State and Federal Regulations That May Affect Initiatives to Reduce Airports’ GHG Emissions (2012)

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37 ple, wind turbines can affect certain bat and bird spe- cies, requiring incidental-take permits and/or Section 7 consultations.371 Some wind projects have been enjoined under the ESA as a result of species concerns and fail- ure to address the Act’s requirements.372 New transit or solar PV projects could be located on property that pro- vides habitat for endangered or threatened animal or plant species. Airport sponsors of such projects and FAA will need to ensure that they are in full compliance with the ESA. 2. Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act Similarly, the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act373 prohibit the harm, possession, or taking of migratory bird species, nests, and eggs and bald and golden eagles. As with the ESA, projects like wind turbines or other construction- related work could affect these species. Federal agen- cies have been working to provide more guidance re- garding this issue. For example, in January 2011, the U.S. Fish and Wildlife Service issued draft guidance on eagle conservation with a focus on reducing harm from wind energy projects.374 3. National Historic Preservation Act The National Historic Preservation Act375 requires federal agencies to review impacts to historic and tribal resources. Physical construction associated with GHG- mitigation measures could affect historic resources cov- ered by the Act. Similarly, historic preservation issues may arise in projects in or affecting historic buildings on an airport. For example, a project to replace ele- ments of a historic terminal or other building for en- ergy-efficiency purposes could trigger National Historic Preservation Act applicability. 4. Clean Water Act, Section 404 Section 404 of the CWA regulates obstructions to, fill in, and discharges to waters of the United States.376 GHG-mitigation projects may involve construction that would fill wetlands or waters. For instance, an airport project to provide new taxiway or runway pavement to improve airport efficiency could require a CWA Section 404 permit if it required any fill in wetlands, streams, or other waters of the United States. 371 U.S. GOV’T ACCOUNTABILITY OFFICE, WIND POWER: IMPACTS ON WILDLIFE AND GOVERNMENT RESPONSIBILITIES FOR REGULATING DEVELOPMENT AND PROTECTING WILDLIFE 35 (2005), available at http://www.gao.gov/new.items/d05906.pdf. 372 See, e.g., Animal Welfare Inst. v. Beech Ridge Energy, 675 F. Supp. 2d 540 (D. Md. 2009). 373 16 U.S.C. §§ 703–712; 16 U.S.C. §§ 668–668(d). 374 U.S. Fish and Wildlife Service, Draft Eagle Conservation Plan Guidance, http://www.fws.gov/windenergy/docs/ ECP_draft_guidance_2_10_final_clean_omb.pdf. 375 16 U.S.C. § 470 to 470-1. 376 33 U.S.C. § 1344. IV. AIRPORT PRACTICES TO REDUCE GHG EMISSIONS AND POTENTIAL LEGAL IMPLICATIONS This section provides an introduction to the legal is- sues that may arise for airports implementing specific GHG-reduction measures outlined in ACRP 56.377 The discussion is organized by the ACRP 56 categories, be- cause they cover the universe of GHG-mitigation meas- ures based on experience and a review of literature and resources such as the Sustainable Aviation Guidance Alliance (SAGA) database and the 2011 ACRP Report 42, Sustainable Airport Construction Practices.378 This section especially focuses on those measures that were ranked highly in ACRP 56 as being able to deliver the most GHG reductions for the least cost.379 It also identifies a representative set of other mitigation measures that raise significant, interesting legal issues. The examples examined below are demonstrative rather than exhaustive. This section also relies on a 2010 U.S. Government Accountability Office (GAO) report, Survey of Airport Officials on Environmental Issues (the GAO Report),380 which identifies the extent to which various environ- mental initiatives have been implemented at the largest U.S. airports. In preparing this report, GAO surveyed the 150 busiest U.S. airports in 2009 and received 141 responses.381 The survey’s broad scope and 94 percent response rate make the GAO Report a valuable re- source for information on the environmental practices of large and medium hub commercial airports in the United States, including GHG-reduction measures. It bears repeating that the listing of a particular measure in ACRP 56 or this section does not mean that it would be legal at all airports or any particular air- 377 Where measures examined below are also ACRP 56 strategies, the ACRP 56 measure number is cross-referenced in brackets in the title. ACRP 56 is available at http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_056.pdf. 378 The Sustainable Aviation Guidance Alliance has pre- pared a database that identifies many very specific measures that are being undertaken to reduce GHGs and meet other sustainability goals, while the ACRP’s Report 42 examines a number of sustainability practices that sponsors can employ during airport construction to reduce GHG emissions, https://www.transportationresearch.gov/dotrc/infrastructurean dmaterials/Shared%20Documents/ACRP%2042%20- %20Sustainable%20Airport%20Construction%20Practices.pdf. See Sustainable Aviation Guidance Alliance, Sustainability Database, http://www.airportsustainability.org/database (last visited Jan. 18, 2011); AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, REPORT 42, SUSTAINABLE AIRPORT CONSTRUCTION PRACTICES (2011). 379 See ACRP 56, tble. ES-05, http://onlinepubs.trb.org/ onlinepubs/acrp/acrp_rpt_056.pdf. 380 U.S. GOV’T ACCOUNTABILITY OFFICE, E- SUPPLEMENT TO GAO-10-50, AVIATION AND THE ENVIRONMENT: SURVEY OF AIRPORT OFFICIALS ON AIRPORT ENVIRONMENTAL ISSUES (2010), available at http://www.gao.gov/special.pubs/gao-10- 748sp/ (last visited Jan. 26, 2011). 381 Id.

38 port. For example, it would currently be illegal for a U.S. airport to levy GHG-based landing fees that re- sulted in revenues in excess of aviation-related costs.382 Additionally, it would probably not be legal in most cir- cumstances to use airport revenues to offset airport emissions by buying more fuel-efficient city school buses. Further, certain green building measures may meet code requirements in some locales, but not oth- ers.383 The regulatory environment is continually evolving, particularly as it relates to control of GHG emissions. As a result, airports face considerable uncertainty in the short run as agencies and courts determine how to address climate impacts under federal and state re- gimes. Airports considering GHG-reduction measures should carefully evaluate relevant measures applicable in their local context at the time of action. The listing of a measure in this section does not constitute a policy recommendation for or against such a measure, even though this section does identify some of the reasons why airports have implemented or considered the measures. A. Aircraft Operations Aircraft and other operations on airfields can con- tribute significantly to overall GHG emissions at air- ports. Increasing their efficiency can reduce GHG emis- sions. The sweeping scope of federal preemption of state, local, and airport proprietary powers to affect aircraft operations and technology makes it difficult for airports to create large reductions of aircraft GHG emissions directly. However, there are a number of strategies that airports can employ—on their own or in conjunction with aircraft users and FAA—to reduce the environmental impact from activities on the airfield. 1. Provide Infrastructure for Preconditioned Air and Ground Power, and Minimize the Use of Auxiliary Power Units (ACRP 56 AF-01, AF-02) Auxiliary power units (APUs) are small gas turbines typically mounted in the rear portion of the fuselage of most commercial aircraft. Aircraft operators use APUs for a variety of purposes, including powering onboard electrical and air circulation/conditioning systems be- fore or during pushback from the gate. The combustion of jet fuel in APUs generates GHGs.384 As a result, many airports provide ground power and preconditioned air at their gates to reduce the need for APU usage and, consequently, GHGs and other air pol- lutants. Up to 85 percent of APU use can be reduced by 382 See ACRP 56 AF-09, http://onlinepubs.trb.org/online pubs/acrp/acrp_rpt_056.pdf. 383 Id. at BP-08, BP-10. 384 SUSTAINABLE AVIATION, AIRCRAFT ON THE GROUND CO2 REDUCTION PROGRAMME 9 (2010), http://www.sustainable aviation.co.uk/pages/news/aircraft-on-the-ground-co2- reduction-programme-best-practice-guidance-published.html. providing ground power to aircraft.385 This provides fuel savings for airlines and can reduce APU maintenance costs, while also offering significant CO2 reduction benefits. For example, the Port of Seattle recently evaluated the effects of its installation of a centralized preconditioned-air system at Seattle-Tacoma Airport that will cover each of the airport’s 81 gates by the end of 2012.386 It estimates that the project will reduce emissions by more than 50,000 metric tons of CO2 and create annual fuel savings of approximately 5 million gallons, worth $10 million.387 Similarly, Zurich Airport found that installation of these units at 50 gates re- duced annual CO2 emissions by 33,000 metric tons.388 As discussed in Section III, federal grant assistance is available for the installation of preconditioned air and ground power at many airports through the VALE program. For example, Duluth International Airport will use a VALE grant to install preconditioned-air units at a new terminal’s loading bridges.389 These in- stallations combined with a geothermal heating and cooling system in the new passenger terminal building will save 1,798,507 gallons of jet fuel over the next 20 years and significantly reduce aircraft emissions.390 The FAA has used AIP grants through the VALE program to fund gate power or preconditioned air pro- jects at Detroit’s Wayne County Airport, New York’s Stewart International Airport, Pennsylvania’s Erie In- ternational Airport, Pennsylvania’s Philadelphia Inter- national Airport, Michigan’s Gerald R. Ford Interna- tional Airport, Kentucky’s Cincinnati/Northern International Airport, Idaho’s Boise Air Terminal, Pennsylvania’s Lehigh Valley International Airport, and Washington’s Seattle-Tacoma International Air- port.391 For each of these projects, project sponsors were 385 AIR TRANSPORT ACTION GROUP (ATAG), BEGINNER’S GUIDE TO AVIATION EFFICIENCY 23 (2010), available at http://www.enviro.aero/Content/Upload/File/BGAE_referenceve rsion%281%29.pdf. 386 Port of Seattle, Seattle-Tacoma Airport Receives Largest FAA Grant of its Kind to Reduce Air Emissions and Save Mil- lions in Fuel Costs (Oct. 28, 1010), http://www.highline times.com/2010/10/28/news/sea-tac-airport-receives-grant- reduce-greenhouse-?utm_source=feedburner&utm_medium= feed&utm_campaign=Feed%3A+highlinetimes+(Highline+Tim es+%7C+Recent+Articles) (last visited June 14, 2012). 387 Id. 388 AIR TRANSPORT ACTION GROUP, BEGINNER’S GUIDE TO AVIATION EFFICIENCY 23 (2010), available at http://www. enviro.aero/Content/Upload/File/BGAE_referenceversion% 281%29.pdf. 389 Duluth International Airport, Duluth International Air- port Receives $3.8 Million Grant from FAA Green Airport Pro- gram (Sep. 22, 2011), http://www.duluthairport.com/news. php?id=125&type=n (last visited Jan. 25, 2012). 390 Id. 391 Federal Aviation Administration, VALE Program Grant Summary FY 2005–FY 2010 (2010), available at http://www.faa.gov/airports/environmental/vale/media/VALE_g rant_summary.pdf (last visited June 25, 2012). See § III.D.3 for more information regarding the VALE program.

39 required to obtain AERCs, established through state or local air agencies.392 Airports seeking to use AIP and PFC funds, rather than general revenue, for preconditioned-air and ground-power projects will need to ensure that their project proposals comply with AIP and PFC regulatory requirements.393 For example, stand-alone emissions mitigation projects must secure AERCs to be eligible for AIP funding.394 AIP funding also requires that gate electrification systems, where installed as a part of a stand-alone project, be airport-owned and for use only in airport activities.395 FAA’s regulations instruct spon- sors of PFC-funded projects, where no additional gates or concourses are being constructed, to justify them based on “the continued need for the facility as well as the age, condition, or functional inadequacy of the exist- ing facility.”396 Even where a project is undertaken for noncompetitive reasons, the impact of the terminal pro- ject on competition must be taken into consideration.397 In many circumstances, preconditioned-air and ground-power infrastructure reduce fueling and main- tenance costs for airlines and airports compared to op- eration of less efficient APUs. In such cases, airlines are likely to desire ground power and preconditioned air, reducing the concern that they would challenge initia- tives that provide the necessary infrastructure. More significant issues may arise if some tenants do not de- sire preconditioned air and ground power, or if airports seek to require use of facilities, especially if doing so would adversely affect the operation of aircraft or slow turn times at gates. Airlines may oppose such meas- ures, perceiving them as interfering with exclusive fed- eral control over aircraft operations. Regardless, where airports seek to use federal fund- ing to finance preconditioned-air or ground-power pro- jects, NEPA would apply. State-level environmental review requirements, examined above at Section III.J.2, may also apply, depending on the state. While NEPA would apply, airport sponsors will likely qualify for a categorical exclusion under NEPA (at least if a stand- alone project) “if there are no ‘extraordinary circum- stances’ associated with the project,” under the excep- tion category “construction or expansion of passenger handling facilities.”398 As part of the process for obtain- 392 49 U.S.C. § 47139(b). 393 See § III.D. 394 FEDERAL AVIATION ADMINISTRATION, Order 5100.38C, AIRPORT IMPROVEMENT PROGRAM HANDBOOK § 585(a) (2005), available at http://www.faa.gov/airports/resources/ publications/orders/media/aip_5100_38c.pdf. 395 Id. § 585(b). 396 FEDERAL AVIATION ADMINISTRATION, Order 5500.1, PASSENGER FACILITY CHARGE § 4-8(b) (2001), available at http://www.faa.gov/documentLibrary/media/Order/PFC_ 55001.pdf. 397 Id. 398 FEDERAL AVIATION ADMINISTRATION, Order 5050.4B, NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) ing the exclusion, the FAA may require sponsors to complete a categorical exclusion checklist and under- take consultation with other agencies.399 However, be- cause gate electrification and preconditioned air take place in an already developed terminal and ramp envi- ronment, it is very unlikely that ground-power and pre- conditioned-air issues would create the type of extraor- dinary circumstances that would require more extensive environmental review (such as an EA), unless bundled with other projects. Local zoning authority would likely be preempted, but local building, electrical, mechanical, or other codes are likely to apply.400 2. Design Airside Layout to Reduce Aircraft Delay and Surface Vehicle Congestion (ACRP 56 AF-03) Airfield layouts have often evolved in a piecemeal fashion in response to existing infrastructure, immedi- ate needs, and safety requirements. They are often not optimized for the efficient movement of aircraft in a manner that reduces delay (and, thus, generation of GHGs). Accordingly, there is potential to reduce aircraft delay and surface vehicle congestion through airside layout optimization as airports continue to modernize. This can involve taxiway, hold pad, terminal, runway, and other improvements to facilitate efficient move- ment of aircraft and reduce aircraft taxi and idle times. The primary objectives of such improvements include maximizing efficiency and capacity of the runway sys- tem, providing independent flows for arriving and de- parting aircraft, and providing convenient access to terminal/air cargo aprons and other facilities.401 Many airports have sought to undertake airside im- provements to improve the efficiency of the airport and reduce congestion. Such measures could reduce the waste of fuel and, therefore, GHG emissions. Airports may seek to reduce GHG emissions by improving air- side layout to maximize efficiency and capacity of the runway system, provide independent flows for arriving and departing aircraft, and provide more convenient access to terminal/air cargo aprons and other facili- ties.402 IMPLEMENTING INSTRUCTIONS FOR AIRPORT PROJECTS, Tble. 6- 3 (2006), available at http://www.faa.gov/airports/resources/ publications/orders/environmental_5050_4/; FEDERAL AVIATION ADMINISTRATION, VOLUNTARY AIRPORT LOW EMISSION PROGRAM TECHNICAL REPORT 1-6 (2010) available at http://www.faa.gov/airports/environmental/vale/media/vale_ techreport_v7.pdf. 399 FEDERAL AVIATION ADMINISTRATION, Categorical Exclu- sions, http://www.faa.gov/airports/central/environmental /catex/ (last visited June 14, 2012). 400 See § III.I. 401 TORONTO PEARSON INTERNATIONAL AIRPORT, TAKING FLIGHT: THE AIRPORT MASTER PLAN 2008–2030, at 5:3 (2008), available at http://www.torontopearson.com/en/gtaa/master- plan/#. 402 Id.

