SR-10-27-2015-8D
City Council
Report
City Council Regular Meeting: October 27, 2015
Agenda Item: 8.D
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To: Mayor and City Council
From: Marsha Moutrie, City Attorney, City Attorney's Office
Subject: Potential Options for Reducing Emissions
Recommended Action
Staff recommends that the City Council direct staff to:
1. Include provisions in Santa Monica Airport ("the Airport" or "SMO") leases that
limit the sale of aircraft fuels for piston-engine aircraft to low-lead or unleaded
fuels and fuels for turbine-engine aircraft to biofuels or other sustainable fuels by
a date or dates certain;
2. Include provisions in flight schools leases prohibiting lessees from using leaded
fuels for flight training;
3. Require lessees who currently sell aircraft fuel at the Airport to begin remediation
of any contamination of the premises they occupy;
4. Assess and report back to Council on the possible termination of third party fuel
sales at the Airport and on the feasibility of the City taking over that function to
assure that, so long as aircraft fuel is sold at the Airport, it is the most
environmentally sound fuel available; and
5. Begin developing and report back on a cap on total emissions generated by the
Airport.
Executive Summary
A growing body of scientific evidence establishes that lead emissions from piston
aircraft engines and black carbon and other emissions from turbine aircraft engines are
detrimental to human health and to the environment. This is a world-wide challenge
and a significant local problem. Studies performed at and around the Airport in recent
years document the extent of the harmful emissions generated by its operations. In
light of these scientific and technical studies and of Airport neighbors' first -hand reports
about the impact of emissions on their lives, the City Council directed staff to return with
a report providing alternatives for reducing aircraft emissions. This report responds to
that direction.
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It provides information about aircraft emissions and efforts to reduce them; and it
discusses alternatives for reducing emissions locally, including alternatives suggested
by members of the community. The report discusses and recommends using lease
provisions to limit fuel sales at the Airport to cleaner fuels and to require flight schools to
switch to unleaded or low-lead fuels. Staff's recommendations also include requiring
the businesses that sell fuel at the Airport to begin remediation of any contamination on
their premises now and assessing the possible termination of third-party fuel sales and
the assumption of such sales by the City, for whatever time period fuel continues to be
sold, to ensure that sales are limited to the cleanest fuels available. Finally, staff
recommends that Council direct staff to begin work on developing a cap on Airport
emissions. These actions are recommended as options for protecting the communi ty's
health and welfare, aligning Airport operations with the City's environmental values, and
better shielding the City from liability. The report also discusses other proposals,
including banning aircraft based on engine ratings, terminating FBO leases, and closing
the Western Parcel; and the report notes other possible alternatives.
Background
The adverse impacts of Airport operations have been a major source of concern to the
community for half a century. And, the City's efforts to regulate those impacts have
spawned legal disputes and litigation throughout that time. Detailed information about
the history of the Airport and the legal battles relating to its operations is included in
staff's report of March 24, 2015, among several others.
The first efforts by the City to curtail adverse Airport impacts focused on the noise
impacts of early jets. The City Council adopted a package of six ordinances, including a
jet ban. Litigation erupted, setting the tone for the fractious decades that foll owed. The
1984 Settlement Agreement brought a brief hiatus to the City's disputes with the federal
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government; however, Airport neighbors, Airport businesses, and other aviation
interests continued to make claims against the City. In the last fifteen years, disputes
and litigation between the City and the federal government, Airport neighbors and
Airport businesses have been virtually constant.
During this time, aircraft emissions from both jets and piston aircraft have been a
growing source of concern and conflict. Most piston aircraft are fueled by aviation
gasoline (avgas), which commonly contains the additive tetraethyl lead and therefore
generates lead emissions that may be inhaled or ingested. At certain concentrations,
such emissions may be toxic to the human nervous system, especially for children. Jet
fuels do not contain lead. However, turbine engines on jet aircraft emit carbon dioxide
and ultrafine particles, which threaten both the environment and human health.
The debates here in Santa Monica about how to address the adverse impacts of aircraft
emissions reflect national and world-wide debate on the subject of emissions from
commercial aircraft. The Center for American Progress reports that aviation accounts
for 13 percent of global transportation carbon dioxide emissions, and emissions from
aviation are expected to quadruple by 2050 if left unchecked. Moreover, aviation's
impact on air quality is not limited to carbon dioxide. Other greenhouse gases emitted
by aircraft include water vapor, black carbon, nitrogen oxides and sulfur oxides; and
their impacts are particularly detrimental because these gases are emitted by
commercial aircraft directly into the upper atmosphere.
Governments around the world have taken varied approache s. The European Union
(EU) introduced aviation into its emissions trading system in 2008. The EU estimates
that including aviation in its trading system will reduce aviation emissions by more than
70 million tons annually.
