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.”
Airport Noise and Capacity Act (ANCA)
Congress Continues to Search for Relief From Airport Noise Impacts
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
Congress Provides for Numerous Noise Studies in 2018 FAA Reauthorization Act
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
FAA Supports the Right of Airport Sponsor to Use Airport Funds in Defense of Locally Enacted Noise Restrictions
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).
City of East Hampton May Be “A Day Late and a Dollar Short” in Challenging the Airport Noise and Capacity Act
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.
City of Burbank Attempts to Strike Deal with FAA for Curfew at Burbank Airport
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…
Town of East Hampton Explores Limits of Aircraft Noise Regulation
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
East Hampton Airport Still Subject to FAA Oversight of Noise Restrictions Despite Absence of FAA Funding Constraints
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.
FAA Denies LAX Request for Approval of Longtime, “Over-Ocean,” Noise Mitigation Measure
In an unexpected turn of events, the Federal Aviation Administration (“FAA”) has denied an application by Los Angeles World Airports (“LAWA”), under 14 C.F.R. Part 161 (“Part 161”), for approval of the nighttime noise mitigation procedure that requires both arrivals and departures to the west and over the Pacific Ocean from 12:00 midnight to 6:00 a.m. (“Application”). The FAA’s decision was unexpected because the procedure has been in effect on an informal basis for almost 15 years. LAWA sought FAA approval, pursuant to the requirements of the Airport Noise and Capacity Act of 1990, as amended, 49 U.S.C. § 47521, et seq., (“ANCA”) which requires, among other things, that any restriction on noise or access be approved by FAA or, in the alternative, all the airlines operating at the airport. In addition, the filing of the Application was required by LAWA’s 2006 settlement with surrounding communities Inglewood, Culver City, El Segundo and the environmental group Alliance for a Regional Solution to Airport Congestion.
FAA’s denial was based on the Application’s purported noncompliance with three of the six conditions required by ANCA for approval of restrictions on Stage 3, “quieter” aircraft. These include: (1) the restriction be reasonable, nonarbitrary, and nondiscriminatory; (2) the restriction not create an undue burden on interstate or foreign commerce; (3) the restriction not be inconsistent with maintaining the safe and efficient use of the navigable airspace; (4) the restriction not be in conflict with a law or regulation of the United States; (5) an adequate opportunity be provided for public comment on the restriction; and (6) the restriction not create an undue burden on the national aviation system. 49 U.S.C. § 47524.
FAA’s decision comports with what appears to be its general policy of denying exemptions from ANCA’s stringent restrictions.
One Community Gets Relief from Aircraft Noise
In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator. Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).
The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport. The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
Continue Reading One Community Gets Relief from Aircraft Noise