AVIATION NOISE LAW
British Airways Board v. Port Authority of N.Y. and N.J. et al.
Cite as: 564 F2d 1002


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, Paul Stillman, James G. Hellmuth, Victor R. Yanitelli, Milton A. Gilbert, James C. Kellogg, III, Alan Sagner, Joseph F. Cullman, III, Jane Englehardt, Lewis L. Glucksman, Robert F. Wagner, Commissioners of the Port Authority of New York and New Jersey, and Howard Schulman, Commissioner Designate of the Port Authority of New York and New Jersey, Defendants-Appellants.

No. 287, Docket 77-7438

Argued Sept. 19, 1977
Decided Sept. 29, 1977


COUNSEL:

Patrick J. Falvey, Gen. Counsel, The Port Authority of New York and New Jersey, New York City (Joseph Lesser, Isobel E. Muirhead, Arthur P. Berg, New York City, Vigdor Bernstein, Pomona, N. Y., Benjamin R. DeCosta, St. Albans, N. Y., 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, Eugene D. Gulland, John Michael Clear and Covington & Burling, Washington, D. C., of counsel), for plaintiff-appellee British Airways Board.

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

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

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

IRVING R. KAUFMAN, Chief Judge:

Four days after oral argument of this case, the President of the United States decided to permit supersonic transport aircraft service to thirteen American cities under specified restrictions. The President's decision followed sixteen months of demonstration flights at Dulles International Airport in Virginia by the Anglo-French Concorde, during which the noise and vibration levels of the aircraft were carefully monitored. A similar test at New York's John F. Kennedy International Airport, requested by the Secretary of Transportation and which the President "continues to support . . . pending a decision on the final (federal) noise rule," has yet to commence because the airport's proprietor, the Port Authority of New York and New Jersey, refuses to promulgate an acceptable noise rule for supersonic aircraft. Our sole task is to determine the legality of the total ban, which has now endured for more than one and one-half years, imposed by the Port Authority on Concorde flights into Kennedy pending an alleged effort to develop a noise standard.

This case, of course, is no stranger to our court. More than three months ago, after a careful review, we held that the Port Authority possessed the power and bore the responsibility to establish fair, even-handed and nondiscriminatory regulations designed to abate the effect of airplane noise on surrounding communities. British Airways v. Port Authority, 558 F.2d 75 (2d Cir. 1977) ("Concorde I"). We urged in that opinion that the Port Authority conclude its study and fix reasonable noise standards "with dispatch", for it was apparent that procrastination would only exacerbate the economic injury already suffered by the airlines, hinder legitimate efforts to determine the technological and commercial feasibility of supersonic aviation and further strain our foreign relations. We also directed Judge Pollack to conduct an evidentiary hearing to determine whether the Port Authority's then 13 month delay in promulgating noise regulations applicable to supersonic aircraft was so excessive as to constitute unfair discrimination and an undue burden on commerce.

It was our intention, in deciding as we did, to give the Port Authority another opportunity to come to grips with the problems posed by this clash of opposing forces. We hoped it would resolve the strife being generated by this litigation by, at the least, deciding to promulgate a noise rule equally applicable to all planes landing at Kennedy, without the court's intervention on the details of the Rule.

To this day the Port Authority has demonstrated total resistance in responding to the airlines' desire to secure a fair test of their aircraft in New York. Moreover, it is plain from its public statements that the Authority has no intention to resolve this critical issue in the foreseeable future. We cannot countenance such abdication. Accordingly, we will affirm the order of the district court, enjoining further prohibition of Concorde operations at Kennedy Airport until the Port Authority promulgates a reasonable, nonarbitrary and nondiscriminatory noise regulation that all aircraft are afforded an equal opportunity to meet. We have also found it necessary, however, to modify Judge Pollack's order as hereafter indicated.