The United States has moved much more slowly. The Environmental Protection
Agency (EPA) sets emissions standards for aircraft engines, and the Federal Aviation
Administration (FAA) certifies engines and enforces federal emissions standards.
However these agencies have not yet established regulations governing aircraft
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emissions. In June of this year, the EPA announced the first steps towards proposing
regulations. However, the agency also said that it would wait for current international
negotiations limiting emissions before publishing final rules. Thus, the process will take
years.
Meanwhile, the federal government continues to support development work on biofuels .
And, the FAA touts development of its satellite-based air traffic management system
(NextGen), which will reduce fuel consumption and attendant emissions because it will
facilitate more direct routing and reduce circling while awaiting landing clearance to
land. However, net environmental gains from this project appear highly unlikely given
the projected increase in air travel.
While the federal government plods forward on efforts to reduce harmful aircraft
emissions, efforts in California have yielded some success. For instance, last
December, the Center for Environmental Health announced that litigation in Northern
California had yielded a settlement whereby 30 companies that sell and/or distribute
lead-containing avgas at 23 California Airports (including Santa Monica Airport) will offer
for sale the lowest-lead fuel that is commercially available. They will also, upon request,
make ethanol-free premium gasoline available. It is an FAA-approved fuel; and it is, or
can be made compatible with more than 70 percent of piston aircraft.
The City's efforts to address aircraft emissions have been ongoing for at least fifteen
years. An ad hoc study group composed of members of the Environmental Task Force
and the Airport Commission studied the issues and, in 2002, requested that the South
Coast Air Quality Management District (AQMD) take various actions, including studying
the impacts of General Aviation on air quality, characterizing levels of toxicity in
communities around GA airports, and determining the impact of aircraft emissions on
measured pollutant levels. AQMD conducted a study in 2006 -7. It measured lead,
carbon, ultrafine particulars and volatile organic compounds, among other things. The
agency's conclusions included that lead levels in communities near the runway did not
exceed federal standards and that the concentration of ultrafine pa rticles was
significantly elevated near runways during aircraft operations; but, in general, the
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Airport's impact on air pollution was difficult to distinguish from pollution caused by
automobiles and other motor vehicles.
In 2009, the City Council adopted an Airport Sustainability Plan as an addendum to the
Sustainable City Plan. The Airport plan was reviewed and recommended by both the
Task Force on the Environment and the Airport Commission. As to air quality, the plan
requires: advocacy with federal and state agencies for reductions in emissions and
alternative fuels, support for studies and monitoring of emissions to serve as the basis
for advances in emission controls, and or reduced taxiing and hold times (which
generate high concentrations of emissions). That plan has been implemented.
In 2010, the AQMD study was augmented when the suspension of all Airport operations
for runway repaving presented an unusual opportunity to assess SMO's impacts. The
AQMD concluded that the suspension of Airport operations resulted in a "substantial
decrease" in measured ultra- fine particles and black carbon pollution. Measurements
taken on the eastern tarmac showed that concentrations of ultra-fine particles were 12
to 17 times higher when the Airport was operating. Measurements taken at the closest
home showed that levels were four to seven times higher when the Airport was
operating. Additionally, the AQMD reported that aircraft idling near the runway before
and during departure generated very high concentrations of ultra-fine particles over
short time periods. These concentrations were as high as 600 times background levels.
Also in 2010, the EPA conducted a study of lead emissions. The agency's primary
purpose was to develop a modeling approach to quantify the effect of emissions from
piston-engine aircraft on local ambient lead levels. A secondary purpose was to monitor
air, soil and dust lead concentrations, including the possibility of lead-emission
intrusions into indoor spaces. The EPA explained that SMO was selected because: the
monitoring study conducted by AQMD laid a good foundation; SMO has excellent data
collection regarding piston-engine aircraft operations; and Santa Monica is a busy
general aviation airport within a densely populated location. In particular, the EPA
noted that 6500 people live within 0.5 km of the Airport.
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The EPA reported that its air quality monitoring showed modeled concentrations at two
sites with three-month averages above federal air quality standards. The agency
identified four factors as most significantly impacting concentrations of lead in the air:
engine "run-up check" duration, taxi-out time, the percentage of twin-engine aircraft
operations, and the lead concentration in the fuel. As to lead concen tration in fuel, the
agency noted that two samples of avgas had lead concentrations 20% higher than
specifications established by the American Society of Testing and Matter, which
develops fuel specifications. Soil and dust samples showed no elevated lead levels
above area averages on the Airport or in local parks. However, sampling taken inside
two homes showed elevated levels (though the EPA speculated that sources other than
the Airport might be involved). Reports and presentations on both these studi es are
available to the public at the Airport website.
In addition to the AQMD and EPA studies, scientists at UCLA also conducted studies.
