AVIATION NOISE LAW
Airport Noise & Capacity Act 1990


The following is excerpted from "Federal and State Coordination: Aviation Noise Policy and Regulation," 46 Administrative Law Review 413-427 (1994) [no author given].



Recent developments in aviation noise policy and regulation have dramatically altered the playing field and the roles of the players. At one time, a former Chief Counsel of the FAA commented: "[I]t might really surprise the millions of Americans who, on a daily basis, enjoy the benefits of our strong national air transportation system to know just how little control over that system resides with the national government and how much control actually resides at the local level." [1] While this strong sentiment may have accurately reflected the state of aviation regulation prior to 1990, with the passage of the Airport Noise and Capacity Act (ANCA) of 1990, [2] Congress recognized that a national aviation noise policy was not only necessary but vital to the fitness of the country's air transportation system.

ANCA attempted to create a more comprehensive method for regulating aviation noise. Congress directed the Secretary of Transportation to issue the new ANCA-implementing regulations that called for establishing a national aviation noise policy by July 1, 1991. [3] In response, the FAA solicited comments [4] and in early 1991 conducted three public meetings in Washington, D.C., Chicago, and Seattle, to discuss the proposed rules. [5] Although the FAA received hundreds of comments from varied sources including state aviation authorities, citizen interest groups, aircraft operators, attorneys, and consultants, [6] the United States House of Representatives severely criticized the process and questioned the adequacy of merely holding three public hearings. Congress also criticized the manner in which this legislation was passed.

. . .

III. The New Regime -- The Airport Noise and Capacity Act (ANCA)

Former Secretary of Transportation Skinner referred to the ANCA of 1990 as "the most significant piece of aviation legislation since the deregulation act." [33] Yet, one Congressman admonished the manner in which ANCA arose because it was "decided by a very small group within the Congress and administration officials with very limited input from other Members of Congress, from airport operators, community organizations, and other interested parties." [34] Although ANCA directed the Secretary to promulgate new regulations and submit recommendations to Congress by July 1, 1991, [35] the FAA deferred making any such recommendations, finding "it is premature to attempt to comprehensively evaluate [the regulations'] effectiveness and efficiency," and opted instead to provide Congress with a "discussion" on the aviation noise issue. [36] Importantly, the ANCA revised the roles of the various players within aviation noise regulation.


A. The Aircraft Operators

In regulations directly affecting the aircraft operators, the single most important provision of ANCA calls for a phaseout of Stage 2 [37] aircraft by December 31, 1999. [38] ANCA also provides a "nonaddition rule," prohibiting the import, or addition, of Stage 2 aircraft as of November 5, 1990, which effectively caps the size of the United States Stage 2 fleet. [39] Under the final rules, the aircraft operators must make a transition from Stage 2 to Stage 3 aircraft either through a phaseout of Stage 2s, [40] or by a phase in of Stage 3s. [41] The Act also provides the aircraft operators the opportunity to receive a waiver of the phase in/out requirements if the United States carrier has at least 85 percent of its fleet in compliance by 1999. [42]


B. The Airport Operators

ANCA also resulted in new statutory provisions affecting the airport proprietors, the "Part 161" regulations. Now, regardless of the nature of the local Stage 2 restrictions -- whether involving aircraft flight procedures or ground restrictions -- ANCA requires airports to seek public and FAA comment before instituting any such restrictions. [43]

The airport proprietor must provide notice and an analysis of the proposed restriction at least 180 days prior to the effective date of the restriction. [44] As part of this process, the proprietor must prepare and make available for public comment: an analysis of the anticipated or actual costs and benefits of the restriction; a description of alternative restrictions; and a description of the alternative measures it has considered that do not involve aircraft restrictions, such as land use controls with a comparison of the costs and benefits of the restriction against the alternatives. [45] While the airport proprietor and the local community appear to be left essentially in charge of their own noise affairs, once the procedural notice and comment requirements are met, the proposed restrictions are still subject to the traditional legal tests. [46] The restrictions cannot be discriminatory, unreasonable, nor unduly burdensome to interstate commerce, nor can they impede the FAA's execution of the national Stage 3 transition. [47]

The new regulations present different requirements for the restriction of Stage 2 and Stage 3 aircraft by statutorily providing greater room for local governments to restrict the Stage 2s. Federal approval is not required under ANCA for a local Stage 2 restriction even though such approval is mandatory for any Stage 3 restriction. [48] In fact, as long as the public notice and comment requirements are met, including notice to the FAA, a Stage 2 restriction could take effect in 180 days. [49]