I. FACTS

The Port Authority's 112 PNdB Noise Rule. The onslaught of civil jet aviation after World War II sorely tested our nation's commitment to make technological progress environmentally acceptable. As the proprietor of two airports in America's most populous city, the Port Authority of New York and New Jersey was thrust at an early date into the forefront of efforts to accommodate the needs of commercial aviation with the understandable desire of airport neighbors to enjoy a reasonable degree of peace and tranquility. Thus, in 1951 the Authority adopted a regulation prohibiting use of any of its facilities without permission. This rule vividly demonstrated the Port Authority's determination to compel the manufacture of quieter aircraft, a desire which was soon underscored by its refusal to accord landing rights to certain jet airplanes whose din was deemed intolerable to surrounding communities.

Both the vital importance of the aviation industry to the national economy and basic considerations of fairness, however, required that even the appearance of whim and caprice be eliminated from critical decisions concerning airport access. The Port Authority accordingly retained a consulting firm in 1955, and charged it with developing a method of meaningful quantification of the relative reactions of individuals to the quite different character of noise produced by existing propeller driven aircraft and newer jet engines. By 1958 it was demonstrated that an ordinary person heard 112 PNdB (perceived noise in decibels) emitted by a jet as substantially equivalent to the sound produced by a DC-6B piston airplane. The Port Authority therefore adopted 112 PNdB, as registered at selected monitoring points, to be the maximum permissible noise limit for all aircraft wishing to use John F. Kennedy International Airport.

The Port Authority's noise standard, of course, was not intended to transform Jamaica Bay and environs into a sylvan glen. By requiring only that the next generation of civil aircraft be no louder than its noisiest predecessor, the Authority sought a standard which it believed would prevent further deterioration of the area surrounding JFK. The aircraft industry was assured that any plane able to meet the standard, either through quieter engines or noise abating operating procedures, would be welcome in New York. In fact, until the Port Authority imposed the ban on supersonic aircraft that is challenged in the instant suit, not a single jet airplane that met the long-standing 112 PNdB rule was denied access to Kennedy Airport.

SST Noise. Since New York is this country's most important international gateway, it is not surprising that the manufacturers of the Concorde, the world's first supersonic commercial passenger airplane, communicated their desire to use JFK to the Port Authority more than seven years ago. At that time John R. Wiley, the Authority's Director of Aviation, warned that SSTs would "be required to meet the same noise levels as will be demanded of subsonic aircraft." In fact, those who built the Concorde were well aware that its noise posed a serious objection to American acceptance of the plane. Accordingly, the French and British spent nearly $100 million on noise abatement alone.

Before requesting specific permission to use Kennedy Airport, the owners of Concorde compiled reams of data concerning the likely effects of its noise on airport neighbors. In a series of tests conducted in late 1974 at Casablanca, Morocco and Toulouse, France, the manufacturers of the aircraft proved in conditions closely simulating those at JFK that the Concorde could consistently meet a 109 PNdB standard. Indeed, it was reported that the "Boeing 707 under (its) flight path (had) a distinctly greater spectral content in the more annoying frequency range bands, compared with Concorde." Moreover, the incremental impact of adding several Concorde flights to an already busy airport was found to be minimal. And further testing in January, 1976 demonstrated that even fewer individuals than originally anticipated would be adversely affected by the introduction of Concorde at JFK.

Federal Action. In late summer 1975 British Airways and Air France, confident of their aircraft's ability to satisfy applicable regulations, applied to the Federal Aviation Administration for permission to use the SST in transatlantic service to the United States. A thorough Environmental Impact Statement was prepared, and formed the basis for Secretary of Transportation William T. Coleman's careful and comprehensive decision of February 4, 1976, to order provisional amendment of the airlines' operations specifications to permit each carrier to conduct up to two flights daily into Kennedy and one per day into Dulles International Airport. This grant was accompanied by stringent conditions. For example, the Concorde could not travel at supersonic speeds over land areas; it had to observe a 10 P.M. to 7 A.M. curfew; and the aircraft was directed to abide by strict noise abatement procedures as prescribed by the F.A.A. In addition, these amendments were not to be effective beyond sixteen months from the commencement of commercial service. Finally, Secretary Coleman explicitly provided that all flights would cease immediately "in the event of an emergency deemed harmful to the health, welfare or safety of the American people."

