Some Things Do Not Change: Aviation Groups Object to Protecting Public Health Through Enforceable Noise Standards

Some things never change. The airport and airline groups lobbying Congress that a new, beautiful, noise-free future is “just around the corner” so there is no need for enforceable noise standards. http://bit.ly/2MuInpd

In 1972 during the Senate debate on the Noise Control Act, objections were raised to the Act that the “engine manufacturers are coming out with new, less noisy models” and soon aviation noise would be a distant memory. We just have to be patient and trust the engine manufacturers, the airlines and the FAA. It is now 2018 and we are still waiting for that noise-free future, and the aviation groups are still promising that it is just around corner.

Sen. John Tunney saw through that argument and pushed hard for the Noise Control Act. In the last debate before the passage of the Act he stated:

The key element in this proposal is protection of the public health and welfare. The key element is not, as some may believe, protection of commerce. The Federal Aviation Administration’s regulatory responsibility is retained in order to assure technological availability and protect safety. However the FAA, following the lead of EPA, will be required to promulgate regulations which shall assure protection of public health and welfare in airport environments even where it is not possible to achieve necessary noise reductions through the application of specific emission controls on engines and aircraft.

The FAA failed in its regulatory duty then, and Congress needs to remind the FAA of its duty and regulatory responsibility to assure protection of public health and welfare.

D.C. Circuit Schedules Oral Argument in SoCal Metroplex Matter

The U.S. Court of Appeals for the District of Columbia Circuit scheduled oral argument for the Southern California Metroplex case (Donald Vaughn v. FAA, No. 16-1377 and consolidated cases) for October 18, 2018, at 9:30a at the E. Barrett Prettyman Courthouse, 333 Constitution Ave NW, Washington, D.C. 20001. The three-judge panel who will hear the argument and decide the case will be announced 30 days prior to the oral argument. http://bit.ly/2LS8Q31 Leech Tishman represents two petitioners in the matter, Donald Vaughn and the Santa Monica Canyon Civic Association.

FAA Issues Final Environmental Assessment and FONSI/ROD for Cleveland/Detroit Metroplex

On April 30, 2018, the Federal Aviation Administration issued its Final Environmental Assessment (http://bit.ly/2syCyhF) and Finding of No Significant Impact/Record of Decision (FONSI/ROD http://bit.ly/2kHMkKZ ) for what it calls the “Cleveland/Detroit Metroplex.” In essence, as part of the FAA’s “Next Generation Air Transportation System” (“NextGen”), the FAA is redesigning most of the flight routes in the Cleveland and Detroit areas to accommodate “Performance Based Navigation” (PBN) procedures, which utilize satellite-based technology instead of land-based radar systems.

In a June 1, 2018, email announcing the issuance of the Final Environmental Assessment and the FONSI/ROD the FAA noted that although “It showed the proposed action would not result in any significant noise increases under the National Environmental Policy Act. However, there would be a reportable noise increase that could potentially affect approximately 335 residents in the Sumpter Township, Wayne County, southwest of Detroit Metro Airport.” According to the FAA, the existence of “reportable noise increases” does not require the FAA to issue a Environmental Impact Study instead of an Environmental Assessment. Nor does it require the FAA to mitigate the increase in noise caused by the project.

Continuing, the FAA indicates that “[w]hen the Cleveland/Detroit Metroplex procedures are implemented, some people might see aircraft where they did not previously fly. This is because some air route changes will occur, and because satellite-based procedures create more concentrated flight paths than conventional procedures.” But, again, offers no respite for those people who are affected by changes, since no mitigation is required by the FAA’s regulations.

However, in Vision 100 – Century of Aviation Reauthorization Act of 2003, Pub.L. No. 108-176, § 709(c), Congress laid out in detail the goals of the Next Generation Air Transportation System (“NextGen”). Using the mandatory “shall,” Congress directed the FAA “take into consideration, to the greatest extent practicable, design of airport approach and departure flight paths to reduce exposure of noise and emissions pollution on affected residents.” There is no indication in either the Final Environmental Assessment or the FONSI/ROD that the FAA complied with Congress’ mandate and actually considered developing routes and procedures that would reduce noise experienced by residents on the ground.

