SUMMARY OF 2012 ACI-NA SPRING LEGAL AFFAIRS CONFERENCE

SUMMARY OF 2012 ACI-NA SPRING LEGAL AFFAIRS CONFERENCE

Legal Affairs Committee Members:

We had a great Spring Legal Affairs Conference during the week of April 25-28, 2012, in Charleston, South Carolina!  The highlights of the conference are provided below, for the benefit of those who were unable to attend.

Thanks to the Charleston International Airport Authority for a warm welcome and being a great host airport!

The Spring Legal Conference opened with 127 registered attendees from over sixty-six airports throughout the U.S. and its territories, including attendees from as far away as Jamaica, St. Thomas and Israel.  The conference convened in Charleston at the Doubletree Hotel in the city’s historic district.  Joseph Messina, the 2012 Chair of the Legal Steering Group, who serves as Divisional Solicitor for the City of Philadelphia Law Department and counsel to the Philadelphia International Airport, greeted the attendees during the opening session.

Aviation Director Susan Stevens welcomed the conference attendees to Charleston.  Ms. Stevens serves on the Board of Directors of ACI-NA and is the current Board Liaison to the Legal Affairs Committee.  During her opening welcome statement, she recognized the important role that lawyers play in assisting airports and shared some important awards that the City of Charleston has received as a historic and hospitable city.  She also shared aviation history in the making that occurred on Friday, April 27, as the Boeing Company presented its first aircraft to be assembled in South Carolina, a Boeing 787 Dreamliner.  She expressed great pride in that accomplishment because of its impact on job creation and economic development in South Carolina.  We are very appreciative of Sue Stevens’ ability to join us for practically the entire conference.  She also attended the host airport’s welcoming reception on Wednesday afternoon, held in the Courtyard of the Doubletree Hotel.

We were also fortunate to receive sponsorship support for this year’s Spring Legal Conference from two of ACI-NA’s law firm associate members:  Spiegel & McDiarmid and The Aviation Practice Group of Schnader Harrison Segal and Lewis.  Again, thanks to each of them for their generous support!

On Wednesday and Thursday of the conference, the panel sessions focused on lessons learned and new developments impacting airport RFPs and procurement matters, under the general title:  “The ABCs of Airport RFPs and Airport Procurement---Lessons from those who’ve been there and back again.”  Summaries of those panel sessions are provided below.

Panel Session 1:  Setting the Stage—three recent examples of airport procurement scenarios resulting in protest of awards

Jonathan Leach, General Counsel of the Chicago Department of Aviation, described a recent protest involving an RFP for a concessions program at one of O’Hare Airport’s terminals.  In February of 2009, the City of Chicago issued a Request for Proposals to redevelop and manage the concession program at Terminal 5 of O'Hare International Airport. This RFP asked the respondents to completely redevelop the concession program by moving the concession program airside (post TSA checkpoints) and building out additional concession opportunities down the concourses in the terminal. As a result of the anticipated significant capital investment Chicago believed the respondents would need to make, Chicago made the term of the agreement 20 years with an additional 5 year option.

The concession opportunities made available in the RFP included food and beverage, duty free, news and gifts, specialty retail and coffee. There were three respondents to the RFP. The respondents were evaluated by a 20 person evaluation committee and scored on five different categories. It was not a "high bid" RFP in which the respondent who proposed the most rent/compensation to the City won.

After a careful analysis of the proposals the evaluation committee recommended Westfield Concession Management. While they did not offer the highest compensation package, they were viewed as the best overall proposal. The Commissioner agreed with the evaluation committee and the City negotiated an agreement with Westfield. This agreement was approved by the Chicago City Council, and shortly thereafter the incumbent, an unsuccessful respondent, filed a seven count complaint and request for injunctive relief challenging the award of the agreement.

Bret Lobner, General Counsel for the San Diego County Regional Airport Authority, then described a scenario involving that airport’s issuance of an RFP for a parking management contract.  In 2011, San Diego International Airport issued an RFP for a new 5-year parking management contract.  The process began in April 2011 and finally was concluded in March of 2012 with the execution of a new contract.  Although there were protests, appeals and other actions, no litigation was filed primarily due to the RFP processes allowing resolution of complaints and controversies through administrative protest and appeal procedures. 

