On April 11, 2008, a group of concerned cities, companies and citizens filed comments regarding the EPA’s proposed revisions to the General Conformity Regulations (see earlier post "EPA Proposes Revisions to General Conformity Rules).  To see the Group’s actual Comment letter as filed, click here.

The General Conformity Rules, which the EPA promulgated in 1993 and has not substantially updated since then, require Federal agencies to evaluate the effect their actions will have on air quality prior to their taking any such action.  The Group expressed concern that the revisions that the EPA was suggesting took away some of the protection that the Clean Air Act granted citizens in section 176 (42 U.S.C. 7506).  In addition, the Comment letter stated that the EPA:

  • should not allow Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
  • should not allow Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
  • should not allow the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
  • should add a definition of applicability analysis.
  • should delete the "presumed to conform" program, since only one agency has taken advantage of it in 15 years and it most likely violates the Clean Air Act and the Constitution.

Continue Reading Group of Concerned Cities, Companies and Citizens Files Comments Regarding EPA’s Proposed General Conformity Revisions

The Federal Aviation Administration’s recent paroxysm of safety concern– forcing airlines to immediately cancel thousands of MD-80 flights because of a 1/4 inch deviation in the location of an electrical bundle in the wheel well — reveals at least two “inconvenient truths”: (1) despite it repeated use of the safety rationale to justify repeated violations of Congressional mandates such as compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and the Clean Air Act, 42 U.S.C. 7401 et.seq., the FAA has long been neglecting its primary responsibility of ensuring the safety of airline travel; and (2) FAA is willing to sacrifice the welfare and convenience of air travelers and even the sacrosanct protection of  Interstate Commerce ensured by the Bill of Rights to cover up its own past non-feasance.

Whenever FAA wants to approve an airport development project, or, more recently, an airspace redesign, despite those projects patent potential for creating significant environmental impacts, FAA falls back on the time worn mantra of its safety mandate. This is happening even now in the FAA’s sponsorship of a relocation of Runway 24R, the northern most runway  at Los Angeles International Airport, much closer to surrounding communities, with concomitantly increased adverse noise and air quality impacts, and even though other reasonable and patently safe alternatives exist.

Despite the FAA’s lip service to safety, FAA has apparently been giving short shrift to it in practice.  Even though its directive requiring inspection of MD-80s’ purported  wiring problem was issued in 2006, FAA did nothing to ensure compliance until last week, when 2 FAA safety inspectors/whistle blowers revealed FAA’s cavalier attitude toward safety to a Congressional committee.

Overnight, FAA changed its stripes.  Instead of allowing aircraft to be inspected in groups, over time, FAA required that they be instantly taken off-line for inspection; and if so much as a 1/4 inch deviation was found, taken off-line immediately for repair. Sounds good, except that hundreds of thousands of paying passengers have been delayed and displaced, through no fault of their own and at great cost to them in terms of time and money expended for overnight accommodations, food, and even additional costs of seats on other airlines, victims of the FAA’s new-found sense of responsibility.

In short, if those aircraft were dangerous, the FAA knew it, and  the planes should have been taken out of service two years ago when FAA first found out about the problem.  If  the planes are not dangerous, a reasoned, gradual approach to inspection and repair would have been appropriate.  Instead of those rational alternatives, FAA chose a path that does not remedy its nonfeasance, but, rather, calls it to the attention of the public, and , hopefully to their Congressional overseers.

Please be sure to tell your Congressman and the Committee Chairs how you feel.  The Chair of the Commerce, Science and Transportation Committee is Sen. Daniel K. Inouye (dinouye@senate.gov) and the Chair of the Aviation Operations, Safety and Security is Sen. John D. Rockefeller IV (jrockefeller@senate.gov).  On the House side, Rep. James L. Oberstar (joberstar@house.gov) is the Chair of the Transportation and Infrastructure Committee and Rep. Jerry F. Costello (jcostello@house.gov) is the Chair of the Aviation Subcommittee.

UPDATE:  See also Dr. Lichman’s recent post "Passengers Detained Have Constiutional and Other Legal Rights," which was posted August 13, 2009.

Most of us have been caught in airplanes delayed on the tarmac for what seems like an eternity.  Some of us have really been trapped for as long as 10 hours, often without food, water or sanitary facilities.  Some states, like New York, have attempted to pass legislation that would guarantee stalled passengers at least these basic needs.  Their efforts have not met with success in the courts.  As recently as the end of March, 2008, the Federal 2nd Circuit Court of Appeals struck down the New York law as preempted by Federal law governing airline regulation.  

In Chevalier, Allen & Lichman’s view, however, legislation on this subject, though well intended, is superfluous, because passengers are already protected by the Fourth Amendment to the United States Constitution.  Airlines operate on airport property.  Airports receive funding for their development from the Federal government.  In fact, substantially all airfield facilities such as runways, taxiways and navigation aides, as well as a portion of terminal development, are paid for by funds appropriated by Congress and administered by the Federal Aviation Administration.  Moreover, the vast majority, if not all, commercial airports are run by public entities.  Finally, Air Traffic Control is operated directly and exclusively by the FAA.  