40 Airfield improvements that reduce airfield conges- tion are eligible for AIP and PFC funding.403 If airport sponsors use AIP funds for such projects, they commit to AIP program-specific grant assurances for periods of 20 years or more. Regardless of the funding source, the improvements would need to be reflected on the ALP and trigger at least some environmental analysis under NEPA.404 Depending on the scope of proposed improve- ments, and particularly if proposed capacity increases would substantially increase the number of flights or planes an airport could serve, extensive NEPA analysis may be required. A new runway, for example, requires at least an EA while a new runway in a Metropolitan Statistical Area requires preparation of a full EIS.405 Additionally, FAA advises airports seeking to use PFC funds for capacity-enhancing airfield projects to support estimates of capacity-enhancement project benefits in a manner consistent with information of- fered in environmental documents and based on identi- fied, rather than speculative, demand.406 If identified demand is not based on established operations, airports could support projects through written commitments to initiate such operations.407 Where airports are subject to state or local zoning authority, airports will need to consider how zoning requirements might affect airfield improvements.408 Similarly, state or local permits may be required for airfield construction. Other substantive environmental laws like the ESA or the CWA may also apply.409 For example, development of a new runway on previously undeveloped land might trigger review under state “lit- tle NEPAs” and endangered species acts. These sub- stantive environmental laws can delay or increase the cost of airfield-related projects. 3. Implement Emission-Based Incentives and Landing Fees (ACRP 56 AF-09) Emission-based landing fees are used in Europe to incentivize reductions in emissions. One revenue- neutral approach is to offer lower-emitting aircraft a discount on landing fees. A second approach is to gen- erate revenue through landing fees, then use those 403 FEDERAL AVIATION ADMINISTRATION, Order 5100.38C, AIRPORT IMPROVEMENT PROGRAM HANDBOOK § 607 (2005), available at http://www.faa.gov/airports/resources/ publications/orders/media/aip_5100_38c.pdf. See § III.D. 404 See § III.J. 405 FEDERAL AVIATION ADMINISTRATION, Order 5050.4B, NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) IMPLEMENTING INSTRUCTIONS FOR AIRPORT PROJECTS, § 702(f), § 903(b)(2) (2006), available at http://www.faa.gov/airports/ resources/publications/orders/environmental_5050_4/. 406 FEDERAL AVIATION ADMINISTRATION, Order 5500.1, PASSENGER FACILITY CHARGE § 4-8(b) (2001), available at http://www.faa.gov/documentLibrary/media/Order/PFC_55001. pdf. 407 Id. 408 See § III.I. 409 See § III.K. revenues to reduce the contribution of aircraft opera- tions to area emissions through the purchase of offsets or implementation of projects to reduce emissions. Switzerland and Norway have both enacted carbon taxes on domestic flights.410 These approaches are not used in the United States and would raise a number of significant questions under U.S. airport law. Under FAA rules, airports do not have explicit au- thority to impose surcharges on landing fees and fuel flowage fees to reduce emissions.411 The FAA allows landing fees to vary to account for congestion under some limited circumstances, but it is unclear whether congestion pricing would be acceptable for the sole pur- pose of reducing GHG emissions. Landing fees are lim- ited to a combination of a per-operation charge, which may account for the proportionally higher costs per pas- senger for aircraft with fewer seats, and a weight-based charge.412 The per-operation component of the fee “may be justified by the effect of the fee on congestion and operating delays and the total number of passengers accommodated during congested hours.”413 Landing fees must be rational, economically justified, and revenue neutral, such that they do “not exceed the allowable costs of the airfield.”414 FAA’s congestion pricing policy has survived a facial challenge in the D.C. Circuit that alleged that the policy was unreasonable, discrimina- tory, and preempted by the Airline Deregulation Act’s prohibition on state and local authorities enacting laws or regulations related to a price, route, or service of an air carrier.415 Aside from the federal aviation laws, airlines or oth- ers may challenge emissions-related fees, particularly limitations that differentiate among aircraft based on their emissions profiles, on the basis that they are pre- empted by the CAA. The argument might be that air- ports are preempted from imposing regulations based on aircraft emissions because GHGs have been found to 410 United Kingdom House of Commons Select Committee on Environmental Audit, Memorandum from the Aviation En- vironment Federation: Taking Account of the Environmental Costs of Aviation (2003), http://www.publications.parliament. uk/pa/cm200203/cmselect/cmenvaud/672/3060408.htm (last visited Jan. 20, 2011). 411 See § III.C. 412 FEDERAL AVIATION ADMINISTRATION, POLICY REGARDING AIRPORT RATES AND CHARGES, 61 Fed. Reg. 31994, 32018 (June 21, 1996) (note that other portions of this policy were vacated in Air Transport Ass’n of America v. Dep’t of Transp., 119 F.3d 38 (D.C. Cir. 1997), amended by 129 F.3d 625 (D.C. Cir. 1997)); FEDERAL AVIATION ADMINISTRATION, POLICY REGARDING THE ESTABLISHMENT OF AIRPORT RATES AND CHARGES § 2.1.4 (2008), available at http://www.faa.gov/airports/airport_ compliance/media/airports_rates_charges_policy_with_ amendments.pdf. 413 FEDERAL AVIATION ADMINISTRATION, POLICY REGARDING THE ESTABLISHMENT OF AIRPORT RATES AND CHARGES, supra note 412, § 2.1.4(a). 414 Id. § 2.1.4. 415 Air Transport Ass’n v. U.S. Dep’t of Transp., No. 08-1293 (D.C. Cir. July 13, 2008).

41 be air pollutants under the federal law.416 Fee oppo- nents may also argue that measures may constitute “access restrictions” subject to ANCA.417 While ANCA does not apply to “peak period pricing programs where the objective is to align the number of aircraft opera- tions with airport capacity,”418 it could apply to pro- grams with a different intent or effect. If ANCA does apply, airport proprietors will be subject to FAA’s rigor- ous process for approving of operational procedures un- der 40 C.F.R. 161 (referred to as the Part 161 process) or its expansive reading of the limits on the conditions that may be imposed on aircraft operations, routes, and services. Even if ANCA does not apply, FAA (or an air- port user) may argue that a particular measure was an unreasonable restriction on airport access.419 4. Support Modernization of Air Traffic Management (ACRP 56 AF-12) Modernizing the air traffic control system by using satellite-based navigation and other technology has the potential to reduce in-flight GHG emissions by between 10 and 15 percent.420 Satellite technology can allow air- line pilots to fly more precise paths into airports using reduced thrust. Features such as Optimized Descent Profile (also known as Continuous Descent Ap- proach),421 area navigation (RNAV), more direct rout- ings, and reduced delays have the potential to decrease aircraft fuel use and, therefore, emissions.422 As an ex- ample, United Parcel Service aircraft equipped with Automatic Dependent Surveillance-Broadcast technolo- gies have reduced some emissions by as much as 34 percent.423 FAA, aircraft owners, and other federal agencies are working to deploy some of these advanced navigation technologies and improvements through the NextGen program. While airports cannot require improved air traffic management measures on their own due to fed- 416 Reimer & Putnam, supra note 26, at 89. See § III.A. 417 See § III.B. 418 14 C.F.R § 161.5. 419 See § III.E.2. 420 Air Transport Association (ATA), Air Traffic Control Modernization and the Environment, http://www.airlines.org /Pages/Air-Traffic-Control-Modernization-and-The- Environment.aspx. 421 Continuous Descent Approach, in which an aircraft lands by descending at a constant 3-degree angle rather than descending and holding at a series of altitude “steps,” lowers fuel use and emissions by shortening flight time and eliminates the need for engine thrust required in a stepped approach to landing. Civil Air Navigation Services Organisation, Descent and Approach: Continuous Descent Approach, http://www. www.canso.org/CMS/showpage.aspx?id=355 (last visited June 12, 2012). 422 Id. 423 See Federal Aviation Administration, Fact Sheet: Next Generation Air Transportation System 2006 Progress Report (2007), http://www.faa.gov/news/fact_sheets/news_story.cfm? newsId=8336 (last visited June 12, 2012). eral preemption of the field,424 they are critical stake- holders that can promote and facilitate airspace im- provements. 5. Support Reduced Engine Taxiing (ACRP 56 AF-14) Reducing the number of engines for aircraft taxiing or idling on the ground can also save fuel, because the operation of multiple turbine engines at low power set- tings can waste fuel and generate emissions. Thus, both airports and airlines have promoted efforts to initiate single-engine or (for aircraft with more than two en- gines) reduced-engine taxiing. A number of airlines, including Virgin America, United Airlines, and Ameri- can Airlines, report voluntary use of single-engine taxi- ing.425 Aside from the emissions benefits of the practice, single-engine taxiing can benefit aircraft operators fi- nancially. A 2005 study by the International Air Trans- port Association found one-engine-off taxi-in operations can reduce ground fuel burn by 20 to 40 percent, de- pending on equipment.426 American Airlines saves $10 million to $12 million a year as a result of this prac- tice.427 Two-engines-off taxiing can also provide significant emissions-reduction opportunities. The 2005 Interna- tional Air Transport Association study compared single- engine-off with two-engines-off taxiing operations for three types of aircraft engines, and it found that the fuel burn savings of two-engines-off operations were approximately two times greater.428 According to the GAO Report, 11 of 141 respondent airports indicated that they had adopted a single-engine taxiing policy.429 However, single-engine taxiing may 424 See § III.B. 425 See, e.g., Virgin America, Virgin America Goes Green (Nov. 18, 2010), http://www.virginamerica.com/press- release/2010/Virgin-America-Grows-Green.html; UNITED AIRLINES, 2009–2010 CORPORATE RESPONSIBILITY REPORT 8 (2010), available for download at http://www.united.com/web/ en-US/content/company/globalcitizenship/sustainabilty.aspx; Frontier Airlines, Annual Report (Form 10-K) 24 (May 26, 2009) http://msnmoney.brand.edgar-online.com/EFX_dll/ EDGARpro.dll?FetchFilingHTML1?ID=6626121&SessionID= GKeKWZn2t35_P49; Press Release, American Airlines, Fuel Smart Overview, http://www.aa.com/i18n/amrcorp/newsroom/ fuel-smart.jsp. 426 SUSTAINABLE AVIATION, AIRCRAFT ON THE GROUND CO2 REDUCTION PROGRAMME 8 (2010), available at http://www.sustainableaviation.co.uk/pages/news/aircraft-on- the-ground-co2-reduction-programme-best-practice-guidance- published.html. 427 American Transport Association, Coping with Sky-High Jet Fuel Prices 29 (2008), available at http://cdm.fly.faa.gov/ Workgroups/fuel/ATA%20Fuel%20Briefing.ppt (last visited Jan. 20, 2011). 428 SUSTAINABLE AVIATION, AIRCRAFT ON THE GROUND CO2 REDUCTION PROGRAMME 8 (2010), available at http://www. sustainableaviation.co.uk/pages/news/aircraft-on-the-ground- co2-reduction-programme-best-practice-guidance-published. html. 429 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 41.

42 not be appropriate for all planes and under all circum- stances. For example, some aircraft lack the ability to taxi on one engine.430 Operational conditions, such as inclement weather, may also affect the ability of pilots to taxi on one engine.431 Aircraft manufacturers often provide detailed aircraft-specific training addressing the appropriateness of the technique for particular technologies.432 Turning multiple engines off for taxiing can require an external towing source to move the aircraft. Between February and August 2010, Denver International Air- port partnered with United Airlines to test a prototype tractor, which it used to tow more than 540 aircraft in the same period.433 According to United Airlines, this saved the use of approximately 21,600 gallons of jet fuel.434 CO2 reductions were estimated at approximately 180 to 200 metric tons.435 Legal problems are unlikely to arise for airports that simply support reduced-engine taxiing through, for ex- ample, coordination with airlines and establishing nonmandatory policies. However, the idea of mandating engine-off taxiing has drawn criticism related to reduc- ing pilots’ flexibility, operational control, and safety. For example, the International Federation for Air Line Pilots’ Associations firmly opposes any mandatory en- gine-off taxiing procedures.436 An airport action to man- date such procedures would raise questions based on federal preemption of control over flight operations. Because requirements for taxiing deal directly with the movement of aircraft, they may be, therefore, pre- empted by federal aviation law.437 430 David Holzman, Focus: Plane Pollution, 105 ENVTL. HEALTH PERSPECTIVES 12 (1997), available at http://ehp03.niehs.nih.gov/article/fetchArticle.action?articleUR I=info%3Adoi%2F10.1289%2Fehp.971051300 (last visited June 14, 2012). 431 John Cox, Ask the Captain: How Pilots Stretch Their Fuel, USA TODAY, Jan. 17, 2011, available at http://www.usa today.com/travel/experts/cox/2011-01-17-fuel_N.htm (last vis- ited June 14, 2012). 432 Douglas Page, Engine-Off Taxiing Picks Up Speed, AVIATION TODAY, Oct. 22, 2009, available at http://www. aviationtoday.com/regions/usa/Engine-off-taxiing-picks-up- speed_36060.html (last visited June 14, 2012). 433 UNITED AIRLINES, 2009–2010 CORPORATE RESPONSIBILITY REPORT 22 (2010), available for download at http://www.united.com/web/en-US/content/company/global citizenship/sustainabilty.aspx. 434 Id. 435 Reductions do not account for energy use by the tractor. The range reflects potential variations in fuel type (Avgas ver- sus Jet A fuel). Calculation based on emissions factors taken from AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, REPORT 11, GUIDEBOOK ON PREPARING AIRPORT GREENHOUSE GAS EMISSIONS INVENTORIES 21 (2009), http://onlinepubs.trb.org/onlinepubs/ acrp/acrp_rpt_011.pdf. 436 Page, supra note 432. 437 See § III.B. 6. Support Use of Alternative Fuels in Aircraft Through Development or Facilitation of Fuel Supply One of the most important long-term initiatives to reduce GHG emissions from aviation is to replace tradi- tional petroleum fuels with biofuels or other lower- carbon fuels. Modern passenger and cargo aircraft gen- erally use petroleum-based “Jet A” fuel.438 The Air Transport Association of America estimates that each gallon of burned jet fuel produces approximately 3.1 gallons of CO2.439 While average fuel efficiency has im- proved 110 percent since the late 1970s, avoiding bil- lions of metric tons of CO2 emissions, the increase in aviation activity has caused total emissions to in- crease.440 Accordingly, the aviation industry has looked to changes in fuel as a means to reduce GHG emissions from aviation. In particular, biofuels have great prom- ise to reduce net GHG emissions. Plant-based feed- stocks (i.e., the source of the fuel, like oilseeds or algae) remove carbon from the atmosphere when they are grown and, thus, may reduce the net GHG impact of combustion of fuels. 441 The FAA, Airports Council International–North America, Air Transport Association of America, and the Aerospace Industries Association sponsor the Commer- cial Aviation Alternative Fuels Initiative, which seeks to enhance energy security and environmental sustain- ability through alternative jet fuels for aviation. In 2009, the Initiative gained approval from ATSM Inter- national (the international standards organization that sets specifications for jet fuel) of a 50 percent synthetic fuel.442 Fifteen airlines have announced prepurchase agreements with two alternative fuel suppliers,443 and the Initiative is working to obtain approval of bio-jet 438 Air Transport Association, Alternative Aviation Fuels Q & A, http://www.airlines.org/Pages/Alternative-Aviation-Fuels- QA---Enviro.aspx (last visited June 14, 2012). 439 Dana Hull, A Push to Make Air Travel More Environ- mentally Friendly, SAN JOSE MERCURY NEWS, Dec. 14, 2010, http://odewire.com/10256/a-push-to-make-air-travel-more- environmentally-friendly.html. 440 Air Transport Association, ATA Releases 2010 Economic Report (Aug. 19, 2010), http://www.prnewswire.com/news- releases/101097999.html (last visited June 14, 2012); FEDERAL AVIATION ADMINISTRATION, AVIATION AND EMISSIONS: A PRIMER 10 (2005), http://www.faa.gov/regulations_policies/ policy_guidance/envir_policy/media/aeprimer.pdf. 441 Air Transport Association, Alternative Aviation Fuels Q & A, http://www.airlines.org/Pages/Alternative-Aviation-Fuels- QA---Enviro.aspx (last visited June 14, 2012). 442 Air Transport Association, Air Traffic Control Moderni- zation and the Environment, http://www.airlines.org/Pages/ Air-Traffic-Control-Modernization-and-The-Environment.aspx (last visited June 14, 2012). 443 Commercial Aviation Alternative Fuels Initiative, Sup- porting Solutions for Secure and Sustainable Aviation (2010), available at http://www.caafi.org/about/pdf/CAAFI_brochure_ August_2010.pdf (last visited June 15, 2012).

43 blends and fuels. 444 In 2011, ASTM approved a stan- dard for the use of jet fuel containing 50 percent bio- derived synthetic fuel.445 Individual airports are also paying increased atten- tion to aircraft fuels. The State of Washington’s De- partment of Natural Resources recently announced a proposed pilot project to produce jet fuel from forest biomass.446 This initiative arose out of the Sustainable Aviation Fuels Northwest Network, a consortium com- prised of diverse business and government interests such as Boeing, the Port of Seattle (proprietor of Seat- tle–Tacoma), and the Washington State Commerce De- partment.447 Airports can play a critical role in facilitat- ing fueling infrastructure and may play a larger role, depending on the location of the fuel-producing facili- ties. While airports may find it worthwhile to take on a supporting role for the development of alternative air- craft fuels, it will need to address additional legal issues if it takes more extensive steps. At one extreme, any efforts to mandate the use of a certain type of aircraft fuel are likely to face substantial legal challenges, espe- cially based on federal preemption of control over flight operations, discussed in Section III.B. The jet fuel used by aircraft goes directly to issues of safety and other issues of control over flight operations. As such, any attempts by airports to regulate in this space are likely to be preempted. However, there are other ways in which airports might encourage the development of alternative aircraft fuels. For example, airports may wish to locate bio-jet generation facilities on or near airport property. While such projects might facilitate greater use of such fuels through greater availability and more efficient delivery to sites where aircraft are located, they would also im- plicate a host of land use and environmental issues, such as those discussed in Section III.I and III.J. Large projects located near an airport, such as oilseed crush- ers or a biorefinery, would need to meet local land use and zoning restrictions. Additionally, concerns about pollution or wildlife attraction might be obstacles to obtaining NEPA and state environmental review ap- provals. 444 Air Transport Association, Air Traffic Control Moderni- zation and the Environment, http://www.airlines.org/Pages/ Air-Traffic-Control-Modernization-and-The-Environment.aspx (last visited June 15, 2012). 445 Cicely Enright, Aviation Fuel Standard Takes Flight, ASTM INTERNATIONAL STANDARDIZATION NEWS, Sept./Oct. 2011, http://www.astm.org/SNEWS/SO_2011/enright_so11.html. 446 Washington State Department of Natural Resources, Forest Biomass Initiative to Take Next Step: Aviation Biofuel (2011), http://www.dnr.wa.gov/BusinessPermits/News/Pages/2011_01_ 11_biomass_nr.aspx (last visited June 15, 2012). 447 Id.; see also Sustainable Aviation Fuels Northwest Net- work, Powering the Next Generation of Flight 83 (2011), avail- able at http://www.safnw.com/wp-content/uploads/2011/ /06/SAFN_2011Report.pdf. B. Business Planning Business planning efforts relate to master planning, operational planning, and similar initiatives that guide airport development and activities. Inclusion of GHG considerations in these planning efforts can help reduce GHG emissions at airports.448 A number of partnerships or airports have developed sustainable planning, design, or construction guidelines or plans in recent years. Two examples of major initia- tives include Los Angeles World Airports’ Sustainability Plan and the City of Chicago’s Sustainable Design Manual for the O’Hare Modernization Program.449 Fifty-three of 141 airports surveyed in the GAO Report indicated that they followed some standard for envi- ronmental sustainability.450 These efforts generally identify addressing GHG emissions as one of the ele- ments of sustainability. 1. Use Airport-Specific Sustainable Planning, Design, and Construction Guidelines, and Set a Policy for Green Building Certification of Buildings (ACRP 56 BP-08, BP- 10) Two sustainable building strategies were identified in ACRP 56’s top 10 measures for reducing GHG emis- sions. Embedded in these strategies is the green build- ing certification program established by the U.S. Green Building Council: Leadership in Energy and Environ- mental Design (LEED). This standard uses a point sys- tem to assess the sustainability of facility design, con- struction, and operations. Many LEED measures can reduce GHGs. It also provides third-party certification that certain sustainability levels (silver, gold, and platinum) have been met. Fifty-four of 141 airports surveyed in the GAO Re- port reported following LEED’s rating system.451 Twelve airports indicated that their airport has a LEED- certified building.452 For example, 1) Boston’s Logan Airport’s Terminal A was the first in the world to re- ceive LEED certification;453 2) the City of Santa Monica 448 Note that there is overlap between this category and most of the other categories of airport practices that reduce emissions. An emissions reduction measure could be identified in a business planning exercise and then implemented through a construction project, operations practice, or ground transpor- tation improvement. 449 Los Angeles World Airports, Sustainability Plan (2008), available at http://www.lawa.org/uploadedFiles/LAWA/pdf/ Sustainability%20Plan%20(Final).pdf; City of Chicago, O’Hare Modernization Program Sustainable Design Manual (2003), available at http://www.acec.org/advocacy/committees/pdf/ eec0808_omp_manual.pdf. 450 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 64 (2010), available at http://www.gao.gov/special.pubs/gao- 10-748sp/. 451 Id. at Q 44 (2010). 452 Id. 453 Massport, Massport Achievements: Recognized as an Environmental Leader, available at http://www.massport.com

