Request By:
Frank R. Metts, Secretary
Department of Transportation
Frankfort, Kentucky 40622
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in answer to your letter of August 14, 1980 concerning airport development projects and the Federal Aviation Administration (FAA). You state that the FAA "wishes to know if Kentucky qualifies to act as a joint lead agency for airport projects under paragraph 1506.2(c) of the Council on Environmental Quality Regulations" .
This regulation states in part:
Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements, unless the agencies are specifically barred from doing so by some other law . . . [S]uch cooperation shall to the fullest extent possible include joint environmental impact statements. In such cases one or more Federal agencies and one or more state or local agencies shall be joint lead agencies.
The issues which must be considered are whether Kentucky has a state "NEPA-like" law with respect to airports and whether there are any Kentucky laws which would bar a state agency from acting as a joint lead agency in airport development projects.
To answer the first question, Kentucky does not have a NEPA-type law which would require state environmental impact statements. This means that Kentucky does not have comparable requirements that would duplicate federal impact statements.
As a result the Kentucky Department of Transportation does not qualify to act as a joint lead agency with the FAA under the criteria of paragraph 1506.2(c) of the CEQ regulations.
The Kentucky Department of Transportation has authority to regulate aviation in the state, KRS chapter 183. KRS 183.024 states in part, "The department of transportation may prescribe such rules and regulations, not inconsistent with law, and may do all things reasonable or necessary to carry out the provisions of this chapter and other statutes relating or incidental to the field of aeronautics." The department specifically has the authority to license airports, KRS 183.090, and to advise other governmental units or boards in developing and operating airports, KRS 183.120.
There do not appear to be any Kentucky laws which would bar the Department of Transportation from participating as a joint lead agency with the FAA in airport development projects if the situation arises. In fact, there are statutes which provide that the department is to work with the federal government in airport development. For example, KRS 183.762 states, "The Kentucky department of transportation, any governmental unit, or the department together with any governmental unit may contract with the federal government in regard to the development of airports under any act of congress providing federal aid to the states in airport development." Further statutes on the subject, especially those dealing with funding of airports, are found at KRS 183.762-183.772; in addition KRS 183.130 provides that the department is the proper state agency to receive financial and other aid from the federal government for the "acquisition, construction, maintenance and operation of airports. . . ."
If you have any further questions, feel free to contact this office.