Business Aviation Law Blog

EPA Has No Mandatory Duty to Find that Lead Emissions from General Aviation Gasoline Cause or Contribute to Air Pollution

Van Hilderbrand — Fri, 19 Apr 2013 16:14:46 -0500

Recently, the U.S. District Court for the District of Columbia held in Friends of the Earth v. EPA, D.D.C., No. 12-363, that the Environmental Protection Agency (“EPA”) has no mandatory duty under the Clean Air Act to find that lead emissions from general aviation gasoline cause or contribute to air pollution and endanger human health and the environment. In a previous post, we commented on the question before the Court - whether EPA has a mandatory or discretionary duty to make such a finding. Finding no mandatory duty, Judge Amy Berman Jackson granted the agency’s motion for summary judgment. The Court analyzed the language, structure, and purpose of the statute and the Court found nothing that defined the endangerment determination to be a nondiscretionary EPA duty.

This opinion is open to being appealed to the U.S. Court of Appeals for the District of Columbia. If so, please check back to this blog for updates.

ICAO Considering Global Carbon Emissions Offset Program that Requires Funding Emissions Reducing Projects

Van Hilderbrand — Tue, 19 Mar 2013 08:04:26 -0500

Late last month, executives gathered in London for the Aviation Carbon 2013 summit. A few themes developed from this summit. Among the themes was that any adopted carbon emissions offset program must show a verifiable difference to the health of the environment, and that any carbon emissions offset program must be simple to join. Discussion also concentrated on the International Civil Aviation Organization's (“ICAO”) meeting in September 2013. As we reported earlier in this blog, in November 2012 the European Union suspended the inclusion of the non-EU aircraft industry in the EU Emissions Trading Scheme (“EU-ETS”) for one year until ICAO had an opportunity to develop a global consensus on a plan to reduce emissions. The September meeting of ICAO's High-Level Group on International Aviation and Climate Change is that opportunity.

The working group is reviewing at least three market-based mechanisms: (No. 1) a carbon emissions offset program that requires the funding of projects that reduce carbon emissions; (No. 2) a carbon emissions offset program similar to that proposed in No. 1, but with an additional revenue mechanism, most likely a tax; and (No. 3) a global carbon emissions cap-and-trade system. It has been reported by news outlets after the Aviation Carbon 2013 summit that the mechanism showing the most promise is No. 1, which will require participants to engage in carbon offset projects such as those that support renewable energy, promote reforestation, avoid deforestation, and boost energy efficiency. If the working group fails to come to a consensus, then we could see a stand-off again between the EU and the non-EU aircraft industry on this controversial measure.

As this issue progresses, please check back to this blog for future posts.

European Helicopter Developer AgustaWestland Creates the World's First Fully Electric Tilt-Rotor Aircraft

Van Hilderbrand — Tue, 12 Mar 2013 14:52:21 -0500

In the face of a heightened focus on aircraft emissions reduction in the industry, electric-powered and hybrid aircraft, as well as aircraft that use biofuels, offer viable alternatives. This blog has explored the development of the electric aircraft before in “Electric Aircraft May Soon be the Standard in the Business Aviation Industry.” Recently, the development of electric aircraft took another step with the announcement that European helicopter maker AgustaWestland has built and flown the world’s first electric tilt-rotor aircraft.

Named “Project Zero,” the aircraft employs two electric-powered rotors, one on each wing. The rotors, which are located within the wingspan, can be rotated more than 90 degrees so that they can be used for lift-off and as propellers during normal flight. This model is completely electric; however, AgustaWestland is considering a hybrid model that uses a diesel engine. For more information, please visit AgustaWestland’s website.

Photo: AgustaWestland

Does EPA Have a Mandatory or Discretionary Duty to Issue an Endangerment Finding for Lead in Aviation Gasoline?

Van Hilderbrand — Tue, 12 Mar 2013 14:43:46 -0500

This blog has discussed the regulation of lead in aviation gasoline extensively. Due to the fact that the general aviation industry is the last remaining industry to use leaded fuel, aviation gasoline has become a focal point of discussion at the Environmental Protection Agency, in the general aviation industry, and amongst environmental NGOs. Below are some of the past posts regarding lead in aviation gasoline:

In the pending case, Friends of the Earth v. EPA, D.D.C., No. 12-363, the plaintiff environmental group is pushing EPA to issue a finding that leaded aviation gasoline endangers human health and the environment. Such a finding would require the agency to regulate lead. During a hearing last week on EPA’s motion for summary judgment, Judge Amy Berman Jackson told the parties that the question before the court was whether EPA has a mandatory or discretionary duty to make such a finding. Only if the agency has a mandatory duty could the court compel EPA to take action. Each side points to specific language in the Clean Air Act to argue that the agency does or does not have discretion.

Before this lawsuit, Friends of the Earth filed an administrative petition seeking to compel EPA to make the endangerment finding. Only after EPA denied the petition last year did the environmental group bring the suit. In denying the petition, EPA stated that it needed additional time to study lead emissions in the general aviation industry (petition denial can be found on EPA’s website here). Battling a limited amount of monitoring data to make its evaluation, EPA has been working to develop a robust model that can characterize the amount of lead in the ambient air at and around airports where piston-engine aircraft operate.