44 recently built a LEED Gold–certified rental car facility at the Santa Monica Airport;454 3) Los Angeles Interna- tional Airport was awarded LEED Silver certification for the renovation of the Tom Bradley International Terminal;455 and 4) Oakland International’s Terminal 2 extension and renovation was awarded LEED Silver certification in 2010.456 Additionally, 29 of 141 respon- dents to the GAO Report’s survey have at least one building constructed in accordance with LEED stan- dards, and 55 airports indicated that they were plan- ning to construct a building or buildings in accordance with LEED standards.457 There is a difference between the airports that have actually received LEED certifica- tion and the airports that have followed LEED guide- lines; certification requires third-party verification and somewhat greater cost. Thirty-four respondent airports indicated that they are subject to state or local re- quirements that public buildings become “green” or en- vironmentally sustainable.458 Some airports have also worked to create airport- specific sustainable planning processes that more com- pletely and better address the unique nature of airport environments. For example, the City of Chicago pro- duced a sustainable design manual as part of the O’Hare Modernization Program.459 The Sustainable Design Manual is inspired by LEED guidelines and identifies where airports could obtain LEED points for sustainable actions.460 The manual addressed a wide range of sustainability issues, including energy effi- ciency. In 2011, the City of Chicago released an updated Sustainable Airport Manual that refreshes the Sus- tainable Design Manual’s design and construction guidelines and also addresses sustainable airport plan- ning, operations and maintenance, and concessions and tenants.461 /environment/pages/massportachievements.aspx (last visited June 15, 2012). 454 Santa Barbara Airport, LEED Gold at Santa Barbara Airport QTA, available at http://www.flysba.com/news_facts/ news/leed_gold_at_santa_barbara_airport_qta (last visited June 15, 2012). 455 Los Angeles World Airports, Articles About LAX Devel- opment Program, available at http://www.lawa.org/laxdev/ dispLAXDev.aspx?id=3767 (last visited June 15, 2012). 456 Port of Oakland, Oakland International Airport’s Termi- nal 2 Awarded Prestigious LEED® Green Building Silver Cer- tification (Mar. 17, 2010), available at http://www.fly oakland.com/press_releases_detail.aspx?ID=581&t=p (last visited Jan. 24, 2011). 457 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 65. 458 Id. at Q 72. 459 CITY OF CHICAGO, SUSTAINABLE DESIGN MANUAL (2003), available at http://www.acec.org/advocacy/committees/pdf/ eec0808_omp_manual.pdf (last visited Jan. 24, 2011). 460 Id. at 9. 461 CHICAGO DEPARTMENT OF AVIATION, SUSTAINABLE AIRPORT MANUAL (2011), available at http://airportsgoing green.com/Content/Documents/CDA-SAM-v2.1-Octobe-31- 2011-FINAL.pdf. A number of the strategies outlined in the O’Hare Sustainable Design Manual and Sustainable Airport Manual could reduce an airport’s GHG emissions: • Locating projects within a half-mile of an existing or planned rail link or within a quarter-mile of two or more bus lines. • Providing employees incentives to use public trans- portation. • Providing bicycle access, storage, and changing rooms for building users. • Installing fueling stations for alternative-fueled vehicles. • Meeting minimum levels of energy efficiency. • Optimizing energy performance above minimum levels of efficiency, including through the use of light- emitting diode (LED) lighting on the airfield. • Using alternative refrigerants to chlorofluorocar- bons, hydrochlorofluorocarbons, and hydrofluorocarbons based on their global warming potential. • Generating or procuring green power. • Using clean-fuel construction vehicles with pollu- tion-control technology or low-emission construction vehicles.462 Projects to reduce the GHG emissions associated with construction at airports are likely to have both physical and financial impacts. To the extent that capi- tal projects incur additional costs specifically for GHG- mitigation efforts, airports may be asked to justify these incremental costs under revenue diversion and self- sustaining airport principles. A recent study of LEED certification indicates that it adds 4 to 11 percent of a project’s construction costs.463 This could be as much as $80 million to $220 million on a $2 billion project. Some of these costs are “soft costs,” such as verification of compliance with LEED requirements through certifica- tion, and do not directly result in environmental, cost, or passenger-experience improvements at the airport. As with any environmental planning or design costs, airports seeking to pass these environmental costs onto aeronautical users would need to demonstrate they were reasonable.464 Highlighting co-benefits of such projects—e.g., energy savings, reductions in criteria air pollutants, improvement in employee or passenger health and experience, etc.—may help airports to make this case. Further, FAA grant assurances do not require the cheapest possible improvement on the airport. Air- ports have traditionally had discretion to build more comfortable, more attractive, or more flexible facilities, so long as costs are not grossly disproportionate. Much 462 Id. 463 NORTHBRIDGE ENVIRONMENTAL MANAGEMENT CONSULTANTS, ANALYZING THE COST OF OBTAINING LEED CERTIFICATION 2 (2003), available at http://www.cleanair-cool planet.org/for_communities/LEED_links/AnalyzingtheCostof LEED.pdf. 464 See discussion of federal restrictions on rates, charges, and use of airport revenue at § C.

45 green construction can and should be analogized to these traditions and practices. To the extent that these strategies require action on the part of airport tenants, airports may seek to require their implementation by these parties through mini- mum standards, lease agreements, use agreements, and other instruments. 2. Create a Carbon Offset Purchasing Strategy (ACRP BP-05) Some airport authorities have investigated or initi- ated the purchase of carbon offsets for some portion of airport operations. The purchase of carbon offsets by airport authorities raises a number of legal questions, especially relating to the revenue diversion and self- sustaining airport grant assurances.465 This is in large part because almost all offsets that could be purchased for emissions reductions occur off the airport and are not associated with aeronautical activity. The purchase of emissions offsets secured off-airport for traditional air pollutants (like ozone precursors) is permissible un- der general conformity or new source review permitting programs under the CAA when those offsets are man- dated as part of regulatory compliance.466 Off-airport carbon offsets are more complicated to justify, in terms of revenue diversion and self- sustaining requirements, insofar as there are no cur- rent legal obligations for an airport to offset its GHG emissions from operations. Consider a scenario in which an airport chooses to offset its carbon emissions by ret- rofitting the school buses of the general-purpose mu- nicipality with expensive but low-emitting electric, natural gas, or hybrid buses. These school buses would serve typical municipal functions off airport property and are unlikely to ever be used at the airport. Airport transfers of revenues to a municipality for the purchase of school buses, absent justification, would not be per- mitted under revenue-use principles. This raises the question of whether GHG considerations are sufficient justification for the revenue transfer. If airport revenue is used for off-airport offset pur- chases, the sponsor would need to demonstrate that the carbon offset purchase serves aeronautical purposes, or is otherwise an appropriate exercise of its proprietary authority. This is the threshold question for airports seeking to use revenue to offset carbon emissions off the airport. There is no reliable guidance regarding whether off-airport expenditure of funds for offsets would be a permissible aeronautical expense in the ab- sence of federal or other mandates. Where an airport is required to offset or otherwise reduce its emissions to meet regulatory requirements, for example, as mitiga- tion for a development project under a state NEPA equivalent, off-airport offsets may be permissible. 465 See § III.C. 466 For more discussion of carbon offset markets, see ACRP Report 57, The Carbon Market: A Primer for Airports, available at http://www.trb.org/ACRP/Blurbs/166411.aspx. The case to allow airports to offset their own carbon emissions on-airport may at first glance appear to be easier to make in that it raises fewer obvious revenue diversion considerations. But what if the costs of offset- ting the airport’s actual carbon emissions were much higher on a per-ton basis than the cost of purchasing off-airport offsets? Self-sustaining airport principles arguably encourage airports to pursue revenue maximi- zation and cost savings. If much cheaper possible offsets were purchasing and preserving land containing tropi- cal rainforests in an equatorial country, would this be preferable to airport or local offset investments? What weight is to be accorded to the proximity of offsets to their source? These presently unanswered questions highlight im- portant considerations for airport sponsors considering offset purchases, but there is little guidance at this time. Until this uncertainty is resolved, perhaps as mitigation and offset programs mature, airports may face less legal risk by focusing on direct reductions of emissions from sources within their scope of control. The situation is different if nonairport revenue is used by a general purpose government, port authority, or other airport proprietor with access to nonairport revenues. For example, the Port Authority of New York and New Jersey has many nonaeronautical revenue sources such as user fees at bus terminals or tolls on its bridges and tunnels. Cross-subsidization of airport off- sets would be permissible (from an aviation perspective) by such authorities. 3. Offer Voluntary Carbon Offsets for Passengers (ACRP 56 BP-07) Another option airports have explored is to make it easier for passengers to offset the GHG impacts of their own travel at the airport or through airport Web sites. Two legal considerations are important to note here. First, airport proprietors are barred from imposing mandatory charges on passengers to fund carbon offsets by the Anti-Head Tax Act of 1973.467 However, airports may make off-airport credits available for voluntary purchase by travelers, just like flight insurance or other services. Such an approach would avoid potential Anti- Head Tax Act conflicts.468 Second, airports should consider federal airport- revenue use restrictions to the extent that airport funds are used to start or subsidize such programs. Sponsors should consider soliciting third parties to offer such services and collecting rent, sharing profit, or other considerations. 467 49 U.S.C. § 40116(b) ([A] State or political subdivision of a State may not levy or collect a tax, fee, head charge, or other charge on—(1) an indi- vidual traveling in air commerce; (2) the transportation of an individual traveling in air commerce; (3) the sale of air trans- portation; or (4) the gross receipts from that air commerce or air transportation). See § III.C. 468 See ACRP, supra note 466.

46 One U.S. airport to provide on-airport opportunities for air travelers to voluntarily offset the carbon emis- sions created by their travel is San Francisco Interna- tional Airport. A third party operates this system as a 2-year pilot program, which under San Francisco law does not require a competitive process for procuring services.469 San Francisco International’s Airport Com- mission authorized approximately $175,000 in initial capital support for the project.470 The airport’s funding contribution covered the cost of three kiosks, over which the airport retains ownership rights, that are repro- grammable to serve basic customer service functions if the offset program is discontinued.471 The airport also allocated some funding for advertising the kiosks.472 The third-party operator provides services to the airport at no cost to the airport, which includes buying and making available verified carbon offsets for pur- chase by the traveling public, as well as the generation of reports for the airport.473 Monies raised through the kiosks are treated in a manner analogous to concessions revenue.474 Accordingly, offset projects are left primarily to the discretion of the third-party operator, 3Degrees, with the caveat that $1.50 per ton of offset sales is di- rected towards the SFCarbonFund, a City-run fund that invests in GHG-reduction projects within San Francisco.475 Under the pilot program agreement, San Francisco International was to receive a portion of the profit from kiosk operations when a certain threshold had been reached.476 Other airports have also made efforts to allow their passengers to offset their carbon impacts. Santa Monica Airport offers airport users a carbon calculator and links for carbon offset purchases on the airport’s Web site.477 The Port Authority of New York and New Jersey also offers a carbon calculator on its Web site.478 In 469 Telephone Interview with Melba Yee, Deputy City At- torney, San Francisco City Attorney’s Office (Jan. 11, 2011). 470 San Francisco Airport Commission, Minutes of the Air- port Commission Meeting of Nov. 18, 2008, at 6 (statement of John L. Martin), available at http://www.flysfo.com/web/ export/sites/default/download/about/commission/agenda/pdf/ minutes/m111808.pdf. 471 Id. 472 Id. 473 Email correspondence with Melba Yee, Deputy City At- torney, San Francisco City Attorney’s Office (Jan. 26, 2011). 474 Telephone Interview with Melba Yee, Deputy City At- torney, San Francisco City Attorney’s Office (Jan. 11, 2011). 475 3Degrees, Good To Go Green: SFO Unveils Carbon Offset Kiosks, powered by 3Degrees, http://www.3degreesinc. com/news/good-go-green-sfo-unveils-carbon-offset-kiosks- powered-3degrees (last visited June 15, 2012). 476 Telephone Interview with Melba Yee, Deputy City At- torney, San Francisco City Attorney’s Office (Jan. 11, 2011). 477 Santa Monica Municipal Airport, Carbon Offset http://www.smgov.net/Departments/Airport/Right_side_tabs/ Carbon_Offset.aspx (last visited June 12, 2012). 478 PANYNJ, Carbon Calculator, http://www.panynj.gov/ about/carbon-calculator.html (last visited June 12, 2012). 2008, Denver International Airport issued a request for proposals (RFP) for a concessionaire to run a voluntary travel carbon offset program.479 However, the RFP did not generate much interest, and the airport did not ac- cept any bids.480 4. Develop an Airport Expansion and Development GHG Emission Policy (ACRP 56 BP-02) Airport development plans can have positive or negative effects on GHG emissions, depending on the project. At the very least, airport development creates an opportunity to assess and address GHG emissions. Consideration of GHGs in expansion and development plans can help airports identify the impacts of growth, as well as find opportunities to reduce emissions from the outset of expansion or development projects. As dis- cussed in Section III.J, incorporating climate change considerations into expansion and development plans is also increasingly necessary to help meet regulatory re- quirements under the NEPA and state equivalents. 5. Develop and Maintain Environmental Management Systems Thirty-four of the 141 GAO Report’s survey respon- dent airports currently have an Environmental Man- agement System, and 34 more airports plan to have one in the future.481 An Environmental Management Sys- tem seeks to integrate environmental considerations in the management of an airport and involves a continu- ous process of environmental improvement at a facility. It often includes GHGs and energy efficiency as criteria for management. Airports usually follow one of two standards—the International Organization for Stan- dardization Standard 14001 (10 airports) and EPA’s compliance-focused Environmental Management Sys- tem (7 airports).482 Eight airports reported that their systems cover all operations, while 12 airports indicated that their systems cover only some.483 The FAA has also recently developed a pilot program to encourage airports to incorporate sustainability ef- forts into the development of airport management or master planning. FAA’s Airports Office “envisions sus- tainability becoming a core planning objective, not a 479 City and County of Denver Department of Aviation, Re- quest for Proposals: Consumer Service Concession Voluntary Travel Carbon Offset Program (Jan. 14, 2008), available at http://www.responsiblepurchasing.org/purchasing_guides/carbo n_offsets/specs/ColoradoAirport_CarbonOffsetsRFP_2008.pdf. 480 Denver International Carbon Offset Program Fails to Take Off, ENVIRONMENTAL LEADER, June 30, 2008, http://www.environmentalleader.com/2008/06/30/denver- international-carbon-offset-program-fails-to-take-off/ (last visited June 15, 2012). 481 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 61. 482 Id. at Q 62. 483 Id. at Q 63.

47 secondary activity.”484 FAA’s pilot program offers 10 airports AIP funding to incorporate sustainability as a core objective in long-range planning documents. Some airports will update their entire master plan, while oth- ers will develop stand-alone Sustainable Management Plan documents.485 FAA’s interim guidance on the pilot program notes that reduced carbon footprints are one of the many benefits of airport sustainability planning.486 C. Construction The process of construction involves the emission of GHGs through operating construction equipment, haul- ing materials, and handling of construction and demoli- tion waste. Of 141 airports responding to the GAO Re- port’s survey, 129 indicated that they had undertaken capital development in the past 5 years.487 Additionally, 113 said that they would undertake such a project in the next 5 years; 20 more will consider undertaking capital developments in the next 5 years.488 ACRP has recently released Report 42, Sustainable Airport Construction Practices, which considers a range of sustainable practices, some of which can reduce the GHG effects on construction at airports.489 Readers are encouraged to consult this resource for additional in- formation regarding sustainable practices for airport construction. A few illustrative reduced-GHG construc- tion practices that airports could potentially employ are discussed below. Airports can seek to implement these and other practices through allowances, provisions, or specifications in leases, minimum standards, and con- struction contracts. 1. Use Warm-Mix Asphalt in Place of Hot-Mix Asphalt (ACRP 56 CN-01) Asphalt is frequently used for road surfaces, taxi- ways, ramps, and runways at airports. Asphalt run- ways can be found at a number of the nation’s airports, 484 Patrick Magnotta, FAA Office of Airport Planning and Programming, National Planning and Environmental Division, FAA’s Sustainable Master Plan Pilot Program 5, Presentation to Airports Going Green Conference, Chicago, Ill., Nov. 15, 2010, available at http://www.airportsgoinggreen.org/ Content/Documents/Patrick%20Magnotta.pdf (last visited June 12, 2012). 485 Memorandum from Elliot Black, Acting Director, FAA Office of Planning and Programming, to Regional Airports Division Managers, at 2, May 27, 2010, available at http://www.faa.gov/airports/environmental/sustainability/ media/interim_guidance_sustainable_master_plan_pilot.pdf (last visited June 15, 2012). 486 Id. 487 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 90. 488 Id. at Q 96. 489 AIRPORT COOPERATIVE RESEARCH, TRANSPORTATION RESEARCH BOARD, REPORT 42, SUSTAINABLE AIRPORT CONSTRUCTION PRACTICES (2011), https://www.transportation research.gov/dotrc/infrastructureandmaterials/Shared%20 Documents/ACRP%2042%20-%20Sustainable%20Airport %20Construction%20Practices.pdf. including Baltimore-Washington International, Lind- bergh Field in San Diego, McCarran International, Memphis International, Newark Liberty International, Oakland International, Chicago O’Hare International, and San Francisco International.490 Asphalt pavement materials are made by heating asphalt and mixing it with aggregate materials such as sand, stone, and gravel. Traditionally, asphalt is heated to well over 300 °F to decrease its viscosity and facili- tate mixing. This heating process creates GHGs. An emerging asphalt preparation, known as warm-mix asphalt, has been shown to reduce GHG emissions as- sociated with asphalt production by reducing the tem- perature to which it is heated. FAA’s grant assurances and extensive safety stan- dards for pavement used at airports are designed to ensure that airports maintain the value of pavement investments over their useful life. Airports seeking to use warm-mix asphalt rather than hot-mix asphalt will have to ensure that their projects meet the rigorous construction and pavement design requirements estab- lished by FAA.491 If the warm-mix asphalt were less durable, such that it could not last for a period compa- rable to normal asphalts, this would raise significant questions under Assurance 19.492 Similarly, if warm- mix asphalt would become too soft in high-heat condi- tions, leading to pavement or aircraft damage, there would be similar questions. Warm-mix asphalt specifi- cations and technology are likely to continue improving and evolving, so airports should carefully evaluate the durability of the pavement in their specific application. A recent runway project at Boston Logan Airport used warm-mix asphalt to reduce CO2 emissions by nearly 4,000 tons, equivalent to about 400,000 gallons of diesel fuel savings.493 This was the first airport warm-mix asphalt project nationwide; it decreased en- ergy consumption while also allowing the use of more recycled asphalt pavement in the final product.494 FAA oversight of warm-mix asphalt testing on a taxiway and apron areas was required before Boston Logan Airport 490 Missouri Asphalt Pavement Alliance, Asphalt for Air- ports: Questions and Answers, http://www.moasphalt.org/ facts/asphalt/airport_qa.pdf (last visited Jan. 26, 2011). 491 These standards can be found in AC 150/5370-10, Stan- dards for Specifying Construction of Airports, http://www.faa.gov/airports/engineering/construction_ standards/, and AC 150/5320-6E, Airport Pavement Design and Evaluations, http://www.faa.gov/regulations_policies/ advisory_circulars/index.cfm/go/document.information /documentID/99762, FEDERAL AVIATION ADMINISTRATION, Standards for Specifying Construction of Airports, ADVISORY CIRCULAR 150/5370-10F (2011), http://www.faa.gov/airports/ resources/advisory__circulars/index.cfm/go/document.current/ documentNumber/150_5370-10. 492 See § III.F. 493 Massport, Boston Logan Is the First Airport in the Na- tion to Use “Green” Asphalt on Runway (Sept. 19, 2009), avail- able at http://www.massport.com/news-room/News/Green AsphaltRunway.aspx (last visited June 15, 2012). 494 Id.

