By: Barbara E. Lichman, Ph.D., J.D.

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.

(1) Section 172 – AUTHORIZATION OF CERTAIN FLIGHTS BY STAGE 2 AIRCRAFT – Even though the operation of Stage 2 aircraft by commercial carriers was explicitly ended in the year 1999, through the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., this section constitutes typical special interest legislation, allowing a maintenance operator at an airport in Louisiana to service Stage 2 aircraft from Latin America.

(2) Section 173 – ALTERNATIVE AIRPLANE NOISE METRIC EVALUATION DEADLINE – Accelerates an existing deadline for FAA to complete research on alternative noise metrics as a possible replacement to LDN within one year.

(3) Section 174 – UPDATING AIRPORT NOISE EXPOSURE MAPS – Requires that airport operators update their noise exposure maps if there is a change in operations that would result in either “substantial new incompatible use,” or “significantly reduce noise over existing noncompatible uses.” Since airports regularly update their noise exposure maps, this provision would have little or no effect.

(4) Section 175 – ADDRESSING COMMUNITY NOISE CONCERNS – Requires FAA to consider dispersal of new RNAV departure procedures below 6,000 feet if: (1) requested by the airport; (2) dispersal would not have safety or efficiency implications; and (3) would not increase noise over other noise sensitive areas. While this provision increases the avenue for public input, it also requires only that FAA “consider” such dispersal, without providing for any specified result.

(5) Section 176 – COMMUNITY INVOLVEMENT IN FAA NEXTGEN PROJECTS LOCATED IN METROPLEXES – Requires FAA to prepare a report (within 180 days) recommending methods for improving community involvement in NextGen projects, and discussing the specifics of how and when the FAA will engage airports and communities in such proposals. It is, of course, somewhat surprising that the FAA had not learned these lessons earlier, because community involvement is, to some extent, an issue of self-preservation for FAA, i.e., a way to stop continuous NextGen lawsuits by disgruntled citizens and continuing bad press for the agency.

(6) Section 179 – AIRPORT NOISE MITIGATION AND SAFETY STUDY – Requires FAA to conduct a study to review and evaluate existing studies of the relationship between jet aircraft approach and departure speeds and corresponding noise impacts on overflown communities. This section, while sounding impressive, simply requires the FAA to do what has already been done (see, e.g., the work of Massachusetts Institute of Technology).

(7) Section 180 – REGIONAL OMBUDSMEN – In yet another exercise in “giving away ice in the wintertime,” FAA is required to designate an individual to be the Regional Ombudsman in each region to address “issues regarding aircraft noise, pollution, and safety,” even though FAA is already required to do this, with or without an ombudsman.

(8) Section 182 – MANDATORY USE OF THE NEW YORK NORTH SHORE HELICOPTER ROUTE – This section requires helicopters departing from New York airports for the beach communities on the South Shore of Long Island to fly over the North Shore, and, thus, not disturb occupants on the opposite coast. This provision is, obviously, limited to Long Island, and a response to the heavy pressure by influential citizens from the South Shore. It is another example of special interest legislation.

(9) Section 186 – STAGE 3 AIRCRAFT STUDY – Requires the General Accountability Office to conduct a study evaluating the potential phaseout of Stage 3 aircraft. This is a rebirth of the quid pro quo contained in the Airport Noise and Capacity Act which required the phaseout of Stage 2 (noisier) aircraft, in return for which the federal government preempted all local airport noise and access regulation, see, e.g., 49 U.S.C. § 47524(a).

(10) Section 187 – AIRCRAFT NOISE EXPOSURE – Requires FAA to complete “ongoing review of the relationship between aircraft noise exposure and its effects on communities” within two years. Such a “review” could, in practice, accelerate FAA policy work that is already underway, studying changes in FAA’s use of the LDN 65 dB threshold for land use compatibility and significant environmental impacts. It is, however, only a “review” and, thus, merely the start of a hopefully more productive process.

(11) Section 188 – STUDY REGARDING DAY-NIGHT AVERAGE SOUND LEVELS – This provision seems somewhat duplicative of sections 173 and 187 in that it requires FAA, within one year, to evaluate alternative metrics to the current day-night level standard (LDN) such as the use of actual noise sampling and other methods. Not surprisingly, this provision does not define “evaluate,” and, thus, provides no specific target which FAA must achieve.

(12) Section 189 – STUDY ON POTENTIAL HEALTH AND ECONOMIC IMPACTS OF OVERFLIGHT NOISE – This section requires a university to be engaged to study the “incremental health impacts on residents living partly or wholly underneath flight paths most frequently used by aircraft flying at an altitude lower than 10,000 feet, including during takeoff and landing.” It also requires “an assessment of the relationship between a perceived increase in aircraft noise, including as a result of a change in flight paths that increases the visibility of aircraft from a certain location, and an actual increase in aircraft noise, particularly in areas with high or variable levels of nonaircraft-related ambient noise.” Leaving aside the difficulty of measuring “incremental health impacts” without defining a baseline over which the increment may be judged, it should be noted that this section reflects some skepticism on the part of the Congress about the actual noise impacts of changes in flight paths, evidenced by the use of the term “perceived increase in airport noise” resulting from “increases [in] visibility.”

In summary, while action is necessarily preceded by studies to produce adequate information, it remains to be seen whether Congress will have the courage to implement changes based on the result of the above studies, most particularly with respect to the use of alternative metrics to the current CNEL/LDN average noise standards, and the application of those alternative metrics to flight path changes such as those brought about by NextGen. Stay tuned.

Source: Aviation & Airport Development Law News