On January 13, 2021, the Federal Aviation Administration (“FAA”) published, in the Federal Register, Vol. 86, No. 8, Docket No. FAA-2021-0037, p. 2722, a necessary, if somewhat belated, “summary to the public of the research programs it sponsors . . . that could potentially inform future aircraft noise policy.” While the “spirit” appears willing, the “execution” is weak.

FAA first claims, by way of “background,” that “the number of people living in areas exposed to SIGNIFICANT levels of aircraft noise in the United States has declined from roughly 7 million to just over 400,000 today.” Id., at 2723 [emphasis added]. FAA credits that reduction principally to “phased transition to quieter aircraft;” efforts by local governments to reduce the number of people living in close proximity to airports through planning; sound insulation; and, perhaps most ironically, the introduction of Performance Based Navigation (“PBN”), or RNAV procedures which consolidate flight corridors, thus reducing the NUMBER of persons overflown, while, at the same time, increasing noise for residents under the newly consolidated flight tracks.

FAA’s conclusions are skewed by reliance on outdated assumptions.
First, FAA’s definition of “significant noise” is predicated upon continued reliance on the DNL metric. Under DNL, noise during night hours, from 10 p.m. to 7 a.m. is weighted by an additional 10 decibels (“dB”) for the apparent purpose of expressing community “annoyance” level. Second, FAA continues to rely on sound insulation of noise-impacted homes as a panacea, although, as FAA itself observes, “[w]hile sound insulation reduces indoor noise levels, it does not address concerns about noise interfering with the enjoyment of the outdoors.” Id., at 2723. Finally, FAA reluctantly acknowledges that PBN has led to community concerns resulting from “increased concentration of flights,” Id., a statement some would view as the “understatement of the century”.

To remedy these and other problems, FAA states that it has continued to test the origins of these conclusions. As a beginning, it claims to have implemented new techniques for noise modelling using new noise metrics. As an example, FAA calls out the Aviation Environmental Design Tool (“AEDT”), a comprehensive test strategy that incorporates aircraft emissions testing as well as noise. In addition, FAA claims to be studying supplemental noise metrics, although there is no mention of a supplemental metric already required in California, the Community Noise Equivalent Level (“CNEL”). CNEL adds a 5 dB weighting for noise created during the evening hours from 7 p.m.-10 p.m., which more efficiently represents noise “annoyance” during family evenings and in rural areas. Despite the alleged enhancement of metrics supposedly arising out of FAA’s testing, and the already existing CNEL metric, FAA has already made up its collective mind that “other noise metrics may not provide as complete an understanding of the cumulative noise exposure from an activity around an airport.” Id., at 2727.

Finally, FAA claims that it is also supporting multiple efforts to identify means to abate noise through changes in the way aircraft operate in the airspace over communities. As an illustration of this effort, FAA points to “Voluntary Noise Abatement Departure Procedures” (“NADP”), as well as a re-examination in the PBN contest of the way “to routinely consider noise during flight procedure design,” Id., at 2727. This effort is claimed to include an “exploration of how PBN can better control flight paths and move them away from noise-sensitive areas”, Id., and “how systematic departure flight track dispersion can be implemented to abate noise concerns,” Id., both of which should have been considered before implementation of PBN procedures, thus forestalling needless controversy and multiple legal actions from around the Country.

FAA asks for comments on its various proposals to be submitted by March 15, 2021, focusing on the following issues:

(1) Additional investigation, analysis or research that needs to be done concerning: (a) effects on aircraft noise on individuals and communities; (b) noise modelling and noise metrics; and (c) reduction and abatement of aviation noise;

(2) Factors that have led to increases community annoyance caused by aviation noise since the 1970s; and

(3) Additional categories of investigation, analysis or research that should be undertaken to inform FAA noise policy.

Will FAA rely on the results of this and other research to inform its decisionmaking and change its policies? History is not encouraging but FAA’s solicitation of comments, and potential willingness to listen to the voice of communities is a step in the right direction. Stay tuned for the result after March 15, 2021.