Those scientists concluded, among other things, that aircraft operations at SMO caused
elevated concentrations of ultrafine particles and other pollutants downwind as far as
660 meters from the source. They surmised that the long downwind impact distance
was primarily due to the large volumes of air craft emissions, which contain higher initial
concentrations of particles than on-road vehicle exhaust. The UCLA studies were
presented to the Airport Commission in 2014 and were the basis of recommendations
that the Council consider adopting an ordinance that would restrict aircraft usage of the
Airport based on engine ratings.
The Airport Commission also conducted a workshop on the development and marketing
of alternative aviation fuels. Representatives described their companies' formulation of
"drop in" jet biofuels, which they anticipated would be widely availabl e within a few
years. Because they blend directly with petroleum jet fuel, such fuels would eliminate or
reduce the need to modify aircraft, aircraft engines or fueling infrastructure. A
representative of another company described the Piston Alternative Fuels Initiative,
which will facilitate FAA evaluation of unleaded fuels for propeller aircraft. He estimated
that such fuels will be readily available by 2018.
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In recent years, community members' complaints about emissions have increased.
During the comprehensive Airport Visioning Process, the health impacts of aircraft
emissions and the inconsistency of the Airport's adverse environmental impacts with the
City's core values ranked high among community concerns. More recently, demands
for City action to curtail adverse impacts have continued to mount, with emissions and
their impacts on human health and the environment becoming a primary community
focus.
This year, in response to those demands, the City Council has considered adverse
Airport impacts on multiple occasions. On March 24, 2015, after considering a staff
report on future options for Airport operations and land use, Council provided direction
on Airport leasing policy, approving the general direction that action should be taken to
reduce adverse impacts of Airport operations, through lease conditions and other lawful
means. On May 12, 2015, Council gave direction on the specific subject of emissions.
The motion was to direct staff to return to Council, as soon as possible, with strate gies
to reduce air pollution, such strategies to be practical, include lease provisions curtailing
pollution, and minimize risks of preemption. Likewise, on July 14th, Council directed
staff to, among other things, return with information about options for fuel sales, about
regulating emissions through lease terms, and about environmental remediation. This
report responds to those directions.
Discussion
There is certainly no dispute as to the paramount importance of addressing adverse
Airport impacts in order to protect community health and our environment. Nor is there
any dispute that harmful aircraft emissions pose risks to both. Moreover, they also pose
liability risks to the City. Neighbors have previously sued the City over aircraft
emissions and have threatened to do so again. Notably, in the larger, ongoing global
effort to address harmful effects of aircraft emissions, even aviation interests
acknowledge that emissions must be reduced and aircraft fuels must be improved.
However, local governments face significant challenges in this area because the federal
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and state governments exercise substantial control. Given this practical and legal
context, the question for Santa Monica is how best to act locally to reduce aircraft
emissions from the City's airport.
Staff is recommending Council consideration of five possibilities for City action, each of
which is discussed in this section:
1. Requiring fuel providers to convert to sales of cleaner fuels
2. Requiring fuel providers to begin the cleanup of any contamination on their
leaseholds
3. Assessing the possible termination of third-party fuel sales and the feasibility of
the City taking over that function to ensure that, so long as fuel is sold, it is the cleanest
available
4. Requiring flight schools to convert to cleaner fuels
5. Assessing the development of a cap for Airport emissions
Additionally, this section discusses, but does not recommend, adoption of an ordinance
regulating access to the Airport based on aircraft engine emissions. Also discussed, but
not recommended, is the proposal from some community members to ameliorate
adverse impacts, including emissions, by eliminating Fixed Base Operator (FBO)
services or closing the Western Parcel.
Limiting Fuel Sales by FBO’s Through Lease Provisions
Staff proposed prompt action to reduce emissions (and other adverse impacts)
contractually through leasing policy. The Airport leases all expired this year. This event
is very important because it affords the opportunity for the City, as proprietor and
landlord, to both increase rents to market value (so that residents are not at risk of
subsidizing the Airport’s operations) and to impose new requirements upon lessees.
Such requirements could relate to fuel sales. The type of fuels sold at the Airport will
directly impact the composition of emissions. And, regulating types of fuels sold is a
reasonable means to achieve the ends of protecting public health, safeguarding the
environment and shielding the City from liability.
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Currently utilized aircraft fuels yield emissions that endanger both public health and the
environment. A wealth of evidence establishes this fact. The federal government
acknowledges it and has joined the world-wide effort to develop cleaner fuels and limit
aircraft emissions. Even the aviation community acknowledges the need for change. For
example, the Aircraft Owners and Pilots Association (AOPA) has told the Environmental
Protection Agency that AOPA is committed to “an unleaded future.” However, progress
on the development and distribution of cleaner fuels is frustratingly slow.
