Legal Aspects of Airport Programs: 2012 (2012)

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airport Cooperative researCh program sponsored by the Federal aviation administration Responsible Senior Program Officer: Marci A. Greenberger December 2012 Research Results Digest 16 Background Prior to the library of Legal Research Digests published by the Transportation Research Board, there wasn’t a central- ized collection of information that could be consulted by attorneys involved in airport- related work. The Airport Cooperative Re- search Program established a continuing project, ACRP Project 11-01, “Legal As- pects of Airport Programs,” to provide a means to assemble, study, and evaluate the myriad of legal problems encountered by the nation’s airports. Modeled after the con- tinuing legal studies projects in the National Cooperative Highway Research Program and the Transit Cooperative Research Pro- gram, ACRP Project 11-01 provides similar legal research on topics of specific interest to the airport community. Reports and sum- maries produced under ACRP Project 11-01 are published in ACRP’s Legal Research Digest series and available on the website: http://www.TRB.org/ACRP. This Research Results Digest summarizes the products of the initial 6 years of ACRP Project 11-01. IntroductIon There are more than 4,000 airports in the country, and most of these airports are owned by governments. A 2003 survey con- ducted by Airports Council International– North America concluded that city owner- ship accounts for 38 percent, followed by regional airports at 25 percent, single county at 17 percent, and multi-jurisdictional at 9 percent. Primary legal services to these airports are, in most cases, provided by municipal, county, and state attorneys. Reports and summaries produced by the ACRP continuing legal studies project and published as ACRP Legal Research Digests are developed to assist attorneys seeking to address the legal problems encountered during airport development and operations. Such substantive areas as eminent domain, environmental concerns, leasing, contract- ing, security, insurance, civil rights, and tort liability present cutting-edge legal is- sues for which research is needed. Airport legal research, when conducted through the TRB’s legal studies process, is focused on either collecting primary data that usually are not available elsewhere or analyzing ex- isting literature. rESEarcH ProcESS A panel of eight airport industry attor- neys provides project oversight by select- ing topics and providing technical guid- ance on each digest written by selected contractors. ACRP Project 11-01 panel members include attorneys who work at airports or provide counsel to airports, those who represent a municipality that LEgaL aSPEctS of aIrPort ProgramS This is a staff digest of the background and status of Airport Cooperative Research Program (ACRP) Project 11-01, “Legal Aspects of Airport Programs,” for which the Transportation Research Board is the agency coordinating the research. Individual studies for the project are managed by Marci A. Greenberger, Senior Program Officer.

2pertise, and responsiveness to process requirements, as well as the interests of the individual panel mem- ber. From time to time, panel members are rotated to bring new perspectives to the project, improve project panel performance, or facilitate the work of the panel. Panel members generally serve on an ongoing project panel for approximately 2 to 3 years before rotating. The ACRP legal studies project has been fortu- nate to have many outstanding industry experts vol- unteer their time to oversee the research and thereby help build a library of resources for the industry that otherwise wouldn’t exist in any one place. Table 1 lists ACRP Project 11-01 panel members past and present. owns/operates an airport, or those who are in private practice. Panel members’ areas of expertise include regulatory and legislative analysis, litigation, and airport safety and security, and they represent both commercial service and general aviation airports. The panel meets approximately once a year to select topics that are (1) widespread enough to gen- erate broad interest, (2) timely and critical to the airport community at large, (3) considered to have sufficient quantity and quality of information to pro- duce a digest, and (4) not being researched by other entities and not the focus of other publications that would render the digest obsolete. Once the topic has been selected, the panel col- laborates to define the scope of work, which is then posted and distributed as a request for proposals (RFP). Any entity providing a detailed response to the RFP may submit its letter of interest. The panel then selects the proposer that it believes best fits the criteria set for achieving the research objective. In many cases, the selected contractor, the principal in- vestigator, is an attorney, but depending on the sub- ject area, the principal investigator may be a subject matter expert, with an attorney assisting the