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

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3 STATE AND FEDERAL REGULATIONS THAT MAY AFFECT INITIATIVES TO REDUCE AIRPORTS’ GHG EMISSIONS By John E. Putnam, Kaplan Kirsch and Rockwell LLP; Lala T. Wu, Kaplan Kirsch and Rockwell LLP; and Stephanie J. Tatham I. INTRODUCTION Over the last few years, airport managers have ex- pressed increasing interest in undertaking greenhouse gas (GHG) mitigation measures to address the climate change effects of airport activities. This interest stems from a variety of motivations, including concerns about the long-term sustainability of the aviation industry; the potential for mandatory regulation of airport activi- ties in the future; the existing policies of state, county, or municipal entities; growing interest from airlines and other tenants; and the leadership of airport staff and boards. However, initiatives to implement GHG-mitigation measures at airports are complicated by layers of legal uncertainty, including the lack of any comprehensive federal climate change legislation, uncertainty regard- ing the reach of state legislation, and existing federal aviation regulations and guidance that did not contem- plate climate change issues when originally drafted. Further complications arise from the fact that the vast majority of airport emissions come from aircraft, ground service equipment (GSE), and ground access vehicles that are not owned or operated by airports. This digest introduces airport management and staff to legal issues that are relevant to implementing GHG- mitigation measures at airports. As part of this effort, the authors of the digest have coordinated with the team that developed Airport Cooperative Research Pro- gram (ACRP) Report 56, Handbook for Considering Practical Greenhouse Gas Emission Reduction Strate- gies for Airports,1 which provides an extensive menu of 125 GHG-reduction measures for airports. ACRP 56 evaluates each measure for its practicality, considering factors such as capital cost, return on investment, and GHG-reduction potential. This digest complements that effort by analyzing many of those same measures from a legal perspective. Section IV of the digest, which con- tains the measure-by-measure analysis, is organized into the same 12 categories that are used in ACRP 56: 2 • Airfield Design and Operations. • Business Planning. • Construction. 1 http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_ 056.pdf. 2 Like any categorization system, the approach from ACRP 56 and reported in this digest involves a number of judgment calls and has some overlap among categories. Some measures could qualify for inclusion in multiple categories, but by neces- sity are reported in one. • Carbon Sequestration. • Energy Management. • Ground Service Equipment. • Ground Transportation. • Materials and Embedded Energy. • Operations and Maintenance. • Performance Measurement. • Renewable Energy. • Refrigerants. GHG-mitigation measures for airports involve legal issues that range from the familiar (such as preemption of aviation-related regulation and Federal Aviation Administration (FAA) grant assurances) to the less fa- miliar (such as energy regulation). This digest focuses on issues that are peculiar or especially important to airports; it does not address, except through brief refer- ence, general contract, tort, or other issues that could arise in any development or management context. The digest is organized into three main sections. Sec- tion II describes the various sources of GHG emissions that are generated from airport-related activities. Sec- tion III summarizes the federal, state, and local laws that are most likely to be implicated in the implementa- tion of various GHG-mitigation measures at airports. Section IV explains how these laws may apply to the implementation of specific GHG-mitigation measures described in ACRP 56, including actual and hypotheti- cal examples. This digest is intended for airport attorneys, manag- ers, and staff; elected officials; regulatory agencies; and others interested in this topic. The digest is not in- tended to provide any legal or policy recommendations. What may be considered prudent, feasible, cost effec- tive, and appropriate at one airport may not be at an- other. The digest is intended for general information purposes only and does not contain legal advice appli- cable to any particular airport. II. AIRPORT SOURCES OF GREENHOUSE GAS EMISSIONS To put legal issues associated with GHG-reduction efforts into context, it is useful to briefly review how airports and airport-related activity affect climate change. Many of the legal issues associated with airport GHG emissions revolve around the physical sources of the GHG emissions, along with who owns or operates them. The vast majority of airport-related emissions come from sources that are not directly owned and con-

