Representing Change

Oct. 8, 2001

Representing Change

Attorney Peter Kirsch talks about Naples, Burbank, and local control

By John F. Infanger, Editorial Director

October 2001

The times, they are a-changin’, wrote the ’60s songwriter. The high-performance jets that were an integral part of that era’s change are giving way to a new fleet and a new attitude among the populace. Change lies ahead; yet, some of the past (smaller Stage 2 jets) hangs on, leading to an impasse that is now being addressed in the courts. At the heart of this battle are airports in Naples, FL, and Burbank, CA. Representing both centerstage is Peter Kirsch, an attorney with Akin, Gump, Strauss, Hauer & Feld, L.L.P.

Broadbrush, at Naples the issue is one of banning total classes of aircraft to meet the community’s objective of a citywide noise level below 60 dnl. At Burbank, the city is holding up development of a new terminal until it gets a guarantee of quieter nights — i.e., a curfew.
Kirsch, whose firm has specialized in airport-related issues for two decades, has represented both communities and airports, notably Adams County, CO, when it was pushing for a new airport in lieu of expansion at Stapleton. "That built our name in the field," Kirsch explains. "We started out representing primarily communities. In the past five to seven years, most of our work has been representing airport proprietors, including LAX and O’Hare and the Port Authority of New York & New Jersey."
Kirsch recently talked with AIRPORT BUSINESS about the two airports in the eye of this storm, as well as issues related to national and local concerns. Here’s an edited transcript.
AIRPORT BUSINESS: Please talk about the issues, in general terms.
Kirsch: In my view the real issue is that there have been parallel paths or areas of concern in the airport’s business in the past several years that I believe have finally intersected, and I think it’s good they’ve intersected.
Path number one is the NIMBYs, the folks who are concerned about all the adverse affects of airports. At every airport in America, there’s some of those. Historically, they tended to be at the larger commercial airports; with the phaseout of the large commercial Stage 2 jets, a lot of that focus has shifted increasingly to the smaller airports.
The second issue is one that’s become very important in the last year or two, and that is airport capacity problems.
When I say these two have come together, what I mean is I believe there are opportunities today that are presented at almost every airport that has both of these problems. There are opportunities to put together deals, whereby neither side gets 100 percent, but both sides get most of what they want, by building new capacity but with guarantees of mitigation, commitments of what the airport’s going to be like for the community. I think its an opportunity that has to be exercised.
Interestingly enough, if you look around the country at who the greatest opponent of that is, it’s the FAA. I think the FAA is missing an opportunity that increasingly more and more airport proprietors are recognizing to be an important opportunity.
Naples is an example, but I could name dozens of other perhaps better examples around the country where an airport has recognized that if it is to grow, it must research compromises with the community. Otherwise, they are either going to be locked in a permanent battle or they’re not going to get anything at all.
What’s interesting is that we have right now an FAA Administrator who gets it, who understands that issue, who understands the importance of reaching compromises between airport proprietors and the community. But we have a bureaucracy at the FAA that still believes that the world is largely black and white — either you’re with us or you’re against us.
AB: But what you hear from FAA is that they are often restricted by what Congress directs them to do.
Kirsch: That’s true, but that’s your standard bureaucratic answer: Our hands our tied. First of all, they write the regulations; but more importantly, their job is safety and promotion of clear commerce.
Let’s say there’s a proposed runway out there, and if it’s built it will increase the capacity of the airport by 100 percent. And the community has vowed to fight them. And let’s say the community says, credibly, that they can keep the airport from building that runway for ten years. At the end of ten years, the airport has a pretty good chance of winning, of getting the runway, a 100 percent capacity increase.
Scenario number two: The airport says to the community, we want to build this runway and we’re going to limit it so it’s only used by certain types of aircraft or during certain times of day, in exchange for which we will get a capacity gain of 50 percent, in exchange for which the community would not fight them. In effect, the runway would be built ten years earlier.
Now, if you look at plain economics, at good policy making, in my view that would be the right decision to make, to take the 50 percent increase. It’s better than nothing and it’s ten years sooner than nothing. And long term you’ve bought peace between the airport and its neighbors.
