Financial Accommodations for Airport Tenants in Response to COVID-19
By Paul Fraidenburgh on June 18, 2020
Posted in Airports, Federal Aviation Administration (FAA)
Airport sponsors and their legal counsel have been forced by the COVID-19 pandemic to exercise judgment and make tough decisions regarding the financial accommodations they will offer their commercial aeronautical tenants to help them weather the current storm. In many ways, these decisions have mirrored the difficult decisions employers have had to make to pare down their workforces in order to survive in the wake of this public health emergency and the resultant economic downturn. Airport sponsors are highly motivated to support their valued commercial tenants and to negotiate mutually beneficial financial terms (including rent abatement). But federally-obligated airports must also balance their regulatory obligations to maintain an economically self-sustaining airport and to treat similarly situated tenants equally.
Buchalter's airport regulatory attorneys have developed the following best practices airport sponsors should consider as they navigate the growing tidal wave of negotiations with commercial aeronautical tenants.
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Executive Order Presents a Trade-Off Between Infrastructure Investment and Environmental Regulation
By Barbara Lichman on June 16, 2020
Posted in Clean Air Act, Environmental, National Environmental Policy Act (NEPA)
On June 4, 2020, President Trump issued an Executive Order, "EO On Accelerating the Nation's Economic Recovery from the Covid-19 Emergency by Expediting Infrastructure Investments and Other Activities" ("EO") for the expressed purpose of forestalling "the likelihood of a potentially protracted economic recovery with persistent high unemployment," EO, Sec. 1, resulting from the business closures necessitated by the onslaught of Covid-19. Predicated on the authority granted in the National Emergencies Act, 50 U.S.C. § 1601, et seq., and the Stafford Act, 42 U.S.C. § 5191(b), § 501(b), the President found that the Covid-19 outbreak in the United States constitutes "a national emergency that posed a threat to our national security." EO, Sec. 1.
In order to "facilitate the Nation's economic recovery," EO, Sec. 2, the EO seeks to "speed infrastructure investments," EO, Sec. 2, that will "strengthen the economy and return Americans to work, EO, Sec. 2, by, among other things, "expediting the delivery of transportation infrastructure projects, EO, Sec. 3, and civil works projects within the purview of the Army Corps of Engineers, EO, Sec. 4.
All these are laudable goals. The potential problem, however, is in the simultaneous abrogation of environmental protections in such statutes as the Endangered Species Act, 16 U.S.C. § 1531, et seq., and Clean Water Act, 33 U.S.C. § 1344, et seq., as well as other statutes administered by the Army Corps of Engineers. The most notable of these is the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., ("NEPA").
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FAA Sidesteps Congressional Mandate to Evaluate Alternative Noise Metrics
Posted in Federal Aviation Administration (FAA)
In the FAA Reauthorization Act of 2018, Pub. L. 115254, § 188, Congress required the Federal Aviation Administration ("FAA") to "evaluate alternative noise metrics to current average day-night level standard, such as the use of actual noise sampling to address community airplane noise concerns." In its April 14, 2020 Report to Congress ("Report"), FAA thumbed its nose at that mandate, and chose instead to enumerate the various available metrics, without any attempt at comparative analysis of their efficacy at representing real world noise impacts when compared to Day/Night Average Sound Level ("DNL"), currently required by FAA for analysis of airport noise impacts.
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A Guide to Navigating the DOD Siting Clearinghouse Process for Wind Farm Siting and Development
By Paul Fraidenburgh on May 20, 2020
Posted in Airspace, Federal Aviation Administration (FAA), Federal Regulation
Attorney Paul Fraidenburgh shares insights from his recent meeting at the Pentagon about navigating the DOD Siting Clearinghouse process for the siting and development of new wind farms. Click here to read the full article.
Permissible Uses of CARES Act Grant Funds by Airport Sponsors
Posted in Airports, Federal Aviation Administration (FAA), Federal Regulation
If there is anything to be learned from the FAA's distribution of the $10 billion in funds allocated to airports in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, it is that allocating billions of dollars in just a few weeks is more difficult than it sounds. On March 27, 2020, the CARES Act was signed into law as Public Law No. 116-136. The CARES Act is aimed at mitigating the effects of the COVID-19 pandemic on most segments of American business and infrastructure. Title XII of the Act specifically supports airports by directing the FAA to make $10 billion available based on each airport's level of operations and debt. However, when it came to calculating each airport's share of the pie, the FAA botched the process by employing a formula that allocated massive amounts to some smaller airports while snubbing larger, busier airports.
In April, the FAA attempted to correct the problem by capping each airport's CARES Act funding at four times the airport's annual operating budget. The FAA then issued guidance stating that grant funds not used within four years are "subject to recovery by the FAA," and designated a four year "period of performance" pursuant to 2 C.F.R. section 200.309. In other words, if you don't use it, you lose it. But just as the FAA has experienced hiccups distributing the grant funds, airport sponsors will inevitably encounter thorny regulatory issues as they attempt to spend millions of dollars in new grant funding while navigating their compliance obligations under the CARES Act. This begs the question, "What are permissible uses of CARES Act grant funds by airport sponsors?"