Before rendering his decision, which we have termed "the very paragon of a clear and considered administrative action", Concorde I, supra at 80, Secretary Coleman painstakingly discussed both the traditionally recognized component of Concorde noise (addressed by the Port Authority's 112 PNdB rule) and its purportedly unique capacity to emit substantial low frequency vibrations. Based on his review of voluminous data, Coleman concluded that the noise of a Concorde at its source was indeed louder than that produced by subsonic aircraft under similar conditions. But this revelation was only the beginning of analysis, for relevant regulations are carefully calculated to reflect the relative subjective impact of aircraft noise on individuals living in the vicinity of airports. In fact, to focus upon the absolute energy emission levels of Concorde's engines without considering the mitigating effect of noise abatement procedures as the amicus curiae does in this case is as empty an exercise as inquiring of a Kantian philosopher whether a tree falling in a deserted forest can be "heard."

Coleman thus turned for guidance to a federally prepared Noise Exposure Forecast (NEF), which described the cumulative effect of all aircraft operating at JFK within the course of 24 hours. This index, which included corrections for the discrete whine of certain jet aircraft and penalized flights scheduled during normal sleeping hours, revealed that the addition of eight Concorde flights a day would produce only a negligible impact on the communities surrounding JFK. More specifically, the descriptor indicated that the number of people residing within the NEF 30 contour a term of art applying to those instances in which certain individuals "may complain" would increase by only 0.4%, from 485,000 to 487,000; and within the NEF 40 zone in which "repeated vigorous" complaints would be forthcoming from 112,000 to 114,000, or by 2%. Overall noise in each contour would increase by about 0.3%. Although this meant that a greater number of people would be subjected to a somewhat noisier environment, the Secretary cogently noted that an identical effect would be created (without amending any operating certificates) simply by the addition of "a few extra flights by . . . B-707's or DC-8's."

Secretary Coleman also recognized that the sound produced by the Concorde's engines is of a relatively low pitch and thus qualitatively different from that emitted by subsonic aircraft. The plane's deep rumble, he said, would cause minor structural shaking; and the fact that its sound readily penetrates buildings would result in the rattling of dishes and other non-stationary objects within homes. Coleman concluded, however, after a comprehensive survey of the evidence, that "these vibrations do not present any danger of structural damage and little possibility of annoyance." In fact, under the strictly limited regime contemplated in his order, the Secretary was confident that the resulting irritation would be slight, and the Concorde induced vibrations "brief and barely perceptible."

In the end, Coleman recognized that a testing period of actual Concorde operations was an essential prelude both to the final decision on the aircraft's acceptability in the United States and to the determination whether public hostility in America's premier commercial center made the development of a second, quieter generation of SSTs economically unfeasible. Raw data alone cannot forecast community response to SSTs, for every individual reacts differently to noise. The sixteen-month demonstration ordered by Coleman was thus a crucible in which to assay subjective attitudes of airport neighbors and our willingness to fairly assess the issue of supersonic transportation. In the words of this court, "the very dimensions of the most significant environmental drawback of the Concorde are impossible to determine without an adequate test." Concorde I, supra, at 80.

The Port Authority's Response. While technicians strove to project scientifically the community response to Concorde noise, local leaders on the political scene lobbied to prevent SST landings at Kennedy. On January 5, 1976 New York State Commissioner of Transportation Raymond Schuler conveyed Governor Carey's unqualified opposition to Concorde to Secretary Coleman at a public hearing; he testified to the same effect six weeks later before the Port Authority's Operations Committee. The New York Legislature simultaneously passed a bill banning all SSTs from Kennedy Airport.[FN1] Although we do not know the impact of these actions on the Commissioners of the Port Authority, who are appointed by the Governors of New York and New Jersey, soon thereafter on March 11, 1976 the Concorde was banned by the Authority from JFK for a period not to exceed six months, during which operations at Dulles, Charles de Gaulle and Heathrow Airports were to be monitored and analyzed.

