AVIATION NOISE LAW
British Airways Board v. Port Authority of N.Y. and N.J. et al.
Cite as: 558 F.2d 75


U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT

BRITISH AIRWAYS BOARD and Compagnie Nationale Air France, Plaintiffs-Appellees,
v.
The PORT AUTHORITY OF NEW YORK and New Jersey, William J. Ronan, W. Paul Stillman,
James G. Hellmuth, Victor R. Yanitelly, Milton A. Gilbert, James C. Kellogg, III, Alan Sagner,
Joseph F. Cullman, III, et al., Defendants-Appellants.

No. 1403, Docket 77-7237.

Argued June 1, 1977.
Decided June 14, 1977.


COUNSEL:

Patrick J. Falvey, Gen. Counsel, The Port Authority of N.Y., and N.J., New York City (Joseph Lesser, Isobel Muirhead, Arthur Berg, Vigdor D. Bernstein, Benjamin R. DeCosta, Sholem Friedman, New York City, of counsel), for defendants-appellants.

Peter J. Nickles, Washington, D. C. (William C. Clarke, New York City, William H. Allen, John M. Clear and Covington & Burling, Washington, D. C., of counsel), for plaintiff-appellee British Airways.

Stanley Godofsky, New York City (John A. Wells, Stephen R. Froling, Timothy R. Cappel and Rogers & Wells, New York City, of counsel), for plaintiff-appellee Air France.

Geoffrey M. Kalmus, New York City (Charlotte M. Fischman and Nickerson, Kramer, Lowenstein, Nessen, Kamin & Soll, New York City, and John F. Hellegers, Environmental Defense Fund, Inc., Washington, D. C., of counsel), for amici curiae Friends of the Earth, Inc., Metro Suburban Aircraft Noise Ass'n, Inc., Howard Beach Ass'n, Inc., The Hudson River Valley Council, The Emergency Coalition to Stop the SST, Joseph R. Lewis and Carol Berman.

James R. Moorman, Acting Asst. Atty. Gen., Washington, D. C. (Edmund B. Clark and Peter R. Steenland, Jr., Washington, D. C., of counsel), filed a brief for the U. S., amicus curiae.

Henry L. Diamond, Washington, D. C. (Beveridge, Fairbanks & Diamond, Washington, D. C., of counsel), filed a brief for Government of the United Kingdom, amicus curiae.

Charles G. Goodell, Washington, D. C. (Hydeman, Mason & Goodell, Washington, D. C., of counsel), filed a brief for Government of France, amicus curiae.

Louis J. Lefkowitz, Atty. Gen. of State of N.Y., New York City (Samuel A. Hirshowitz, First Asst. Atty. Gen., Philip Weinberg, John F. Shea, III, New York City, of counsel), filed a brief for State of N.Y., amicus curiae.

Evelle J. Younger, Atty. Gen. of State of Cal., Sacramento, Cal. (Larry C. King, Deputy Atty. Gen., Sacramento, Cal., of counsel), filed a brief for State of Cal., amicus curiae.

William D. Denson, New York City, filed a brief for amici curiae Town of Hempstead, Village of Lawrence, Village of Cedarhurst, Village of Atlantic Beach, Robert F. Check, Mona Gottesman and Herbert Warshavsky.

Before KAUFMAN, Chief Judge, and MANSFIELD and VAN GRAAFEILAND, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

Fifty years ago almost to the day from the argument in this case Charles Lindbergh traversed the Atlantic to Paris aboard the Spirit of St. Louis in an astonishing 33 1/2 hours, an achievement that was hailed around the world. Today, as the result of an expensive joint venture, France and Britain offer a return voyage of only one-tenth that duration. Unfortunately, instead of engendering closer ties, the Ango-French Concorde has thrown traditionally staunch allies into legal warfare over the future of supersonic aviation. As in so many cases in which a political solution is preferable, the parties find themselves in a court of law.

Our task is to review the judgment of the district court dissolving the Port Authority's temporary ban on SST flights at John F. Kennedy International Airport. The court below found that the Secretary of Transportation, in ordering a 16 month operational test of the Concorde, had preempted the Authority's power to abate, through its temporary ban, the noise generated by the Concorde during landings and take-offs. We disagree, and believe that Congress provided for the promulgation by airport proprietors of reasonable regulations to establish acceptable noise levels for the airfield and its environs. Accordingly, we reverse. We also remand for an evidentiary hearing on the reasonableness of the Port Authority's 13 month ban in accordance with the views expressed in this opinion.


I.

A brief summary of the facts is indispensable for an understanding of the legal issues before us.

The Port Authority's tradition of noise regulation. The rapid development of commercial aviation after the Second World War engendered, for the first time, an urgent need to protect neighbors of thriving metropolitan airports from the deafening noise of overflying aircraft. Moreover, as experience with the still greater din of military jets accumulated, far-sighted community planners began to anticipate the need to accommodate commercial jet aviation with the legitimate yearning of city dwellers for a livable environment.