The FAA, the folks below the Administrator, the mid-level FAA people, take the view that if it’s capacity we want all of it. We’re not willing to take half a loaf. I think that’s where the real disputes come in; they’re not willing to say, yes, a 50 percent increase in capacity is better than zero increase. I think that’s the reason why the top ten airports or top 50 airports in the United States are not building runways, because the FAA is not only not encouraging – but actively discouraging – airport proprietors from trying to put together deals that represent a compromise.
AB: A U.S. court recently ruled in favor of the Naples Airport implementing a ban on Stage 2 aircraft. Your reactions?
Kirsch: I think he correctly decided the law. Obviously, each case is limited to its facts in terms of what it stands for, but I think the most important issue that comes out of that case is the principle that the FAA has been espousing for many years — that decisions about airport capacity are local decisions.
That principle is often intentioned with the national airspace system, which requires that there not be a patchwork of local regulation. What the court decided is, when it comes to evaluating what’s important for the community, that’s a decision that the local airport proprietor can make, not the federal government.
AB: But isn’t that counter to the idea of a national system?
Kirsch: It could be. In the case of Naples, it doesn’t. That’s why it’s important not to draw too many parallels or not to think that the Naples case stands for too many principles. In the case of Naples, the airport proprietor first demonstrated the existence of a local problem. Secondly, it attempted to solve that local problem in a way that minimized the effect on the national system. The court obviously found that was appropriate.
There certainly are things Naples could have done that would not have passed that muster. It becomes a very airport-specific inquiry; is the restriction appropriate for this airport?
AB: But there are those who would argue that banning a class of aircraft is not in the best interests of the national system.
Kirsch: Let me give you a counter argument — there are two. First, Congress has specifically said that when distinguishing among aircraft, it is OK to distinguish between Stage 2 and Stage 3. In fact, that’s the only distinction that the federal government said is permissible. Congress went as far as to say, we think that distinction is so important that we’re going to ban all Stage 2 aircraft over 75,000 lbs.
The question then is, has Naples gone too far in banning an entire class because of its effect on the system? In fact at Naples what the data showed was it affected very few aircraft — dozens. Perhaps more importantly, all of those aircraft had an easily accessible alternate site to go to.
This was not O’Hare banning 747s. That would be a serious issue because there aren’t a lot of places in Chicago where 747s can land. The nature of aircraft under 75,000 is that they’re very flexible. In the case of Naples, there were three or four airports within easy driving distance.
AB: But, isn’t that just passing off the problem to another community?
Kirsch: There’s a risk that that will happen. It’s what I call the ’who’s first’ problem. That is, the first airport to be in a region to adopt a restriction is going to have a much easier time than the second.
AB: At the Burbank Airport, you represent the City of Burbank, which is holding up construction of a new terminal for a curfew. How do you compare the two airport issues?
Kirsch: Substantively, the issues are different: the effect of a curfew versus the effect of a ban of an entire class of aircraft. I think the issues of Burbank are more complex than Naples. We’re talking here not just the effects on corporate and recreational aircraft, but potentially the effects on air carriers. In terms of economics, it’s a much more difficult issue.
It’s also, in certain respects, a simpler problem. Burbank, though not formally part of the Los Angeles system of airports, is in a practical sense part of the system that includes LAX and Long Beach and Ontario and Orange County. So the availability of alternate locations is much easier in Burbank than it is at an airport like Naples where you have only three other airports, some of whose facilities are not comparable.
The other interesting problem at Burbank is the relationship between the restriction and growth is not clear. The airport has not in fact grown very much in many years. So one of the real questions becomes, if there is a curfew does it affect or not affect growth at this airport?
The Burbank curfew has been a hot issue for 32 years; that’s when the City of Burbank adopted a curfew at this airport, resulting in litigation that went to the Supreme Court. The curfew was struck down because the city did not have the authority because at that time it was a private airport.
There are people who have lived this dispute for their entire careers.
A curfew at this airport could do a great deal in terms of building peace with the community.
AB: At the center of both airport debates is a Part 161 study. There seems to be some confusion as to whether or not 161 makes it easier or more difficult for local control.
Kirsch: Both (positions) are absolutely correct. I was very much involved when the airport noise act was passed, on behalf of clients who wanted both, less control and more control. One of the problems with that statute is that there was not a consensus as to what it is supposed to do. There were people vigorously arguing both sides and Congress never resolved it.
