Barbara Lichman

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Taking its queue from the legislature (see Senate Bill 743 [Steinberg 2013]), the California Governor’s Office of Planning and Research (“OPR”) published, on August 6, 2014, a preliminary discussion draft of revisions to OPR’s California Environmental Quality Act (“CEQA”) Guidelines, which serve as regulations implementing CEQA, Cal. Pub. Res. Code § 21000, et seq.,  “Updating Transportation Impacts Analysis in the CEQA Guidelines” (“Update”).  The Update revises existing CEQA Guidelines § 15064.3 to comport with Cal. Pub. Res. Code § 21099(b)(1) which establishes new criteria for determining the environmental significance of surface traffic impacts such as traffic delay and increased emissions resulting from a proposed project.  The purpose of both the amended statute and the Update is to shift the focus of the CEQA analysis of significance from “driver delay” to “reduction of greenhouse gas emissions, creation of multi-modal  networks and promotion of mixed land uses.”  Update, page 3.  

 
The change is effected through a change in the metric for determining environmental significance Level of Service (“LOS”), which measures delay at intersections, to vehicle miles traveled (“VMT”), which is a measure of the number of automobile trips resulting from the project.  The stated rationale underlying the change is that the use of LOS encourages mitigation aimed at reducing delays by increasing traffic flow, including expanded roadways, construction of more lanes and other automobile traffic facilitation measures; which theoretically leads to “induced demand,” i.e., more capacity at intersections allowing additional cars to use them; and, ultimately, to more air quality and greenhouse gas impacts from those additional cars.  As the story goes, a standard of environmental significance based on VMT will encourage the use of mitigation measures such as increased bicycle paths, accommodations for pedestrians, and other measures that will reduce automobile ridership in the long term.  The problem is that the theory underlying the Update is made up more of holes than of cheese. 
 

Continue Reading California Changes the Test of Significance for Traffic Impacts Under CEQA

The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. Continue Reading FAA Proposes to Increase its Authority Over Off-Airport Development

On June 25, 2014, the Federal Aviation Administration (“FAA”) published in the Federal Register, 79 Fed.Reg. 36172, its “Interpretation of the Special Rule for Model Aircraft” (“Interpretation”) established by Congress in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95, § 336 (“FMRA”).  Despite its name, FAA’s interpretation goes far beyond mere definitional clarification.  It is, instead, the first step in establishing FAA’s preemptive authority over Unmanned Aircraft Systems (“UAS”) as “aircraft” utilizing the National Airspace System (“NAS”), even where the operator of an UAS chooses to denominate it a “model aircraft.” 

As a first step in asserting its regulatory authority, FAA takes the position that Congress’ rule in the FMRA is nothing new, but, instead, relies heavily on the long standing statutory and regulatory definition of model aircraft as “aircraft,” i.e., mechanisms that are “invented, used or designed to navigate or fly in the air,” 49 U.S.C. § 40102; 14 C.F.R. § 1.1.  FAA also applies its own 2007 guidelines regarding UAS operating in the NAS, which recognizes that UAS fall within the statutory and regulatory definition of “aircraft” as “devices that are used or intended to be used for flight in the air with no onboard pilot.”  72 Fed.Reg. 6689 (February 13, 2007). 

FAA’s Interpretation, however, goes far beyond the simple inclusion of “model aircraft” in the category of “aircraft.”  The Interpretation expands even further upon FMRA’s three part test defining a “model aircraft” as an “unmanned aircraft” that is: “(1) capable of sustained flight in the atmosphere; (2) flown within the visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”  FMRA, § 336(d). 
 
With regard to FMRA’s second factor, the requirement that the model aircraft stay within the “visual line of sight” of the user, FAA interprets that requirement consistent with FMRA, § 336(c)(2) to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (including corrective lenses) and not goggles or other vision enhancing devices; and (3) people other than the operator may not be used to maintain the line of sight.  In other words, to maintain the identity as a “model aircraft,” the aircraft cannot be “remotely controlled” from a location other than that at which it is being flown.

The third factor, the definition of what constitutes “hobby or recreational use” is perhaps the thornier. 
 Continue Reading FAA Weighs in on the Regulation of “Model Aircraft”

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?

The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft.  The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines. 

The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines.  “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.”  42 U.S.C. § 7571(a)(2)(A) and (a)(3).  There are, however, some limits on EPA’s authority.
 Continue Reading Santa Monica Airport Commission’s Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law

While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences.  The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation. 

Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1.  He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.”  On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations.  Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument. 
 Continue Reading Decision in Pirker Case Invokes Specter of Local Regulation of Unmanned Aircraft Systems