48 was allowed to use warm-mix asphalt on the runway.495 Warm-mix asphalt was used on the outer 37.5 ft of the edges of Runway 22L in 2008.496 According to the project contractor for Logan Airport, Aggregate Industries, performance-based contracts were used to address criteria such as air voids, stability, compaction, and grade standards. “Performance-based specifications on this job allow[ed] the contractor to off- set any penalties with bonuses achieved in meeting the outlined requirements monitored by quality control and the Massport consultants.”497 The contractor was able to receive 100 percent payment under the FAA specifica- tion.498 If the project meets long-term performance re- quirements, Boston Logan hopes to use warm-mix as- phalt rather than hot-mix asphalt in all future runway projects at the airport.499 At least one airport has chosen not to use warm-mix asphalt due to concerns about the lifespan and durabil- ity of the pavement: the City of Phoenix Aviation De- partment has determined that warm-mix asphalt can melt when exposed to the high temperatures experi- enced at that airport.500 2. Implement a Construction Vehicle Idling Plan, and Specify Low-Emissions Construction Vehicles and Equipment (ACRP 56 CN-03, CN-04) Airports may also adopt practices to reduce idling of construction vehicles and equipment.501 Anti-idling technology, signage, and promotional materials are among the strategies that have been considered by or adopted at U.S. airports, including Denver Interna- tional Airport.502 Reductions in idling can reduce emis- sions of both GHGs and traditional local air pollutants. ACRP 56 identified the implementation of a construc- tion vehicle-idling plan as one of the top 10 measures for reducing GHG emissions. A number of airports have also required that con- struction equipment used on airport projects meet emissions-related or fuel-efficiency requirements, in- 495 Massport, Boston Logan Is the First Airport to Use a Green Asphalt Runway: Warm Mix Asphalt Repaving to be Completed This Weekend (Sept. 19, 2009), http://www. massport.com/news-room/News/GreenAsphaltRunway.aspx (last visited June 15, 2012). 496 Id. 497 Greg Udelhofen, Boston Logan’s Warm Mix, AIRPORT BUSINESS, available at http://www.airportbusiness.com/ publication/article.jsp?pubId=1&id=26379&pageNum= 1 (last visited June 12, 2012). 498 Id. 499 Id. 500 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 489, at 19. 501 JANEA SCOTT ET AL., ENVIRONMENTAL DEFENSE FUND, CLEANER DIESEL HANDBOOK 44–50 (2005) (includes some ex- amples of anti-idling contract language), http://www.edf.org/ sites/default/files/4941_cleanerdieselhandbook.pdf. 502 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 489, at A-43 to A-44. cluding alternative fuel use, retrofit of older equipment, or purchase of newer units. While these requirements are typically targeted towards reductions of particulates and other traditional air pollutants, they could also re- duce GHGs in some circumstances.503 Until 2004, EPA’s emissions standards for construction equipment were not very stringent, allowing for substantial air pollu- tion.504 In 2004, EPA announced standards for new non- road diesel engines, but many older engines have long lifespans and are still in use at construction sites around the nation.505 Airports seeking to reduce emissions from older con- struction equipment in operation at their sites can ask contractors, through contract specifications, to clean up or replace older engines.506 Since 2004, Los Angeles World Airports has committed to requiring contractors to retrofit older nonroad engines used on the property for more than 20 days per calendar year with “best available emissions control devices.”507 Other airports, such as Chicago O’Hare, have adopted similar stan- dards.508 Airports have also considered and used contract preferencing, which encourages (but does not require) contractors to commit to emissions-reduction strategies during construction. Airports could also select the low- est-cost bidder but allow an additional contract allow- ance to fund diesel cleanup. The City of Atlanta set aside a diesel retrofit allowance for the winning bidder of a contract to construct a fifth runway at the airport in 2006.509 While technological constraints prevented the contractor from using retrofit technologies with the equipment in question, similar contract allowance pro- grams have been successfully applied in other con- texts.510 Because airports have the power to regulate many terms under which contractors may operate, the im- 503 For example, pollution filters targeting black carbon may provide net climate change benefits. MANUFACTURERS OF EMISSION CONTROLS ASSOCIATION, RETROFITTING EMISSION CONTROLS FOR DIESEL-POWERED VEHICLES 3 (2009), available at http://www.meca.org/galleries/default-file/MECA%20diesel %20retrofit%20white%20paper%201009.pdf. 504 SCOTT ET AL., supra note 501, at v. 505 Id. 506 Id. at 44–50 (2005). 507 LAX Master Plan Program, Community Benefits Agree- ment, § X.F (2004), available at http://www.ourlax.org/ commBenefits/pdf/LAX_CBA_Final.pdf (last visited June 15, 2012). 508 Michelle Cecchin et al., Green Construction Practices and Tracking 7–19, Presentation at Airports Going Green Confer- ence, Chicago, Ill. (Aug. 2009), available at http://www.airportsgoinggreen.org/Content/Documents/OMP% 20Case%20Study%20Green%20Construction%20Practices%20 and%20Tracking.pdf (last visited June 15, 2012). 509 ICF CONSULTING, EMISSION REDUCTION INCENTIVES FOR OFF-ROAD DIESEL EQUIPMENT 67–68 (2005), available at http://www.northeastdiesel.org/pdf/EmissionReductionIncentiv esICF.pdf. 510 Id. at 67–69.

49 plementation of this measure is unlikely to have any major legal implications. However, sponsors should al- ways keep in mind basic contractual issues that may arise with trying to change terms of existing agree- ments. In contrast, the ability of state and local govern- ments, including airports, to require private contractors to use low-emitting construction equipment under the police power would likely be preempted under the CAA, as discussed in Section III.A. However, as also dis- cussed in that section, airports may act as market par- ticipants even without direct acquisition of clean con- struction equipment through the use of contract specifications that commit third-party contractors work- ing on airport projects to the use of low-emitting vehi- cles. Some state governments require the use of green equipment specifications for all government-funded construction contracting.511 3. Recycle and Reuse Construction and Demolition Materials (ACRP 56 CN-02) Recycling or reusing construction and demolition materials can reduce life-cycle emissions by displacing the energy needed to develop new construction materi- als. Airports can promote the recycling and reuse of construction and demolition materials in a variety of ways, including: • Requiring contractors to develop a waste manage- ment plan that includes waste targets and proposed actions to reduce waste. • Providing contractors with a list of local companies that reuse and recycle materials. • Specifying minimum quantities of excess materials that will be accepted for return by a contractor in con- tracts. • Requiring regular submission of site waste recy- cling reporting forms. • Offering financial incentives to contractors that substantially exceed the requirements of a waste man- agement plan.512 Approximately half of airports surveyed in the GAO Report (71 of 141) indicated that they recycled or reused building materials in construction.513 Recycling may be prompted by the airport sponsor or may be required by state or local law. For example, the City of Chicago re- quires that construction projects permitted after 2007 recycle or reuse at least 50 percent of construction and 511 Publicly owned nonroad vehicles or vehicles used on pub- lic construction contracts may also be subject to retrofit re- quirements in New Jersey, New York, and Cook County, Illi- nois. N.Y. COMP. CODES R. & REGS. tit. 6, § 248 (2006); 39 N.J. REG. 3352(a) (Sept. 8, 2007); COOK COUNTY, ILL., CODE § 30-950 et seq. (2010). 512 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 489, at A-48 to A-50. 513 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 70. demolition waste from individual project sites.514 San Francisco International’s Terminal 2 renovation pro- gram recycled 90 percent of construction and demolition debris, producing an estimated one-time reduction in CO2 emissions of 12,300 tons.515 D. Carbon Sequestration Most carbon-mitigation strategies discussed and im- plemented by airports focus on reducing the amount of carbon emitted. Another form of global-warming miti- gation, carbon sequestration, focuses on taking CO2 out of the atmosphere. A number of potential carbon-sequestration tech- nologies, such as soil storage or carbon-capture and storage processes, are still in the research and testing phases of development. As carbon-sequestration tech- nologies approach market viability, they are likely to raise a host of regulatory issues that cannot be fully predicted at this time. Most sequestration projects are not likely to be practical in the airport setting due to the multiplicity of sources that are predominately mo- bile. Regardless of the specific sequestration method, some general legal issues may arise: • Limitations concerning use of airport revenue and passing on environmental costs to airport users.516 • State or local land use laws affecting the types of carbon-sequestration measures airports can imple- ment.517 • An evolving regulatory regime under both the Fed- eral CAA and CWA, particularly for underground se- questration practices and projects.518 EPA has become concerned about the air and groundwater impacts of some CO2 injection systems, in particular. • Prospective regulation regarding the quality and use of carbon credits. Finally, carbon-sequestration projects frequently last for extensive periods of time. If airports were to sell carbon credits that entail an airport contractual com- mitment to sequester carbon for an extended time pe- riod—including decades long—there could be questions about whether the potential for large future liabilities 514 CHICAGO, ILL., CODE § 11-4-1905 (2010). 515 San Francisco International Airport, Terminal 2: Sus- tainability, http://www.flysfo.com/web/page/about/T2/ sustainability/ (last visited June 15, 2012). 516 See § III.C. 517 See § III.I. 518 EPA, Mandatory Reporting of Greenhouse Gases: Injec- tion and Geologic Sequestration of Carbon Dioxide; Final Rule, 75 Fed. Reg. 75060 (Dec. 01, 2010) (to be codified at 40 C.F.R. Pts. 72, 78, and 98). Facilities that geologically sequester CO2 may also be subject to the permitting requirements under Safe Drinking Water Act Underground Injection Control (UIC) regu- lations. EPA, Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geo- logic Sequestration (GS) Wells, 75 Fed. Reg. 77230 (Dec. 10, 2010).

50 would cause concern under the preservation of rights and powers and self-sufficient airport grant assur- ances.519 Similarly, airports would need to ensure that they meet long-term lease and fair-market-value re- quirements. 1. Install Sustainable, Long-Term Vegetation and Invest in Terrestrial Carbon Sinks (ACRP 56 CS-01, CS- 04) For airports, one of the more viable sequestration strategies is the use of vegetation to sequester carbon. Vegetation sequesters carbon by converting atmos- pheric CO2 into organic matter. Planting or encouraging long-term vegetation (i.e., no or limited cutting or till- age) creates a terrestrial storage place for carbon. Air- ports can establish landscaping guidelines or policies that promote the use of sustainable, long-term vegeta- tion rather than shorter-lived plants such as annuals. When well-maintained or undisturbed, some plants can serve as carbon sinks for as long as several centuries.520 As with off-airport carbon-offset purchases, off- airport sequestration projects could raise significant revenue diversion concerns. On-airport projects may raise a number of questions, as well. The two most likely on-airport sequestration approaches would in- volve dedicating property to forests or no-till agriculture or grasslands. If this could be done without significant airport cost, it may not raise revenue diversion con- cerns, especially if the costs were comparable to the management of property airports already undertake or if other benefits to the airports arise. However, if air- ports contractually bind themselves to maintain the forests or grasslands for long periods of time in ex- change for payments, it would raise questions about self-sustaining airport principles.521 A long-term agree- ment would probably require FAA approval as a prop- erty release, much like a long-term nonaeronautical lease. If grasslands or forest were required to remain in place for 20 to 30 years (typical for some carbon cred- its), the property could not be used for most aeronauti- cal purposes. It could also not be used for many other types of nonaeronautical purposes. If these other uses could generate higher revenues, it raises questions about whether the airport is recovering fair market value for this property. Further, if the airport were able to sell carbon cred- its in exchange for its sequestration efforts, the pro- 519 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Mar. 2005) (Assurance 5–Preserving Rights and Powers; Assurance 24–Fee and Rental Structure; Assurance 31(c)–Disposal of Land), http://www.faa.gov/airports/aip/grant _assurances/media/airport_sponsor_assurances_2012.pdf. See § III.C.4. 520 Christer Jansson, Stan D. Wullsschleger, Udaya C. Kal- luri, & Gerald A. Tuskan, Phytosequestration: Carbon Biose- questration by Plants and the Prospects of Genetic Engineering, 60 BIOSCIENCE 685, 687 (Oct. 2010). 521 See § III.C.4. ceeds would be subject to revenue-diversion require- ments.522 On-airport sequestration implicates other important federal limitations on airport authority as well. In par- ticular, airports must ensure that such projects comply with the sponsor’s grant obligations, including the obli- gations not to encumber its title or interest in prop- erty523 and to avoid or mitigate hazards to air naviga- tion at airports.524 Trees near flight surfaces would require examination for potential flight risks, and any contracts relating to sequestration on airport property would probably need to contain provisions allowing the airport to cut vegetation that may pose a hazard to aviation. Further, airports will need to consider whether promotion or protection of certain types of for- estry, agriculture, or grassland could cause or retain wildlife hazards inconsistent with Part 139 obligations or the grant assurances. E. Energy Management The use of electricity, gas, and other fuels contrib- utes to GHG emissions whether the combustion occurs on or off the airport. Therefore, programs and projects to increase airport-related energy efficiency can reduce GHG emissions. Implementation of energy manage- ment measures may be particularly attractive to air- ports because of their effectiveness in reducing GHG emissions at relatively low cost. After personnel ex- penses, energy costs are often an airport’s largest oper- ating expense.525 Unsurprisingly, all but five of the 141 airport respondents to the GAO Report’s environmental survey reported the use of energy-conservation devices in their airports.526 Airports are likely to have direct control over much of the electricity and natural gas use at airports, par- ticularly related to temperature control and lighting in terminal and other buildings. To the extent that ten- ants control their own energy use, airports may be able to encourage, incentivize, or require tenants to take measures to improve energy efficiency. Airports may be able to include energy-efficiency requirements in air- port leases, contracts, minimum standards, and similar documents. 522 See § III.C.2. 523 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Mar. 2005) (Assurance 4–Good Title); see also 49 U.S.C. § 47106(b)(1), http://www.faa.gov/airports/aip/grant_ assurances/media/airport_sponsor_assurances_2012.pdf. 524 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Mar. 2005) (Assurance 8–Consultation with Us- ers), http://www.faa.gov/airports/aip/grant_assurances/ media/airport_sponsor_assurances_2012.pdf. See § III.F. 525 AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, RESEARCH RESULTS DIGEST 2, MODEL FOR IMPROVING ENERGY USE IN U.S. AIRPORT FACILITIES 12 (2007), http://onlinepubs.trb.org/onlinepubs/acrp /acrp_rrd_002.pdf. 526 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 68.