Marcos Marchena, general outside counsel to theOrlando International Airport, provided information regarding a recent Duty Free/Duty Paid Concession RFP scenario at that airport.  The competition was conducted as a Request for Proposals.  The evaluation of the five (5) submitted proposals was based on criteria that included, among others: 1) Demonstrated Experience and Qualification; 2) Quality, Variety and Price Ranges of Merchandise; 3) Concession Improvements; 4) ACDBE participation and 5) Financial Return to the Aviation Authority.  The financial return to the Aviation Authority was computed on the basis of a percentage of gross receipts to be paid to the Authority.  The staff committee evaluating the proposals did not give the highest acceptable ranking to the company proposing the highest percentage of gross receipts because staff deemed the submittal pro forma unreasonable.  The proposer appealed.  Another proposer objected to the evaluation of Demonstrated Experience based upon the staff downgrading their experience due to lack of experience in United States airports.  The Concessions Committee’s recommendation was appealed to the Executive Director who conducted an extensive analysis and ultimately concurred in the recommendation of the Committee. The Aviation Authority Board made the final award in January of this year. No litigation was filed.

 Panel Session 2:  A Review of the Landscape---Things to Consider during the Competitive Selection Process—This session  included presentations by Tom Anderson, General Counsel, Metropolitan Airports Commission, regarding that airport’s recent efforts to review and modify its selection process in the planning, development, issuance and aware of airport concessions.  As a result of a controversy in the award of a shoeshine concession at MSP, the airport authority (Metropolitan Airports Commission) commissioned a Blue Ribbon Panel to survey best practices.  The practices adopted by MAC were used successfully in the award of airport-wide concessions contracts in 2004-05.  Streamlined processes were developed in 2009 and 2010 for Retail Cart and Retail Vending programs, and a hybrid process was used in partnership with Delta Air Lines in 2011 to develop an innovative “gatehold concessions program.”

The second speaker on this panel, Bill Zizic of KPMG, was retained by the Detroit Metro Wayne County Airport Authority (WCAA) to assist the authority in  re-thinking its procurement model to achieve better balance between performance and control in its source selection and purchasing processes. KPMG is supporting WCAA in identifying and implementing strategies based on leading cross-industry practices to enhance efficiency while maintaining the accountability required in governmental procurement. This presentation segment highlighted some common procurement challenges identified and the possible strategies to manage them more effectively.

Panel Session 3:  Open Records—What Has to be Handed Over and When--

This session was handled in an interactive format with Helen Berkman, Vice-Chair of the Legal Steering Group and Assistant City Attorney, Denver International  Airport and Bob Watson, Senior Vice President and Chief Legal Officer, Metropolitan Nashville Airport Authority, Nashville International Airport, serving as moderators with Marcos Marchena, general outside counsel for the Orlando Airport Authority and Thomas Halbleib of Stites and Harbison sharing their experiences with various open records issues they have handled for airports.  During this session, many facets of handling requests for records that arise during the airport procurement process were considered.  Panel members  focused first on how to define what constitutes confidential or proprietary information in proposals and who decides what is confidential or proprietary. They also discussed whether or not the airport must disclose scoring sheets, notes, and other documents created or used by selection panels which review the proposals and make  recommendations for award.  Emphasis was placed on understanding state and local laws and regulations that impact each airport’s handling of these issues.

Panel Session 4:  Awards and Protests

This session examined various protest procedures as well as some of  the following issues: waiving errors, rejecting all bids, lessons learned from protests identified in the Opening Session; “Best and Final Proposal”; how the award is made and when; negotiating after award; and handling protests from Disappointed Bidders.

