Airspace

Kaplan Kirsch lawyers represent airports, communities and private sector interests in matters regarding Federal Aviation Administration (FAA) airspace regulation. Airport sponsors and others call on us to assist in understanding their rights and obligations — and where necessary, challenging FAA decisions that could adversely affect their interests. We have assisted in the preparation of, review of, or litigation over, environmental documentation for airspace matters, including airspace redesigns for several major metropolitan areas across the country.

In the context of FAA’s introduction of NextGen navigation procedures, we represent airport proprietors in understanding the implications of the agency’s introduction of new flight paths, especially when those paths change established patterns and run counter to the airport’s noise planning efforts. To modify proposed rules and procedures, our work ranges from legislative drafting and lobbying to litigation, and from advising on regulatory compliance to working cooperatively with FAA officials.

The project development and aviation experience of our lawyers enables us to advise our clients, work with federal agencies and undertake cutting-edge litigation regarding the effects of wind turbines, transmission facilities and solar projects, as well as other development on airport utility and the impacts wind turbines may have on radar and other air navigation facilities.

When development near an airport threatens approach and departure procedures, we regularly monitor and participate in formal and informal rulemakings and airspace studies concerning obstruction and hazard analysis of Part 77 imaginary surfaces, TERPS, and one-engine-inoperative procedures. Our work includes commenting on circularized airspace studies and challenging FAA Determinations under Part 77 before the FAA and in courts.

Representative Experience

City of Los Angeles NextGen Litigation: The firm successfully represented the City of Los Angeles as the proprietor of Los Angeles International Airport (LAX) in challenge to changes in flight patterns for aircraft arriving at LAX. City of Los Angeles v. Dickson, 2021 U.S. App. LEXIS 20248, No. 19-71591 (9th Cir. July 8, 2021). Following the Ninth Circuit decision, the FAA agreed to pay Los Angeles $175,000 as part of settlement regarding attorney’s fees. We later secured a writ of mandamus from the Ninth Circuit ordering the FAA to act in accordance with the Court’s earlier decision.

City of Phoenix NextGen Representation: We represented the City of Phoenix with respect to the FAA’s implementation of new departure flight tracks from its airport that changed ‘settled’ community expectations about noise and overflights. Our work included policy-related representation before Congress and senior federal officials, participation in the administrative decision-making process and in litigation before the United States Court of Appeals.

South Florida Airspace Issues: We have advised several South Florida airports for more than two decades in the design and redesign of flight patterns in the highly congested, complex regional airspace. These engagements have included proposal work and advocacy for new noise abatement departure procedures for both commercial service and general aviation airports, design of pattern-flying procedures for helicopter training, coordination of flight patterns for several airports close to one another and negotiation with communities and local governments to optimize flight patterns for noise and efficiency purposes.

Airspace Protection Litigation: We represented clients in Las Vegas and Barnstable, Massachusetts challenging FAA Determinations of No Hazard for two wind-turbine projects under FAR Part 77. In Las Vegas, a proposed wind turbine project would have interfered with the operation of the proposed Ivanpah Airport. We challenged the FAA’s Determination of No Hazard both in administrative proceedings and in the D.C. Circuit Court of Appeals, which found that the FAA had not adequately examined the impact of the turbines on the airport. In Barnstable we challenged a Determination of No Hazard for the proposed Cape Wind turbine project in Nantucket Sound and the D.C. Circuit found that the FAA had failed to adequately evaluate the impact of the turbines on aircraft using Barnstable Municipal Airport. Although the Court upheld the FAA’s decision following remand, the project was ultimately not built.

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