51 The green leasing provisions available in the follow- ing documents may offer helpful resources: • General Service Administration’s “Green Lease Policies and Procedures.”527 • Building Owners and Managers Association’s Guide to Writing a Commercial Lease.528 • Real Property Association of Canada’s National Standard Green Office Lease for Single-Building Pro- jects.529 • California Sustainability Alliance’s “Green Leases Toolkit.”530 The Minneapolis–St. Paul International Airport of- fers a recent example of an airport that is implementing extensive energy-management measures. In 2011, the airport finalized plans to undertake comprehensive en- ergy conservation efforts.531 The airport estimates sav- ings of over $4 million per year from upgrades to its mechanical, electrical, plumbing, lighting, building en- velope, and conveyance systems.532 1. Implement Energy Management Measures (ACRP 56 EM-08, EM-06, EM-18, EM-31, EM-38, EM-39, EM-37, EM-10, EM-01, EM-07) Of ACRP 56’s top 20 GHG emission-reduction meas- ures, 10 measures fell into the Energy Management category.533 These measures are listed here, and two are discussed in more detail in the subsections below: • EM-08, Use thermal imaging to identify energy losses. • EM-06, Develop and market an energy conserva- tion program for building users. • EM-18, Implement a lighting system energy con- servation program. • EM-31, Purchase Energy Star equipment. • EM-38, Install window awnings or sunshades. • EM-39, Utilize sophisticated energy models for building design. • EM-37, Incorporate use of natural ventilation and economizer control. 527 http://www.gsa.gov/portal/content/103656. 528 Available from author upon request. 529 http://files.ali-aba.org/thumbs/datastorage/skoobesruoc /source/CP010_Yi--RealPac_Green_Office_Lease_thumb.pdf. 530 http://sustainca.org/green_leases_toolkit; See generally Pablo O. Nuesch, Beyond Environmental Compliance: Green Leasing, Presentation to Airports Council International–North America Spring Legal Issues Conference, San Antonio, Tex., Apr. 16, 2010, available at http://74.209.241.69/static/ entransit/9-2-Nuesch_BeyondEnvironmentalCompliance.pdf. 531 Brian Johnson, MSP Airport Plans Energy, Restroom Upgrades (Jan. 9, 2012), available at http://finance- commerce.com/2012/01/msp-airport-plans-energy-restroom- upgrades. 532 Id. 533 ACRP 56, tble. ES-5, items 2, 3, 9, 11, 12, 13, 14, 15, 19, 20, http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_056.pdf. • EM-10, Change set points or exclude selected zones from heating and cooling. • EM-01, Develop a strategic energy management plan. • EM-07, Evaluate fuel mix. Because these measures deal with the airport’s in- ternal management, they are not likely to implicate major legal concerns, aside from general contract and landlord–tenant issues. However, state and local regu- lation could affect airports’ efforts in some cases. See Section III.I. In particular, local zoning, building, and safety—especially electrical codes or utility codes re- lated to energy metering—may place restrictions on projects that require structural or other system design changes. On the other hand, some state and local laws actively encourage airport energy management projects through incentives for energy conservation. State or local tax credits could help to underwrite energy- efficient equipment purchases, such as Energy Star equipment. Similarly, utilities might agree to help fi- nance some upgrades or renovations as part of a state- mandated, demand-side management program. Such efforts could be integrated with efforts to develop en- ergy management programs and energy models for building design.534 2. Implement a Lighting System Energy Conservation Program (ACRP 56 EM-18) Lighting at airports can account for up to 40 percent of airport electrical use.535 Airport efforts to conserve energy from lighting terminals and other facilities (aside from the runways and taxiways discussed below) can take many forms. One of the most common meas- ures airports have taken to improve lighting-system efficiency is the installation of energy-efficient lighting fixtures. One-hundred and -seven of the 141 GAO Re- port’s survey respondent airports indicate that they use energy-efficient lighting at their airports. Another 50 airports have automated dimmer switches for lighting, and 27 airports report the use of room occupancy sen- sors.536 ACRP has previously investigated energy conserva- tion at airports and has identified energy management control systems, also known as building automation systems, as a best practice.537 Automatic lighting sys- tems react automatically to the operating environment and can adjust as necessary.538 For example, such a system might dim artificial lighting in the presence of 534 See § III.H.2. 535 AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, SYNTHESIS 21, AIRPORT ENERGY EFFICIENCY AND COST REDUCTION 27 (2010), http://onlinepubs.trb.org/onlinepubs/acrp/acrp_syn_021.pdf. 536 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 68. 537 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 525, at 11–13. 538 Id. at 10.

52 natural illumination from daylighting or skylighting. A control system could also turn off noncritical systems during peak demand periods, which could provide eco- nomic benefits to airports using real-time or time-of-use utility pricing. The installation of lighting controls at airports has an estimated payback period of 2 to 10 years.539 As noted above, this measure does not involve major legal concerns aside from general contracting and land- lord–tenant issues. For example, a sponsor’s ability to require its tenants to engage in certain energy conser- vation practices through an energy conservation pro- gram might be limited by existing contractual or leas- ing obligations with these tenants. In such cases, the expiration of contracts and leases can provide good op- portunities for airport authorities to negotiate new terms. 3. Purchase Energy Star Equipment (ACRP 56 EM-31) Energy Star is a federal program designed to identify energy-efficient equipment and products, making it easy for consumers, including airports, to recognize and purchase these products and reduce their energy con- sumption and related pollution. Energy-savings re- quirements may vary based on the type of product and available technologies. Energy Star equipment exists in a variety of product categories, including computer equipment, copiers and fax machines, water coolers, televisions, commercial lighting, and commercial heating and cooling products. Detailed information on airport use of Energy Star equipment is not readily available. Anecdotal evidence, however, indicates that the practice is fairly common. For example, 67 of 141 airports responding to the GAO Report environmental survey indicated that they have an Energy Star heating, ventilation, and air condition- ing (HVAC) system.540 As with the measures listed above, this measure does not involve any major legal concerns aside from general contracting and landlord-tenant issues. 4. Enter Into a Green Power Purchase Agreement (ACRP 56 EM-04) In addition to reducing the use of energy, airports can reduce the GHG footprint of consumed electricity by purchasing power that is generated with fewer GHG emissions per kilowatt-hour. “Green” power emits fewer GHGs than conventional power and is frequently sourced from renewable resources such as wind or solar facilities. Airports or general purpose governments can procure “green” power through power purchase agree- ments (PPAs), which often address means of genera- tion, pricing, and other elements of power production. 539 Individual airport payback periods may vary based on conditions such as utility rates, hours of operation, design con- dition requirements, etc. Id. at 13. 540 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 68. A number of airports use PPAs to procure green power. For example, Fresno Yosemite International Airport recently entered into a PPA with a third party that operates a 2.4 megawatt solar array to fuel ap- proximately 40 percent of the airport’s everyday light- ing, air conditioning, and control and tower communica- tions equipment needs.541 The project is projected to save the airport more than $13 million in electricity costs over 25 years.542 Between June 2008 and Decem- ber 2010, Fresno Yosemite’s purchase of green power avoided approximately 8,200 tons of CO2 that would have been produced if the airport’s energy had been generated by coal.543 Denver International Airport also procures solar power through PPAs.544 An example of the PPA legal language at Denver International Airport is available in the FAA’s 2010 Technical Guidance for Evaluating Selected Solar Technologies at Airports.545 PPAs are simply contracts in which one party agrees to purchase power generated by another party. Often, the third-party developer owns, operates, and main- tains generation infrastructure located on the pur- chaser’s property.546 However, there is no universally standard PPA, because each is the product of individual needs and circumstances and must also conform to state and local regulatory requirements. Some of the terms that PPAs will likely need to address include: • Responsibility for initial financing. • Contract term and price. • Minimum purchase and generation requirements. • Location of the energy-generating resources. • Ownership of the energy-generating resources. • Maintenance of the energy-generating resources. • Risk of loss. • Assumption of tax benefits or liabilities. • Ownership of RECs, if any, associated with the project. These terms will need to be considered through the lens of reasonableness to ensure that the PPA promotes the airport’s long-term aeronautical mission. The development of PPAs for power generated at airports can raise other unique issues. If PPAs provide that power generation resources are to be sited on air- port land, long-term lease issues may arise as discussed 541 Matthew McDermott, Solar Power Array Installed at Fresno Yosemite International Airport, TREEHUGGER (July 17, 2008), http://www.treehugger.com/files/2008/07/solar-power- array-fresno-international-airport.php. 542 Fresno Yosemite International Airport, Solar Report, http://webkiosk.mypvdata.net/c/fresno_airport/ (last visited June 15, 2012), http://webkiosk.mypvdata.net/c/fresno_ airport/index.php?pg=weekly&hl=weekly. 543 Id. 544 FEDERAL AVIATION ADMINISTRATION, supra note 239, at 51. 545 Id. at App. D. 546 U.S. Environmental Protection Agency, Solar Power Purchase Agreements (2010), http://www.epa.gov/greenpower/ buygp/solarpower.htm (last visited June 15, 2012).

53 above in the context of carbon-sequestration ap- proaches.547 A long-term lease of land for electricity generation (including lease provisions in a PPA) might be considered an encumbrance on title in violation of FAA grant assurances and thus require a land release from FAA depending on how the power and other bene- fits flow to the airport. Further, ALP approval, land use, and environmental approvals would need to be addressed.548 As with all airport spending, limitations on revenue use and grant restrictions may apply to airport PPAs.549 The direct purchase of power generated by a third party may be considered a more appropriate revenue use than the separate purchase of RECs. The purchase of power produced at or near an airport for use by the airport clearly serves an aeronautical purpose. Use of airport funds and creation of airport risk for a commercial power venture that services other public demand or municipal demand would raise many more questions. Incremental costs of green energy contracts are compa- rable to additional costs of other emission-reduction measures on the airport, such as the purchase of low- emitting GSE, and should be justified in the same way. Whether unbundled RECs (i.e., RECs sold by them- selves and not with the purchase of actual power) serve an aeronautical purpose could be a harder argument to make. RECs create a market incentive for the genera- tion of renewable energy, frequently through subsidiza- tion of existing renewable energy production. However, there is typically no assurance that the renewable en- ergy generated in the production of a REC will be con- sumed by the REC purchaser, or even their supplying energy utility. Airport purchases of RECs may thus be more akin to off-airport carbon offsets and raise similar self-sustainability and revenue diversion questions. For a more detailed discussion of carbon markets and air- ports, see ACRP Report 57.550 F. Ground Service Equipment GSE engines are a significant source of GHG emis- sions on an airport and are often easier to control than aircraft or ground access vehicles. Airports, airlines, FAA, and others have worked for many years to reduce GSE emissions through the use of alternative fuels and other approaches, but there are additional opportunities for GHG reductions from GSE at most airports. 547 See §§ III.C and III.F. 548 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Assurance 4–Good Title), http://www.faa.gov/ airports/aip/grant_assurances/media/airport_sponsor_ assurances_2012.pdf; see also 49 U.S.C. § 47106(b)(1). 549 See § III.C. 550 See ACRP Report 57, The Carbon Market: A Primer for Airports, http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_057.pdf. 1. Support Alternatively Fueled Ground Service Equipment (ACRP 56 GS-01) Although airports own some ground-based equip- ment, a large share of GSE at airports is owned by air- lines, cargo handlers, or FBOs.551 Airports may be able to require, incentivize, or assist tenants in procuring and using equipment that operates on alternative fuels. These various strategies and their accompanying legal considerations are discussed below. a. Procurement of GSE.—Many airports purchase and operate their own alternative-fuel GSE, which has been a way for many airports to improve local air qual- ity in areas not meeting federal health-based air quality standards. Of the 141 airports responding to GAO Re- port’s survey, 15 airports indicated that alternatively fueled vehicles comprised more than half of their fleet, 14 indicated that they comprise about half their fleet, and 65 airports indicated that they had some alterna- tively fueled vehicles.552 For example, 84 percent of Los Angeles World Airports’ pool vehicles are natural gas vehicles.553 Sponsors seeking to procure alternative-fuel vehicles for their own GSE may need to adopt airport policies to allow or encourage these developments. For example, airports may need to update procurement lists to add a preference for alternative-fuel vehicles, or authorize increased purchase prices to account for the incre- mental cost of alternative-fuel vehicles. b. Providing Incentives for Tenant Use of GSE.— Airports can also encourage their tenants to use alter- natively fueled GSE. Financial incentives are the least- intrusive measures through which airports might do this. Financial incentives may be an attractive option where existing use and lease agreements (or other con- tracts) limit an airport’s immediate ability to impose restrictions on tenant vehicle use. Varying fees based on vehicle emissions or fuel type is one potential pre- ferred-pricing mechanism. The expiration of leases, use agreements, and other contracts provides an opportu- nity for airport authorities to renegotiate contracts to include mandatory or other alternative-fuel vehicles provisions. However, airport operators should be aware that requirements relating to alternatively fueled vehi- cle use at airports are subject to reasonableness, exclu- sive rights, and unjust discrimination considerations.554 c. Building Infrastructure to Support Tenant Use of GSE.—To support efforts to incentivize GSE, airports can build alternative-fuel vehicle infrastructure at or 551 PHILADELPHIA INTERNATIONAL AIRPORT, A STRATEGIC PLAN FOR THE EXPANSION OF THE CLEAN FUEL VEHICLE PROGRAM AT PHILADELPHIA INTERNATIONAL AIRPORT 37 (2004), available at http://www1.eere.energy.gov/cleancities/pdfs/phl_ afv_strategy_plan.pdf. 552 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 45. 553 LOS ANGELES WORLD AIRPORTS, SUSTAINABILITY REPORT 22 (2009), available at http://www.lawa.org/uploadedFiles/ LAWA/pdf/Sustainability%20Report%20(7-14-08).pdf. 554 See § III.E.

54 near the airport, such as clean natural gas or liquefied natural gas fueling facilities, biodiesel fuel pumps, or electric-vehicle-charging stations (including upgraded distribution lines). To build GSE infrastructure, airports may choose to take a “Service Performance” approach and release an RFP for fueling infrastructure requiring bidders to meet certain requirements such as minimum functional ca- pacity requirements.555 Under this approach, specifics of station design (i.e., equipment to be used, location of components, etc.) are left to bidders. Under the Clean Fuel Project at the Philadelphia International Airport, third parties bidding on Service Performance RFPs for alternative fueling stations are likely to seek “take-or- pay” agreements committing airports to minimum fuel volume commitments.556 The reasonableness of the terms of such commitments is likely to receive scrutiny from airlines and other users under revenue diversion, self-sustaining airport, and related principles. Airports can also choose to undertake the design of fueling or charging stations themselves. According to the GAO Report, 52 of the 141 respond- ing airports indicated that they provide infrastructure for electrified ground equipment.557 At least 21 airports currently have natural gas stations; at least another eight were in the design, build, or permitting process.558 It is not clear how many of the stations in the GAO Report were on the airside or landside of the airports, but the location of fueling stations is an important con- sideration for airports, because security concerns may limit the ability of vehicles to travel between the air- sides and landsides of airports. For example, taxis are not practically able to enter the airside of the airport, while baggage tugs, belt loaders, and some other GSEs might not be street-legal and able to access a fueling station on the landside of the airport. d. Requiring Tenant Use of GSE.—In areas where compliance with air quality standards is a challenge, airports have explored requiring tenants to procure and use alternative-fuel GSE. The imposition of such re- quirements is the most aggressive position that airports can take with regard to this measure. It involves man- dates to tenants to convert some or all of the GSE to lower-emitting units, such as through the use of electric equipment. The implementation of this measure merits serious legal consideration. Courts have confirmed that states can require the use of low-emissions construction vehi- cles and equipment by government fleets as an exercise 555 PHILADELPHIA INTERNATIONAL AIRPORT, supra note 551, at 44. 556 Id. at 45. 557 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 44. 558 Dan Huberty, Funding Natural Gas Fueling Stations 2, Presentation on Behalf of Clean Energy to Airports Going Green Conference, Chicago, Ill., Nov. 16, 2010, available at http://www.airportsgoinggreen.org/Content/Documents/dan%20 huberty.pdf. of their market power without running afoul of preemp- tion under the CAA, so long as the costs are reason- able.559 However, the edges of the doctrine are not pre- cise. Based on existing case law, airports are likely to be on the strongest ground under this doctrine if conver- sion of the GSE would help meet regulatory require- ments or facilitate airport development. If the mandate would interfere with airline or aircraft operations (for example, by reducing operations or affecting the use of particular aircraft), the airlines could also make plausi- ble preemption arguments under the federal aviation laws. However, these preemption arguments could probably be addressed through careful tailoring of the rules to avoid impacts on aircraft operations. e. Federal Funding for Supporting GSE.—The FAA offers support for alternative fuel GSE through its VALE program.560 VALE funding may be available to help cover the costs of some of these vehicles for air- ports in nonattainment areas for criteria pollutants.561 Through this program, the FAA has awarded AIP fund- ing to several airports—including Lehigh Valley Inter- national, University Park, Philadelphia International, Norman Y. Mineta San Jose International, Westchester County, and George Bush Intercontinental Houston— for the purchase of low-emitting GSE.562 Low-emissions systems and other air quality projects that are not funded through the VALE program must be a sponsor’s compliance responsibility under the CAA to receive AIP funding. 563 As with the VALE program, AERCs must be acquired for stand-alone, low-emissions vehicle or equipment AIP projects.564 Airports funding the acquisition of low-emission ve- hicles through FAA’s VALE or AIP programs will need to contractually commit to maintaining and using low- emission vehicles for which AERCs are procured for their useful life.565 Additionally, funded vehicles must be “dedicated to the airport” and “used in close prox- imity to the airport boundary.”566 These vehicles may 559 See §§ III.A.1 and III.C. 560 Federal Aviation Administration, Voluntary Airport Low Emissions Program (VALE), available at http://www.faa. gov/airports/environmental/vale/ (last visited June 15, 2012). 561 See § III.D.3. 562 Federal Aviation Administration, VALE Program Grant Summary FY 2005–FY 2011, available at http://www.faa.gov/ airports/environmental/vale/media/VALE_grant_summary.pdf (last visited June 15, 2012). 563 FEDERAL AVIATION ADMINISTRATION, Order 5100.38C, AIRPORT IMPROVEMENT PROGRAM HANDBOOK § 585(a) (2005), available at http://www.faa.gov/airports/resources/ publications/orders/media/aip_5100_38c.pdf. 564 Id. 565 U.S. ENVIRONMENTAL PROTECTION AGENCY, GUIDANCE ON AIRPORT EMISSION REDUCTION CREDITS FOR EARLY MEASURES THROUGH VOLUNTARY AIRPORT LOW EMISSION PROGRAMS 13 (2004), http://www.faa.gov/airports/resources/ publications/reports/environmental/media/AERC_093004.pdf. 566 FEDERAL AVIATION ADMINISTRATION, Order 5100.38C, AIRPORT IMPROVEMENT PROGRAM HANDBOOK § 585(b) (2005), available at http://www.faa.gov/airports/resources/publications/