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Regulation of VTOLS Lags Far Behind Technology
By Barbara Lichman on May 6, 2020
Posted in Transportation, Unmanned Aircraft Systems ("UAS" or "Drone")
The development of Vertical Take-Off and Landing Vehicles ("VTOL") looks like the wave of the future, especially where highway traffic is becoming an increasing impediment to a constructive workday. All is not rosy, however, where VTOL must share the air with conventional aircraft and the ground with densely populated urban areas.
The most advanced VTOL to date is a U.S. based technology anticipated to become available for commercial use in 2023. The aircraft is configured to carry four passengers and a pilot (for emergencies, as the aircraft is powered by electricity and designed to fly autonomously); will have a range of about 60 miles; and is expected to be able to take-off and land up to 1,000 times per hour at massive skyports, located on plots of land as small as one acre located throughout the cities served.
Another form of hybrid VTOL currently being developed by a Chinese firm and a Slovakia–based company is a flying car designed to take-off from a runway like a plane, but with the capability of converting into a surface vehicle with retractable wheels and wings.
Finally, there is a hybrid/helicopter/conventional aircraft, the distinguishing characteristic of which is technology aimed at addressing one of the primary issues surrounding the operation of aircraft – noise. To do this, speed of the main rotor will be redirected while flying, apparently without jeopardizing the integrity of the flight process. While numerous other high-end car companies are attempting to break into the market, most were too late to the game, starting the development process in 2018-19.
There are, however, numerous regulatory, as well as developmental hurdles to overcome.
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Update Regarding European Travel Ban
By Daniel S. Shimell on March 16, 2020
Posted in Airlines, Transportation
Over the weekend, the Trump administration added the United Kingdom and Ireland to the list of countries subject to the European travel ban (sometimes the "Ban") it originally announced on Wednesday, March 11, 2020. In addition to prohibiting the entry of aliens who were physically present within the Schengen Area, the Ban now prohibits the entry of "all aliens who were physically present within the United Kingdom, excluding overseas territories outside of Europe, or the Republic of Ireland," within fourteen days of their travel.
Citizens of the United States, lawful permanent residents, their families, and certain other individuals remain exempt from the Ban.
Like the original Ban, the updated Ban does not prohibit flights to the United States from affected European countries. Instead, it only prohibits the entry of certain persons into the country. Since the original Ban went into effect on Friday, March 13, 2020, thousands of U.S. Citizens and other exempt individuals have entered the U.S. at one of 13 designated airports throughout the country. Hours-long wait times have been reported at some of these airports, including Chicago O'Hare (ORD) and Boston Logan (BOS), as officials screen returning passengers for symptoms of the Coronavirus.
U.S. Citizens and other exempt individuals returning from Europe are being asked to self-quarantine for 14 days after their return.
The updated Ban is set forth in a Presidential Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons who Pose a risk of Transmitting Coronavirus, issued on March 14, 2020. The updated Ban goes into effect at 11:59 p.m. EDT on Monday March 16, 2020.
Stay tuned for further updates on federal Coronavirus response measures affecting the aviation and airport industries.
For further information and analysis on the Ban, please see my prior post here. The latest Proclamation can be found here.
Travelers, Airlines, and Airports Face Uncertainty after President Trump Announces European Travel Ban
Airports, airlines, and travelers face a number of dynamic questions and challenges in the wake of the Trump administration's abrupt televised announcement that the federal government "will be suspending all travel from Europe to the United States for the next 30 days." The announced European travel ban (sometimes the "Ban") is set forth in a Presidential Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus (the "Proclamation"). As discussed below, the Proclamation provides further detail that was not immediately clear after the President's brief televised announcement on Wednesday night.
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FAA Seeks to Free Airlines from "Burden" of Consumer Protections
By Barbara Lichman on March 12, 2020
Posted in Airlines, Federal Aviation Administration (FAA), Transportation
In a somewhat unsubtle attempt to implement the current Administration's 2017 Executive Order "Enforcing the Regulatory Reform Agenda," allowing federal agencies to simplify their regulatory mandates, the Department of Transportation ("DOT"), on behalf of its subsidiary agency the Federal Aviation Administration ("FAA"), has instead thrown complex and expensive regulatory/legal hurdles in the path of consumers who attempt to enforce the provisions of current protective regulations. Specifically, the DOT published, on February 28, 2020, in the Federal Register, a Notice of Proposed Rulemaking ("NPRM"), that purports to simplify "definitions of the terms 'unfair' and 'deceptive' in the Department's regulations implementing its aviation consumer protection statute." See 85 Fed.Reg. 11881. The devil, however, is, as usual, in the details.
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DOT Proposes New Regulations on Service Animals in Air Travel
By Daniel S. Shimell on February 20, 2020
Posted in Airlines, Federal Aviation Administration (FAA)
Passengers seeking to travel with their service animals in the main cabin may soon face new restrictions from airlines, as the Department of Transportation ("DOT") recently published a Notice of Proposed Rulemaking ("NPRM") to alter existing DOT regulations. 85 Fed. Reg. 6448 (Feb. 5, 2020). The NPRM represents DOT's latest effort to carry out the Air Carrier Access Act of 1986, 49 U.S.C. § 1705 ("ACAA"), which prohibits air carriers from discriminating against a qualified individual on the basis of physical or mental impairment. The NPRM arises, in part, from DOT's stated desire to harmonize its regulations with rules promulgated by the Department of Justice to implement Titles II and III of the American's with Disabilities Act.
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