AVIATION NOISE LAW
State of Minnesota v. Metropolitan Airports Commission
Cite as:


STATE OF MINNESOTA
COUNTY OF HENNEPIN
DISTRICT COURT, Fourth Judicial District

STATE OF MINNESOTA by the City of Minneapolis, Minneapolis Public Housing Authority in and for the City of
Minneapolis, City of Eagan, and City of Richfield; City of Minneapolis, Minneapolis Public Housing Authority in
and for the City of Minneapolis, City of Eagan, and City of Richfield
v.
METROPOLITAN AIRPORTS COMMISSION

and Northwest Airlines, Inc., Defendant-Intervenor.

Court File No. 27-CV-05-5474

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR PARTIAL SUMMARY JUDGMENT

Jan. 25, 2007


The above-entitled matter came duly on for hearing before the Honorable Stephen C. Aldrich, Judge of District Court, on December 20, 2006 on the parties’ cross-motions for summary judgment.

APPEARANCES:

Corey M. Conover, Esq., John E. Putnam, Esq., Lori Potter, Esq., among others, appeared on behalf of the Plaintiffs. (“Cities”).

Thaddeus R. Lightfoot, Esq., and Thomas W. Anderson, Esq., appeared on behalf of Defendant Metropolitan Airport Commission (“MAC”).

Thomas Tinkham, Esq., and Andrew Brown, Esq., appeared on behalf of Defendant-Intervenor Northwest Airlines, Inc. (“NWA”).

SUMMARY OF THE ARGUMENTS

On April 20, 2005 the cities of Minneapolis, Eagan, and Richfield, and the Minneapolis Public Housing Authority, the Cities, sued in the name of the State of Minnesota under the Minnesota Environmental Rights Act (“MERA”), Minn. Stat. §§ 116B.01, et seq. (2005), and the state mandamus statute, Minn. Stat. §§ 586.01, et seq. (2005), seeking declaratory relief and an injunction against the MAC to require MAC to provide the noise insulation first identified in the 1996 Noise Mitigation Program for homes in the DNL [FN 1] 60 to 64 dB noise contours of Minneapolis/St. Paul Airport (“MSP”). NWA was granted Defendant-Intervenor status on June 22, 2005.

[FN 1] "DNL" is a measure of average daily noise levels that incorporates a 10 decibel noise penalty between 10 p.m. and 7 a.m. The record and the parties use DNL 60-64 and DNL 60-65 interchangeably to include areas exposed to greater than DNL 60 decibels and less than DNL 65 decibels.
Plaintiffs’ MERA claims assert that residents in their communities experience every day the disproportionate effects of noise from MSP, that the loud flights “destroy the quietude of otherwise quiet neighborhoods,” that “quietude” is identified as a “natural resource” deserving of protection under MERA, and that the MAC is obligated to provide the previously agreed upon sound insulation measures under Minnesota law. Plaintiffs seek:

a) Count I - Declaration that the MAC has caused and is likely to cause pollution, impairment or destruction of a natural resource in violation of MERA and for associated equitable relief;

b) Count II - Declaratory judgment that the MAC violated environmental quality standards, limitations, rules, orders, licenses, stipulation agreements or permits as defined by Minn. Laws 116B.03(1) and for associated equitable relief; and/or, in the alternative,

c) Count III - A writ of mandamus to require the MAC to exercise its duties required by law.

In September 2006, Defendant MAC moved for summary judgment on all counts of the complaint. The MAC asserts:

a) Plaintiffs’ MERA claims fail because they seek to compel a specific remedy and urge judicial interference with the MAC’s legislative authority. Specifically, the claims involve breach of contract rather than the protection of natural resources.

b) The MAC is entitled to judgment as a matter of law on Count I because Plaintiffs contend the actionable conduct for their MERA claim is MAC’s operation and control of MSP—which is preempted by federal law. Thus, the only actionable conduct is the MAC’s proposed air-condition program which will not pollute, impair, or destroy the environment.

c) The MAC is entitled to judgment as a matter of law on Count II because the alleged “environmental quality standard” is not substantive—it was not promulgated by the MAC through the procedures delineated in their enabling statute.

d) Even if the MAC established an environmental quality standard with regards to Count II it had discretion to change the standard and utilized that discretion.

e) The Plaintiffs cannot establish the MAC has an unequivocal duty to implement a specific noise mitigation package with regards to Count III.

In November 2006, Defendant NWA moved for summary judgment on all counts. In addition to the arguments identified by the MAC above, NWA asserts:

a) Plaintiffs’ MERA claims fail because the indoor quietude of properties located in the 60-64 DNL contour is not a protected resource under MERA.

