The Reduction of Operations by 47 Percent (Condition #4)
The City conditioned the continuation of operations at the Heliport on an overall 47 percent reduction in those operations, despite the fact that the specific percentage reduction was based on a scenario different from the one envisioned by the Economic Development Corporation when it filed the permit application and proposed the 47 percent reduction. In its application, the Corporation proposed limiting flights to four per hour, operating only a 12-hour day, and ceasing tourist flights during the work week. Those changes, the Corporation estimated, would reduce operations at the Heliport by 47 percent. By the time the application emerged from the land use review process, however, the permit required the cessation of sightseeing operations during the weekend instead of during the work week, but still mandated a reduction in operations of 47 percent.
The district court held that the 47 percent reduction was arbitrary and unreasonable because, based in part on the shift in approach, there was no evidence that it was "in any way calibrated to achieve any particular noise based result." 952 F. Supp. at 1029. While we agree that the mandated 47 percent reduction in operations was not backed by any study reflecting the appropriate scenario or demonstrating that such specific percentage of noise reduction was the ideal, we also believe that the proprietor was entitled to eliminate a portion of the Heliport's operations upon reaching a conclusion that a problem of excessive noise existed. Based on the EIS' conclusion that a 47 percent reduction in operations would result in a substantial noise reduction at the Heliport, we believe that, in this case, the relevant condition was reasonable.
In Western Air Lines, 658 F. Supp. at 953, the court evaluated the "perimeter rule" that the New York and New Jersey Port Authority had imposed at LaGuardia Airport, forbidding airlines from conducting nonstop flights beyond 1,500 miles in and out of the airport. The Port Authority had conducted a study of LaGuardia's capacity, circulated questionnaires to interested parties (e.g., airlines, the Federal Aviation Administration, the Department of Transportation), and determined that the perimeter rule was necessary to combat the airport's congestion problem. Id. at 959-60. The district court upheld the Port Authority's action as reasonable. Id. at 960 ("[T]his Court will not second guess the actions of the Port Authority as long as they are reasonable.").
Just as the evidence supported LaGuardia's "perimeter rule," the EIS prepared by the City supports the proposition that the elimination of 47 percent of the Heliport's operations will result in a significant reduction in the noise emitted from it. We do not believe the change in the approach for reducing the facility's operation alters such a conclusion. Recognizing there was too much noise at the Heliport, the City determined that curtailing a significant portion of its operations would reduce noise levels. It is unrealistic to insist that a proprietor justify by some scientific method a specific percentage reduction in operations in order to achieve the general result of a reduction of excessive noise.
Moreover, we find it difficult to imagine how whatever percentage that is chosen - whether it is 15, 25, or 47 percent - would not be considered arbitrary. Thus, we believe the EIS adequately supports the conclusion that a 47 percent reduction in operations will improve the environmental quality of the Heliport's surrounding areas, however that reduction may be determined. For example, it may be pursuant to a curfew, a per hour limit, or a curtailment of operations, and so long as the mandated reduction is nonarbitrary and sufficiently reasonable a court may uphold the City's power to enforce such restriction. See Global Int'l Airways Corp., 727 F.2d at 251 (affirming a restriction targeting cumulative noise level based on the "reasonable prospect of a beneficial effect").
We also reject National's argument that the restrictions adopted pursuant to the EIS are unreasonable because of the EIS' flawed nature. We do not require that studies offered as empirical support for a proprietor's actions be conducted pursuant to any one specific methodology, accepted in scientific communities as the most appropriate way of conducting an analysis. Rather, the test is one of reasonableness. The EIS at issue was prepared by an environmental sciences company, initially hired by National, with experience in heliports, assessing environmental impacts, and planning airport noise compatibility. Its noise analysis was based on data received from seven receptor sites surrounding the Heliport. We conclude that the empirical support for the relevant conditions contained in the EIS is reasonable and therefore sufficient for preemption analysis purposes. The district court consequently abused its discretion when it enjoined the enforcement of condition #4.