4 trolled by airports, increasing the legal complexity of addressing them. A. Airport and Aviation Contribution to Climate Change Recent scientific evidence strongly suggests a con- nection between climate change and increasing atmos- pheric concentrations of GHGs such as carbon dioxide (CO2), methane, tropospheric ozone, and nitrous oxide. Many GHGs are naturally occurring, but human activ- ity has substantially increased the amount of GHGs in the atmosphere. There is a scientific consensus identi- fied by the National Academies and others that climate change represents a threat to the environment and hu- man welfare and that recent warming trends have been driven by anthropogenic activity.3 In the United States, the primary sources of anthro- pogenic GHG emissions are related to the production and use of energy.4 Energy use and production account for approximately 86 percent of total U.S. anthropo- genic GHG emissions on a CO2 equivalent basis.5 The combustion of fossil fuels creates the vast majority of energy-related emissions.6 The five largest categories of U.S. sources of GHG emissions from fossil fuel combustion are electricity generation, transportation, industry, residential, and commercial. In 2008, combustion of fuel for transporta- tion and electricity generation for the transportation sector (including airport-related electricity consump- tion) together accounted for approximately 27 percent of U.S. GHG emissions.7 Aviation-related activities produce about 3 percent of total U.S. GHG emissions.8 However, aviation’s contri- bution to air pollutant concentrations nationwide is expected to increase with forecasted growth of the sec- 3 JOINT SCIENCE ACADEMIES’ STATEMENT: GLOBAL RESPONSE TO CLIMATE CHANGE (2005), available at http://nationalacademies.org/onpi/06072005.pdf (signatories are the National Academies of Brazil, Canada, China, France, Germany, India, Italy, Japan, Russia, the United Kingdom, and the United States); Naomi Oreskes, Beyond the Ivory Tower: The Scientific Consensus on Climate Change, 306 SCIENCE, Dec. 3, 2004, at 1686, http://www.sciencemag.org/content/306/5702/1686.full.pdf. 4 U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990–2008,at 3-1 (2010), available at http://www.epa.gov. climatechange/ghgemissions/usinventoryreport.html. 5 Id. Many substances other than carbon dioxide act as GHGs. Carbon dioxide equivalency values compare the global warming potential of different GHGs, such as methane or ni- trous oxides, to make comparisons and additions possible. EPA, Glossary of Climate Change Terms, http://www.epa.gov/ climatechange/glossary.html (last visited June 6, 2012). 6 U.S. ENVIRONMENTAL PROTECTION AGENCY, supra note 4. 7 Calculated from Table 3-1 and total net U.S. GHG emis- sions of 6,014 Tg CO2 in 2008. Id. § 2.1, tbl. 3-1. 8 Id. tor in coming decades.9 The FAA estimates that the annual number of passengers in the United States will increase from 750 million in 2012 to over 1 billion by 2023.10 FAA also forecasts a 20 percent increase in the number of flights over the same period.11 Although technology advancements can be expected to improve the environmental performance of the avia- tion sector in the long term, the long cycles of aircraft technology development and fleet turnover mean that it takes approximately 10 to 15 years for fleet-average fuel efficiency to catch up with the efficiency of the newest aircraft.12 Absolute GHG emissions from the aviation sector are expected to increase in the future; conservative estimates project that by 2025, aircraft GHG emissions will increase by 60 percent.13 B. Airport Sources of GHG Emissions Airports contain a wide variety of sources of GHGs, including aircraft, GSE, ground access vehicles, and heating and cooling facilities. Airports also consume energy, products, and services that create GHGs. For example, airports use considerable quantities of elec- tricity that is often generated through the combustion of coal or gas. Unsurprisingly, the direct combustion of fossil fuels in aircraft engines creates the majority of GHG emis- sions from the aviation sector. The largest proportion of aircraft engine emissions (70 to 90 percent) occurs at higher altitudes rather than at ground level or near airports.14 Other airport support activities also generate GHGs. Such activities include, but are not limited to, operation of GSE; use of ground access vehicles such as buses, taxis, and passenger vehicles; energy use at facilities; construction, including construction equipment opera- tions and energy embedded in construction materials; waste handling, such as incineration of international waste or recycling; and the escape of refrigerants to the ambient air. As of 2008, no national or state laws required airport operators to prepare GHG emissions inventories,15 and 9 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-50, AVIATION AND THE ENVIRONMENT: SYSTEMATICALLY ADDRESSING ENVIRONMENTAL IMPACTS AND COMMUNITY CONCERNS CAN HELP AIRPORTS REDUCE PROJECT DELAYS 8 (2010), http://www.gao.gov/new.items/d1050.pdf. 10 Id. at 1. 11 Id. 12 FEDERAL AVIATION ADMINISTRATION, AVIATION AND EMISSIONS: A PRIMER 19, http://www.faa.gov/regulations_ policies/policy_guidance/envir_policy/media/aeprimer.pdf (2005). 13 Id. at 10. 14 Id. at 2. 15 AIRPORT COOPERATIVE RESEARCH PROGRAM, TRANSPORTATION RESEARCH BOARD, REPORT 11, GUIDEBOOK ON PREPARING AIRPORT GREENHOUSE GAS EMISSIONS INVENTORIES 1 (2009), http://onlinepubs.trb.org/onlinepubs/ acrp/acrp_rpt_011.pdf.

