FAA rules avgas ban violated grant assurances

The long-awaited decision in the complaint filed under 14 CFR Part 16 (federal airport compliance regulations) found that the 2022 prohibition on 100LL aviation fuel imposed by Santa Clara County in California violated the county's federal grant obligations, which the county agreed to when it received, among other federal funds, approximately $6.8 million in federal airport development assistance between 1983 and 2011.

The 26-page decision (with additional pages of exhibit references attached) orders the county to present a corrective action plan within 30 days, and further directs the county to include in that plan elimination of the countywide prohibition of the acquisition, storage, and sale of 100LL fuel at the two county-run airports, Reid-Hillview of Santa Clara County Airport, and San Martin Airport. The agency also requires the county to eliminate the "prohibited exclusive right” the county created for itself by only selling Swift Fuels 94UL and General Aviation Modifications Inc. G100UL as a means to prohibit the use of 100LL, “favoring one class of aircraft (those that can safely use 94UL and G100UL) to the detriment of another class of aircraft (those that cannot safely use 94UL and G100UL)."

The decision, which the county has 30 days to appeal, makes it clear that grant-obligated airports across the country do not have the right to prohibit the sale or use of any FAA-authorized aviation fuel, and that ordinances such as the 100LL ban imposed by Santa Clara County can in themselves violate federal grant assurances. This decision is consistent with the FAA’s 2022 letter to city officials in Santa Monica, California, stating that "an outright ban or restriction on the sale or use of 100LL would be contrary to both the Settlement Agreement and Grant Assurance 22, Economic-Non-Discrimination," and the agency's 2023 letter to the mayor of Superior, Colorado, stating, “a ban or restriction on the sale or use of 100LL (Avgas) at a federally obligated airport is inconsistent with Grant Assurance 22, Economic Nondiscrimination.”

Local pilots and aviation businesses affected by the fuel ban joined AOPA in filing the complaint in 2022, raising a number of safety issues created by the avgas ban, as well as alleging discrimination. The county fought unsuccessfully to dismiss the complaint, a move AOPA and co-complainants opposed. Santa Clara County filed a variety of motions that sought to delay the decision, and the FAA granted itself numerous extensions to consider the matter, all of which delayed the decision by about a year.

Ultimately, after reviewing dozens of motions and exhibits spanning hundreds of pages, the FAA agreed with the complainants on three of five main issues raised, dismissing two for lack of evidence. (Local noncommercial operators never sought a permit to self-fuel with 100LL, and the argument that the avgas ban led to a loss of fuel flowage revenue to the airport was not sufficiently supported by evidence.)

Based on the FAA director's determination in this case, there are several significant implications for airports across the nation that are subject to federal grant assurance obligations through their acceptance of federal funding:

1. Limits on fuel type restrictions: Airports cannot take exclusive control of fuel sales (exercise their “proprietary exclusive rights”) as a means to prohibit the sale, distribution, or use of FAA-authorized aviation fuels (like 100LL). This establishes that airports must allow reasonable access to all types of FAA-authorized aviation fuels.
2. Exclusive rights limitations: The decision clarifies that an airport's proprietary exclusive right to provide certain aeronautical services (like fuel sales) is limited only to those specific services the airport actually provides, and cannot be used to prohibit services the airport chooses not to provide (like selling other fuel types).
3. Nondiscrimination requirements: The determination reinforces that airports must make facilities available "on reasonable and not unjustly [discriminatory] terms to all types, kinds, and classes of aeronautical activities," which includes accommodating aircraft that require specific fuel types for safe operation.
4. Environmental considerations balanced with obligations: While airport sponsors like Santa Clara County may have environmental concerns about leaded aviation fuel, they cannot exercise their municipal power to effectuate policies unrelated to the operation of the airport without regard to federal grant obligations that the airport sponsor is bound by in the operation of the airport.
5. Self-fueling permit requirements: While airports can implement reasonable rules and standards for self-fueling operations, these cannot be so burdensome as to effectively prevent self-fueling with specific fuel types.

The case sends an important message that could affect how airports nationwide manage fuel availability during the ongoing transition to unleaded aviation fuels. It signals that while the FAA supports the transition to unleaded aviation fuel, airports cannot unilaterally ban leaded fuel before viable alternatives are available for airport users, particularly when such prohibitions would adversely affect a portion of the general aviation fleet that still requires 100LL fuel to operate safely.

It is unclear whether the county, having fought the Part 16 complaint for more than two years, will allow avgas to resume flowing into its own tanks at its two airports or appeal the decision. Regardless, it cannot ban others from self-fueling their aircraft or offering avgas for sale on the airport. A loss on appeal and refusal to comply with the FAA order to end the 100LL ban would render the county ineligible for federal airport improvement grants, which the county has not pursued since 2010—in large part, if not entirely, because accepting these grants obligates any airport owner to comply with specific requirements. The March 24 decision affirms that those obligations include not standing in the way of the sale of any approved aviation fuels.