The Port Authority of New York and New Jersey, operator of New York's Kennedy International Airport, was one of the first to recognize the environmental challenge of civil jet aviation. In 1951, the Authority adopted a regulation, still in force, prohibiting any jet from landing or taking off without permission at any facility operated by the Authority. The purpose of this regulation was to make it clear to the developers of the first commercial jets that elimination of excessive noise was as important an element of design as safety or speed. This message was driven home in the early 1950s, when an initial model of the British-made DeHavilland Comet was denied permission to land at New York International Airport because its noise level was deemed intolerable to the surrounding communities. Shortly thereafter the Port Authority similarly denied landing permission to Boeing's prototype jet transport.

By 1955, the Port Authority recognized that the imminent jet age would require more than an ad hoc program of noise control. Accordingly, a consulting firm was retained and charged with evolving a measure of noise that would reflect subjective reactions to the irritating high-pitched whine of jet airplanes. Careful study revealed that an ordinary person heard 112 PNdB (perceived noise in decibels) emitted by a jet as substantially equivalent to the sound produced by the standard DC-6B propeller aircraft. This single-event noise level, as registered at selected sites, was adopted as the permissible maximum. After thorough flight-testing, and development of take-off and landing procedures that substantially reduced noise, the Comet and the Boeing 707 were accorded landing rights. Thereafter, until the Port Authority's resolution of March 11, 1976, which banned the supersonic transport "Concorde" from Kennedy Airport and spawned this litigation, the 112 PNdB standard was uniformly applied to all aircraft seeking landing permission at Kennedy.

The Port Authority justifiably takes pride in its tradition of noise regulation. Over the years it has consistently welcomed each advance in commercial aviation, provided progress was not achieved by sacrificing the well-being of the hundreds of thousands of people who reside in the vicinity of Kennedy Airport. The Authority's firmness, coupled with the implicit promise that advanced aircraft would be permitted to land if they satisfied reasonable noise regulations, has undoubtedly contributed greatly over the years to the development of ever-quieter jet planes.

The Concorde. Britain and France decided in 1962 to embark upon a dramatic joint venture: the development of a supersonic jet airliner, the Concorde. This ambitious enterprise was more than an economic investment. The Concorde was the response of two proud nations to the growing American domination of the international aircraft market and a symbol of the era of European cooperation that then appeared at its zenith.

The developers of the Concorde were well aware of the importance of minimizing noise. Their hope was to develop an engine that would produce no more sound than the noisiest of the subsonic planes. Accomplishment of this goal would be a formidable technological achievement, because the engines of the Concorde required an enormous potential thrust in order to drive the aircraft at speeds faster than sound. The English and French spent more than $100 million just to moderate the noise of the Concorde, and over a period of 13 years a total of almost $3 billion has been expended on the plane's development.

The United Kingdom and France have thus staked immense capital and even greater national pride on the success of the Concorde. This success, our allies maintain, must remain an idle dream unless the supersonic airliner is permitted to land in New York, the principal gateway between Europe and the United States. The operators of the Concorde urge that their plane can meet the 112 PNdB standard that the Port Authority applies to other aircraft and desire merely to prove, by actual experience, that the airliner will not cause an intolerable deterioration in the noise environment around Kennedy Airport.

The Coleman decision. The Concorde was ready to commence commercial operations in 1975. In late summer British Airways and Air France applied to the Federal Aviation Administration for an amendment of their operations specifications to permit the use of the SST in transatlantic service to the United States. See 14 C.F.R. s 129. Approval of the airlines' applications could hardly have been entrusted to the routine processes of the FAA: the potential promise of supersonic jet aviation, the special importance of the Concorde to two of America's closest allies, and the serious environmental questions raised by the aircraft, all required a decision by the cabinet officer responsible for transportation, on the basis of a carefully prepared environmental impact statement. Secretary William T. Coleman's decision is the very paragon of a clear and considered administrative action.

Secretary Coleman directed the Federal Aviation Administration to order provisional amendment of the airlines' operations specifications to permit each carrier to conduct up to two Concorde flights daily into John F. Kennedy International Airport and one per day into Dulles International Airport. These amendments were not to be effective beyond 16 months from the commencement of commercial service and could be revoked immediately in the event of an emergency or at any time on four months notice. Secretary Coleman, in addition, provided a detailed scheme for regulation of the Concorde's noise: the plane was required to observe a 10 p. m. to 7 a. m. curfew and to abide by noise abatement procedures, including a sharp left turn upon takeoff, as prescribed by the FAA. The operations specifications were amended in accordance with the Secretary's order on April 2, 1976.

