In a somewhat surprising turn of events, the Federal Aviation Administration (“FAA”), on April 15, 2022, approved the closure of East Hampton Airport, owned and operated by the Town of East Hampton, Long Island, New York. The airport is scheduled for closing on May 17, 2022. 87 Fed.Reg. 22617. FAA’s acquiescence appears surprising because of its long and strong resistance to the closure of airports in general. See, e.g., City of Santa Monica v. Federal Aviation Administration, 631 F.3d 550 (D.C. Cir. 2011). The Town plans to convert the currently public use airport into a new, publicly owned, private use facility.

A November 2020 letter from the FAA to the Town detailed four options to obtain local control of the airport: continued operation as a public use airport, negotiations of an agreement for mandatory restrictions on aircraft operators, permanent closure of the airport, or closure and subsequent reopening of a new, private use airport. A fifth option emerged in subsequent discussions between the Town and the FAA to transition the airport from public to private use without closure.

Reopening the airport under what the FAA calls a “prior permission required” model, the Town will be able to impose and enforce restrictions limiting air traffic and noise. Under this model, the Town could prohibit certain aircraft, or certain commercial or private users, impose noise limits; and restrict takeoffs and landings at certain times of the day. In determining which aircraft could use the airport, the Town could also take into account certain environmental factors. Electric aircraft might be favored, for example, over those that use leaded aviation fuel. As the prior permission classification applies, those who wish to use the airport will first need clearance from the Town, and that permission could be granted, revised, or withdrawn. Should the restrictions allowed under this model not meet community needs, the Town could still opt to close the airport entirely.

Both the process and the result sound interesting and hopeful to noise impacted communities. But don’t jump to any conclusions.

The FAA only granted its permission because the term of the applicable “grant assurances,” contractual obligations incurred by the Town upon taking federal funds for airport improvements, had expired. 39 “grant assurances” obligate the receipt of federal funds, and require that an airport receiving such funds remain open for a minimum period of 20 years. FAA Order 5190.6B, § 4.3, p. 4-2. The exceptions include, but are not limited to, the prohibition on the grant of “exclusive rights” to use the airport to a single aeronautical provider to the exclusion of all others. See, e.g., 49 U.S.C. § 47133.

The reality is that most airports do not decline to accept federal funding for improvements for a period as long as 20 years. If additional federal funding is accepted, the terms of the grant assurances are renewed and run for another 20 years. As long as the term of the relevant grant assurances is still pending, the FAA will not permit, let alone endorse the closure of an airport without significant controversy.