AVIATION NOISE LAW
Views of the Airport Noise and Capacity Act in 1990


The following comments were originally published in Airport Noise Report, Vol. 2, No. 25 (Dec. 27, 1990). The authors were, at the time, members of the editorial advisory board of APR. Their biographies, included here, were part of the original publication in 1990. Near the end of the 101st Congress, in 1990, both the Airport Noise and Capacity Act and the Aviation Safety and Capacity Expansion Act were added, separately, to an omnibus budget bill by action of the Senate.



ELIOT R. CUTLER

Ford's Edsel: The Aviation Safety and Capacity Expansion Act (ASCEA), passed in haste during the recent congressional silly session, apparently is the vehicle by which the nation's air carriers intend to mount an assault on local airport noise rules. But airport proprietors and local communities who are intent upon preserving local control shouldn't lose too much sleep. Senator Wendell Ford's legislation factory designed and produced a bill so badly conceived and poorly drafted that it recalls another Ford's Edsel.

The problem is that those who wrote the bill clearly do not understand why it is difficult to expand airport capacity in America and what can be done to make it easier.

That fact is evident from a comparison of the ASCEA title with what follows. Even against the tough competition which the Congress is capable of generating in this area, the title wins the prize for truth-stretching and wishful thinking. Though its title suggests that it will encourage the expansion of airport capacity, the Act itself sets forth an implicit policy determination that the construction of significant new airport capacity anywhere in America should become a federal issue. This strange logic may make ASCEA one of the most counter-intuitive acts of Congress in years.

There may be many reasons why it's hard to build new runways and new airports, but these are three of the important ones:

First, the major airlines generally have a stranglehold on traffic at their big hub airports. Understandably, the carriers like this status quo, and they aren't eager to build new capacity which they might not control.

Second, airlines compete in a highly cyclical, increasingly leveraged, capital-intensive business, where this month's positive cash flow is the name of the game. As a result, the carriers typically view with disfavor the construction of new airports -- because even though they may be bigger, better, safer, and quieter, they also mean higher lease costs and landing fees. (Long-range thinking hasn't been the industry's strong suit since the days of Eddie Rickenbacker.)

Finally, airlines resent and historically have opposed virtually all environmental constraints on their ability to fly their planes where and when they want to fly them. They often seem to view the public ownership of both airspace and airports as irrelevant, inconvenient. or both.

These considerations -- summarized in their tedious refrain that a "patchwork" of local noise regulations constitute an uneconomic and inefficient imposition on the conduct of their business at the nation's existing airpqrts -- explain why the airlines helped draft and enthusiastically supported Senator Ford's bill.

But what's good for American Airlines (or United or Northwest), isn't what's good for the U.S.A. As far as the public interest is concerned, there is a much better case for building more airport capacity, particularly at new airports, than there is for policies designed to allow the major carriers to squeeze more airplanes into the existing airports which they dominate.

The national noise policy mandated by ASCEA unfortunately will not serve this legitimate national purpose. The carriers' fondest hopes to the contrary notwithstanding, the new noise policy cannot exempt new runways and other "capacity enhancements" from constraints imposed by the National Environmental Policy Act and a host of other federal, state, and local statutes dealing with environmental and land use matters.

ASCEA requires a new noise policy which would strip from most airport proprietors the right to establish without federal interference reasonable local restrictions on the use of their facilities. Thus, wherever local interests or jurisdictions opposed to the construction of a new airport or runway can block or delay its progress, the Federal Aviation Administration will be forced into the business of bargaining directly with local jurisdictions over the siting, configuration, and operating parameters of new airports and runways. This new rule for the FAA, one which it properly has avoided in the past, would become the only way (short of the unlikely federalization of airport siting, construction and management) to satisfy local concerns and to build new airport capacity.

The first major, new air carrier airport to be built in American in two decades is now under construction in Denver. There, the local jurisdictions forged a series of agreements which have made possible the construction of a enhance airspace and airport capacity, restrictions on which new airport covering more than 50 square miles with as were limiting the economic benefits to be derived from a many as 12 runways. Had the sort of noise policy contemplated by the authors of ASCEA been in place a few years ago, those local agreements -- would have been much more difficult to achieve. (It should come as no surprise that all of the major airlines serving Denver opposed those agreements and the construction of the new airport; even though DVX now is virtually a fait accompli, some still do.)

