In a somewhat ironic twist on the Federal Aviation Administration’s (“FAA”) usual position, on March 26, 2018, FAA ruled in favor of the Town of East Hampton, New York (“Town”), proprietor of the East Hampton Airport, in a challenge by the National Business Aviation Association (“NBAA”) under FAA regulation 14 C.F.R. Part 16, to the expenditure of airport revenues in defense of the Town’s self-imposed airport noise and access restrictions.

The origin of that determination is equally anomalous.  In or about 2015, the Town enacted three local laws limiting aircraft noise at the airport, including restriction on: (1) access by “noisy” aircraft to only one arrival and departure per week; (2) mandatory nighttime curfew from 11:00 p.m. to 7:00 a.m.; and (3) an extended curfew from 8:00 p.m. to 9:00 a.m. on “noisy” aircraft.  
 
These local restrictions, however, directly contravene federal law set forth in the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”) which has, since 1990, affirmatively preempted local laws which impose: “(A) a restriction on noise levels generated on either a single event or cumulative basis; . . . (D) a restriction on hours of operation.”  49 U.S.C. § 47524(c)(A) and (D).  Predictably, East Hampton’s local regulations were successfully challenged in the U.S. Court of Appeals for the Second Circuit.  Ultimately, the Petition for Writ of Certiorari, seeking to overturn the Second Circuit’s determination, brought by the Town in the United States Supreme Court, was met with an equal lack of success, despite the Town’s powerful ally, the City of New York.  
 
Apparently, in a last ditch attempt to thwart any future initiatives to enact similar restrictions, the NBAA brought its fight to the FAA.  The gravamen of NBAA’s challenge was the Town’s alleged violation of its contractual obligation (as airport operator) to FAA pursuant to 49 U.S.C. § 47107(k), prohibiting “illegal diversion of airport revenue.”  That section includes, among other things, “(A) direct payments or indirect payments, other than payments reflecting the value of services and facilities provided to the airport.”  49 U.S.C. § 47107(k)(2)(A), see also 49 U.S.C. § 47017(b).  
 


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On January 17, 2017, the United States House of Representatives passed H.R. 5, the “Regulatory Accountability Act of 2017.”  Buried deep within its pages is Title II, the “Separation of Powers Restoration Act.”  That title, although only two sections long, dramatically changes the legal landscape for challenges to the actions of federal regulatory agencies.  Currently, in adjudicating challenges to administrative rulemaking and implementing actions, the federal courts invoke the precedent established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).  In that case, the Supreme Court held: “We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…”  In adopting Chevron, the Supreme Court effectively gives administrative agencies almost complete deference, not only in the interpretation of the regulations they implemented, but also, and more controversially, in the way the agencies carry out the mandates of those regulations.  Thus, challengers seeking to use the judicial system to point out and rectify what are perceived as misapplication of the regulations, butt up against the reluctance of the courts to question or interfere with the agency’s construction of the regulation or the evidence and its application in carrying out the agency’s order.  In Title II, the Congress has stood the current deferential standard on its head. 


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Predictably, the Federal Aviation Administration (“FAA”) has weighed in strongly in opposition to the City of Santa Monica’s (“City”) plan to close the Santa Monica Airport (“Airport”) within the next two years.  The City, owner and operator of the Airport, plans to begin the process of closure, including cancellation and/or modification of leases held by various aeronautical service providers, such as providers of fuel, maintenance and hangar storage.  Those Airport incumbents are already paying rent on a month-to-month basis, subject to summary eviction. 

The apparent basis of Santa Monica’s position is that: (1) its obligation to maintain the airport is based solely on the terms of its contract with FAA for the provision of funding; and (2) according to its terms, that contract expires 20 years after the FAA’s last grant of funding.
 
The FAA’s position, obviously, differs dramatically.  The agency claims that, according to the terms of a $240,000 federal grant to the City in 2003, the City is obligated to keep the Airport open until at least 2023, see, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  Moreover, the FAA asserts that, under the terms of the transfer agreement governing the transfer of the airport property from the military back to the City after World War II, the City is obligated to keep the Airport open in perpetuity.
 


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The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
 
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 
 


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Airports and airlines across the nation last week welcomed the introduction of two bills aimed at alleviating mounting congestion in airport security lines by increasing TSA efficiency and reallocating billions of dollars in security fees paid by passengers.
 
The FASTER Act (H.R. 5340) is aimed at ensuring passenger security fees are used for aviation

The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment.  Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.   

The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown.  Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  The City of Phoenix instituted a two-prong approach in disputing this determination.  It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.  
 
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
 


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On April 19, 2016, the full Senate of the United States passed the “Federal Aviation Administration Reauthorization Act of 2016” (“FAA Act”), which had been previously passed by the full House of Representatives in February, 2016.  The FAA Act contains several notable provisions, the first of which, Section 2142, regarding federal preemption of local drone regulations, was approved by the Senate Commerce, Science and Transportation Committee on March 17, 2016, and reported in this publication on March 31.  

The FAA Act, as finally approved by the Senate, devotes substantial additional space to unmanned aircraft systems (“UAS”), and, most notably for this purpose, Section 2141, “Carriage of Property by Small Unmanned Aircraft Systems for Compensation or Hire.”  (Section 2141 will be codified in the main body of the legislation at Section 44812.)  That provision was clearly authored by Amazon, which has made considerable noise about the capability of UAS to deliver its products expeditiously and at low cost.  The FAA Act gives the Secretary of Transportation two years to issue a final rule authorizing the carrying of property by operations of small UAS within the United States.  
 
The requirement for the contents of the final rule is, however, clearly specified in the Act.  
 


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On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 


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In what looks like a swap of increased capacity for reduced hours of operation, brokered by Representative Adam Schiff, the City of Burbank has offered the Federal Aviation Administration (“FAA”) a 14 gate replacement terminal at Bob Hope Airport (“Airport”) in return for which the FAA is being asked to approve a mandatory nighttime curfew

On October 1, 2015, the United States Environmental Protection Agency (“EPA”) adopted stricter regulation on ozone emissions that will fall heavily on California, and most particularly on the transportation sector, including airlines.  The new standard strengthens limits on ground level ozone to 70 parts per billion (“PPB”), down from 75 PPB adopted in 2008.  The EPA’s action arises from the mandate of the Clean Air Act (“CAA”), from which the EPA derives its regulatory powers, 42 U.S.C. § 7409(a)(1), and which requires that pollution levels be set so as to protect public health with an “adequate margin of safety.  42 U.S.C. § 7409(b).  

The change has inspired significant controversy throughout the country, but most particularly in Southern California which purportedly has the nation’s worst air quality and has already failed to meet previous ozone standards.  The issues arise out of the likelihood that the new standards will require steep emissions cuts falling most heavily on the transportation sector including trains, trucks, ships and, not least, aircraft.  


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