By: Barbara Lichman, PhD

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. On the one hand, the article fails to grasp that the imposition of FAA’s authority to control noise and access restrictions at any airport does not arise solely out of the constraints of the required grant assurances set forth in 49 U.S.C. § 47107. Rather, that power is derived from ANCA’s wholly separate statutory provisions. In fact, the courts have long recognized that

“On its face, [ANCA] gives the FAA considerably more power than it had when reviewing an airport operator’s Stage 3 restriction at the grant stage. For one thing, the Stage 3 restriction cannot go into effect without the FAA’s say-so. For another thing, [ANCA’s] subsection (c)’s requirement of FAA approval is not tied to grants; grants or not, no airport operator can impose a Stage 3 restriction unless the FAA gives its approval.”

City of Naples Airport Authority v. Federal Aviation Administration, 409 F.3d 431, 432 (D.C. Cir. 2005). On the other hand, the newspaper article’s global conclusion fails to articulate the differences in FAA’s authority applicable to aircraft of differing noise levels. In the case of East Hampton, much of the local unrest arises out of helicopter overflights from John F. Kennedy International Airport (“JFK”) to the beach cities on the far reaches of Long Island, a longtime summer vacation mecca for overcrowded New Yorkers. Helicopters are generally categorized under 14 C.F.R. Part 36(h)(3) and (4) (“Federal Aviation Regulation” or “FAR”), the ANCA implementing regulations, as no quieter than “Stage 2” noise levels. FAA’s jurisdiction over the imposition of noise and access restrictions on Stage 2 aircraft, 49 U.S.C. § 47524(b), is substantially less stringent than that applicable to its quieter cousin, Stage 3 aircraft, under 49 U.S.C. § 47524(c). Restrictions on Stage 3 operations, unlike those on Stage 2 aircraft, including curfews, or restriction on hours of operation, and bans on certain types of aircraft, must be approved by FAA in accordance with six extremely restrictive conditions:

“(A) the restriction is reasonable, nonarbitrary, and nondiscriminatory;

(B) the restriction does not create an unreasonable burden on interstate or foreign commerce;

(C) the restriction is not inconsistent with maintaining the safe and efficient use of the navigable airspace;

(D) the restriction does not conflict with a law or regulation of the United States;

(E) an adequate opportunity has been provided for public comment on the restriction; and

(F) the restriction does not create an unreasonable burden on the national aviation system.”

Therefore, if, as indicated in the newspaper article, the focus of the town’s efforts is the imposition of restrictions on Stage 2 helicopters, it is possible that such a restriction might be implemented where, as here, it is imposed after compliance with the conditions set forth in 49 U.S.C. § 47524(b) including a study of the economic impact of the regulation. If, however, the airport were to seek a more general set of restrictions, such as curfews and/or bans of certain types of aircraft, encompassing Stage 3 as well as Stage 2 aircraft, as the article implies, then the likelihood of success is slim to none. In fact, only weeks ago, FAA rejected a restriction on Stage 3 operations between 12:00 midnight and 6:00 a.m. at LAX which had been in effect informally for more than 15 years. In short, because of the lack of specificity and clarity of this newspaper article, it is ill-advised for any jurisdiction or impacted organization to rely on its discussion as a panacea for its own problems.

From Aviation and Airport Law News Blog