The industry is closely following this case and issue. So will this blog. Please check back for updates.

Strong Economic Growth Has Brazil's Business Aviation Market Booming

Van Hilderbrand — Wed, 23 Jan 2013 15:55:39 -0500

As other countries witnessed their general aviation sectors shrink during the economic downturn, Brazil’s has thrived. According to top Brazilian domestic aviation experts, the industry is expected to grow by 9.5% this year. This follows a 7.14% increase year over year in 2012 and a 6.4% increase in 2011. This growth has come from all sectors of the general aviation industry, but especially from business aviation, according to Dorieldo Luis dos Prazeres, an air-control expert at the Brazilian Civil Aviation Agency. Brazil has the world’s sixth largest economy and the second largest general aviation fleet behind only the United States. Late last year, Brazil hosted the Latin American Business Aviation Conference and Exhibition (“LABACE”) in San Paulo, an event that organizers said was the second largest general aviation show in the world after the one in Oshkosh, Wisconsin. The country is home to close to 1,700 corporate aircraft, a number which is expected to rise as Brazil’s economy continues to flourish. Brazil is also home to Embraer, the world’s third largest commercial aircraft manufacturer, behind Boeing and AirBus. Embraer began manufacturing business aircraft in 2002 and has several available models.

Couple this extraordinary growth with Brazil’s playing host to two major international events in the next three years, the 2014 World Cup and the 2016 Olympics, and you see an enormous need for aviation infrastructure to move people and cargo. To meet this need, last month, Brazil’s government unveiled an ambitious plan to build eight new mega-airports and 800 new regional airports. According to President Dilma Rouseff, any city with a population close to 100,000 people should have an accessible airport within 60 kilometers. In doing so, the Government clarified its goals to boost the general aviation industry, especially the existence of small- to medium-sized airplanes and private aircraft ownership.

The Brazilian general aviation market could present industry participants with numerous business opportunities over the next several years in a variety of areas. As this issue progresses, please check back to this blog for future posts.

American Taxpayer Relief Act of 2012 Extends Bonus Depreciation for Aircraft

Daniel Ryan — Mon, 07 Jan 2013 16:08:00 -0500

As part of the American Taxpayer Relief Act of 2012 -- the legislation that was the product of the “fiscal cliff” negotiations in Washington -- Congress extended 50% bonus depreciation for qualifying aircraft acquired prior to January 1, 2014. This provision was scheduled to expire and would not have been available for aircraft acquired after December 31, 2012. Bonus depreciation is subject to certain limitations, as noted below. However, if the limitations are met, the effect is that an aircraft purchaser can deduct half of the cost in the first year of use. The 50% bonus depreciation has been available for some time, and has been routinely extended by Congress.

Bonus depreciation is available pursuant to §168(k) of the Internal Revenue Code. In order to qualify, the following requirements must be met:

The original use of the aircraft must commence after December 31, 2007;
The aircraft must be acquired (or be subject to a written binding contract entered into) after December 31, 2007 and before January 1, 2014; and
The aircraft must be placed into service prior to January 1, 2014 (or January 1, 2015, for aircraft that qualify as “longer production period property” and certain non-commercial aircraft).

These requirements are unchanged from those in existence prior to the passage of the American Taxpayer Relief Act of 2012 -- the legislation merely pushes out the acquisition and in service deadlines by one year.

Change in IRS Position Creates Additional Tax Exposure for Aircraft Management Companies and Aircraft Owners

Daniel Ryan — Tue, 18 Dec 2012 16:09:01 -0500

Earlier this year, the Internal Revenue Service issued a Chief Counsel Advice (CCA 2012-10026) that addresses the taxability of aircraft management fees as amounts “paid for the taxable transportation of persons” that are subject to the 7.5% Federal Transportation Excise Tax imposed by §4261 of the Internal Revenue Code (the “FET”). The CCA’s analysis suggests that the IRS will insist that aircraft management companies collect FET on management fees and other amounts paid by owners under most garden-variety aircraft management arrangements. This is an unwelcome surprise, not only for management companies (which had assumed -- for decades -- that no such obligation existed), but also for their aircraft owner clients. In light of the CCA, management companies and owners may want to consider reviewing and re-casting their aircraft management arrangements – before the issue comes up on audit.

The CCA focusses on what were hitherto considered very customary arrangements between aircraft owners and aircraft management companies. In the scenarios addressed in the CCA, an aircraft owner hires a management company to manage aircraft operations, perform maintenance, and ensure regulatory compliance. The management company also provides qualified pilots, who are employees of the management company. The owner pays a monthly management fee and an hourly fee for each hour of flight time. In addition, the aircraft owner reimburses the management company for the costs of employing the pilots and any crew and for pilot training. In one of the scenarios, the management company is allowed to charter the aircraft to third parties under Part 135 of the Federal Aviation Regulations when the owner is not using it, and the management company and owner share the charter revenue.

The CCA concludes that the amounts paid by the aircraft owner to the management company under the described scenarios, including management fees and a variety of costs separately reimbursed by the aircraft owner, are subject to the FET. Because such payments are subject to the FET, the management company has the obligation to collect the FET from the aircraft owner and remit the collected tax to the IRS. Should the management company fail to do so, the FET can be collected from the management company directly by the IRS.

