The City of Santa Monica, Calif., has embarked on a two-pronged approach to further its efforts to curtail flight operations at Santa Monica Airport (SMO). The latest effort from the city’s airport commission on April 28 addressed legal issues surrounding a proposed recommendation to limit emissions from aircraft operating at SMO. And the city has also appealed the February 13 decision by U.S. District Court judge John Walter, who struck down a lawsuit filed by the city last October claiming that Santa Monica never relinquished ownership of the airport when it leased the property to the U.S. government during World War II.

On another front, a group supported financially by the Aircraft Owners and Pilots Association (AOPA)–Santa Monicans for Open and Honest Development Decisions–is pursuing a charter amendment that would require the city to seek voter approval for redevelopment of the airport land. It is circulating a petition to gather enough signatures to put the proposed amendment to the city charter on the ballot. The initiative specifies: “Voter approval shall be required before any City decision becomes effective that changes the use of land currently used for the Santa Monica Municipal Airport and related aviation services to non-aviation purposes, or that closes or partially closes Santa Monica Municipal Airport.” Otherwise, the city would be required to continue operating the airport and also not impose further restrictions on operations at the airport.

AOPA confirmed to AIN that it donated $20,000 to the ballot initiative effort. The money helps the group’s efforts, which include paying people who gather signatures for the petition to put the initiative on the ballot. “We’re happy to support a citizens’ campaign that places the question of redeveloping 227 acres of Santa Monica public land in front of the voters rather than leaving it to politicians and special interests,” an AOPA spokesman told AIN.

Meanwhile, attorney Jonathan Stein of Los Angeles-based Stein Law Group represents a group of plaintiffs that filed a lawsuit against the Santa Monica City Council on May 9 in an effort to halt the effort by Santa Monicans for Open and Honest Development Decisions to gather the necessary signatures to put its initiative on the ballot. Stein represents Venice Environmental Alliance and is on the board of Sunset Park Anti-Airport, according to his firm’s website, “which helped elect two anti-airport candidates to the Santa Monica City Council in 2012.”

Attorney, pilot and law school professor Lon Sobel raised questions about this lawsuit, among them whether judges can rule on the validity of a lawsuit seeking to prevent citizens from voting on an issue. “[Although] I haven’t looked into the nuances of election law, I'm pretty sure that judges can't judge the accuracy of the reasons that people have (or say they have) to seek an initiative. The only grounds for challenging a ballot initiative that I can think of have to do with state constitutional requirements that initiatives address only one issue. And the airport initiative certainly satisfies that standard, which is, no doubt, why the City Attorney approved it.”

In another development, on May 13 the city council voted to ask Santa Monica city staff to look into the option to develop a charter amendment that would offer another alternative to the Santa Monicans for Open and Honest Development Decisions ballot initiative, according to AOPA. “Guidance provided to city staff indicates a possible amendment would allow voters to decide on any significant change in land use at the airport, but would also allow the city to limit or stop some core functions of the airport such as fuel sales or hangar leases. Over time, that could lead to strangulation and closure of the airport.”

More Scrutiny for Emissions

The idea of using emissions to limit aircraft activity at SMO is not new; the tactic was examined in a 2006 UCLA School of Law Frank G. Wells Environmental Law Clinic study commissioned by former Los Angeles city council member and vocal anti-airport proponent Bill Rosendahl. The study concluded: “The city would undoubtedly take on legal risk by taking such action, as all the issues are novel and the city cannot insulate itself from possible claims that it is overstepping its legal authority. Nonetheless, we believe that the analysis below demonstrates that the city has significant arguments supporting its authority to address the airport’s impacts on public health.”

The emissions effort is doomed to fail, according to attorneys who have studied this issue. Nevertheless, the airport commission has proposed an escalating series of emissions limits at SMO that would start on January 1 next year. The first limit would prohibit operation of any “aircraft that bears an engine or engines (excluding any auxiliary engine(s)) that are rated to emit, when operating at idle, more than twenty (20) pounds per hour of hydrocarbons in exhaust…” On July 1 next year the limit drops to 15 pounds per hour. The number drops to 10 on Jan. 1, 2016, then five on Jan. 1, 2017. One year later and every year thereafter, the number would have to be reduced by 4 percent. However, the airport commission could choose to forego the limitation to maintain “desirable levels of airport operations after due consideration for the effects of aircraft operations on the airport’s neighbors.” Violators of the emissions limits would be subject to an unspecified penalty for each offense.

