By: Barbara E. Lichman, Ph.D., J.D.
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).
FAA, casting aside its usual cloak of federal government prerogative, handed the Town its only win by finding that the Town did not improperly use federal funds to “incur legal costs by enacting management or operational actions which may ultimately be found to be contrary to the airport’s federal obligations, but that is part of operation of an airport.”
In the final analysis, this determination is all the more shocking in that the Town’s actions betray a surprising indifference to the concept of federal preemption, set forth with notable particularity in the Federal Aviation Act. See 49 U.S.C. § 40103(a)(1) [“The United States Government has exclusive sovereignty of airspace of the United States.”]. This assumption of “sovereignty” over the national airspace extends to the imposition of measures to mitigate noise. See 49 U.S.C. § 47521(3) [“a noise policy must be carried out at the national level”]; see also 49 U.S.C. § 47524(a) [“The national aviation noise policy established under section 47523 . . . shall provide for establishing by regulation a national program for reviewing airport noise and access restrictions . . .”]. Ultimately, after the full, and unsuccessful adjudication, the Town acknowledged that the only route to implementing its designated restrictions, given the legislative program enacted by Congress, is to submit its chosen restrictions, either for unanimous approval by “all aircraft operators” at the airport, 49 U.S.C. § 47524(c)(1), or by submitting them to FAA for approval, Id., in accordance with FAA’s regulatory guidance set forth in FAA regulation, 14 C.F.R. Part 161.
In short, the resolution of the Town’s dispute implicates both good news and bad for communities that seek relief from airport noise. The good news is that FAA will support the expenditure of federal funds by airport operators who seek to support the citizens of their communities by defending legally cognizable regulations imposed on aircraft operators. The bad news is that such regulation cannot be unilaterally implemented by local regulation. In the final analysis, a complete understanding of this complex web of multi-jurisdictional regulation is critical to both the operation of airports and the achievement of relief from their impacts.
Source: Aviation & Airport Development Law News
