In a surprising climax to the long controversy concerning helicopter flights and attendant noise impacts on the North Shore communities of New York’s Suffolk County, the FAA, on July 6, issued a “Final Rule,” making mandatory the current voluntary flight path for helicopters one mile offshore, but allowing the “Final Rule” to sunset on August 6, 2014, two years from the effective date, “unless the FAA determines a permanent rule is merited.”  The route commences 20 miles northeast of LaGuardia, near Huntington, New York, and remains approximately one mile offshore until reaching Orient Point, near the eastern end of Long Island, with deviations allowed for safety reasons, and to allow helicopters to transit over land to reach their ultimate destinations. 

The FAA discloses that its decision to promulgate the original voluntary rule arose from the numerous complaints of noise from helicopter overflights brought to its attention by Senator Charles Schumer of New York and Representative Tim Bishop of Long Island’s North Shore in October, 2007.  The subsequent mandatory rule apparently resulted from continued political pressure by residents who are “unbearably and negatively” impacted, particularly during the summer months when the number of helicopters, as well as deviations from the voluntary routing, seem to increase dramatically.  The real surprises in the “Final Rule,” however, are FAA’s rationale for: (1) making the route mandatory, a rationale which seems to apply equally to currently voluntarily procedures at other airports; and (2) the Rule’s sunset provision. 

On the need for a mandatory rule, FAA asserts that such a rule will “help further decrease levels of noise that have already been voluntarily achieved.”  In support, FAA offers that its noise analysis indicates not too surprisingly that, even though cumulative noise levels may be low when averaged across the year (as low as 45 dB DNL), helicopter overflights could be more disturbing on certain days when they are experienced several times over a period of several hours or the course of a day.  FAA then claims that maximizing the utilization of the existing voluntary route by making it mandatory will somehow secure and improve the decreased levels of noise that have been voluntarily achieved. 

Of course, many of the 900 commenters, including the Town of East Hampton, disagree that significant improvement in noise levels have already been achieved by the voluntary rule, and further object to FAA’s refusal to conduct environmental review of the new procedure, instead invoking its power under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and FAA Order 1050.1E, § 312f to categorically exclude the new rule from environmental review. 

Perhaps the most surprising aspect of FAA’s rationale, however, is that it would apply equally to current voluntary noise abatement procedures at airports such as O’Hare (e.g., the “Fly Quiet Rule”) which FAA has, up to now, refused to consider upgrading to a mandatory status. 

Finally, FAA took the public by surprise by including in the “Final Rule” a sunset provision that FAA had, apparently, not contemplated when it published the Draft Rule.  Under the sunset provision, the “Final Rule” will independently expire “if the FAA determines there is no meaningful improvement in the effect of helicopter noise on quality of life . . .”  However, the notice is not specific to the metric FAA will use to define “meaningful improvement,” when it contends that noise is already as low as 45 dB DNL in affected areas.  If the only indicator of adverse impact leading to the promulgation of the Rule was public complaints, the only conclusion as to the indicator for “meaningful improvement” is a reduction in public complaints.  Thus, the sunset provision constitutes a canny way for a public agency to discourage public and political pressure.  Whether making the rule mandatory while, of necessity, still permitting helicopter overflights over land will accomplish FAA’s ultimate purpose of further reducing noise, or simply silence some complaints, remains to be seen.