55 not be transferred out of the project geographic area, even where a potential transfer site is also out of com- pliance with federal air quality standards.567 EPA fur- ther recommends that project sponsors develop and maintain usage records and use these records to update emissions-reduction estimates.568 f. Other Legal Considerations.—Because some ALP amendment may be necessary to place charging sta- tions on a new footprint and federal funds or PFCs could be involved, NEPA and federal environmental statues may apply.569 Charging stations or CNG fuel facilities are unlikely to require extensive environ- mental review, because they tend to be located on al- ready-developed property or to involve a small physical footprint. Additionally, state or local substantive environ- mental laws or fire, safety, and electric codes may be implicated.570 For example, a number of states, includ- ing California and Texas, regulate CNG and liquefied natural gas fuel storage or dispensing.571 Michigan also regulates the installation of CNG fueling stations in the state and requires all such stations to be certified by its Department of Natural Resources and Environment.572 State or local laws and regulations are often useful for maximizing the potential benefit of alternative-fuel measures. Airports have been able to work with air quality regulators to secure and “bank” air quality cred- its for future development in exchange for clean GSE programs even outside of the VALE context. For exam- ple, Seattle–Tacoma International Airport was able to work with the Puget Sound Clean Air Agency to earn AERCs for deployment of CNG vehicles.573 The airport was able to “bank” these credits for up to 10 years to meet future emissions-reductions needs.574 Wisconsin’s Department of Natural Resources had developed a simi- lar program, the Wisconsin Voluntary Emission Reduc- tion Registry, which specifically contemplates the bank- ing of GHG emissions-reductions credits to demonstrate compliance in the event of future regulation of global warming pollution.575 However, this program was dis- orders/media/aip_5100_38c.pdf. 567 U.S. ENVIRONMENTAL PROTECTION AGENCY, supra note 565, at 13. 568 Id. at 14. 569 See § III.J. 570 See §§ III.I and III.K. 571 CAL. CODE REGS. tit. 8, §§ 523–544; 16 TEX. ADMIN. CODE §§ 13-14. 572 MICH. ADMIN. CODE r. 29.4601–29.4652 (1995); Michigan Business One Stop, Storage Tank Compressed Natural Gas Site Plan Certification, http://www.michigan.gov/statelicense search/0,1607,7-180-24786_24825-245026--,00.html (last vis- ited June 15, 2012). 573 PHILADELPHIA INTERNATIONAL AIRPORT, supra note 551, at A23. 574 Id. 575 Id. at A29 et seq. (2004) (citing Wisconsin Department of Natural Resources, The Wisconsin Voluntary Emission Reduc- tion Registry, Draft Document (2002)). continued in 2008.576 Airports should consider whether there are options to “bank” benefits of an alternative- fuel project for future use. G. Ground Transportation By design, large airports attract millions of visitors per year. Major U.S. airports also host an average of 40,000 daily employees.577 This translates into a large number of daily vehicle trips to airports that generate significant GHG emissions. Thus, airports have ex- plored measures that would reduce the number of trips to airports (through public transit and shared rides) and the amount of emissions per trip (through cleaner, more efficient vehicles and restrictions on idling). According to the GAO Report, most airports reported that they had some programs and infrastructure in place to reduce emissions from ground transportation. Fifty-one airports reported that they had no transporta- tion programs in place to reduce emissions.578 Thirty of the respondent airports indicated that they have no transportation facilities to reduce emissions, such as taxi-idling areas, passenger pickup lots, or consolidated car-rental facilities.579 1. Promote Public Transit to the Airport and Increase Mass Transit Access to the Airport (ACRP 56 GT-03, GT-05) Increasing the share of passengers that use public transit can reduce potential car trips, and thus reduce GHG emissions. However, a recent ACRP effort re- ported that only 27 U.S. airports have a public trans- portation (rail, bus, and shared van) mode share of more than 6 percent.580 Only two-thirds of airports re- sponding to the GAO Report’s survey have a public bus stop; only a quarter have a rail station.581 576 Wisconsin Department of Natural Resources, The Wis- consin Voluntary Emission Reduction Registry, available at https://docs.google.com/viewer?a=v&q=cache:MSFz9aJe7c4J:w ww.nescaum.org/projects/greenhouse-gas-early-action- demonstration-project/ghg-state-registry-collaborative/ wisconsin.pdf+Wisconsin+Department+of+Natural+ Resources,+The+Wisconsin+Voluntary+Emission+ Reduction+Registry&hl=en&gl=us&pid=bl&srcid= ADGEESidF0H1G6FdFffGRW3NhohPk4z0TSN3S7be C90QG26-Mc-dqhaB82exriWRZaLEADVcnaVi7BAa948S1 5yTSYZUZwF2d91U7IdEIQNaMB8YUM4LjS1hTTO2WoVE5 KrMM1kFTN50&sig=AHIEtbQ8V2RhofnUIFmR9YMhjdZGW JH6yA. 577 AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, REPORT 4, GROUND ACCESS TO MAJOR AIRPORTS BY PUBLIC TRANSPORTATION 12 (2008), http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_004 .pdf. 578 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 42. 579 Id. at Q 43. 580 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 577, at 35. 581 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 43.

56 Many airports have made efforts to improve transit accessibility and ridership through a variety of strate- gies. For example, airports have worked with local transit agencies to improve their connections with cen- tral business districts and larger transit systems, estab- lish more reliable service, expand mass transit infra- structure, and provide access to transportation services in or near the terminal.582 Efforts to improve transit to airports implicate legal questions about federal funding. Congress has specifi- cally encouraged the construction of intermodal transit systems at airports, declaring that it “is the policy of the United States…(5) to encourage the development of intermodal connections on airport property between aeronautical and other transportation modes and sys- tems to serve air transportation passengers and cargo efficiently and promote economic development.”583 How- ever, in so declaring, Congress did not alter any of the underlying legal standards applicable to airport capital projects, including the use of airport revenue for aero- nautical purposes. FAA has stated that a transit project can be funded with airport revenue if it can be considered 1) a capital cost of the airport, or 2) a local facility owned or oper- ated by the airport owner or operator and directly and substantially related to the air transportation of pas- sengers or property.584 FAA has further stated that ground access projects will be considered a capital cost of the airport only if they are on the airport, constructed exclusively for airport use, and integrated into the airport terminal complex…. All other ground access facilities would be evaluated against the requirement that they be facilities “owned or operated by the airport owner or operator and directly and substan- tially related to the air transportation of passengers or property.”585 Some ambiguity exists as to whether airport revenue may be used for facilities that are located off the air- port. On the one hand, FAA has, in the past, advised that airport revenue may only be used for transit facili- ties located on the airport. On the other hand, the stat- 582 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 577, at 30. 583 49 U.S.C. § 47101(a). 584 Federal Aviation Administration, Policy and Procedures Concerning the Use of Airport Revenue, 64 Fed. Reg. 7696, 7718 (Feb. 16, 1999); FEDERAL AVIATION ADMINISTRATION, BULLETIN 1: BEST PRACTICES–SURFACE ACCESS TO AIRPORTS 3, available at http://www.faa.gov/airports/resources/ publications/reports/media/bulletin_1_surface_access_best_ practices.pdf (last visited June 12, 2012). See § III.C. 585 FEDERAL AVIATION ADMINISTRATION, BULLETIN 1, supra note 584, at 3–4, defining “operate” to mean that the local or state government or authority that owns or oper- ates the airport is legally responsible for the operation of the ground access facility (e.g., transit system), and operates the fa- cility either with its own employees or through a management contract with a private firm or other public agency. Subsidy of the local transit system is not considered “operation” of the sys- tem by the airport. ute appears to permit the use of airport revenue for facilities that are located off the airport. Additionally, FAA’s Bulletin 1: Best Practices—Surface Access to Air- ports (the Bulletin) also seems to recognize use of air- port revenue for off-airport use as permissible. Specifi- cally, the Bulletin provides that airport revenue cannot be used for any part of the project that is not “necessary for the purpose of serving airport passengers.”586 It fur- ther provides that “airport funds must be prorated to airport use” based on ridership.587 However, a rail sys- tem that was designed and constructed for the exclusive use of airport passengers, which carries nonairport pas- sengers only incidentally, would not require prorating costs.588 These provisions of the Bulletin suggest that the FAA contemplates the use of airport revenue for certain transit facilities off-airport, as long as they are “necessary…for serving airport passengers.”589 AIP funds and PFC revenue can be used for ground access projects 1) to connect the transit system to the nearest transit line of sufficient capacity to accommo- date airport traffic, and 2) that are located on-airport or within a right-of-way owned by the airport sponsor.590 While airport revenue can be used to fund the airport- related portion of a transit project carrying nonairport passengers, AIP grants and PFC revenue eligibility are strictly limited to projects exclusively serving airport passengers.591 This is the principal difference between the AIP/PFC eligibility requirements and the conditions on use of airport revenue for transit projects. 586 Id. at 5. 587 Id. 588 Id. at 4–5. 589 Id. 590 FEDERAL AVIATION ADMINISTRATION, Order 5100.38C, AIRPORT IMPROVEMENT PROGRAM HANDBOOK §§ 620, 622(b) (2005), available at http://www.faa.gov/airports/resources/ publications/orders/media/aip_5100_38c.pdf; the current eligi- bility standards for PFCs are explained in the FAA’s Policy and Procedures Concerning the Use of Airport Revenue, 64 Fed. Reg. 7696, 7718 (Feb. 16, 1999). See also Air Transport Asso- ciation of America v. FAA, 169 F.3d 1 (D.C. Cir. 1999) (Affirm- ing FAA approval’s of an Airport Layout Plan amendment to extend the JFK airport boundary to encompass the right-of- way for a light rail system along a narrow corridor extending several miles beyond the previous boundary, holding “there is nothing in the Handbook or the statute or regulations that indicates that airport-owned rights-of-way are outside the ‘air- port boundary,’ and the FAA is reasonable in construing its own interpretive guidelines to mean that rights-of-way are within the airport boundary.”). 591 FEDERAL AVIATION ADMINISTRATION, Order 5100.38C, AIRPORT IMPROVEMENT PROGRAM HANDBOOK §§ 620, 622(b) (2005), available at http://www.faa.gov/airports/resources/ publications/orders/media/aip_5100_38c.pdf; the current eligi- bility standards for PFCs are explained in the FAA’s Policy and Procedures Concerning the Use of Airport Revenue, 64 Fed. Reg. 7696, 7718 (Feb. 16, 1999).

57 Examples • The FAA approved San Francisco’s use of airport revenue to construct an on-airport station connecting the Bay Area Rapid Transit (BART) system and the Airport Rapid Transit system based in part on the un- derstanding that San Francisco would own the transit facilities. The FAA also emphasized the fact that the station would be used primarily, perhaps exclusively, by airport passengers and employees.592 The FAA approved the use of airport revenue for a fixed-guideway system located on-airport on the same basis.593 The FAA char- acterized the airport-dedicated transit system to be an airport capital project, but advised that the BART ex- tension would not be an airport capital project and in- stead would need to meet statutory revenue use criteria discussed above.594 FAA also approved San Francisco’s use of airport revenue for certain rail-line operating systems on the condition, among others, that “airport funding is limited to the portion of the equipment re- lated to the [San Francisco International Airport] sta- tion and not the BART main line.”595 The FAA generally advised that airport revenue could be used on a pro- rated basis for items that are only partly airport- related,596 but did not examine any specific proposal for prorating costs. • The FAA approved the use of airport revenue to pay the full cost of two on-airport stations for a light rail project at Minneapolis–St. Paul International Air- port. The project also involved the development of an underground rail line; however, the airport was not the intended terminus of the line, meaning that nonairport passengers would be using the transit system to travel through the airport. Approval of use of airport revenue for the station costs was granted on the basis that the stations would be used exclusively by airport passen- gers; the use of airport revenue was authorized only to cover a percentage of the cost of the tunnel, prorated based on the relative number of airport and nonairport passengers.597 While the Bulletin states that airport revenue can be used only where the rail project is in- tended and projected to be used primarily by airport passengers, the FAA permitted the use of airport reve- nue for segments of the light rail system where less 592 Letter from Susan Kurland, FAA Associate Administra- tor for Airports, to John Martin, San Francisco International Airport, at 6 (Oct. 18, 1996). 593 Id. at 6–7. 594 Id. at 6 (Oct. 18, 1996); see also 49 U.S.C. § 47107(b)(1)(C). 595 Letter from Susan Kurland, FAA Associate Administra- tor for Airports, to John Martin, San Francisco International Airport, at 7–8. 596 Id. at 5. 597 Letter from David Bennett, FAA Office of Airport Safety and Standards, to Thomas Tinkham (Nov. 21, 2000); Letter from Nancy Nistler, FAA Minneapolis Airports District Office, to Nigel Finney, Metropolitan Airports Commission (Apr. 25, 2000). than half of the projected transit riders would be air- port passengers, including one particular segment where only 14 percent of the projected transit riders would be airport passengers.598 In addition to mass transit solutions, airports can encourage modes of transportation that also reduce the number of car trips to and from the airport. For exam- ple, airports can encourage the use of van shuttles for passengers. To do this, airports can provide open access or exclusive/semi-exclusive concession agreements for ground access. Exclusive or semi-exclusive contracts may require concessionaires to provide some minimum level of service, which may help to increase the percep- tion of reliability and, thus, use of shared van services. However, passengers may prefer a more competitive market with lower fares. Airports can also try to en- courage or require the use of more efficient shuttle ve- hicles with lower emissions. Additionally, airports can encourage use of shared-use vehicles by providing high- occupancy-vehicle lanes or special access to passenger drop-off areas for shared vans and buses. 2. Support Alternatively Fueled Taxis (ACRP 56 GT-17) Airports can support or seek to require the use of al- ternatively fueled taxis or buses at airports through a number of means. As discussed above, airports can fa- cilitate access to natural gas or other alternative-fuel stations in the vicinity of airports. Airports may also be able to provide alternative-fuel taxis, buses, or other vehicles with preferential access, relative to conven- tional vehicles, to passenger drop-off and pickup points. These strategies and their legal implications are de- scribed below. a. Requiring Alternatively Fueled Taxis.—An air- port’s ability to require that private taxi fleet operators purchase alternatively fueled vehicles has not yet been directly tested in court, but it is possible that such a policy would be challenged under the preemption provi- sions of the CAA discussed in Section III.A.1. However, airports would have a strong counterargument to these claims under the market participant doctrine presented in Section III.A.1.c. Efforts to negotiate alternatively fueled vehicle commitments into contracts may also be made more challenging at most airports by complex and varying ownership regimes for taxis. For example, airports are likely to face greater challenges negotiating contracts that favor alternative-fuel taxis where vehicles are in- dividually owned by drivers, rather than by taxi com- panies. The situation would be less complex in situa- tions where the airport negotiates with a single or limited number of companies. b. Providing Incentives for Use of Alternatively Fu- eled Taxis.—Generally, airports have the legal author- ity to impose access fees, charges, and conditions on off- airport businesses that access the airport—strategies that can be used to encourage the use of alternatively 598 Id.

58 fueled taxis.599 For example, airports can require shut- tles or buses to use different lanes than those used by taxis or passenger vehicles within the airport to reduce congestion at an airport. However, state or local restric- tions may limit the ability of airports to condition access to certain roads classified as public streets. Similarly, other governmental entities (e.g., public utilities com- missions) may have primary responsibility for regulat- ing taxis, buses, shuttles, and vans, such that some airport-imposed measures to reduce GHG emissions from those vehicles would be preempted as a matter of state law. Airports may also be able to incentivize adoption of alternative-fuel vehicles by private operators through contracting, concession, or permitting programs for ground transportation services. Similarly, some airports have included measures to encourage rental car opera- tors to make greater numbers of clean vehicles avail- able to rent. For example, San Francisco International Airport’s contracts with rental car providers include incentives for customers and companies to increase rentals of cleaner vehicles.600 One particular type of incentive scheme has gener- ated litigation from taxi drivers—the taxi “queue jump.” This scheme gives taxi drivers operating electric or hy- brid-electric vehicles an advantage by pushing higher- emitting vehicles to the back of the line. In March 2010, the City of Dallas enacted an ordi- nance authorizing taxicabs operating on CNG to ad- vance to the “head of the line” and pick up customers before all other taxis at Dallas Love Field Airport.601 The City enacted the legislation to improve air quality in the Dallas area, a CAA nonattainment area for ozone pollution. The ordinance was challenged by the Associa- tion of Taxicab Operators, USA, a Texas nonprofit or- ganization representing its members.602 According to the complaint, only 8 to 10 of hundreds of taxicabs cur- rently operating at Love Field are fueled by CNG.603 Taxicab Operators alleged that the ordinance was a “standard relating to the control of emissions from new motor vehicles,” in violation of the CAA’s Section 209(a) preemption provision.604 The Association sought injunc- tive relief, restraining Dallas from enforcing the chal- 599 See § III.C.5. 600 Press Release, San Francisco International Airport, Mayor Newsom Kicks Off “Green” Rental Car Program at SFO (Jan. 13, 2009), available at http://www.flysfo.com/web/page/ about/news/pressrel/2009/sf0903.html. 601 Frank Heinz, CNG Cabs Can Cut to the Front, NBC DALLAS FORTH WORTH, Mar. 10, 2010, available at http://www.nbcdfw.com/traffic/stories/CNG-Cab-Can-Cut-to- the-Front-87263992.html. 602 Complaint at ¶ 2, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K (N.D. Tex. Apr. 15, 2010). 603 Complaint at ¶ 13, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K (N.D. Tex. Apr. 15, 2010). 604 42 U.S.C. § 7543(a); see § III.A.1.b. lenged regulation.605 In the City’s responsive motion, it framed the ordinance as an incentive program rather than an emissions mandate.606 The City also empha- sized the lack of mandated quantitative emissions lev- els, purchase requirements, mandated emissions con- trol technology, and penalty or fee system.607 Further, the City emphasized that the City, as the airport owner, has proprietary authority to regulate the types of vehi- cles in operation at the airport.608 In August 2010, the U.S. District Court for the Northern District of Texas denied the Association’s re- quest for a preliminary injunction, making a prelimi- nary finding that the Association had failed to demon- strate that the City’s ordinance is an emission standard under federal law.609 In March 2012, the court granted the City’s final motion for summary judgment finding that as a matter of law, the Dallas City Ordinance was not preempted by the CAA.610 A similar battle is being waged at Dallas/Fort Worth International Airport. In 2009, the airport board ap- proved a queue-jumping policy for CNG taxis. The As- sociation of Taxicab Operators sued and obtained a temporary restraining order that dissolved in October 2011. In January 2012, the airport board again ap- proved the policy. As of this writing, the airport antici- pates that the Association of Taxicab Operators may sue again.611 H. Materials and Embedded Energy This category of GHG-reduction measures addresses the fact that it takes energy to produce and distribute the wide array of products that are used and sold at an airport, such as canned beverages, paper towels, and office products. Reducing the waste of these products reduces the overall emission of GHGs. In addition, di- verting some organic waste from landfills can reduce the formation of methane gas, which is a GHG more potent than CO2. 1. Start or Enhance a Waste Reduction or Recycling Program (ACRP 56 ME-02) The majority of 141 airports responding to the GAO Report’s environmental survey have some sort of recy- 605 Complaint ¶ 20-21, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K (N.D. Tex. Apr. 15, 2010). 606 Response at 30, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K (N.D. Tex. Apr. 27, 2010). 607 Response at 29-30, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K (N.D. Tex. Apr. 27, 2010). 608 Response at 20-21, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K (N.D. Tex. Apr. 27, 2010). 609 Order Denying Preliminary Injunction at 1, Assoc. of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-00769-K, 760 F. Supp. 2d 693 (N.D. Tex. Aug. 30, 2010). 610 2012 U.S. Dist. LEXIS 42832 (March 28, 2012). 611 Andrea Ahles, DFW Airport OKs Giving Priority to Natural Gas Taxis, STAR-TELEGRAM, Jan. 5, 2012, available at http://www.star-telegram.com/2012/01/05/3638585/dfw-airport- board-oks-giving-priority.html.