Finally, if anyone wants to challenge this decision, the petition for review must be filed within 60 days from the issuance of the FONSI/ROD. 49 USC 46110(a). Since the FONSI/ROD was signed on April 30, 2018, that means the petition for review must be filed no later than Friday, June 29, 2018. It can be filed in either the U.S. Court of Appeals for the Sixth Circuit or the U.S. Court of Appeals for the D.C. Circuit.

FAA Files Response Brief in SoCal Metroplex Aviation Noise Case

Yesterday, May 15, 2018, FAA filed its Response Brief in the Southern California Metroplex matter currently pending in the U.S. Court of Appeals for the D.C. Circuit. http://bit.ly/2GrN8Mw In case you missed it, here is our Opening Brief http://bit.ly/2rIsmCO that FAA was responding to.

Residents from around Los Angeles and San Diego filed a Petition for Review of the FAA’s “Southern California Metroplex” project which redesigned the airspace over Southern California. The issue: re-arranging the flight paths increased the noise and pollution for many people on the ground. In addition, it put aircraft over the heads of many people for the first time.

Georgetown Residents File Motion for Rehearing En Banc in Their Fight Against Reagan National Aircraft Noise and Pollution

Georgetown residents file Motion for Rehearing En Banc in their fight against new departure routes from Reagan National Airport that bring aircraft lower and closer to Georgetown creating much more noise and pollution. The residents claim that the three judge panel’s decision on March 27, 2018, conflicts with the Court’s decision in the City of Phoenix case. In the Phoenix case, the D.C. Circuit held that Phoenix had “reasonable grounds” for missing the 60-day window in which to file a petition for review. http://bit.ly/2k2vQgd

Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (generally consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court. The Federal Rules of Appellate Procedure state that a rehearing en banc “is not favored and ordinarily will not be ordered.” (Rule 35). Thus, this is an uphill battle for the residents.

Update July 1, 2018: FAA filed its Response to the Motion for Rehearing En Banc. Here is a link to a copy of the Response: http://bit.ly/2NcQw29 There will be no hearing and the court should issue it decision in the next couple of weeks.

D.C. Circuit Says No to Georgetown Residents

U.S. Court of Appeals for the D.C. Circuit decides that the Georgetown Neighborhood Associations did not file their Petition for Review within the 60-day limit mandated by 49 U.S.C. 46110. Therefore, their petition regarding the increase in noise over Georgetown was denied. http://bit.ly/2J2MsiT

Airport Noise Increases Risk of Heart Disease, New Study Shows

A new study recently published in Occupational & Environmental Medicine found that people living under flight routes and close to airports are at an increased risk of hypertension. http://bit.ly/2soF8Ze Specifically, the study concluded that “long-term exposure to aircraft noise, particularly during the night, is associated with incident hypertension and possibly, also, cardiovascular effects.

This latest study showing connections between aircraft noise and cardiovascular disease was headed by Dr. Kostantina Dimakopoulou of University of Athens’ School of Medicine. This study followed-up with 420 individuals who lived near the Athens International Airport in Greece and had participated in 2013 cross-sectional multicountry HYENA study.  http://bit.ly/2ssKvHH These people were exposed to up 600 aircraft operations every day. The study found that exposure to aircraft noise, particularly at night, was associated with high blood pressure. With every additional 10 dB of night-time aircraft noise, the study showed that there was a 69% heightened risk of high blood pressure.

