State and Federal Regulations That May Affect Initiatives to Reduce Airports’ GHG Emissions (2012) / Chapter Skim
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8 III. LEGAL REQUIREMENTS OR OBLIGATIONS THAT CAN AFFECT AIRPORTS' EFFORTS TO REDUCE GHG EMISSIONS This section identifies laws, cases, and regulations that can affect the ability of airports to implement GHG-mitigation projects or the manner in which such projects are implemented.
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9 scope of Section 233 as not "preclusive of all state regulations in the field of aircraft engines."36 The court adopted a test to determine whether state regulations were preempted: if "state pollution regulations can be met without affecting the design, structure, operation, or performance of the aircraft engine," then the state regulations are not preempted.37 Accordingly, the court upheld the California regulations because such emissions limits could be met through abatement measures outside of the engine itself, such as by modifying test cell smoke stacks.38 Although there still might be some room for state and local regulation of aircraft engines, the scope of preemption suggested by this case appears to be sweeping. Moreover, the case did not address the extent to which airports' proprietary powers (discussed below at Section III.A.1.d)
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10 federal GHG emissions standards.51 In accordance with the identicality requirements of the CAA, other states that have adopted California's regulations must generally revise their standards to match California's.52 Although airports and other local governments do not have the authority to adopt manufacturing or sales mandates affecting GHG emissions from motor vehicle fleets on their own, external GHG emissions standards may reduce the emissions impact of airport motor vehicle use. State- and Local-Level Purchasing Mandates Affecting New Motor Vehicles or New Motor Vehicle Engines In Engine Manufacturers Association v.
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11 control extended idling of vehicles."64 Therefore, state and local authorities may be able to adopt in-use motor vehicle regulations at airports. For example, a locality might prohibit engine idling in airport vehicle waiting areas.
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12 use nonroad diesel-fueled fleets and off-road large spark-ignition engines, including airport GSE.76 The inuse nonroad diesel regulations impose limits on idling, buying older vehicles, and selling off-road vehicles.77 Beginning in 2010, users of nonroad equipment were to begin cleaning up their fleets to meet fleet averageemissions requirements through replacement, repowering, and retrofitting.78 In 2008, CARB sought EPA approval to enforce these rules.79 As of early 2012, EPA had not approved California's request for a CAA preemption waiver related to its retrofit requirements for nonroad vehicles. Thus, California has yet to begin enforcement of the regulatory fleet average-emissions requirements.80 However, the state is enforcing the regulatory in-use requirements relating to idling, reporting, labeling, and sales disclosures.81 In December 2011, CARB adopted amendments to these rules in response to the California Legislature's request that CARB consider the impact of the recession and resultant emissions inventory changes on the rule.82 CARB has plans to implement several other emission-reduction programs targeting in-use fleets -- including some airport GSE -- such as an air toxic control measure for portable engines and new emission standards and fleet requirements for forklifts and other industrial equipment.83 State-Level Regulations Affecting GHG Emissions from Nonroad Vehicles or Nonroad Vehicle Engines At the time of this digest's preparation, California had yet to adopt rules limiting GHG emissions from nonroad vehicles.
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13 First, state action is proprietary if it "essentially reflect[s] the [governmental]
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14 port by certain aircraft based on their GHG emissions.104 In addition, airports cannot use their police power to directly regulate emissions from new motor vehicles or nonroad vehicles (such as baggage-handling vehicles) used at the airport.
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15 ing the development of aircraft-related emissions standards. However, the American Clean Energy and Security Act bill passed by the House did include liquid petroleum fuels, including jet fuel, in the cap-and-trade program.
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16 Motor Vehicle GHG Emission Standards In March 2010, EPA and the National Highway Traffic Safety Administration (NHTSA) , which is responsible for vehicle fuel economy standards, finalized a joint automotive GHG emissions rule for passenger cars and light trucks with model years 2012 through 2016.
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17 tionary-source, GHG emissions reported to EPA are well below the Tailoring Rule thresholds.
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18 The U.S. Supreme Court has defined "relating to" broadly, to include state actions "having a connection with, or reference to, airline ‘rates, routes, or services.'"148 Thus, the FAAA Act preempts states from undertaking a broader set of actions than only those that directly affect airlines prices, routes, or services.149 Preemption under this provision is not limited to state laws addressed to the airline industry.150 While the Court has acknowledged that there could be some state actions affecting airline fares in "too tenuous, remote, or peripheral a manner" to be preempted, it has declined to "draw the line" that might resolve borderline questions.151 The FAAA Act expressly provides that its preemption provisions do not apply to government authorities that are airport proprietors acting within the scope of their proprietary powers.152 The proprietor exception is rooted in airports' liability for airports' adverse impacts in surrounding communities.
