The Cities of Inglewood, Culver City and Ontario, California and the County of San Bernardino (“Cities/County”) joined together yesterday, May 30, 2013, to file a challenge to the recently approved Los Angeles International Airport (“LAX”) Specific Plan Amendment Study (“SPAS”) expansion project. The project includes: the further separation of runways on the North Airfield to allow access by A380s, B787s and other New Large Aircraft (“NLA”), as well as simultaneous approaches by other kinds of smaller, but no less impactful aircraft; addition of a new terminal; and a new off-airport transit center and people mover.
Cities/County’s action involves a challenge to the Environmental Impact Report (“EIR”) for the project, on the grounds that, among other things, the EIR fails to adequately disclose the project’s admittedly significant air quality, aircraft noise and surface traffic impacts, or to provide adequate mitigation for those impacts, including a coherent plan to disperse air traffic demand to other regional airports, such as Ontario International Airport, now operating at only 30% of its optimal capacity. A copy of Cities/County’s Petition for Writ of Mandate may be obtained by clicking here.
Similar lawsuits were also filed by the SEIU United Service Workers West, a Union representing LAX service workers and Alliance for a Regional Solution to Airport Congestion (“ARSAC”), representing residents of communities in Westchester and Playa del Rey immediately to the north of the airport.
On September 27, 2011, Governor Jerry Brown signed into law Senate Bill 292 and Assembly Bill 900, both of which are aimed at expediting, or “fast-tracking,” the litigation of lawsuits brought under the California Environmental Quality Act, 42 U.S.C. § 4321 (“CEQA”). SB292 is basically an earmark that will “fast-track” CEQA challenges to the Farmer’s Field National Football League Stadium proposed for downtown Los Angeles, next to the Los Angeles Convention Center and Staples Center, by requiring that such challenges be brought directly in California Courts of Appeals and be heard within 175 days. AB900 reaches more widely, “fast-tracking” all projects costing $100 million or more.
The stated intentions of the Bills’ sponsors are, on their faces, noble ones — to provide more job opportunities, and spur increased spending and attendant tax revenue for the State, matters which seem urgent in light of the State of California’s economy. The problems raised by the Bills are less immediate, but no less important.
In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration’s (“FAA”) long held position that “aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not,” Barnes, at 16285, and the Federal Court’s traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998).
Yet another project at Los Angeles International Airport (“LAX”) has skated under the requirements of the California Environmental Quality Act (“CEQA”). The project, the “American Airlines Commuter Facility Improvement Project,” allegedly constitutes a mere replacement of the facilities once occupied by United Airlines. Not exactly. The project actually includes, but is not limited to: (1) more than doubling the size of the passenger terminal/administration building to add passenger accommodations and office space; (2) addition of an almost 10,000 square foot building for baggage handling, office space and storage; and (3) replacement of a remote gate, accessed by foot or bus, with an enclosed contact gate such as those which are used inside the main terminals.
Despite the expansionary nature of the project, Los Angeles World Airports (“LAWA”), the Department of the owner, City of Los Angeles, responsible for operating LAX does not give so much as a passing nod to compliance with CEQA. If the project could simply be described as “new lease with American Airlines,” as a recent “Transmittal for Review of LAX Tenant Improvement Project” would have the public believe, the omission to conduct environmental review might be justified by a categorical exclusion from CEQA, 14 Cal. Code Regs. section 15301. That exclusion, however, does not apply here. The project, far from being “negligible” in scope, clearly constitutes a massive expansion of the previous passenger hold room and other passenger serving facilities.
In the January 9, 2009, edition of the Federal Register, the FAA announced that the Record of Decision (ROD) for the development and expansion of Runway 9R/27L and other associated airport projects at Fort Lauderdale-Hollywood International Airport is now available. With the publication of this notice in the Federal Register, opponents of the project have 60 days (i.e., until Tuesday, March 10, 2009) to file a Petition for Review of the ROD and the Final Environmental Impact Statement (FEIS).
The FAA identified "Alternative B1b" as its "preferred alternative" in the ROD. That was also its preferred alternative in the FEIS. This alternative includes the expansion of Runway 9R/27L ti an overall length of 8,000 feet and width of 150 feet. The runway will extend to the east without encroaching onto NE 7th Avenue and would be elevated over the Florida East Coast Railway and U.S. Highway 1. The western extent of the runway is the Dania Cut-Off Canal. Alternative B1b also includes the following projects:
- construct a new full-length parallel taxiway 75 feet wide on the north side of Runway 9R/27L with separation of 400 feet from 9R/27L;
- contruct an outer dual parallel taxiway that would be separated from the proposed north side parallel taxiway by 276 feet;
- construct connecting taxiways from the proposed full-length parallel taxiway to existing taxiways;
- construct an Instrument Landing System (ILS) for landings on Runways 9R and 27L;
- Runway 13/31 would be decommissioned and permanently closed due to the increased elevation of the expanded Runway 9R/27L at its intersection with Runway 13/31.
Opposition to the expansion centers around the increased noise that the expansion will bring, as well as damage to the surrounding environment.
Here are a few court decisions that have come down recently regarding aviation and airport development law:
- Nadal v. FAA, Case No. 08-9509 (10th Cir., April 30, 2008). Petitioner sought review of a NTSB order affirming the forty-day suspension of his pilot certificate. The court concluded that his petition for review was not timely filed and he did not show reasonable grounds for the failure, so it dismiss the petition for lack of jurisdiction.
- Clark County v. FAA, Case No. 06-1377 (D.C. Cir., April 18, 2008). County petitioned for review of FAA’s decision that a proposed windfarm would not obstruct airspace near the proposed Ivanpah Valley airport by interfering with radar systems at the new airport. The court held that the FAA did not have sufficient evidence in the record to support its conclusion in its order and therefore did not satisfy the reasoned decionsmaking requirement. To the contrary, the court pointed out that the only evidence in the record supported conclusion that the windfarm turbines would exceed the FAA’s obstruction standards and would interfere with radar systems at the new airport.
- BMI Salvage Corp. v. FAA, Case No. 07-12058 (11th Cir., April 8, 2008). Tenant and sublessee filed complaint alleging that airport unjustly discriminated against it in violation of the airport’s grant assurances by awarding long-term development leases to other tenants, but not to it. The court held that there was insufficient evidence in the FAA’s record to support a finding that differences between aircraft demolition business and aircraft repair business justified airport’s disparate treatment and that there was insufficient evidence to support FAA’s finding that aeronautical service providers were not “similarly situated.”
- St. John’s United Church of Christ v. FAA, Case No. 06-1386 (D.C. Cir., March 21, 2008). FAA gave the City of Chicago a grant under the Airport Improvement Project for Chicago’s expansion of O’Hare airport. A group of villages and other entities in the surrounding area petitioned for review of the FAA’s grant. The court held that the petitioners lacked standing to challenge the grant, since they failed to show that the grant had caused their injuries or that the court redress any injuries that they might incur, since the the federal money played a “minor role.”
- R/T 182, LLC v. FAA, Case no. 07-3678 (6th Cir., March 11, 2008). The owner of an airplane appealed the decision of the FAA that allowed a local airport to charge maintenance fee for based aircraft, but did not charge the fee to transient users. The court decided that there was substantial evidence to support the FAA’s determination that airport’s based-users were not similarly situated to transient users and that since the process resulting in the FAA’s order was adjudicatory in nature, it was not subject to notice -and-comment procedures under the Administrative Procedures Act.