effort. Once the contractor has been selected, the panel approves a submitted outline of the paper and pro- vides feedback. The author or principal investigator then conducts further research and submits a draft for panel review. The panel provides feedback and sug- gests changes and—based on these—the author pre- pares a second draft, called the draft final deliverable (DFD). The panel provides comments on the DFD and completes a ballot as to its appropriateness for publication. On the basis of those comments, the au- thor prepares and submits the final deliverable (FD). Once the FD is submitted to ACRP, it goes through a quality review to ensure that the panel’s comments have been adequately addressed and that sources are properly cited. After panel and ACRP review, the FD is submitted for publication. LEgaL rESEarcH StudIES PanELIStS Individuals are appointed to ACRP project panels on the basis of professional experience, qualifications, and enthusiasm for the topic. For ongoing projects, such as ACRP Project 11-01, “Legal Aspects of Air- port Programs,” ACRP Project 11-03, “Synthesis Pro- gram,” and ACRP Project 11-04, “Graduate Research Award Program,” the appointment process also takes into account the need for continuity, subject matter ex- table 1 ACRP Project 11-01 panel members 2006–2012. Name Affiliation Tom Anderson Metropolitan Airports Commission Minneapolis, MN Eduardo Angeles Los Angeles, CA Arthur Berg* New York, NY Patricia A. Hahn, Esq. Washington, DC Charlotte “Carly” Hegle Sacramento County Sacramento, CA Tim Karaskiewicz* General Mitchell International Airport Whitefish, WI Marco Kunz Salt Lake City International Airport Salt Lake City, UT Robert Maerz San Francisco City Attorney’s Office San Francisco, CA Carlene McIntyre Port Authority of New York & New Jersey New York, NY Barry Molar* Unison Consulting Wheaton, MD Donald Mueting Minnesota DOT St. Paul, MN Marjorie Perry Tucson Airport Authority Tucson, AZ E. Lee Thomson Clark County District Attorney Las Vegas, NV Kathleen A. Yodice, Esq. Yodice Associates Aircraft Owners and Pilots Association Washington, DC * Denotes Chair or past Chair.

3research in broad areas of interest to the airport legal community. Table 2 shows the topics that have been selected in the years 2006 to 2012. LEgaL rESEarcH toPIcS During the first 6 years of ACRP Project 11-01, there have been over 25 topics selected for legal table 2 ACRP Project 11-01 topics 2006–2012. Topic Title Status 01-01 Compilation of Digest—Parts 13 and 16 Published as Legal Research Digest 4: Compilation of DOT Determinations and Related Documents and FAA Airport Legal Determinations and Opinion Letters Through December 31, 2007 (CRP-CD-68) (October 2008) 01-02 Theory and Law of Airport Revenue Diversion Published as LRD 2: Theory and Law of Airport Revenue Diversion (May 2008) 01-03 Compilation/List of Airport Law Resources Published as Legal Research Digest 1: Compilation of Airport Law Resources (January 2008) 01-04 Survey of Airport Laws and Regulation of Published as Legal Research Digest 3: Survey of Laws and Commercial Ground Transportation Regulations of Airport Commercial Ground Transportation (July 2008) 01-05 Responsibilities for Implementation and Published as Legal Research Digest 5: Responsibility for Enforcement of Airport Land-Use Zoning Implementation and Enforcement of Airport Land-Use Restrictions Zoning Restrictions (March 2009) 01-06 Who is the Owner or Operator for Purposes of Published as Legal Research Digest 8: The Right to Self-Fuel the Right to Self-Fuel? (December 2009) 01-07 The Impact of Airlines Bankruptcies on Published as Legal Research Digest 6: The Impact of Airline Airports Bankruptcies on Airports (May 2009) 01-08 The Law and Regulations of Airport Ownership Published as Legal Research Digest 7: Airport Governance and Ownership (August 2009) 01-09 Survey of the Elements of Disparity Studies Terminated for Airport Disadvantaged Business Enterprise Programs 02-01 Obstructions Affecting Navigable Airspace Merged with 2-02 for Topic 02-05 02-02 Use and Success of Avigation Easements and Merged with 2-01 for Topic 02-05 Other Tools for Airport-Compatible Land Use and Development of Model Language 02-03 Case Studies on Community Challenges to Published as Legal Research Digest 9: Case Studies on Airport Development Community Challenges to Airport Development (June 2010) 02-04 Analysis of Federal Laws, Regulations and Published as Legal Research Digest 10: Analysis of Federal Case Law Regarding Airport Laws, Regulations, and Case Law Regarding Airport Proprietary Rights Proprietary Rights (September 2010) 02-05 Practices to Achieve Airport-Compatible Land Published as Legal Research Digest 14: Achieving Airport- Uses and Minimize Obstructions in Compatible Land Uses and Minimizing Hazardous Navigable Airspace Obstructions in Navigable Airspace (April 2012) 03-01 Fair Disclosure of Airport Impacts in Real Published as Legal Research Digest 12: Fair Disclosure and Estate Transfers Airport Impact Statements in Real Estate Transfers (November 2011) (continued on next page)

