99-R-1271
USE RESTRICTIONS AND NOISE STUDY AT BRADLEY INTERNATIONAL AIRPORT
By: James J. Fazzalaro, Principal Analyst
You asked what authority the Department of Transportation (DOT) has to restrict the use of Bradley International Airport through means such as a late night curfew in order to reduce the negative effects the noise of these aircraft may have on the area around the airport. You also wanted general information on the noise study currently being conducted at the airport and when the results of the study are likely to be known.
The Office of Legislative Research is not allowed to give legal opinions and this report should not be viewed as one.
SUMMARY
Use Restrictions
Federal law preempts state control of aircraft operations at civil airports in most respects. But in limited areas, such as addressing the noise generated by aircraft using federally certified airports, the airport proprietor has some authority that the state or local government does not. Since Bradley International Airport is owned by the state, DOT is essentially its owner and operator. Thus any actions it tried to take would be considered those of the airport proprietor and not in its capacity as an agency of the State of Connecticut.
The courts have identified land use control and imposition of criminal penalties for certain illegal acts as exceptions to this pervasive federal regulation. With respect to controlling the noise generated from airport operations, both federal law and court decisions have considered the airport proprietor to have a limited authority to act where state and local governments could not. Thus for approximately 20 years from passage of the Noise Control Act of 1972, airport proprietors have enacted many types of restrictions on aircraft operations aimed at controlling the effects of aircraft noise. These have included things like preferential runway use, curfews, prohibitions on “touch-and-go” training operations during certain hours, and noise abatement procedures for takeoffs and landings, among other things.
Partly as a response to air carrier concerns over the rapid growth of sometimes conflicting restrictions throughout the country, Congress enacted the Airport Noise and Capacity Act of 1990 (ANCA). This law accelerated the schedule for air carriers to bring quieter “Stage 3” aircraft into operation, but also severely constrained the ability of airport operators to enact new or expanded noise or access restrictions.
Such restrictions can now only be established through the voluntary agreement of all aircraft operators at the facility or on a mandatory basis without their consent following a stringent review and approval by the Federal Aviation Administration (FAA). Restrictions already in effect or underway when ANCA became effective were not affected unless they were subsequently expanded or substantially revised. ANCA has had a definite effect on the proliferation of such noise and access restrictions. The FAA reports that since passage of ANCA, no mandatory restrictions have been approved but there have been a number of voluntary agreements some of which have been more enforceable than others.
In some instances, the review process for mandatory restrictions has led to voluntary agreements for less stringent measures. FAA officials have stated that the purpose of the ANCA process is to assure that access restrictions are established only in instances of severe noise impacts.
DOT, as proprietor of Bradley International Airport, would fall under these ANCA provisions if it were to pursue noise or access restrictions.
Bradley Noise Study
The original noise study the DOT planned to conduct under Part 150 FAA regulations has actually evolved into three separate studies. The study began in September 1998 but shortly after the initial meetings, DOT shifted its focus on an environmental assessment of procedural departure changes specific to Runway 6-24. This process resulted in a further determination, based on public input and recognition of potentially significant impacts regarding Runway 6, that the environmental assessment be limited only to Runway 24. This draft environmental assessment is due out this week. The period for submission of comments on the draft runs until January 14. The new procedures will go into effect in 60-90 days after the close of the comment period.
Procedural changes for Runway 6 will now be the subject of a full environmental impact statement. This process will likely take from six to nine months. The full Part 150 study, which will cover the entire airport noise environment and include more than approach and departure procedures, will probably take from 18 to 24 months. Consideration and assessment of use restrictions can be included as part of a Part 150 study, but there appear to be no immediate plans for including them in the study.
RELATIVE FEDERAL AND STATE AUTHORITY IN AVIATION MATTERS
Federal Authority
Federal law gives the federal government exclusive sovereignty over the navigable airspace of the United States. Among the major areas within this extensive regulatory scheme are safety, airport development, and noise regulation. Federal statutory authority in these areas is placed in the secretary of the U.S. Department of Transportation who has delegated general responsibility to the FAA. Under the Federal Aviation Act of 1958, the FAA administrator is responsible for the efficient and safe use of all navigable airspace. To this end, he may establish and operate air navigation facilities and may prescribe air traffic rules governing flight of aircraft; navigation, protection, and identification of aircraft; protection of people and property on the ground; and efficient use of airspace (49 U.S.C. § 40103).
