Legal Considerations in the Funding and Development of Intermodal Facilities at Airports (2018)

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3 LEGAL CONSIDERATIONS IN THE FUNDING AND DEVELOPMENT OF INTERMODAL FACILITIES AT AIRPORTS By Timothy R. Karaskiewicz, Midwest Aiport Consultants, Milwaukee, Wisconsin INTRODUCTION Congestion, either on the ground or in the air, prevents a region from obtaining the full benefit of an airport because it limits passenger access and an airport’s catchment area. There are far-reaching economic consequences as well.1 The U.S. Depart- ment of Transportation (USDOT) estimates that transportation congestion costs the U.S. economy as much as $200 billion each year.2 In the 1990s, U.S. airports began to develop intermodal facilities as a way to alleviate surface congestion and to provide additional transportation options to passengers and airport employees. New York, Miami, Chicago, Den- ver, and Portland are just a few of the airports that have developed intermodal facilities in order to address existing or forecasted ground access con- straints.3 Without the added capacity provided by intermodal facilities, ground access forecasts at sev- eral airports have predicted not only congestion, but also paralysis.4 Congestion, however, is not a problem limited to the country’s largest airports. 1 The reasons for developing intermodal transportation facilities have been around for a very long time. In the 19th and 20th centuries multiple railway lines converged at city centers and made their way into grand railway terminals. In the United States these transportations hubs were called “union” stations and they led to a network of street- cars, busses, taxicabs, and urban streets. It is not difficult to see an intermodal hub located at an airport as the 21st century equivalent of a union station that is able to move more travelers over greater distances with more efficiency. Yet the process of developing intermodal facilities at air- ports has lagged behind the capacity of airports to put passengers in the air. 2 NatioNal Surface traNSportatioN policy aNd reveNue Study commiSSioN, traNSportatioN for tomorrow (Dec. 2007) at 59; Bureau of traNSportatioN StatiSticS, taBle 1-72: aNNual coNgeStioN coStS 1998 – 2014, available at https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/ publications/national_transportation_statistics/html/ table_01_72.html 3 u.S. gov’t accouNtaBility office, GAO-13-261 NatioNal airSpace SyStem: airport-ceNtric developmeNt 19-20 (2013). 4 As discussed later in Section VI. A., for example, the Port Authority of New York and New Jersey amassed data that demonstrated that John F. Kennedy Airport’s road capacity would be, in just a few years, only 36 million pas- sengers while the airport would be able to transport 45 million passengers. Tampa International, for example, is the country’s 29th largest airport with nine million enplanements each year; that is 40 million fewer enplanements than Chicago O’Hare, the country’s second busiest airport.5 Yet a 2012 study concluded that without a system to transport its passengers to airport facili- ties and public transportation, the airport would grow so congested that passengers could not reach the airport without significant delay and without affecting aircraft operations.6 The purpose of this digest is to provide a history of the laws, rules, and regulations applicable to the development and funding of intermodal facilities at airports. The digest also provides background infor- mation about intermodal developments generally, legislation encouraging the development of intermo- dal facilities, airport and non-airport sources of funding for such facilities, and a review of the guid- ance and decisions written by the Federal Aviation Administration (FAA) regarding the development of intermodal facilities at airports from 1995 through 2016. The digest next presents five case studies, in chronological order, that illustrate and provide examples of the legal rules and principles applied by the FAA and the courts in their review of issues related to the development and funding of intermo- dal facilities at airports and how those rules have evolved. The information in this digest will provide airport sponsors, operators, and their managers with a framework for understanding, analyzing, and planning similar developments. The digest will also provide readers with an understanding of the different kinds of intermodal facilities constructed at airports, the ground access constraints those facilities were intended to address, and the variety of ways that airports chose to address those prob- lems. Finally, the digest presents some of the sug- gestions that have been made for improving the process for developing and funding intermodal facil- ities at airports. 5 http://www.aci-na.org/sites/default/files/aci-na_2011_ traffic_report-july2012.pdf 6 florida departmeNt of traNSportatioN, tampa iNter- NatioNal airport/weStShore multimodal ceNter techNi- cal feaSiBility Study 9 (May 2014).