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On November 7, 2014, the Federal Aviation Administration (“FAA”) published its “Final Policy Amendment” (“Amendment”) to its “Policy and Procedures Concerning the Use of Airport Revenue,” first published 15 years ago in the Federal Register at 64 Fed.Reg. 7696, February 16, 1999 (“Revenue Use Policy”).  The Amendment formally adopts FAA’s interpretation of the Federal requirements for use of revenue derived from taxes including sales taxes on aviation fuel imposed by both airport sponsors and governmental agencies, local and State, that are non-airport operators. 

In brief, the FAA concludes that “an airport operator or State government submitting an application under the Airport Improvement Program must provide assurance that revenues from State and local government taxes on aviation fuel will be used for certain aviation-related purposes.”  79 Fed.Reg. 66283.  Predictably, FAA received 25 substantive comments from a diverse group of interested parties, including airport operators, industry and nonprofit associations representing airports, air carriers, business aviation and airport service businesses, air carriers, state government agencies, and private citizens.  For example, in response to the airports’ and governments’ comments that airport sponsors would find it impossible to provide assurance that other governmental agencies would comply with the revenue use statutes for the life of the Airport Improvement Program (“AIP”) grant, and that airports should not be required to agree to a condition compliance with which they have no control, FAA takes the position that Federal statute 49 U.S.C. §§ 47107(b) and 47133 already require this level of control from local proprietors.  This is because “[t]he grant assurances provided by airport sponsors include Grant Assurance 25, which provides, in relevant part: ‘All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other facilities which are owned and operated by the owner and operator of the airport. . .’” 79 Fed.Reg. 66284.  The FAA further concludes that airport sponsors often have influence on the taxation of aviation activities in their States and localities, and the FAA expects airport sponsors to use that influence to shape State and non-sponsor local taxation to conform to these Federal laws.  Id.  Moreover, FAA asserts its power to pursue enforcement action against non-sponsor entities for the purposes of limiting the use of aviation tax revenues under 49 U.S.C. §§ 46301, 47133 and 47111(f). 
 

Continue Reading FAA Loosens Regulation of Taxes on Aviation Fuel

The Federal Aviation Administration (“FAA”) has scheduled six “briefings” with governmental jurisdictions potentially impacted by the planned “Southern California Optimization of Airspace and Procedures in the Metroplex (SoCal OAPM)” (“Project”).  The Project is expected to involve changes in aircraft flight paths and/or altitudes in areas surrounding Bob Hope (Burbank) Airport (BUR), Camarillo Airport (CMA), Gillespie Field (SEE), McClellan-Palomar Airport (Carlsbad) (CRQ), Montgomery Field (MYF), Los Angeles International Airport (LAX), Long Beach Airport (LGB), Point Magu Naval Air Station (NTD), North Island Naval Air Station (NZY), Ontario International Airport (ONT), Oxnard Airport (OXR), Palm Springs International Airport (PSP), San Diego International Airport (SAN), Santa Barbara Municipal Airport (SBA), Brown Field Municipal Airport (SDM), Santa Monica Municipal Airport (SMO), John Wayne-Orange County Airport (SNA), Jacqueline Cochran Regional Airport (TRM), Bermuda Dunes (UDD), Miramar Marine Corps Air Station (NKX) and Van Nuys Airport (VNY).   
 
These meetings are targeted at “key governmental officials/agencies” for the purpose of soliciting their views on the Environmental Assessment being prepared for the Project pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. 4321.  The meetings will not be open to the public, although public meetings will be scheduled as well.  
 
It is important to note the regional scope of the planned airspace changes, and that they may redistribute noise, air quality, and other impacts over affected communities, thus implicating new populations, and simultaneously raising citizen ire in newly impacted communities.  It is therefore doubly important that governmental entities participate at the initiation of the process to ensure protection at its culmination.  
 
The governmental meetings are planned for the following locations and times:
 

Continue Reading FAA Seeks Input from Governmental Entities Concerning Revised Air Traffic Routes Over Southern California

In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator.  Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).   

The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport.  The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
 

Continue Reading One Community Gets Relief from Aircraft Noise

In a landmark decision for the UAS (aka drone) industry and for the aviation industry as a whole, the Federal Aviation Administration announced today that it has granted 6 petitions for regulatory exemptions to operate unmanned aircraft systems for commercial filming operations.  The exemptions will allow the 6 petitioners to operate unmanned aircraft systems for…

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

California’s unprecedented drought provided the impetus in Sacramento in the closing weeks of the Legislature’s 2013-14 session for the passage of sweeping new regulations governing groundwater. The new rules, which Gov. Brown likely will sign, amount to a broad re-write of California’s existing groundwater law, the first substantial changes to the law in approximately one hundred years. And with the new rules comes significant new authority for a state agency, drawing upon potentially billions of dollars in new fees, to implement new groundwater management plans over the objections of local water authorities. 

Orange County’s groundwater management system, accomplished across numerous governmental jurisdictions and which has, so far, spared Orange County from the full effects of the drought, is held up as the model for the new state scheme. But the legislation goes well beyond anything done in Orange County. Major changes are coming in the way California regulates and allocates its ground water, and in the way our citizens pay for that water.

Continue Reading Water’s For Fighting Over

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 

Continue Reading FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.  

The first of the two bills, AB 1327 by Jeff Gorell, places certain limits on the use of drones, both by the government and private parties. For example, it bans any weaponization of drones unless specifically authorized by federal law. It also extends existing privacy and wiretapping/electronic eavesdropping protections to the private use of drones but does not prohibit their use in situations where privacy concerns are not likely to be significant, such as those circumstances consistent with the “core mission” of non-law enforcement public agencies like fire or oil spill detection. One can expect the inevitable round of litigation to flesh out the limits of such circumstances and situations where privacy concerns are not likely to be significant. 
 

Continue Reading Recent Developments in California Drone Law