By: Barbara Lichman, PhD

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.

With respect to Condition No. 1, FAA found that LAWA had arbitrarily defined the LAX noise problem as one of night noise associated with departures to the east that do not conform to over-ocean procedures. FAA found that LAWA’s proposed ban on such departures would benefit less than 0.2% of the population within the defined noise impact area, and, thus, would not contribute to a meaningful solution of LAX’s noise problem, although even that small percentage translates into a substantial number of citizens residing within the dense urban areas to the east of LAX.

In addition, FAA paid substantial attention to Condition No. 2, and found that LAWA’s required cost/benefit analysis does not demonstrate that the estimated potential benefits of the proposed procedure outweigh the regulatory costs of: (1) the 1.9 million annual lost profits due to compensation paid to passengers required to be offloaded as a result of the restriction; (2) delay of crews from “delayed” aircraft; and (3) the cost of Auxiliary Power Unit operation during offloading “delay.”

Finally, with respect to Condition No. 4, FAA found that LAWA had failed to demonstrate that the proposed restriction does not conflict with existing federal statutes and regulations where the Application does not take into account the effect on the authority of pilots to judge safe operations. In other words, the FAA views the proposed restriction as a usurpation of pilot discretion.

FAA’s determination to deny any application for a restriction under Part 161 is evidenced by the history of the statute and its implementing regulations under which, in the almost 25 years since ANCA’s passage, and the promulgation of 14 C.F.R. Part 161 implementing ANCA’s provisions, not a single exemption has been granted. What is unexpected in this case is FAA’s reluctance to sanction an existing procedure, of long duration, and of already proven benefit to affected communities such as Inglewood, located immediately to the east. The purpose of Part 161, and the integrity of FAA’s interpretation of it, must apparently await another opportunity for resolution.

From Aviation and Airport Law News Blog