Prohibition on Certain Helicopters (Condition #5)
The City urges that the prohibition on Sikorsky S-58Ts and other helicopters of a similar size is reasonable because they are the noisiest aircraft using the Heliport. Although the proprietor exception allows reasonable regulations to protect against excessive noise, that power may not be used to discriminate. See Concorde II, 564 F.2d at 1012-13 (dissolving ban on flights of supersonic jet Concorde). In this case, the City placed restrictions on certain aircraft because of their size - not the noise they make - despite evidence that larger helicopters are not necessarily noisier than smaller ones. A regulation purporting to reduce noise cannot bar an aircraft on any other basis. See City and County of San Francisco, 942 F.2d at 1398 (analyzing Concorde I and Concorde II and holding that airport proprietor's regulation banning retrofitted aircraft from operating at airport was unjust discrimination). The City's ban on the Sikorsky S-58T and other helicopters of that size is unreasoned discrimination on account of an aircraft's size. Hence, the district court's enjoining of this condition was not an abuse of its discretion. Because this condition of the Resolution must be stricken on preemption grounds, we need not reach or decide National's equal protection argument.
Restrictions on Sightseeing Routes (Condition #6)
The City claims the invasive nature of helicopter noise justifies the condition restricting sightseeing routes to the East River and the Hudson River. This argument, as the trial court recognized, evidences a misunderstanding of federal aviation law. Congress, the Supreme Court, and we have consistently stated that the law controlling flight paths through navigable airspace is completely preempted. See, e.g., Concorde I, 558 F.2d at 83 ("[L]egitimate concern for safe and efficient air transportation requires that exclusive control of airspace management be concentrated at the national level."); City of Burbank, 411 U.S. at 626-27 (recognizing the federal government's possession of exclusive national sovereignty in U.S. airspace); 49 U.S.C. §40103(a)(1) (stating that the federal government has "exclusive sovereignty of airspace of the United States"). The proprietor exception, allowing reasonable regulations to fix noise levels at and around an airport at an acceptable amount, gives no authority to local officials to assign or restrict routes. As a result, the City unlawfully intruded into a preempted area when it curtailed routes for the flights of certain Heliport aircraft. This condition was properly enjoined.
The Markings Requirement (Condition #7)
Because we affirm the district court's injunction of the route mandate, the condition that helicopters using the facility be marked for identification from the ground, which exists solely to enforce the route requirement, becomes moot. Moreover, the condition interferes with the Federal Aviation Administration's duty to "prescribe air traffic regulations . . . for . . . identifying aircraft." 49 U.S.C. §40103(b)(2). The district court did not abuse its discretion when it enjoined the markings requirement.
IV The Commerce Clause
Finally, we turn to National's declaration that the conditions in Resolution 1558 and the Request violate the Commerce Clause of the U.S. Constitution. Congress approved the proprietor exception. Consequently, any action the City properly conducted pursuant to its powers as a proprietor cannot violate the Commerce Clause. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 213 (1983) ("Where state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce.").
CONCLUSION
For the foregoing reasons, the City may not be enjoined from imposing weekday and weekend curfews. Insofar as the judgment appealed from refused to enjoin these curfews, it is affirmed. Insofar as the judgment appealed from enjoined the City from enforcing the designation of sightseeing routes, markings requirement, and prohibition of Sikorsky S-58T and other similar sized aircraft, it is also affirmed. Insofar as the judgment appealed from enjoined the elimination of weekend operations and the 47 percent mandatory reduction in operations, it is reversed and the injunction vacated.
Accordingly, the judgment appealed from is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
JON O. NEWMAN, Circuit Judge, concurring in part and dissenting in part
from the majority opinion:
I concur in all aspects of the Court's opinion except the approval of the condition of the special permit that requires a 47 percent reduction in the operations of the East 34th Street Heliport. As to that condition, I agree with the District Court that the 47 percent figure, indisputably derived from circumstances no longer applicable, is arbitrary and unreasonable, and that the condition requiring this percentage reduction should be enjoined.