Michael Baker of Atkinson, Andelson, Loya, Ruud & Romo (Irvine, CA) highlighted the more typical protest issues in general and then the more common issues that come up with the more modern "best value" approach that is currently being implemented on major projects particularly with the advent of design–build and negotiated procurement. His presentation also addressed common pitfalls that can sidetrack an award, beginning with the awarding agency's own duty to comply with the terms and procedures of its own solicitation which has become a more common ground for protests than in the past. He further touched on the impact of unintended consequences in the use of electronic bidding which is increasing as agencies move to a more electronic based procurement system or approach.  Mr. Baker also identified some of the more creative protest arguments that have advocated that an awarding agency's acceptance of the bid or solicitation actually waives completion of a responsibility investigation and thereby entitles the putative awardee the contract.  He observed that the "best value" approach is becoming more common. He concluded by discussing protest issues associated with the "best value" approach to the award of the contract and also, the role that counsel should play in the process and the analysis counsel can bring to the table to assure that adequate discussions take place to militate against any potential protest.

Jonathan Leach, General Counsel, Chicago Department of Aviation, O’Hare International Airport, provided greater details on the scenario outlined during the opening session of the conference.  More specifically, he described thethree (3) proposals submitted in response to the Chicago Aviation Department’s RFP issued in 2009. After a lengthy evaluation process, negotiations with the selected vendor, public hearings, and a vote from the full Chicago City Council approving a 20 year concession redevelopment and management lease agreement with Westfield, one of the unsuccessful bidders, who happened to be the incumbent vendor, sued the City of Chicago in August 2011 challenging the award.  Jonathan discussed the elements of the challenge, the legal process undergone by the City of Chicago, and the current status of the case, which went to trial and is now on appeal.

Amy Gonzalez, Supervisory Attorney, San Diego County Regional Airport Authority, discussed the RFP process conducted by San Diego International Airport for its parking contract, as well as the BAFO (best and final offer) process that followed and ultimately resulted in the award.

Panel Session 5:  Tired of the Same Old Design-Bid-Build Construction Routine? – Here’s a  Look at Alternative Ways of Delivering, Procuring and Contracting for Major Construction Projects

While design-bid-build (DBB) has long been the traditional way that public agencies have delivered their capital projects, the past decade has seen a major shift to the use of alternative project delivery systems.  This shift has been created by a number of factors, including the need for accelerated project delivery and the benefits derived from having the contractor who is actually going to build the project involved before the project’s design is completed.  The linear nature of DBB's process impedes an owner from achieving these goals.  Alternative delivery systems, such as design-build (DB) and construction management at risk (CMAR), are structured to help an owner accomplish the goals.

This panel began with the moderator, Phil Sunderland, General Counsel of the Metropolitan Washington Airports Authority, reviewing the basics of DB and CMAR, including how these systems differ from DBB.  Next, the panel considered some of the important procurement and contracting issues with these systems, including qualifications-based selection, the role of the designer, and some of the major challenges that a public owner may face in using these systems for the first time.  Finally, the panel provided its experience in using DB and CMAR on airport projects around the country.

 

Thursday, April 26, 2012

Panel Session 6:  A Closer Look at Legal Issues Associated with the Award of Professional Services Contracts---selection of architects and engineers, local Rules  on whether competitive selection is required, process for selection of outside  counsel and bond counsel

Lisa Greer Quateman of Polsinelli Shugart LLP, began this session with an overview of governing laws and regulations that apply to airport professional services contracts, discussed the content of airport  RFPs for such services, the requirements for contracting, the evaluation process, and key contract provisions.  She also addressed specific issues and concerns that relate to engagement of counsel, including bond and disclosure counsel.

Using the title theme of the “Good, the Bad, and the Ugly,” Arnie Rosenberg of Parsons Brinckerhoff then discussed issues related to the procurement of Professional Services.  Through the use of case studies, Arnie discussed some of the “Good, Bad, and Ugly” practices in use today relating to an airport’s selection and contracting processes for Architect/Engineer services from the perspective of a professional services provider.  Arnie also discussed mechanisms for achieving fair and open competition in the A/E selection process and fair and equitable terms and conditions in the resulting contract.

