Airport Noise and Capacity Act (ANCA)

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On June 28, 2024, the United States Supreme Court sent a long, cold shiver through the ranks of Federal agencies in its landmark decision in the case of Loper Bright v. Raimundo, No. 22-451. In that decision, the Court defied the long-accepted principal of “Judicial Deference” to the challenged decisions of Federal agencies to which…

            As if it didn’t have enough to do, the Federal Aviation Administration (“FAA”) is now proposing to expand the definition of “Aeronautical Activities”, which currently includes “any activity that involves, makes possible, is required for the operation of an aircraft/vehicle, or that contributes to, is required for, the safety of such operations” FAA Order 5190.6B…

            On June 13, 2023, a bipartisan Committee of the United States Senate jointly proposed legislation, S. 1939, to amend the Federal Aviation Act, 49 U.S.C. Section 40101 et. seq., the stated purpose of which legislation is to “authorize appropriations for the Federal Aviation Administration for fiscal years 2024 through 2028, and for other purposes.”…

It appears that some members of Congress have not given up the fight to bring relief from airport noise impacts to their constituents. Since the beginning of August, 2021, at least eight (8) “Aviation Noise Bills” have been introduced in an attempt to lessen the burden on some communities from aircraft overflight, particularly in the wake of implementation of the Federal Aviation Administration’s (“FAA”) NextGen initiative, which resulted, in many cases, in the consolidation of flight paths, often over communities not previously overflown at all, thus also increasing noise over those and other communities.

Several of these legislative efforts are particularly notable, some for being remarkably ambitious, and others for being wish lists, without a strong chance for passage.Continue Reading Congress Continues to Search for Relief From Airport Noise Impacts

The Federal Aviation Administration (“FAA”) Reauthorization Act of 2018 (“Act”), passed by Congress on October 3, 2018, devotes an entire section, Title 1, Authorizations, subtitle D, to “Airport Noise and Environmental Streamlining.” Among the 22 provisions enacted by the subtitle, at least 12 deal directly or indirectly with aircraft noise. These provisions almost exclusively require “studies,” “research,” “consideration,” and “reports,” and notably lack, with only three exceptions, any mandate for substantive action.
Continue Reading Congress Provides for Numerous Noise Studies in 2018 FAA Reauthorization Act

In a somewhat ironic twist on the Federal Aviation Administration’s (“FAA”) usual position, on March 26, 2018, FAA ruled in favor of the Town of East Hampton, New York (“Town”), proprietor of the East Hampton Airport, in a challenge by the National Business Aviation Association (“NBAA”) under FAA regulation 14 C.F.R. Part 16, to the expenditure of airport revenues in defense of the Town’s self-imposed airport noise and access restrictions.

The origin of that determination is equally anomalous.  In or about 2015, the Town enacted three local laws limiting aircraft noise at the airport, including restriction on: (1) access by “noisy” aircraft to only one arrival and departure per week; (2) mandatory nighttime curfew from 11:00 p.m. to 7:00 a.m.; and (3) an extended curfew from 8:00 p.m. to 9:00 a.m. on “noisy” aircraft.  
 
These local restrictions, however, directly contravene federal law set forth in the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”) which has, since 1990, affirmatively preempted local laws which impose: “(A) a restriction on noise levels generated on either a single event or cumulative basis; . . . (D) a restriction on hours of operation.”  49 U.S.C. § 47524(c)(A) and (D).  Predictably, East Hampton’s local regulations were successfully challenged in the U.S. Court of Appeals for the Second Circuit.  Ultimately, the Petition for Writ of Certiorari, seeking to overturn the Second Circuit’s determination, brought by the Town in the United States Supreme Court, was met with an equal lack of success, despite the Town’s powerful ally, the City of New York.  
 
Apparently, in a last ditch attempt to thwart any future initiatives to enact similar restrictions, the NBAA brought its fight to the FAA.  The gravamen of NBAA’s challenge was the Town’s alleged violation of its contractual obligation (as airport operator) to FAA pursuant to 49 U.S.C. § 47107(k), prohibiting “illegal diversion of airport revenue.”  That section includes, among other things, “(A) direct payments or indirect payments, other than payments reflecting the value of services and facilities provided to the airport.”  49 U.S.C. § 47107(k)(2)(A), see also 49 U.S.C. § 47017(b).  
 

Continue Reading FAA Supports the Right of Airport Sponsor to Use Airport Funds in Defense of Locally Enacted Noise Restrictions

The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
 

Continue Reading City of East Hampton May Be “A Day Late and a Dollar Short” in Challenging the Airport Noise and Capacity Act

In what looks like a swap of increased capacity for reduced hours of operation, brokered by Representative Adam Schiff, the City of Burbank has offered the Federal Aviation Administration (“FAA”) a 14 gate replacement terminal at Bob Hope Airport (“Airport”) in return for which the FAA is being asked to approve a mandatory nighttime curfew…

In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  Continue Reading Town of East Hampton Explores Limits of Aircraft Noise Regulation

An article of December 23, 2014 in a local East Hampton, New York newspaper, now circulated to a wider audience throughout the nation, gives the impression that, upon expiration of its contractual relationship on January 1, 2015, “East Hampton Town will be free of Federal Aviation Administration oversight and able to set access restrictions at the East Hampton Airport, essentially opening the door for relief from often loud, and sometimes rattling, aircraft noise.”  The article apparently misapprehends, and consequently, vastly overstates the impact of the expiration of the town’s contractual commitments to FAA, in return for funding of airport improvements.  The fact is that, with or without the constraints of such contractual commitments or “grant assurances,” the application of noise and access restrictions will depend entirely upon FAA’s determination concerning the applicability of a parallel set of constraints set forth in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), which, in turn, will depend on the noise levels of the specific types of aircraft the airport wishes to control or eliminate.  

The newspaper article errs in at least two ways.
 

Continue Reading East Hampton Airport Still Subject to FAA Oversight of Noise Restrictions Despite Absence of FAA Funding Constraints