While its zeal to protect its citizens from the noise and emissions of aircraft arriving and departing Santa Monica Airport is commendable and understandable, the Santa Monica Airport Commission’s method is questionable.  That is because its recently proposed proportional limitation on aircraft operations (i.e., a limit on future operations at some percent of current operations) appears to be contrary to Federal law.

More specifically, in a Memorandum of on or about August 2, 2012, the Airport Commission proposed a hypothetical restriction whereby “the number of daily operations would be limited to [approximately] 53% of the daily operations from prior years . . . For example, if there were 100 operations on June 6, 2012, then no more than 53 operations would be allowed on June 6, 2013.”  The Vice Chairman of the Airport Commission argues that, because the proposed restriction does not discriminate between aircraft types (as a prior proposed Santa Monica ordinance limiting operations by jet aircraft did), it would withstand judicial scrutiny.  The Commission has apparently forgotten about the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq., (“ANCA”), and its prohibition on the imposition of noise or access restrictions without approval by the Federal Aviation Administration (“FAA”). 
 

In enacting ANCA, Congress found that, among other things, “(2) community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system; [and] (3) a noise policy must be carried out at the national level . . .,” ANCA § 47521(2) and (3).  To implement ANCA’s purpose of creating such a coordinated noise policy at the Federal level, Congress mandated that: “Except as provided in subsection (d) of this section, an airport noise or access restriction on the operation of stage 3 aircraft not in effect on October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation . . .  Restrictions to which this paragraph applies include — (B) a restriction on the total number of stage 3 aircraft operations; . . . (E) any other restriction on stage 3 aircraft.”  ANCA § 47524(c)(1)(B) and (E).  Restrictions on stage 2 aircraft (the noisiest aircraft in operation in 1990) are easier to enact and require only “(1) an analysis of the anticipated or actual costs and benefits of the existing or proposed restriction; (2) a description of alternative restrictions; (3) a description of the alternative measures considered that do not involve aircraft restrictions; and (4) a comparison of the costs and benefits of the alternative measures to the costs and benefits of the proposed restriction.”  ANCA § 47524(b)(1)-(4).  These restrictions have been interpreted to apply to general, as well as commercial, aircraft.

The Act also mandates that stage 2 aircraft over 75,000 pounds then in operation be phased out by December 31, 1999, and none be added to the fleet (see, e.g., ANCA § 47529) (“Nonaddition rule”).  The only exception to that mandate was a temporary one for stage 2 aircraft under 75,000 pounds (i.e., principally General Aviation).  Even that exception was limited, however, where the Secretary retained the discretion to “conduct a study and decide on the application of section 47524(A)-(D)” to stage 2 aircraft under 75,000 pounds at a later date.  ANCA § 47525.  The Secretary has now made that determination and applied the statute to the previously exempted stage 2 aircraft under 75,000 pounds (most of which have already exceeded their useful lives in any event), in the FAA Modernization and Reform Act of 2012 (“FMRA”). 

In summary, ANCA seems to say that neither Santa Monica nor any other airport can limit the operations of stage 3 aircraft, commercial or general aviation, without Federal approval.  The penalty is loss of FAA funding.  ANCA § 47526.  Granted there is some ambiguity in certain sections of ANCA with respect to applicability to private stage 3 aircraft (see § 47528 [“Prohibition on operating certain aircraft not complying with stage 3 noise levels”]).  Moreover, one or more of the exemptions set forth in ANCA § 47524(d) may apply to Santa Monica Airport.  However, the Airport Commissioners’ Memorandum did not rely upon those potentially applicable exemptions. 

Therefore, despite the Commission’s best intentions, absent an in-depth analysis of ANCA’s applicability not yet in evidence, the Airport Commission’s optimism concerning the sustainability of its proposal, and, ultimately, its ability to withstand administrative and/or judicial scrutiny is in serious question.