Recent Developments in Environmental Law & Policy Trends in Sustainable Development

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1 ACI-NA 2008 Spring Legal Conference Coral Springs, Florida April 15-18, 2008 Recent Developments in Environmental Law & Policy Trends in Sustainable Development Presented by: Jennifer Trock Pillsbury Winthrop Shaw Pittman LLP 2300 N Street NW Washington, DC jennifer.trock@pillsburylaw.com

2 Hi,Ireadyourpostingonlineandamveryinterested!Iama25yr.oldprofesionalokingtomoveintoanapartmentinthatarea.CurentlyIliveinagrouphouseby14thandU.Irealyliketheareandthehousebutamlokingforaquieterom.IworkatlawfirmbyDupontsotheredlinewouldbeperfectandIrealyliketheideaofsomegrenarearoundme.Alitlemoreaboutmyself,IamfromNH,wentoProvidenceColegeinR.I.,movedownhereabout21/2yearsagoandamenjoyingmyself.Mysocialifesemsimilartoyours-quietontheweknights,moresocial onthewekends.myinfoisbelowifyou'reinterestedinmetingup.iamlokngtomoveforjune1.chers, Maura Overview Panama City Airport Litigation: A case study in sustainable airport development Environmental Trends in Airport Development Legal Considerations for Airport Sponsors 2

3 Panama City Airport Relocation The Need for A New Airport Airport located on approximately 700 acre site bounded on three sides by dense residential development, roads, and existing infrastructure, and on the fourth side by water. Longest runway primarily accommodates regional jets and turboprops humidity and high temps limit most bigger operations most of the time. Existing Runway Safety Areas are deficient by 941 (out of 1,000) feet on one end and approximately 500 feet on the other end. Significant military airspace conflicts with Eglin and Tyndall Air Force Bases, which conduct fighter jet. Airport vulnerable to storm surges, hurricanes, and weather events, runway length limits emergency response aircraft. 3

4 Current RSA 4

5 Operational Constraints 5

6 Panama City Airport Relocation: Relocated Airport New airport will be located on 4,000 acre site donated by St. Joe Company. New airport is part of a public-private cooperative and comprehensive land use planning process, which provides sustainable and compatible uses for approximately 75,000 acres of undeveloped land and former industrial tree farms. The proactive approach to compliance with land use planning evidenced in the West Bay Sector Planning process is a model for airport development. FAA ROD at 34. Nearly 10,000 acres will be placed into permanent conservation easements, with an additional 31,000 acres set aside for conservation and restoration. 10,000 foot noise buffer around new airport will prevent any noncompatible land use. Supported by State of Florida, Florida Department of Environmental Protection, Florida Audubon Society, 1,000 Friends of Florida and major environmental groups. 6

7 The West Bay Sector Plan 7

8 Environmental Benefits of Panama City Airport Relocation Florida Department of Environmental Protection found that project provided net ecosystem benefit. Sustainable development of tens of thousands of acres that would otherwise be subject to piecemeal development. Permanent preservation and restoration of thousands of acres of land that would otherwise be subject to development. LEED certified terminal. Exceeds current storm water requirements. Eliminates noise impact to surrounding communities and ensures future growth will be compatible. Minimizes military airspace conflicts. Reduces storm surge/hurricane vulnerability; allows airport to be used by emergency response aircraft. 8

9 Second Circuit Challenge: NRDC v. FAA NRDC, Defenders of Wildlife, and Friends of PFN challenged FAA s ROD in Second Circuit under NEPA and AAIA pursuant to FAA judicial review statute, 49 U.S.C ; Airport sponsor intervened in the action. NEPA Claim: Standard NEPA claims regarding evaluation of alternatives, sufficiency of mitigation. Raised claims regarding sufficiency of EIS based on suspected presence of Ivory Billed Woodpecker. AAIA Claim: Challenged FAA s acceptance of Sponsor s forecasts, which supported 8,400 runway. (FAA is only providing funding for 6,800 runway.) Challenged FAA s determination that no practical or prudent alternatives existed under natural resource provision. Friends of PFN sought emergency stay days prior to start of construction. Administrative stay granted on ex-parte basis; modified to allow limited construction after emergency hearing, and vacated after merits argument. 9

