On March 25, 2010, the California Supreme Court issued an opinion upholding the City of Los Angeles' prohibition on solicitation for the immediate receipt of funds inside the passenger terminals of the Los Angeles International Airport.  The case was part of a longstanding dispute over the City's regulation of expressive activity at LAX.  The court found, "Prohibiting persons from soliciting the immediate receipt of funds at LAX is a narrowly tailored regulation of expressive activity because it is not substantially broader than necessary to address the particular problems caused by requests for the immediate receipt of funds."  In light of this holding, the court declined to consider the question presented to it by the U.S. Court of Appeals for the Ninth Circuit, whether LAX is a public forum under the California Constitution.  Click on the link below to view and download a copy of the California Supreme Court's opinion.

On March 3, 2010, the FAA Assistant Administrator for Civil Rights and Diversity Advocate issued a Final Decision and Order affirming in all respects a Director's Determination issued in favor of our client, the Metropolitan Nashville Airport Authority.  As previously reported in Airport Law News, a concessionaire at the Nashville International Airport filed a complaint against the Airport Authority alleging discrimination under the Airport Concession Disadvantaged Business Enterprise rules.  The Assistant Administrator determined that the Director correctly found that the Airport Authority did not discriminate against the concessionaire in its administration of the ACDBE program or in its actions regarding the particular concession.  Click on the link below to view and download a copy of the Final Decision and Order.

On February 18, 2010, the Council on Environmental Quality (“CEQ”) issued draft guidance regarding the evaluation of climate change and greenhouse gas emissions in National Environmental Policy Act (“NEPA”) analyses.  In the draft guidance, the CEQ identified 25,000 tons per year as a possible threshold for additional quantitative and qualitative review of climate issues.  The CEQ proposed that such analysis include assessment of “aspects of climate change that may lead to changes in the impacts, sustainability, vulnerability and design of the proposed action and alternative courses of action.”  Comments will be due on the draft guidance 90 days from the publication of the draft in the Federal Register in late February or early March. 

Also on February 18, 2010, the CEQ issued another draft guidance document relating to mitigation and monitoring under NEPA.  The CEQ guidance recommends bolstering the role of mitigation and monitoring in the NEPA process, including steps to assure that mitigation steps are both implemented and effective in reducing impacts.  Comments on the mitigation and monitoring guidance document will also be due 90 days from the publication of the draft in the Federal Register in late February or early March.

On February 8, 2010, the U.S. Court of Appeals for the Tenth Circuit affirmed the District Court's refusal to enjoin full-plane deicing near passenger loading gates at Denver International Airport.  Plaintiffs sought injunctive relief under the Resource Conservation and Recovery Act of 1976; however, the District Count found, and the Court of Appeals affirmed, that plaintiff's had not established that full-plane deicing near DIA's Concourse B presents an imminent and substantial endangerment to health.  The City and County of Denver presented evidence that full-plane deicing near Concourse B had been suspended at that it had initiated measures to address contamination by aircraft deicing fluid.  Click on the link below to view and download a copy of the Court of Appeals' opinion.

On February 2 and 3, 2010, the Department of Transportation published a series of notices regarding the Disadvantaged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) programs.  In a notice of proposed rulemaking, DOT proposed to remove the "sunset" provision in the ACDBE rules and solicited comments on possible changes in the rules to better achieve the ACDBE program's objectives.  Comments on changes in the rules must be submitted by November 1, 2010.  In another notice, DOT amended the DBE rules to require recipients of financial assistance to submit DBE goals every three years.  The previous rule required that DBE goals be submitted annually.  In the third notice, DOT requested comments on its plan to extend the requirement of the DBE rules that recipients of financial assistance maintain a DBE directory and report on DBE participation.  The deadline for comments is April 5, 2010.  Click on the links below to view and download copies of the Federal Register notices.

On January 14, 2009, Nancy Sutley, Chair of the White House Council on Environmental Quality, confirmed CEQ's intention to issue guidance on the consideration of greenhouse gas emissions and climate change in environmental review documents prepared under NEPA.  In response to an inquiry from the Senate Environment and Public Works Committee, Sutley wrote, "CEQ believes that it is appropriate and necessary to consider the impact of significant Federal actions on greenhouse gas emissions and the potential for climate change to affect Federal activities evaluated through NEPA and different approaches for managing those effects."  CEQ gave no specific timeline for publishing draft guidance.  Click on the link below to view and download a copy of the CEQ letter.

On January 13, 2009, the Transportation Security Administration released a standardized self-assessment measuring the security threats and vulnerability of General Aviation airports.  The assessment will be available for 60 days and the results made available sometime thereafter.  TSA has committed to treat the results as Sensitive Security Information.  While there is no guarantee of any federal grant funding to improve GA security based on the assessment, the results may lead to funding in the future.  Click on the link below to view and download a copy of Frequently Asked Questions regarding the assessment prepared by TSA.

On December 21, 2009, the Department of Transportation issued final rules prescribing air carrier responsibilities in the event of lengthy tarmac delay.  The rules will require U.S. air carriers operating aircraft designed for thirty or more seats to develop and implement contingency plans to address extended delay.  Air carriers generally will have to deplane passengers after three hours, and provide food and water after two hours.  The rules also require air carriers to develop and publish customer service plans.  Click on the link below to view and download a copy of the final rule.