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On Thursday, May 27th, the Los Angeles County Metropolitan Transportation Authority (MTA) will consider approving the preparation of a comprehensive State Route 710 corridor study, which will include alternatives and environmental impacts of a project that would close the 4 mile gap in the Long Beach (710) Freeway between Alhambra and Pasadena. Alternatives will include…

In the midst of much debate as to whether a threat of “global warming” and “global climate change” actually exists and, if it does, further debate as to whether wind-generated energy would reduce carbon-dioxide emissions sufficiently to have a measurable impact on global temperatures, one thing is certain – wind farms are here, and more…

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:Continue Reading CEQ’s Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions

When the U.S. Environmental Protection Agency issued its final finding that emission of six greenhouse gases endangered the public’s health and the environment because of their effect on climate change, the business community wondered how it should respond to the news.  At first glance, there seems to be blinding maze of legal and policy issues that will affect business decisions.  Although far from clear, there is a way out of the maze – although businesses with significant greenhouse gas emissions should be prepared to tackle the important issues that the Endangerment Finding raises.

Businesses Need to Take a Deep Breath (Irony Intended)

The road to the endangerment finding began in 2007, when the U.S. Supreme Court decided in Massachusetts v. EPA that carbon dioxide and other greenhouse gases constituted “air pollutants” under the Clean Air Act.  To most savvy businessmen this was a clear signal to start planning how their businesses would cope with the establishment of limits on emission of greenhouse gases.  Although the Bush Administration EPA successfully sat on the issue, when the Obama Administration took office, most companies recognized that an endangerment finding would top the EPA’s list of major environmental actions.  Thus, EPA’s announcement this past April of its proposed finding and its announcement of the final endangerment finding should have come as no surprise to anyone who has been monitoring this issue.

The key thing for businesses to remember is that the endangerment finding by itself does not regulate the emission of greenhouse gases from any source, large or small.  That being said, it does have a direct impact on mobile sources (because of section 202(a) of the Clean Air Act), with the EPA planning on issuing its final “light-duty vehicle” greenhouse gas emissions rule some time in Spring 2010.

Continue Reading What Does EPA’s Finding that Greenhouse Gas Emissions Endanger Public Health and the Environment Mean to Business?

President Obama took a huge step toward reversing the Bush Administration’s recently promulgated regulation allowing Federal agencies to forego consultation with the Fish and Wildlife Service and the National Marine Fisheries Service with respect to whether the Federal agencies’ activities will have an impact on the Endangered Species Act.  In his memo to "Heads of Executive Departments and Agencies," President Obama requests that the Departments of Interior and Commerce "to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA."

Since the Bush Administration rule was issued as a regulation, President Obama cannot through the use of an Executive Order rescind or overturn the regulation.  Thus, as an interim measure President Obama asked "the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS."

As a side note, it should be pointed out that the Senate is currently considering an Omnibus Appropriations Bill from the House that would allow the Obama Administration to rescind both the ESA rule and a rule issued in conjunction with last year’s listing of the polar bear as threatened under the ESA.  That rule exempted greehouse gas emissions and oil devleopment from regulation under the ESA even if they harmed the bears and their melting habitat.

Full text of President Obama’s Memorandum, as reported by the L.A. Times, follows on the next page.

Previous related Posts:

Continue Reading President Obama Calls for Review of Bush-Era Regulation Regarding Scientific Consultation on Endangered Species Act Concerns

The U.S. House Committee on Transportation and Infrastructure has proposed H.R. 915, the FAA Reauthorization Act of 2009.  Since funding authorization for aviation programs and authorization for taxes and fees that provide revenue for the FAA expired at the end of fiscal year 2007 and revenue collections and FAA programs have been extended several times (until March 31, 2009), this bill is a priority item for the FAA. What follows is a summary of the provisions of the Reauthorization Bill.

Funding & Financing

  • Taxes on aviation users will be increased – Passenger flight segment tax increased to $3.60; International departure and arrival taxes increased to $16.10; Alaska Hawaii facilities tax increased to $8.00.
  • Provides historic funding levels for the FAA’s programs between 2009 and 2012, including $16.2 billion for AIP; $13.4 billion for Facilities and Equipment; $38.9 billion for operations; and $1.35 billion for Research, Engineering and Development.

Airports

  • Makes several modifications to the current AIP distribution formula that provide significant increases in AIP funding for smaller airports, which are particularly reliant on AIP for capital financing, as well as more AIP discretionary funding.
  • Increases Passenger Facility Charge from $4.50 to $7.00.  This provision was strongly supported by Jim Elwood, representing the American Association of Airport Executives.

ATC Modernization and NextGen

  • Provides $13.4 billion for the FAA’s Facilities and Equipment account.
  • Increases the authority and visibility of the Joint Planning and Development Office.
  • Requires the JPDO to develop a work plan that details, on a year-by-year basis, specific NextGen-related deliverables and milestones.
  • FAA wants to emphasize "infrastructure" improvements at the nations’ airports, which includes a full roll-out of NextGen.