10 District Court Challenge: CWA Section 404 Florida Clean Water Network v. U.S. Army Corps of Engineers (Middle District of Florida) The Florida Clean Water Network ( CWN ), Defenders of Wildlife, and the NRDC challenged the U.S. Army Corps of Engineers ( Corps ) issuance of a Section 404 permit, required for filling of wetlands associated with relocation project. Plaintiffs also challenged U.S. Fish & Wildlife Services Biological Opinion regarding endangered species and impact on Flatwoods salamander. Court denied plaintiff s motions for temporary restraining order, emergency stay, and injunction pending appeal of denial of emergency stay. Plaintiffs sought and were denied stay pending appeal of the denial of emergency stay in the 11 th Circuit. Litigation ongoing. 10

11 Environmental Trends: The Greening of Airports Environmental awareness fosters support by communities and environmental groups for immediate and long term airport development. Implement comprehensive sustainable development programs that cover: site management, water efficiency, energy/atmosphere, materials/resources, indoor environmental quality, facility operations, salvage and recycling, and construction practices. Environmental Inventories: Review current environmental policies, identify sources of concern, and implement environmental programs. 11

12 Airport Environmental Programs Green Buildings LEED certification Renewable Energy Sources Direct Solar/Wind power on-airport Indirect Purchase of renewable source credits (e.g. wind power credits). Reduce Emissions: Electric-powered ground handling/airfield vehicles Alternative fuels Provide preconditioned air and electricity from terminal to reduce emissions from idling aircraft at gates Replace outdated HVAC systems with newer, more efficient systems. Recycle: Paper, cardboard, glass, light bulbs, used oil, etc. Compost waste from food/beverage concessions Recycle restaurant grease into alternative fuel Reduce/treat deicing fluid: Capture and treat Infrared technology to reduce need for traditional deicing fluids 12

13 Public-Private Partnerships EPA - National Partnership for Environmental Priorities Encourages public and private organizations to partner with the EPA to reduce emissions of 31 priority chemicals. Goal to reduce use or release of 4M pounds of priority chemicals by 2011 Dallas Love Field Airport Los Angeles World Airports Dallas-Forth Worth International Airport Green Airport Initiative Sponsored by non-profit Clean Airport Partnership Inc., and supported with funding by Dept. of Energy, EPA, Rockefeller Family Fund, U.S. Congress, and participating airports. Proactive approach for short and long term environmental benefits for airports. Includes: environmental baseline (current profile, stakeholder input, and identification of concepts) and implementation (roadmap, detailed project plans, project resources, and monitoring results). 13

14 Federal Programs to Reduce Emissions FAA Voluntary Airport Low Emissions ( VALE ) Program created in 2005 Allows airport sponsors to use AIP funds and PFCs to finance low emission vehicles, refueling & recharging stations, gate electrification, and air quality improvements. Since 2005, over $6M in AIP funds have been allocated for VALE projects at Albany, Houston (IAH and HOU), Detroit, and Stewart Int l. Application for airport emission reduction credits requires determination by State Air Quality Agency that the project meets VALE requirements Recipients are subject to additional special conditions related to VALE projects, including labeling, tracking, and maintaining equipment and a commitment that the equipment be airport-dedicated for its useful life. 14

15 Legal Considerations for Airports Airport Sponsors are federally preempted from regulating aircraft emissions, but may consider: Voluntary passenger offset programs; Limited restrictions on on-ground airport operations Addressing non-aircraft emissions Must be reasonable and not unjustly discriminatory. Clean Ground Service Equipment ( GSE ) requirements Requiring on-airport shuttles to use alternative fuels or clean vehicles Clean requirements for hangars, tenant buildings, etc. Analogous requirements for airport contractors and subs. Green capital improvements. 15

16 Discussion 16