403-02 Compilation of State Aviation Authorizing Published as Legal Research Digest 15: Compilation of State Legislation Airport Authorizing Legislation (July 2012) 03-03 Survey of Minimum Standards for Commercial Published as Legal Research Digest 11: Survey of Minimum Aeronautical Activities at Airports Standards: Commercial Aeronautical Activities at Airports (February 2011) 03-04 Airport Rates and Charges: Law and Policy Merged with 04-05 03-05 Analyses of State and Federal Regulations Published as Legal Research Digest 17: State and Federal That May Impede State Initiatives to Regulations That May Affect Initiatives to Reduce Airports’ Reduce an Airport’s Carbon Footprint GHG Emissions 03-06 An Index and Digest of Decisions in LRD 1 Published as Legal Research Digest 13: An Index and Digest of Decisions: Compilation of Airport Law Resources (CRP-CD-108) (March 2012) 04-01 Airport Liability for Wildlife Management Research is underway 04-02 Legal Issues Related to Developing SMS and Research is complete. Publication pending as Legal Research SMRD Documents Which May Be Available Digest 19: Legal Issues Related to Developing Safety to the Public Management Systems and Safety Risk Management at U.S. Airports 04-03 Analysis of Federal Laws, Regulations, Case Research is underway Law, and Survey of Existing Airport NPDES Permits Regarding Tenant-Operator Responsibilities Under NPDES and Storm Water Management BMPs Under Owner/ Airport’s Operating Permits 04-04 Buy America Requirements for Federally Research is complete. Publication pending as Legal Research Funded Airports Digest 18: Buy America Requirements for Federally Funded Airports 04-05 Compilation of DOT and FAA Airport Legal Research is underway Determinations and Opinion Letters, through December 2011 04-06 The Role of the Airport Sponsor in Airport Research is underway Planning and Environmental Reviews of Proposed Development Projects Under the National Environmental Policy Act (NEPA) and State Mini-NEPA Laws 04-07 Procurement of Airport Development and Published as Legal Research Digest 16: Procurement of Planning Contracts Airport Development and Planning Contracts (September 2012) 05-01 The First Amendment and Airport Activities Pending 05-02 Sovereign Immunity and Applicability to Pending Airports 05-03 The Fourth Amendment and Airports Pending 05-04 Airport Grant Assurances: General Require- Pending ments and Economic Nondiscrimination table 2 (Continued). Topic Title Status

5This digest describes the issue of airport rev- enue diversion, what prompted Congress to ad- dress it, how it has manifested itself, and how the prohibition against revenue diversion has been enforced. Legal research digest 3: Survey of Laws and regulations of airport commercial ground transportation Lew R. C. Bricker and Gerald P. Cleary, Attorneys, SmithAmundsen, LLC Commercial ground transportation at U.S. air- ports includes public transit, door-to-door shuttle van service, charter buses, limousines, rental cars, taxicabs, hotel courtesy shuttles, wheelchair ser- vices, and courier operators. These ground trans- portation carriers must enter into contracts and reg- ister with the airport authority they serve as well as comply with a myriad of federal, state, and local rules and regulations. While the U.S. Federal Motor Carrier and Safety Administration has primary re- sponsibility for issuing federal regulatory guidance for commercial ground transportation operating in interstate commerce regarding safety, size, and weight restrictions on passenger-carrying vehicles, state and local ground transportation rules and regu- lations are typically specific to individual airports. The state and local rules and regulations contain provisions detailing access to commercial loading and unloading areas; meeting, loading, and unload- ing passengers; procedures for obtaining operat- ing permits, licenses, and agreements; automated vehicle identification tag requirements; operator conduct; solicitation; fees; 1-day or infrequent-user permits; and airport security. This digest compiles and synthesizes available guidance, including regu- lations, statutes, policies, and decisions pertaining to commercial ground transportation. Legal research digest 4: compilation of dot and faa airport Legal determinations and opinion Letters through december 31, 2007 Spiegel & McDiarmid, LLP Virtually all U.S. airports with commercial airline service have accepted federal grants under the Air- port Improvement Program (AIP). In exchange for these grants, airports agree to comply with numer- ous federal assurances, ranging from requirements LEgaL rESEarcH dIgEStS Seventeen ACRP Legal Research Digests have been published through 2012 and are available at www.trb.org/acrp. These Legal Research Digests are listed and summarized in this section. Legal research digest 1: compilation of airport Law resources Daniel S. Reimer, Kaplan Kirsch & Rockwell, LLP Sources for practitioners of airport law are widely dispersed. There are no