The important question for 1991 is whether Secretary of Transportation Samuel Skinner and FAA Administrator James Busey can craft a national noise policy under the strictures of ASCEA which will preserve, against the apparent intentions of many of the Act's supporters, a reasonable possibility that more local agreements can be crafted -- and thus more new airports built.

It would be a national shame if the new Denver airport may be the last major addition to American's airport capacity for the next two decades -- or more. You might think that such a result is precisely what the major airlines have in mind. You might think so, that is, if you thought they were any good at long-range planning.

Mr. Cutler is a partner in the law firm of Cutler & Stanfield. where he specializes in environmental and aviation law and complex public sector negotiations. He is a graduate of Harvard College and the law school of Georgetown University.

From 1968 to 1974, he served as legislative assistant to Sen. Edmund S. Muskie and then as counsel to the Senate Subcommittee on the Environment. A specialist in environmental and land use matters, Mr. Cutler was one of the principal draftsmen of the Clean Air Act. the Water Pollution Control Act, and the National Environmental Policy Act. He has also served as associate director of the Office of Management and Budget. and, from 1977 to 1980, was the principal OMB and White House official responsiblefor policy and budget matters in the environmental. natural resources, and energy areas.

He was a partner in the Washington. D.C., office of Webster & Sheffield from 1980 until his departure in 1988 to found the firm Cutler & Stanfield.

In both public service and private practice, Mr. Cutler has specialized in complex public sector negotiations. He served as the President's principal negotiator in the large land claims cases involving the eastern Indian tribes during his White House tenure and recently helped resolve the dispute among several Colorado cities and counties concerning the locationfor a new Denver airport. He has participated in numerous matters involving the funding and construction of major public and private facilities.


JOHN WESLER

Traditional advice to leaders admonished them to "Always do right, but. for Pete's sake, always do something." Congress seems to have heeded this advice, and has done something about the aviation noise issue. That something may not be optimal, but it does force action, and tries to give something to everyone. Typically, the real effects of this act will become apparent as the generalized legislative words are translated into specific regulatory language.

Given the hectic atmosphere in which this act was adopted by Congress, it is difficult to judge which provisions and phrases were well-considered and intentional. and which were inadvertent. Whether intentional or inadvertent, the general tenor of the act is reflected in the words used in the Findings. Aviation noise management is the issue. not noise abatement or mitigation. This language was apparently adopted directly from S.3094, the Edsel- oops, Ford bill which was to be cited as the Aviation Safety and Capacity Expansion Act of 1990. This choice of words is probably wise, in the sense that the provisions primarily inhibit local actions to control airport noise and access, and as a consequence, tend to manage restrictions on airport capacity. Nevertheless, we now have an Aviation Noise Management Policy.

Some of the apparently inadvertent wording gives rise to difficulties in interpretation. For example, Section 9304, dealing with required reviews of noise and access restrictions, refers to "Stage 3 aircraft." Using the defmition in Part 36 of the Federal Aviation Regulations, this clearly means aircraft which meet the Stage 3 noise standards of that regulation. Section 9303(a) refers to "provisions of this subtitle. including the phaseout and non-addition of Stage 2 aircraft" Yet, in Sections 9308 and 9309, the provisions prohibiting operation and importation refer to "aircraft not complying with Stage 3 noise levels." Technically. this is a more stringent requirement than for a Stage 3 aircraft. since it would require compliance with all three of the Part 36 noise limits without the use of the tradeoff provision included in Part 36. This tradeoff provision allows a measured noise level to exceed the noise limit at one or two of the three required certification locations, so long as the exceedance is offset at the other location(s). For noise abatement purposes, this is a good provision. However, some versions of the Boeing 747 and Douglas MD-80 series would be prohibited from U.S. operation beginning in the year 2000 because they use tradeoffs for Stage 3 certification. Such a requirement would also affect the developers of "hush kits" for Stage 3 certification, since they ordinarily need this provision.

The wording of Section 9304 also imposes certain restrictions with respect to Stage 2 aircraft. Again, interpreting this strictly, these restrictions also apply to helicopters, for which Stage 2 noise standards are included in Appendix H of Part 36. Again, this appears to be unintentional and the result of sloppy wording.

