On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 

Continue Reading Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

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

California Legislators Senator Dianne Feinstein and Representative Adam Schiff of Burbank achieved the seemingly impossible in Congress’ January 14 passage of the $1.012 trillion Omnibus Spending Bill, the Consolidated Appropriations Act, 2014, H.R. 3547 (“Appropriations Act”).  The Appropriations Act contains a provision, § 119D, requiring the Federal Aviation Administration (“FAA”) to achieve reductions in helicopter noise throughout the Los Angeles Basin by 2015.  That section specifies certain voluntary measures, which, if unsuccessful in achieving the desired reductions within one year, must give way to FAA regulations to achieve the stated purposes. 

Specifically, § 119D mandates that:

“The Secretary shall (1) evaluate and adjust existing helicopter routes above Los Angeles, and make adjustments to such routes if the adjustments would lessen impacts on residential areas and noise-sensitive landmarks; (2) analyze whether helicopters could safely fly at higher altitudes in certain areas above Los Angeles County; (3) develop and promote best practices for helicopter hovering and electronic news gathering; (4) conduct outreach to helicopter pilots to inform them of voluntary policies and to increase awareness of noise sensitive areas and events; (5) work with local stakeholders to develop a more comprehensive noise complaint system; and (6) continue to participate in collaborative engagement between community representatives and helicopter operators:  Provided, That not later than one year after enactment of this Act, the Secretary shall begin a regulatory process related to the impact of helicopter use on the quality of life and safety of the people of Los Angeles County unless the Secretary can demonstrate significant progress in undertaking the actions required under the previous proviso.”

Although a seeming triumph for noise impacted communities, the Appropriations Act is neither an unalloyed victory nor does it set a precedent for future legislative initiatives for the following reasons:
 

Continue Reading California Legislators Successful in Obtaining Relief from Helicopter Noise

On Wednesday, July 29, 2009, the bipartisan leadership of both the Committee on Transportation & Infrastructure and the Subcommittee on Aviation introduced H.R. 3371, the "Aviation Safety Bill" designed to "enhance airline safety by setting new training and service standards for commercial pilots."  This bill came primarily as a response to the Senate Commerce Committee’s passage of its version of the FAA Reauthorization Bill (S. 1451), which included aviation safety measures such as a call for the National Academy of Sciences to conduct a study on pilot fatigue and requiring the FAA to establish and maintain a pilot employment, training, and testing database.

After the passage of the House FAA Reauthorization Bill (H.R. 915), hearings were held regarding aviation safety, particularly in response to the crash of Flight 3407 in Buffalo, New York.  As ranking member Thomas E. Petri (R-Wis.) stated at the press conference announcing the bill: "the Buffalo crash and the subsequent Aviation Subcommittee hearing revealed some troubling questions in terms of training, development, and the working environment of pilots – particularly at regional airlines."

The Press Release from the Transportation & Infrastructure Committee indicated that the bill:

  • Requires FAA to ensure that pilots are trained on stall, recovery, upset recovery, and that airlines provide remedial training;
  • requires airline pilots to hold an FAA Airline Transport Pilot license (1,500 minimum flight hours required);
  • Establishes comprehensive pre-employment screening or prospective pilots including an assessment of pilot’s skills, aptitudes, airmanship and suitability for functioning in the airline’s operational environment;
  • Requires airlines to establish pilot mentoring program, create Pilot Professional Development Committees, modify training to accommodate new-hire pilots with different levels and types of flight experience, and provide leadership and command training to pilots in command;
  • Directs FAA to update and implement a new pilot flight and duty time rule and fatigue risk management plans to more adequately track scientific research in the field of fatigue.  It also requires air carriers to create fatigue risk management systems approved by FAA.
  • Requires the Department of Transportation Inspector General to study and report to Congress on whether the number and experience level of safety inspectors assigned to regional airlines is commensurate with that of mainline airlines;
  • Mandates that the first page of an internet website that sells airline tickets disclose the air carrier that operates each segment of the flight;
  • Directs a National Academy of Sciences study on pilot commuting and fatigue,;and
  • Requires the Secretary of Transportation to provide an annual report to Congress on what the agency is doing to address each open National Transportation Safety Board recommendation pertaining to commercial air carriers.

Once the Senate FAA Reauthorization bill is voted on (and presumably passed) by the full Senate in the Fall, this bill along with H.R. 915, will go to House-Senate conference committee.

UPDATE:  See also Dr. Lichman’s recent post "Passengers Detained Have Constiutional and Other Legal Rights," which was posted August 13, 2009.

Most of us have been caught in airplanes delayed on the tarmac for what seems like an eternity.  Some of us have really been trapped for as long as 10 hours, often without food, water or sanitary facilities.  Some states, like New York, have attempted to pass legislation that would guarantee stalled passengers at least these basic needs.  Their efforts have not met with success in the courts.  As recently as the end of March, 2008, the Federal 2nd Circuit Court of Appeals struck down the New York law as preempted by Federal law governing airline regulation.  

In Chevalier, Allen & Lichman’s view, however, legislation on this subject, though well intended, is superfluous, because passengers are already protected by the Fourth Amendment to the United States Constitution.  Airlines operate on airport property.  Airports receive funding for their development from the Federal government.  In fact, substantially all airfield facilities such as runways, taxiways and navigation aides, as well as a portion of terminal development, are paid for by funds appropriated by Congress and administered by the Federal Aviation Administration.  Moreover, the vast majority, if not all, commercial airports are run by public entities.  Finally, Air Traffic Control is operated directly and exclusively by the FAA.  

Therefore, even though airlines are private companies, they operate on, and, are in fact, dependent upon Federal facilities.  Citizens using those facilities are, in turn, protected by the Federal and State Constitutions, including the constitutional prohibition on “unreasonable search and seizure” set forth in the Fourth Amendment.

It is beyond dispute that imprisoning passengers against their will on a snow bound plane, on an icy airport apron, without food, for an indeterminate period, and without any probable cause to believe they have violated the law, is both “unreasonable” and a “seizure” of their persons.  As a passenger, you may be within your rights to deplane if it is safe to do so.  In the final analysis, you will have a cognizable claim against the airport operator and the airline, both consumers of Federal dollars, under the United States and State Constitutions, and potentially against the airline under state law for false imprisonment, even without additional State or Federal legislation.