Tom Schoenberg and Andrew Zajac BLOOMBERG
Obama Control -Tower Shutdowns Spur Mounting Airport Suits
April 3, 2013
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  • By Tom Schoenberg and Andrew Zajac

    Airports that serve Ohio State University and the headquarters of State Farm Mutual Automobile Insurance Co. joined a lawsuit offensive to stop the U.S. from shutting air traffic control operations as part of government- wide spending cuts.

    Since the first suits were filed in U.S. appeals courts in Manhattan and Washington last week, at least eight more airports have challenged tower closings slated to begin April 7. They include Central Illinois Regional Airport in Bloomington, where State Farm is based, which handled more than 579,000 passengers in 2011, and the Ohio State airport in Columbus

    The lawsuits are the first broad-based court challenge to the congressionally mandated reductions in spending, known as sequestration, that took effect last month. The suits, posing a clash between administrative law and budget requirements, highlight potential obstacles faced by the government for plans to cut $1.2 trillion in spending over nine years.

    “This could be the opening wave of considerable litigation over budget cuts,” said Darrell West, vice president of governance studies at the Brookings Institution, a Washington- based research and policy organization.

    Ripe Targets

    Ripe targets for litigation include “the part of the economy that people can’t do without” such as basic transportation services, West said in a phone interview.

    Homeland security cuts also might draw challenges because of public sensitivity to safety, he said.

    The shutdown of control towers at 149 small and midsize airports was ordered by Federal Aviation Administration as it grappled with a need to trim $637 million from its $16 billion budget. All of the towers slated for closing are operated by contractors while facilities at larger airports are staffed by FAA employees.

    “The administration made the closing of control towers the poster-child for sequestration,” Spencer Dickerson, executive director of the Alexandria, Virginia-based Contract Tower Association, said in an interview.

    Peter Kirsch, of the Denver-based law firm Kaplan Kirsch Rockwell LLP, said one of the airports will probably ask a court to put the closure plan on hold unless the FAA does so voluntarily. Kirsch represents six airports in three of the suits, including one in San Francisco.

    Delay Sought

    The Bloomington airport authority, in a March 26 letter, asked FAA Administrator Michael Huerta to delay any action while the court reviews its petition, arguing that the agency failed to follow required procedures for analyzing whether an operational change could affect safety. The facility is slated to close May 5.

    Planes can continue to use airports without working control towers under FAA procedures. Instead of being guided by controllers, pilots radio one another to manage takeoffs and landings.

    Laura Brown, an FAA spokeswoman, said in an e-mail that under “long-standing procedures for ceasing operations of towers and the transfer of airspace between facilities” safety won’t be compromised where on-site air traffic service is cut.

    While most of the litigation has been filed as direct challenges to an agency ruling in the U.S. Court of Appeals in Washington, which consolidated the cases, Flathead Municipal Airport Authority in Kalispell, Montana, and Friedman Memorial Airport Authority in Hailey, Idaho, sued March 29 in the U.S. Court of Appeals in San Francisco. A lawsuit filed by Friends of La Guardia Airport Inc. was filed March 25 in U.S. Court of Appeals in New York.

    Selecting Court

    The Justice Department, in filings yesterday in San Francisco and Washington, said the U.S. Judicial Panel on Multidistrict Litigation will decide which court handles the cases.

    Suits could be hard to win because lawmakers approved the basic package of cuts comprising sequestration, something that requires deference from courts, according to West.

    “Congress went through a process,” West said. “I don’t think courts will find it to be arbitrary and capricious.”

    Challenges asserting improper procedures or lack of due process might fare better, he said.

    Flight Data

    Airports losing their towers averaged 54,000 flights in 2011, the most recent year for which FAA data are available. Four had fewer than 20,000 landings and takeoffs, according to agency data.

    During peak operations, the lack of air-traffic control service will overburden the FAA regional control facility in Salt Lake City, said Richard Baird, whose airport serves the Sun Valley ski resort 13 miles (21 kilometers) to the north and has about 30,000 operations annually.

    He said tower service should be considered security for high-profile visitors who frequent Sun Valley, where the airport is in a narrow valley with rising terrain on both sides.

    “We have kings, queens, heads of state and people in the U.S. government far enough up that they require some level of security,” Baird said.

    The lead Washington case is Spokane Airport Board v. Huerta, 13-1080, U.S. Court of Appeals for the District of Columbia (Washington). The California case is Flathead Municipal Airport Authority v. Huerta, 13-71133, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The New York case is Paskar v. Federal Aviation Administration, 13-1070, U.S. Court of Appeals for the Second Circuit (Manhattan).