Challengers to the determinations of Federal agencies do not go to court on a level playing field with their governmental adversaries.  Federal courts have long taken the position that deference is properly accorded to an agency making decisions within its area of technical expertise.  That position may now be changing, at least with respect to two specific sets of legal circumstances. Continue Reading Federal Court Finds that Judicial Deference Does Not Mean “Do Everything Federal Entity Requests”

On March 20, 2012, in a far reaching opinion, the California Appellate Court for the Second District incurred into the territory usually occupied by the Federal Courts of Appeals, by holding that Federal Aviation Administration (“FAA”) safety standards, published in FAA Advisory Circular 150/5300-13 (“Advisory Circular”) do not preempt state tort law on the standard of care applicable to utilization of an airport’s “Runway Protection Zone” (“RPZ”). 

The case, Sierra Pacific Holdings, Inc. v. County of Ventura, 2012 WL 920322 (Cal.App.2 Dist.)), concerns damage to an aircraft owned by Sierra Pacific Holdings, Inc. (“Sierra”), allegedly caused by a barrier erected within the RPZ at Camarillo Municipal Airport.  The airport, owned and operated by Ventura County (“County”), erected the barrier for the apparent purpose of preventing runway incursions by police vehicles leasing space in part of the RPZ at the airport.  The trial court upheld the County’s motion in limine to exclude evidence of state safety standards relating to “airport design and construction,” on the ground that Federal standards in the Advisory Circular preempt state tort law on the standard of care.  The trial court’s holding was based on the Federal government’s “implied preemption” of safety standards at airports, and, thus, the foreclosure of Sierra’s negligence action based on a dangerous condition of public property under state tort law.  Cal. Gov. Code § 835.  The Appellate Court reversed on the ground that “Congress has not enacted an express preemption provision for FAA safety standards” and, thus, if preemption exists, it must be implied.  The Appellate Court’s decision is flawed for at least two reasons. 
 Continue Reading A California Appellate Court Puts a Fence Around Federal Preemption of Airport Safety Standards

The permanent closure or “deactivation” of an underutilized public use airport has gained increasing traction among revenue starved airport sponsors, as well as disparate responses from affected parties.  Operators seek to save the drain on diminishing budgets; residential communities surrounding the airport hope for relief from the airport’s impacts; and the pilot community sees its access to the dwindling number of general aviation facilities shrinking further.  Whatever the rationale, the operator seeking to close and reuse an airport for non-aviation purposes, that has at any time accepted funds from the Federal Aviation Administration (“FAA”), faces substantial regulatory hurdles and complex procedural requirements.Continue Reading Operators Seeking to Close Airports Navigate Difficult Regulatory Shoals

On Tuesday, March 6, 2012, Tinicum Township, Pennsylvania and its partners County of Delaware, Pennsylvania; Thomas J. Giancristoforo; and David McCann (“Petitioners”) took their grievances with the ongoing expansion project at Philadelphia International Airport (“PHL”) to the 3rd Circuit Federal Court of Appeals in Philadelphia.  Petitioners, made up of communities and residents surrounding the airport

The California Airport Land Use Planning Handbook, October 2011 (“2011 Handbook”) was released this week. It supersedes the 2002 Handbook edition. The Handbook constitutes “guidance,” Cal. Pub. Util. Code § 21674.7, for Airport Land Use Commissions (“ALUCs”) in the determination of the scope of their jurisdiction over off-airport land uses as well as in the

Noise abatement procedures are only effective if they are used. Noise impacted communities are frequently heard to complain that, despite the complex, time consuming and expensive process needed to develop and implement noise abatement procedures at airports, either through the FAA’s Part 150 process, or through other airport specific processes, airlines seem to ignore them. The rationale often provided is that each airline is entitled to develop and implement its own flight procedures, some, but not all of which incorporate the specified noise abatement procedures. This situation was exacerbated in 1990 when the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., took noise abatement policy making out of the hands of local airports and placed approval authority exclusively in the hands of the FAA.