Safety

  • Includes several safety provisions, such as authorizing additional funds for runway incursion reduction programs and the acquisition and installation of runway status lights.
  • Increases the number of aviation safety inspectors and requires safety inspections of foreign repair stations at least twice a year.
  • Directs FAA to commence a rulemaking to ensure that covered maintenance work on air carrier aircraft is performed by part 145 repair stations or part 121 air carriers.
  • Creates an independent Aviation Safety Whistleblower Investigation Office within the FAA charged with receiving safety complaints and information submitted by both FAA employees and employees of certificated entities.
  • Directs FAA to modify its “customer service initiative” to remove air carriers or other entities regulated by the FAA as “customers.”
  • Adds a two-year “post-service” cooling off period for FAA inspectors and requires principal maintenance inspectors to rotate between airline oversight offices every five years.

Small Communities

  • Increases the total amount authorized for Essential Air Services each year from $127 million to $200 million.
  • Requires 50% of over-flight fees collected in excess of $50 million be dedicated to EAS.
  • Authorizes the Secretary to enter into long-term EAS contracts that would provide more stability for participating air carriers.
  • Reduces local share of AIP projects from 10% to 5% for economically depressed communities.
  • Includes several provisions to mitigate the effects of increases in aviation fuel costs by increasing the existing $200 per passenger subsidy cap.
  • Extends the Small Community Air Service Development Program through fiscal year 2011, at the current authorized funding level of $35 million per year.

Consumer Protections

  • Includes several provisions to ensure passenger needs are met including a mandate that air carriers and airports submit emergency contingency plans and detail in their plans how they allow passengers to deplane following excessive delays.
  • DOT is required to publicize and maintain a hotline for consumer complaints, establish an Advisory Committee for Aviation Consumer Protection, expand consumer complaints investigated, and require air carriers to report diverted and canceled flight information monthly.
  • DOT Inspector General is asked to report on the causes of air carrier flight delays and cancellations.

Environmental Provisions

  • Includes several provisions related to the environment, noise mitigation and land use initiatives, including:
    • An environmental mitigation pilot program;
    • The phasing out of noisy Stage II aircraft;
    • An aircraft departure queue management pilot program;
    • Broadened AIP eligibility to include several energy saving terminal projects; and
    • Requirements for the FAA to build sustainable air traffic control facilities.
  • Allows airport operators to reinvest the proceeds from the sale of land that an airport acquired for a noise compatibility purpose, but no longer needs for that purpose, giving priority, in descending order to:
    • Reinvestment in another noise compatibility project;
    • Environmentally-related project
    • Another otherwise-eligible AIP project;
    • Transfer to another public airport for a noise compatibility project; or
    • Payment to the Trust Fund.
  • Provides authorization for the Continuous Lower Energy, Emissions and Noise (“CLEEN”) Engine and Airframe Technology partnership to develop, mature and certify CLEEN engine and airframe technology for aircraft over the next 10 years.

Labor

  • Modifies the dispute resolution process for proposed changes to the FAA personnel management system, and replaces it with a new dispute resolution process.
  • Applies the new dispute resolution process to the ongoing dispute between NATCA and the FAA. That is the changes implemented by the FAA on and after July 10, 2005, would be null and void and the parties will be governed by their last mutual agreement.
  • Amends the Railway Labor Act to clarify that employees of an “express carrier” shall only be covered by the RLA if they are employed in a position that is eligible for certification under FAA’s rules and they are actually performing that type of work for the express carrier.
  • Requires an assessment of training programs for controllers and air traffic technicians.
  • Requires that FAA include employee unions as stakeholders in the development and planning for NextGen.
  • Requires the establishment of a Task Force on Air Traffic Control Facility Conditions to determine whether employees are exposed to dangerous environmental conditions in their work place.
  • Requires the Secretary to establish within the FAA a working group to develop criteria and make recommendations for the realignment and consolidation of services and facilities.

Aviation Insurance

  • Extends requirement until September 30, 2012, that the FAA provide U.S. airlines’ aviation insurance from the first dollar of loss at capped premium rates, after which the requirement becomes discretionary until September 30, 2019.
  • After December 31, 2019, such insurance must be provided instead by airline industry-sponsored risk-sharing arrangement approved by the Secretary.

Next Article: Summary of Comments regarding Safety Provisions.Continue Reading U.S. House Transportation & Infrastructure Committee Holds Hearings on FAA Reauthorization Bill

The California Environmental Quality Act (“CEQA”) is once again under attack.  Governor Arnold Schwarzenegger, in a letter to President-Elect Obama, has conditioned agreement to a budget reconciliation package on the suspension of CEQA compliance for 10 highway projects, ranging from carpool lanes on Routes 50 in Sacramento and 805 in San Diego, to road…

On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA’s 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

Continue Reading FAA’s 2009-2013 Flight Plan Includes 5 More Airports Due for an Airspace Redesign