[FN1] This legislation was not binding on the Port Authority, since a similar bill failed of enactment in the New Jersey legislature.
In taking this action, the Port Authority did not apply its existing and well-established 112 PNdB rule to the Concorde. Rather, it suggested that the unique low frequency vibrations produced by the SST's engines "were not necessarily reflected" in the current noise standard. Although Secretary Coleman found the adverse environmental effects of the Concorde's low pitched sound to be negligible, the Port Authority concluded the issue warranted further study. And while the Authority agreed with the Secretary that the subjective reaction of people exposed to SST noise needed further inquiry under actual operating conditions, it questioned whether such testing at JFK was in the "public interest."

The Authority also believed it was necessary to retain consultants who would further study the SST and quantify the vibration problem in a manner that would accurately predict community reaction to this unique component of the SST's noise profile. Accordingly, on May 24, 1976 the day that flights began in Washington, D.C. and more than three months after Coleman's exhaustive decision the Port Authority engaged Dr. Karl Kryter of the Stanford Research Institute to examine Concorde noise.[FN2]

[FN2] Six months later, on November 8, 1976, the Port Authority employed Dr. Aubrey McKennell, a British psychologist, to conduct an attitude survey of the people living near Heathrow Airport. Although McKennell observed in his final report, dated March, 1977, that "the majority of those who had heard Concorde said its noise was less disturbing than they had anticipated," he concluded that his study on the whole was "inconclusive."
Dr. Kryter spent several months recording onto magnetic tape the noise of all types of aircraft, including the Concorde, at JFK, Dulles, Charles de Gaulle and Heathrow Airports. By February, 1977 he had developed a formula that, in his words, "would allow one to a first order of approximation (to) say that if you had the 707 and the Concorde in a given mode of operation with a given level of noises commonly measured, what the relative difference in potential vibration would be." The critical importance of this research cannot be gainsaid, for it demonstrates that eight months ago the Port Authority's principal consultant had devised a means of relating household vibration to the SST's absolute noise levels, a "vibration-rattle index." What Kryter had not been able to do was correlate this figure with the amount of irritation an individual would experience at a given level of noise and vibration.[FN3]
[FN3] Thus, the Port Authority's 112 PNdB standard is a subjective measure of annoyance that equates the irritation engendered by a jet engine and the noisiest piston-driven aircraft, a DC-6B. The problem Dr. Kryter was unable to solve was the relative annoyance caused, for example, by a B-707 that emitted 112 PNdB k 1 vibration unit and a Concorde SST that might emit 110 PNdB k 3 vibration units.
When Dr. Kryter reported these results to the Port Authority in early March, 1977, he was asked to outline a proposal for solving this elusive problem of "additivity." But the Authority has never actually engaged Kryter, or anyone else, to pursue such research. Moreover, he has testified that an additivity study would consume six months to a year, and cost between $500,000 and $1 million. The Port Authority refused to embark upon such an expedition, and has not authorized a single penny to be spent on its completion. Neither, of course, does it wish to assay subjective reaction to vibration through actual test flights, as Secretary Coleman suggested. Thus it is not at all clear to us how the Port Authority intends to solve this additivity dilemma, if indeed it ever expects or wants to do so.

Airlines Submit Revised Operating Procedures. While the Port Authority found that the problems of Concorde noise were either intractable or capable of logarithmic expansion, the airlines continued to refine existing data that proved Concorde's ability to meet the longstanding 112 PNdB standard at JFK. Thus, by telex on March 7, 1977 the owners of Concorde detailed certain revised procedures entailing reduced operating weights, specific runway utilization assuring that 98% of departures would occur over water, and a "decelerated approach" making it graphically apparent that the Concorde's noise would not exceed 105 PNdB at any Port Authority meter. In addition, it was again established that the incremental disturbance of individuals within the NEF 30 and 40 contours would be negligible. On April 14 the F.A.A. confirmed the technical validity of the airlines' newest submission. It was now clear not only that the Concorde met the established 112 PNdB rule, but also that its perceived noise "footprint" [FN4] was comparable to that of the B707-320B.

[FN4] Much like isobars on a weather map, the noise "footprint" is created by drawing lines joining areas in the vicinity of an airport that experience the same level of noise from specific aircraft.


Continued in Part Two