The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.

A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
 


Continue Reading FAA Moves to Insulate Itself from Challenges to Clean Air Act Compliance in Airspace Redesigns

A Federal Court has recently thrown open the door to potential civil challenges to both private and governmental sources of greenhouse gas emissions, based on the Federal common law of nuisance. For those who believe the Environmental Protection Agency (EPA) has acted too slowly in promulgating greenhouse gas regulation, civil actions are now possible at least in the Second Circuit. However, the Supreme Court may now scrutinize the Second Circuit’s decision. Based on a recent Fourth Circuit decision on a similar issue, the “Nine” may be tempted to follow in Moses’ footsteps and pare down the Second Circuit decision to apply only to greenhouse gas emissions from Federal projects.


Continue Reading Preemption Rears its Head Again in Federal Common Law and Nuisance Climate Change Challenge

Much has been made recently of the studies currently underway in areas around Boston Logan and Santa Monica Airports, aimed at determining the health impacts of those airports on surrounding populations.  While the aim is noble, and the information to be gained useful in structuring individual living choices, the result will have little or no impact on the operation of those airports. 

 
Continue Reading Santa Monica and Logan Airport Health Studies are Targeting the Wrong Problem

On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA’s General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.
Continue Reading EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

UPDATED May 5, 2010

The Federal Aviation Administration (FAA) announced in the April 23, 2010 Federal Register that it will release the Draft General Conformity Determination for the Preferred Alternative (Alternative A) for the Philadelphia International Airport (PHL) Capacity Enhancement Program (CEP) for public comment on April 27, 2010.  Ordinarily, the public has 30 days

On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et

On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act