In November 2006, the Plaintiffs moved for partial summary judgment regarding Count II of their complaint. Plaintiffs assert:

a) The MAC unambiguously committed to provide mitigation to the 60-64 DNL contours in the form of the same five decibel reduction package provided in the DNL 65 and greater contours.

b) The MAC’s commitment to provide sound insulation is enforceable as an environmental standard or limitation pursuant to MERA.

Based upon the evidence adduced, the argument of counsel, and all of the files, records, and proceedings herein, this Court makes the following,


FINDINGS OF FACT

THE MAC AND ITS LEGISLATIVE AUTHORITY

1. In 1975 the Minnesota Legislature passed Minn. Stat. §§ 473.601 et seq. (2005) recreating the MAC and endowing it with broad powers to oversee all aspects of running MSP.

2. The MAC has specific authority, inter alia, to adopt and enforce rules, regulations, and ordinances, prosecute violators, exercise the right of eminent domain, acquire property, build new runways, enter into contracts, issue bonds to fund airport related interests (including noise abatement and natural resource protection measures regardless of location and ownership), and establish and collect rates, fees, charges and rentals for all airport facilities and determine how those funds will be spent. Minn. Stat. § 473.608.

3. The Legislature also charged the MAC with “assur[ing] the residents of the metropolitan area of the minimum environmental impact from air navigation and transportation, and to that end provide for noise abatement…and minimize the public s exposure to noise and safety hazards around airports.” Minn. Stat. § 473.602 (emphasis added).

NOISE MITIGATION AT MSP

4. The MAC and the City of Minneapolis began to study noise insulation for homes near MSP in 1984. See MAC and City of Minneapolis, Aircraft Noise Research Project at 1 (June 1987), Pls.’ Ex. 3. The joint study found that “[a]ircraft noise is a major problem for residents living near the Airport,” and that “[p]eople experienced problems with aircraft noise while living in noise contours of about 60 to 80 [DNL].” Id. at 1, 28.

5. In 1985, the Federal Aviation Administration (“FAA”) adopted 14 C.F.R Part 150 to provide airports with a framework to analyze and recommend measures to address airport noise. Part 150 provides for “corrective” mitigation measures, such as soundproofing, consistent with a 45 decibel interior noise level goal, and assumes an exterior-to-interior noise level reduction of 20 decibels based upon a home’s existing construction. Hefner Aff., Ex. 4 (Nov. 2004 Part 150 Study Update), App. N, p. 2 of 161.

6. Part 150 then establishes interior noise level reduction goals above existing attenuation levels for the 75, 70 and 65 DNL contour intervals to meet EPA’s interior noise level goal of 45 decibels or less. 14 C.F.R § 150.23; 14 C.F.R. pt. 150, App. A, § A150.101(e)(8) and Table 1, n.1. There are no FAA interior noise level reduction goals in the 60 to 64 DNL contours area. Id.

7. In 1992, the MAC developed a sound insulation program for the airport, which it implemented in 143 homes through MAC’s Residential Sound Insulation Pilot Program. Under the Pilot Program, the MAC established a noise reduction level goal of 10-15 decibels greater than base home noise level reduction for homes in the DNL contours greater than 75, 5-10 decibels of noise level reduction in the DNL 70-74 contours, and 5 decibels in the 65-69 DNL contours. See Part 150 Study Update at 8-10 to 8-11, Pls.’ Ex. 2.

8. After its experience with the pilot program, the MAC expanded and made some adjustments to the sound insulation program. Id. at 8-11, 8-12. MAC eliminated the differential noise level reduction goals for the different noise contours and then established a universal “5-Decibel Reduction Package” for all homes in the DNL 65-75 contours. Id. at 8-12.

THE DUAL TRACK AIRPORT PLANNING PROCESS AND EXPANSION OF MSP

9. In 1989, the Legislature enacted the Metropolitan Airport Planning Act (“MAPA”). See 1989 Minn. Laws ch. 279.

10. The MAPA required the MAC and the Metropolitan Council to A) project aviation demand for a prospective thirty-year period and to B) evaluate two alternative ways to meet aviation demand: (1) continue to develop MSP; or (2) develop a new replacement airport. This was known as the “Dual Track Airport Planning Process.” See Minn. Stat. § 473.618; Dual Track Final Environmental Impact Statement (“FEIS”), p. I-1; March 8, 1996 Nigel Finney memo to MAC re: Dual Track Airport Planning Process Recommendation, pp. 1-2.

