Papps, Peter E.

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Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 10 | Issue 11978Aviation: Local Airport Proprietors May ImposeNoise Requirement For Aircraft Provied theRegulations Are Reasonable and Non-DiscriminatoryPeter E. PappsFollow this and additional works at: https://scholarlycommons.law.case.edu/jilPart of the International Law CommonsThis Comment is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case WesternReserve University School of Law Scholarly Commons.Recommended CitationPeter E. Papps, Aviation: Local Airport Proprietors May Impose Noise Requirement For Aircraft Provied the Regulations Are Reasonable andNon-Discriminatory, 10 Case W. Res. J. Int'l L. 223 (1978)Available at: https://scholarlycommons.law.case.edu/jil/vol10/iss1/121978]RECENT DEVELOPMENTSAVIATION: LOCAL AIRPORT PROPRIETORS MAY IMPOSE NOISE RE-QUIREMENTS FOR AIRCRAFT PROVIDED THE REGULATIONS AREREASONABLE AND NON-DISCRIMINATORY-British Airways Board andCompagnie Nationale Air France v. The Port Authority of New Yorkand New Jersey, et al., 431 F. Supp. 1216 (S.D.N.Y. 1977).I. BACKGROUNDAs a response to growing American domination of the internationalaircraft market, France and Great Britain collaborated in the produc-tion of a supersonic passenger airplane, the Concorde. Over a periodof thirteen years, almost $3 billion was expended on the plane'sdevelopment, including over $100 million to lessen the noise producedby the Concorde. This expenditure was necessitated by the fact thatthe Federal Aviation Administration (FAA) allowed local airport pro-prietors to control and limit the types of aircraft which could use theirfacilities on the basis of noise production.Congressional policy had been to delegate to local airport ownersthe job of controlling noise at their airports by the promulgation ofnon-discriminatory regulations. This power was severly limited by Con-gressional acts which made it clear that exclusive statutory responsibili-ty for aircraft noise abatement rested with the federal government.Voluntary delegation of authority in the area was subject to ultimatefederal control and possible revocation.The authority of local airport operators was also subject to two fur-ther restrictions not directly related to noise, those being that noregulations could be imposed which would place an undue burden oninterstate or foreign commerce or which would unjustly discriminatebetween different categories of airport users.The Port Authority of New York and New Jersey (PA) is theoperator of New York's John F. Kennedy International Airport (JFK).IIn 1951, the PA adopted a regulation prohibiting any aircraft fromlanding at or taking off from any PA airport without permission fromthe authority. The PA eventually adopted 112 PNdB (perceived noisein decibels) as the maximum permissible noise level for any plane usinga PA airport, a standard which is still in effect.'The Port Authority also operates Newark International Airport, in Newark,New Jersey, and LaGuardia Airport, in Queens, New York City.CASE W. RES. J. INT'L L.The operators of Concorde, British Airways and Air France, ap-plied to the FAA in late summer 1975 for amendment of their opera-tions specifications, to permit the use of the SST in transatlantic ser-vice. In response to this request, the Secretary of Transportation,William Coleman, issued a Directive and Order on February 4, 1975,allowing each carrier to fly two Concordes into JFK each day and oneper day into Dulles International Airport, in Virginia. These were pro-visional amendments only, valid for sixteen months and subject to im-mediate emergency revocation. Conceding that the decision involved"environmental, technological and international considerations that areas complex as they are controversial," Secretary Coleman reasoned thatthe only way in which a subjective matter such as the effect of noisecould be analyzed would be under actual operating conditions. Cole-man added that he could find no compelling reasons for not allowingthe test flights.The Port Authority, however, could cite many significant reasonsfor refusing to allow the test flights. Not only was Secretary Coleman'sdecision seen as an infringement on the PA's rights and powers, butthere was also the problem of the residents of Howard Beach and theRockaways in Queens County. These homeowners, who lived under theflight paths of the JFK runways, saw Concorde not as a technologicalmarvel, but as a serious threat to their accustomed way of life. Theseresidents initiated picketing and letter writing campaigns and formedhuge, extremely slow-moving motorcades which all but caused trafficon the access roads to JFK to come to a halt. Repeated injunctionsagainst these "drive-ins" were unsuccessful. Uneasy local politicianspressured the PA to prevent the landings. These local residents werenot impressed by Secretary Coleman's impassioned argument in favorof the project.Yet, while forcefully urging that