Panel Session 7:  A Closer Look at Legal Issues Associated with Concessions RFPsand Procurement Processes

Using a format developed by Jerry Springer that allows for audience participation, two concession industry insiders , Ann Feraguto of AirProjects and Andy Weddig of Unison Maximus, and Miami Airport Counsel Tim Abbott responded to questions about what lies behind the legal issues of bid protests of airport concessions contracts.  Tim Karaskiewicz, Office of the Milwaukee County Corporation Counsel, who serves as airport counsel to General Mitchell International Airport, moderated the session, focusing on the theme “What’s so special about airport concessions anyway?”  The industry insiders provided their insights on questions/issues posed by Tim, including:

  • what makes concessions RFPs different from other airport procurements?
  • how does the industry view concession RFPs and bid protests? 
  • why in the world would a concessions bidder want to file a protest? 
  • what are concessions protesters really after? 
  • is it possible to draft a bullet proof concessions RFP? 
  • what parts of the concessions process are most often the subject of protests?
  • is there such a thing as a typical concessions bid protest? 
  • how do you survive a concessions bid protest? 
  • what are the likely costs to an airport of a bid protest?

Panel Session 8:  The “sole source” conundrum and other exceptions to competitive selection requirements

At most airports, contracts and concessions must by law be awarded pursuant to a formal public competitive bid or proposal process, but states may allow a variety of exceptions and exemptions from those requirements.  This session, moderated by Bret Lobner, General Counsel to the San Diego County Regional Airport Authority, discussed many of these exceptions, including various cases decided in the area.  Jodi Howick of Durham Jones & Pinegar and Sheryl Bregman, Airport General Counsel, San Francisco International Airport, shared their experiences on these issues with attendees.  The subject of prohibiting a contractor from participating in a bid or proposal process was also addressed where the facts indicate the contractor helped prepare the bid or proposal specifications.

Panel Session 9:  General Wrap Up of Procurement Sessions

During this session, attendees participated in a consideration of a series of hypothetical scenarios highlighting a number of the issues identified during the procurement sessions presented.  Attendees utilized an audience response system that tabulated their responses to the hypotheticals and displayed them in graphs created and displayed in PowerPoint format.  This session allowed the attendees to quickly identify legal issues, think about best practices, and apply information shared during the earlier sessions to issues that could arise at their airports.

 

Friday, April 27, 2012

On Friday, we enjoyed the traditional sessions covered during the Spring Legal Affairs Conference, including unique topics of special importance due to pending regulatory and/or legal changes.

Panel Session 10:  Litigation Update Session

A very engaging Litigation Update Session was moderator by Legal Affairs Steering Group Chair, Joe Messina, City of Philadelphia Law Department.  Briefly stated, an update of each of the following cases was provided.

MSP Takings Litigation -- Tom Anderson, General Counsel

The Metropolitan Airports Commission has been defending two inverse condemnation/aircraft noise suits in state court arising from the opening of Runway 17/35 in October 2005.  By way of background, the issues in these cases were complicated by a recent decision of the Minnesota Supreme Court in a third unrelated case, DeCook v.Rochester International Airport Joint Zoning Board, 96 N.W.2d 299 (Minn. 2011), which held that a regulatory taking under the Minnesota Constitution had occurred in that case where there was a “substantial and measurable reduction” in the market value of the property.  Read “Property: Not Everything Is Relative Anymore: A New Rule But Little Guidance In Airport Zoning Regulation Takings Claims,” 38 Wm. Mitchell L. Rev. 527 (2011) for an interesting discussion and analysis of the issues presented.

The first case, Interstate Companies Inc.  v. City of Bloomington and Metropolitan Airports Commission, was settled earlier this year, with MAC contributing toward the purchase and leaseback of the plaintiff’s property by co-defendant City of Bloomington.  In that case, the Minnesota Court of Appeals had earlier reversed the grant of summary judgment in favor of defendants, see Ibid. at 790 N.W.2d 409 (Minn. Ct. App. 2010), and the matter had been scheduled for trial in late 2011.

The second case, O’Neill v. City of Bloomington and Metropolitan Airports Commission, was tried to the bench in February 2012.  Post-trial briefs are currently being prepared. Plaintiffs claim that their property was reduced in value by nearly $18 million as a result of airport zoning.  Defendants asserted that the rezoning actually increased the value of the property, by permitting certain uses (e.g. hotels and retail) which had previously been prohibited.  A decision is expected this summer, but it is likely that either side will appeal.