The ponderous pace is difficult to justify or even explain. Resources are available. As to
jet aircraft, federal agencies, the military, and airline corporations are working jointly to
develop and distribute biofuels. They are already widely available for commercial
aircraft and are used as a “drop in” (meaning they are simply added to standard fuels
and used in existing engines); but using biofuels as a drop in for general aviation aircraft
is problematic. So efforts to formulate and market cleaner fuels for private jets are
lagging behind.
As to piston-driven aircraft engines, unleaded and low-lead fuel are available. Some
newer aircraft engines are designed to utilize them. Moreover, most older piston -
powered aircraft can use them, once appropriate certification is obtained. Staff
estimates that such certification costs between $500 and $1,000 per aircraft. Indeed,
many aircraft owners would prefer to use cleaner fuels because they reduce engine
“gunk”.
The problem is making such fuels available sooner, rather than later. The future is,
indeed, “unleaded”, Santa Monica simply needs to hasten its coming for the
community’s health and welfare. Airport neighbors and persons living in surrounding
communities complain that their yards are covered with soot, and they are afraid to let
their children play outside. The situation is apparently most dire for neighbors living just
west of the Airport. Their homes are within 300 feet of the runway end. One neighbor,
who traveled to Washington to testify to FAA officials in July, stated that she cannot
even open her windows for fear that the emissions will permeate her indoor living
space.
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These circumstances pose liability risks for the City, and the risks have increased in
recent years. About 15 years ago, when neighbors last sued the City claiming damages
for noise and emissions, significantly less information was available about aircraft
emissions and their impact on health. Most important, the studies on Airport emissions,
which are described in the Background section of this report, had not yet been done.
The next such lawsuit may well be more difficult to defend.
While the risks posted by emissions to residents and to the City are clear and
substantial, any potential harm to aviation interest in regulating fuel sales through
reasonable lease terms is not. Establishing leasing requirements related to cleaner fuels
need to be significantly detrimental to aviation interests. Such requirements would not
deprive Airport users of access to the Airport. Nor would they preclude FBO’s from
doing business at the Airport.
Cleaner fuels exist, and fuel providers know that they must make them available in
Southern California. As noted above, a litigation settlement reached in Northern
California requires 30 companies that sell and/or distribute lead-containing aviation gas
(avgas) to sell cleaner fuel. Both of the companies that sell fuel at the Airport are bound
by that settlement agreement. Presumably, they have made progress on that mandate
since executing the settlement agreement. Lease provisions requiring them to sell
cleaner fuels would not impose new burdens. Instead, they would simply spur faster
progress.
Nor would aircraft owners be unduly burdened. Most piston -aircraft do not need avgas
to operate. Ethanol-free premium automotive gas and unleaded aviation gasoline are
compatible with 70% of piston aircraft. And, the FAA has approved their use with a
Supplemental Type Certificate, which may be obtained by aircraft owners for a cost that
staff estimates between $500 and $1000. As to jets, biofuels exist. Commercial carriers
have been using biofuels for some time. Perhaps their distribution into the world of
general aviation interests would be hastened by demands from those interests.
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Moreover, aircraft owners and operators have choices about where to buy their fuel.
Lease restriction on what fuels are sold at SMO would, of course, not prevent any
owner or pilot from purchasing fuel elsewhere.
Based upon all these considerations, staff recommends that Council provide direction to
staff to develop lease terms that limit the sale of aviation fuels. Specifically, staff
proposes that lease terms prohibit the sale of leaded fuels and highly polluting jet fuels
after a date or dates certain. Council could consider different dates for the two classes
of fuel depending upon the most current information on availability of cleaner fuels. After
that date or dates, piston aircraft fuel sales would be limited to low lead or unleaded. Je t
fuel sales would be limited to biofuels or other environmentally preferable fuel.
Requiring Lessees That Sell Aircraft Fuel to Begin Cleaning Up Any Contamination on
Their Leaseholds
Current lease provisions make lessees responsible for environmental cl eanup of the
property. However, that responsibility is linked to termination of the leases. At present,
the lessees that sell fuel are on hold-over status with short-term leases, while the
Council awaits a staff report on subleasing and the possibility of its elimination. So, the
lessees are not obligated to being cleaned up at present.
Council could advance the cleanup obligations as part of its ongoing effort to facilitate
and protect City options for the land’s future use. This approach may be prudent, given
the fact that contamination levels would need to be thoroughly assessed before a
remediation program could be devised and approved, the fuel providers do not have
long-term leases at present, and the cleanup work could take years.