the SST be allowed to land,Secretary Coleman recognized the right of the PA to refuse landingrights to any aircraft for "any legitimate and legally binding reason."Disregarding the urgings of the federal government, the PA bannedConcorde from landing at JFK. It did not apply its 112 PNdB rule,stating that the special characteristics of the plane's low-pitchedrumbling noise were worthy of special research and that further in-quiry would be required before Concorde would be allowed to land inNew York. Concorde was therefore banned from New York as ofMarch 11, 1976, pending a six-month study of operating experiences[Vol. 10:223RECENT DEVELOPMENTat Dulles, Heathrow and Charles DeGaulle airports. The PA neverconcluded this study.II. THE CASEBritish Airways and Air France brought suit in United StatesDistrict Court (Southern District of New York) to have the PA bandeclared invalid. The plaintiffs claimed that the ban offended interna-tional treaties and agreements and illegally invaded an area of regula-tion which had been traditionally considered as being pre-empted bythe federal government and specifically pre-empted by the Secretary ofTransportation. The PA countered by asserting that Congress had notpre-empted a local airport proprietor's authority to accept or rejectaircraft for takeoff or landing on the basis of local regulations ap-propriate for the area.A. The Question of Federal Supremacy in the Area of AviationThe Federal Aviation Act of 1958 established the federal govern-ment's pre-eminent role in the control of air traffic. Under this act thefederal administrator was given the power to regulate the use of allnavigable airspace. Included within that power was the right to super-vise "such developmental work and service testing as tend to the crea-tion of improved aircraft .. "2 When the administrative powers ofthe FAA were made subject to the control of the Secretary ofTransportation, the Secretary was also given the power to promoteresearch relating to noise abatement "with particular attention to air-craft noise." That federal authority in the realm of aviation law wasparamount was readily accepted by the District Court.3Congress first exercised its power to control aircraft noise in 1968.The statute was clear in granting the federal government the exclusivestatutory responsibility for noise abatement through the regulation offlight operations and aircraft design.4 A Senate report accompanyingthe bill pointed out, however, that the rights of the airport proprietorto create local noise regulations were not superseded by the bill, solong as such rules were not discriminatory. Much of the local authorityover noise control, the court found, was delegated federal power andsubject to "the ultimate pervasive federal control."' The District Court249 U.S.C. § 1301 (1970).'Act of Oct. 15, 1966, Pub. L. 89-670, 80 Stat. 93.449 U.S.C. § 1431 (1970).'Aircraft Noise Policy Hearing, 94th Cong. 2d Sess. 705 (1975-76).1978]CASE W. RES. J. INT'L L.view was novel, since exclusive federal rule making power had neverbefore been asserted.The PA's imposition of the 112 PNdB noise level requirement hadnever been challenged by the federal government or by an air carrier.The failure of the PA to apply an approved standing rule was not con-sidered by the District Court.The District Court's ruling dealt exclusively with the question offederal supremacy and pre-emption. Adopting the reasoning set forthby Secretary Coleman in the Directive and Order and apparently look-ing only to the plain meaning of the statutes, Judge Pollack found thatsince federal power was supreme in the field of noise abatement, thePA's refusal to allow a Concorde test landing was improper.6 The ef-fect of this ruling was that all powers of local airport operators becamemere delegations of power from federal authorities and were subject tocomplete pre-emption at the option of a federal official or agency. Thequestion of the reasonableness of local regulations or actions was ig-nored.The Port Authority was ordered to permit the Concorde test toproceed in accordance with the guidelines established by Secretary Cole-man. The PA immediately appealed the case.The Court of Appeals did not deal directly with the reasonablenessof the PA's decision since the question was never raised in the DistrictCourt arguments. The court did submit that reasonableness was animplicit component of the federal scheme of noise regulation. Thefederal power was delegated to local authorities with the proviso thatcontrol would be exercised in a fair, reasonable and responsible man-ner. But since no evidence had been offered on the matter, the ques-tion was remanded to the District Court.7The mere fact that the issue had to await the evidentiary hearingdid not prevent the appellate court from pointing out that the failureof the PA to act in a reasonable manner would "hinder the ac-complishment of legitimate national goals" such as free flowing inter-national commerce.The appellate court also suggested that the treaty obligations of theUnited States should be considered. Evenhanded treatment for Britishand French air carriers was mandated by certain of these bilateraltreaties. Refering to these compacts, the airlines had argued that thePA ban was not a valid and enforceable regulation since it was not643 F. Supp. 1216, at 1226 (1977).'558 F.2d 75, 82 (2d Cir. 1977).