FAA Supports the Right of Airport Sponsor to Use Airport Funds in Defense of Locally Enacted Noise Restrictions

In a somewhat ironic twist on the Federal Aviation Administration’s (“FAA”) usual position, on March 26, 2018, FAA ruled in favor of the Town of East Hampton, New York (“Town”), proprietor of the East Hampton Airport, in a challenge by the National Business Aviation Association (“NBAA”) under FAA regulation 14 C.F.R. Part 16, to the expenditure of airport revenues in defense of the Town’s self-imposed airport noise and access restrictions.

The origin of that determination is equally anomalous.  In or about 2015, the Town enacted three local laws limiting aircraft noise at the airport, including restriction on: (1) access by “noisy” aircraft to only one arrival and departure per week; (2) mandatory nighttime curfew from 11:00 p.m. to 7:00 a.m.; and (3) an extended curfew from 8:00 p.m. to 9:00 a.m. on “noisy” aircraft.  
 
These local restrictions, however, directly contravene federal law set forth in the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”) which has, since 1990, affirmatively preempted local laws which impose: “(A) a restriction on noise levels generated on either a single event or cumulative basis; . . . (D) a restriction on hours of operation.”  49 U.S.C. § 47524(c)(A) and (D).  Predictably, East Hampton’s local regulations were successfully challenged in the U.S. Court of Appeals for the Second Circuit.  Ultimately, the Petition for Writ of Certiorari, seeking to overturn the Second Circuit’s determination, brought by the Town in the United States Supreme Court, was met with an equal lack of success, despite the Town’s powerful ally, the City of New York.  
 
Apparently, in a last ditch attempt to thwart any future initiatives to enact similar restrictions, the NBAA brought its fight to the FAA.  The gravamen of NBAA’s challenge was the Town’s alleged violation of its contractual obligation (as airport operator) to FAA pursuant to 49 U.S.C. § 47107(k), prohibiting “illegal diversion of airport revenue.”  That section includes, among other things, “(A) direct payments or indirect payments, other than payments reflecting the value of services and facilities provided to the airport.”  49 U.S.C. § 47107(k)(2)(A), see also 49 U.S.C. § 47017(b).  
 
FAA, casting aside its usual cloak of federal government prerogative, handed the Town its only win by finding that the Town did not improperly use federal funds to “incur legal costs by enacting management or operational actions which may ultimately be found to be contrary to the airport’s federal obligations, but that is part of operation of an airport.”  
 
In the final analysis, this determination is all the more shocking in that the Town’s actions betray a surprising indifference to the concept of federal preemption, set forth with notable particularity in the Federal Aviation Act.  See 49 U.S.C. § 40103(a)(1) [“The United States Government has exclusive sovereignty of airspace of the United States.”].  This assumption of “sovereignty” over the national airspace extends to the imposition of measures to mitigate noise.  See 49 U.S.C. § 47521(3) [“a noise policy must be carried out at the national level”]; see also 49 U.S.C. § 47524(a) [“The national aviation noise policy established under section 47523 . . . shall provide for establishing by regulation a national program for reviewing airport noise and access restrictions . . .”].  Ultimately, after the full, and unsuccessful adjudication, the Town acknowledged that the only route to implementing its designated restrictions, given the legislative program enacted by Congress, is to submit its chosen restrictions, either for unanimous approval by “all aircraft operators” at the airport, 49 U.S.C. § 47524(c)(1), or by submitting them to FAA for approval, Id., in accordance with FAA’s regulatory guidance set forth in FAA regulation, 14 C.F.R. Part 161.
 
In short, the resolution of the Town’s dispute implicates both good news and bad for communities that seek relief from airport noise.  The good news is that FAA will support the expenditure of federal funds by airport operators who seek to support the citizens of their communities by defending legally cognizable regulations imposed on aircraft operators.  The bad news is that such regulation cannot be unilaterally implemented by local regulation.  In the final analysis, a complete understanding of this complex web of multi-jurisdictional regulation is critical to both the operation of airports and the achievement of relief from their impacts.  
 