Assessing the Possibility of Eliminating Third-Party Fuel Sales and the City Taking over
Fuel Sales, for However Long as Fuel is Sold at the Airport
At present fuel sales at the Airport are conducted by two lessees. As noted above, both
of them are bound by a litigation settlement to sell cleaner fuels for piston aircraft when
those fuels become available. However, how rigorously that settlement will be enforced
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is unknown. And, in any event, the settlement does not cover jet fuel sales. Therefore,
Council may want an assessment of the costs and benefits of the City taking over all
fuel sales at the Airport.
Staff notes that historic precedent exists; the City sold aircraft fuel at the Airport in the
past. Moreover, aircraft fuel can be sold from trucks – an approach that could facilitate
any required cleanup of the underground tank facilities and avoid additional ground
contamination.
Eliminating the Use of Leaded Fuels by Flight Schools
In addition to limiting fuel sales through lease provisions, staff also recommends lease
terms that require flight schools to use unleaded or low-lead fuels. This
recommendation is based on several considerations including the physical
circumstances of the Airport, the unusually large number of flight schools at the Airport,
and the particularly adverse impacts of patterned flying on air quality.
SMO’s physical circumstances make it a particularly poor location for flight training.
Homes are in very close proximity to runway ends, and there are no runway safety
facilities, partly because the runway ends are so unusually close to the Airport
perimeter. Moreover, the runway is on a plateau above surrounding residential
neighborhoods. This has led to the observation that taking off and landing there is a little
like landing on the deck of an air craft carrier. Yet, in recent years, there have been as
many as seven flight schools operating at once at the Airport; and there have been
several accidents including flight-school students.
Complaints about the flight schools’ impacts have been constant because patterned
flying over a relatively small area in the vicinity of the Airport creates extremely
detrimental impacts upon Airport neighbors. The factual basis of those complaints is
confirmed by the results of studies describe in the Background section of this report.
Thus, the dangers know to be associated with lead emissions, the particularly intense
adverse impacts of patterned flying, the harm to adjacent communities, and the
potential for City liability all justify prohibiting the use of leaded fuel by flight schools
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through lease terms.
Moreover, the harm to flight school operations would not outweigh harm to the
community and potential harm to the City of incorporating such terms into flight school
leases. Most, if not all, of the aircraft presently used by the flight schools at the Airport
can operate on unleaded or low lead fuel. One of the schools already utilizes an aircraft
designed to operate on unleaded fuels. And certification is available for most, if not all,
of the other aircraft used for flight training. Additionally, the unusually large number f
flight schools at the Airport means that flight training would likely remain available at the
Airport even if certain flight school operators made a business decision to leave the
Airport rather than agreeing to lease terms prohibiting the use of leaded fuels.
Finally, to ensure fairness to flight school operators, staff suggests that current lessees
be afforded a reasonable, but not extended, amount of time to obtain certification,
convert their fleets or otherwise implement the proposed new requirement.
Developing the Possibility of a Greenhouse Gas Emissions Cap for the Airport
Staff also recommends that Council give direction to begin work on developing
greenhouse gas emissions cap for the Airport. Such a cap could afford another means
of controlling adverse impacts on neighbors and reducing the City’s liability risks as
owner and operator of the Airport. This undertaking would be completely consistent with
the City’s commitment to serving as a leader on environmental issues. It would advance
the goals of the City’s Sustainability Plan. It would also effectuate the City’s
Sustainability Rights Ordinance, whereby Council recognized that the peoples’ rights
include the right to clean indoor and outdoor air and that, to the full extent legally
possible, short-term, private interest must be subordinated to the common, long-term
interest of achieving environmental and economic sustainability for the community as a
whole. Moreover, development of an emissions cap would also harmonize with
President Obama’s and Governor Brown’s declared intent to reduce greenhouse gas
emissions.
This effort would likely include, among other things: gathering information about and
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measuring Airport emissions; formulating proposals and models for the cap’s operation;
and crafting remedies for exceeding the cap. Presumably, potential remedies could
include reducing or eliminating certain activities particularly likely to exacerbate or
contribute to emissions. Flight training, fuel sales and other FBO operations might be
among those activities.
At this point, an emissions cap is, of necessity, merely a very general concept.
Doubtless such an effort would generate legal opposition, including challenges to the
City legal authority to impose a cap. However, staff believes that the approach holds
significant promise and that there is legal authority for the proposition that federal law
does not preempt local plans for reducing emissions from sites or facilities (as o pposed
to moving sources such as vehicles or engines). See National Association of Home
Builders v. San Joaquin Valley Unified Air Pollution Control District., 627 F.3d 730 (9th
Cir. 2010). Obviously, developing this approach to reducing emissions would take time
and resources. However, staff anticipates s that assistance would be available from he
local environmental community and perhaps other sources.