Outdoor Highway Billboard Advertising   David Mackey, Massport

The Massachusetts Port Authority's ("Massport's") outdoor advertising program at Boston-Logan International Airport generates revenue for Massport through the display of banners and signs on columns, building facades, and pedestrian walkways, some of which are near and visible from internal roadways that run through Logan Airport.  A March 2011 audit by the Federal Highway Administration ("FHWA") and the Massachusetts Office of Outdoor Advertising (“OOA”) concluded that some of these signs and banners do not comply with the Highway Beautification Act (23 USC 131) ("HBA"), which regulates outdoor advertising along roads within the National Highway System ("NHS").  After subsequent discussions with FHWA and OOA about these conclusions, FHWA advised Massport that (1) many of the internal roadways that run through Logan Airport are “intermodal connectors” that are part of the NHS, and (2) signage and banners near and visible from these “intermodal connectors” are subject to the size, spacing, and other requirements of the HBA.

Massport’s closer examination of FHWA’s designation of internal roadways at Logan Airport as “intermodal connectors” reveals that the designation (1) does not correspond to actual current conditions at Logan Airport, (2) is not consistent with designations of comparable internal roadways at other major U.S. airports, and (3) is not supported by FHWA’s guidance documents, which indicate that a connector provides access between arterial routes on the NHS and a major intermodal transportation facility (i.e., an airport), and does not include NHS highway components that are within an intermodal transportation facility.  To reconcile these issues, and preserve Massport’s ability to regulate outdoor advertising on its property in accordance with Massport’s rules and regulations, Massport intends to seek from FHWA (through the Secretary of the Massachusetts Department of Transportation (“MassDOT”)) a modification of the NHS under 23 U.S.C. §103(b)(4)(A) that deletes from the NHS any internal roadways within Logan Airport that Massport owns, operates, and maintains.  If this modification is not granted, and Massport does not comply with the HBA, MassDOT could potentially lose 10% of its federal funding under 23 U.S.C. § 131(B), even though MassDOT derives no benefit from the designation of any of these roadways as “intermodal connectors” (i.e., MassDOT receives no federal highway funding for these roadways, and Massport is solely responsible for the construction, maintenance, and operation of these airport assets).

Truman Arnold Companies d/b/a TAC Airv. Chattanooga Metropolitan Airport Authority, FAA Docket No. 16-11-08.     Pablo Nuesch, Spiegel & McDiarmid

Until recently, the Chattanooga Metropolitan Airport had only one FBO.  Through a series of assignments and lease extensions, the incumbent FBO, TAC Air, had come to control almost all of the GA aeronautical facilities at the airport  (in excess of 1.5 million square feet of hangars, T-hangars, fuel farms, and aircraft aprons, most of which were built with public funds), and to have a virtual monopoly on the sale of fuel and other aeronautical services, including into-plane fueling services.  TAC Air’s various leases and agreements require it to pay an average ground rent of $0.16 psfpa, fuel flowage fees, and a nominal doing-business business fee (2% of certain gross receipts).   Over the past several years, the airport had received multiple complaints about poor service and high prices.

The Chattanooga Metropolitan Airport Authority (“CMAA”) tried attracting a new competing FBO to the airport under a traditional business arrangement.  The CMAA received no responsive proposals, probably, at least in part, because the new FBO would have had to fully develop a new site, across the field, with limited access to the airfield. 

As a result, the CMAA decided to use state grants to develop a new GA area, and AIP funds to provide airfield access to the new GA area.  On the newly developed site, the CMAA built a new GA terminal building and a hangar; it then sought proposals from FBO operators to manage and operate the new FBO facilities under a management contract with CMAA.  The successful proposer was Wilson Air Center.  In mid-2011, the CMAA opened the new FBO.  Under the terms of the management contract with Wilson, the CMAA retains all FBO profits net of expenses and a management fee. 

Immediately after opening, the price of fuel at the airport dropped by almost $1/gallon, and the incumbent, TAC Air, began to offer new aeronautical services that it had never offered before.

