Blame it on ANCA , the Airport Noise And Capacity Act Of 1990.
Airport law–specifically the history of how communities lost their rights–is long. You can read a short history at our Airport Law Cheat Sheet. But one question people have is WHY CAN’T WE SLEEP AT NIGHT? So here is a summary of.
The Airport Noise and Capacity Act Of 1990 (ANCA) explicitly forbids airports from implementing any rules to limit the take-off or landing of any Stage 3 or greater aircraft at any time of day. So forget ‘night time’. The law says that you can never place limits on flights. That’s the ‘capacity’ part of the law.
(A Stage 3 type of aircraft is basically any form of modern commercial jet or turbo-prop from a now ancient 747 on up. So from here out just forget that term.)
Black And White
We know you don’t believe that it could be so clear. So here’s the relevant passage in black and white:
Section § 47524. Airport noise and access restriction review program
- (c) Stage 3 aircraft.
- (1) Except as provided in subsection (d) of this section, an airport noise or access restriction on the operation of stage 3 aircraft not in effect on October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation after an airport or aircraft operator’s request for approval as provided by the program established under this section. Restrictions to which this paragraph applies include–
- (A) a restriction on noise levels generated on either a single event or cumulative basis;
- (B) a restriction on the total number of stage 3 aircraft operations;
- (C) a noise budget or noise allocation program that would include stage 3 aircraft;
- (D) a restriction on hours of operations; and
- (E) any other restriction on stage 3 aircraft.
That’s pretty clear.
History In One Paragraph
ANCA is classic politician-speak, one of those laws where the title is actually the opposite of its main function –like lobbying groups called “Americans For Environmental Progress” that are actually pro-fossil fuel. The law was one of several law implemented specifically to stop because before 1990 there were a zillion law suits throughout the U.S. where communities were suing airports to stop all the noise. And those lawsuits worked. The industry was unable to expand because each airport seemed to have its own set of scheduling constraints based on local restrictions. So the industry lobbied hard for ANCA, which was sponsored by a Senator from Kentucky (not coincidentally, Louisville was the largest aviation cargo hub in America at the time.) ANCA sets up all the basics of modern airport noise law which can be boiled down to one seemingly innocuous idea: Communities can do whatever they feel necessary to control noise, so long as they do not interfere with commerce. Really unpack that one sentence and then you have a good understanding of ANCA.
The Four Commandments
ANCA is a remarkably short text — a bit like the Ten Commandments. But from it springs millions of pages of regulations concerning how noise mitigation programs can be set up. And almost everybody gets confused and overwhelmed by all that stuff to the point that they feel the need to hire expensive consultants to help make sense of it. However at the end of the day, again, ANCA is simple. The important points to know can actually be boiled down to four simple notions:
- The FAA ultimately controls all noise mitigation and environmental rules concerning the airplanes, not EPA or any local government.
- The airport has no enforcement capability on any noise or pollution violations. Again, that is left to the FAA and the public has no direct access to the FAA. All public complaints about noise and/or pollution are routed to the FAA.
- The airport operator and the tenant airlines decide what noise mitigation to implement at the airport within FAA rules. The community has no role in decision-making (except to provide public comment.)
- No limitations may be placed on commerce except where passenger safety is concerned. Community safety (health) has no bearing. At all.
Tested
ANCA has been tested in court, time and again. Because it is so simple and unambiguous, it has never been successfully challenged. And no sane attorney will go near it because you’d need to find a court that would be willing to consider a completely different form of legal argument, namely that its fundamental ignorance of community health was unconstitutional. There are attorneys working on this form of legal argument in other contexts (Eg. Public Trust Doctrine, but so far no one in airport law has taken a shot at it. So don’t hold your breath.
Runway Use Agreements
This also explains why any Runway Use Agreement (limiting usage based on certain conditions) isn’t worth the paper its printed on. An airport operator might sign such a document, but it has no legal force because it is the FAA (the guys in the control tower) who determine when and where planes take off and land. And the FAA must take into account what the airlines want to do–it says so in ANCA. Just keep repeating: Any limits on take-offs and landings are 100% voluntary until ANCA is changed by an act of Congress.
Yes, but other airports have curfews! (And I want one too!)
The section of ANCA quoted above explicitly states that only airports which already had noise restrictions in 1990 may continue to have a curfew. Airports which now want to create one may not do so without requesting a process known as Part 161. There has been no successful Part 161 filing in many years. And besides the Port Of Seattle has expressed no desire to do so. Perhaps because their tenant airlines do not want one and perhaps because the airport drives over 80% of the Port’s revenues. Any decisions on flight operation require the agreement of both the operator (The Port Of Seattle) and the airlines. The community has no say in that. Ever.
Voluntary Curfews?
There are many voluntary programs at various airports. Sea-Tac Airport is one. They are usually referred to as Fly Quiet. These have had various levels of success, based on how well the public has been able to mobilize and publicly shame the airport and its airlines into compliance. That public pressure is the only available leverage. But as we keep saying: the singular failure of pretty much every activist movement since ANCA has been the inability to mobilize that public concern–even within the affected communities.
Process And Incentives
Faced with this frustration, virtually every activist movement has taken a ‘process’ approach: attempting to work with governments at every level to create change. This has never been effective because with the hard limitations of ANCA, the airlines and governments have no incentives to change. And in the case of Sea-Tac Airport, no municipal government has been willing to publicly criticize the airport operator (The Port Of Seattle) or the airlines since the Third Runway lawsuits of the 1990s.
ANCA makes sure that the only channels available to protesters are within a closed system where all we can really do is complain to airport operators and the FAA for better treatment. Without broader public support, stronger advocacy from local governments, or at least a modicum of media scrutiny, this state of affairs is unlikely to change any time soon.