Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

The Government Accountability Office published the testimony that Dr. Gerald Dilllingham gave to the  House Subcommittee on Aviation regarding the FAA's efforts to hire and train more air traffic controllers. 

The Dr. Dillingham's testimony, entitled "FAA's Efforts to Hire, Staff and Train More Air Traffic Controllers Are Generally on Track, but Challenges Remain" addresses the FAA's efforts to hire and train nearly 17,000 controllers over the next decade to replace over 15,000 current controllers, most of whom will be retiring. The challenge to the FAA is assuring that the Air Traffic Control facilities are adequately staffed with a proper mix of new trainees and fully certified controllers.  Dr. Dillingham, as well as the NTSB, strongly believe that having controllers work more overtime will lead to serious consequences.

Moreover, this massive hiring effort will occur as FAA begins to implement the next generation air transportation system (NextGen), which will integrate new technologies and procedures into air traffic operations and fundamentally change the role of air traffic controllers from controlling individual aircraft to managing air traffic flow. Hence, FAA will need to train experienced controllers to use the new technologies at the same time that it hires and trains new controllers to operate both the current and the new technologies.

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Here are a few court  decisions that have come down recently regarding aviation and airport development law:

1. 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.
2. 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.
3.  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."
4. 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."
5. 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.

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Here are quick takes on recent news items concerning aviation and airport development during the past week.

• FAA Bans Pilots and Air Traffic Controllers From Using the Anti-Smoking Drug Chantix.  Apparently, the smoking cessation drug may cause serious side effects, including psychiatric disorders, including suicide.  FAA felt that they were serious enough to ban pilots and air traffic controllers from using the drug.  Many bloggers picked up the story.  Here are just a sample of the many blogs that picked up this story:
  • Airline Pilot Forum
  • InjuryBoard.com
  • BernieHund:  The Political Watchdog
• FAA Tests New Systems For Detecting Ground Debris.  The FAA has begun to test several different systems around the country to ensure that the runways are debris-free.  Debris, if sucked into jet engines can cause severe damage.  Whether this is separate and apart from the NextGen technology, remains to be seen.
  
• In the Good News/Bad News department:  Flight Delays Cost $41billion in 2007 to the industry and to passengers; and New Air Traffic Software is proven to save $27 million in delays. The disparity between the two numbers is astounding!  Granted, the new software is only one portion of the "new technology" effort to cut down on delays.  Blogs:
  
  • chisblassternardone
  • iTravelnet Travel Directory
  • Aircraft Maintenance Technology
• Citing lessons learned from reports submitted by the Federal Aviation Administration and American Airlines in response to last month’s grounding of hundreds of MD-80 aircraft, the U.S. Secretary of Transportation called on the FAA and airlines to better ensure mutual understanding of what constitutes compliance with an Aviation Directive.  Blogs:
  • Aviation Safety Network
  • ATW Daily News
• American Airlines and FAA differ about April groundings.  The finger-pointing has begun.  American claims that although the maintenance shortcomings did not justify canceling all of the flights, they were told by a FAA inspector to keep the planes on the ground.  FAA says the decision to cancel the flights was solely American's.  Interesting story to watch as the FAA and the airlines develop a new relationship post-MD80 Wiring debacle.  Blogs:
  • New York Times
    
  • US News - Videos
• FAA declares proposed Boston Tower too tall.  FAA declares that 1000 foot tower in downtown Boston might be an obstruction, possibly in the flight path of a plane aborting a landing at Logan and unexpectedly veering off over downtown Boston at low altitude.  As property near airports becomes more and more desirable, this sort of problem will only increase.  Blogs:
  • WBZ Radio Boston. 
    
  • ansoncfit - Anson Stewart's Website. 
    
  • Eco-Friendly Housing. 
    
• FAA Misses Deadline in Mechanic's Probe.  The FAA has failed for the third time to provide records to federal investigators conducting a probe into how the agency tracked falsely certified airplane mechanics.  This comes at a time when the FAA has little or no political capital to spend on Capitol Hill to straighten things out.  Blogs:
  • Crosswalk.com.
  • azzblog - airline info.