case-comprehensive reporters, digests, treatises, or similar documents dedicated to airport law. Nor are there any compre- hensive databases or compilations available online. One consequence of this dispersion of knowledge is that a lawyer conducting research on airport law typically must consult multiple sources to gather information. This digest, which includes over 500 federal sources and indicates where those sources can be found online or in case reporters, is one attempt to remedy this problem. Section I identifies the relevant statutes, regulations, case law databases, secondary sources, periodicals, and state aviation departments. Section II is a topical index contain- ing the statutes, regulations, federal policies, re- ports, articles, and cases relevant to a particular subject. Legal research digest 2: theory and Law of airport revenue diversion Paul Stephen Dempsey, Tomlinson Professor of Law, McGill University Airports in the United States are overwhelm- ingly owned and operated by municipal, county, re- gional, and, in some instances, state governments, although the federal government has provided much of the funding for these airports. The fiscal problems facing municipal governments more gen- erally have forced many to search for new sources of revenue. The ability of federally funded airports to support local governments is limited by law. Use of airport revenue for purposes other than airport pur- poses is unlawful revenue diversion. Understanding revenue diversion requires a basic understanding of general principles of airport cost and revenue and their subcomponents, including capital and operat- ing costs and the various sources of revenue.

6sibility of the federal government. However, when an enhancement project requires additional land, courts are reluctant to preempt local zoning law. This digest discusses federal, state, regional, and local laws and regulations pertaining to avia- tion land use and zoning and identifies the primary responsibilities of each relevant legal body and how this responsibility is communicated and enforced. Legal research digest 6: the Impact of airline Bankruptcies on airports Jocelyn K. Waite, Waite & Associates The basic theory of a succession of the United States Bankruptcy Acts has been to provide debt- ors protection from creditors while providing an orderly system for paying all creditors. Bankruptcy was considered so essential that it was entrusted to Congress under Article One of the Constitution of the United States. Following the September 11, 2001 (9/11) at- tacks on the World Trade Center, U.S. airlines have filed bankruptcies at an alarming rate. In 2005 alone, there were at least seven airlines bankruptcies. Air- line bankruptcies not only pose significant finan- cial hardship on airports dependent on airlines for revenue, but also raise significant legal issues con- cerning treatment of airlines’ obligations to airports under the bankruptcy process. This digest examines those legal issues pre- sented by the filing of airline bankruptcies that are relevant to airports and explores how airport law- yers and courts have responded to those issues. The digest presents the basics of bankruptcy theory and law relevant to airport operating agreements with airlines and identifies issues such as lease rechar- acterization and payment of stub period rent that particularly affect airports dealing with airlines in bankruptcy. The digest primarily addresses federal business bankruptcy cases, although it does identify issues on which state law will govern. Legal research digest 7: airport governance and ownership Daniel S. Reimer, Esq., and John E. Putnam, Esq., Kaplan Kirsch & Rockwell, LLP Airports are often characterized by their owner- ship, but it is the governance structure that deter- mines how an airport is managed, operated, and de- that their rates be reasonable to implementation of disadvantaged business enterprise programs. The Federal Aviation Administration (FAA) adjudicates complaints, brought by FAA or raised by third par- ties, relating to alleged failures by airports to comply with the AIP grant assurances. Prior to 1966, the FAA’s procedures for process- ing and making determinations regarding complaints against federally funded airports were set forth in 14 C.F.R. Part 13, a set of regulations applicable to a variety of adversarial proceedings within FAA’s jurisdiction. In 1997, the FAA promulgated Part 16, regulations relating to processing complaints against airports specifically. Part 16 includes sev- eral stages of FAA review; and therefore, multiple decisions may be issued by the FAA in a particular Part 16 proceeding. It is difficult for attorneys representing airports to find relevant cases either in the older Part 13 deci- sions relating to airports or in the more recent Part 16 decisions. In addition, airport attorneys are rarely aware of U.S. DOT General Counsel opinions or FAA Chief Counsel opinions on airport legal issues. This CD-ROM compilation makes these materials available along with indexes