[Vol. 10:223RECENT DEVELOPMENTgenerally applied but was an ad hoc measure directed solely at theSST.8The Concorde litigation was in fact having a disruptive effect onthe negotiations for the soon-to-expire Bermuda Agreement on U.S.-U.K. transatlantic flights. Great Britain, which eventually won severalimportant concessions, including the award of new routes at the ex-pense of American airlines, made mention of this fact and the courtwas quick to agree that the situation was worthy of serious considera-tion by the PA and the federal government. 9After considering the above-mentioned factors, the Court of Ap-peals remanded the case for a rehearing on the question of thereasonableness of the Port Authority's ban on Concorde.B. The Question of the Reasonableness of the PortAuthority's DecisionOn remand, District Judge Pollack left no doubt as to theunreasonableness of the PA's action. Thirteen months after the banwas announced, the PA had been re-evaluating scientific and technicaldata which long had been available that showed that the Concordecould comply with all PA noise requirements, including the 112 PNdBrule. Tests made at Dulles verified this finding.' 0 The failure to applyreasonable noise standards to the SST was seen as a PA abdication ofthe limited cooperative authority. Having forfeited the power, the ap-propriate federal authority was then permitted to act. In this instance,the Secretary of Transportation was the appropriate authority.The court ruled that the ban unduly interfered with a valuable na-tional objective and imposed an unfair restriction on the interests ofthe United States. As a result of this ruling the operators of Concordewere granted the right to land in New York.The PA appealed again and on October 6, 1977, a three-judgepanel modified the earlier order. The panel ordered Concorde flightsto begin immediately. While repeating all the earlier judicialstatements that the ban was improper, this court did affirm the localright to impose reasonable noise standards." The judicial hints werefinally picked up by the PA, for after the decision was announced it81d. at 85.VId. at 86."046 U.S.L.W. 2103 (1977).1146 U.S.L.W. 2175 (1977).1978]CASE W. RES. J. INT'L L.decided to enact a series of new noise standards which, while ostensiblybeing reasonable, would also keep Concorde out of New York. 2While pondering what type of new regulations would pass musterwith the courts, the PA appealed to the Supreme Court. AssociateJustice Thurgood Marshall delayed the effective date of the appellatecourt's decision until October 24, 1977.1The Supreme Court affirmed the ruling of the appellate court onOctober 17, 1977, refusing to keep the ban in effect until a final deci-sion could be made on the overall merits of the case.' 4 The first Con-corde landed at JFK the next day, with only a test crew aboard,meeting the existing noise requirements.Unlike other areas of federal regulation in which the acts of Con-gress were so comprehensive as to make reasonable the inference thatCongress left no room for supplemental state action, federal statutesand policy made it clear that cooperative state-federal regulation ofnoise was envisioned. This shared power was to be exercised underrestrictions imposed by Congress. Congress only delegated power tolocal authorities. It did not permanently assign or forfeit any of itspowers to the states. Such an action would have fractionalized thenoise regulation attempts.Despite its protestations, the PA has recognized ultimate federalpre-eminence in the area of noise control, as it has now begun con-sideration of new noise standards that would meet requirements ofreasonableness. But with the first Concorde flights into New York hav-ing aroused no complaints from local residents, there is the likelihoodthat organized opposition to SST will vanish and that Concordewill become a regular customer of JFK.Peter E. Papps2The idea of having Concorde land at Newark International Airport was con-sidered, but only briefly. It was quickly apparent that the runways were too short toaccomodate the SST."N.Y. Times, Oct. 8, 1977, at 35, col. 3 (city ed.).'4N.Y. Times, Oct. 18, 1977, at 1, col. I (city ed.) (S.Ct. Oct. 17, 1977).[Vol. 10:223

Aviation: Local Airport Proprietors May Impose Noise Requirement For Aircraft Provied the Regulations Are Reasonable and Non-Discriminatory

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Aviation: Local Airport Proprietors May Impose Noise Requirement For Aircraft Provied the Regulations Are Reasonable and Non-Discriminatory

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