Many communities rely on Congressional representation to establish lines of communication with the Federal Aviation Administration (“FAA”) because communication with federal agencies in general and FAA particularly is difficult for the public at large. That reliance may have been overly optimistic as can be seen in a response from FAA (“Response”) to a letter from Congressperson Eleanor Holmes Norton representing the Congressional Quiet Skies Caucus (“Caucus”). In the Response, the new Administrator of the FAA betrays a substantial misunderstanding of the agency’s role in its interaction with both airports and the public.

The Caucus was established principally to articulate to the FAA the interests of noise and air quality impacted communities throughout the nation. While the examples used by the Caucus in its letter are substantially oriented toward East Coast concerns, the issues overlap with those of other communities, including the impacts of NextGen, the reorganization of arrival and departure paths at airports based on new technology, which has consolidated flight paths over previously unimpacted communities in the name of “safety” and “efficiency.”

The FAA’s misunderstanding becomes obvious on the first page of its Response, where FAA takes the position that it is powerless to influence the factors that are the primary cause of airport noise, such as numbers of people that want to fly, and goods that must be delivered by air, thus necessitating more air traffic. While that may be true with respect to demand for air travel, it is patently untrue with respect to supply.

Specifically, FAA claims, among other things, that it “does not determine how many runways an airport builds.” Nothing could be further from reality. While the airport may propose various airfield configurations, it is FAA that ultimately decides between them. In fact, Congress has mandated that “[t]he owner or operator [of an airport] will not make or allow any alteration in the airport or any of its facilities if the alteration does not comply with the plan the Secretary approves and the Secretary is of the opinion that the alteration may affect adversely the safety, utility or efficiency of the airport.” 49 U.S.C. § 47107(a)(16)(C) [emphasis added]. Moreover, if the airport operator acts contrary to FAA mandates, the agency may require rehabilitation at the sponsor’s sole expense and require the airport sponsor to “bear all costs of relocating the property or its replacement to a site acceptable to the Secretary and of restoring the property or its replacement to the level of safety, utility, efficiency, and cost of operation that existed before the alteration was made …” 49 U.S.C. § 47107(a)(16)(D). Clearly, therefore, it is totally within FAA’s wheelhouse to determine not only the acceptable number of runways but also their location on the airport property.

This is important because the Secretary has linked the number and configuration of runways to “the number of people who want to fly.” According to FAA, increases in the number, or separation between, runways leads directly to increases in the capacity of airports. “Capacity” is defined as “the throughput rate, i.e. the maximum number of operations that can take place in an hour,” FAA Advisory Circular 150/5060-5, Airport Capacity and Delay. Thus, it is clear that FAA’s preemptive authority over the number and location of airport facilities, including runways, is at least partially determinative of the number of passengers that are able to fly, a direct link to the supply of aircraft and their operations, to satisfy those demands, and the consequent impacts on surrounding communities.

This is but a single exemplar of the fact that FAA’s response to the Congressional Quiet Skies Caucus is not different from its responses to local communities in general, i.e., short on facts and misleading as to governing law. While it contains long descriptions of the problems with such critical issues as “flight path dispersal,” see page 7, the Response is notably short on solutions. Stay tuned for Quiet Skies Caucus comments on FAA’s response.