Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions.  See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).  

Earth Justice and Friends of the Earth originally petitioned EPA in 2007, pursuant to CAA Section 231, which directs EPA to study air pollutants from aircraft “to determine (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emissions.”  Section 231(a)(1).  Under subsections (a)(2) and (3), if EPA finds that emissions from aircraft and aircraft engines cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare,” it “shall” propose and issue standards to control such emissions.  In 2010, EPA had still not responded to their 2007 Petition.  
 


Continue Reading EPA Challenged to Issue Endangerment Finding and Rule Governing Greenhouse Gas Emissions from Aircraft Engines

A problem with the regulatory philosophy towards unmanned aircraft systems is quickly coming into view.  While foreign and domestic governments are investing time and money developing strict standards for commercial drone use, the more pressing threat of recreational use has largely escaped the regulatory spotlight.

 
The Australian Transport Safety Bureau (ATSB) finalized two reports last week that shed some light on the perils of recreational drone use.  The first report describes a near collision of a passenger plane with an unmanned aerial vehicle (UAV) near Perth Airport in Western Australia.  While approaching the airport for landing, the crew “sighted a bright strobe light directly in front of the aircraft,” reports the ATSB.  The UAV tracked towards the aircraft and the pilot was forced to take evasive action, dodging the UAV by about 20 meters.  The ATSB has been unable to locate or identify the operator of the UAV, which was flying in restricted airspace at the time of the incident.
 
The second report describes another near collision with a recreational drone just three days later in the airspace over Newcastle, the second most populated city in the Australian state of New South Wales.  In that incident, the crew of a rescue helicopter spotted a UAV hovering over Hunter Stadium during an Australian football match.  The UAV tracked towards the helicopter as the helicopter began its descent.  The ATSB’s report was supplemented with a comment by Australia’s Civil Aviation Safety Authority (CASA), which explained that the UAV appeared to be a “first person view” vehicle that was transmitting a live video feed back to its operator.  In other words, the operator was watching the game.  Neither the venue nor the official broadcaster took or authorized any aerial footage of the game.  CASA noted that over 90% of complaints received about UAVs relate to incidents caused by first person view drones.
 
Though these reports come from halfway around the world, they highlight a flaw in the Federal Aviation Administration’s (FAA) approach to the use of drones in American airspace.  The FAA subjects commercial drone users to strict regulations arising from traditional “aircraft used in commerce” standards while applying the more liberal “model aircraft” standards to recreational drone users.  (See 14 C.F.R. § 91.119 [requiring aircraft used in commerce to stay at 500 feet or more in altitude above rural areas and 1,000 feet above urban areas].)  The FAA staunchly defended this system in its appeal of the Pirker case, in which the FAA seeks to overturn the decision of an administrative law judge who ruled the FAA had no regulatory authority when it fined the operator of a drone used for commercial photography.  So does it make sense for the FAA to take a hard stance towards commercial drones and a more liberal stance towards recreational drone users?
 
Probably not.  Here’s why:


Continue Reading Commercial vs. Recreational Drones: Are Existing Regulations Backwards?

On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories. 

This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation.  In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions.  The High Court effectively upheld those rules by refusing to hear the challenges against them.  The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses.  EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals.  The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues. 
 


Continue Reading High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations

After protracted litigation challenging plans to build 130 wind turbines, each 440 feet tall, in a 25 square mile area of Nantucket Sound, the D.C. Circuit last month denied petitions for review of the Federal Aviation Administration’s (“FAA”) determination that the turbines would pose no hazard to air navigation.

The petitioners, the Town of Barnstable, Massachusetts and a non-profit group of pilots and others, challenged the no hazard determinations based on the FAA’s failure to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.  The D.C. Circuit had previously vacated a 2010 no hazard determination based on the FAA’s failure to consider potential adverse effects of the turbines on pilots operating under visual flight rules (“VFR”) and the potential that electromagnetic radiation from the turbines would interfere with radar systems in nearby air navigation facilities.

Noting the circumstances had changed after the FAA upgraded the radar and beacon at Otis Airfield, the circuit court’s January 22, 2014 opinion upheld the FAA’s 2012 no hazard determinations.  The court concluded that the FAA properly based its determinations on aeronautical studies conducted according to the FAA Handbook, Procedures for Handling Airspace Matters, FAA Order JO 7400.2J (February 9, 2012), of which Section 3 on identifying and evaluating aeronautical effect was applicable.  According to the court, the FAA could reasonably view its Handbook procedures implementing the Secretary of Transportation’s regulations as requiring a threshold finding before triggering the need for a more advanced “adverse effects” analysis under Handbook Section 6–3–3 which states that “[a] structure is considered to have an adverse effect if it first … is found to have physical or electromagnetic radiation effect on the operation of air navigation facilities.”
 


Continue Reading D.C. Circuit Upholds FAA’s “No Hazard” Determinations Regarding Electromagnetic Radiation from Nantucket Sound Wind Turbines

Once again taking a forefront position in innovative environmental programs, California, for good or ill, is poised to launch the first of its kind and scope in the nation greenhouse gas (“GHG”) emissions trading system (“Cap and Trade”). 