11. As part of the process for approving the expansion of MSP, the MAC and the FAA were required to undergo an environmental review of the proposed projects—the MAC under the Minnesota Environmental Policy Act (“MEPA”) Minn. Stat. § 116D.01, et. seq., and the FAA through the National Environmental Policy Act (“NEPA”) 42 U.S.C. 4321, et. seq.

12. The MAC and FAA agreed to prepare joint Draft and Final Environmental Impact Statements for the Dual Track Process. The Draft EIS was released in December 1995. FEIS at i-ii.

13. The MAC also agreed with the Minnesota Environmental Quality Board (“EQB”) in 1992 to have EQB determine the adequacy of the FEIS for MEPA. FAA was responsible for issuing a Record of Decision for NEPA compliance.

14. In the Draft EIS, the MAC and the FAA evaluated several alternatives, including an expanded MSP and a new airport in Dakota County. The draft concluded that retaining MSP at its current location would expose 7,445 more persons to high levels of noise than moving the airport to a non-urban location. Dual Track Airport Planning Process Draft EIS at iv.

15. The Draft EIS evaluated noise impacts out to the 65 DNL contour, providing counts of homes, residents and noise-sensitive institutions, and proposed to provide sound insulation to all homes within the DNL 65. Id. at vii, V-142. This was a commitment to continue a program that was already providing such insulation to the most noise-impacted homes. Part 150 Study Update at 8-10 – 8-12.

16. The Draft EIS included no provisions for mitigation within the DNL 60-65 contours. The MAC identified the lack of mitigation in the DNL 60-65 contours as one of the categories of “major comments” on the Draft EIS.

17. Local governments such as the cities of Minneapolis, Bloomington, Eagan and Mendota Heights all commented that additional mitigation was necessary to address noise impacts associated with airport operations. FEIS at I-3, I-7, I-87, I-91, I-95, I-111.

18. Minneapolis and Eagan explicitly stated that their support for retaining the MSP location was contingent on providing noise insulation to at least the DNL 60 contour. Minneapolis Resolution 96R-052 (March 1996). See also Eagan Dual Track Airport Planning Position at 1 (Dec. 19, 1995); FEIS at I-91.

19. In March 1996, the MAC and Metropolitan Council reached closure on the MAC’s recommendations and issued a report to the Legislature. The MAC and Metropolitan Council, Dual Track Planning Process Report to the Legislature (March 1996). The MAC recommended expanding MSP at its current location with a new runway and other infrastructure. [FN 2] Id. at 8-1.

[FN 2] The expansion of MSP included the following principal features: a new 8,000 foot north-south runway, addition of 14 gates to the Lindberg and HHH terminals, additional air cargo facilities, the capability for additional maintenance facilities, and the construction of remote parking facility. The expansion was to add 25% more operational capacity to MSP. Forecasts predict that aircraft operation will increase from 418,000 in 1992 to 520,000 in 2020. MAC and the Metropolitan Commission, Dual Track Planning Process Report to the Legislature (March 1996) at vii.
20. The report concluded that “[t]he cost for a new airport, considering construction (including inflation) and financing costs, is $2.2 billion greater than for expansion of MSP,” but acknowledged that expanding the airport at the current location would cause greater numbers of people to be exposed to high noise levels. Id. at xix, 6-20.

21. The report stated that “[t]he MAC is committed to providing the appropriate level of mitigation for adverse environmental impacts, as required by applicable environmental laws and regulations. This is particularly true for noise impacts, where additional reports to the Legislature are required following the MAC/Metropolitan Council recommendation re future airport development.” Id. at 6-18 (emphasis added).

22. It is clear that the MAC and the Metropolitan Council were choosing to increase and relocate noise for citizens near MSP to save money for both the MAC and the airlines.

23. In April 1996, the Legislature passed a bill to end the Dual Track Process, directing the MAC to develop a noise mitigation plan within 180 days of its long-term planning report. Minn. Stat. § 473.661, subd. 4(f).

24. Aware of the disproportional effects of air traffic noise on those living within the contours of MSP, the Legislature further directed the MAC to “examine” mitigation measures below the DNL 65 dB to the DNL 60 dB level. Minn. Stat. § 473.661(4)(f). It is reasonable to infer that the Legislature was aware of MAC’s major comments in the Draft EIS.

25. The MAC was specifically instructed to develop a report and recommendation on mitigation for a 2010 long-term capital plan (“MSP 2010 Plan”) addressing noise mitigation in the DNL 60 dB level in relation to future airport capacity and expansion. Id.

