By: Barbara Lichman, PhD

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.

Since, and partially as a result of, the 1986 settlement and the restrictions it contained, the United States Congress enacted the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521-45733 (“ANCA”).  While ANCA clearly expressed the intent of Congress to preempt the imposition of local airport noise restrictions (“noise policy must be carried out at the national level,” 49 U.S.C. § 47521(3)), it provides two avenues to circumvent that comprehensive preemption.  First, ANCA provides seven express exceptions under which the prohibition on local enactment of airport noise restrictions does not apply.  49 U.S.C. § 47524(d).  The extension of the JWA noise restrictions qualifies under 49 U.S.C. § 47524(d)(4), as “a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety.”

However, even where an existing or planned local restriction does not fit neatly into any one of the specific categories of exception, ANCA provides for a process whereby a proposed restriction may either: (a) be agreed to by the airport proprietor and all aircraft operators (i.e., airlines); or (b) may be submitted to the Secretary of Transportation, through his/her designee, the Administrator of the Federal Aviation Administration (“FAA”), for approval.  49 U.S.C. § 47524(c).

The standards of review specified in the statute for application by the Secretary are admittedly both vague and draconian.  See, e.g., 49 U.S.C. § 47524(c)(2)(B) [“the restriction does not create an unreasonable burden on interstate or foreign commerce”].  Nevertheless, in some rare instances, such as Los Angeles International Airport’s nighttime over-ocean arrival and departure procedures, which is a local restriction long in effect, and, because of fewer night operations, not uniquely burdensome, the restriction may be able to meet ANCA’s difficult standard.

In short, the currently required process under ANCA, and its implementing regulation, 14 C.F.R. Part 161, for approval of airport noise and access restrictions may not be a guarantee of success, but it is a dramatic illustration of the ancient adage, “if you don’t ask, you don’t get.”

From Aviation and Airport Law News Blog