In Secretary Coleman's view, a testing period of actual Concorde operations was an essential prelude to the final decision on the aircraft's acceptability in the United States. The Concorde, whatever imperfections it may have, is a potentially revolutionary development in transportation. Only the knowledge concerning the demand for supersonic air transportation that comes from testing the product will tell us whether the revolutionary possibilities are likely to be realized and whether the massive investment in research required to overcome the plane's present environmental deficiencies is justified. Moreover, the community reaction to Concorde noise is a subjective matter that cannot be predicted accurately without actual Concorde operations. Thus, the very dimensions of the most significant environmental drawback of the Concorde are impossible to determine without an adequate test.

The 16-month testing period approved by Secretary Coleman is important not only to assure that the federal decision on the Concorde will be a fully informed one; it provides in addition a critical assurance to Britain and France that the United States is determined to afford the Concorde a fair trial. Secretary Coleman emphasized the massive commitment of their treasury and prestige that the British and French have invested in the Concorde, as well as the economic importance to these hard-pressed nations of reacquiring a competitive position in the world aviation industry. Our decision on the SST, a matter of such vital importance to two of our closest allies, is certain to affect the structure of our foreign policy. Indeed, the essential treaty arrangements for international aviation may be undermined by a determination on the Concorde that Britain and France perceive to be unjust, as they surely would a ban without a fair trial.

In ordering that a test be permitted at Kennedy Airport, Secretary Coleman considered very carefully the impact of the limited Concorde landings on the airport's neighbors. He recognized that the Concorde differs from other jets because the sound produced by its engines is of a relatively low pitch. The plane's deep rumble causes minor structural rattling and an increased likelihood of penetration of the sound into buildings. Coleman concluded, however, on the basis of a comprehensive survey of the evidence, that "these vibrations do not present any danger of structural damage and little possibility of annoyance." The principal difference between the Concorde and subsonic aircraft, we are told, is that the SST's sound carries farther. Secretary Coleman found, however, that the addition of eight Concorde flights a day at Kennedy, under the restrictions imposed by his order, would have but a marginal impact on the noise environment near the airport. The Secretary concluded,

Although I am deeply concerned about the additional irritation that these few demonstration flights may cause for some individuals . . ., I believe that this environmental cost is outweighed by the benefits that will accrue to the American people from the demonstration.
Notwithstanding this careful consideration of the interests of the people near Kennedy Airport, and notwithstanding the noise regulations of the Secretary's order, which were designed to afford protection to the airport's neighbors, Secretary Coleman explicitly recognized the right of the Port Authority to refuse landing rights to the Concorde:
The FAA is the proprietor of Dulles and it is therefore part of my decision today to direct the Federal Aviation Administrator to permit one Concorde flight per day at Dulles by each carrier under the conditions noted. The situation with respect to JFK may be complicated by the fact that under federal policy that has hitherto prevailed a local airport proprietor has had authority under certain circumstances to refuse landing rights. If for any legitimate and legally binding reason it should turn out that the JFK part of the demonstration could not go forward and no one has indicated to me any such final disposition by JFK's proprietor that would obviously be extremely unfortunate and would greatly diminish, but in my opinion it would not destroy, the validity of the demonstration.
Secretary Coleman, his successor Brock Adams, and President Carter have all repeatedly avowed that the Coleman order did not preempt the Port Authority's right to exclude the Concorde pursuant to a reasonable, nondiscriminatory noise regulation. The United States has reaffirmed this position in its amicus brief to this Court.

The Port Authority ban on the Concorde. The Port Authority did not apply its 112 PNdB rule to the Concorde. Rather, it raised what it considered significant questions regarding the adequacy of its existing noise rule to regulate special characteristics of the SST's low frequency sound. Thus, the Port Authority considered the adverse environmental effects of the Concorde's low-pitched noise worthy of more study. And, the Port Authority expressed concern that the total area exposed to the rumble of Concorde flights would be considerably greater than the equivalent area for subsonic aircraft.

The Port Authority agreed with Secretary Coleman that the subjective reaction of people exposed to Concorde noise needed further inquiry under actual operating conditions but declared that further evidence was needed before the large number of people living near John F. Kennedy Airport were exposed to Concorde noise. Accordingly, on March 11, 1976, the Concorde was banned from Kennedy pending a six-month study of operating experience at Dulles in the United States, and Charles DeGaulle and Heathrow Airports in Europe. The Concorde began commercial flights to Washington in May, 1976, over 13 months ago. The Authority has not concluded its inquiry and, accordingly, has not considered what noise regulation would be appropriate for the special characteristics of the Concorde assuming that the existing and well-established 112 PNdB rule were found inadequate.

Air France and British Airways commenced this action to enjoin the Port Authority ban on March 17, 1976. The airlines urge that the Authority's action violates U.S. treaty commitments, interferes with the foreign affairs power of the federal government, and is preempted by Secretary Coleman's authorization of Concorde landings at JFK and provision of detailed regulations for noise control at the airport. These contentions form the grounds for the summary judgment motion Judge Pollack granted and that we are now called upon to review. The airlines also maintain that the Port Authority's ban is discriminatory and an undue burden on commerce. This allegation, however, which we understand the United States to support, was excluded as a ground for the summary judgment.

Continued in Part Two