Several other provisions of the act seem to cover new ground, and must await more specific regulatory language for better understanding. Conditions required to support airport restrictions on Smge 3 aircraft include "an undue burden on the national aviation system." No one has clearly defined "an undue burden on interstate and foreign commerce" so far, and the act adds another vague consideration. The act also limits noise and access limitations. Access limitations may go beyond those imposed for noise control purposes, and, for example, could force the acceptance of scheduled commercial passenger service at a general aviation airport. All in all, this looks like good job security for attorneys.

Section 9306 practically invites airport operators to propose noise or access restrictions which they know in advance will be disapproved in order that the federal government will assume liability for at least a part of the noise damages which are present Again, good job security for attorneys, and noise consultants in trying to define the sharing of liability . Despite these somewhat critical remarks, I illn glad to see this act Even with its uncertainties, which can and will be resolved, the act "does something." It forces a more structured framework for managing aviation noise, and marks the beginning of the end of the noisier Stage 2 airplanes in the United States. I don't expect the act will reduce community litigation and opposition to airport noise.

Much of this litigation arises from proposals for airport expansion and the associated environmental assessments and impact statements. The act does not alter that situation, and, if anything, increases the community-airport conflicts because airport proprietors will find it more difficult to impose airport use restrictions as tradeoffs for expanded facilities. Nevertheless, the act represents movement. Let's get on with the job of reducing aviation noise.

John Wesler is currently in his third career, with the acoustical consulting firm Wyle Laboratories in Arlington, VA. Previously, he retired from the position of director of the Federal Aviation Administration's Office of Environment and Energy, and from active duty as a captain in the U.S. Coast Guard.


JOANNE W. YOUNG

The eleventh-hour legislative package which adopted the national aviation noise policy constitutes a balancing act by Congress, which was reluctant to interfere with airport operators' rights to regulate aircraft noise, while recognizing the critical need for a stable regulatory environment in which the nation's airlines could safely invest substantial amounts of capital in new equipment without risk of having that equipment denied access to the nation's airports. Congress recognized that noise and Capacity issues are inextricably intertwined and accordingly linked the right of airports to impose passenger facility charges to fund airport expansion projects to their cooperation with federal regulators on future noise restrictions.

By finalizing this landmark legislation behind closed doors, Congress failed to obtain valuable input from much of the industry. The result is a law which has created a good deal of uncertainty. While the House Aviation Subcommittee held four days of hearings on aircraft noise in late September and early October, involving numerous concerned parties, much of that input was overlooked in the haste to craft legislative provisions during the waning hours of the 101st Congress. The bill does provide direction regarding the eventual elimination of all Stage 2 aircraft, and new restrictions on the ability of local airport operators to promulgate noise abatement controls, but leaves unanswered a number of key questions as to how these measures will be implemented. In brief, as the price of gaining passage of the PFC authorization much-sought by airport interests and the administration, approval was given to a national noise policy which short-circuited the normal legislative hearing and mark-up process and sidestepped a number of fundamental questions.

The legislation reflects an intentional shift in power to the federal government with respect to restrictions on the operation of Stage 3 aircraft Under the new rule, airport operators may only impose additional Stage 3 restrictions if they obtain the consent of "all aircraft operators" or of the secretary of transportation. The rule shifts the burden of proof required with respect to new restrictions from the DOT to the airport operator, who must now show "substantial evidence" of certain conditions. The DOT must now further define the criteria for approval of Stage 3 restrictions, including whether a proposed restriction creates an "undue burden" on the national aviation system, with little congressional guidance.

If the purpose of the legislation was to remove aircraft noise as a major impediment to badly needed expansion of airport capacity, it is unclear whether Congress will achieve that result The concessions made to the airports, such as federal assumption of liability when noise damages arise as a direct result of DOT disapproval of newly proposed Stage 3 noise rules, the virtually unfettered ability to impose new Stage 2 restrictions, and the PFC provisions, certainly seem favorable to capacity expansion objectives. However, the legislation has apparently created a rift between airports and anti-noise factions in the surrounding communities which could negate the pro-capacity aspects of the legislation. Anti-noise activists and municipalities, which frequently sue airports for excessive aircraft noise or take other actions to restrict airport growth, are already complaining bitterly that the airlines have achieved a one-sided victory that will allow them to operate an unlimited amount of Stage 3 flights in the near future. These groups will soon be seeking to enhance their influence over airports and noise control and could ultimately make airports less willing to engage in expansion projects for fear of local actions which would be adverse to airport growth. Anti-noise activists and communities are clearly disturbed that their views were not more fully reflected in the national aviation noise policy that was adopted, a fact which could present a considerable obstacle to achieving the goal of aviation system capacity growth.