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The FAA first proposed limiting scheduled operations at Newark Liberty in a proposed order that was published in March 18, 2008, Federal Register.  The FAA has now, on May 21, 2008, issued its Order limiting scheduled operations at Newark Liberty Airport.  In the Order states:

• Takes effect at 6:00a.m. on June 20, 2008;
  
• Total air carrier operations will not exceed 81 per hour between the hours of 6:00 a.m. and 11:00 p.m.;
  
• The order sunsets on October 24, 2009;
  
• Air carriers have been assigned "Operating Authorizations," for specific time slots and operations (i.e., departure or arrival);
  
• In order to maintain the Operating Authorizations, the air carrier must use them at least 80% of the time;
  
• The Operating Authorizations can be sold and traded, so long as the air carrier has maintained the 80% usage prior to selling or trading. 
  

The FAA hopes that this will alleviate congestion and delays at Newark Liberty.

Secretary of Transportation Mary Peters told FAA’s Aviation Forecast Conference in March, 2008, that she believed that the caps at Newark will actually result in an increase in operations at Newark Liberty. She stated that “overall, the caps at Newark allow 30 more operations per day than were offered last summer – just more reasonably spaced."  The question remains, however, whether caps will achieve the goals of reducing delays and congestion without an economic impact on the airlines and quality of life impact on the surrounding communties. 

Alfred Kahn, the Chairman of the Civil Aeronautics Board under President Carter, in a recent working paper, stated his belief that congestion pricing would be a better approach.  He argues that the allocation of scarce airport resources is an economic problem and should be treated as such, therefore, air carriers should pay for the privilege of taking-off or landing at particular times.

With the summer travel season almost here, we will see what effect the caps at Newark and JFK will have on delays at the airport and noise in the community.

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In the May 21, 2008, issue of the Federal Register, the Federal Aviation Administration (FAA) proposed a new rule affecting two airports that are a part of the East Coast Airspace Redesign.  The FAA proposes to establish procedures to address congestion in the New York City area by assigning slots at JFK and Newark Liberty Airports in a way that allows carriers to respond to market forces to drive efficient airline behavior.

• The FAA's proposed rule is similar in many respects to its proposal for LaGuardia airport. 
  
• This proposal, however, takes into account the fact that both JFK and Newark have a large number of international flights, which implicates FAA's international obligations. 
  
• The FAA proposes to
  
  • extend the caps on the operations at the two airports,
    
  • assign to existing operators the majority of slots at the airports, and
    
  • create a market by annually auctioning off a limited number of slots in each of the first five years of this rule.

The proposed rule offers two alternatives in the method of assigning slots at the airport. Under the first alternative:

• the assignment of slots at JFK and Newark would be conducted through a uniform mechanism.
  
• The FAA would auction off a portion of the slots and would use the proceeds to mitigate congestion and delay in the New York City area.
  

Under the second alternative, the same auction procedure would apply at Newark as under the first alternative but at JFK the auction proceeds would go to the carrier holding the slot rather than to the FAA.

For both alternatives, this proposal also contains:

• provisions for minimum usage,
  
• capping unscheduled operations, and
  
• withdrawal for operational need.
  

The FAA proposes to sunset the rule in ten years.

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At a May 6, 2008, hearing of the U.S. House Subcommittee on Aviation, the FAA sought to dispel several "myths" concerning the effect that aircraft emissions of greenhouse gases have on the environment.  Coming a little over one month after the EPA announced its plans to issue an Advance Notice of Proposed Rulemaking for aircraft emissions of GHG (see, "EPA Plans to Release an Advance Notice of Proposed Rulemaking Emissions" below),  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that there were three myths that needed to be put to rest.  First, Mr. Elwell stated that aircraft emissions account for only 3% of GHG emissions, and “the largest aviation market in the world is burning less fuel today than in 2000.”  Indeed, Mr. Elwell, said, aviation in general and aircraft in particular are becoming more fuel efficient, now outstripping automobiles in terms of energy intensity - that is automobiles burn more BTUs per passenger mile than aircraft.  This increase in fuel efficiency and the attend reduction in GHG emissions was one of the primary themes of several other witnesses as well:

• Bill Glover, Managing Director, Environmental Strategy, Boeing Commercial Airplanes;
• James C. May, President and CEO, Air Transport Association of America, Inc.;
  
• Douglas E. Lavin, Regional Vice-President (North America), International Air Transport Association; and
  
• James K. Coyne, President, National Air Transportation Association.