The CMAA is not operating the new FBO as a proprietary exclusive.  Rather, in developing its new FBO business model, the CMAA is attempting to show that it is perfectly situated to provide, if needed, competing aeronautical services that can lead to more and better services at lower prices.

In its Part 16 Complaint, TAC Air attacked the CMAA’s operation of the new FBO on a number of fronts, arguing, among other things, that the CMAA is favoring its own FBO in operational matters, and that it is unfair for a private FBO to have to compete against a publicly-funded airport proprietor.  The initial round of pleadings  was completed in December 2011; a Director’s Determination is expected in the summer of 2012.

Northern Air, Inc. and KEM Aviation D/B/A Grand Rapids Air Center and Rapid Air v. County of Kent, Michigan, through the Gerald R. Ford International Airport Board, FAA Docket No. 16-11-10                                Tom Devine, Kaplan Kirsch & Rockwell

Complainants Northern Air and Rapid Air are two incumbent FBOs at the Airport who object to the fact that the Airport Board granted waivers from its Master Plan and a variance from the ALP to allow a new entrant, Executive Air, to establish an FBO facility on the Airport in an area near various corporate hangars.  Complainants assert that this is the “best location” on the airport for an FBO and will give Executive Air such an advantage that the incumbents have suffered great economic harm and may be driven out of business.

Complainants allege a variety of grant assurance violations, including unjust discrimination, failure to be as self-sustaining as possible (by not forcing Executive Air into another area where the airport has built some infrastructure), revenue diversion (for spending money on aeronautical infrastructure that is not currently being used), failure to enforce its minimum standards, improper meetings with board officials by the new entrant, violation of Grant Assurance 8 (failure to consult with aeronautical users), and violation of Grant Assurance 29 (failure to obtain approval from FAA to change the Airport’s Master Plan and ALP before signing a lease with Executive Air).

The briefing is completed as of April 24, and the parties are awaiting a Director’s Determination.

COLORADO AIRPORT PARKING, L.L.C., et.al. v. DEPARTMENT OF AVIATION OF THE CITY & COUNTY OF DENVER, District Court, Denver, Colorado, 2012-CV-2214.         Helen Eckardt Berkman, Assistant City Attorney, Denver International Airport

This case is a recent petition for judicial review of an administrative judge’s ruling in favor of the airport relating to rates and charges paid by three off-airport parking lot operators. In December 2010, the airport amended the Airport Rules to change the fees paid by off-airport parking lots from an access or “trip” fee to a privilege fee of 8% of gross revenues. The plaintiffs had petitioned for a hearing, claiming that the new fee was a “tax” and also violated a local law requiring the airport to “reasonably apportion” airport expenses among the users based upon their present or future projected use of the facilities. After a three-day hearing in 2011, the airport’s assigned hearing officer ruled in favor of the airport on both claims.  Under state law, the plaintiffs have a right to a limited appeal of the administrative decision.  A copy of the hearing officer’s decision is on the CD provided.

Eric Pilsk, Kaplan Kirsch & Rockwell

                           Afoa v. Port of Seattle, Case No. 85784-9 (Wash. S. Ct.)

The case arises from an accident at Seattle-Tacoma International Airport, in which the plaintiff, Mr. Afoa, was left a paraplegic after the aircraft tug he was operating crashed into some equipment near the apron.  Mr. Afoa was employed by a contractor, EAGLE, which provided tug services to a number of airlines.  At the airlines’ request, the Port of Seattle granted EAGLE a license to operate on the airport, subject to the Port’s generally applicable rules and regulations.  Applying long-standing Washington law, the trial court granted the Port’s motion for summary judgment because property owners like the Port do not owe a general duty to provide a safe workplace to licensees or their employees; only to its own employees and to independent contractors when the property owner “retains control” over the manner in which they perform their work. 

The Court of Appeals reversed, ruling that the license agreement, by including certain rules and regulations, could give the Port sufficient control over EAGLE’s work to fall within the “retained control” exception to the general rule of non-liability.  The Court of Appeals remanded the case for a trial on the merits. 

