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.
On August 21, 2012, in a highly unusual disagreement with a rulemaking action by a Federal agency, the D.C. Circuit Court of Appeals sent the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution, or Transport, Rule, governing sulfur dioxide (“SO2”) and oxides of nitrogen (“NOx”) emissions, back to the agency with firm instructions to try again, and, next time, do a better job. What makes this decision somewhat unusual is that cross-state rules had previously been implemented by EPA for PM2.5 and ozone, and upheld by the D.C. Circuit, see, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
In its decision in EME Homer City Generating, L.P., et al. v. EPA, et al., Case No. 11-1302, the D.C. Circuit took strong issue with EPA’s attempt to meet its responsibility under Clean Air Act § 110(a)(2)(D)(i)(I), 49 U.S.C. § 7410(a)(2)(D). That section, the “good neighbor” provision, requires, in pertinent part, that, after EPA sets National Ambient Air Quality Standards (“NAAQS”), 42 U.S.C. § 7409, and designates areas within each state which exceed the NAAQS, 42 U.S.C. § 7407(d), or “nonattainment” areas, states must develop a state implementation plan (“SIP”), 42 U.S.C. § 7410, which includes provisions prohibiting any emissions source or activity “which will – contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.” The D.C. Circuit found major legal flaws in EPA’s Transport Rule.
On July 27, 2012, Los Angeles World Airports (“LAWA”) released the “Specific Plan Amendment Study Draft Environmental Impact Report” (“DEIR”), involving, among other things: (1) a realignment and extension of runways to the east on the North Airfield Complex, including a separation of the two north runways to permit their unimpeded use by the largest operating aircraft, A-380s and 747-800s (“Category VI”); (2) expansion and renovation of the terminals; and (3) associated movement and potential undergrounding of surrounding thoroughfares including Lincoln Boulevard. Sides are already forming over the proposed plan.
In a surprising climax to the long controversy concerning helicopter flights and attendant noise impacts on the North Shore communities of New York’s Suffolk County, the FAA, on July 6, issued a “Final Rule,” making mandatory the current voluntary flight path for helicopters one mile offshore, but allowing the “Final Rule” to sunset on August 6, 2014, two years from the effective date, “unless the FAA determines a permanent rule is merited.” The route commences 20 miles northeast of LaGuardia, near Huntington, New York, and remains approximately one mile offshore until reaching Orient Point, near the eastern end of Long Island, with deviations allowed for safety reasons, and to allow helicopters to transit over land to reach their ultimate destinations.
The FAA discloses that its decision to promulgate the original voluntary rule arose from the numerous complaints of noise from helicopter overflights brought to its attention by Senator Charles Schumer of New York and Representative Tim Bishop of Long Island’s North Shore in October, 2007. The subsequent mandatory rule apparently resulted from continued political pressure by residents who are “unbearably and negatively” impacted, particularly during the summer months when the number of helicopters, as well as deviations from the voluntary routing, seem to increase dramatically. The real surprises in the “Final Rule,” however, are FAA’s rationale for: (1) making the route mandatory, a rationale which seems to apply equally to currently voluntarily procedures at other airports; and (2) the Rule’s sunset provision.
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.
Residents of Eastern Long Island are awaiting the Federal Aviation Administration (FAA) Final Rule regarding the New York North Shore Helicopter Route. If the Final Rule tracks the FAA’s Notice of Proposed Rulemaking (NPRM), helicopters flying along Long Island’s northern shoreline will be required to use the North Shore Helicopter Route. Pilots may deviate from the route only if necessary for safety or when required by weather conditions. The North Shore Route was added to the New York Helicopter Chart in 2008. However the route was developed for visual flight rules (VFR), and use of the route has been voluntary. The new rule would direct pilots to fly at an altitude of 2,500 feet, one mile offshore, and require that when crossing overland they overfly the least populated areas.
The FAA cites 49 U.S.C. sections 40103 and 44715 as authority for the rule. Under section 40103(b)(2), the FAA Administrator has authority to “prescribe traffic regulations on the flight of aircraft (including regulations on safe altitudes) for . . . (B) protecting individuals and property on the ground.” Section 44715(a) provides that to “relieve and protect the public health and welfare from aircraft noise” the Administrator, “as he deems necessary, shall prescribe . . . (ii) regulations to control and abate aircraft noise . . .” If implemented, the Rule would establish the first-ever mandatory regulations that will set minimum altitudes and establish flight patterns for helicopters on Long Island based on noise abatement, rather than on safety or efficient airspace management. The FAA acknowledges in the NPRM that the rule is in response to complaints from, among others, New York Senator Charles Schumer and former senator Hillary Clinton.
The Los Angeles International Airport North Airfield Safety Study Final Report (“Final Report”), published on May 11, 2010, looks very much like the draft. The Final Report, like the draft, concluded that no safety problem exists on the two runways of the North Airfield. It further concludes that an additional separation of the runways by 340 feet is unnecessary for safety purposes, although useful for increasing capacity. Finally, the study concludes that an additional separation of 100 feet, originally proposed by the Cities of Inglewood and El Segundo, which would allow the addition of a center taxiway, would be sufficient to accommodate any remaining safety concerns. The study, however, reaches the correct conclusions for the wrong reasons.