59 cling program, including elements for plastic (91), alu- minum (103), glass (78), and paper (114). Only nine airports reported that they had no recycling program. For example, at Seattle-Tacoma International Air- port, the Port of Seattle collects standard recycling items such as aluminum and paper, as well as cooking oil, coffee grounds, batteries, printer/copier cartridges, pallets, and plastic films.612 Seattle-Tacoma also pro- vides incentives for concessionaires to recycle by charg- ing retailers by quantity for waste disposal and not charging for recycling.613 In 2009, Seattle-Tacoma di- verted 1,300 tons of recyclable or compostable materials from landfills.614 Seattle-Tacoma began collecting even more material when it introduced an off-aircraft recy- cling system in 2010. Airlines at Seattle-Tacoma are incentivized to participate through a charging system similar to that in place for retailers. According to the Port of Seattle, the program will save it more than $250,000 per year by reducing pickups and waste dis- posal.615 These types of waste reduction or recycling programs are unlikely to raise significant legal issues. Further, airports can and often do create waste-reduction and recycling requirements for tenants through leases, minimum standards, rules, and regulations. 2. Start or Enhance a Green Procurement Program (ACRP 02-19 ME 03) Green procurement at airports can take many forms. As discussed above, airports can purchase Energy Star or other energy-efficient office or other equipment, pur- chase alternative-fuel or more efficient fleets, and ac- quire energy-efficient lighting. Airports can also reduce their GHG footprint by procuring materials with recy- cled content or lower life-cycle GHG emissions. For ex- ample, airports may be able to offer toilet paper or pa- per towels with high recycled content in restrooms. Because such a strategy is one of internal management, it is unlikely to implicate any major legal issues. In addition to engaging in green procurement them- selves, airports may also be able to require green pro- curement by tenants, for example through binding con- cessions agreements, leases, and other contracts. Such measures are also unlikely to implicate major legal con- cerns, but managers should keep in mind general con- tract and landlord-tenant issues. I. Operations and Maintenance Airport operations include a variety of activities to support passenger travel and goods movement, includ- ing safety and security, facilities management and maintenance, fueling and maintenance of vehicles and 612 Port of Seattle, SEA-TAC Airport Debuts Innovative Off- Aircraft Recycling System (Apr. 14, 2010), available at http://newswire.enviro.aero/newswire/2010/Apr/14/sea-tac- airport-debuts-innovative-off-aircraft-recycling-system. 613 Id. 614 Id. 615 Id. GSE, landscaping, maintenance of the airfield, and con- struction. All of these activities generate GHGs and most can be managed in a way to reduce GHG emis- sions. 1. Create a Detailed Operations and Maintenance Manual (ACRP 56 OM-01) Development of an operations and maintenance manual that considers energy efficiency and GHG re- ductions can reduce emissions. The City of Chicago of- fers detailed strategies for reducing the environmental effects of airport operations and maintenance in its 2010 version of the Sustainable Airport Manual.616 The Sustainable Airport Manual is an example of a detailed document that can be used to guide operations and maintenance procedures to promote environmental sus- tainability. Many measures proposed therein would directly reduce GHG emissions. Los Angeles World Air- ports, the entity that manages Los Angeles Interna- tional Airport and other area airports, has also issued sustainability guidelines, but these are currently being revised to ensure consistency with new state and local building codes.617 Airports seeking to reduce GHG emissions through operational or maintenance procedures may choose to develop individualized or more detailed strategies that are tailored to conditions at individual airports, such as particular geographies, facilities, and so on. For exam- ple, the Port Authority of New York and New Jersey develops a maintenance manual defining maintenance measures and schedules for each individual building it controls.618 2. Use a Computerized Maintenance Management System (ACRP 56 OM-03) Airports can use a computerized maintenance man- agement system to automate management of every- thing from electrical pumps to baggage systems to HVAC systems. Through automated tracking of main- tenance needs, airports may be able to reduce unneces- sary maintenance or ensure maintenance needed for optimal efficiency. A survey of 20 airports conducted by ACRP in 2007 indicated that less than half of surveyed airports used a computerized maintenance manage- 616 CHICAGO DEPARTMENT OF AVIATION, SUSTAINABLE AIRPORT MANUAL (2010), available at http://www.airports goinggreen.org/Content/Documents/CDA%20SAM%20- %20v2%200%20-%20November%2015%202010%20- %20FINAL.pdf. 617 Los Angeles World Airports: Sustainability, http://www. lawa.org/welcome_LAWA.aspx?id=1036 (last visited Jan. 30. 2012). 618 Susanne Des Roches, Port Authority of New York and New Jersey (PANYNJ), Sustainable Design Guidelines at the Port Authority of New York and New Jersey 9, Presentation to Airports Going Green Conference, Chicago, Ill., Nov. 15, 2010, available at http://www.airportsgoinggreen.org/Content/ Documents/Susanne%20DesRoches.pdf.

60 ment system, and that such systems are used predomi- nantly at larger airports.619 J. Performance Measurement Performance measurement involves quantifying GHG emissions or energy use levels, and then compar- ing these data to an airport’s regulatory requirements and environmental goals. Performance measurement is based on the management maxim that one cannot man- age what one cannot measure. 1. Conduct Regular Greenhouse Gas Emission Inventories (ACRP 56 PM-01) Development of a GHG inventory is a fundamental step towards management of GHGs and tracking pro- gress in reducing them. Over a third of the 150 busiest U.S. airports, including two-thirds of the 141 GAO Re- port’s survey respondent airports of large and medium size, conducted a general airport emissions inventory between 2007 and 2010.620 Understanding the source of GHG emissions can help airports to target reductions measures. Inventories can also provide a baseline against which to measure accomplishments and identify opportunities for addi- tional reductions. A recent ACRP guide can assist air- ports in preparing their airport GHG inventories by offering specific direction on how airports can calculate emissions from individual sources, as well as how to compare the different types of GHGs.621 It recommends adoption of a community-scale analysis of emissions, while also encouraging airports to document ownership and control of emissions sources.622 FAA’s Sustainable Master Plan grant pilot program, discussed at Section III.B.1, with its observed benefit of carbon footprint reduction, demonstrates FAA’s recog- nition of the value of measuring environmental per- formance, including in the area of GHG reductions. Emissions inventories can offer sponsors valuable in- formation to guide mitigation efforts. Perhaps the most obvious benefit of GHG inventories is ensuring regula- tory compliance. A small number of high-activity air- ports could have stationary sources that produce emis- sions above the regulatory reporting trigger established by EPA. Additionally, as discussed in Section III.J.2.a, states such as California are increasingly scrutinizing GHG emissions at airports, particularly as a part of state-law environmental review of airport expansion plans. Ensuring regulatory compliance and preparing for future compliance is at the core of an airport’s pro- 619 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 525, at 4. 620 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 39. 621 AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, REPORT 11, GUIDEBOOK ON PREPARING AIRPORT GREENHOUSE GAS EMISSIONS INVENTORIES 11 (2009), http://onlinepubs.trb.org/onlinepubs/ acrp/acrp_rpt_011.pdf. 622 Id. at 14. prietary authority. Airports might justify expenditures on inventories by grounding such efforts as an appro- priate exercise of this authority. 2. Install Tenant Energy Sub-Metering Systems (ACRP 56 PM-03) While energy audits can provide useful information about the energy used directly by the airport operator, sub-metering can help manage the energy use of indi- vidual concessionaires or other tenants. Sub-metering allows airports to record (and often charge for) the elec- tricity use of individual tenants through the installation of individual meters at specific terminals, kiosks, air- port ticket counters, restaurants, newsstands, car rental agencies, airline gates, or other points of electric- ity use. An understanding of tenant energy use can help air- ports to work with tenants to reduce their emissions. For example, sub-metering can allow airports to disag- gregate energy charges from rent charges by charging tenants for their actual, rather than estimated, energy use. Where tenants are responsible for the direct costs of energy use, they have a stronger financial incentive to adopt conservation measures that can reduce elec- tricity use and GHG emissions. A number of airports already meter tenant utility usage individually for some or all utilities. For example, Denver International Airport sub-meters natural gas usage by some terminal tenants, ensuring that they are charged for what they use.623 Sub-metering accompa- nied with pricing that corresponds directly with or in- creases with energy usage can incentivize airport en- ergy users to reduce their consumption. Airports will need to ensure that they do not engage in unjust dis- crimination in their billing of sub-metered tenants. For example, a decision to sub-meter some tenants but not others, absent a reasonable explanation and basis for allocating cost, might be controversial. Further, airports must ensure that sub-metering programs are reasonable. For example, an airport could seek voluntary modification of an existing contract specifying energy prices—but may not be able to de- mand a contract modification. Additionally, airport en- ergy use charges should comport with actual costs in- curred to provide energy for tenant use at airports. Airports that benefit from a declining block rate utility pricing structure might be challenged were they to adopt inclining or flat block-rate utility pricing for ten- ants and would likely need to justify charges to the ex- tent that they deviated from actual incurred utility costs. 623 City and County of Denver Department of Aviation, Re- quest for Proposals: Consumer Service Concession Voluntary Travel Carbon Offset Program 8 (Jan. 14, 2008), available at http://www.responsiblepurchasing.org/purchasing_guides/carbo n_offsets/specs/ColoradoAirport_CarbonOffsetsRFP_2008.pdf.

61 3. Perform Energy Audits (ACRP 56 PM-02) Energy audits offer airports a means to identify op- portunities for airport energy use and cost savings, and are also important elements of airport GHG emissions inventories. Important elements of an airport energy audit include: • Identification of energy use in various areas such as HVAC, lighting, etc. • Documentation of existing energy costs and sources. • Identification of opportunities for and costs of en- ergy and cost-savings. • Determination of payback periods for identified conservation measures. Energy audits are often useful first steps towards energy management efforts identified in Section IV.E. K. Renewable Energy Production Renewable energy is generated through non-fossil- fuel resources such as sunlight, wind, geothermal heat, or the movement of water.624 As of 2008, approximately 7.5 percent of total U.S. energy consumption came from renewable resources; this percentage has increased over time.625 The demand for renewable energy appears to be growing at airports, too. The GAO Report revealed that just under a third of the 150 busiest U.S. airports cur- rently produce renewable energy on site.626 Many of these and other airports also use electricity generated off site that involves some renewable generation. 1. General Legal Considerations for Implementing Renewable Energy Projects Nearly any airport renewable energy project raises some general questions that are independent of whether the project uses solar, wind, or some other technology. First, renewable energy measures that are dispro- portionately expensive may raise self-sustaining airport or revenue diversion concerns, discussed generally at Section III.C, particularly where facilities are located off-airport. Allowing the use of airport property for re- newable energy projects undertaken by third parties may lead to self-sustaining airport violations if the air- port does not receive fair market rentals, the power produced, or similar consideration. For example, if air- 624 FEDERAL AVIATION ADMINISTRATION, supra note 239, at 1. 625 U.S. Energy Information Administration, Renewable Energy Consumption by Energy Use Sector and Energy Source 2004–2008 (2010), http://www.eia.doe.gov/cneaf/solar. renewables/page/trends/table2.html (last visited Jan. 26, 2011); U.S. Energy Information Administration, U.S. Energy Con- sumption by Energy Source 2004–2008 (2010), http://www.eia.gov/cneaf/solar.renewables/page/trends/table1.h tml (last visited June 15, 2012). 626 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 67. port land is used for free for a renewable energy project that creates energy used for general municipal purposes or sale into the grid, there is a significant risk that FAA would consider the activity inconsistent with the self- sustaining airport requirements. Other FAA-required airport sponsor grant certifica- tions likely implicated by renewable energy projects include: • Assurance 4, Good Title627 • This grant assurance obligates airports to hold good title to the airport and in particular the par- cels necessary to achieve the purpose of the particular grant to which the obligations are tied. Giving away good title for a renewable energy project could violate this grant assurance. • Assurance 5, Preserving Rights and Powers628 • An airport is obligated not to encumber, transfer, or dispose of its title or interest in property absent FAA approval. FAA is particularly concerned with the granting of property interests, particularly fee interests, to tenants,629 which could include developers of on-site renewable energy. • Assurance 20, Hazard Removal and Mitigation630 • This grant assurance imposes an affirmative obligation on airports to prevent the establishment or creation of future airport hazards.631 To comply with this grant assurance, airports may not construct re- newable energy–related infrastructure or objects that would cause hazards to air navigation. Renewable en- ergy projects would be subject to federal restrictions governing glare, wildlife hazards, or height standards at airports, among other requirements. 627 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Mar. 2005) (Assurance 4–Good Title), http://www.faa.gov/airports/aip/grant_assurances/media/ airport_sponsor_assurances_2012.pdf; see also 49 U.S.C. § 47106(b)(1). 628 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Mar. 2005) (Assurance 4–Good Title; Assurance 5–Preserving Rights and Powers), http://www.faa.gov/airports/ aip/grant_assurances/media/airport_sponsor_assurances_2012. pdf. 629 FEDERAL AVIATION ADMINISTRATION, Order 5190.6B, AIRPORT COMPLIANCE MANUAL § 6.3(b) (2009), available at http://www.faa.gov/documentLibrary/media/Order/5190_6b. pdf. 630 FEDERAL AVIATION ADMINISTRATION, AIRPORT SPONSOR ASSURANCES (Mar. 2005) (Assurance 20–Hazard Removal and Mitigation), http://www.faa.gov/airports/aip/grant_assurances/ media/airport_sponsor_assurances_2012.pdf. 631 Id.

62 • Assurance 21, Compatible Land Use632 • Airports are obliged to take steps to restrict the use of land in the immediate vicinity of the airport to uses compatible with normal airport operations. To the extent that a renewable energy project was not compatible with normal airport operations, undertaking such a project could violate this grant assurance. Second, airports must also assure compatibility of projects with airport design standards and the ALP. Third, renewable energy projects that affect threat- ened or endangered species would be subject to the ESA and could also trigger state-level species protections.633 Other legal issues (discussed in Section III.H) that may arise in the course of developing renewable energy pro- jects at or near airports include: • Whether a project is subject to FERC’s regulatory jurisdiction. • Whether the project would subject an airport to regulation as a utility under state law, or trigger other state or local rules relating to electric service. • State utility law provisions related to renewable or alternative energy portfolio standards. • State or local land use, zoning, or permitting re- quirements. • Local building, mechanical, and safety codes. Fourth, federal, state, and local programs, including those set forth in Section III.H, also may create finan- cial incentives for renewable energy projects. Airport renewable energy project sponsors may be able to take advantage of state or federal tax credits, net metering, and PURPA-created markets for the resale of renewable energy generated by qualifying facilities. 2. Install Building-Mounted or Ground-Mounted Solar Photovoltaic Panels, and Install Solar Thermal Systems for Hot Water Production (ACRP 56 RE-02, RE-03) PV panels convert sunlight to electricity and can be mounted on airport buildings or property. The FAA reports that PV technologies provide the best opportu- nity for airports to generate solar power, because they have the highest cost-to-benefit ratio and because they are most compatible with airport operations.634 Twenty-three of 141 airports responding to the GAO Report’s environmental survey indicated that they pro- duce solar energy at their airport.635 A recent FAA analysis of 10 solar projects at airports showed a range of project sizes and locations, summarized below.636 632 Id. 633 See § III.K. 634 FEDERAL AVIATION ADMINISTRATION, supra note 239, at 8–9. 635 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 380, at Q 67 (2010), available at http://www.gao.gov/special.pubs/ gao-10-748sp/. 636 FEDERAL AVIATION ADMINISTRATION, supra note 239, at B-2. FAA Surveyed Solar Projects at Airports637 Airport Facility Type Location Size (in Mega- watts) Albuquer- que Sunport Roof Carport roofs 0.146 Boston Logan Roof Parking Garage B 0.2 Houston George Bush Roof Terminal rooftop 0.06 San Francisco Roof Terminal 3 0.5 San Jose Roof Rental car facility 1.1 Subtotal 2.006 Bakersfield Meadows Field Ground Between terminal and runway 0.748 Denver Ground Entrance road 2.0 Denver Ground Fuel farm 1.6 Fresno Yosemite Ground Runway end 2.0 Oakland Ground General aviation area 0.756 Subtotal 7.104 Total 9.110 Another type of solar technology is solar thermal. So- lar thermal installations can help airports reduce GHGs by heating water or air with incoming solar energy, thus reducing the need for heating energy from nonre- newable resources. ACRP 56’s highest ranking GHG- reduction measure calls for the installation of solar thermal systems for hot water production.638 With the exception of the last subsection, the issues described below apply to both solar PV and solar ther- mal. As discussed below, the issues surrounding solar PV projects are considerably more complicated because their electricity generation capacity can also implicate federal and state utilities laws. 637 Adapted from Id. 638 ACRP 56, tble. ES-05, item 1, http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_056.pdf.