The FAA has specifically regulated things like airport traffic patterns and minimum flight altitudes, approach and departure procedures, and flight rules. It also certifies airports and air carriers, certifies and registers aircraft, and licenses pilots, mechanics and other aviation related occupations. Extensive case law generally establishes that FAA regulation in these areas precludes their regulation by state or local governments.
Preemptive federal authority extended into the area of noise regulation with passage of the federal Noise Control Act of 1972. Congress charged the FAA to consult with the federal Environmental Protection Agency and prescribe standards to measure aircraft noise and issue regulations to control and abate it. Beginning with the case of City of Burbank v. Lockheed Air Terminal Inc. (411 U.S. 624, 93 S. Ct. 1854, 1973), the federal courts have recognized in a long series of decisions over more than two decades that this legislation grants exclusive responsibility for regulating aircraft noise to the FAA. Because federal law regulates aircraft noise so pervasively, state laws attempting to do the same thing have consistently been invalidated (City and County of San Francisco v. FAA, 942 F. 2d 1391 (9th Circuit 1991)). Numerous decisions have specifically overturned local laws imposing curfews, regulating flight frequency, and regulating aircraft flight paths (8A Am Jur. 2d, Aviation § 20).
Exceptions for Local Authority
The authority of local governments to regulate land use through zoning regulations has been held in some instances to fall outside this preemption. Some decisions have suggested that this power to regulate land use might allow a local government to decide not to establish a new airport, or not to expand the facilities of an existing one, even if the decision was motivated entirely by the desire to control aircraft noise (Gustafson v. City of Lake Angelus, 76 Fed. 3rd 778 (1996), cert denied, 117 S. Ct. 81; Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997), cert. denied (U.S. 1997) 1997 WL 629631).
The police power of state and local governments provides another apparent, though limited, exception to preemptive federal authority. Although local ordinances aimed at regulating aircraft operations, flight procedures, and airspace management are frequently invalidated, several decisions have held that laws which merely aid in enforcing federal regulations are not preempted. Also, because federal law does not include criminal prosecution of those who operate aircraft recklessly, states have been found to have a right to impose criminal sanctions in these areas (8A Am Jur. 2d. Aviation § 28; People v. Valenti, 153 Cal. App 3d Supp. 35 (1984); Ward v. Maryland 374 A. 2d 1118 (1977)). Thus for example, Connecticut has several laws that, among other things (1) establish criminal penalties for operating an aircraft while under suspension or revocation of license; unlawful use of aircraft; flying carelessly, negligently, or recklessly, or in a manner that endangers people or property below; and operating an aircraft while under the influence of alcohol, and (2) permit, under certain conditions, a person’s right to operate an aircraft under certain circumstances to be suspended or revoked (CGS §§ 15-52, -54, -68a, -72, -77).
Authority of Airport Proprietor
While federal preemption prevents state and local governments from regulating aircraft operations and noise directly, airport proprietors, including states or other governmental entities acting as proprietors, have a limited role in regulating noise at their airports in a nondiscriminatory way. A series of case decisions establishes that local airport proprietors may create reasonable, nonarbitrary, and nondiscriminatory regulations establishing acceptable noise levels for the airport and its environs (City and County of San Francisco v. FAA; Global Intern. Airways Corp. v. Port Authority of New York and New Jersey, F 2d 246 (1984); U.S. v. Westchester County, 571 F. Supp. 786 (1983; and other cases).
Airport operators throughout the United States pursued various types of use and access restrictions throughout the 1970s and 1980s. While these took many forms, the most common types were noise abatement procedures during departures or arrivals, late night curfews, preferential runway use, and noise surcharges for aircraft operating during certain hours. By the late 1980s, the implications of the growth of noise and access restrictions to their national and international operations increasingly concerned air carriers. For example, the Boeing Corporation currently lists 166 U.S. airports with some type of noise abatement flight procedures in effect, 75 with late night curfews, 169 with preferential runway use requirements, and four with noise surcharges aimed at encouraging airport use outside of certain hours. To stem the rapid growth of these and several other types of restrictions, the carriers sought Congressional action to prohibit imposition of future restrictions by airport operators. Passage of ANCA was the result of this effort (P.L. 101-508, Title IX, Subtitle D).