At the request of the Port, ACI-NA joined a coalition of Washington property owners urging the Washington Supreme Court to accept the case for review and to reverse the Court of Appeals’ decision.  The Supreme Court accepted the case.  ACI-NA filed its own amicus curiae brief on the merits to make sure that the Court understands that airport operators do not control the work of licensees such as EAGLE.  ACI-NA’s brief explained the operational and regulatory context of ground operations to make clear that airport operators act as “hosts” of aviation activity, but cannot control that activity, and thus should not be held liable as if they were an employer of every licensee or lessee on an airport.  The brief also explained the significant costs and burdens the Court of Appeals’ decision would impose on airport operators.

The Washington Supreme Court heard oral argument on February 16, 2012, and a decision is expected later this year. 

                      Tinicum Township, et al. v. U.S. Dep't of Transportation, et al., Case No. 11-1472 (3d Cir.)

Tinicum Township, Delaware County and several individuals challenged FAA’s Record of Decision approving the City of Philadelphia’s Capacity Enhancement Project (CEP).  The CEP is a massive project to increase capacity at PHL by (1) extending two of the four existing runways, (2) adding a new primary runway, (3) modifying the taxiway system, (4) adding new terminal space, (5) constructing a people mover to connect the terminals, (6) relocating a major UPS facility, and (7) making numerous other changes other Airport facilities, adjacent private facilities and public roads.  Construction is expected to take place over a thirteen year period.  Much of PHL, including several significant elements of the CEP, is located in Delaware County and Tinicum.

The City of Philadelphia intervened in support of FAA.  Petitioners raised two principal issues in the case: (1) whether FAA was required by law to change the air quality analysis in the Environmental Impact Statement in response to strongly-worded suggestions from EPA, and (2) whether FAA properly relied on the regional plans of the Delaware Valley Regional Planning Commission (DVRPC), rather than the local plans of Tinicum and Delaware County, in determining whether the CEP “is consistent with plans (existing at the time the project is approved) of public agencies authorized by [Pennsylvania] to plan for the development of the area surrounding the airport” pursuant to 49 U.S.C. § 47106(a)(1). 

The City, together with FAA, argued that FAA’s air quality analysis complied with NEPA (and the Clean Air Act) pursuant to an agreed-upon air quality analysis protocol, and that it had responded to EPA’s concerns adequately under NEPA.  The City and FAA further argued that the Court was not required to give the EPA’s comments complete deference as Petitioners argued.  The City and FAA also argued that the DVRPC was a local planning agency pursuant to Section 47106(a)(1), and that FAA was entitled to rely on its regional plans, as every court that had considered the issue had found.

The Third Circuit heard oral argument on March 6 before Judge Anthony Scirica, Judge Kent Jordan, and Judge Thomas Ambro.  A decision is expected later this year.

Panel Session 11:  TSA Legal Update

Francine Kerner, Chief Counsel of the Transportation Security Administration, provided an update on recent initiatives of the TSA which merit legal focus.

Panel Session 12:  FAA Legislative and Regulatory Update Following the FAA Reauthorization and Modernization Act of 2012 (followed by Qs and As)

This session provided an overview of regulatory and federal legislative changes since enactment of the FAA Reauthorization and Modernization Act of 2012. Topics  included NexGen, safety management systems for airports, changes in tarmac delay responsibilities, and revised funding provisions, among others.  The speaker for this session was Robert A. Hawks, Attorney for Regulations and Legislation, Office of the Chief Counsel, Federal Aviation Administration.

Panel Session 13:  Airports and Travelers with Disabilities---from Kiosks to Department of Labor Regulations and More, followed by Q&A Period

This panel, moderated by James Briggs, Vice-President, Law of ACI-NA,  featured presentations by Supriya Raman, the FAA’s program manager of the Airport Disability Compliance Program, and Rebecca Springer of Crowell & Morning, who provided information on recently implemented government regulations affecting airports with respect to the accommodation of disabled travelers and hiring and employment practices associated with disabled persons.

