By: Barbara E. Lichman, Ph.D., J.D.

In a decision of October 21, 2019, the Federal Aviation Administration (“FAA”) defied its own regulations, federal law, and logic in determining that the City of Santa Monica had properly expended airport revenues in the demolition of 3,500 feet of the runway at Santa Monica Municipal Airport (“SMO”), for the express purpose of limiting access by turbojet aircraft.

In its decision, FAA stated “[w]e conclude that airport revenue may be used to fund the payment removal, pavement pulverization, and hydro-seeding project, including the work within the Runway Safety Area, at SMO. The removal of the subject pavements, pavement pulverization and reuse, and the soil stabilization at SMO appears justified as an airport operating cost.” [Emphasis added]. Existing law and governing regulations would, however, appear to lead to the contrary conclusion.

Under federal aviation statutes and FAA policies, as well as the terms of federal airport Grant Agreements, airports that have received federal assistance are generally obligated to use airport revenue for certain airport related purposes. The general rule is that revenues generated by a public airport may only be expended for the capital and operating costs of: (1) the airport; (2) the local airport system; or (3) other facilities owned or operated by the airport owner or operator and directly and substantially related to the air transportation of passengers and property. See 49 U.S.C. §§ 47107(b)(1) and 47133(a). The use of airport revenue for purposes other than airport capital or operating costs is generally considered “revenue diversion” and is prohibited by federal law. See Policy and Procedures Concerning the Use of Airport Revenue, 64 Fed.Reg. 7696, 7720 [FAA Revenue Use Policy]. Given these rules, militating for the use of airport revenues for “airport operating costs,” it is difficult to see how the demolition of facilities necessary for that “operation” can comfortably fit within those definitions.

Moreover, even the purpose of the demolition, to inhibit access by jet aircraft, which require longer than the remaining runway to land, is precluded. As early as City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), the United States Supreme Court rejected a restriction on the hours of operation for jet aircraft implemented at Los Angeles International Airport “because such restrictions could ‘create critically serious problems to all air transportation patterns,’” Id. at 639 quoting 25 Fed.Reg. 1764-1765. Moreover, the Supreme Court held that “the network of airports throughout the United States and the constant availability of these airports are essential to the maintenance of a sound air transportation system.” Id. at 640. Even though SMO is scheduled for closure in 2028, its remaining years of function in the National Air Transportation System would seem to fall within the above legal constraint.

Congress followed suit in 1990 with the Airport Noise and Capacity Act, now codified at 49 U.S.C. § 47521, et seq. In it, Congress took the unequivocal position with respect to “restrictions:”

“. . . an airport noise or access restriction may include a restriction on the operation of stage 3 aircraft not in effect on October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation after an airport or aircraft operator’s request for approval as provided by the program established under this section. Restrictions to which this paragraph applies include- . . . (B) a restriction on the total number of stage 3 aircraft operations . . . (E) any other restriction on stage 3 aircraft.”

49 U.S.C. § 47524(c)(1)(B) and (E). It has become popular knowledge that incumbent aircraft owners and operators strongly disagree with the physical “restriction” on aircraft operation.

In short, it is difficult to intuit the way in which FAA rationalized the destruction of an airport facility which destruction has the same effect as a local regulation purporting to limit access. It is likely that FAA’s decision will be appealed to a federal appellate court as required by federal law. 49 U.S.C. § 46110. Stay tuned for the final decision.

Source: Aviation & Airport Development Law News