26. Finally, prior to the MAC constructing a third parallel runway at MSP, the Legislature directed the MAC to enter into a contract with each “affected city” whose approval was required. Minn. Stat. § 473.608, subd. 29. The Legislature defined an “affected city” as any city that would fall within the DNL 60 dB noise contour as a result of operations using the third parallel runway. Id.

THE 1996 NOISE MITIGATION COMMITTEE

27. Responding to legislative direction, in May 1996, the MAC formed the MSP Noise Mitigation Committee, composed of six MAC Commissioners, eight mayors from cities surrounding MSP (including the Cities), and representatives of the Metropolitan Council, Northwest Airlines and the Metropolitan Aircraft Sound Abatement Council (“MASAC”). MSP Noise Mitigation Program at 5 (Nov. 1996).

28. The Committee met eight times from May through October 1996 and evaluated noise insulation, possible operational measures for aircraft using MSP, runway use and community stabilization issues. Id. at 6; Appendix A.

29. At the first meeting of the Committee, the MAC presented the details of the existing DNL 65+ noise insulation program near MSP. See Materials Provided at May 16, 1996, MSP Mitigation Comm. Meeting. The materials stated that the “Part 150 Sound Insulation Program is designed to reduce the interior sound level of a home by a goal of 5 decibels.” Id. [FN 3]

[FN 3] NWA and the MAC claim the interior noise level of 45 db is the program standard. However, nowhere does the Noise Mitigation Program consider and/or adopt the 45dB standard by the MAC. In fact, the MAC’s goal was to exceed the 45db and go beyond what was required by the FAA.
30. At the June 3 and June 26 meetings, the Committee heard presentations from communities regarding their expectations. Statements made by the cities are recorded in the 1996 Noise Mitigation Program. Minneapolis wanted the sound insulation program to be extended to the DNL 60 contour. Eagan and Mendota Heights both maintained that sound insulation was essential. Id. at Ex. 10-A, 10-B, 10-C.

31. The Committee recommended the following to the MAC in October 1996:

a. The residential sound insulation program for the area encompassed by the 1996 DNL 65 contour be completed on the currently approved schedule;

b. The program be expanded after completion of the current program to incorporate the area encompassed by the 2005 60 DNL;

c. The program be funded by a combination of passenger facility charge revenues, airline fees, internally generated funds, and federal aid, with the estimated total and annual costs as summarized below; to the extent that the MAC cannot fund this program in a reasonable period of time, support from the State of Minnesota should be sought. In no case should unreimbursed financial impacts fall on affected residents or their local governments;

d. That the Commission evaluate the airport noise environment 18 months prior to the estimated completion of the expanded program. If conditions warrant, a modified sound insulation package should be offered to eligible dwellings/buildings within the 54 DNL contour which achieves at least a 3-5 dB interior noise level reduction.

Id. at 35-36 (emphases added).

32. In the section entitled “Current Sound Insulation Program” of the Noise Mitigation Program, the residential program is described as being “designed to reduce exterior noise levels by 5 db.” Id. at 26 (emphasis added). Depending on the characteristics of the home, this is achieved by:

a. Repair/replacement of exterior windows.
b. Addition of exterior acoustic storm windows.
c. Repair/replacement of existing prime doors.
d. Addition of exterior acoustic storm doors.
e. Addition of cellulose wall and attic insulation.
f. Baffling of roof vents and chimney treatment.
g. Addition of central air conditioning.

Id.

33. The $37,100 per-home cost estimate for completing the sound insulation package in the DNL 60-64 was essentially the same as the per-home estimate for the package in the DNL 65 and higher per home. Id. at 28-31; see also MSP Mitigation Committee Meeting Summary at 6.

34. The Committee’s final report noted: “[t]he 1996 Dual Track Legislation requires the MAC to develop a committee to develop a noise mitigation plan.” Id. at 5. The MAC staff noted in early 1996 that this plan was “to consider those areas encompassed by the 60 DNL contour for the airport, and should take into consideration proposed runway development at the airport. This is viewed as a critical element in the continuation of the airport at its current location.” MAC, Meeting Summary Part 150 Land Use Compatibility Implementation Design Policy Advisory Committee at 2 (May 7, 1996) (emphasis added).

35. On October 28, 1996, the MAC unanimously passed a resolution approving the noise mitigation program recommended by the Committee, with two amendments. First, it deleted the provision regarding a “modified” sound insulation package in the DNL 54-60. MSP Noise Mitigation Program at 2. Second, it added a new Section 9 that provided: “Completion of the sound insulation program is contingent upon the MAC maintaining a bond rating of at least A.” Id. No other conditions, including the total program cost, were added.