Panel Session 14:  U. S. Government Affairs and ACI-NA Airport Funding Policy Campaign Update followed by Q & A Period

Robert C. Watson, Senior Vice President and Chief Legal Officer, Metropolitan Nashville Airport Authority, Nashville International Airport, moderated the session and Jane Calderwood, Vice President, Government and Political Affairs, ACI-NA made the presentation.  Attendees received an update on key U. S. Government Affairs policy issues including the Fiscal Year 2013 Appropriations process and the Alternative Minimum Tax exemption.  An overview of the ACI-NA Airport Funding Policy Campaign, status, strategy and timelines was provided followed by a Q & A Period.

Panel 15:  Transactions Update

Jeff Letwin, Partner, Schnader Harrison Segal and Lewis and Counsel to the Allegheny County Airport Authority, Pittsburgh International Airport, moderated the session and presentations were made by Eric Smith, AVIATION GROUP CO-CHAIR, Schnader Harrison Segal & Lewis; Selinda Melnik, Partner, DLA Piper LLP (US); and William Lahey, Anderson & Kreiger.  The focus of this session was on lessons learned from recent airline bankruptcies---including commuters, domestic carriers and international airlines.  There was also a discussion of current trends and developments with respect to airport/airline consortiums. 

Panel 16:  Airport Legal Resources

Presentations were made by Marci Greenberger, Senior Program Officer, Airport Cooperative Research Program, and Monica Hargrove, General Counsel, ACI-NA.  This session  provided attendees with information on two important resources available for airport lawyers:  one from the Airport Cooperative Research Project’s (“ACRP)  wide array of legal and other airport research panels and the other from  Airports Council International-North America (“ACI-NA”), and especially its website, which was redesigned last year.  The ACRP representative explained the way in which attendees may become involved in the identification of research topics, as well as in being considered as research participants for the various projects overseen by the ACRP.  Web resources were provided during the presentation, and attendees received a step-by-step overview of how to obtain useful information by navigating the web pages accessible from the ACI-NA website. 

 

Saturday, April 28, 2012

On Saturday morning, the Ethics and Roundtable Sessions were held, and attendee participation was maximized through small round-table seating arrangements, as well as the use of hypothetical questions and an audience response system to better engage all participants in thoughtful consideration of the issues presented for instruction.

Panel Sessions 17 and 18:  Ethics

With scenarios ripped from the headlines involving airports across the country and presented in dramatic dialogue, Dave Mackey, Helen Berkman, and Tim Karaskiewicz highlighted through role played, real-life ethical issues faced by airport lawyers almost daily.  The audience was able to vote on their responses to the ethical dilemmas faced by a hapless hypothetical airport counsel and see the results tabulated instantaneously before their eyes, using the audience response system that they were introduced to during the Session 9 wrap-up session on Thursday.  These sessions also included the identification and discussion of some of the ABA’s Model Rules of Ethical Responsibility and some State Rules of Professional Responsibility associated with the procurement hypotheticals created especially with airport lawyers in mind.  It was a unique, engaging and stimulating way of involving airport counsel in a discussion of ethical issues they frequently encounter in the context of airport procurement matters.

Panel Session 19:  Legal Roundtable – Issues of Importance not elsewhere covered

Attendees were given the opportunity to share information about projects on issues in which their airports have been and/or are currently involved.  Helen Berkman shared results of a recent Google Maps issue involving airport maps.  Tom Anderson shared recent developments regarding the FAA’s pending consideration of the issuance of a program guidance letter proposing to clarify the criteria for AIP eligibility for airport noise insulation programs.  Tom Devine discussed the outcome of the Las Vegas Airport Authority’s recent experience in petitioning the FAA for a change in its interpretation of weight-based and increased seats offered by change of gauge (i.e.,  through change in aircraft type) as ‘new services’ justifying their inclusion in airport incentive programs.  Monica Hargrove discussed and solicited comments regarding the FAA’s NPRM proposing  Part 16 procedural modifications to enhance efficiencies in handling complaints brought against airport sponsors.

Speaker presentations made available by conference speakers are available on the ACI-NA website at:  http://www.aci-na.org/content/2012-spring-legal-affairs-conference