While the FAA does not have any clear statutory grounds for objecting to a Stage 2 restriction, the agency will "carefully scrutinize any accelerated State 2 phaseout." [50] To object to a Stage 2 restriction, the FAA would rely on commerce clause grounds or claim a national interest is being jeopardized. [51] As demonstrated by the accelerated Stage 2 phaseout proposed by Los Angeles, discussed in Part IV, the FAA views any possible impediment to the uniform transition to Stage 3 aircraft as a threat to a national interest. [52] The FAA cautioned that "restraint on the part of airport operators is essential" if the national phaseout is to be carried out effectively, and warned that "[t]he FAA stands ready to exercise its full authority to take whatever action is necesssary to alleviate any excessive burden on commerce that might result from the implementation of an accelerated local Stage 2 phaseout." [53]

Because Stage 3 aircraft represent the state-of-the-art in noise reduction technology, ANCA does not give airports an unlimited right to impose new restrictions on Stage 3s. [54] The Act provides that no airport noise or access restriction on Stage 3 aircraft shall be effective unless the airport proprietor and all aircraft operators have agreed to it or or it has been submitted to and approved by the Secretary in accordance with Part 161. [55] In this regard, the FAA credits ANCA for creating a "significant local consensus-building opportunity" with respect to new Stage 3 restrictions because the airports and aircraft operators can directly negotiate to reach a consensual agreement on restrictions, provided the notice requirements are met. [56] In the event an agreement cannot be reached between the airport and its users, the proprietor can still attempt to implement the proposed restriction by seeking FAA approval. [57]

To effect a Stage 3 restriction, the FAA requires the airport to overcome a heavy procedural burden by proving by "substantial evidence" that six statutory requirement have been met. [58] The proposed restruction must: (1) be reasonable, nonarbitrary, and nondiscriminatory; (2) not create an undue burden on interstate or foreign commerce; (3) maintain safe and efficient use of airspace; (4) not conflict with any existing federal statute or regulation; (5) provide adequate opportunity for public comment; and (6) create no undue burden on the national aviation system. [59] Because FAA approval is required for Stage 3 restrictions, these broad statutory requirements provide ample opportunity for the federal government to disapprove any restriction it perceives as inconsistent with federal interests, regardless of how pressing the local concern may be. Furthermore, the willingness of the FAA to permit a local restriction over the objections of the airlines has been questioned. Some commentators believe that the final ANCA regulations reflect the FAA and airline industry objective to make it "virtually impossible for a locality to enact a Stage 3 restriction." [60]


C. The FAA: Extension of Existing Power with Little Liability

ANCA appeared to provide local governments with some relief from the legal liability arising from damages related to aviation noise. [61] However, the federal government's acceptance of some portion of the potential liability for noise damages is conditioned upon a very difficult standard to prove. In addition to a "taking" requirement, the taking must directly result from the federal government's disapproval of a local restriction.

While the effect of this provision has yet to be demonstrated, no actual shift in liability to the federal government has occurred because ANCA essentially retains the status quo, leaving the local governments and airport proprietors still liable for damages even though these authorities may not have the ability to make any land use changes in the areas surrounding the airports. [62] In fact the FAA acknowledged that the language of the statute "suggests that the scope of liability is narrow"; the Act was "not a wholesale shift of liability to the [f]ederal government." [63] The FAA added, nonetheless, that an airport operator's efforts to control land use will be a factor it considers when determining whether a local restriction is reasonable -- whether there are nonaircraft restrictions that could achieve noise reduction benefits more effectively than a Stage 3 aircraft restriction. [64]

In its "discussion" report to Congress, the FAA again emphasized that the "new statutory provisions did not set out any strict local government obligations with respect to compatible land use." [65] In other words, the local government's only option to attempt to mitigate noise effects may be through land use controls, an area the FAA agrees is the exclusive domain of state and local governments. [66] In this regard, the FAA appears satisfied that the Part 150 program remains available (with the funding set-aside from Airport Improvement Program funds) to assist airport proprietors with the noise abatement planning process [67] and that ANCA itself provides an additional source of funding for noise mitigation projects by permitting the utilization of passenger facility charges (PFCs). [68]

Notwithstanding the incentives, ANCA provides the FAA with a mechanism to ensure local government "cooperation" with national interests. The Act permits the federal government to terminate eligibility for airport grant funds and enables it to collect or impose PFCs if the restrictions at the airport do not comply with ANCA. [6] The regulations specify that this course of action is in addition to "any judicial proceedings initiated by the FAA to protect the national aviation system and related [f]ederal interests." [70] As evidenced below [in Part IV] by the dispute with Los Angeles, the FAA did not hestitate to flex its muscle to get a local government to tailor its restrictions to meet FAA goals. [71]


Footnotes

[1] E. Tazewell Ellett, "The National Air Transportation System: Design by City Hall?", 53 J. Air Law & Comm. 1 (1987).