36. Following the Commission’s approval of the Noise Mitigation Program, the MAC forwarded the Program to the Minnesota Advisory Council on Metropolitan Airport Planning, consisting of State legislators. The Advisory Council sent the Program to the Legislature without substantive comment. See Letter from Sen. K. Langseth and Rep. B. Lieder to P. Flahaven, Secretary of the Senate, and E. Burdick, Chief Clerk of the House of Representatives (Feb. 10, 1997). Apparently relying on the noise insulation program, the Legislature took no action.

1998 FINAL ENVIRONMENAL IMPACT STATEMENT

37. In May 1998, the MAC and the FAA issued a Final Environmental Impact Statement for the Dual Track Process (“1998 FEIS”). 1998 FEIS.

38. In the 1998 FEIS, the MAC expanded consideration of the noise impacts of the alternatives to the 60 DNL contour: “Recognizing that noise concerns can occur beyond DNL 65, DNL 60 contours are also shown and assessed.” Id. at V-76.

39. The 1998 FEIS also stated that “[t]he EIS acknowledges that noise can annoy some people outside the DNL 65. For this reason, the MAC addresses mitigation for people within the DNL 60 . . . .” Id. at I-210 (emphasis added).

40. The FEIS’s discussion of alternatives characterized as one of the “adverse impacts” of the MSP Alternative that “7,650 persons residing within the DNL 65+ noise contours, compared to 7,350 for no action.” 1998 FEIS at III-15. Thus, the MAC’s project was anticipated to make conditions worse in the noisier contours. Within the DNL 60-64 contours, the FEIS projected that the MSP would reduce the total number of persons exposed in 2005. However, it projected to do so by shifting some operations off the existing runways and onto the new runways, exposing the southern metro to much greater noise than they would have been exposed to before. See Id. at V-80.

41. The 1998 FEIS incorporated the 1996 MSP Mitigation Program and provided:

a. The following mitigation measures will be implemented if the proposed action (MSP 2010 LTCP) is implemented:

i. the residential sound insulation program (SIP) within the 1996 DNL 65+ contour be completed on the approved current schedule (Note: the current program is scheduled for completion in the year 2002)

ii. the SIP be expanded to incorporate the area within the 2005 DNL 60-65 contour (see Appendix B)

iii. the 2005 DNL 60 contour be based on the most accurate projection of traffic levels and use of appropriate ANOMS data

iv. the program be funded by a combination of Passenger Facility Charge revenues, airline fees, internally generated funds and federal aid; to the extent that MAC cannot fund the expanded program in a reasonable period of time, support from the state of Minnesota will be sought; however, in no case will unreimbursed financial impacts fall on affected residents or their local governments

v. MAC will fund the program on an accelerated basis beyond its current annual level of $25.5 million

vi. completion of the program is contingent on MAC maintaining a bond rating of at least A.

1998 FEIS at vii, V-81, B-1 (emphases added).

42. In the FEIS, the MAC also responded to comments on the Draft EIS made by Plaintiffs and others in 1996 regarding the mitigation of noise in the DNL 60-65 contours by referring to the mitigation committed to in the FEIS. Id. at I-3 (General Comment 2), I-7. In comments on the FEIS, the City of Minneapolis stated:

The City is pleased to see that the 1996 Noise Mitigation Plan as adopted by the MAC has been included in the FEIS. The Part 150 sound insulation program must be completed for areas currently in the DNL 65 contour by year 2002, and extended out to DNL 60 immediately after, as described in the 1998 MSP Capital Improvement Plan and the Noise Mitigation Plan.

Comments by the City of Minneapolis on the FEIS for the Minneapolis-St. Paul Dual Track Airport Planning Process at 3 (June 12, 1998).

43. In the Record of Decision on the FEIS, the FAA relied on the MAC’s commitments in the 1996 Program document. ROD at 12, 60-61. The FAA concluded that the eligibility of federal funds may be extended to include the DNL 60 contour if there are applicable local standards accepted by the FAA. Id.

ENVIROMENTAL QUALITY BOARD ADEQUACY DETERMINATION OF FEIS

44. In 1992, the MAC had agreed that EQB would make the final determination under MEPA of the adequacy of the 1998 FEIS. MAC’s Deputy Executive Director noted that: This will have the advantage of the State’s primary agency making the adequacy determination, avoiding the issue of MAC evaluating its own work, and lending credibility to the final decision as a result of the EQB making the decision on adequacy of the EIS.

Letter from M. Sullivan, Exec. Director of EQB, to N. Finney, Deputy Exec. Director of MAC with attached MAC Planning and Env’t Comm. Meeting Minutes at 15 (Aug. 17, 1992) (emphasis added); N. Finney Dep. at 97.