Second, Mr. Elwell stated that CO2 emissions by aircraft at altitude do not have any more (or any

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At a April 2, 2008, hearing entitled "From the Wright Brothers to the Right Solutions:  Curbing Soaring Aviation Emissions," the EPA indicated its plans to release an advance notice of proposed rulemaking (ANPRM) soon to solicit comments regarding curbing greenhouse gas (GHG) emissions from aircraft engines.  Robert Meyers, principal deputy assistant administrator for the EPA Office of Air and Radiation, testified before the House Select Committee on Energy Independence and Global Warming that the agency had received petitions urging EPA to determine that aircraft emissions cause or contribute to air pollution and endanger public health. The petitions further urge EPA to adopt regulations to control emissions.  The FAA also presented its thought at the Hearing.  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that the FAA believed that strides were already being made toward reducing GHG emitted from aircraft and counseled patience, since aircraft emissions account for only 3% of GHG in the United States.

Also testifying were:

• James C. May, President and CEO, Air Transport Association of America
  
• Deron Lovaas, Transportation and Energy Project Co-Director, Natual Resources Defense Council and
• Thomas S. Windmuller, Senior Vice President, International Air Transport Association
  

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As is well known, the FAA's Record of Decision on September 5, 2007 (and subsequently amended on October 5, 2007) regarding the NY/NJ/PA Airspace Redesign generated a host of litigation.  Twelve Petitions for Review were filed in three different Federal Circuit Courts of Appeal. Seven petitions from counties, municipalities and organizations in Pennsylvania, Delaware and New Jersey were filed in the Third Circuit, located in Philadelphia. Three petitions from the State of Connecticut as well as towns and groups of towns in Connecticut were filed in Second Circuit, located in New York. And two petitions from one county in New York and a New York organization were filed in the D.C. Circuit. Because the first petition filed was in the D.C. Circuit, the Court, by  orders on February 14, 2008 and on March 10, 2008, consolidated all of the petitions in the D.C. Circuit.

Since all of the petitions were consolidated, the D.C. Circuit requested that all of the petitioners devise a proposal as to the format for briefing on this matter. Pursuant to the D.C. Circuit Court of Appeals' March 18, 2008, Order, on April 17, 2008, all of the Petitioners filed a Joint Proposal for Briefing with the court.  Following the court's strict guidelines, the Petitioners suggested to the court that they file one brief covering all of the issues presented by all of the Petitioners that is substantially longer than a normal brief.  Contained in the one brief, however, will be the specific complaints of each of the petitioners. In addition, the Petitioners set out a briefing schedule that took into account the fact that twelve groups of attorneys would be working on a single brief. Thus, the Petitioners suggested that their brief be due on August 1, 2008, the FAA’s brief to be due on October 31, 2008, and the Petitioners’ Reply brief be due on December 19, 2008. These dates and the format of the briefs were agreed to by the Department of Justice, who is representing the FAA in all of the matters.

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On April 11, 2008, a group of concerned cities, companies and citizens filed comments regarding the EPA's proposed revisions to the General Conformity Regulations (see earlier post "EPA Proposes Revisions to General Conformity Rules).  To see the Group's actual Comment letter as filed, click here.

The General Conformity Rules, which the EPA promulgated in 1993 and has not substantially updated since then, require Federal agencies to evaluate the effect their actions will have on air quality prior to their taking any such action.  The Group expressed concern that the revisions that the EPA was suggesting took away some of the protection that the Clean Air Act granted citizens in section 176 (42 U.S.C. 7506).  In addition, the Comment letter stated that the EPA:

• should not allow Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
• should not allow Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
• should not allow the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
• should add a definition of applicability analysis.
• should delete the "presumed to conform" program, since only one agency has taken advantage of it in 15 years and it most likely violates the Clean Air Act and the Constitution.

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