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19 global problem, and it is not clear whether the nexus between local efforts to reduce GHGs and the local or global effects of climate change is strong enough to support regulations affecting airline routes, rates, and services. Courts have not defined the extent to which local contributions to a global problem (even with local effects)
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20 Transportation.177 The Secretary of Transportation may approve restrictions only after finding that: (A) the restriction is reasonable, nonarbitrary, and nondiscriminatory; (B)
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21 tures aimed at reducing GHG emissions or addressing environmental concerns. However, the policies regarding rates and charges that may be assessed to aeronautical users represent a more restrictive set of tests than for the use of airport revenue, and many environmental costs may be included in the aeronautical rate base.189 These are discussed in the subsection below.
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22 related expenditures. Thus, airport operators should carefully consider the Rates and Charges Policy in the context of such projects.
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23 situations where the Anti-Head Tax does not apply include city parking taxes and fuel dispensing fees.206 Additionally, fees on off-airport, nonaeronautical businesses are not subject to the "reasonable and nondiscriminatory" grant assurance (Assurance 22) requirement applicable to aeronautical users, and legal challenges to such fees have generally been unsuccessful.207 Airports may be able to use this power to achieve GHG-reduction goals, e.g., through incentives for airport access vehicles like taxis, rental cars, buses, and shuttles to operate on alternative fuels.
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24 dressing air carrier or airport operations space, concession space, and aircraft fueling facilities may qualify for PFC funding.219 Some airport ground access projects are also eligible for PFC funding.220 GHG-related improvements in these areas could be funded with PFCs, including preconditioned air at gates and more energy-efficient terminal spaces.
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25 carriers, general aviation aircraft owners and operators, and FBOs.231 Airports may seek to impose GHG-related provisions in leases, regulations, and other governing documents (e.g., requirements for energy-efficient systems in buildings or bans on unnecessary idling of GSE)
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26 in the vicinity of airport operations.239 Placement of natural gas fueling stations in or outside of the secured portion of the airfield will have significant effects on the use of the facility due to federal security requirements.
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27 3. Hazard Identification and Avoidance Grant assurances, including Assurance 20, also require airports to take appropriate action to address activities or objects that may be airport hazards.252 Assurance 20 provides that an airport will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight altitudes)
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28 1. GHG Emissions Target Legislation As of 2010, 21 states had adopted statewide emissions targets and goals for one or more GHGs.259 Laws containing only reporting requirements are unlikely to affect an airport's ability to implement GHG-reduction initiatives.
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29 be paid for by the provider's own accumulated credits or by purchasing credits from other entities.269 Although this rule exempts transportation fuel used in aircraft,270 it applies to gasoline or diesel used in airport vehicles. If implemented, the rule could affect airports by establishing a new emissions baseline that would reduce the potential scope of credits from other airport-related emissions-reducing activities.
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30 Many states require power generation and transmission facilities larger than a de minimis size to comply with public utilities regulations in the state. For example, public utilities commissions may require developers of some proposed energy generation, distribution, or transmission projects meeting certain thresholds to apply for certificates of convenience and necessity.280 In some states, municipal power producers (as opposed to investor-owned utilities)
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31 through long-term contracts at preferential prices. Feed-in tariffs may have a broader reach than PURPA, discussed above at Section III.H.1.b.
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32 pand their boundaries for airport purposes to seek and secure the approval of the underlying jurisdiction with land use authority.296 Notwithstanding the federal preemption of state and local regulation of prices, routes, and services of air carriers, local governments generally may use their zoning and land use authority to control the siting of new airports and the physical expansion of airports onto new land, unless such efforts affect aircraft operations.297 Several courts have upheld local zoning and land use regulations that affected the expansion of an airport onto property outside the existing airport's boundaries.298 There is little judicial guidance regarding whether federal preemption would affect the ability of local entities to regulate nonaeronautical activities and land use on an airport (e.g., rental car facilities, carbon sequestration projects, or transit facilities)
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33 provides FAA's NEPA policies and procedures for airports.307 These regulations authorize categorical exclusions for some categories of projects that include potential GHG emissions-reduction projects, including: • Minor airfield improvements: aircraft parking areas, roads, and storage areas. • Airfield lighting.
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34 2. State Environmental Review Requirements ("Little NEPAs")
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35 Airport Master Plan revision, including a Proposed Airport Land Use Plan designating future airport land uses. As part of this process, the airport considered undertaking several capacity expansion projects (such as construction of a new parking terminal)
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36 The New York State Department of Transportation was the first state department of transportation in the nation to require consideration of GHGs and energy in metropolitan planning organization analyses of their transportation plans.353 The stated authority for this requirement is the 2002 State Energy Plan, which sets forth a goal of reducing statewide GHG emissions to 5 percent below 1990 levels by 2010 and 10 percent below 1990 levels by 2020.354 In a 2009 decision, the New York Fourth Appellate Division indicated that the effect of a proposed cogeneration plant on air emissions was a proper consideration under SEQRA.355 The court held that the town planning board did not act arbitrarily or capriciously in denying the plant's application based on its conclusion that "serious increases in harmful emissions" from the plant would result in an "unacceptable adverse impact."356 Carbon emissions were a focus of the town's findings, which examined even potential emissions from nonlocal fuel sources in determining that the plant could not achieve climate neutrality.357 d. Washington State Environmental Policy Act.358 -- Washington's State Environmental Policy Act (SEPA)
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