This approach obviously involves many unknowns. Nonetheless, given the existing and
mounting scientific evidence of the health and environmental risks posed by
greenhouse gases, including those generated by Airport operations, the federal and
state governments’ efforts and calls to action, the community’s demands for action, the
unaccountably slow pace of the federal effort on regulating emissions, and the City’s
core commitment to sustainability, staff recommends evaluating this alternative.
Imposing Regulatory Limits on Aircraft Engines
Community members prepare and presented to the Airport Commission a carefully
considered and documented proposal for regulating emissions by ordinance. It has
been discussed previously but is also discussed here because the regulation of
emission by ordinance is an appealing approach.
Under the proposed ordinance, aircraft with emissions ratings for hydrocarbons and
nitrogen oxides above specified levels would be excluded from the Airport. The
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proposed exclusion would be phased in, with the emissions limits being lowered over
the phase-in period. Specifically the proposal was that no aircraft with engines rate 40
or more pounds per hour in hydrocarbons in idle mode or 200 pounds or more per hour
in oxides of nitrogen in take-off mode should be prohibited from operating at the Airport.
The ordinance would step these limits down every six months until the limits would be
ten pounds per hour in hydrocarbons in idle mode or 80 pounds or more in oxide of
nitrogen per hour in take-off mode. Thereafter, the proposed ordinance would require a
5% reduction each year, unless the Airport Commission decided to forbear on further
reductions.
Staff respects the careful thought and extensive work that went into the development of
this proposal. It is evidence-based and rationally conceived, and the evidence provided
by the study is both informative and useful to the City in formulating policy on emissions.
However, as explained in staff’s report to Council of March 24, 2105, the federal Clean
Air Act preempts local regulation of aircraft engines and emissions. Section 233 of the
act provides that “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 Act).” In State Air Resources Board v. Department of the Navy, 431 F. Supp.
1271 (ND Cal. 1977), the federal court explained that “The preemptive intent of Section
233 is explicit; the states are clearly preempted from adopting or enforcing regulation
respecting emissions of any air pollutant from any aircraft or engine thereof... .” The
court went on to explain that Congress intended to preempt state and local regulation of
aircraft emissions because allowing the states to set 50 different standards for “moving
sources” of pollution would (in the words of the Supreme Court) amount to
impermissible harassment of the national aviation system and industry.
This means that, although the suggested ordinance appears to have considerable merit,
the City Council does not have the authority to adopt it because the Council, like other
state and local bodies, has no power to adopt regulations governing aircraft emissions.
They are the province of the federal government as illustrated by the EPA’s action of
last June, when the EPA announced that it would begin initial efforts toward proposing
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regulations on aircraft engine emissions.
Proponents of the ordinance have argued that preemption does not apply because the
City’s proprietary powers (as owners of the Airport) trump the preemptive effect of the
Clean Air Act. Moreover, proponents of the ordinance and others have argued that,
despite long odds, the City should adopt the proposed ordinance because of the
importance of protecting the environment and public health and because they believe
the City has little to lose and everything to gain.
Unfortunately, staff must disagree on both points. As explained in the staff report of
March 24, 2105, the court decision cited in support of adopting the ordinance is
inapposite. Rather than establishing that airport proprietors are not preempted from
regulating emissions, it actually stands for the proposition that states (and cities) may
base purchasing decisions about purchasing equipment on emissions, much as Santa
Monica does in purchasing motor vehicles.
As to potential risks, banning certain types of aircraft through regulatory action would
undoubtedly provoke litigation. Aviation interests have already expressly threatened to
challenge any attempt to ban aircraft based on emission ratings. Moreover, the FAA
could, itself, institute action against the City. It could commence a Part 16 administrative
proceeding, as it did when the City attempted to ban larger and faster jets to achieve
runway safety. Or, it might issue a cease and desist order in the pending Part 16
proceeding, as it did previously in the runway safety litigation. If the FAA instituted a
legal action, it would also likely seek a federal court injunction to halt implementation of
the ban, just as the FAA did during the runway safety litigation. If history is any guide, a
federal court would do so; and, depending upon its breadth, such an injunction could
prevent the City from taking future actions to reduce the Airport’s adverse impacts while
the City and the community await resolution of the disputes about the grant expiration
and the City’s authority to control its land. This would be a significant loss of local
control.
The existing litigation will probably take years to resolve. During that time, it is crucial
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that the city protect its proprietary authority to reduce adverse impacts of airport
operations through lease terms, continue to repurpose the non-aviation land to
recreational use, and assess and address needs for remediation. Thus, staff
recommends against regulating emission by an ordinance limiting Airport access.
Terminating FBO Leases or Closing the Western Parcel in Order to Reduce Operations
and Adverse Impacts, Including Emissions
Some Airport neighbors have proposed terminating the FBO leases or removing the
Western Parcel form aviation use to reduce operations and attendant adverse impacts.
