The Honorable Ray LaHood
U. S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590
The Honorable Randy Babbitt
Federal Aviation Administration
800 Independence Avenue, SW
Washington, DC 20591
The Honorable Lisa Jackson
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
RE: August 25, 2011 letter from California Deputy Attorney General on Proposition 65 and Avgas
Dear Secretary LaHood, Administrator Babbitt and Administrator Jackson:
The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before the Congress, federal agencies and state governments. NATA's over 2,000 member companies own, operate and service aircraft and provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry, providing services to the general public, airlines, general aviation and the military.
I am writing in response to the August 25, 2011 letter from the California Attorney General’s office. In that letter, Deputy Attorney General Susan Fiering purports to clarify several issues relating to the threat of suit by the Center for Environmental Health (CEH) under California’s Proposition 65, by which CEH seeks to regulate the sale, use and distribution of leaded aviation gasoline (avgas) in California. She states that her office has no plans to file a suit against our members based upon CEH’s allegations that our members have violated Proposition 65. She then points out that CEH has since withdrawn the allegation in its original Notices of Violation (NOVs) that the use of avgas violates the Prop 65 discharge prohibition, and claims that the amended NOVs are now focused on the Prop 65 warning requirement. According to the letter, even if its lawsuit is eventually successful, “avgas could continue to be sold in California.”
For several reasons, I take strong exception to Ms. Fiering’s characterization of the issues here.
First, the state attorney general is hardly a neutral observer. Ms. Fiering fails to disclose that her office has vigorously opposed our effort to obtain a federal court ruling even on whether the Prop 65 warning requirement is preempted by federal law. Just last week, the state attorney general filed a brief seeking dismissal of our entire complaint – including our claim for declaratory relief that federal law does not allow California to regulate the sale of avgas by requiring warnings to persons traveling through public use airports. Ms. Fiering also fails to disclose that her office will receive 75% of any penalties imposed on our members should CEH prevail in its threatened Proposition 65 lawsuit. It is obviously in Ms. Fiering’s interest, therefore, to forestall the United States government from expressing its independent position in this litigation.
Second, while CEH deleted the discharge claim from its amended NOV, a cover letter to the California fixed base operators, avgas producers and distributers named in the NOV reserves the right to reassert these allegations at a later date. The withdrawal of the discharge claim represents little more than legal maneuvering to prevent the court from reviewing our request for declaratory relief. With CEH able to reassert those claims at any moment (presumably as soon as the federal court accepts their arguments and CEH files in state court), the continued availability of avgas in California still remains in grave doubt.
Third, CEH still seeks to curtail the sale of avgas in California. Its proposed “resolution” of the impending lawsuit against our members provides a Hobson’s choice: pay millions in back penalties for “failure to warn” of the supposed danger of lead emissions and either stop selling fuel to piston aircraft operators (which requires relief from Federal Aviation Administration (FAA)-required minimum standards for airport fuel sellers) or warn millions of passengers who pass through and residents who live nearby California airports. Given the litigation climate in California, mass warnings will inevitably prompt spurious tort claims by persons claiming exposure to lead. Our members are small businesses that can’t afford to defend state court litigation over conduct that is perfectly lawful under prevailing federal regulation.
Our national airspace system is one of this nation’s great achievements. Our utilization of aircraft for economic growth is unmatched anywhere in the world. A key reason for this success is that the regulations and laws governing aviation are set by national policy, and individual states and localities are not permitted to impose additional rules and regulations that interfere with that policy. Despite Ms. Fiering’s opinion, the bottom line is this: The availability of an FAA-approved aviation fuel is under serious threat in California. For that reason, and the others expressed by several members of Congress and in our formal complaint filed in federal court, I respectfully request the Department of Transportation, Federal Aviation Administration and U.S. Environmental Protection Agency to weigh in on this issue by means of an amicus brief or statement of interest that supports our request for declaratory relief.
James K. Coyne
President and CEO
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