On August 27, 2010, the U.S. District Court for the Eastern District of Pennsylvania declared that a Pennsylvania statute concerning property acquisition for airports is preempted.  Under the state statute, the City of Philadelphia would have been required to obtain Tinicum Township's approval to acquire property in the township in connection with the planned PHL Capacity Enhancement Project.  The court found that the expansion project was related to aviation safety, that aviation safety is subject to exclusive federal control, and that the state statute therefore is preempted by implication.  Click on the link below to view and download a copy of the court's opinion.

On July 21, 2010, the Federal Aviation Administration (FAA) published a final rule updating the regulations codified at 14 C.F.R. Part 77.  Part 77 governs the safe, efficient use and preservation of the national airspace and outlines the process by which FAA reviews proposed new structures, or alterations of existing structures, to determine whether the structures may create hazards to air navigation.   The new regulations include specific factors identified by Congress in Public Law 100-223 that FAA must consider when conducting aeronautical studies.  Other key changes include extending the required notice period from 30 days prior to construction to 45 days prior to construction; new notice requirements for construction near private-use airports with instrument approaches; and new information regarding the processing of petitions for discretionary review.  The new rule also requires FAA to evaluate electromagnetic effects, but FAA deferred its proposal to implement formal standards for electromagnetic interference until it can further coordinate with relevant agencies.  The FAA also deferred new rules specifically addressing wind and solar projects around airports.  The new rule will become effective on January 18, 2011.

Click on the link below to view and download a copy of the Federal Register notice containing the new rule.

On July 13, 2010, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Department of Transportation's amendments to the 1996 Policy Regarding Airport Rates and Charges.  The amendments to the policy recognized a congested airport's power to:  (i) include the cost of an airfield project under construction and the cost of a secondary airport in the rate base, (ii) impose a two-part landing fee to include a per-operation charge and a weight-based charge, and (iii) to impose the higher charges during peak periods.  In Air Transport Association v. DOT, the court rejected each of petitioner's challenges to the amended policy.  The court concluded, "As the airspace is used ever more intensively, it is unsurprising that the Department would update its approach to landing fees in an effort to relieve airport congestion.  So long as it complies with the applicable statutes, its creativity should be welcomed on its merits, not spurned for its novelty."  Click on the link below to view and download a copy of the court's opinion.

On June 23, 2010, the U.S. Court of Appeals affirmed two decisions by the U.S. District Court finding in favor of the Barnstable Municipal Airport Commission.  Appellant, Rectrix Aerodrome Centers, alleged violations of the Racketeer Influenced and Corrupt Organizations Act, federal antitrust statutes and the U.S. Constitution arising out of the Airport Commission's reservation of the exclusive right to sell fuel at the Airport.  In Rectrix Aerodrome Centers, Inc. v. Barnstable Municipal Airport Commission, the Court of Appeals found that the District Court properly dismissed Rectrix's anti-trust claims and properly granted summary judgment for the Airport Commission on the RICO and constitutional claims.  Click on the link below to view and download a copy of the court's opinion. 

On June 11, 2010, several environmental interest groups filed a complaint in the U.S. District Court for the District of Columbia challenging the U.S. Environmental Protection Agency's failure to implement rules on greenhouse gas emissions by aircraft and other mobile sources.  Plaintiffs filed a petition in December 2007 requesting that USEPA adopt and implement regulations on GHG emissions from aircraft.  Plaintiffs allege that USEPA's failure to respond to the petitions violates the Clean Air Act and request that the court direct USEPA to issue findings and, if warranted based upon those findings, initiate rulemaking to establish limits on emissions.  Click on the link below to view and download a copy of the complaint.

On June 8, 2010, the Department of Transportation proposed to expand the requirements imposed on airlines to address extended on-board delay and provide other protections to passengers.  As previously reported in Airport Law News, DOT adopted rules in December 2009 prohibiting tarmac delays greater than three hours.  DOT proposes to expand the rules significantly by, for example, subjecting foreign air carriers to the rules, requiring contingency plans for small- and non-hub airports, requiring reports to DOT, increasing potential compensation for being involuntarily bumped from oversold flights, and demanding notice for baggage fee increases.  Comments must be submitted by August 9, 2010.  Click on the link below to view and download a copy of the Federal Register notice.

On May 10, 2010, the Department of Transportation published a Notice of Proposed Rulemaking regarding the Disadvantaged Business Enterprise (DBE) program found at 49 C.F.R. Part 26.  DOT proposes a number of changes to the DBE program, including the following: (a) new compliance requirements for recipients who fail to meet their overall DBE participation goal in any given fiscal year; (b) improving post-award compliance by requiring good cause shown before a prime contractor can terminate or substitute a DBE subcontractor; (c) requiring additional written certification from recipients confirming their oversight of DBE participation; (d) permitting recipients to provide year-to-year projections of DBE participation within the framework of an overall goal submitted every three years; (e) making inflationary and other adjustments to the personal net worth criteria for DBE certification; (f) adding provisions to facilitate interstate certification of DBEs and otherwise modifying and updating the certification requirements; and (g) adding provisions to foster small business participation.  Comments must be submitted by July 9, 2010.  Click on the link below to view and download a copy of the Federal Register notice.

On Tuesday, April 20, the U.S.  Environmental Protection Agency Administrator Lisa Jackson signed an Advanced Notice of Proposed Rulemaking on Lead Emissions from Piston-Engine Aircraft.  Through it, EPA is seeking public comment on a range of issues relating to leaded aviation gasoline, including calculation of lead emissions and fuel-distribution systems.  The ANPRM could lead to proposed rules regulating the emissions of lead from aircraft.  Public comments will be due 60 days from publication in the Federal Register.  The ANPRM contains a good survey of available information on lead monitoring near airports (air and soil), modeling results and exposure.  This information will provide focus and information on the issue of lead exposures from avgas to the general public and press, to which airports may need to respond.  The ANPRM can be found here. 

On April 5, 2010, the United States Environmental Protection Agency (“EPA”) published amendments to the general conformity rules under the Clean Air Act.  The general conformity rules require federal agencies like the Federal Aviation Administration (“FAA”) to analyze whether their proposed actions are consistent with State Implementation Plans for air pollutants like ozone.  The amendments provide some additional flexibility for meeting the conformity rule’s requirements and may prove useful for some airport capital and airspace projects.  EPA did not make one change that Airports Council International (“ACI”) and others have long sought:  exclusion of construction-related emissions from the conformity requirements.  EPA found that construction emissions from projects with a federal connection can affect compliance with air quality standards and, thus, that they should be assessed in the conformity reviews.  A copy of the final rule is found here.