Why Can’t We Have A Curfew?

Blame it on one very simple Federal law: ANCA , the Airport Noise And Capacity Act Of 1990.

I keep trying to write a brief history of how all airport law regarding noise and pollution got subsumed from where it was (the EPA) into the FAA, but all people seem to really care about these days is WHY CAN’T WE SLEEP AT NIGHT! So I borrowed from some other posts to give it to you in 700 words.

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. So from here out just forget that term.)

Black And White

And I know you don’t believe me 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.

Just read A) through E). It’s pretty clear.

History In One Paragraph

What people need to understand about ANCA is that it is one of those laws where the title is actually the opposite of its main function (like those lobbying groups “Americans For Environmental Progress” that are actually pro-fossil fuel.) The law was implemented 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 bit like the Ten Commandments in that it’s a remarkably short text. 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!)

No, you can’t have one. The section of ANCA preceding the one I quoted explicitly states that only airports which already had a curfew when the law was implemented in 1990 may continue to have a curfew. Airports who now want to create one may not do so. (And besides, even if you want one, the Port Of Seattle may not want one because their tenant airlines would not want one and they drive 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?

Now, ‘voluntary’ could work if the community was able to mobilize enough attention to publicly shame the airport and the airlines if they did not comply.  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 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 lawsuit of the 1990s.

ANCA makes sure that the only channels available to protesters  are within a closed system where all activists 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.

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