ANCA was, in effect, a compromise under which air carriers agreed to an accelerated replacement of their older, noisier “Stage 2” aircraft with newer, quieter “Stage 3” aircraft. The concession to the carriers was the requirement that the FAA create a national aviation noise policy and a national review process for future noise-related airport access restrictions.
CURRENT REQUIREMENTS UNDER ANCA
Among the findings made by Congress in ANCA were that: (1) aviation noise management is crucial to the continued increase in airport capacity; (2) community noise concerns have led to uncoordinated and inconsistent restrictions that could impede the national air transportation system; (3) it was necessary to implement an aviation noise policy on a national level, (4) local interest in noise management must be considered in determining the national interest in this area, and (5) community concerns can be alleviated through the combined use of new technology aircraft and revenues for noise management, including passenger facility charges.
Federal law requires all aircraft operated at U.S. airports to meet specific noise limits. It establishes a phased reduction in these limits that designates aircraft as Stage 1 (least stringent), Stage 2, or State 3 (most stringent). It establishes a schedule by which aircraft operators must stop using the noisier aircraft in favor of newer, quieter aircraft. ANCA requires that, with limited exceptions, Stage 2 aircraft weighing 75,000 pounds and above (essentially all of the aircraft operated by air carriers) must stop operating at U.S. airports after December 31,1999.
Under ANCA, Stage 2 aircraft may be included in a proposed noise or access restriction only if the airport operator publishes it and prepares an evaluation for public comment at least 180 days before it becomes effective. The prepared document must include (1) an analysis of the anticipated or actual costs and benefits of the restriction, (2) a description of alternative restrictions, (3) a description of alternate measures considered that do not involve aircraft restrictions, and (4) a cost and benefit comparison of the alternative measures and the proposed restriction.
An airport operator may implement noise or access restrictions involving Stage 3 aircraft in either of two ways: (1) voluntary restrictions that have the consent of all aircraft operators at the airport through formal or informal agreement or (2) mandatory restrictions without the consent of users, but subject to an FAA review and approval process known as a Part 161 review. Voluntary agreements can be made without going through the Part 161 review, but can be difficult to enforce, particularly with itinerant airport users (49 U.S.C. § 47524).
ANCA did not invalidate existing airport restrictions. Any such restrictions in effect on or before November 5, 1990 (the act’s effective date) were “grandfathered” under the new law. But they become subject to ANCA requirements if they are amended or reinterpreted after that date to impose additional restrictions or are made mandatory instead of voluntary. Thus many restrictions continue to exist around the country even though no new mandatory restrictions have been approved under the FAA Part 161 review process. According to John Silva of the FAA regional office and Lynn Pickard of the FAA Headquarters Office, a number of voluntary agreements have been reached under ANCA but only one airport in the United States currently has a Part 161 review ongoing.
The Part 161 review is intended to make it extremely difficult to impose restrictions. The regulatory requirements are complex and are only described generally in this report.
ANCA requires an airport operator seeking to impose Stage 3 aircraft noise or access restrictions to conduct an assessment and analysis meeting several criteria. The assessment must provide substantial evidence that the proposed restriction meets ANCA’s six statutory conditions, namely, that: (1) it is reasonable, nonarbitrary, and nondiscriminatory; (2) it does not create an undue burden on interstate commerce; (3) it maintains safe and efficient use of the navigable airspace; (4) it does not conflict with any existing federal law or regulation; (5) the airport operator applying for the restriction has provided adequate opportunity for public comment on it; and (6) it does not create undue burden on the national aviation system. FAA regulations specify certain essential information that must be provided with respect to satisfying each of these conditions (14 CFR § 161.305).
If an airport is found to be imposing a noise or access restriction that violates ANCA’s requirements, the transportation secretary may withhold federal airport development grants for the airport and can prohibit it from collecting a passenger facility charge. The secretary may also seek injunctive relief.