The CCA’s analysis focused on identifying, as between the aircraft owner and the management company, who had “possession, command and control of the aircraft.” If the management company had possession, command and control of the aircraft, it would be treated as having provided transportation services subject to the FET, and would be required to collect FET on amounts paid by the owner for such services. From that point, however, the CCA’s analysis took two unsettling turns -- in the view of the business aircraft community. First, the CCA suggests that the key factor in identifying who possesses, commands and controls the aircraft is control over the pilots, and, per the CCA, the entity that employs the pilots controls the pilots. In the scenarios described in the CCA, because the management company employed the pilots and carried them on its payroll, the management company had possession, command, and control of the aircraft for FET purposes. According to the CCA, not relevant to the determination of whether taxable transportation services were being provided were: (1) that the owner had the ability to schedule and direct the flights, (2) that the management company did not own the aircraft, and (3) whether the aircraft was operated under Part 135 or Part 91 of the Federal Aviation Regulations.

The second unsettling thing about the CCA was the scope of the payments subject to FET. These included not just management fees, but also the separate reimbursement by the owner of various management company costs that are determined to be a precondition of receiving air transportation services from the management company. The CCA specifically mentions costs attributable to employing the pilots and other crew members, and costs of training – but other costs (such as insurance – if separately reimbursable) could fall within this category.

The collection of FET on management services is not just a management company issue. Even though the obligation to collect the FET falls on the management company, the aircraft owner is the party liable for the tax. In this way, the FET is administered by the IRS in a similar manner to payroll taxes, which are imposed on the employee but collected and remitted by the employer. If the IRS discovers through an audit of the management company that the tax has not been collected or paid, the IRS can audit and ultimately assess the tax against the aircraft owner, plus any interest that has accrued from the date the FET should have been paid. Additionally, the management company may seek to collect the FET from the aircraft owner after being contacted by the IRS, or provide the IRS with the name and contact information of the aircraft owner to avoid FET liability. The aircraft owner can also be audited independently of the management company.

An FET audit of either a management company or an aircraft owner differs from an income tax audit. Unlike income tax, neither the management company nor the aircraft owner is able to judicially contest the imposition of the FET prior to assessment in the United States Tax Court. The only way for either party to judicially contest the tax is after assessment, by paying the tax and suing for a refund in the United States District Court or the United States Court of Federal Claims. However, like other IRS audits, both the aircraft owner and the management company can dispute the audit’s conclusion that the FET is owed before the IRS’s Office of Appeals, which operates independently from the audit division.

At this point, it is unclear whether the IRS will be imposing the FET on these management company arrangements solely on a prospective basis, or if it will be imposing the FET for periods prior to the date the CCA was issued. What is clear is that the IRS is staking out a new position on the imposition of the FET, and is aggressively pursuing that position. If they have not already done so, aircraft management companies and their owner clients should assess their options.

U.S. House of Representatives Approves European Union Emissions Trading Scheme Prohibition Act of 2011

Van Hilderbrand — Mon, 19 Nov 2012 11:10:43 -0500

Last week, the United States House of Representatives approved the European Union Emissions Trading Scheme Prohibition Act of 2011 , which would allow aircraft operators to dodge participation in the European Union Emissions Trading Scheme (”EU-ETS”). The EU’s cap-and-trade policy has been the subject of much discussion and controversy over the last few years because many industry leaders say that the policy is a unilateral tax on the American aircraft industry and a violation of international law. As we posted on this blog before, the U.S. Senate passed a similar bill (S. 1956) in September 2012. After reconciliation, the bill heads to the desk of President Obama for his signature.

The passage of this bill comes on the heels of a surprising suspension of the ETS provisions for a year. The International Civil Aviation Organization (“ICAO”) recently announced that it would work to develop a plan to reduce global emissions of the aviation industry, thus prompting the EU to delay the inclusion of the aviation industry until after the ICAO General Assembly meeting in fall 2013. If ICAO fails to resolve the issue or make substantial headway, the recent suspension will only serve to postpone the controversial measure.

As this issue progresses, please check back to this blog for future posts.

Court Denies Motion to Reconsider March 2012 Ruling that EPA Does Not Have to Determine if Emissions from Aircraft Engines Contribute to Air Pollution

Van Hilderbrand — Thu, 08 Nov 2012 16:02:56 -0500

As previously posted in “U.S. District Judge Dismisses Environmental Group's Legal Suit to Force EPA to Regulate Aircraft Engine Emissions,” in March 2012, the United States District Court for the District of Columbia granted the Environmental Protection Agency’s (“EPA”) motion for summary judgment and refused to force the agency to determine if emissions from aircraft and ships “cause or contribute to dangerous air pollution.” On November 2, 2012, the Court denied a motion for reconsideration filed by the plaintiff environmental groups, finding that neither EPA’s proposed Power Plant Rule, 77 Fed. Reg. 22392, nor the Court of Appeal’s decision in Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) constitute newly discovered evidence. Nor did they demonstrate that the Court’s earlier order was based on an error of law or fact.