As to the FBO’s, these residents argue that the City was obligated to maintain FBOs at
the Airport only by the 1984 Agreement. Now that it has expired, they argue that the
City, as proprietor/landlord, has the authority to terminate leases and thereby end the
provision of aviation services, including fuel sales. As to the Western Parcel, they argue
that it is not covered by the Instrument of Transfe r; so, the City can close it now.
However, the FAA contends that the grant conditions remain in effect until 2023, and
the agency interprets the grant conditions to require the provision of basic aviation
services, which are among those provided by FBO’s. And, the Western Parcel is
covered by the grant conditions. Thus, shutting down the FBO’s or attempting to close
the Western Parcel would very likely trigger another Part 16 proceeding.
Residents favoring these approaches argue that the FAA might simply step aside and
allow the FBO’s to close or the Western Parcel to be removed from aviation use; and, in
any event they echo the view that the City has little to lose and much to gain. The
appeal of these proposed approaches in readily understandable. Witho ut aviation
services, Airport operations would decline, which would diminish impacts. Without the
Western Parcel, the Airport’s runways would be shortened and many aircraft,
particularly larger jets, would be unable to use the Airport.
Staff agrees with the premise that, in order to protect community health, safety and
welfare, the City must depend upon and effectuate its rights as proprietor and landlord.
Staff also agrees that the litigation is taking a frustratingly long time. Indeed, much
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longer than it should in the case of the Part 16 proceeding wherein the FAA has
extended its own deadline for issuing the initial Part 16 decision three times without
meaningful explanation. Also, the City has waited months for the oral argument in the
Ninth Circuit, though this waiting time is typical for that court. Meanwhile, Airport
neighbors continue to suffer adverse impacts from Airport operations; and their
frustrations mount.
Nonetheless, staff cannot agree that the City should simply notify the FAA that the City
is shutting down FBO’s or closing the Western Parcel. Staff’s considered opinion is that
these actions would not bring faster relief and both would pose significant risk to the
City’s short-term ability to reduce adverse impacts and perhaps even to its long-term
success in achieving ultimate goals.
The argument that the FAA might simply agree to allow the City to close the FBO’s or
the Western Parcel is not supported by history or any applicable evidence. In the past,
particularly during the runway safety dispute, the federal government acted aggressively
to stop the City from curtailing operations. The FAA, itself, commenced the Part 16
proceeding challenging the City’s ability to conform usage of the Airport to its federal
designation, which reflects its facilities. The Agency also issues a cease and desist
order in that case, arguably stretching its authority to do so because it had not yet held
a hearing. Moreover, when the case moved from the agency and into the court, the
Justice Department assigned some of its most experienced and able attorneys to the
runway safety litigation. Those same senior attorneys have been assigned to the current
federal litigation, filed by the City to establish its authority to control use of the land.
These are simply not the actions of an entity ready to step aside and duck a fight.
And, there is other evidence of the FAA’s determination to keep SMO in operation. The
FAA continues to push for long-term leases for its facilities at the Airport. Also, it is
designing Nextgen on the assumption that SMO will continue to operate. And, senior
FAA staff has told the City, they are “not in the business of closing airports.” Thus, the
federal government’s conduct gives no hint that it is willing to allow the City to make a
different use of the City’s land now occupied by the Airport. As Congressman Lieu’s
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Chief of Staff confirmed at the meeting in Washington this summer, the FAA simply has
no intention of voluntarily letting go of SMO.
The hope that it might is apparently based on the agency’s actions as to other airports
with different circumstances. It is true that the FAA occasionally agrees to allow an
airport to close or steps aside from a closure fight (usually leaving the fight to private
aviation interests). The example most often cited is Miegs Field in Chicago where Mayor
Daily had the runway bulldozed in the middle of the night. However, the facts of that
situation are quite different than Santa Monica’s. For example, Miegs Field was on land
owned by the Chicago Park District and leased to the City for airport usage; and the
Park District refused to renew the lease to the City. Thus, in contrast to Santa Monica,
the owner of the land was not the operator of the Airport. This meant, among other
things, that the land owner was not federally obligated through the receipt of airport
improvement grants. Moreover, the FAA did not view Miegs Field as vital to aviation
interests, given other airports in the vicinity. Its relative inaction on the Miegs closure
probably reflects this fact and the federal and state politics surrounding the controversy.
In any event, the Miegs experience does not establish bulldozing a runway as a viable
means of asserting local control over an airport. And, it certainly does not establish a
precedent upon which Santa Monica can rely given the difference in the circumstances.