A deceptively simple solution to this pervasive problem of airlines non-uniform observance of airport specific noise abatement policies has been developed by a small, new company in Truckee, California, Whispertrack.
 Continue Reading A New Technological Fix Hopes to Make Airport Noise a “Whisper”

On September 27, 2011, Governor Jerry Brown signed into law Senate Bill 292 and Assembly Bill 900, both of which are aimed at expediting, or “fast-tracking,” the litigation of lawsuits brought under the California Environmental Quality Act, 42 U.S.C. § 4321 (“CEQA”). SB292 is basically an earmark that will “fast-track” CEQA challenges to the Farmer’s Field National Football League Stadium proposed for downtown Los Angeles, next to the Los Angeles Convention Center and Staples Center, by requiring that such challenges be brought directly in California Courts of Appeals and be heard within 175 days. AB900 reaches more widely, “fast-tracking” all projects costing $100 million or more.

The stated intentions of the Bills’ sponsors are, on their faces, noble ones — to provide more job opportunities, and spur increased spending and attendant tax revenue for the State, matters which seem urgent in light of the State of California’s economy. The problems raised by the Bills are less immediate, but no less important.
 Continue Reading CEQA and the Law of Unintended Consequences

In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration’s (“FAA”) long held position that “aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not,” Barnes, at 16285, and the Federal Court’s traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998).Continue Reading Ninth Circuit Calls FAA to Task on Environmental Impacts of New Runway

The Los Angeles Times reports that, while economic conditions are slowly improving throughout most of the nation, including most of California, California’s Inland Empire, comprised of Riverside and San Bernardino Counties is not so fortunate. The Times reports that the volume of home sales in San Bernardino County dropped 18.3% from last June, and in Riverside County 14.7%. Similarly, jobs fell throughout the Inland Empire in sectors such as leisure and hospitality (minus 3,200 jobs in June) and educational and health services (minus 1,300 positions in June). Finally, the region lost 3,900 construction jobs over the year, and more than 75,000 since the peak of construction in June, 2006.

As part of the solution to this ongoing problem, the City of Ontario and County of San Bernardino have joined together to negotiate a return of Ontario International Airport (“ONT”), operated by the City of Los Angeles through its Airport Department, L.A. World Airports (“LAWA”) since 1967, to local control. ONT has, consistent with the condition of the local economy, seen an approximate 30% decrease in operations since 2007.
 Continue Reading Inland Empire’s Economic Woes Remediable Through Local Control of Ontario International Airport

Yet another project at Los Angeles International Airport (“LAX”) has skated under the requirements of the California Environmental Quality Act (“CEQA”). The project, the “American Airlines Commuter Facility Improvement Project,” allegedly constitutes a mere replacement of the facilities once occupied by United Airlines. Not exactly. The project actually includes, but is not limited to: (1) more than doubling the size of the passenger terminal/administration building to add passenger accommodations and office space; (2) addition of an almost 10,000 square foot building for baggage handling, office space and storage; and (3) replacement of a remote gate, accessed by foot or bus, with an enclosed contact gate such as those which are used inside the main terminals.

Despite the expansionary nature of the project, Los Angeles World Airports (“LAWA”), the Department of the owner, City of Los Angeles, responsible for operating LAX does not give so much as a passing nod to compliance with CEQA. If the project could simply be described as “new lease with American Airlines,” as a recent “Transmittal for Review of LAX Tenant Improvement Project” would have the public believe, the omission to conduct environmental review might be justified by a categorical exclusion from CEQA, 14 Cal. Code Regs. section 15301. That exclusion, however, does not apply here. The project, far from being “negligible” in scope, clearly constitutes a massive expansion of the previous passenger hold room and other passenger serving facilities.
 Continue Reading LAX/American Airlines Commuter Facility Project Avoids Environmental Review