[2] Pub. L. No. 101-508, secs. 9301-9309, 104 Stat. 1388-378 to 1388-384 (1990) codified as amended at 49 U.S.C. app. secs. 2151-2158 (Supp. IV 1992). [Editor's note: now 49 U.S.C. 47521 - 47533.]

[3] Airport Noise and Capacity Act sec. 9303(a), 49 U.S.C. app. sec. 2152 (Supp. IV 1992). The new regulations were belatedly issued on September 25, 1991, with Part 91 setting schedules for the airlines and aircraft operators to follow, and part 161 specifying actions required by the airport operators when seeking to implement noise restrictions. 56 Fed.Reg. 48,628, 48,661 (Sept. 25, 1991), referring to 14 C.F.R. pts. 91, 161 (1991). Part 91 amends the airplane operating rules to require a phased transition to a quieter fleet in the continental United States by December 31, 1999, implementing secs. 9308 and 9309 of ANCA. Id. at 48,628. Part 161 establishes a program for reviewing airport noise and access restrictions on the operations of Stage 2 (noisier) and Stage 3 (quieter) aircraft as mandated by sec. 9304 of ANCA. Id. at 48,661....

[4] 56 Fed.Reg. 8,628 (1991); 56 Fed.Reg. 8,644 (1991).

[5] 56 Fed. Reg. 48,628 (1991); 56 Fed. Reg. 48,661 (1991).

[6] Federal Aviation Admin., "Report to Congress: Issues Related to Aviation Noise," app. 2 (Oct. 1992).

[7] "FAA and Airport Noise: Hearings before the Subcomm. on Government Activities and Transportation of the House Comm. on Government Operations," 102d Cong., 1st Sess. 1-2 (1991) (statement of then-Representative Barbara Boxer, Chairwoman (D.-Cal.)). Representative Boxer criticized the Senate for hiding noise policy in "other much-wanted" legislation, the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388 (1990), in the last 10 days Congress was in session, resulting in little, if any, House consideration of the policy. Id.

. . .

[33] Bill Poling, "U.S. Sets Phaseout of Noisy Aircraft," Travel Weekly, Oct. 7, 1991, at 37.

[34] FAA and Airport Noise: Hearings, supra note 7, at 4 (statement of Rep. C. Christopher Cox (R.-Cal.).

[35] 49 U.S.C. app. § 2152 (Supp. IV 1992).

[36] FAA Noise Report, supra note 6, at Exec. Summary.

[37] See infra note 72 (for a discussion on Stage 2 aircraft).

[38] 49 U.S.C. app. § 2157(a) (Supp. IV 1992); 14 C.F.R. 91.853 (1993). The Act also provides for a waiver of this requirement provided that the United States air carrier has at least 85 percent of its airplanes used in the United States in compliance with Stage 3 requirement by July 1, 1999. 49 U.S.C. app. § 2157(b) (Supp. IV 1992); 14 C.F.R. § 91.873 (1993).

[39] 49 U.S.C. app. § 2158 (Supp. IV 1992); 14 C.F.R. § 91.855 (1993). The "nonaddition rule" also prevents the "dumping" of Stage 2s into the U.S. from the European Community, which also has a phaseout and nonaddition regime in place. FAA Noise Report, supra note 6, at I-8.

[40] The schedule for phasing out Stage 2 aircraft is as follows: 25% by December 31, 1994, 50% by December 31, 1996, and 75% by December 31, 1998. 14 C.F.R. § 91.865 (1993).

[41] The phase in schedule for Stage 3s is: 25% of the fleet of new entrants must be Stage 3 by December 31, 1994; 50% by December 31,1996; and 75% by December 31, 1998. 14 C.F.R. § 91.867 (1993).

[42] 49 U.S.C. app. § 2157(b) (Supp. IV 1992); 14 C.F.R. § 91.873 (1993). The three methods of compliance: phase in, phase out, or waiver, have been criticized as making the Act "riddled with loopholes and escape clauses." Financial Condition of the Airline Industry: Hearings before the Subcomm. on Aviation of the House Comm. on Public Works and Transportation, 103d Cong., 1st Sess. 348 (1993) (testimony of Conrad W. Bowers, President, Natioanl Organization to Insure a Sound-Controlled Environment (N.O.I.S.E.)).

[43] 49 U.S.C. app. § 2153 (Supp. IV 1992); 14 C.F.R. § 161.203 (1993).

[44] 14 C.F.R. § 161.203 (1993).