45. After the publication of the 1998 FEIS, the MAC sought the EQB’s determination that the EIS was adequate for MEPA purposes.

46. However, the City of Richfield challenged the MAC’s proposed finding of adequacy on the ground, inter alia, that the MAC had failed to adequately mitigate low-frequency noise from operations using the new Runway 17-35. Memo of Richfield re: Adequacy of the FEIS at 1-3 (October 19, 1998).

47. Prior to EQB meetings on October 26, 1998, and November 23, 1998, the MAC submitted documents to EQB to convince it to make the adequacy determination. For example, prior to the October meeting, the MAC specifically identified one of the reasons it believed that the FEIS was adequate:

The MAC has committed in the Final EIS to provide standard sound insulation to homes within the DNL 60, 65 and 70 noise contours. The noise impacts and committed mitigation disclosed in the Final EIS go beyond that required by the current noise compatibility guidelines and policies of the FAA and Metropolitan Council.

MAC, Report to the Minnesota EQB at 8 (Oct. 1998) (emphasis added). 48. The MAC made similar comments in supplemental submissions to EQB, stating that “MAC is committed to implementing mitigation to the 60 DNL contour, as part of MAC s existing sound insulation for MSP.” MAC’s Supplemental Information Presented to the Minnesota EQB at 4 (Nov. 10, 1998) (emphasis added).

49. On November 23, 1998, the EQB made a determination of adequacy of the FEIS, allowing the MAC to proceed with implementation of the expansion program. See Minnesota Environmental Quality Board Findings of Fact, Conclusions of Law and Order.

COMMUNITY RELIANCE ON THE MAC’S NOISE INSULATION COMMITMENTS

50. In addition to the MEPA and NEPA process, in 1998 the MAC was working with communities to develop contracts relating to the development of a third parallel northwest/southeast runway at MSP.

51. The Legislature directed that the MAC “must enter into a contract with each affected city that provides the corporation may not construct a third parallel runway at the Minneapolis- St. Paul International Airport without the affected city’s approval.” Minn. Stat. § 473.608, subd. 29(a).

52. An “affected city” was defined as “any city that would experience an increase in the area located within the 60 DNL noise contour as a result of operations using the third parallel runway.” Id. at § 473. 608, subd. 29(d).

53. Going beyond the terms of the Legislative requirement, the MAC secured provisions in the Minneapolis and Richfield agreements that they would not bring any legal challenge to the Dual Track EIS generally or the Runway 17/35 specifically. See Minneapolis and MAC, Contract Pertaining to Limits on Construction of a Third Parallel Runway (Nov. 1998); Richfield-MAC Noise Mitigation Agreement (Dec. 1998).

54. After the agreements were signed, no city mounted any judicial challenge to the Runway 17/35 project. The record is also devoid of any political challenges.

1999 AIRLINE LEASE PROVISIONS

55. In early 1999, the MAC negotiated its standard lease through 2010 for terminal facilities with the airlines using MSP. Provisions for sound insulation out to the DNL 60 contour were included. Airline Operating Agreement (Jan. 1, 1999).

56. While the MAC is generally required to secure approval from the airlines for major capital spending projects, the lease contained an exception for the noise mitigation program. Id. at 54. The lease gave the MAC the ability to spend up to $150 million on noise insulation in the DNL 60-64 without airline approval through 2010 plus a $50 million contingency fund. Id. at Exhibit I. The $150 million figure was derived from the number of homes (4,043) then expected to be in the DNL 60-64 contours multiplied by the same cost ($37,100 per home) for the five-decibel insulation program in the DNL 65+ contours. Id.

THE MAC’S UNDOING OF THE DNL 60-64 NOISE PROGRAM

57. In 1999, the MAC broke ground for runway 17/35 which, along with adding gates and parking expanded MSP’s operational capacity by twenty-five percent. [FN 4]

[FN 4] The initial ground breaking for the new runway was in 1999 with an estimated completion date of 2003. In December 2001, some construction work was deferred due to budgetary concerns following the 9/11 terrorist attacks. The new estimated completion date was late 2004. Construction work was delayed again in March 2003 and the new estimated completion date was late 2005.
58. In 2000, for the first time, an official statement accompanying a bond offering in 2001 expressed a reservation on the 5db program, while continuing to speak of mitigation in the 60-65 as a commitment. MAC, Official Statement re: the Series 2001 Bonds at 80 (May 17, 2001).