The FAA previously determined that use of the Airport was a local land use matter after
expiration of the 1984 Settlement Agreement, but the agency reversed its position on
local control years ago. For the last few years, it has continuously asserted that Santa
Monica has ongoing grant obligation until 2023, that the FAA has perpetual reversionary
rights as to the land occupied by the Airport, and that the Airport’s continued operation
as a reliever for Los Angeles International Airport is vital to national interests. These
assertions and the Agencies other actions belie the supposition that the FAA would
stand idly by if the City acted to shut down FBO’s or close the Western P arcel to
aviation use.
Instead, the likely result would be a federal injunction that would preserve the status quo
and could prevent the City from taking any action to bring relief to Airport neighbors
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while the legal disputes are ongoing. Therefore, staff opposes attempting to reduce
emissions and other adverse impacts by either terminating FBO leases or attempting to
close the Western Parcel to aviation use.
Unfortunately, there are no shortcuts to establishing the City’s authority to control use of
the land. The City can only establish control by judicial decision or Congressional
action. Congressional action is possible, but very unlikely in the near future. The legal
process is slow; however, it does achieve results, and is ongoing.
While it is, the City’s decision about the Airport should be carefully considered in order
to maximize the chances of ultimate success in the courts. The land is the City’s most
valuable physical asset. And, the community demands that the land be used in a
manner that serves the community’s interests. The struggle for control and locally-
determined use of this City asset is more likely to succeed if conducted strategically and
thoughtfully with a constant eye on the ultimate prize.
However, this does not mean that the City’s ultimate goals are unattainable or that
adverse impacts cannot be reduced while the City moves towards its long-term goals.
Reduction of emissions through lease provisions is one area where gains may be
attained in the relatively near future and should be pursued.
Alternatives
Instead of taking action as the Airport’s proprietor and operator, the City could wait on
external developments to alleviate the problems posed by emissions. As described in
this report, cleaner fuels already exist and they are becoming available. The two fuel
providers at the Airport have already agreed in settlement of litigation brought by the
Center for Environmental Health to begin providing cleaner fuel. Also, aircraft engines
are becoming more efficient. However, this progress is slow. And, meanwhile the
community suffers, the City is at legal risk, and the Airport operates in a manner that is
inconsistent with the City’s core environmental values. Therefore, staff recommends
against waiting for the federal government or aviation interests to solve the community’s
emissions problem.
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Council could also consider incentivizing emissions reductions. For instance, Council
could explore committing City resources to assisting lessees and aircraft
owner/operators with a conversion to clean fuels in order to speed up the process. For
example, the City could subsidize all or a portion of the cost of obtaining the certification
necessary to use low lead or no lead fuel. Staff is not recommending this approach at
this time for reasons including cost and a likely lack of community support.
Or, as discussed above, the City could ban certain aircraft with certain engine ratings,
terminate FBO leases, or attempt to close the Western Parcel. These actions would
please some. However, they would likely not achieve the short term goal of achieving
relief from adverse impacts and could be very detrimental to accomplishment of the
City’s long term-goals. Such actions would be very likely to draw legal challenges from
aviation interests or the FAA, itself. The City would likely not prevail against those
challenges and might very well end up enjoined from further action to alleviate adverse
Airport impacts. Thus, staff recommends against these alternatives. However, Council
may wish to consider more moderate measures, such as reducing the hours of FBO
operations to curtail adverse impacts or ending all aviation leasing on the Western
Parcel in order to minimize adverse impacts and prepare for potential future uses.
Overall, staff continues to counsel a steadfast but measured approach including:
regaining control of the land through the pending legal proceedings and by working with
members of Congress; effectuating the voters’ vision for the land by repurposing the
non-aviation land and taking other steps to ready the land for the future; and using all
lawful means to reduce adverse impacts of Airport operations. And, if certain of the
particular measures recommended in this report for reducing emissions prove to be
unworkable or inadequate to reduce emissions, Council can always explore additional
measures.
Next Steps
If Council directs staff to modify lease provisions relating to fuel sales and use, staff will
work to modify the leases and report back to Council. Depending upon Council’s exact
direction and the results of staff’s work, that report will either be made by Information
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Item or in conjunction with the report to Council on subleasing. Staff will also return with
information on costs and benefits of taking over all fuel sales and on developing an
emissions cap if so directed.
Financial Impacts and Budget Actions
Modification of lease provisions, including limitations on fuel sales and restriction on
flights schools’ use of specific fuels could impact Airport revenues, though impac ts are
difficult to predict. If Council takes action that fosters litigation, there will be costs, which
are also difficult to predict because they depend on the nature of the challenge. The
costs of exploring a greenhouse gas emissions cap are unknown at this time.
Consulting services would obviously be required. So, costs could be significant.
Likewise cost of taking over all fuel sales would need to be assessed.
Prepared By: Marsha Moutrie, City Attorney
Approved
Forwarded to Council
Attachments:
A. March 24, 2015 Staff Report (Web Link)