The environmental groups had argued that EPA’s newly proposed regulations for power plants could be applied to other sources, such as aircraft, and constituted new evidence that warrants reconsideration by the Court. But, the Court found that the regulations were only proposed and that the agency was still accepting public comment. Further, the Court did not accept the argument that the regulations could be applied to other sources because the proposed regulations relate to an entirely different section of the Clean Air Act. The Court went on to find that these facts, even if considered, would have no influence on the issue in the case: “whether Defendant EPA has unduly delayed in promulgating an endangerment determination for aircraft engines.”

A copy of the order can be found here.

Rep. Henry Waxman Urges FAA to Immediately Address Lead in Aviation Gasoline

Van Hilderbrand — Wed, 07 Nov 2012 08:46:40 -0500

As mentioned in an earlier posts, "Industry-Government Task Force Report Sheds Light on Future of Aviation Gasoline," "Environmental Advocacy Group Sues EPA to Regulate Emissions from Aviation Gasoline," and "EPA Sets Its Regulatory Cross Hairs on Lead Aviation Fuel," leaded aviation gasoline, or avgas, remains a concern in the general aviation sector.

A joint industry-government task force is currently tackling the problem, and in a June 2012 report stated that the goal of the task force is to advance unleaded aviation gasoline by 2018. However, this timetable is too long for some, including Rep. Henry A. Waxman (D. Calif.). In a recent letter to Federal Aviation Administration Acting Administrator, Michael Huerta, Rep. Waxman asked the agency to promote the use of unleaded alternatives for piston engine aircraft that are available today.

In the letter, Rep. Waxman noted the detrimental health effects of lead and that general aviation fuel accounts for half of all lead emissions in the United States. These effects are exacerbated by the fact that many of the smaller aircraft that use leaded gasoline fly out of airports near densely-populated areas.

A press release from Rep. Waxman’s office can be found here. As this issue progresses, please check back to this blog for future posts.

Aviation Groups Support Measures to Halt EU-ETS

Van Hilderbrand — Fri, 28 Sep 2012 13:01:02 -0500

Last week, the National Business Aviation Association (“NBAA”) continued its support for increased pressure and direct measures that would curb efforts of the European Union to include the U.S. aviation sector in the EU’s Emissions Trading Scheme (“EU-ETS”). The NBAA joined forces with 18 other aviation-related associations in an advocacy coalition. The coalition sent President Obama a letter requesting that an Article 84 legal action be pursued at the International Civil Aviation Organization (“ICAO”). An Article 84 action refers to a dispute resolution mechanism that all ICAO members agreed to at the 1944 Chicago Convention. NBAA’s press release, including a copy of the letter can be found here. This message may have been in response to an earlier letter sent to President Obama by a coalition of environmental advocacy groups. In August 2012, the environmental coalition requested that the President not “give in” to pressure from the U.S. aviation industry to take legal action.

In another press release last week, the NBAA affirmed its approval of the U.S. Senate’s final passage of Senate bill S. 1956 entitled the “European Union Emissions Trading Scheme Prohibition Act.” As we have posted before, S. 1956 prevents all U.S. aircraft operators from complying with the EU-ETS and authorizes the Department of Transportation and Federal Aviation Administration to negotiate a universal approach to address aircraft emissions. This bill must now be reconciled with an earlier bill (H.R. 2594) that passed the U.S. House of Representatives in October 2011 and be signed by President Obama. Industry leaders believe the bill could be taken up in the House as earlier as the week of November 12, 2012. NBAA’s press release can be found here.

As this issue progresses, please check back to this blog for future posts.

Bird Strikes During Aircraft Takeoff and Landing Still a Major Issue

Van Hilderbrand — Mon, 17 Sep 2012 08:55:27 -0500

Bird strikes during takeoff and landing at airports is a major issue that affects safety in both the commercial and business aviation sectors. According to a recently released audit by the Department of Transportation Inspector General, the Federal Aviation Administration (“FAA”) has not been sufficiently implementing its program to monitor these hazards.

The report suggests that the FAA’s oversight and enforcement of the Wildlife Hazard Mitigation Program has not done enough to stop strikes. The Program requires airports to conduct wildlife hazard assessments when strikes occur or could occur. The assessments must be approved by the FAA Administrator and may result in the implementation of a wildlife hazard management plan, which includes wildlife population management, habitat modification, and land use changes that have been identified in the assessment.

The audit report challenges the Program’s effectiveness. Bird strikes have increased by 500 percent between 1990 and 2011. According to a study of 40 randomly selected airports, including a dozen regional airports, bird strikes have caused approximately $123 million in damage each year, and 23 deaths in the U.S. (229 worldwide) since 1988.

Further, airports are not required to report these incidents; which mean data could be insufficient and costs could be much greater. A 2009 FAA study found that only 39 percent of bird strikes were reported and 21 percent of strikes in airport logs were not reported to the FAA database.

The FAA offers grants through the Airport Improvement Program to implement wildlife management plans, and airports are inspected by FAA-contracted wildlife biologists. However, the audit found that current spending and oversight is insufficient to address the issue and further found that inspectors do not have the technical expertise to conduct proper wildlife hazard assessments.

The Inspector General suggests that the FAA develop better performance metrics and coordinate with the Department of Agriculture and the Fish and Wildlife Service to obtain the technical assistance required to limit bird strikes to business and commercial aircraft.