63 a. FAA Guidance.—FAA’s 2010 Technical Guidance for Evaluating Solar Technologies on Airports639 indi- cates that the FAA will only approve on-airport solar projects where they are sited on aeronautically- compatible land, are consistent with an airport’s Master Plan, involve the lease of land for fair market value, and meet preliminary environmental screening tests. FAA recommends that project proponents conduct an initial environmental screening of their projects before they proceed “too far into siting and design.”640 Issues that should be considered during the environmental screening process include existing and historic habitats and land uses in the proposed construction area, en- dangered species impacts, wetland disturbances, water quality degradation from erosion and sedimentation, hazardous materials, and historic and archeological resources impacts.641 This screening should include an analysis of environmental permits that may be required by federal, state, or local agencies.642 These permits could include CWA permits, dust permits under the CAA, and species take/predation permits under ESA and the Migratory Bird Treaty Act. Where airport land is to be leased to a private entity for a 15- to 25-year period for ownership and operation of a solar facility (a nonaeronautical use), consultation with FAA is required. According to FAA, airports spon- soring solar PV projects in Bakersfield, Denver, Fresno, and Oakland submitted documentation to FAA describ- ing, among other items, the airport’s obligations related to the land, based on how it was acquired (e.g., pur- chase or surplus federal property); the type of land re- lease request; the justification for release; a demonstra- tion that the airport will obtain fair market value in return for the release; and a description of how revenue generated by the release will be used.643 A lease agreement the City and County of Denver have used with private developers of solar-generating facilities offers an excellent example of some of the is- sues that warrant consideration during the leasing process for solar projects, particularly solar PV pro- jects.644 First, the agreement provides that FAA’s ap- proval of plans is a condition precedent to the effective- ness of the lease.645 Denver also reserves the right to terminate the lease for aviation purposes upon 6 months’ prior written notice and payment of a specified termination value or through provision of an alternate site and a relocation reimbursement.646 The lease pro- 639 FEDERAL AVIATION ADMINISTRATION, supra note 239, at 26. 640 Id. at 31. 641 Id. at 26. 642 See §§ III.J and III.K of this digest. 643 Id. at 30. See §§ III.C and III.F. 644 Id. at C-7. 645 Ground Lease Agreement Between City and County of Denver and XYZ Solar 1-2, reprinted in FEDERAL AVIATION ADMINISTRATION, TECHNICAL GUIDANCE FOR EVALUATING SELECTED SOLAR TECHNOLOGIES ON AIRPORTS C-7 (2010). 646 Solar 5, Id. at C-9. vides the City and County of Denver the option of pur- chasing the solar system for either fair market value or for a specified buy-out price. The City charges the ten- ant ground rent for use of the land and in exchange agrees to purchase the energy output of the generating facility at the purchase price specified in a PPA.647 The tenant is responsible for the costs of construction and all environmental requirements, such as air quality or clean water permitting, as well as control of soil erosion and sediment, solid and hazardous wastes, and noise and vibration.648 Where solar projects at airports produce a new “foot- print”—i.e., are not located on an existing structure— and in some cases where they significantly increase heights of existing structures, the airport sponsor will need to revise its ALP and obtain FAA approval for these changes.649 Where ALP changes were needed for FAA-approved solar projects in Bakersfield, Denver, Fresno, and Oakland, sponsors submitted a request to change the ALP to the relevant Airports District Office. On-airport projects must comply with the airport design standards addressed in Section III.F. For example, FAA generally recommends that solar projects not be sited within the Runway Protection Zone and advises that solar projects cannot be sited within an Obstacle Free Zone, a Runway Safety Area, a Taxiway Object Free Area, or a Taxiway Safety Area.650 Rather, FAA advises that airports consider locating on-airport solar installa- tions in spaces such as noise buffers, flat areas near runways, or on top of hangars or parking facilities.651 FAA reviews solar projects at and near airports to ensure that they do not negatively impact airspace safety. Airport developers of solar projects near airports will often be required to submit a Notice of Proposed Construction Form 7460 to FAA.652 Off-airport project developers, which may include airport operators, pri- vate developers, or state or local government agencies, can also trigger FAA review. According to FAA, two indicators of FAA interest include proximity to the air- port and proposed use of concentrated solar power technology.653 Concentrated solar technology creates greater concerns for aviation safety because it involves concentration and reflection of solar radiation in a way that can cause serious glare concerns for pilots. Solar installations will be presumed hazardous where the project height penetrates critical airspace imaginary surfaces, its design or orientation causes reflectivity concerns, or the project interferes with com- munication systems.654 At a minimum, airports or pri- vate developers seeking FAA approval for solar projects 647 Solar 6–7, Id. 648 Solar 8–10, Id. at C-9. 649 FEDERAL AVIATION ADMINISTRATION, supra note 239, at 29. 650 Id. at 26. 651 Id. at 25. 652 Id. at 34-4. 653 Id. at 45. 654 Id. at 26.

64 must demonstrate that their project avoids these haz- ards. Detailed methodologies for assessing reflectivity and communications systems interference are available in FAA’s 2010 Technical Guidance for Evaluating Se- lected Solar Technologies On Airports. FAA’s review will result in a determination regarding whether the proposed project is an airport hazard; as of 2010, air- port sponsors of existing solar projects that had under- gone Part 77 FAA review all received “No Hazard De- terminations.”655 b. NEPA Review.—FAA’s decision to authorize the re- lease or lease of airport property for solar installations, to authorize a change to an airport ALP, or to allow the lease of an airport roof to a private third party may con- stitute major federal actions triggering NEPA review.656 Where projects on or off the airport constitute a major federal action, and are not located on a building or on a small area of disturbed land, an environmental assess- ment may be required.657 The FAA has previously au- thorized categorical exclusions for solar PV projects at airports, including Denver International, Fresno– Yosemite International, and Bakersfield. FAA also is considering development of a new categorical exclusion for small solar energy projects at or near airports.658 Categorical exclusions are not available where a pro- ject’s actual environmental impacts are significant, and thus some mitigation efforts may still be required. The Denver International Airport’s Pena Boulevard Solar Project undertook a number of measures to avoid envi- ronmental impacts that might have otherwise subjected its solar development to an EA, including the estab- lishment of a still-active erosion control and revegeta- tion program and the installation of a connecting cable by directional drilling underneath a wetland rather than by traditional trenching, which would have af- fected wetland.659 c. Federal Funding.—Airports may also be able to take advantage of VALE funding for solar projects, pro- vided that proposed projects meet all AIP and VALE requirements, are entirely airport-owned, and do not have private investors or partners. For solar PV pro- jects, sponsors may have a stronger case for funding if they use earned RECs to secure airport utility rate re- ductions rather than offer RECs for sale on the open market, and if they work with local air quality agencies to secure AERCs.660 d. Utilities Law Considerations for Solar PV Pro- jects.—As mentioned above, solar PV projects have an additional layer of complication that solar thermal pro- jects do not. Because solar PV projects generate electric- ity, they will often be affected by federal and state utili- ties laws, and this regulation may affect their economic 655 Id. at 35. 656 Id. at 31, 42. See §§ III.F and III.J. 657 Id. at 26. 658 Id. at 42. 659 Id. at 44. 660 Id. at 69. See § III.D.3. viability.661 For example, Denver International Airport’s first solar project on airport property was funded in part by the local utility, which agreed to purchase RECs generated by the project in order to comply with Colo- rado’s renewable energy portfolio standard.662 This fi- nancing allowed the airport and the developer to enter into a 15-year fixed-price PPA at no up-front cost to the airport. The developer secured exclusive rights to the RECs generated by the project, and the City and County of Denver agreed not to undertake any action that could impair or jeopardize the sale of RECs or the generation of renewable energy at the site, “except as required by the Federal Aviation Administration or as required for air navigation purposes.”663 Additionally, Denver’s PPA arranges for title of the facility for the purposes of income tax purposes related to tax benefits and depreciation.664 State and federal tax incentives and liabilities may affect project economics, and should be thoroughly researched prior to project development. 3. Install Building-Mounted Wind Turbines (ACRP 02- 10 RE-09) and On- or Off-Airport Wind Turbines Wind power can also reduce emissions from electric- ity generation. Each megawatt-hour of wind generation can displace approximately 1,200 lb of CO2 emissions.665 However, wind power raises more questions than solar about compatibility with airport operations, because larger wind turbines often involve greater heights and can interfere with radar signals. These concerns are greatest with the large, utility-scale wind turbines that can be hundreds of feet tall and have rotor-blade diame- ters comparable to the wingspan of large jets. Proposals to install wind turbines on and near air- port property would be subject to an FAA review proc- ess similar to that required for solar projects. A critical part of the analysis for wind-related projects is the process of assessing the potential airport hazards of on- airport or off-airport projects.666 Some (but not all) wind turbines in some environments have been shown to pose airport hazards due to height or effects on air- port radar systems. Under C.F.R. Part 77, any person or entity that in- tends to sponsor one of the following types of projects must first notify FAA: • Any construction or alteration exceeding 200 feet above ground level. 661 See § III.H. 662 Id. at 35. 663 Solar Power Purchase Agreement Between the City and County of Denver and XYZ Solar 7, reprinted in FEDERAL AVIATION ADMINISTRATION, TECHNICAL GUIDANCE FOR EVALUATING SELECTED SOLAR TECHNOLOGIES ON AIRPORTS D- 9 (2010). 664 Solar 9, reprinted in id. at D-11. 665 American Wind Energy Association, Wind Power and Climate Change, http://www.awea.org/_cs_upload/learnabout/ publications/4136_1.pdf. 666 See § III.F.

65 • Any construction or alteration: • within 20,000 feet of a public use or military air- port which exceeds a 100:1 surface from any point on the runway of each airport with its longest runway more than 3,200 feet, • within 10,000 feet of a public use or military air- port which exceeds a 50:1 surface from any point on the runway of each airport with its longest runway no more than 3,200 feet, • within 5,000 feet of a public-use heliport which exceeds a 25:1 surface. • Any construction or alteration located on a public use airport or heliport regardless of height or location; or • When requested by FAA.667 Submission to FAA of a Form 7460-1 is required for these proposed constructions or alterations; where con- struction occurs off airport, submission of a Form 7460- 2 will also be required.668 As part of this process, the effect of the height on aircraft operations and the poten- tial effects of rotors on radar and other airport-related electronics are considered. One significant environmental concern related to wind turbines is the impact of rotating blades on birds and bats.669 Adverse impacts to avian wildlife vary geo- graphically within the United States, with Appalachia and California arising as particular areas of concern.670 The Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the ESA may affect wind tur- bines or related construction work through their re- strictions on the harming or taking of endangered or migratory bird species and eagles.671 These laws can create liability for persons that di- rectly harm bird species or, in the case of the ESA, the habitat for the species.672 State wildlife laws can also be relevant where they provide additional protections be- yond federal law. At least one federal court has enjoined a wind project because of its adverse impacts on the endangered Indiana Bat.673 Voluntary consultation with Fish and Wildlife Services, the agency that enforces each of these three laws, and state wildlife agencies 667 FAA, Obstruction Evaluation/Airport Airspace Analysis (OE/AAA) (citing 14 C.F.R. Pt. 77.9), available at https://oeaaa.faa.gov/oeaaa/external/portal.jsp. 668 Id. 669 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-906, WIND POWER: IMPACTS ON WILDLIFE AND GOVERNMENT RESPONSIBILITIES FOR REGULATING DEVELOPMENT AND PROTECTING WILDLIFE 1 (2005), available at http://www.gao. gov/new.items/d05906.pdf. See § III.K. 670 Id. at 10–11 (2005). 671 16 U.S.C. §§ 703–712 (2006); 16 U.S.C. §§ 668–668d (2006); 16 U.S.C. §§ 1531–1544 (2006). 672 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 669, at 4. 673 Animal Welfare Institute v. Beech Ridge Energy, LLC, 675 F. Supp. 2d 540 (D. Md. 2009). early in the project development process can help re- solve adverse impacts to wildlife.674 a. On-Airport Wind Turbines.—Because they are gen- erally small in scale, on-airport wind projects are gen- erally unlikely to raise major concerns. For example, the Massachusetts Port Authority recently installed 20 building-integrated wind turbines as part of a demon- stration project at Boston’s Logan Airport.675 The pro- ject is expected to meet approximately 2 percent of the building’s monthly energy use—generating about 100 megawatt-hours annually. Hawaii’s Honolulu Interna- tional Airport has a similar pilot project with 16 build- ing-integrated wind turbines.676 These projects created little concern, relative to large-scale projects elsewhere, because of their lower profiles, both in terms of height and visibility on radar. Airports considering small-scale, on-site, wind tur- bines should keep in mind the general considerations presented above, such as whether local codes would affect turbine height or safety requirements. b. Off-Airport Wind Turbines.—Off-airport wind tur- bines can raise a number of unique safety issues for airports, pilots, and air passengers. Some airports have identified concerns about and even brought legal chal- lenges against a number of off-airport wind projects across the country. For example, in 2008, Clark County, Nevada, challenged a set of FAA No Hazard Determina- tions for 83 wind turbines of up to 400 ft in height near a proposed airport site near Las Vegas.677 Clark County argued that the FAA’s no hazard determinations failed to give adequate consideration to the potential hazards that wind turbines would present to air navigation at the new airport. Clark County’s concerns related pri- marily to penetration of the departure slope for aircraft leaving the proposed aircraft and interference with air traffic control radar systems.678 Either of these effects could have reduced capacity to handle air traffic safely at the proposed airport. The U.S. Court of Appeals ruled in Clark County’s favor, finding that the FAA had 674 Ironically, airports may need to comply with these laws and avoid impacts to species and habitat at the same time that they work with the same agencies to reduce or eliminate wild- life hazards. 675 Massport, Massport Takes the Wind out of High Energy Costs: Boston Logan to Receive 20 Building-Integrated Wind Turbines (Mar. 5, 2008), http://www.massport.com/news- room/News/BostonLogantoReceive20Building- IntegratedWindTurbines.aspx (last visited June 16, 2012). 676 Curtis Lum, Wind Backs Up Honolulu Airport, USA TODAY, Nov. 17, 2009, available at http://www.usatoday.com/ travel/flights/2009-11-17-honolulu-airport-wind-power_N.htm. 677 Clark County v. FAA, 522 F.3d 437 (D.C. Cir. 2008). 678 Id. at 442. For more information on potential radar haz- ards posed by wind turbines, see EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION, GUIDELINES ON HOW TO ASSESS THE POTENTIAL IMPACTS OF WIND TURBINES ON SURVEILLANCE SENSORS (2009), http://www.apere.org/ manager/docnum/doc/doc1289_Guidelines.fiche117.pdf.

66 failed to adequately consider the effects of the proposed turbines on aviation.679 In 2011, the Town of Barnstable, Massachusetts, challenged a set of FAA No Hazard Determinations for 130 off-shore wind turbines, each 440 ft tall, to be lo- cated in 25 sq mi of Nantucket Sound.680 The Town of Barnstable argued that the FAA violated its statutory authority, misread its own regulations, and was arbi- trary and capricious in analyzing the danger that the wind turbines posed to aviation.681 The FAA argued that the Town lacked standing to challenge the FAA’s determinations and that the claims were faulty on the merits.682 The D.C. Circuit Court of Appeals ruled for the Town of Barnstable. The court held that the FAA had improperly applied its own guidelines when making the No Hazard Determinations.683 In other contexts, the FAA has also acknowledged concerns relating to the installation of wind turbines near airports. An FAA official recently testified before Congress regarding the need to undertake careful analyses of the impact of wind energy projects on radar facilities. 684 Additionally, in 2006, FAA issued a Deter- mination of Hazard to Air Navigation for a proposed wind turbine in Boston, Massachusetts, about 3 mi southeast of Logan International Airport.685 There, the FAA found that the proposed wind energy project would require restrictions on runways under development, affect visual approaches to the airport, and likely create false radar targets.686 These combined effects of con- struction would have “a substantial adverse effect on the safe and efficient utilization of the navigable air- space by aircraft and on air navigation facility(ies).”687 In addition, the placement of wind projects in or near regularly used flight paths can disrupt air navigation by commercial and general aviation air traffic.688 679 Clark County v. FAA, 522 F.3d 437 (2008). 680 Town of Barnstable v. Fed. Aviation Admin., 659 F.3d 28, 30 (D.C. Cir. 2011). 681 Id. at 31. 682 Id. 683 Id. at 35. 684 Statement of Nancy Kalinowski, Vice President, Systems Operations Services, Air Traffic Organization, Federal Aviation Administration, before the House Armed Services Committee, Subcommittee on Readiness, on the impact of wind farms on military readiness, June 29, 2010, at 3 (explaining how wind turbines interfere with radar detection), available at http://www.faa.gov/news/testimony/news_story.cfm? newsId=11562. 685 FAA, Aeronautical Study No. 2005-ANE-995-OE, Deter- mination of Hazard to Air Navigation (2006), http://www.masstech.org/Project%20Deliverables/Comm_Wind/ Boston_Long%20Island/Boston_Long_Island_FAA_ Determination_1.pdf. 686 Id. at 4–5. 687 Id. at 6. 688 FEDERAL AVIATION ADMINISTRATION, Order JO 7400.2G, PROCEDURES FOR HANDLING AIRSPACE MATTERS §§ 6-2-8 & 6- 3-9 (Apr. 10, 2008), http://www.faa.gov/documentLibrary/ media/Order/7400.2G.pdf. Nonetheless, no individual wind project will neces- sarily be detrimental to an airport, aviation, or nearby wildlife. A number of airports have had wind generation projects located near their property without impacts to aviation safety. Case-by-case mitigation efforts, such as siting turbines out of the line-of-sight of existing radar systems, reducing turbine density and height, updating ground-based navigation systems, or installing radar absorbing stealth coatings on wind turbine blades might, under some circumstances, reduce hazard con- cerns so that wind projects may coexist with airports.689 For example, in a No Hazard Determination for wind turbines in Anchorage, Alaska, near the Ted Stevens Anchorage International Airport, the FAA identified 22 of the original 33 wind turbines as Part 77 obstructions that would create significant electromagnetic interfer- ence impacts on the airport’s navigational facility and surveillance radar systems.690 Replacement of the radar system with a newer system reduced the number of interfering wind turbines to 12, all of which were per- manently abandoned to avoid the electromagnetic inter- ference.691 FAA’s No Hazard determination was limited to an assumption that the height of any of the remain- ing 21 wind turbines would be 600 ft above mean sea level and found that exceeding this height “will create significant adverse impact to the ANC Category III In- strument Landing System and would present an imme- diate Hazard condition that will negate the entire FAA Determination” for the project.692 L. Refrigerants Refrigerants are often potent GHGs and are most commonly used in air conditioning, refrigerator, and freezer applications. Airports use refrigerants for heat- ing and cooling systems, food service refrigerators, and to provide preconditioned air to aircraft. Over the last several decades, refrigerants garnered international attention for their contribution to strato- spheric ozone depletion. With the phaseout of many ozone-depleting refrigerants under the Montreal Proto- col, such as chlorofluorocarbons and hydrochlorofluoro- carbons, manufacturers and users of refrigerants have been forced to find substitutes. However, some refriger- ant substitutes, such as hydrofluorocarbons, have high global warming potential. Hydrofluorocarbons are con- sidered to be GHGs and can have a global warming po- tential ranging from 140 to 11,700 (compared to CO2’s global warming potential of 1).693 689 Martin LaMonica, Tech Fixes to Wind Turbine Radar Conflict Face Hurdles, CNET NEWS (Sept. 6, 2010), http://news.cnet.com/8301-11128_3-20015611-54.html. 690 Federal Aviation Administration, Aeronautical Study No. 2004-AAL-104-OE, Determination of No Hazard to Air Navigation 4 (2008). 691 Id. at 5, 7. 692 Id. at 7. 693 U.S. Environmental Protection Agency, High GWP Gases and Climate Change (2010), http://www.epa.gov/high gwp1/scientific.html (last visited June 16, 2012).