On November 14, 2012, the California Air Resources Board (“CARB”) will hold an auction mandated by California’s 2006 “Climate Change” law, AB32, in which pollution permits (“Allowances”) will be bartered to more than 350 businesses, including utilities and refineries.  The concept behind Cap and Trade is that polluters must either cut carbon emissions to the level of a specific emission cap placed on individual types of pollutants by AB32, or buy allowances for each metric ton of carbon discharged over cap limits from other companies whose emissions did not reach cap levels.  Through the Cap and Trade program, excess carbon polluters can achieve up to 8% of emissions reductions needed. 
 


Continue Reading “Cap and Trade” in Greenhouse Gas Emissions Launched in California

On August 21, 2012, in a highly unusual disagreement with a rulemaking action by a Federal agency, the D.C. Circuit Court of Appeals sent the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution, or Transport, Rule, governing sulfur dioxide (“SO2”) and oxides of nitrogen (“NOx”) emissions, back to the agency with firm instructions to try again, and, next time, do a better job.  What makes this decision somewhat unusual is that cross-state rules had previously been implemented by EPA for PM2.5 and ozone, and upheld by the D.C. Circuit, see, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). 

In its decision in EME Homer City Generating, L.P., et al. v. EPA, et al., Case No. 11-1302, the D.C. Circuit took strong issue with EPA’s attempt to meet its responsibility under Clean Air Act § 110(a)(2)(D)(i)(I), 49 U.S.C. § 7410(a)(2)(D).  That section, the “good neighbor” provision, requires, in pertinent part, that, after EPA sets National Ambient Air Quality Standards (“NAAQS”), 42 U.S.C. § 7409, and designates areas within each state which exceed the NAAQS, 42 U.S.C. § 7407(d), or “nonattainment” areas, states must develop a state implementation plan (“SIP”), 42 U.S.C. § 7410, which includes provisions prohibiting any emissions source or activity “which will – contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.”  The D.C. Circuit found major legal flaws in EPA’s Transport Rule. 
 


Continue Reading The D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule

On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries.  Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’”  Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).  Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas.  Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process.  Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry.  Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).

The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
 


Continue Reading Local Land Use Restrictions on Hydraulic Fracturing Upheld in Pennsylvania

A lesson for all those who oppose the development of airports – be careful what you ask for, you might get it.  Ten years ago the City of Irvine, California, won its epic battle over the conversion of El Toro Marine Corps Air Station (“El Toro”) to a new commercial airport for Orange County, California.  The site is more than 3,000 acres in size, and was, at the time, surrounded by a 14,000 acre “no development” buffer zone, that the military had maintained to insulate itself from liability for noise and other impacts from aircraft operations at El Toro. 

Despite the largest land use buffer around any airport in the nation, and the fact that the noisiest military aircraft then in existence, the F-14, F-16 and F-18 fighter jets, had been operating regularly and continuously out of El Toro for more than 50 years, when El Toro was marked for closure under the Base Reuse and Realignment Act, 10 U.S.C. § 2687, et seq., (“BRAC”), and conveyed to Orange County through a public benefit conveyance, a number of cities in South Orange County, including Irvine and Laguna Niguel, banded together to stop the conversion.  Their alternative was a 3,600 acre “Great Park” on the El Toro site, to include sports facilities, entertainment venues, and wildlife preservation areas, and limited commercial and residential development on the periphery. 

It was a very convincing story, and, ultimately, in 2003, after 10 years of political and legal battles and the expenditure of many millions of dollars on both sides, the effort prevailed in the passage of an Initiative, Measure W.  The Initiative transferred land use planning authority from Orange County to the City of Irvine, for the purpose of developing the “Great Park.”  The only problem is, another 10 years and mega-millions of dollars later, the Great Park remains an empty field hosting an occasional tent show or fair, and is on the verge of becoming what its skeptics expected all along.
 


Continue Reading The Unmaking of the Great Park

On March 28, 2012, the Environmental Protection Agency (“EPA”) and Department of Justice (“DOJ”) announced their first settlement of an enforcement action addressing Federal Clean Air Act (“CAA”) violations in the marine engine manufacturing and ship building industries.  Under that settlement, Coltec Industries, Inc. (“Coltec”) and National Steel and Shipbuilding Company (“National Steel”) have agreed to pay a civil penalty of $280,000 and spend approximately $500,000 on an environmental project to resolve alleged violations of the CAA and the EPA’s marine diesel engine air rules.  Coltec is a subsidiary of EnPro Industries, Inc. and operates Fairbank Morse Engines which supplies marine propulsion and ship service systems to the United States Navy and Coast Guard.  National Steel is a subsidiary of General Dynamics which designs and builds support ships, oil tankers and dry cargo carriers for the United States Navy and commercial markets.


Continue Reading EPA Takes Its First Enforcement Action Under Marine Diesel Engine Air Rules