Special thanks to Sullivan & Worcester’s Alexandra Campbell-Ferrari for assistance in preparing this post.

FAA's No Hazard to Air Navigation Determinations Challenged

Van Hilderbrand — Wed, 29 Aug 2012 09:03:58 -0500

As we discussed earlier in our post entitled "Offshore Wind Energy Turbines Pose No Threat to Air Navigation and Traffic Operations According to the FAA," the Federal Aviation Administration (“FAA”) issued No Hazard to Air Navigation determinations for the Cape Wind offshore wind energy project located in the Nantucket Sound. The determinations mean that the project’s 130 wind turbines pose no threat to air navigation and traffic operations in the area.

Shortly after the FAA’s determinations were issued, the Alliance to Protect Nantucket Sound asked the United States Court of Appeals for the District of Columbia to review the FAA’s aeronautical studies that led to the no hazard determinations. According to the Petition for Review, the Alliance questions whether the FAA complied with the court’s October 2011 decision in Town of Barnstable v. FAA, 659 F.3d 28 (D.C. Cir. 2011), which vacated the FAA’s earlier no hazard determinations for the Cape Wind project, and remanded the matter back to the FAA for further study and analysis.

The case is pending in the United States Court of Appeals for the District of Columbia Circuit, Alliance to Protect Nantucket Sound v. FAA (Civil No. 12-cv-1363). This review will be closely watched by the wind energy industry and the states. If the FAA’s determinations stand, the Cape Wind project and offshore wind energy will move one step closer to development and operation.

Part 2: Conversation with Brad Mottier, Vice President at GE Business & General Aviation

Van Hilderbrand — Fri, 24 Aug 2012 16:12:33 -0500

In part two of our conversation with Brad Mottier, vice president at GE Business & General Aviation, we discuss the newest innovations in GE’s engines. The company is currently developing a new engine with improved environmental benefits and recently had its H80 turboprop engine be type certified by the Federal Aviation Administration. In this post we look at what this certification means for GE Business & General Aviation and what to expect from its newest engine for business aviation, the Passport 20.

Business Aviation Law Blog: I read that a new GE Passport 20 engine is under development for use in business aircraft. In what stage of development is the engine? I also read that the Passport 20 engine will offer improved fuel consumption and environmental benefits, such as reduced nitrous oxide and carbon dioxide emissions and reduced noise pollution. Is this true?

Brad Mottier: The Passport 20 engine, being developed for large cabin business jets, will set a new standard in performance, efficiency and reliability for business aviation. GE is incorporating key technologies in the Passport engine to bring environmental benefits to operators, including a composite fan case to reduce weight, a front fan blisk for lower cabin noise and vibration and advanced core technologies that will reduce emissions and improve fuel efficiency. GE recently finalized the architectural design of the Passport engine for the Bombardier Global 7000 & 8000 aircraft. With the design frozen, GE now begins the detailed design phase. Component fabrication will begin soon, leading to the start of assembly of the first full engine by year end. The first engine is scheduled to begin testing in 2013.

Business Aviation Law Blog: It was reported that Honda Aircraft Co. has developed a new light business aircraft that will seat two crew members and five to six passengers. Will the HondaJet be powered using GE engines? If so, which model?

Mottier: The GE Honda Aero Engines’ HF120 engine will power the HondaJet. The HF120 engine features high-flow, wide-chord fan blades, compressor with maximum engine pressure ratio, a reverse flow configuration combustor and advanced material in turbine. GE Honda Aero Engines is a 50/50 joint venture between GE Aviation and Honda Aero, Inc. For more information, visit http://gehonda.com.

Business Aviation Law Blog: The Federal Aviation Administration recently approved type certification for GE Aviation's H80 turboprop engine for commuter aircrafts. Can you tell us more about the H80 engine and what this certification means?

Mottier: GE is excited to bring the H80 engine turboprop to the marketplace, and the certification was the result of the hard efforts of the GE Aviation Business and General Aviation Turboprop team in the Czech Republic along with teams in Evendale and Lynn who worked the design. The H80 turboprop engine combines the elegant, robust design of the M601 engine with GE's 3-D aerodynamic design techniques and advanced materials to create a more powerful, fuel-efficient, durable engine with no recurrent fuel nozzle inspections and no hot section inspection. The H80 engine will feature an extended service life of 3,600 flight-hours or 6,600 cycles between overhauls. It will provide the option of a single- or dual-acting governor, allowing customers to have flexibility in propeller selection. The H80 engine will power the Thrush 510G agricultural aircraft, the Aircraft Industries L410 commuter aircraft, and the Technoavia’s Rysachok twin-engine aircraft. Along with these applications, Smyrna Air Center is working a Supplemental Type Certificate for a H80-powered King Air C90 aircraft. Recently we announced the launch of two new H80 engine derivatives – the H75 and H85 engines—for the agricultural, commuter, utility and business turboprop aircraft segments. You can catch a H80-powered Thrush 510G in flight on this video.

Thank you to Brad Mottier for talking with us. You can find out more about GE Business & General Aviation at http://geaviation.com/bga or on Facebook at http://facebook.com/gebga.