Therefore, even though airlines are private companies, they operate on, and, are in fact, dependent upon Federal facilities.  Citizens using those facilities are, in turn, protected by the Federal and State Constitutions, including the constitutional prohibition on “unreasonable search and seizure” set forth in the Fourth Amendment.

It is beyond dispute that imprisoning passengers against their will on a snow bound plane, on an icy airport apron, without food, for an indeterminate period, and without any probable cause to believe they have violated the law, is both “unreasonable” and a “seizure” of their persons.  As a passenger, you may be within your rights to deplane if it is safe to do so.  In the final analysis, you will have a cognizable claim against the airport operator and the airline, both consumers of Federal dollars, under the United States and State Constitutions, and potentially against the airline under state law for false imprisonment, even without additional State or Federal legislation. 

On March 12, 2008, Los Angeles World Airports (LAWA) published the Notice of Preparation (NOP) of a Draft Environmental Impact Report (DEIR) for the Los Angeles International Airport (LAX) Specific Plan Amendment Study (SPAS) for public comment.

In early 2005, Chevalier Allen & Lichman, LLP (CA&L) participated in a legal challenge to LAWA’s approval of the LAX Master Plan, which proposed major changes to runways, taxiways and terminals at LAX. The challenge resulted in a Stipulated Settlement Agreement, under which LAWA agreed to, among other things, proceed with a SPAS to identify potential alternative designs, technologies and configurations at LAX. The Settlement Agreement also established the LAX SPAS Advisory Committee, on which CA&L’s clients, the Cities of Inglewood and Culver City, sit as members.

The NOP identifies five options for reconfiguring the North Airfield Complex at LAX. One of those options, moving Runway 6R/24L 340 feet to the north, has the potential in our view to adversely impact communities surrounding LAX. It is our further view that the runway movement 340 feet north has the clear potential to increase capacity (and, therefore, noise, air quality and surface traffic impacts) by allowing triple simultaneous arrivals on the north and south runways. The NOP does not comprehensively evaluate the potential for these impacts, nor does it evaluate the runway project in relation to the other Master Plan projects currently ongoing at LAX, such as construction of a mid-field terminal, with numerous additional aircraft gates. CA&L believes that this project could have impacts which are, at minimum, different from and potentially more intense than those projected to arise out of the previous project.

For these and other reasons, CA&L will submit comments on the proposed scope and content of the DEIR on behalf of its clients. We recommend that other interested parties submit their comments no later than June 18, 2008.

The LAX Master Plan, LAX Specific Plan and the Stipulated Settlement are available at http://www.laxmasterplan.org.

When the FAA sought approval of the "STAAV4" or "Right Turn" Departure Procedure at McCarran International Airport in Las Vegas, Nevada, it opined that the new route would decrease delays dramatically at McCarran.  Indeed, the FAA stated that reduction of delays was one of the primary purposes of instituting the departure procedure, which routes aircraft over thousands more people than the old departure route.

It has now been a year since the FAA first implemented the departure procedure.  And the results are?  Judging from the statistics that the FAA keeps and makes available to the public on its "OPSNET" system, the new departure procedure is a flop:

  • Total number of delays at McCarran increased by 1,083 in the year since implementation of the procedure, representing a 7.0% increase over the prior year;
  • Over the year since implementation, aircraft spent an additional 101,934 minutes in delay, representing a 23.3% increase over the prior year;

(For a complete comparison of the numbers click here).  The explanation for an increase in delays cannot be that there was a large increase in operations, since operations increased by only 1,868, which represents a 0.3% increase in operations. Nor can bad weather explain the increase in delays, since weather related delays dropped by 808 during the year.  About the only bright spot for the FAA was a decrease in "runway" delays of 155 (a decrease of 1.65%).  But this is more than offset by whopping increases in "terminal volume" delays of 1,565 (an increase of 327%) and "Other" delays of 545 (a 229% increase).

If there was no decrease in delays, why was a procedure instituted that routed aircraft over thousands more people than before, subjecting them to an increase in noise and air pollution?

In both the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the New York/New Jersey/Philadelphia Airspace Redesign, the FAA states that there will be a decrease in emissions from aircraft as a result of the airspace redesign because the aircraft will burn less fuel.  To support this theory, the FAA relies upon a cobbled-together "Fuel Burn Analysis" that is nowhere to be found in any of the FAA’s orders or procedures.

However, even with the ginned-up fuel burn analysis, it is now becoming apparent that there may be no savings in fuel to be derived from instituting the Airspace Redesign’s preferred alternative.  Using the information provided in the Appendix R of the Final Environmental Impact Statement and the TAAM output files that were included in the Administrative Record as document 9285, Clean Air Act consultant Dan Meszler, of Meszler Engineering Services, concluded that the "Preferred Alternative" would seemingly increase fuel consumption.

On the following page is an excerpt from Mr. Meszler’s Report, along with a table showing the differences between fuel consumption reported in the FEIS and fuel consumption based on the TAAM data that was included in the Administrative Record.

Continue Reading Airspace Redesign May Not Decrease Fuel Consumption For The Airlines As The FAA Claims