Barbara Lichman

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On January 13, 2021, the Federal Aviation Administration (“FAA”) published, in the Federal Register, Vol. 86, No. 8, Docket No. FAA-2021-0037, p. 2722, a necessary, if somewhat belated, “summary to the public of the research programs it sponsors . . . that could potentially inform future aircraft noise policy.” While the “spirit” appears willing, the “execution” is weak.

FAA first claims, by way of “background,” that “the number of people living in areas exposed to SIGNIFICANT levels of aircraft noise in the United States has declined from roughly 7 million to just over 400,000 today.” Id., at 2723 [emphasis added]. FAA credits that reduction principally to “phased transition to quieter aircraft;” efforts by local governments to reduce the number of people living in close proximity to airports through planning; sound insulation; and, perhaps most ironically, the introduction of Performance Based Navigation (“PBN”), or RNAV procedures which consolidate flight corridors, thus reducing the NUMBER of persons overflown, while, at the same time, increasing noise for residents under the newly consolidated flight tracks.

FAA’s conclusions are skewed by reliance on outdated assumptions.Continue Reading FAA Research on Environmental Issues Ignores Significant Factors in Public Discontent

Members of the Congressional Quiet Skies Caucus, composed of Congresspersons throughout the United States whose constituents are significantly impacted by aircraft noise, have expressed deep concern, in a letter of September 23, 2020, to the Federal Aviation Administration (“FAA”) about the inadequacy of the FAA’s statutorily mandated evaluation of “alternative metrics to the current average day-night level [“DNL”] standard, such as the use of actual noise sampling and other methods, to address community airplane noise concerns.” See FAA Reauthorization Act of 2018, P.L. 115-254, §§ 173, 188 (“Report”). Caucus members catalogue a variety of insufficiencies.
Continue Reading Congress Members Express Concern with FAA Noise Metric Report

In a June 19, 2020 Findings of Fact, Conclusions of Law, and Judgment (“Judgment”), the District Court of Jefferson County, Colorado, in Board of Commissioners of Adams County v. City and County of Denver, recounted in detail the expert testimony offered by Adams County, that fatally undercuts the traditional reliance by the City of Denver, operator of Denver International Airport (“DIA”), and airport operators in general, on “noise modeling” in place of “noise monitoring” to determine the impacts of the aircraft noise on surrounding communities.

The Judgment exhaustively recounted evidence offered by Adams County, detailing the flaws in the noise modeling utilized by DIA to document compliance with the noise provisions of the “Intergovernmental Agreement [for a new airport], (‘IGA’),” originally entered into between the two parties on April 21, 1988, when the plan for development of the new Denver airport was being initiated.Continue Reading Colorado Court Judgment Finds Noise Modeling Significantly Understates Aircraft Noise

In a momentous shift of its normally conciliatory relationship with aircraft manufacturers, the United States Senate, on June 17, 2020, introduced the “Aircraft Safety and Reform Act,” legislation that will, if enacted, effectively reverse the provisions of the Federal Aviation Administration Reauthorization Act of 2018 (“2018 FAA Act”) which allow aircraft manufacturers to perform, with a minimum of FAA oversight, the certification for safety purposes, of the aircraft it manufactures.

The proposed, bipartisan, legislation, seeks to control both the performance of the industries to which were delegated the aircraft safety certification responsibilities (“ODA”) under the 2018 FAA Act, and the FAA personnel charged with overseeing their compliance.Continue Reading Proposed Legislation Repudiates Congress’ Hands Off Policy Toward Aircraft Certification

On June 4, 2020, President Trump issued an Executive Order, “EO On Accelerating the Nation’s Economic Recovery from the Covid-19 Emergency by Expediting Infrastructure Investments and Other Activities” (“EO”) for the expressed purpose of forestalling “the likelihood of a potentially protracted economic recovery with persistent high unemployment,” EO, Sec. 1, resulting from the business closures necessitated by the onslaught of Covid-19. Predicated on the authority granted in the National Emergencies Act, 50 U.S.C. § 1601, et seq., and the Stafford Act, 42 U.S.C. § 5191(b), § 501(b), the President found that the Covid-19 outbreak in the United States constitutes “a national emergency that posed a threat to our national security.” EO, Sec. 1.

In order to “facilitate the Nation’s economic recovery,” EO, Sec. 2, the EO seeks to “speed infrastructure investments,” EO, Sec. 2, that will “strengthen the economy and return Americans to work, EO, Sec. 2, by, among other things, “expediting the delivery of transportation infrastructure projects, EO, Sec. 3, and civil works projects within the purview of the Army Corps of Engineers, EO, Sec. 4.

All these are laudable goals. The potential problem, however, is in the simultaneous abrogation of environmental protections in such statutes as the Endangered Species Act, 16 U.S.C. § 1531, et seq., and Clean Water Act, 33 U.S.C. § 1344, et seq., as well as other statutes administered by the Army Corps of Engineers. The most notable of these is the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”).Continue Reading Executive Order Presents a Trade-Off Between Infrastructure Investment and Environmental Regulation

In the FAA Reauthorization Act of 2018, Pub. L. 115254, § 188, Congress required the Federal Aviation Administration (“FAA”) to “evaluate alternative noise metrics to current average day-night level standard, such as the use of actual noise sampling to address community airplane noise concerns.” In its April 14, 2020 Report to Congress (“Report”), FAA thumbed its nose at that mandate, and chose instead to enumerate the various available metrics, without any attempt at comparative analysis of their efficacy at representing real world noise impacts when compared to Day/Night Average Sound Level (“DNL”), currently required by FAA for analysis of airport noise impacts.
Continue Reading FAA Sidesteps Congressional Mandate to Evaluate Alternative Noise Metrics

The development of Vertical Take-Off and Landing Vehicles (“VTOL”) looks like the wave of the future, especially where highway traffic is becoming an increasing impediment to a constructive workday. All is not rosy, however, where VTOL must share the air with conventional aircraft and the ground with densely populated urban areas.