Offshore Wind Energy Turbines Pose No Threat to Air Navigation and Traffic Operations According to the FAA

Van Hilderbrand — Wed, 22 Aug 2012 07:32:21 -0500

The Federal Aviation Administration affirmed its previous decisions that the Cape Wind offshore wind energy project poses no threat to air navigation and traffic operations. This is the fourth time the FAA’s aeronautical study has concluded that the 130 wind-turbine farm would not present a hazard since the project was first reviewed in 2002. The agency must evaluate the project and make a determination every 18 months. This latest determination expires in February 2014.

The same decision was made last year by the FAA; however, the D.C. Circuit Court concluded that the agency had not properly applied its handbook to the project’s evaluation. The court required the agency to go back and analyze whether the project adversely affected visual flight procedures. This latest study showed no adverse effect.

As we discussed in our July 2011 post entitled, “Wind Turbines Effect on Radar Systems and Aviaiton Security,” wind turbines affect the safety of the general and business aviation sector because wind towers may be constructed along routes typically flown by smaller aircrafts. The Cape Cod and Nantucket Sound area, where the Cape Wind project is located, is served by several public use airports, including Barnstable Municipal Airport-Boardman/Polando Field (HYA), Nantucket Memorial Airport (ACK), and Martha’s Vineyard Airport (MVY), as well as one military airport, Falmouth Cape Cod Coast Guard Air Station (FMH). According to the FAA’s determination, the Cape Wind project poses no hazard to flight operations in and out of these airports.

Attention will now turn to the litigation pending in the United States District Court for the District of Columbia (Civil No. 10-cv-01067). In this matter, several community groups and one Native American tribe brought a consolidated action against the U.S. Department of Interior. The action alleges that in approving the Cape Wind project, the agency did not conform to law and perform the due diligence required in evaluating the potential impact the project would have on the environment and the cultural and historical resources of the tribe.

Sullivan & Worcester represents the Conservation Law Foundation, a non-profit environmental group with offices throughout New England, in the matter. CLF is an amicus curiae party supporting the U.S. Department of Interior’s approval of the project.

Part 1: Conversation with Brad Mottier, Vice President at GE Business & General Aviation

Van Hilderbrand — Fri, 17 Aug 2012 16:07:17 -0500

The Business Aviation Law Blog had a chance to speak with Brad Mottier, the vice president at GE Business & General Aviation. In this two-post series, we discuss with Mr. Mottier the role GE has played in the business aviation market and where the industry is headed. In this first post, we look at the business aviation industry as a whole and its future internationally. We explore the role China will play in the years to come as well as GE’s continued dedication to improving business aviation. In the next post we will discuss some of GE’s technological advancements in its new engines.

Business Aviation Law Blog: GE Aviation is a world-leading provider of jet and turboprop engines and components for commercial, business and military aircraft. What does GE Aviation see as the market outlook in the business aviation industry? What are the challenges and opportunities?

Brad Mottier: The business jet segment has been affected by the economic downturn. In 2008, the segment saw record orders with the enthusiasm generated by the air taxis and new small planes launched. This resulted in inflated sales figures, which were not sustainable. I am hopeful that business aviation industry is poised for recovery in next few years that will coincide with the entry into service of several of GE’s new engines, like the GE Honda Aero Engine’s HF120 on the HondaJet and GE’s Passport on the Bombardier Global 7000 and Global 8000 aircraft.

Business Aviation Law Blog: China has emerged as both a leader in the business aviation industry and as a significant potential customer. What is the market outlook in China and how has GE positioned itself to take advantage?

Mottier: GE considers China to be a growth region for all segments of aviation with the increasing number of airports in China and the sheer number of potential passengers living in the country. We are actively talking to potential customers in China and look forward to expanding our business into this region.

Business Aviation Law Blog: I know that GE's Business and General Aviation division had a booth at the 2012 European Business Aviation Convention & Exhibition ("EBACE") back in May in Geneva, Switzerland. Can you share some of your impressions of the convention that you think would be of interest to our readers?

Mottier: Air shows like EBACE as well as Farnborough, at which GE showcased the H80 engine for the first time at this major show, are a great chance to talk with our airframe customers as well as those that fly our planes. GE Aviation exhibits at many aerospace conventions around the world—but there is nothing better than attending a show where we get a chance to talk with our customers and hear straight from them what is working well with our engines and customer/product support. A few weeks ago, I was at Oshkosh where I met many customers and I get to see a lot of aviation innovation firsthand.

Business Aviation Law Blog: How did the GE Business and General Aviation division help support the 2012 Olympic Games in London?

Mottier: According to the UK Civil Aviation Authority, business aircraft flights to southeast London were expected to increase by more than 3,000 during the summer's 2012 Olympics. To help support these customers who operate GE-powered aircraft, GE Aviation formed a strategic arrangement with Ocean Sky Jet Centre, a Luton fixed-base operator (FBO). Dedicated GE Aviation field service representation were on-site at Ocean Sky Jet Centre through the Olympics. GE's mobile repair team were available for any line maintenance needs. GE Aviation also strategically positioned new and exchange materials in the region for easy access.

Business Aviation Law Blog: Where can our readers obtain more information about GE's Business and General Aviation division?

Mottier: You can find more information about GE's BGA division at http://geaviation.com/bga or connect with us on Facebook at http://facebook.com/gebga.

