an impact on projects at airports that use federal funds.

In his prepared statement announcing the final regulations, Interior Secretary, Dirk Kempthorne emphasized that the responsibility to initiate consultation will still be with the federal agency undertaking the action.  The only difference, he stated, was when the federal agency determined that when:

  • an action is not anticipated to harass, harm, kill or otherwise “take” a listed species; and
  • The action has no effect what-so-ever on a listed species or critical habitat, such as replacing a culvert when the species is not present; or
  • The action is completely and totally beneficial, such as expanding the no hiking zone from 15 yards to 30 yards around nesting sites; or
  • The effects of the action are so insignificant that they can’t be detected or measured, such as when a federal project generates noise at such low levels that scientists can’t accurately detect its harm to a species; or
  • The effects of the action are the result of global processes that are too broad to measure.

This, however, is a marked change from the current rule where federal agencies first determine if their proposed action may affect a listed species or critical habitat.  If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

How will this affect airport planning?  Since compliance with the Endangered Species Act is part of NEPA requirements, all Environmental Impact Statements are required to state whether the FAA has consulted with the Fish and Wildlife Service or the National Marine Fisheries Service and indicate their response.  Under the new rule, the FAA can make its own determination that the proposed action (i.e., runway expansion, terminal project, etc.) will not harm any endangered species.  The question remains, however, whether federal agencies, like the FAA, have the resources to make such a determination.  Moreover, because the FAA is not an expert in the field of endangered species, it will, most likely, provide another avenue of attack for opponents to a particular proposed project.

An Interior Department spokesman, Chris Paolino, said that the regulations were an "attempt to refocus the resouces, time and manpower of both the U.S. Fish and Wildlife Service and National Marine Fisheries to focus on those projects that have a measurable, adverse impact on endangered species."

Needless to say, environmental groups were not too pleased that in the last hours of the Bush Administration

Andrew Wetzler, Director of the Natural Resources Defense Council’s Endangered Species Program, commented on the NRDC’s website:

This administration has rejected anything with a whiff of science — so before sulking out the back door, they are going after rules that require Fish and Wildlife Service scientists to prevent harm to our last wild animals and places. Despite today’s feel-good statements, we remain convinced that these changes are illegal. We will look at the final language when it is published tomorrow, but I think we will see them in court.
Likewise, the National Wildlife Federation did not have anything good to say about the new regulations.  John Kostyack, Executive Director of Wildlife and Global Warming for the National Wildlife Federation, said:
This action eviscerates key protections that have helped safeguard and recover endangered fish, wildlife and plants for the past 35 years.
Our government is founded in a system of checks, balances and accountability.  President Bush has violated each of these principles by finalizing this rule in his waning days of power.
Word from the President-Elect’s camp is that they will rok to reverse the changes, but since the regulations go into effect before the President-Elect takes office, his administration will have to reopen the rulemaking process.

The California Air Resources Board unanimously adopted its Scoping Plan to implement the sweeping changes in greenhouse gas emission dictated by AB 32.

As envisaged by the Scoping Plan, the state’s greenhouse gas emissions would be cut by 15% over the next 12 years.  Although it seems to lay out targets for most sectors of the economy, there are some sectors that are missing, like aircraft and airports. All told,  it amounts to an average cut of four tons of carbon dioxide and other greenhouse gases for every person in the state.

The Scoping Plan, which  will be implemented over the next two years, puts California at the forefront of national climate policy at a time when President-elect Barack Obama has vowed to put control of greenhouse gas emissions at the top of his environmental agenda.

Past posts on this topic:

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 the slots.

Although the court’s order does not go into any details as to why it is granting the Motion for Stay beyond stating that the Petitioners "have satisfied the stringent standards required for a stay pending court review," this is a significant victory for the Petitioners.  First, in order to obtain a stay one must show, among other things, "irreparable injury" and "likelihood of success on the merits."  This standard is a high one that is rarely surmounted.  Thus, it is an indication that the court is looking favorably upon the Petitioners’ case.

Second, it pushes the date for the first slot auctions beyond the change of administrations.  The opponents of the slot auctions fervently hope that the Obama Administration will be more receptive to their pleas that slots auctions will not solve the problems at the New York/New Jersey airports.  With the change of administrations, there is hope among the opponents of the slot auctions that "a new, workable plan to reduce flight delays and give New York’s airspace and airports the upgrade they need and deserve."

Petitioners’ statements regarding the court’s ruling:

Neither the Department of Transportation nor the FAA have any press release or statement on their websites regarding the court’s ruling.  However, the wire services and newspapers are reporting that Sarah Echols, a spokeswoman for the Department of Transportation, said:  "Today’s court decision is bad news for travelers seeking a better flying experience in and out of the New York region.  We are committed to our goal of protecting travelers, giving passengers more options and improving the air travel experience, and will continue to assess our options to provide relief."

Previous blog posts regarding slot auctions:

Other news articles:

In a speech given yesterday to the Department of Transportation, President Bush stated that in:

an age when teenage drivers use GPS systems in their cars, air traffic controllers still use World War II-era radar to guide modern jumbo jets.  That doesn’t seem to make any sense to me, and I know it doesn’t make sense to the Secretary [of Transportation] and a lot of folks in this audience. Modernizing our aviation system is an urgent challenge.  So today, I’m signing an executive order that makes this task a leading priority for agencies across the federal government.

Since implementation and funding for the "Next Generation Air Transportation System" (NextGen) is contained in the FAA Reauthorization bill, which is stalled in Congress over issues like Acting FAA Administrator Bobby Sturgell’s appointment to a full term, the East Coast Airspace Redesign, and Climate Change, Pres. Bush sought to take matters into his own hands by issuing an Executive Order.

The Fact Sheet that accompanied Pres. Bush’s speech, claims that the Executive Order

. . . strengthens DOT’s coordination with other Federal agencies. The EO will help transform the national air transportation system and effectively implement the NextGen Initiative (Next Generation Air Transportation System) that utilizes satellite-based guidance technology, which is safer, more secure, affordable, and environmentally friendly.

Although the Executive Order does set up a "Senior Policy Committee," and involves the Secretaries of Defense, Commerce and Homeland Security as well as the Secretary of Transportation, the Executive Order seems to be toothless without funding, which can only be supplied (to the extent that NextGen requires it) by Congress.  In essence, the Executive Order simply states that the Secretary of Transportation will take appropriate action to implement NextGen (as stated in Section 709 of Vision 100-Century of Aviation Reauthorization Act) and recommend action for the President to take.

As reported by AvWebBiz, according to Doug Church, spokesman for the National Air Traffic Controllers Association, "[The executive order] certainly appears like yet another new red bow on the same old box, which remains empty. Is the administration now saying modernizing our aviation system was NOT a leading priority up until today?"

President Bush also addressed several other aviation topics in speech:

  • Mentioned that the FAA will "start auctioning takeoff and landing slots at New York airports"in January, thus siding with the FAA over the GAO in the intra-governmental spat;
  • Suggested giving airlines incentives to "boost efficiency" and encourage them to use larger planes out of the New York area.
  • Mentioned that three new runways would be opening up this week at Seattle-Tacoma, Washington-Dulles, and Chicago O’Hare.
  • Completion of regulations that provide increased protection for consumers, specifically a measure that will require airlines to provide greater compensation for lost bags as well as tougher penalties when airlines fail to notify travelers of hidden fees.

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