The Port Authority's Response. Although the Port Authority originally had banned the Concorde from JFK for a period not to exceed six months, the agency ultimately established March 10, 1977 a full year after its initial resolution as the date it would render a definitive decision on this important issue. In the period of more than a year since Secretary Coleman's decision, a wealth of new data had been complied to aid the Authority in its task, including monthly progress reports on SST operations at Dulles. All consultants had completed their work and reported their conclusions, and the Port Authority had decided not to authorize any further funding for efforts to quantify Concorde noise. The Commissioners nevertheless answered the airlines' latest initiative by postponing consideration of Concorde landings from March 10 to "a later date." An accompanying press release claimed this course was chosen out of "fairness" to the airlines, implying that they had proved for the first time their aircraft's capability to meet the 112 PNdB rule. But in fact, from the first tests in 1974, there had never been a shred of evidence indicating the SST's inability to meet the rule, and the March 7 submission merely proved the Concorde even quieter than theretofore supposed. In this
context it is not surprising that the airlines immediately notified the Port Authority that "our patience has run out," and sought relief in federal court.
Litigation, Round 1. On May 11, 1977 Judge Pollack dissolved the Port Authority's ban on Concorde, reasoning that Secretary Coleman's decision to accord the plane limited permission to land in this country preempted any contrary exercise of local authority. British Airways v. Port Authority, 431 F.Supp. 1216 (S.D.N.Y.1977). This court, with the concurrence of the government as amicus, reversed. We held that federal law contemplated a limited role for airport proprietors. We decided that their task was to promulgate reasonable rules to abate noise in the airport and its environs. We also remanded for an evidentiary hearing to ascertain whether the Port Authority had exercised its responsibility in a "fair, reasonable and nondiscriminatory manner" or whether, as urged by the airlines and the United States, the thirteen month delay as it was then in promulgating a uniform noise standard for the Concorde was unreasonable, discriminatory and hence illegal.
The Port Authority's Response. Five days before the mandated hearing, on July 7, 1977, the Port Authority's Commissioners voted to indefinitely extend the "temporary" ban imposed sixteen months earlier. The Authority merely reiterated what had been known for years that the Concorde had "unique characteristics including that on landing (it) has a high level of low frequency energy." Despite the receipt of monthly progress reports from Dulles since the inception of service there, the Authority had now grasped another excuse for non-action: it would await a final federal compilation of Concorde data, due in late September. This is puzzling, of course, in light of the Port Authority's repeated disavowal of earlier federal studies favorable to the SST, and its assertion of complete independence in conducting its own examination of Concorde noise. [FN5] And even more perplexing, since the work of its consultants had ceased four months earlier, was the Authority's statement that a "vibration-rattle index is being further studied."
Ensuing Action. Neither advocates nor opponents of the Concorde have declared a truce while awaiting our review of the district judge's order. Recently several members of Congress urged that the federal government restudy low frequency vibrations. But, on September 15, 1977 Secretary of Transportation Brock Adams, in separate letters to Elmer Staats, Comptroller of the Currency, and Port Authority Director of Aviation Morris Sloane, declared that it was "unnecessary to define and quantify a vibration-rattle index before initiating regulatory action on new noise standards." In fact, Secretary Adams reported, the vibrations emitted by the SST were no greater than those induced by long range subsonic aircraft, such as the B-747 and DC-10. And since these aircraft have been flying into JFK for several years without apparent rattle problems, the Secretary believed increased structural damage and annoyance to be "improbable." Indeed, the Dulles demonstration, Adams stated, had shown that vibration levels were even less than originally anticipated. [FN6] Dr. Kryter's report, in the opinion of the Department of Transportation, had not raised any new questions, and the existing data was sufficient to justify the inception of public notice and comment procedures for certification of the Concorde without further delay.[FN7] This course was followed eight days later when President Carter decided to permit existing Concordes to fly into thirteen American cities, including New York, without requesting further vibration research.
[FN7] A Department of Transportation Information Brief, issued on September 1, 1977, and entitled "Noise Spectra of Concorde and Subsonic Aircraft During Approach" states:
It seems probable that agreement and/or acceptance of any "vibration-rattle index" would be very unlikely, even after a lengthy and complex research program. Actually, such a program appears to be a useless undertaking. Recent analyses of the low frequency spectra of the Concorde and long-range subsonic aircraft indicate little difference in their potential for inducing structural vibration. Moreover, despite protestations to the contrary by the appellants, our independent examination of recent reports issued by NASA and the Environmental Protection Agency similarly discloses no significant commitment to further study of SST vibrations.