Check back for the second part of our conversation with Brad Mottier. We discuss GE’s new engines and their environmental impact.

Progress at ICAO Reveals Hope for a New Worldwide Carbon Dioxide Standard

Van Hilderbrand — Thu, 02 Aug 2012 08:56:02 -0500

In a major move forward in the effort to establish a worldwide carbon dioxide standard for aircraft, the International Civil Aviation Organization’s (“ICAO”) Committee on Aviation Environmental Protection unanimously approved a metric to characterize CO₂ emissions, taking into consideration such influences as fuselage geometry, maximum take-off weight, and fuel-burn performance. With this step behind the Committee, work will begin on creating a new CO₂ aircraft standard, including defining the certification procedures and determining the standard’s scope of applicability. ICAO’s press release can be found here.

Industry leaders call this a major milestone, but agree that this is merely one step towards establishing an international standard by the end of 2013. This announcement, however, has done little to temper the European Union’s plan to implement the Emissions Trading Scheme (“EU-ETS”). It has though given support to those countries that oppose inclusion in the EU-ETS. The United States Departments of State and Transportation hosted 16 countries from July 31 to August 1, 2012 to discuss alternatives to the controversial scheme. Countries participating were Australia, Brazil, Canada, Chile, China, Colombia, India, Japan, Korea, Mexico, Nigeria, Russia, Saudi Arabia, Singapore, South Africa, and the United Arab Emirates.

All attending countries favor national and regional measures to reduce aviation emissions; however, each has stated their opposition to the EU plan, and would rather see a global, sector-led standard created through ICAO. Representatives from the European Commission were not invited according to a spokeswoman for the Commission, but were briefed on the meeting’s results. This meeting follows a February gathering in Moscow of 20 countries which agreed on retaliatory measures if the EU-ETS’s inclusion of non-EU aircraft continues moving ahead.

At the same time of this meeting, the Senate Commerce, Science, and Transportation Committee unanimously approved a bill to bar the EU from extending its carbon caps to the U.S. airline industry. This approval moves the bill closer to a Senate floor vote after the August recess. A similar bill was passed by the House of Representatives in October 2011 and is described in more detail here. The passage of this bill follows the sub-committee hearing described earlier in this blog. EU officials immediately criticized the bill.

EBAA, CBAA and IBAC Call on the International Business Aviation Community to Help Develop an Alternative Measure to the EU-ETS

Van Hilderbrand — Fri, 06 Jul 2012 10:41:45 -0500

Several national business aviation associations and the International Business Aviation Council (“IBAC”) reiterated their opposition last month to emissions regulation under the European Union’s Emissions Trading System (“EU-ETS”).

The announcement came in Toronto, Canada at CBAA 2012, the annual convention hosted by the Canadian Business Aviation Association (“CBAA”). According to the joint press release, Fabio Gamba, CEO of the European Business Aviation Association (“EBAA”), told the conference participants that he shared their frustrations over the EU-ETS’s flaws. Gamba emphasized that in addition to the distinction made between commercial and non-commercial operators and how the de minimis rule is applied, the EU-ETS focused more on punishing those who emit CO₂, rather than encouraging them to find avenues to improve their carbon footprint.

“There’s no denying that aviation emissions will grow over time despite the sector’s constant technological and operational improvements and its formal long-term commitment to reducing the impact of aviation on the environment,” Gamba said at the event. “And although business aviation emits less than 2% of air transport emissions – and less than .04% of total man made emissions – we confirm our sector’s role in helping to combat global warming.”

Despite the general consensus that the system would hurt the business aviation industry, Don Spruston, Director General of IBAC, cautioned that too much resistance may lead to retaliation, which would hurt all parties involved. This statement came on the heels of China announcing its plan to possibly impound European aircraft as a penalty for China’s three national airlines being reprimanded for not submitting greenhouse gas emissions data to the EU.

Instead, the EBAA, CBAA and IBAC called on the rest of the international business aviation community to join the worldwide effort to develop a new global agreement under the leadership of the International Civil Aviation Organization. As mentioned in earlier posts, this viewpoint appears to be in line with the position of the National Business Aviation Association, as well as many commercial aviation industry groups.

Special thanks to Sullivan & Worcester’s Joshua Walfish, Marketing Intern, for assistance in preparing this post.

EPA Brings NOx Emissions Regulations for Commercial and Non-Commercial Civilian Aircraft Engines in Line with ICAO Standards

Van Hilderbrand — Mon, 02 Jul 2012 10:49:38 -0500

Late last month, EPA adopted new nitrogen oxide (“NOx”) emissions standards for aircraft engines that align with international requirements previously promulgated by the International Civil Aviation Organization (“ICAO”). According to the Final Rule [77 Fed. Reg. 36342], the regulations reduce NOx emissions from taxiing, take off, landing, idling, and flight for certain gas turbofan engines used by commercial and non-commercial civilian aircraft with maximum rated thrusts greater than 26.7 kilonewtons (“kN”). Although engines with this rating are primarily used in the commercial sector, the rule makes clear that the standards also apply to non-commercial civilian aircraft engines that are required to obtain airworthiness certificates.