59. In its October 2001 Official Statement, the MAC stated that it would offer “the five decibel reduction package” first to residents within the 64 contour and then in successively lower contours as possible within the $150 million funding limitation. The MAC estimated the cost of insulating to the 60 contour at $450 million, with the result that most of the program “will be required to be funded from outside sources, including, but not limited to federal and state funds.” MAC, Official Statement re: the Series 14 Bonds at 68-69 (Oct. 10, 2001). The cost increased, in large part, because the number of homes in the DNL 60 to 64 contour increased. [FN 5] Nigel Finney Memo dated Feb. 27, 2001.

[FN 5] In fact, the 2005 60 to 64 DNL contour projected 10,040 homes to be mitigated at an average price of $45,000 per home for a total of $451.800,000 compared to the 1999 projection for 2003 through 2010 of 4043 homes at $37,000 per home.
60. On December 17, 2001, the MAC “rescinded its commitment to provide the five decibel reduction package to homes within the 2005 DNL 60 noise contour, and has instead decided to reevaluate the best and most efficient use of the $150 million for noise mitigation within the 2005 DNL 60 noise contour.” MAC, Official Statement re: the Series 15 Bonds at 72 (Jan. 8, 2002). The MAC alleges the rescission was because concerns arose regarding the accuracy of the forecasted 2005 noise contours in light of the impact of the events of September 11, 2001 on air travel.

61. In March 2002, the Metropolitan Council approved the MAC’s “significant effects” capital improvement projects for 2002 (2002 CIP), which included the construction of Runway 17/35 and a terminal parking structure. That approval was conditioned on MAC spending the $150 million previously earmarked for noise insulation in homes in the DNL 60-64 dB.

62. Not withstanding the condition set by Metropolitan Council and one month later the MAC submitted a revised noise program in its 2002 Part 150 Update [FN 6] submission to the FAA that was a scaled down version of the 1996 MSP Noise Mitigation Program and provided for a two-tiered insulation process. Under the new plan, homes within the DNL 63-64 dB would receive insulation mitigation pursuant to the existing DNL 65 dB program while homes within the DNL 60-62 dB would receive air conditioning only. The MAC also inserted language that appeared to back away from its commitment to spend $150 million on noise insulation.

[FN 6] Under the provisions of Title I of the Aviation Safety and Noise Abatement Act of 1979 (Public Law 96-193) (hereinafter “the Act”) and 14 CFR Part 150, airports are required to submit noise compatibility programs for approval or rejection based on FAA criteria as expressed in Part 150 and the Act.
63. In May of 2002, the MAC changed course and recommitted to spending the $150 million after Metropolitan Council adopted a resolution on May 8, 2002 requiring the MAC to remove the offending language from its 2002 Part 150 Update to comply with conditions set in its March approval of the MAC capital improvements program. By letter, dated May 22, 2002, the MAC notified the Metropolitan Council that it had deleted the disputed language (Amendment 6) from its 2002 Part 150 Update and reaffirmed its $150 million commitment for noise mitigation in compliance with the Metropolitan Council’s condition. See letter, dated May 29, 2002, from Lee Sheehy, Metropolitan Council Regional Administrator, to Nigel D. Finney.

64. In 2004, the MAC adopted a $48 million, air conditioning only, “mechanical package” that is MAC’s current intended program for the 60-64 contours. MAC, Official Statement re: the Series 2005 Bonds at 86-87 (May 26, 2005). The MAC submitted this package to the FAA in the Part 150 Plan Update of November, 2004. Contrary to the explicit promise in the 1996 Noise Mitigation Program, homeowners would pay a total of $20 million of the cost. Part 150 Plan Update at 87. The MAC estimates that almost 40% of the homes already have air conditioning and would receive nothing under its program. Memo from N. Finney, MAC, re: Homeowner Co-Pay Loan Program at 2 (Dec. 30, 2004). In Eagan, that number is 80%. See Letter from Mayor P. Geagan et al., Eagan, to MAC (July 14, 2004).

NOISE CAUSED BY MSP OPERATIONS

65. On October 27, 2005, Runway 17/35 opened at the Minneapolis-St. Paul International Airport. Part of the $3.1 billion airport expansion program begun in 1998, Runway 17/35 provides approximately twenty-five percent more operational capacity, allowing the airport to accommodate future increases in operations.

66. Each day, the MAC provides the facilities for more than a thousand aircraft to fly over the neighborhoods surrounding the Airport. MAC, Official Statement re: the Series 2005 Bonds at 51; Part 150 Study Update at Table 4.3. As a result, by the MAC’s own calculations, approximately 25,000-28,000 people are expected to be subjected to noise of DNL 60-64 decibels on an average day in 2007. Part 150 Study Update at 5-21 and 6-3. By 2020, it is forecasted that more than 1,400 aircraft will operate per day and nearly 520,000 a year. MAC and the Metropolitan Commission, Dual Track Planning Process Report to the Legislature (March 1996) at vii.

