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  ANCA was originally enacted in 1990 for the express purpose of protecting against “uncoordinated and inconsistent restrictions on aviation that could impede the national air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.  
 

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.