Prior to this rule, gaseous emissions regulations were limited to commercial civilian aircraft engines. The inclusion of non-commercial aircraft engines, according to the Final Rule, was because ICAO’s standards and recommendations already apply to both sectors. This rule, therefore, brings EPA’s regulations into full conformance. Further, manufacturers already certify the engines to the international standards, thus “this provision simply incorporates the status quo.” Finally, the inclusion was necessary because of the physical and operational similarities between the aircraft engines used in the two sectors.

To facilitate an orderly transition, EPA adopted two tiers of emissions standards: (1) Tier 6 (or CAEP/6) standards and (2) stricter Tier 8 (or CAEP/8) standards. Implementation of the Tier 6 standards will result in a 12 percent reduction in emissions levels below the current Tier 4 standards. The Tier 8 standards will result in a 15 percent reduction in emissions levels below the Tier 6 standards. The applicability of the tiers depends on the manufacturing date and certification date of the engine model.

Tier 6 Standards: If the engine model is manufactured and certified before July 18, 2012, the engine model would not be required to comply with the Tier 6 standards until December 31, 2012. Any engine model certified on or after July 18, 2012, must comply by December 31, 2013.

Tier 8 Standards: Any engine model certified on or after January 1, 2014, must comply with the Tier 8 standards.

The Final Rule also includes several changes that affect all aircraft gas turbine engines subject to current emission requirements. The Final Rule:

clarifies when a design variation of a new engine causes the latest version to become different enough from its previously certified parent engine that it must conform to the most current emissions standards;

amends the emission measurement procedures to reflect current certification practices; and

requires covered gas turbine and turboprop engine manufacturers to report emissions data to EPA to conduct analysis and define appropriate public policy.

According to EPA, this rule “is not an economically significant regulatory action” and “will impose no real additional burden on engine manufacturers” because aircraft turbofan engines are already designed and built to ICAO standards in order to be sold and operated worldwide. Overall, only ten engine manufacturers will be affected by this rule. EPA estimates that the total annual burden of compliance is approximately ten hours and $365 per manufacturer.

This is not the first time that EPA has revised its standards for aviation emissions to conform to ICAO guidelines, nor will it be the last. As covered extensively in several previous posts, if ICAO develops universal and comprehensive standards for aviation greenhouse gas emissions, EPA may soon revise its regulations to follow suit.

More information on the new NOx standards can be found on EPA’s website.

Special thanks to Sullivan & Worcester’s Noah Tomares, Environmental and Marketing Intern, for assistance in preparing this post.

Industry-Government Task Force Report Sheds Light on Future of Aviation Gasoline

Van Hilderbrand — Fri, 29 Jun 2012 10:51:52 -0500

As mentioned in earlier posts, “Environmental Advocacy Group Sues EPA to Regulate Emissions from Aviation Gasoline” and “EPA Sets Its Regulatory Cross Hairs on Leaded Aviation Fuel,” leaded aviation gasoline, or avgas, is a concern in the general aviation industry. Lately, the issue has garnered more attention as the Environmental Protection Agency (“EPA”) examines possible regulation of lead emissions from aircrafts.

Not much progress has been made to develop an alternative fuel to 100 octane low-lead (100LL), mainly due to the ready availability of the current fuel, a lack of regulation, and the technical infeasibility of developing a single “drop-in” alternative fuel that can be deployed across the entire industry. Aviation industry leaders realize, however, that steps forward must be taken if the industry wants to avoid future regulation.

Last week, the Unleaded Avgas Transition Aviation Rulemaking Committee (“UAT ARC”) released a final report detailing how to incentivize and facilitate the certification of an alternative aviation fuel to 100LL. Formed in 2011 by the Federal Aviation Administration (“FAA”); the ARC is a joint industry-government task force with a goal of advancing unleaded aviation gasoline by 2018. Members on the industry side include the Aircraft Owners and Pilots Association (“AOPA”), the Experimental Aircraft Association (“EAA”), the General Aviation Manufacturers Association (“GAMA”), the National Air Transportation Association (“NATA”), and the National Business Aviation Association (“NBAA”). The government stakeholders are FAA and EPA.

Collaboratively, this task force has worked to ensure the continued availability of aviation gasoline in an unleaded form. According to FAA’s press release, the ARC’s report outlines five key recommendations. These are:

Implement a fuel development roadmap for avgas readiness levels that identifies milestones in the aviation gasoline development process.
Establish centralized testing of candidate unleaded fuels which would generate standardized qualification and certification data.
Establish a solicitation and selection process for candidate unleaded aviation gasolines for the centralized testing program.
Establish a centralized certification office to support unleaded aviation gasoline projects.
Establish a collaborative industry- government initiative called the Piston Aviation Fuels Initiative (PAFI) to implement the UAT ARC recommendations to facilitate the development and deployment of an unleaded avgas with the least impact on the existing piston-engine aircraft fleet.

More details concerning these primary recommendations can be found in the final report, which can be found on FAA’s website. Press releases discussing the report were also posted by AOPA and NBAA.

The participation of EPA is essential to the success of this framework. EPA has been pressured with litigation to promulgate regulations to eliminate or significantly reduce lead emissions. If FAA and industry groups can address the issues and recommendations outlined in the final report in a timely fashion and in a manner that is amenable to both the environment and industry, EPA will not have to take steps to regulate.

As this issue progresses, please check back to this blog for future posts.