We all agree with the legal proposition that local airport proprietors are entitled to promulgate "reasonable" and "nonarbitrary" regulations to reduce noise levels. See British Airways Board v. Port Authority of New York and New Jersey, 558 F.2d 75, 84 (2d Cir. 1977). We also agree with the factual proposition that a 47 percent reduction in operations will reduce noise levels. For the Court, those two propositions are the end of the matter; for me, they are only the beginning. The fact that a selected percentage of reduced operations will result in reduced noise levels cannot possibly be sufficient to establish that the particular percentage was selected in a reasonable and nonarbitrary manner. For example, if the decision-makers picked the percentage number by throwing a dart at a display of numbers from 1 to 100, use of the particular number hit would be manifestly arbitrary, despite the resulting lowering of noise levels from reduced operations. So would a number derived from the average of the ages of the decision-makers.
Of course, the arbitrariness of a percentage selected on a demonstrably arbitrary basis, i.e., one with no rational relationship to the regulatory purpose, does not necessarily mean that a percentage is reasonable only if supported by scientific analysis. Though an analysis of decibel levels, actual or potential injuries to eardrums, and degree of harm likely to be avoided by particular degrees of reduction in operations would provide an especially reasonable basis for selecting a required percentage reduction, I agree with the Court that a scientific study is not required for a reasonable decision. When dealing with something as intangible as annoyance from aircraft noise, regulators are entitled to exercise their judgment, on some reasonable basis, in determining the degree of noise reduction they choose to require.
Moreover, though a reasonably selected percentage reduction in noise level would be preferable, I am willing to assume, at least for the argument, that a city acts reasonably when it requires a reasonable reduction in aircraft operations in the expectation that the reduction in operations will result in reduction in noise level. See Global International Airways Corp. v. Port Authority of New York and New Jersey, 727 F.2d 246, 251 (2d Cir. 1984) (regulation upheld because of "reasonable prospect" that it would have beneficial effect on noise level). [FN2] But the selection of the percentage of reduction in operations must nonetheless be reasonable. If the number selected here, 47, were viewed in isolation, the inference would be available, if not irresistible, that the number was selected arbitrarily, at least in the absence of some indication of a reasonable basis for selecting that number. [FN3] But in this case, the record indisputably reveals the source of the number 47. It is the percentage by which operations would have been reduced if, as contemplated by the permit application, sightseeing flights from the East 34th Street Heliport were prohibited during weekdays. However, the City's final requirements dropped the prohibition on weekday sightseeing flights and replaced it with a prohibition on weekend sightseeing flights. Nevertheless, the City required the same 47 percent reduction in operations that would have resulted from a prohibition that is no longer applicable. The number is the expected result of an abandoned proposal; it is not the product of the exercise of any judgment on the part of the City decision-makers.
[FN3] Though the issue does not arise on this appeal, I think there would be a plausible argument that the selection of a number representing a familiar fraction, e.g., 50 percent for one half, or 33 1/3 percent for one third, would be reasonable since it would represent the decision-makers' intuitive guess as to the general degree of reduction (whether or noise or operations) they wished to require. But it cannot be seriously maintained that the decision-makers arrived at the number 47 by making even an intuitive guess.
The EIS was entitled to conclude that a 47 percent reduction in operations would result in a "substantial" noise reduction. It would have been equally entitled to conclude that an operations reduction of 46, 48, or 49 percent (or likely any number above 10, or perhaps 20) would also have resulted in a "substantial" noise reduction. But the undeniable fact is that the City decision-makers have required use of the 47 percent figure for no reason other than its equivalence to the percentage of operations reduction that would have resulted from a now abandoned prohibition. Upholding use of the 47 percent figure because it, like many other numbers, will yield a substantial noise reduction replaces reasoned decision-making with coincidence. The record provides no reasoned explanation as to why the 47 percent number remains reasonable, and demonstrably reveals why its selection is unreasonable.
For these reasons, I respectfully dissent in part.