FBOs, Fuel Distributors, Have Sued CEH and CA Attorney
General
A coalition of FBOs and fuel distributors who sell leaded
aviation gasoline (avgas) in California have sued the Center for
Environmental Health (CEH) and the Attorney General of the State of
California in response to a notice of an intended lawsuit against
coalition members for supplying and using leaded aviation gasoline,
allegedly in violation of the California Safe Drinking Water &
Toxic Enforcement Act (Prop 65). The National Air Transportation
Association (NATA), which has engaged common counsel with the
coalition to protect the interests of all NATA members, is
supporting this group with facilitation and administrative
services.
Thursday, the coalition asked a U.S. judge to issue an
injunction to stop Prop 65 enforcement actions from proceeding.
According to the complaint, the Prop 65 lawsuits will disrupt
ongoing efforts by the U.S. Federal Aviation Administration (FAA)
and Environmental Protection Agency (EPA), who are working with
industry groups to identify an alternative to leaded fuel that can
be safely and reliably used by piston-powered airplanes. Because
any lawsuit under Prop 65 initiates state enforcement proceedings
in California and can lead to imposition of huge civil penalties,
which would cripple the small businesses who sell avgas, the
complaint seeks immediate relief to protect the rights of coalition
members to sell avgas under federal law and the U.S. Constitution.
Aircraft have used leaded aviation gasoline, under FAA and EPA
regulations, for decades.
The legal actions come on the heels of the May 9, 2011 "notices
of violation" issued to a large number of California aviation fuel
suppliers and airport FBOs, claiming they failed to warn residents
near airports that aircraft emissions contain lead and "discharged"
lead through engine emissions on take-off and landing. In the
Notices CEH proposes as "remedies" a complete bar on the sale of
leaded avgas, clean up of allegedly contaminated drinking water
sources, and the payment of substantial civil penalties -- plus
CEH's attorneys' fees.
"The CEH litigation under California Proposition 65 threatens to
interfere with obvious federal interests in aviation safety and
aircraft engine emissions policy," stated NATA President & CEO
James K. Coyne. "It is imperative that the issues involving the
safe and effective transition to an unleaded aviation gasoline be
addressed in a coordinated way at the federal level, and that the
FAA and EPA play their role as the agencies whose expertise will be
applied through activities that are already well underway."
In addition to NATA's efforts, the group has received
significant support from the General Aviation Manufactures
Association (GAMA), the Experimental Aircraft Association (EAA),
and the Aircraft Owners and Pilots Association (AOPA), all of whom
share a common interest with the coalition in protecting the GA
community from efforts to utilize state laws to block the sale of
avgas in California.
NATA says that the remedies sought in the Prop 65 enforcement
suit would shut down the entire piston-engine aircraft fleet in
California and end all flight training at the named airports, with
a detrimental impact on related economic activity. CEH has claimed
that aircraft operators can freely substitute unleaded automobile
gas for leaded avgas - suggesting a course of action that could put
tens of thousands of aircraft operators and pilots in jeopardy if
they were to use unapproved fuel.
California alone has 254 public-use airports, 219 of which are
general aviation airports. These airports are home to 99,594 pilots
and 37,128 general aviation aircraft that rely upon aviation
gasoline. General aviation is an important economic engine that
accounts for 1.7 million direct and indirect jobs in the state.
The coalition complaint points out that federal law completely
preempts the use of local law such as Proposition 65 to block or
limit the sale of aviation gasoline in California or elsewhere.
According to the complaint, the Federal Aviation Act bars state law
from being used to regulate the routes and services offered by air
taxi and charter airlines, while the federal Clean Air Act bars
states from applying local emission standards to aircraft or
engines. The complaint explains how a state prohibition on the sale
and use of aviation gasoline would undermine the FAA's authority
over safety certification of aircraft and aircraft engines. Only
the FAA may specify what type of fuel may and may not be used by
aircraft.
Currently, no safe alternative exists to replace leaded aviation
gas for the entire piston-powered aircraft fleet. Indeed, the FAA
has observed, "Over 160,000 piston-engine aircraft rely on this
fuel for safe operation. The lead additive in avgas protects piston
engines against damaging detonation (or engine knock) at the higher
power levels required by aircraft. Operation with inadequate fuel
performance can result in engine failure and aircraft
accidents."
Fortunately, significant federal and private resources are being
expended to facilitate a transition away from the necessary use of
lead in aviation gasoline. The FAA, with exclusive oversight for
aviation safety, and the EPA, which oversees environmental
regulation of aircraft emissions, are hard at work with the general
aviation industry - including fuel producers, developers and
distributors, aircraft and engine manufacturers, and consumers - on
the safe transition to an unleaded aviation gasoline for
piston-powered aircraft. This collaboration is being accomplished
through the FAA's Unleaded Avgas Transition Aviation Rulemaking
Committee, which is tasked to address a host of factors including
safety certification, fuel production and distribution, and
environmental and economic concerns. The industry has also filed
comments in an ongoing EPA rulemaking.
Additionally, Congress has expressed a significant interest in
prioritizing federal activities by the FAA and NASA qualifying
unleaded aviation fuel and safe transition to this fuel for the
fleet of piston engine aircraft. The House FAA Reauthorization and
Reform Act of 2011 (H.R. 658) includes a provision directing the
FAA to develop a plan, within 120-days of enactment, containing the
specific research and development objectives for a transition to an
unleaded aviation gas, including consideration of aviation safety,
technical feasibility, and other relevant factors, and the
anticipated timetable for achieving the objectives. The general
aviation community is asking Congress to authorize $2 million
annually over four years in the FAA's research and development
budget for Alternative Fuels for General Aviation, as requested in
the President's budget. This research program will help develop FAA
performance and certification methodologies necessary for
qualification and certification of alternative unleaded aviation
fuels.