City of East Hampton May Be "A Day Late and a Dollar Short" in Challenging the Airport Noise and Capacity Act

The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
 

Although its spokesman, Town Supervisor Larry Cantwell, asserts that “with the stroke of a pen, the Appeals Court decision has federalized our airport and stripped us – and the thousands of similarly situated airports – of the ability to exert local control,” in fact, the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”), containing those prohibitions did that long ago.  ANCA was originally enacted in 1990 for the express purpose of protecting against “uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system.”  49 U.S.C. § 47521(2).  It was not, therefore, the Second Circuit, but rather the United States Congress, that preempted local control of airport noise.  

East Hampton, in the long run, therefore, will have only two options for the imposition of the desired curfew.  The first, the agreement with all aircraft operators has apparently already been unsuccessful. The second is the submission of an application to the Secretary of Transportation, the format for which is set forth in 14 C.F.R. Part 161.  That option is both financially onerous and time consuming.  More ominous, no such Part 161 submission has been approved by the Federal Aviation Administration (“FAA”) in the 25 years that the regulation has existed.  
 
In short, the Supreme Court is unlikely to insert itself between the Congress and the local airport proprietor, especially where, as here, the rules are explicitly set forth in ANCA, and the only debate is over the facts (e.g., whether airport operators were sufficiently informed of the East Hampton Airport’s intent, and, in fact, concurred with it).  East Hampton would, therefore, be better served to devote its time and resources to the uphill battle of developing a Part 161 application, and making it defensible enough to be first of its kind in 25 years approved by the FAA.