The law simply will not tolerate the denial of rights by unwarranted official inaction. Cf. NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 265-66, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969); Nader v. FCC, 172 U.S.App.D.C. 1, 520 F.2d 182 (1975). If ever there was a case in which a major technological advance was in imminent danger of being studied into obsolescence, this is it. There comes a time when relegating the solution of an issue to the indefinite future can so sap petitioners of hope and resources that a failure to resolve the issue within a reasonable period is tantamount to refusing to address it at all. The same is true of studying the question in such a manner that the issue will disappear by sheer frustration or the assumption by another institution in this case the courts of the task of deciding a charged dispute whose resolution otherwise is the duty of the agency. The hour is at hand for the Port Authority's indefinite ban on Concorde flights to be recognized as an abdication of responsibility. The airlines should no longer be forced to suffer the consequences of such illegal delay.
Our initial opinion in this case delineated the extremely limited role Congress had reserved for airport proprietors in our system of aviation management. Common sense, of course, required that exclusive control of airspace allocation be concentrated at the national level, and communities were therefore preempted from attempting to regulate planes in flight. See Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1958); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir.), cert. denied 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969). The task of protecting the local population from airport noise, however, has fallen to the agency, usually of local government, that owns and operates the airfield. Air Transport Assn. v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975) (three-judge court); National Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.1976). It seemed fair to assume that the proprietor's intimate knowledge of local conditions, as well as his ability to acquire property and air easements and assure compatible land use, cf. Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed. 585 (1962), would result in a rational weighing of the costs and benefits of proposed service. Congress has consistently reaffirmed its commitment to this two-tiered scheme, [FN8] and both the Supreme Court and executive branch have recognized the important role of the airport proprietor in developing noise abatement programs consonant with local conditions.[FN9]
[FN9] See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 635 n. 14, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Department of Transportation, Aviation Noise Abatement Policy (Nov. 18, 1976).
The district judge, after a hearing, found that the studies by the Authority's consultants were merely redundant of work already thoroughly performed by other agencies. This finding by the judge is not erroneous. We are not, of course, to be understood as saying that the Port Authority must slavishly accept Secretary Coleman's conclusions; but neither can it stall indefinitely when all the information at its disposal either confirms the SST's ability to meet existing noise rules or is impotent to dissuade other responsible officials that the impact of Concorde's low frequency energy emissions on airport neighbors will not be more than minimal at most.
While there are no absolute standards by which it may be determined that an inquiry is not being conducted with reasonable dispatch, a court will closely scrutinize the nature and character of the problems before the agency to assess whether the path it has chosen to pursue will resolve those issues in the reasonably foreseeable future. Cf. Deering-Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961). Thus, the Port Authority claims that its consultants have found the low frequency vibrations of the Concorde a unique source of annoyance, and begs our indulgence as it petitions for federal aid to develop a "vibration-rattle index". But the federal government shows little interest in the vibration problem, and the President has determined to permit Concorde service in thirteen American cities despite the alleged rattle. We presume the President's decision was prompted by reports, after sixteen months of operations at Dulles, proving SST-induced vibrations which Secretary Coleman had predicted to be "slight, brief and barely perceptible" even less noticeable than originally anticipated and essentially equivalent to those emitted by long range subsonic aircraft. Accordingly, it is highly unlikely that the federal government will soon expend large amounts of money on a project the development of a vibration-rattle index that the Department of Transportation dubs a "useless undertaking".
Moreover, it is also clear that the Port Authority is not willing to finance such a project. Dr. Kryter as long ago as March of this year reported significant progress in quantifying a vibration-rattle index. In his opinion the elusive mystery of additivity could be unlocked in less than one year, although at considerable cost. The Port Authority has shown no inclination to fund such an endeavor, yet seeks our sanction to ban Concorde flights while we await development of a noise standard that may never eventuate. We would be remiss if we were to allow the Port Authority to dawdle further on the basis of studies that by its own admission are inconclusive in a manner that threatens irreparable economic injury [FN11] and constitutes treatment that is anything but even-handed. See Office of Communication of the United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543 (1969) (Burger, J.).
Accordingly, we affirm the order of the district court so far as it dissolves the ban on SST flights at Kennedy Airport and permits the Concorde to serve New York under conditions detailed in federal operations specifications. Our holding, however, does not deny the Port Authority the power to adopt a new, uniform and reasonable noise standard in the future, [FN12] assuming the longstanding 112 PNdB rule, which the Concorde concededly can meet, upon reasoned grounds is deemed inadequate. The district court's order is modified insofar as it fixes 112 PNdB as the only possible standard against which the Port Authority legally can measure the permissible noise of supersonic aircraft at JFK.