 

Town of East Hampton Explores Limits of Aircraft Noise Regulation

In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  

Regulations include an 11:00 p.m. to 7:00 a.m. curfew, year round, and 8:00 p.m. to 9:00 a.m., for so-called “noisy” aircraft.  “Noisy” aircraft are defined as aircraft (fixed-wing or helicopter) with Effective Perceived Noise in Decibels (“EPNDB”) approach levels of 91 decibels or greater.  Further, aircraft denominated as “noisy,” will be allowed one take-off and landing per week between May and September.  The Board is scheduled to decide on fines and penalties at its meeting on May 7, 2015.

Not surprisingly, pro-airport groups such as Friends of East Hampton Airport (“Friends”), consisting of, among others, several aviation businesses on the Airport, are displeased with the Board’s decision.  In a graphic demonstration of their disagreement, on April 21, 2015, Friends filed suit in Federal District Court for the Eastern District of New York, challenging the Board’s “authority to promulgate noise or access restrictions that conflict with Federal law and policy.”  Friends base their claim principally on the waiver by the Federal Aviation Administration (“FAA”) of contractual obligations incurred by the Airport when it accepted Federal funding for Airport improvements (“Grant Assurances”).  49 U.S.C. § 47107.  Grant Assurance No. 9, for example, prohibits Airport operators from “discriminat[ing] unjustly between categories and classes of aircraft.”  The FAA, which would normally enforce the Grant Assurances by, among other mechanisms, withholding Federal funds, or even “clawing back” funds already allocated, has apparently agreed that East Hampton’s Grant Assurance obligations expired in 2014.  Friends, on the other hand, take the position that FAA has no authority to waive the Grant Assurances which, by Friends’ calculation, do not expire until 2021.
 
Both sides, however, appear to miss the point.  In 1990, Congress established a higher authority over airport noise and access than even the Grant Assurances, i.e., the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., (“ANCA”).  ANCA gives FAA preemptive authority over the setting of noise levels and imposition of noise and capacity restrictions at airports.  See 49 U.S.C. § 47524(c).  While a limited number of specific exemptions from ANCA do exist, see 49 U.S.C. § 47524(d), the restrictions imposed by East Hampton do not appear to fall within any of those specified exemptions, nor has the Board to date asserted that they do.  Consequently, it further appears that, even if FAA could establish that it properly waived Grant Assurance compliance, the jury remains out as to whether FAA may construe its regulatory function to include an additional waiver of Congress’ express terms and intent as set forth in ANCA, to preempt a “patchwork of local regulations” restricting airport noise and access.

East Hampton Airport Still Subject to FAA Oversight of Noise Restrictions Despite Absence of FAA Funding Constraints

An article of December 23, 2014 in a local East Hampton, New York newspaper, now circulated to a wider audience throughout the nation, gives the impression that, upon expiration of its contractual relationship on January 1, 2015, “East Hampton Town will be free of Federal Aviation Administration oversight and able to set access restrictions at the East Hampton Airport, essentially opening the door for relief from often loud, and sometimes rattling, aircraft noise.”  The article apparently misapprehends, and consequently, vastly overstates the impact of the expiration of the town’s contractual commitments to FAA, in return for funding of airport improvements.  The fact is that, with or without the constraints of such contractual commitments or “grant assurances,” the application of noise and access restrictions will depend entirely upon FAA’s determination concerning the applicability of a parallel set of constraints set forth in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), which, in turn, will depend on the noise levels of the specific types of aircraft the airport wishes to control or eliminate.  

The newspaper article errs in at least two ways.
 

On the one hand, the article fails to grasp that the imposition of FAA’s authority to control noise and access restrictions at any airport does not arise solely out of the constraints of the required grant assurances set forth in 49 U.S.C. § 47107.  Rather, that power is derived from ANCA’s wholly separate statutory provisions.  In fact, the courts have long recognized that  

“On its face, [ANCA] gives the FAA considerably more power than it had when reviewing an airport operator’s Stage 3 restriction at the grant stage.  For one thing, the Stage 3 restriction cannot go into effect without the FAA’s say-so.  For another thing, [ANCA’s] subsection (c)’s requirement of FAA approval is not tied to grants; grants or not, no airport operator can impose a Stage 3 restriction unless the FAA gives its approval.”  

City of Naples Airport Authority v. Federal Aviation Administration, 409 F.3d 431, 432 (D.C. Cir. 2005).  