While the processes for Stage 2 and Stage 3 requirements under ANCA differ somewhat, in that Stage 3 aircraft restrictions are subject to the Part 161 review and Stage 2 aircraft restrictions are not under most circumstances, Silva told us that there is little practical difference in how the FAA deals with them. While Stage 2 aircraft restrictions usually do not require formal FAA approval, the FAA reviews the statutorily required public document and applies the same review criteria it applies to the Part 161 review process. If it fails to meet these standards, FAA provides an advisory opinion informing the operator that it may result in imposition of the ANCA funding sanctions.
Some aircraft operational procedures such as preferential runway use, noise abatement approach and departure procedures and profiles, and flight tracks, must be submitted to the FAA for approval under its other statutory responsibilities for providing for the safe and efficient use of U.S. airspace and thus are not directly subject to inclusion in a Part 161 analysis under most circumstances. However, this approval process is usually even more stringent than a Part 161 review. Other procedures such as restrictions on taxiing or engine runups (used for maintenance and other purposes) also may not come under ANCA requirements unless they have the effect of limiting the number or hours of Stage 2 or 3 aircraft operations at an airport.
Silva and Pickard also identified the grant assurances required whenever an airport receives a federal grant as another constraint on what an airport operator may do. Whenever federal funds are provided through an airport development grant, the recipient must make several assurances to the FAA. Among these is that the airport will be kept open to all types, kinds, and classes of aeronautical use on fair and reasonable terms without discrimination; that conditions imposed for the safe and efficient operation of the airport must be fair, equal, and not unjustly discriminatory; and that limitations or prohibitions of a given aeronautical use be necessary for safe operation or to serve the public’s civil aviation needs. FAA interprets this assurance in a broad way to prevent arbitrary actions by airport operators.
BRADLEY AIRPORT NOISE STUDY
Federal law and FAA regulations provide for a voluntary program under which airport operators can conduct comprehensive noise analysis of the airport environment, prepare noise exposure maps, and make recommendations for a noise compatibility program to reduce noise and noncompatible land uses around the airport. The noise compatibility program may be submitted for FAA approval under established criteria and, if approved, it and any noise projects related to it become eligible for federal funds under the Airport Improvement Program. This is generally known as a “Part 150” noise study (14 CFR Part 150).
A Part 150 study takes the entire airport environment into account and can cover much more than just changes to approach and departure procedures. It can, for example, consider alternatives such as land acquisition, construction of barriers and acoustical shielding, soundproofing of public buildings, use of a preferential runway system, modified flight procedures, use restrictions, and other actions that may have a beneficial effect on noise control or abatement. Another outcome of a Part 150 study can be the identification of land use compatibility criteria that municipalities can use for guidance in their land use planning process. An analysis of Part 161 restrictions can be part of a Part 150 study but do not have to be included.
The DOT decided to undertake a Part 150 study for Bradley in 1998. However, right after the initial meeting on the study, DOT felt it necessary to focus its initial efforts on an environmental assessment of procedural changes for Runway 6-24 rather than on the entire airport environment. This was started in September 1998 and became generally known as the “Mini Noise Study.” The information developed during the study, along with input from a series of public meetings, caused DOT to decide that the potential for significant noise impacts related to changes related to Runway 6 made it unsuitable for consideration in the assessment and necessitated study in a full environmental impact statement. Thus the mini-study assessment contains consideration only of departure procedure changes for Runway 24. The draft assessment has been completed and is scheduled for review at a public meeting on December 13, 1999. The public may comment on the draft assessment through January 14, 2000. Procedural changes recommended in the assessment could go into effect in 60-90 days from the close of the comment period.
DOT estimates that it will take from six to nine months to conduct the environmental impact statement analysis for the Runway 6 changes. The DOT must conduct scoping meetings, must negotiate the fee for a consultant, and perform all the necessary work during this period. There will also be a public comment period once a draft statement has been prepared.
The full Part 150 study will require another 18 to 24 months to conduct because it is has been on hold while the Runway 6-24 analyses were being conducted.
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