The FAA came in with Part 161 and I think tried as best they could to play the middle ground that they believe Congress had tried to achieve. It is disappointing that it has taken ten years for any airports to try and figure it out, and I think one of the reasons that Naples is so difficult is that we are reliving the problem ten years later, when we don’t have the benefit of that national debate. The debate is taking place at a small airport in South Florida rather than in Congress.
AB: A frustration expressed by Naples director Ted Soliday is that there has been no clear direction from FAA on Part 161.
Kirsch: I think that’s absolutely correct. We’re not getting clear direction from the federal level; even the FAA itself speaks with several voices. We have an FAA Administrator right now who is very, very sensitive to the need to reach accommodation, compromise, between the airports and their communities. She’s very sensitive to the need for local control.
On the other hand, we have a bureaucracy that is very closely tied to a lot of the larger users, the air carriers in particular, and their desire for increased federal supervision and decreased local supervision. And we have a history at the agency of a lack of sensitivity to local control.
The faa itself is ambivalent. We saw with Naples people in the agency who said, ’We have a limited role. Our role is only to look and see that your study was done well.’ And there are others who say, ’We don’t care what’s in your study; our job is to make sure that you don’t restrict aircraft coming into your airport.’ A guy like Ted Soliday is naturally confused; which federal government is talking to him?
AB: NBAA and GAMA, who took Naples to court over its ban, say they are still looking to FAA to step in and, in effect, overturn what a federal court has ruled. Can it?
Kirsch: The only thing the FAA can do is say, we think this restriction is improper — notwithstanding what the court has said, that it’s constitutional— and will therefore withhold federal money. That’s all they can do. They can’t overrule the court.
The real question that Naples will have to decide is what to do then. Does the airport rescind the restriction, or keep the restriction in place and say we don’t need your federal money?
AB: This all centers around the issue of local control, an issue that seems to be more common.
Kirsch: I don’t think the tension is unhealthy. I think the tension is common in the relationship in dealing with transportation infrastructure generally in the United States.
AB: In recent meetings, FAA has expressed its concern about the growing issue of local control.
Kirsch: I think to a large extent the issue is not going away. We had a period of peace during which the issue was not very important. In 1990 or so until the late ’90s, noise was decreasing because of the phaseout of Stage 2. We had enough capacity in the system, thanks in large part to technology improvements and an increase in the size of aircraft. Then we had problems like the summer of 2000, and no more phaseout of Stage 2s because they were finished, and suddenly all the issues came back. We were back in the war that existed in the late ’80s over exactly these issues.
The feds can’t solve it by themselves, or I would argue shouldn’t solve it by themselves. I think there are solutions that require a degree of flexibility that I think the feds should be encouraging.
AB: It would seem that the answer lies with Congress.
Kirsch: I don’t think Congress needs to get involved; Congress is a place where it could get resolved. But I think there exists sufficient authority right now for the FAA to encourage preemptive solutions.
A good example is at Cleveland, which desperately wants to expand its airport. There is no strong evidence to suggest they need to; but they believe, and I think quite correctly, that Continental as a hubbing carrier will not grow at Cleveland unless they have more runway capacity. So as a matter of economic development, they decided they needed more runway. The new runway they needed to build would be in the city of Brook Park — a very common phenomenon. Brook Park fought and fought an 8-year battle against the runway. Last week, Brook Park and Cleveland inked a deal whereby Cleveland gets whatever land it needs to build a new runway, anytime it wants for the next 25 years, with no interference from Brook Park.
In exchange, Brook Park gets an incredible amount of money in guaranteed tax revenue, and a number of other benefits, including buyouts of homes on a defined schedule. What the community got is fiscal stability for 25 years. A working class suburb of 25,000 people. That was really important to them. The airport got the flexibility to build a brand new runway.
AB: Any thoughts on what the industry can expect?
Kirsch: Not to be overly pessimistic, but I think that the FAA has not been characterized historically as showing great leadership in dealing with the impacts of airports. It is unlikely that we will see leadership from the FAA; we’re more likely to see acquiescence. That is, decisions like Naples will set new law and the FAA simply will go along. I believe that’s unfortunate because the agency, particularly under Jane Garvey, has an opportunity to show great leadership.
The opportunities are just tremendous here. There are a lot of people out there trying to come up with creative solutions.