[45] Id. § 161.205.

[46] FAA Noise Report, supra note 6, at I-9.

[47] Id. ANCA permits the proprietor to use the notice and comment procedures of the Part 150 program, as long as it is clear that a Stage 2 or 3 restriction is being included in the program. 14 C.F.R. §§ 161.211, .321 (1993). In spite of this option, ANCA provides that, "[t]he FAA determination on the 14 CFR part 150 submission does not constitute approval or disapproval of the proposed Stage 2 restriction under part 161." 14 C.F.R. § 161.211(c) (1993). This provision appears to ensure that the federal government is not accepting any direct responsibility nor liability for any consequences of airport noise.

[48] See 14 C.F.R. § 161.301(c) (1993).

[49] Id. § 161.203.

[50] Notice and Approval of Airport Noise and Access Restrictions, 56 Fed. Reg. 48,661, 48,663 (1991) (FAA comments on local Stage 2 restrictions under the final rules).

[51] Id. at 46,662, 46,663.

[52] Id. The FAA stated that piecemeal restrictions at key airports such as New York, Chicago, and Los Angeles, would compound geometrically to the detriment of the national aviation system. Id. at 48,662.

[53] Id. at 48,662, 48,663.

[54] FAA Noise Report, supra note 6, at I-9; 14 C.F.R. § 161.301 (1993).

[55] 49 U.S.C. app. § 2154(b) (Supp. IV 1992); 14 C.F.R. §§ 161.101, .301 (1993).

[56] FAA Noise Report, supra note 6, at I-9; 14 C.F.R. §§ 161.101-.113 (1993).

[57] FAA Noise Report, supra note 6, at I-9; 14 C.F.R. § 161.301 (1993).

[58] 14 C.F.R. § 161.305(e)(2) (1993).

[59] 49 U.S.C. app. § 2153(d)(2) (Supp. IV 1992); 14 C.F.R. § 161.305(e)(2) (1993).

[60] Charles F. Price, N.O.I.S.E., FAA Noise Rules Relased, Tailored to Airlines' Concerns, Sept. 24, 1991, at 3 (on file with the Administrative Law Review).

[61] "In the event that a proposed airport aircraft noise or access restriction is disapproved, the [f]ederal government shall assume liability for noise damages only to the extent that a taking has occurred as a direct result of such disapproval. Action for the resolution of such a case shall be brought solely in the United States Claims Court." 49 U.S.C. app. § 2155 (Supp. IV 1992) (emphasis added).

[62] Price, supra note 60, at 3; see infra text accompanying note 88.

[63] Notice and Approval of Airport Noise and Access Restrictions, 56 Fed. Reg. 48,661, 48,671 (1991) (advisory discussion on § 9306 of hte ANCA Act to assist with understanding the effect of the Act on the issue of liability).

[64] Id.

[65] FAA Noise Report, supra note 6, at I-10.

[66] See Notice and Approval of Airport Noise and Access Restrictions, 56 Fed. Reg. 48,661, 48,671 (1991).

[67] See FAA Noise Report, supra note 6, at I-10; Notice and Approval of Airport Noise and Access Restrictions, 56 Fed. Reg. 48,661, 48,671 (1991). The Airport and Airway Improvement Act of 1982, § 511(a)(5), permits the Secretary to receive written assurances from the airport that appropriate actions have been or will be taken to restrict land uses near the airport to compatible uses to the extent reasonable, before providing any project grants. FAA Noise Report, supra note 6, at I-10.

[68] 49 U.S.C. app. §§ 2151, 2153 (Supp. IV 1992); 14 C.F.R. §§ 161.501-.505 (1993). Notice and Approval of Airport Noise and Access Restrictions, 56 Fed. Reg. 48,661, 48,671 (1991).

[69] 49 U.S.C. app. § 2153(e) (Supp. IV 1992); 14 C.F.R. §§ 161.501-.505 (1993). The use of the judicial process alone does not terminate funding. In order to terminate the funding, the Part 161 process must be utilized. Notice and Approval of Airport Noise and Access Restrictions, 56 Fed. Reg. 48,661, 48,690 (1991) (FAA Comments on 14 C.F.R. § 161.501).

[70] 14 C.F.R. § 161.501(a) (1993).

[71] See infra part IV.

[72] Stage 2 aircraft were developed in the 1960s and 1970s and include the B-727, DC-9, and some early versions of B-737 and 747; Stage 3 aircraft comprise the newer and quieter B-757, B-767, MD-80 series, later versions of B-737 and B-747, and older aircraft that have been retrofitted with quieter engines or have had noise-reducing "husk kits" installed around the engines. Poling, supra note 33, at 37.