67. Further, through continued growth and improvement at the Airport, MAC estimates that the number of persons in the DNL 60-64 contours will increase by around 10,000 people to 37,000 by 2015. MAC and FAA, 2015 Terminal Expansion Project Draft Environmental Assessment at 29. Thus, MSP will be much noisier to many more people than was originally estimated in the 1996 – 2000 process.

68. These aircraft operations create repetitive and intrusive noise that affects the communities surrounding MSP.

69. The Metropolitan Council has discouraged building in the 60 to 64 DNL contours. Metropolitan Council, 2030 Transportation Policy Plan at H-4, H-6 (December 2004). The Transportation Policy Plan within that Guide provides that new development and major redevelopment of existing homes is incompatible in the DNL 60 to 64 dB, even if acoustical treatment were incorporated in the structure and outside uses restricted. The Development Guide also says that development “…in [DNL 60 dB zones] can benefit from insulation levels above typical new construction standards in Minnesota, but insulation cannot eliminate outdoor noise problems.” It further asserts that development with interior noise levels could be accepted under some circumstances, but are “strongly discouraged.” Id.

70. Review of Transportation Polices on Metropolitan Council website shows that the 2004 Development Guide, and the Transportation Policy Plan within it, are unchanged from the December 2004 document. Each community in the Metropolitan Area is required to ". . . jointly prepare a noise program to reduce, prevent or mitigate aircraft noise impacts on land uses that are incompatible with the guidelines.

71. Plaintiffs presented compelling and undisputed evidence that the provision of a five-decibel noise reduction package is a necessary and appropriate means of addressing noise impacts, and the MAC’s proposed air-conditioning-only noise remedy does not minimize noise impacts as required by their enabling statute. Both residents and experts have identified sleep interference and other effects in homes in the DNL 60-65 contours that already have air conditioning. The five-decibel noise reduction package would reduce instances of sleep disturbance by half and reduce levels of community annoyance. P. Schomer Aff. at ¶¶ 13- 14.

CONCLUSIONS OF LAW

1. The Cities have asserted enforceable claims under MERA.

2. The proper measure for outdoor quietude in this case is the average quietude in an urban area.

3. The indoor quietude of properties located in the 60 to 64 DNL contour is a protected resource under MERA to provide a haven from airport noise for residents in those areas.

4. The complained-of conduct in this case under MERA is the MAC’s operation and recent expansion of MSP combined with MAC’s failure to provide adequate mitigation for the ongoing noise impacts within the DNL 60 to 64 noise contour. The MSP expansion and mitigation of its noise are properly viewed as one project.

5. The complained-of conduct is not preempted by federal law because the relief requested -— adequate noise mitigation -— does not encroach on aircraft operations.

6. The MAC had the authority to create a standard as part of its incidental powers for operating and extending the airport pursuant to its enabling legislation.

7. The MAC created substantive and enforceable environmental standards when it asked other governmental entities and the public to rely on the mitigation measures discussed in the 1996 Noise Mitigation Program and the 1998 FEIS, which were both approved through an extensive public process.

8. In 1996, based on the MAC’s technical research, the Metropolitan Council adopted a DNL 60 to 64 dB standard for its Metropolitan Development Guide. That standard is reaffirmed in the current (2004) 2030 Transportation Policy Plan.

9. The standard the MAC committed to provide was the same five decibel noise reduction package in the 60 to 64 DNL contours that it was already providing to the DNL 65 plus contours.

10. The MAC gave away any discretion it may have originally had to change the standard when it used the five decibel reduction package to obtain approval of its proposed airport expansion and to open the new 17/35 runway.

11. The MAC has reneged on its commitment to install the five decibel reduction package in the 60 to 64 DNL contours. As such, the MAC is in violation of the standard it set in exchange for approval of the airport expansion project in 1996 and 1998.

12. The MAC had a clearly defined duty, pursuant both to statute and standard, to abate noise in the 60 to 64 DNL contours.

AND IT IS ORDERED:

1. The Motions of the MAC and NWA for Summary Judgment are DENIED.

2. The Cities Motion for Partial Summary Judgment is GRANTED.

3. The Mandamus claim is premature at this time; therefore ruling on Count III and other remedies is RESERVED.

4. The following memorandum and appendix A (Timeline) is hereby incorporated as part of this order.

BY THE COURT:

/S/ SCA ____________

Dated: January 25, 2007 Stephen C. Aldrich
Judge of District Court