5 the first specific guidance for airports related to the development of GHG emissions inventories was only issued in 2009.16 Accordingly, airport emissions inven- tories have generally been undertaken voluntarily, al- though sometimes at the behest of state or local au- thorities or in response to state-level environmental impact review requirements.17 New regulations promulgated by the Environmental Protection Agency (EPA) mandate emissions reporting from stationary sources (like power plants or heating and cooling plants) that generate more than 25,000 tons of GHGs per year.18 In 2010, five airports reported their emissions to EPA.19 Some of the airport-specific GHG emissions invento- ries that have been conducted in the United States in- clude the following: • 2009 San Diego International Airport Criteria Pol- lutant and Greenhouse Gases Baseline Emissions In- ventory.20 • 2009 Sacramento County Greenhouse Gas Emis- sions Inventory.21 • 2008 Westchester County Airport Air Emissions Inventory.22 • 2006 Port of Seattle Aviation Division Greenhouse Gas Inventory.23 • 2005 City and County of Denver Greenprint Den- ver Climate Initiative, including Denver International Airport.24 16 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 9, at 34; TRANSPORTATION RESEARCH BOARD, supra note 15. 17 Id. 18 EPA, Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56,260 (Oct. 30, 2009); 40 C.F.R. pt. 98, http://www.epa.gov/climatechange/emissions/downloads09/GH G-MRR-Full%20Version.pdf. See § III.A.4 for further discus- sion. 19 EPA GHG Data, 2010 Greenhouse Gas Emissions from Large Facilities, http://tinyurl.com/74vwtve (last visited June 6, 2012). 20 San Diego International Airport, Air Quality Manage- ment, http://www.san.org/sdcraa/airport_initiatives/ environmental/air_quality.aspx (last visited June 6, 2012). 21 SACRAMENTO COUNTY DEPARTMENT OF ENVIRONMENTAL REVIEW AND ASSESSMENT, GREENHOUSE GAS EMISSIONS INVENTORY FOR SACRAMENTO COUNTY (2009), available at http://www.airquality.org/climatechange/SAC_GHG_Inventory June09.pdf (last visited June 6, 2012). 22 WESTCHESTER COUNTY AIRPORT, WESTCHESTER COUNTY AIRPORT AIR EMISSIONS INVENTORY (2008), available at http://www.westchestergov.com/jairport/pdfs/air_emissions_inv entory.pdf (last visited June 6, 2012). 23 PORT OF SEATTLE, SEATTLE-TACOMA INTERNATIONAL AIRPORT GREENHOUSE GAS EMISSIONS INVENTORY–2006 (2007), available at http://www.airportattorneys.com/files/ greenhousegas06.pdf (last visited June 17, 2012). 24 MAYOR’S GREENPRINT DENVER ADVISORY COUNCIL, CITY OF DENVER CLIMATE ACTION PLAN (2007), available at http://www.greenprintdenver.org/about/climate-action-plan- reports/ (last visited June 6, 2012). It is difficult and probably not useful to conduct de- tailed comparisons of airports using these inventories, as they were prepared using different methodologies, at different times, involving different-sized airports in different parts of the country. However, two basic conclusions can be drawn from existing airport inventories that provide useful back- ground for this digest. First, the overwhelming majority of emissions associated with airports come from aircraft that airports neither own nor operate. At each of the five inventoried airports, aircraft emit more than 60 percent of airport GHG emissions. At all airports other than the Westchester County Airport, aircraft are re- sponsible for more than 80 percent of airport GHG emissions. The variation between Westchester County and the other examined airports is likely attributable to the fact that the Westchester County inventory exam- ined only aircraft emissions that occurred below 3,000 ft above ground level, whereas other airports also consid- ered emissions generated above 3,000 ft. Second, among the other categories of emissions sources, the relative proportions differ based on local conditions and methodologies. For example, emissions attributable to electricity use at terminals and other facilities will differ between Seattle and Denver due to the manner in which electricity is generated. A kilowatt hour in the Northwest produced with a high proportion of hydropower will have a much lower GHG profile than a kilowatt hour in the West or Midwest produced pre- dominantly from coal. Additionally, ground access vehi- cle emissions will depend significantly on the length of average trips to the airport and how many people use multi-occupant vehicles or public transportation.

