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On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories. 

This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation.  In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions.  The High Court effectively upheld those rules by refusing to hear the challenges against them.  The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses.  EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals.  The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues. 
 Continue Reading High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations

After protracted litigation challenging plans to build 130 wind turbines, each 440 feet tall, in a 25 square mile area of Nantucket Sound, the D.C. Circuit last month denied petitions for review of the Federal Aviation Administration’s (“FAA”) determination that the turbines would pose no hazard to air navigation.

The petitioners, the Town of Barnstable, Massachusetts and a non-profit group of pilots and others, challenged the no hazard determinations based on the FAA’s failure to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.  The D.C. Circuit had previously vacated a 2010 no hazard determination based on the FAA’s failure to consider potential adverse effects of the turbines on pilots operating under visual flight rules (“VFR”) and the potential that electromagnetic radiation from the turbines would interfere with radar systems in nearby air navigation facilities.

Noting the circumstances had changed after the FAA upgraded the radar and beacon at Otis Airfield, the circuit court’s January 22, 2014 opinion upheld the FAA’s 2012 no hazard determinations.  The court concluded that the FAA properly based its determinations on aeronautical studies conducted according to the FAA Handbook, Procedures for Handling Airspace Matters, FAA Order JO 7400.2J (February 9, 2012), of which Section 3 on identifying and evaluating aeronautical effect was applicable.  According to the court, the FAA could reasonably view its Handbook procedures implementing the Secretary of Transportation’s regulations as requiring a threshold finding before triggering the need for a more advanced “adverse effects” analysis under Handbook Section 6–3–3 which states that “[a] structure is considered to have an adverse effect if it first … is found to have physical or electromagnetic radiation effect on the operation of air navigation facilities.”
 Continue Reading D.C. Circuit Upholds FAA’s “No Hazard” Determinations Regarding Electromagnetic Radiation from Nantucket Sound Wind Turbines

Predictably, Judge John Walter of the Los Angeles Federal District Court summarily dismissed a lawsuit brought by the City of Santa Monica (“Santa Monica”) aimed at closing the Santa Monica Airport, based on, among other things, unconstitutional taking of property without just compensation.  The court’s decision was made on the procedural grounds that, among other things, the lawsuit was brought too late and in the wrong court.

First, the court found that Santa Monica had brought the suit after the applicable 12 year statute of limitations had expired.  28 U.S.C. § 2409(a)(g).  The court’s rationale was that Santa Monica knew as long ago as 1948 that the Federal Aviation Administration (“FAA”) had a residual claim to the property arising from the Deed of Transfer of the federal government’s lease back to the City of Santa Monica.  That residual claim, therefore, required that Santa Monica’s suit be brought no later than the early 1960s. 

In addition, the court found that, even if a claim for unconstitutional taking could be sustained under the applicable statute of limitations, it was improperly brought in the District Court, as the Tucker Act, 28 U.S.C. § 1491(a)(1) vests exclusive subject matter jurisdiction over monetary claims against the federal government exceeding $10,000 with the Court of Federal Claims.  Santa Monica does not, of course, dispute that the value of the airport property that it wishes to recover and use for other purposes exceeds $10,000. 

Although the court chose the procedural route in making its decision, there appear to be relevant substantive grounds as well.
 Continue Reading Judge Blocks City of Santa Monica’s Latest Effort to Close the Santa Monica Airport

In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County. 

Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .”  Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest.  December 17, 2013.  The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1.  The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department. 

Therein lies the rub. 
 Continue Reading El Paso County Seeks Control Over Colorado Springs Airport

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

Reliever airports, once touted as the solution to major metropolitan airport congestion and its environmental impacts on surrounding communities are now facing daunting financial and competitive challenges from the very same airports they were supposed to relieve.

Reliever airports, defined as “general aviation airports in major metropolitan areas that provide pilots with attractive alternatives to using congested hub airports,” Federal Aviation Administration (“FAA”) Advisory Circular 150/5070-6B, Appendix A, Glossary, were typically developed to occupy a market niche in their local regions.  For years, they succeeded in their task.  Since 2009, however, reliever airports throughout the country have lost substantial proportions of their passengers to the major urban airports.  In Southern California alone, reliever airports such as Ontario International Airport (“ONT”) and Long Beach Airport (“LGB”) have seen massive reductions in their passenger counts.  Now these airports are forced to take drastic steps to remain viable. 
 Continue Reading Reliever Airports Face Increasing and Competitive Woes