designed to facilitate the search for specific questions and issues. Legal research digest 5: responsibility for Implementation and Enforcement of airport Land-use Zoning restrictions William V. Cheek, Esq., William V. Cheek & Associates Commercial aviation has increased significantly over the past 20 years. Likewise, communities adja- cent to airport property have grown during the same time span. Recent airport expansion plans have been vigorously opposed, often resulting in court action. Such litigation is caught at the intersection of two traditional practices: local communities are charged with control of land use and do so through zoning and land-use restrictions, while the federal govern- ment is responsible for controlling aircraft opera- tions. States vary as to which administrative body has aviation zoning authority and the extent of that authority. Generally, when a project is deemed as an enhancement to flight safety or a modification to property or facilities on existing airport grounds, courts tend to find these modifications in the nature of “aircraft operations” under the exclusive respon-

7craft owners/operators, and prohibitions concerning the granting of exclusive rights leases and permits. There is a need for aviation attorneys and aviation personnel alike to possess a broad-based understanding of the legal issues involved with the development and implementation of rules or regulations that restrict an aircraft owner’s right to “self-service.” In addition, the airport sponsor is obliged to balance the aircraft owner’s right to self-serve against the requirement to effectively control activities that may affect the safe and effi- cient operation of the airport and the civil aviation needs of the public. The primary objective of this digest is to inform aviation attorneys and other aviation personnel pre- cisely how federal and local guidelines pertaining to self-fueling have been applied under different circumstances. This digest contains an expansive compilation and interpretation of related source documents including FAA administrative decisions, Advisory Circulars, and grant assurances necessary to inform concerned parties of the need to develop rules and regulations, as well as enforcement pro- ceedings relating to self-fueling. Legal research digest 9: case Studies on community challenges to airport development Jaye Pershing Johnson, J.D. Development activities at airports around the United States have resulted in a number of chal- lenges against the FAA and airport proprietors from municipalities and community groups seeking to modify or prevent airport expansion and develop- ment. Challenges may use various legal theories to modify or, in some cases, to challenge airport de- velopment. This collection is intended to convey the strategies that the FAA and airport operators have relied upon in addressing community challenges to airport expansion and development and identify which strategies have succeeded, which have failed, and the reasons for both. The digest summarizes judicial decisions; ex- plains the bases of the challenges to airport expan- sion and development, the defense to the challenges, and the outcome of the cases; and provides a sum- mary of responses from airport proprietors to a sur- vey regarding litigation strategies. veloped. For example, an airport can be owned by a municipality and operated by either a regional- or city-controlled airport authority. General-purpose governments at the federal, state, county, and mu- nicipal levels all have governed or currently govern airports, as well as special-purpose entities such as airport authorities and port autho rities. In spite of the multiplicity of governance models, there has been relatively little analysis of the advantages and disadvantages of different governance structures and how well different types of public entities per- form the function of governing airports. This digest is intended to serve two principal purposes: (1) to detail the laws and legal principles affecting airport governance and (2) to correlate air- port governance and the governing body’s ability to perform particular functions. Legal research digest 8: the right to Self-fuel C. Daniel Prather, Prather Airport Solutions, Inc. The fueling of aircraft at airports is a major busi- ness activity that can generate considerable income for airports and simultaneously constitute consid- erable expense for an aircraft owner/operator. The Airport and Airway Improvement Act of 1982 (The Act), 49 U.S.C. § 47101 et seq., and the Airport Im- provement Program Sponsor Assurances require that the owner or operator of any airport that has been developed or improved with federal grant as- sistance operate the airport for the use and benefit of the public and make it available for all types, kinds, and classes of aeronautical activity, including the self-fueling of aircraft. The FAA issues Advisory Circulars that not only identify standards and proce- dures for compliance with this requirement but also define and clarify the meaning of aviation terms, such as “self-fueling,” which generally means using fuel obtained by the aircraft owner from his/her pre- ferred source. The definition and meaning of self- fueling must be distinguished from that of commer- cial self-service fueling, which the FAA defines as “fueling of an aircraft by the pilot using commercial fuel pumps installed for that purpose.” Notwithstanding the FAA Circular pertaining to self-fueling, airport attorneys and others continue to face questions concerning the denial of requests to self-fuel, limitations sponsors can impose on air-

