In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  


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In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000, et seq., to the 114 mile high-speed passenger rail line between Fresno and Bakersfield, California is preempted in its entirety by federal law.  The Board’s decision is not only surprising in the context of prevailing legal authority, but also potentially important in the context of other modes of transportation.  

The decision is surprising because it went far beyond the scope of the petition filed by the responsible State agency, the California High-Speed Rail Authority (“Authority”).  The Authority asked only that the Board find that injunctive relief as a remedy under CEQA is foreclosed as preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), Pub.L. 104–88, 104th Congress, and is, thus, barred under 49 U.S.C. § 10501(b) which gives the Board jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,” 49 U.S.C. § 10501(b)(2).  The Authority further argued that, as it had completed CEQA review in May 2014, the Board need not address whether CEQA is generally preempted, but need only address whether injunctive relief resulting in a work stoppage is available as a remedy in the lawsuits filed against the Authority.
 
Despite the Authority’s limited petition, the Board expanded its ruling to include a finding that § 10501(b) prevents the states and localities from intruding into matters that are “directly regulated by the Board (e.g., rail carrier rates, services, construction, and abandonment),” Docket, p. 8, and from “imposing requirements that, by their nature, could be used to deny a rail carrier’s ability to conduct rail operations.”  Id.  The Board employs the rationale that “Section 10501(b) [ ] is intended to prevent a patchwork of local regulation from unreasonably interfering with interstate commerce.”  Id.  
 
The Board recognizes, however, that “[n]ot all state and local regulations that affect rail carriers are preempted by § 10501(b).”  Id. at p. 9.  It acknowledges further that “State and local regulation is appropriate where it does not interfere with rail operations,” Id., and that “[l]ocalities retain their reserved police powers to protect the public health and safety so long as their actions do not unreasonably burden interstate commerce.”  Id.  
 
On that basis, and ignoring that “states and towns may exercise their traditional police powers . . . to the extent that the regulations ‘protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions,’” Id. citing Green Mountain v. Vermont, 404 F.3d 638, 643 (2nd Cir. 2005), the Board concluded that CEQA was categorically preempted as a “state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the Board has specifically authorized, thus impinging upon the Board’s exclusive jurisdiction over rail transportation,” Docket, p. 10, citing DesertXpress Enters., LLC-Pet. For Declaratory Order, slip op. at 5.  The Board further found that CEQA lawsuits “can regulate rail transportation just as effectively as a state statute or regulation.”  Id. at 14, citing, inter alia, Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) [explaining that common law suits constitute regulations].  
 
The Board decision, however, appears to be based on two fundamental misconceptions. 
 


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Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions.  See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).  

Earth Justice and Friends of the Earth originally petitioned EPA in 2007, pursuant to CAA Section 231, which directs EPA to study air pollutants from aircraft “to determine (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emissions.”  Section 231(a)(1).  Under subsections (a)(2) and (3), if EPA finds that emissions from aircraft and aircraft engines cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare,” it “shall” propose and issue standards to control such emissions.  In 2010, EPA had still not responded to their 2007 Petition.  
 


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