An ICAO engine database provided by SMO airport commission member Suzanne Paulson, who is also professor of atmospheric chemistry for the UCLA Department of Atmospheric and Oceanic Sciences & Institute of Environment and Sustainability, lists the emissions outputs of some turbine engines, although the database seems to be fairly old. For example, the latest TFE731 engine listed is the -3 version used in the Lockheed 731 JetStar, Citation III and VI, Learjet 55 and Falcon 50. The engine’s total emissions (hydrocarbons, carbon monoxides and nitrogen oxides) add up to 12.43 pph at idle, so twice that pushes the -3 to nearly 25 pph, exceeding the planned initial limit at SMO.

A more typical engine operated on aircraft that currently fly into SMO might be the PW500 powering the Citation Excel, but that engine isn’t listed in the database, nor is the efficient PW600 that powers the Eclipse 500, Citation Mustang and Phenom 100, all popular SMO transports. A Legacy 600 was scheduled to depart from SMO on May 15, according to FlightAware, and the AE3007A1E that powers that airplane emits a total of 17.21 pph, which would be nearly 35 pph for two engines.

The limits in the emissions restriction proposal seem to be set to restrict the operation of many jets at SMO. It’s hard to assess the impact on smaller jets, however, as most of the modern Pratt & Whitney Canada and Williams International engines that power these jets aren’t listed in the ICAO database.

Although it’s difficult to make a precise comparison, the Environmental Protection Agency (EPA) estimates that the annual total hydrocarbon, carbon monoxide and nitrogen oxides output by an automobile averaging 24.1 mpg and driven 24,000 miles is 295.25 pounds. A light-duty truck driven the same distance but at 17.3 mpg would emit 372.13 pounds of those substances.

The airport commission seems to acknowledge that there may be limitations to implementation of the emissions restrictions. In the draft proposal, it acknowledged that if the proposal doesn’t meet the terms of federal grant assurances or encounters delays caused by “any intergovernmental approval and review processes,” it might have to be postponed.

Attorney Barbara Lichman told AIN that the proposed emissions restrictions are likely to evaporate because they won’t by supported by any court. “Having tried numerous cases at the federal courts of appeals where all actions against the FAA must originate, I can tell you that the chance of the courts allowing local emissions limits to apply given the preemptive intent of Congress is none to none.”

EPA Authority

The problem is that if the courts allowed Santa Monica to implement the emissions restrictions, there would be nothing stopping other cities from doing the same with their airports, Lichman pointed out. “The Supreme Court has consistently held that where, as here, Congress has spoken clearly there is no room for interpretation.”

In a post on the Aviation & Airport Development News blog about this subject, Lichman elaborated: “The Administrator of the Environmental Protection Agency (EPA) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines. ‘The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.’ 42 U.S.C. § 7571(a)(2)(A) and (a)(3).

“There are, however, some limits on the EPA’s authority. The principal constraint on the EPA’s authority is the requirement that it consult with the Federal Aviation Administration, 42 U.S.C. § 7571(a)(2)(B)(i), [‘Any regulation prescribed under this section (and any revision thereof) shall take effect after such period as the Administrator finds necessary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology…,’ 42 U.S.C. § 7571(b)]. Only the President of the United States has the authority to change or veto regulations promulgated by the EPA, also after consultation with the FAA. [‘Any regulations…or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety,’ 42 U.S.C. § 7571(c)].

“Finally, the law explicitly forecloses any action such as that proposed by the City of Santa Monica to adopt and enforce emissions regulations different from those established by the EPA. ‘No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such aircraft under this part.’ 42 U.S.C. § 7573.”

Attorney Sobel, who has studied the issues surrounding SMO for many years, told AIN: “Should the city attempt to prohibit certain types of aircraft on the basis of their engines’ emissions, the biggest issue is likely to be factual rather than legal. That is, the city and anti-airport people believe that the air quality around the airport is attributable solely to the airport. They turn a blind eye to the fact that the airport is in the elbow of the 405 and 10 freeways. And they ignore the auto traffic on 23rd Street, which is especially polluting because of the stop signs up and down the length of 23rd. The City will have a hard time proving that the air quality is attributable to specific types of airplane engines. And without being able to prove that, a regulation that bans specific types of engines would be ‘arbitrary’–something that the Constitution does not permit.”

NBAA noted, “We believe attempts to discriminate against operators at the airport would clearly violate federal provisions, as has been determined and upheld by the courts previously. Santa Monica, like all other obligated airports, must operate the airport for the benefit of the public on reasonable terms and without unjust discrimination.”