8Legal research digest 12: fair disclosure and airport Impact Statements in real Estate transfers Larry W. Thomas, Attorney at Law The purpose of fair disclosure laws is to provide prospective home buyers with sufficient information to make informed decisions about the purchase of property. In too many cases, property is purchased near airports without full disclosure of the nature of airport operations such as noise and flight paths. This creates the potential for purchaser remorse based on the lack of disclosure of airport noise and operations. This digest examines the effect of a state or locality having no real property disclosure laws, existing general state real property disclosure laws, and existing state real property disclosure laws spe- cifically requiring the disclosure of airports in close proximity to the property being offered for sale. After identifying and analyzing state real property disclosure laws specifically requiring the disclosure of airports, the digest includes annotated typical fair real property disclosure law provisions. The latter includes provisions essential for effective fair dis- closure of airport-related impacts. Legal research digest 13: an Index and digest of decisions: compilation of airport Law resources Kaplan Kirsch & Rockwell, LLP This compilation is the third ACRP publication that attempts to provide airport lawyers the tools to be able to quickly identify relevant legal concepts and case precedents. ACRP Legal Research Digest 1: Compilation of Airport Law Resources provided a comprehensive listing of airport-related legal re- sources, including judicial decisions, government publications, scholarly journals, and other periodi- cals. ACRP Legal Research Digest 4: Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 31, 2007 pro- vides an index similar to Legal Research Digest 1, as well as summaries and links to source documents for DOT and FAA administrative decisions, deter- minations, and legal opinions. This CD-ROM compilation provides access to a single source document that not only lists judicial decisions relating to a particular legal issue, but also provides a summary of relevant holdings and a link to the source document itself. Legal research digest 10: analysis of federal Laws, regulations, and case Law regarding airport Proprietary rights Jodi L. Howick, Esq., Durham, Jones & Pinegar Airport owners and operators have certain pro- prietary rights to manage and control access to their facilities. These proprietary rights are the propri- etor’s state-granted powers to act to the extent they have not been superseded or preempted by federal law or modified by contract. The scope of these rights has developed over time in response to chal- lenges that airport proprietors have faced, and the history of these rights illustrates why proprietors may exercise rights that nonproprietors cannot. This digest reviews some of the factors that have historically shaped airport proprietary rights and ana- lyzes the relevant federal statutes, regulations, and case law with regard to airport proprietary rights, in- cluding regulation of noise, other environmental mat- ters, safety restrictions, leasing practices, congestion management, and other airport access limitations. Legal research digest 11: Survey of minimum Standards: commercial aeronautical activities at airports Daniel S. Reimer, Esq., and Paul A. Meyers, Kaplan Kirsch & Rockwell, LLP; Aviation Management Consulting Group Numerous commercial aeronautical activities occur at airports. Examples of these activities in- clude aircraft fueling, aircraft line (ground handling) services, aircraft maintenance and repair, aircraft storage, aircraft rental and flight training/instruction, aircraft sales, and aircraft charter and management. Airport owners and operators commonly impose re- quirements that must be met by the businesses that perform these commercial aeronautical activities. These requirements are known as “minimum stan- dards.” Airport minimum standards vary from air- port to airport, based on factors such as the nature of aeronautical activities, the type and level of aircraft operations, the type and number of based aircraft, the types of commercial aeronautical services provided, and available land and improvements. This digest contains source material for adopt- ing and enforcing minimum standards, presents sur- vey results showing current practices, and includes a compendium of comparative minimum standards.