6 Accordingly, airports have largely eschewed one-size- fits-all approaches to GHG control, instead tailoring measures to their local legal, political, technical, and economic climates. The range of GHG control measures identified in ACRP 56 and Section IV reflects this di- versity. This collection of measures represents a toolbox rather than a prescriptive blueprint. C. Airport Ownership and Operating Control Over Sources One of the most important elements in developing GHG inventories and control plans is categorizing the degree of ownership or control that the airport has over various sources. This is important for legal and practi- cal purposes because an airport generally will have more ability to influence emissions from sources it owns and operates, including its own vehicles and buildings. ACRP guidance suggests that, when producing GHG inventories, airport proprietors should consider and indicate whether or not they have control or influence over an emissions source, or if the source is beyond the airport’s control.25 This can help to avoid unrealistic expectations about an airport’s ability to reduce emis- sions from all sources.26 25 TRANSPORTATION RESEARCH BOARD, supra note 15 § 2.2 (2009), http://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_ 011.pdf. 26 Daniel S. Reimer & John E. Putnam, The Law of Avia- tion-Related Climate Change: The Airport Proprietor’s Role in Reducing Greenhouse Gas Emissions, 2 AIRPORT MANAGEMENT 88–89, 93 (2007), http://www.airportattorneys.com/files/JAM ClimateChangeArticle.pdf. ACRP guidance and GHG emissions inventory meth- odologies frequently refer to three categories of emis- sions sources, based on ownership and control: • Scope One: Direct emissions—emissions from sources that are owned and controlled by the reporting entity. • Scope Two: Indirect emissions—emissions from the generation of purchased electricity consumed by the entity. • Scope Three: Indirect and optional emissions— emissions that occur as a consequence of the activities of the entity, but occur at sources owned and controlled by another party. Scope Three includes the emissions from tenants such as airlines and general aviation operators, private fixed-base operations, flight kitchens, cargo operations, and maintenance facilities, as well as cars, trucks, buses, and other vehicles accessing airports. Typically, Scope Three would contain the majority of airport emis- sions because it includes aircraft emissions, which dominate airport emissions inventories.27 This delineation approach is helpful, but imperfect. It reflects one way of looking at the difficulty of achiev- ing emissions reductions from sources not owned or operated by the airport. However, it does not account for all of the regulatory and proprietary powers that airports can use to influence emissions from nonowned sources. Airports have a mix of proprietary and regula- tory powers—exercised through leases, minimum stan- dards, regulations, permits, and other tools—that can 27 AIRPORT COOPERATIVE RESEARCH PROGRAM, supra note 15, at 14.

7 be used to influence emissions from the wide variety of Scope Three sources. At the same time, federal and state laws (as discussed in Section III) preempt the scope of some of these airport powers in ways that vary based on the source. For example, even though aircraft emissions and airline-controlled building emissions both can fall within Scope Three, airports have a much greater ability to control emissions from tenant build- ings on an airport than emissions from aircraft operat- ing at an airport. It is also critical to consider that the categorization of sources will often vary from airport to airport. While most electricity consumed at airports comes from offsite sources and, thus, is considered in Scope Two, some airports generate electricity at cogeneration and other facilities that would be considered in Scope One. Simi- larly, while GSE often fall into Scope Three, some air- ports own and control ground handling, fixed-base op- erator (FBO), or other operations that would qualify for Scope One treatment. Accordingly, it is necessary to carefully consider the unique circumstances present at any given airport as part of the planning and legal as- sessment of GHG control measures.