On the other hand, the newspaper article’s global conclusion fails to articulate the differences in FAA’s authority applicable to aircraft of differing noise levels.  In the case of East Hampton, much of the local unrest arises out of helicopter overflights from John F. Kennedy International Airport (“JFK”) to the beach cities on the far reaches of Long Island, a longtime summer vacation mecca for overcrowded New Yorkers.  Helicopters are generally categorized under 14 C.F.R. Part 36(h)(3) and (4) (“Federal Aviation Regulation” or “FAR”), the ANCA implementing regulations, as no quieter than “Stage 2” noise levels.  FAA’s jurisdiction over the imposition of noise and access restrictions on Stage 2 aircraft, 49 U.S.C. § 47524(b), is substantially less stringent than that applicable to its quieter cousin, Stage 3 aircraft, under 49 U.S.C. § 47524(c).  Restrictions on Stage 3 operations, unlike those on Stage 2 aircraft, including curfews, or restriction on hours of operation, and bans on certain types of aircraft, must be approved by FAA in accordance with six extremely restrictive conditions:  
“(A) the restriction is reasonable, nonarbitrary, and nondiscriminatory;  
 
 (B) the restriction does not create an unreasonable burden on interstate or foreign commerce;  
 
 (C) the restriction is not inconsistent with maintaining the safe and efficient use of the navigable airspace;  
 
 (D) the restriction does not conflict with a law or regulation of the United States;  
 
 (E) an adequate opportunity has been provided for public comment on the restriction; and  
 
 (F) the restriction does not create an unreasonable burden on the national aviation system.”
Therefore, if, as indicated in the newspaper article, the focus of the town’s efforts is the imposition of restrictions on Stage 2 helicopters, it is possible that such a restriction might be implemented where, as here, it is imposed after compliance with the conditions set forth in 49 U.S.C. § 47524(b) including a study of the economic impact of the regulation.  If, however, the airport were to seek a more general set of restrictions, such as curfews and/or bans of certain types of aircraft, encompassing Stage 3 as well as Stage 2 aircraft, as the article implies, then the likelihood of success is slim to none.  In fact, only weeks ago, FAA rejected a restriction on Stage 3 operations between 12:00 midnight and 6:00 a.m. at LAX which had been in effect informally for more than 15 years.  In short, because of the lack of specificity and clarity of this newspaper article, it is ill-advised for any jurisdiction or impacted organization to rely on its discussion as a panacea for its own problems.  
 

One Community Gets Relief from Aircraft Noise

In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator.  Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).   

The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport.  The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
 

Since, and partially as a result of, the 1986 settlement and the restrictions it contained, the United States Congress enacted the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521-45733 (“ANCA”).  While ANCA clearly expressed the intent of Congress to preempt the imposition of local airport noise restrictions (“noise policy must be carried out at the national level,” 49 U.S.C. § 47521(3)), it provides two avenues to circumvent that comprehensive preemption.  First, ANCA provides seven express exceptions under which the prohibition on local enactment of airport noise restrictions does not apply.  49 U.S.C. § 47524(d).  The extension of the JWA noise restrictions qualifies under 49 U.S.C. § 47524(d)(4), as “a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety.”   

However, even where an existing or planned local restriction does not fit neatly into any one of the specific categories of exception, ANCA provides for a process whereby a proposed restriction may either: (a) be agreed to by the airport proprietor and all aircraft operators (i.e., airlines); or (b) may be submitted to the Secretary of Transportation, through his/her designee, the Administrator of the Federal Aviation Administration (“FAA”), for approval.  49 U.S.C. § 47524(c).  
 
The standards of review specified in the statute for application by the Secretary are admittedly both vague and draconian.  See, e.g., 49 U.S.C. § 47524(c)(2)(B) [“the restriction does not create an unreasonable burden on interstate or foreign commerce”].  Nevertheless, in some rare instances, such as Los Angeles International Airport’s nighttime over-ocean arrival and departure procedures, which is a local restriction long in effect, and, because of fewer night operations, not uniquely burdensome, the restriction may be able to meet ANCA’s difficult standard.  
 
In short, the currently required process under ANCA, and its implementing regulation, 14 C.F.R. Part 161, for approval of airport noise and access restrictions may not be a guarantee of success, but it is a dramatic illustration of the ancient adage, “if you don’t ask, you don’t get.”