9tion, funding, and taxing authority; law enforcement; and sovereign immunity. This digest seeks to provide policy makers, air- port operators, and other practitioners a convenient and synthesized resource of all states’ airport- specific legislation. Legal research digest 16: Procurement of airport development and Planning contracts Robert Alfert, Jr., P. A., and Karen M. Ryan, Esq., Broad and Cassel; and Roy Block, RW Block Consulting, Inc. Most airport operators, as public agencies, are subject to some type of procurement law or regu- lation for carrying out procurements and awarding contracts. Airports receive funding from a variety of sources, including federal, state, and local govern- ments and internal revenue sources, such as tenant revenue, concessions, and parking revenue. Each of these funding sources has its own procurement re- quirement and, in some instances, the requirements may conflict. Similarly, while exceptions to the gen- eral requirements of competition may be available, the circumstances and conditions that must be met to quality for the exceptions may vary. Airports that receive federal funds are subject to statutes, regu- lations, operating guidance, and case law that will impact procurements. If an airport is funded by a number of different federal agencies, each may have its own requirement. Successfully navigating such a complex regulatory environment requires careful analysis, especially when the requirements are am- biguous or conflicting. This digest provides guidance to airport opera- tors, their counsel, and bidders on how to determine which requirements apply to any given procure- ment as well as providing an overview of the con- sequences for noncompliance so that airports can better understand the inherent risks associated with each funding source. Legal research digest 17: State and federal regulations that may affect Initiatives to reduce airports’ gHg Emissions John E. Putnam and Lala T. Wu, Kaplan Kirsch & Rockwell, LLP; Stephanie J. Tatham There is a growing movement among state and federal agencies to focus on transportation Legal research digest 14: achieving airport-compatible Land uses and minimizing Hazardous obstructions in navigable airspace Jocelyn K. Waite, Waite & Associates Federal law currently requires airport owners to provide for the safe overflight of property of sur- rounding airports, as well as to restrict surround- ing land uses to those that are airport-compatible. Potential tools for ensuring compatible land use in- clude comprehensive (or master) land-use planning, zoning, building and site design, and avigation and clearance easements. An airport sponsor’s deploy- ment of these tools is based on state and local, not federal, law. Airport attorneys must not only be cog- nizant of land-use compatibility requirements, but must be familiar with the range of options for com- plying with them and aware of the legal implications of implementing the various options. This digest discusses airport-compatible land- use requirements, the legal issues related to achiev- ing airport-compatible land use, and legal issues particular to eliminating hazardous obstructions to airspace. The digest concludes by reviewing the major legal issues of concern in achieving airport- compatible land use. Legal research digest 15: compilation of State airport authorizing Legislation Jodi L. Howick, Esq., Durham, Jones & Pinegar Most U.S. airports are government entities, and as such, state laws provide the means to create an airport entity and authorize its operating powers. An airport entity’s local powers are essential to its operation and meeting its federal obligations. Each state has enacted legislation creating and empowering governmental entities such as state agencies, municipalities, airport authorities, joint power organizations, and so on, to plan, design, construct, operate, and protect pub- lic airports. The purpose of this digest is to present information that has been compiled, reviewed, and summarized pertaining to each state’s airport-specific legislation, including laws establishing, developing, operating, expanding, and funding airports. The com- pilation focuses on legislation expressly applicable to public airports rather than legislation applicable to local governments generally. The compilation com- pares and contrasts zoning and land use; purchasing authority; commercial operations; ground transporta-

10 systems, including airports, in the ongoing efforts to reduce carbon emissions. Efforts to reduce carbon emissions at airports involve a range of federal, state, and local legal issues. In Califor- nia, for example, the San Diego Airport’s Master Plan became the subject of focus by the California Attorney General pursuant to state law. Subse- quently, the Attorney General and the San Diego Airport entered into a Memorandum of Under- standing that specifies the measures that the Air- port will take to reduce greenhouse gas (GHG) emissions. However, under federal law, it is pri- marily the U.S. Environmental Protection Agency and the FAA that have the authority to regulate aircraft emissions. This digest introduces airport management and staff to legal issues that are relevant to implement- ing GHG mitigation measures at airports. It also provides a compilation of carbon reduction initia- tives at airports that distinguishes between green building requirements and other building code di- rectives (e.g., energy efficiency initiatives; lighting, heating, ventilating, and air-conditioning efficiency improvements; and use of solar energy) and efforts directed at reducing aircraft GHG emissions (e.g., through use of preconditioned air units and aircraft tugs or limits on engine idling). This digest also identifies and discusses the range of federal, state, and local legal issues that may be associated with the implementation of these types of measures.