The Stage 2 non-addition rule, which was effective immediately upon enactment, has likely caused more than a few sleepless nights for those in the aircraft trade who were negotiating deals, or contemplating the exercise of delivery options, at the time the law was passed. Significantly for those companies which maintain Stage 2 aircraft in their fleet, the new noise law forces them to face a potential free fall in asset values. Moreover, since Stage 2 aircraft are no longer being manufactured, it is unclear how meaningful this aspect of the law will prove to be in terms of assisting airports and communities which seek to mitigate the environmental affects of aircraft noise.

The reason most often articulated for enacting the Stage 2 non-addition rule is to prevent the U.S. from becoming a temporary dumping ground for foreign aircraft now subject to the European Community non-addition rule, which precludes Stage 2 aircraft from being entered on member states' registers after Nov. 1,1990. However, the vague wording of the U.S. non-addition rule is putting potential buyers, sellers, and lessors of Stage 2 aircraft under pressure as they strain to understand its impact. The statute simply does not address innumerable "real world" scenarios despite the fact Congress made the rule effective upon enactmentmore than half a year prior to the FAA's deadline for issuing fmal rules clarifying and implementing the legislation.

In addition, although the legislation establishes the phaseout completion dates for the Stage 2 fleet (Dec. 31, 1999, with an extension through Dec. 31, 2003, for those carriers which achieve an 85 percent Stage 3 fleet by mid-1999), it leaves to the FAA the task of determining a phaseout schedule for the intervening years. The legislation does allow local adoption of additional Stage 2 aircraft restrictions without DOT approval. However, it is uncertain whether adoption by the FAA of a comprehensive, nationwide phaseout schedule will pressure local airport operators not to adopt stricter standards.

Possibly a greater concern is the question of what considerations will most heavily influence the FAA in adopting a phaseout schedule. Although the FAA is to base the interim phaseout dates on "detailed economic analysis," several industry groups have contended that the FAA's past estimates of fleet replacement costs have been far too low to be realistic. Economic concerns may prove to be even more troubling to FAA now, as a number of carriers, such as debtridden Continental, Eastern, Pan American, and TW A, are facing a financial abyss, spurred in large part by rising fuel costs. Indeed, even the chairman of American Airlines, one of the financially stronger carriers, recently pronounced the industry in critical condition in a meeting with Secretary of Transportation Samuel Skinner. With the industry's debt ratings plummeting quickly and an already stagnant equities market, it is difficult to foretell how aggressively FAA will pursue Stage 2 phaseout in advance of the ultimate operating ban dates reflected in the statute.

The FAA will be left to sort out these issues in the upcoming rule makings to implement the national aviation noise policy. Because of the break-neck speed with which this law was written, the agency has little congressional guidance in forging the new rules. There is virtually no legislative record from which the FAA can divine the intent of Congress on many of these important questions. In past situations, federal agencies have been expected to rely on their expertise in a specific matter when developing rules to implement laws passed by Congress. However, the FAA is entrusted primarily with promoting aviation safety and is not necessarily expert in assessing the impact of this new law which is essentially environmental in character. Therefore, it is critical that communities, airport operators, and other affected parties carefully review and comment upon the proposed rulemaking, and that FAA seriously consider this input as it attempts to fill in the gaps in the new law in the months ahead.

Joanne Young is a partner in the Washington, New York, and London law firm of Lord Day & Lord, Barrett Smith, where she specializes in representing airports, U.S. and foreign airlines, and aviation-related businesses before U.S. government agencies, Congress, and the courts as well as in commercial and financing matters.

Her firm has handled a number of aircraft noise-related matters involving the Port Authority of New York and New Jersey, and assisted clients in regard to the imposition of the ban on Stage 1 aircraft operations in 1985. In October of this year. Ms. Young testified on behalf of the Coalition for Aircraft Modernization. an industry group to which she serves as general counsel, before the House Aviation Subcommittee on development of a national aviation noise policy.

A graduate of Weslyan University and the Georgetown University Law Center, Ms. Young previously served with the Civil Aeronautics Board, and clerked for the current chief judge for the District of Columbia courts. She has served on the Board of Trustees of Wesleyan University.