The most advanced VTOL to date is a U.S. based technology anticipated to become available for commercial use in 2023. The aircraft is configured to carry four passengers and a pilot (for emergencies, as the aircraft is powered by electricity and designed to fly autonomously); will have a range of about 60 miles; and is expected to be able to take-off and land up to 1,000 times per hour at massive skyports, located on plots of land as small as one acre located throughout the cities served.

Another form of hybrid VTOL currently being developed by a Chinese firm and a Slovakia–based company is a flying car designed to take-off from a runway like a plane, but with the capability of converting into a surface vehicle with retractable wheels and wings.

Finally, there is a hybrid/helicopter/conventional aircraft, the distinguishing characteristic of which is technology aimed at addressing one of the primary issues surrounding the operation of aircraft – noise. To do this, speed of the main rotor will be redirected while flying, apparently without jeopardizing the integrity of the flight process. While numerous other high-end car companies are attempting to break into the market, most were too late to the game, starting the development process in 2018-19.

There are, however, numerous regulatory, as well as developmental hurdles to overcome.Continue Reading Regulation of VTOLS Lags Far Behind Technology

In a somewhat unsubtle attempt to implement the current Administration’s 2017 Executive Order “Enforcing the Regulatory Reform Agenda,” allowing federal agencies to simplify their regulatory mandates, the Department of Transportation (“DOT”), on behalf of its subsidiary agency the Federal Aviation Administration (“FAA”), has instead thrown complex and expensive regulatory/legal hurdles in the path of consumers who attempt to enforce the provisions of current protective regulations. Specifically, the DOT published, on February 28, 2020, in the Federal Register, a Notice of Proposed Rulemaking (“NPRM”), that purports to simplify “definitions of the terms ‘unfair’ and ‘deceptive’ in the Department’s regulations implementing its aviation consumer protection statute.” See 85 Fed.Reg. 11881. The devil, however, is, as usual, in the details.
Continue Reading FAA Seeks to Free Airlines from “Burden” of Consumer Protections

Many communities rely on Congressional representation to establish lines of communication with the Federal Aviation Administration (“FAA”) because communication with federal agencies in general and FAA particularly is difficult for the public at large. That reliance may have been overly optimistic as can be seen in a response from FAA (“Response”) to a letter from Congressperson Eleanor Holmes Norton representing the Congressional Quiet Skies Caucus (“Caucus”). In the Response, the new Administrator of the FAA betrays a substantial misunderstanding of the agency’s role in its interaction with both airports and the public.

The Caucus was established principally to articulate to the FAA the interests of noise and air quality impacted communities throughout the nation. While the examples used by the Caucus in its letter are substantially oriented toward East Coast concerns, the issues overlap with those of other communities, including the impacts of NextGen, the reorganization of arrival and departure paths at airports based on new technology, which has consolidated flight paths over previously unimpacted communities in the name of “safety” and “efficiency.”

The FAA’s misunderstanding becomes obvious on the first page of its Response, where FAA takes the position that it is powerless to influence the factors that are the primary cause of airport noise, such as numbers of people that want to fly, and goods that must be delivered by air, thus necessitating more air traffic. While that may be true with respect to demand for air travel, it is patently untrue with respect to supply.Continue Reading Quiet Skies Congressional Caucus Gets Brush Off from FAA

The concern of the Federal Aviation Administration (“FAA”) regarding the use by airport operators of airport generated revenues to soften budget shortfalls off the airport appears to be growing. In a speech delivered at the November 11, 2019 National Air Transportation Association Leadership (“NATA”) Conference, Kirk Shaffer, FAA’s Associate Administrator for Airports, solicited the assistance of the aviation community in working with jurisdictions on compliance. Mr. Shaffer went on to opine that jurisdictions that operate airports are sometimes unaware of the laws governing revenue diversion, or confused by revenue flows, particularly as related to state and local taxes. He illustrated the problem by sharing the fact that, of the 177 jurisdictions with which the FAA has worked over the past five years on revenue diversion issues, 107 still remain noncompliant.

That number of noncompliant jurisdictions is somewhat surprising as the rules governing the use of airport revenues from airports are fairly explicit. The general rule is that revenues generated by a public airport may only be expended for the capital and operating costs of: (1) the airport; (2) the local airport system; or (3) other facilities owned or operated by the airport operator and directly and substantially related to the air transportation of passengers or property. 49 U.S.C. §§ 47107(b)(1) and 47133(a). The use of airport revenue for purposes other than airport capital or operating costs is generally considered “revenue diversion” and is prohibited by federal law. See Policy and Procedures Governing the Use of Airport Revenue, 64 Fed.Reg. 7696, 7720 (February 15, 1999) (“Revenue Policy”). Airport revenues subject to the revenue use requirements include all fees, rents, charges, or other payments received from anyone who makes use of the airport and from the airport sponsor’s activities on the airport. Id. at 7716.

The third prong provides unique revenue allocation opportunities to airport sponsors that own or operate other facilities.Continue Reading FAA Focuses on Controlling Revenue Diversion