Even if planes and jets made no noise, emitted nothing harmful, and never crashed, I’d still want to close Santa Monica Airport (SMO). Why? Because the airport and its mile-long runway, which the City owns, should be a public park and cultural facility that everyone can use instead of a privatized facility that benefits only a few users of private planes and jets. For this reason, I haven’t spent a lot of time analyzing technologies that might make the airport a better neighbor by making flying over neighborhoods less objectionable, such as by making aircraft quieter or cleaner. I’ve been more interested in figuring out how to close the airport to build the park.

As we know, however, closing SMO is complicated, because of the regulatory powers of the Federal Aviation Administration (FAA), not mentioned a tangled legal history. Briefly put, the City’s position is that as of July 1 it will have the right to close SMO, but proving that in court is difficult. If the City simply tries to close SMO, or does something the FAA considers equivalent to closing it, the FAA will likely get an injunction freezing the status quo, and begin its own administrative proceedings, where it has all the advantages, to determine the City’s rights.

The City wants the issue adjudicated in federal court, where the playing field will be more level. For that purpose the City brought a case in federal court in 2013 seeking a “declaration” of what its rights are. The FAA, not eager to have an independent federal judge decide the issue, got the case dismissed on procedural grounds. The question whether the City can get a decision from a federal district judge is now being decided in the Ninth Circuit Court of Appeals, with a decision not expected until 2016.

In the meantime, the City Council in March gave direction to staff to take various actions after July 1 designed to limit impacts of aviation uses at SMO and to enhance non-aviation uses—notably by converting twelve acres currently being used for aircraft tie-downs into parkland and by allowing non-aviation uses on the south side of the airport to negotiate longer term leases for the use of city-owned properties.

One thing the City Council did not do was follow a recommendation from the Airport Commission to add limits on aircraft emissions to leases to aviation businesses. The council followed the advice of City Attorney Marsha Moutrie, who gave her office’s opinion that federal legislation preempted any action the City would take regarding emissions. The commission and other supporters of emissions controls have, however, made the counter-argument that provisions in the City’s 1984 settlement agreement with the FAA allow the City to regulate emissions if the City acts before the 1984 agreement expires on July 1.

Now, however, City Councilmember Terry O’Day has put the issue back on the council’s agenda: he’s added an item for tomorrow night’s council meeting requesting consideration of an ordinance and leasing standards that would limit allowable emissions of air pollutants from aircraft and other sources at SMO.

I am a lawyer, but I’m not going to pretend to know enough about federal preemption law and the specific laws applicable to aviation to venture an opinion about who is right on the preemption issue. However, I’m not surprised O’Day is bringing this up.

O’Day is a veteran of the environmental movement. I remember him telling me, during the election campaign in 2012, before the City had decided on the bold move of suing the FAA in federal court, that he thought that pollution controls, which have greatly expanded in importance since the City battled the FAA in 1984, could be the City’s ultimate card to play against the FAA. Environmental science has shown how pollutants in the air are more dangerous than previously thought. As O’Day has reminded me, the need to reduce the negative health impacts of air pollution is what gave the environmental movement the ammunition it needed to begin to force the clean up the ports of Los Angeles and Long Beach.

Again, sorry, no opinions here on what can or should be done. Like a lot of people I’ll be listening to the discussion. If I can, I’ll try to sort things out in a future blog.

• • •

Speaking of the airport, and battles over the airport, readers will probably recall that after the aviation industry filed its initiative (ultimately called Measure D on the 2014 ballot) to take control of SMO away from the City Council (and for all practical purposes preserve the status quo there forever), a group of eleven Santa Monica residents went to court to try to prevent the initiative from reaching the ballot.

It was a well-motivated move, but one that ultimately foundered because it turns out that it’s near impossible to prevent a measure with enough signatures from getting on a ballot in California. Even worse, a judge ordered the plaintiffs to pay $31,525 to reimburse some of the aviation industry’s legal fees, on the grounds that the lawsuit prejudiced the industry’s rights to free speech. This is a hardship for many of the plaintiffs, and for a couple of months a campaign has been underway to raise money to help them pay the bill. (As it happened, of course, Measure D lost big at the polls (after the aviation industry spent almost $1 million exercising its free speech rights!), but that doesn’t help the plaintiffs out—they are still on the hook.)

It now turns out you can help out the plaintiffs and get some fine art for your walls.

On May 3 the Santa Monica Eleven launched an online art auction that runs two weeks—until May 17.

Renowned artists, painters, photographers, and sculptors from Santa Monica, Venice and London, have furnished artworks for the auction. These works include Laddie John Dill’s Ariel Perspective, Gregg Chadwick’s The Hum of Time and Steve Bernstein’s The Roofs of Rye, as well as cartoons from award-winning satirist Tony Peyser. And a lot of other good stuff at prices for any art collector’s budget.

To view the art and take part, click here.

Remember, though, the auction closes this Sunday, May 17.

To donate to the Santa Monica Eleven directly click here.

Thanks for reading.