This study can be added to the growing number of public health studies showing the health risks that people face from noise from aircraft flying overhead. Aircraft noise is a public health issue that needs to be treated as a public health issue, instead of an annoyance that people need to “get over” in the name of economic development. http://bit.ly/24o4uS6

 

Homeland Security Says No Ban on Carried-On Large Electronics from Europe – Yet

Yesterday, May 30, 2017, the Department of Homeland Security issued a statement (http://bit.ly/2sexo9A) after a conference call with European Home Affairs Commissioner Dimitris Avramopoulos and Transport Commissioner Violeta Bulc to discuss aviation security. The statement concluded that the Department of Homeland Security was not going to expand the ban on large electronic devices on flights to the U.S. from Europe. However, Secretary Kelly emphasized that the expansion of the ban is “still on the table” and that the DHS will expand the ban “if the intelligence and threat level warrant it.”

Currently, large electronics are banned on flights to the United States from 10 specific airports located primarily in the Middle East: The affected overseas airports are: Queen Alia International Airport (AMM), Cairo International Airport (CAI), Ataturk International Airport (IST), King Abdul-Aziz International Airport (JED), King Khalid International Airport (RUH), Kuwait International Airport (KWI), Mohammed V Airport (CMN), Hamad International Airport (DOH), Dubai International Airport (DXB), and Abu Dhabi International Airport (AUH). Yesterday’s statement does not affect the ban currently in place.

In addition to the announcement that the ban would not be expanded, DHS also indicated in its statement that the European Ministers they agreed on the need to “raise the bar for aviation security globally,” including “through a range of potential seen and unseen enhancements.”  In addition, there was agreement that the U.S. and Europe would “continue to work together to secure global aviation and to maintain clear lines of communication and cooperation.”

D.C. Circuit Court of Appeals Says FAA Drone Registration Rules Do Not Apply to “Model Aircraft”

On May 19, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in the case Taylor v. Huerta, Case No. 15-1495. The court concluded that the drone registration rules that the Federal Aviation Administration promulgated in December 2015, “Registration and Marking Requirements for Small Unmanned Aircraft,” 80 Fed. Reg. 78,594 (Dec. 16, 2015), do not apply to “model aircraft.”

The Petition for Review, filed by a model aircraft hobbyist, alleged that the FAA Drone Registration Rule were contrary to Section 336 of the FAA Modernization and Reform Act of 2012, which provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The court stated that the because the FAA Drone Registration Rule is “undoubtedly a rule” and is a “rule regarding model aircraft,” “[s]tatutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.” End of inquiry.

The larger question that is left unanswered is what constitutes “model aircraft.” In the past, drones were treated as “model aircraft” that got a pass from being regulated by the FAA under an advisory circular. Thus, one might argue that after this decision recreational drones do not have to be registered so long as they are considered to be “model aircraft.” Currently on its website, the FAA states that:

Congress defined a “model aircraft” as an Unmanned Aircraft System (UAS) that meets all of the following:

• Is capable of sustained flight in the atmosphere
• Is flown within visual line-of-sight of the person operating it
• Is flown for hobby or recreational purposes

https://www.faa.gov/uas/faqs/ Under the terms of the FAA Modernization and Reform Act of 2012 (P.L. 112-95), a model aircraft is defined as “an unmanned aircraft” that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” P.L. 112-95, section 336(c). Thus, the FAA will be hard pressed to separate a “model aircraft” from a “drone.”

Moreover, it seems that any workaround that the FAA might come up with will be stymied by the fact that it is Congress that has conflated “model aircraft” with “drone.” Any attempt by the FAA to separate its definition of “model aircraft” from its definition of “drone,” most likely will be met with lawsuits pointing to Congress’ interpretation in the FAA Modernization and Reform Act of 2012.

It would seem that, at least for the time being, that recreational use of drones under 55 pounds do not require registration.

Mercatus Center’s Noise Complaint Report Is Illogical and Unreasonable

The Mercatus Center of George Mason University published a report entitled “Airport Noise NIMBYism: An Empirical Investigation” (http://bit.ly/2eNayTd) that comes to the conclusion that a small but vocal minority is affecting aviation noise policy. They come to this conclusion based a perfunctory analysis of noise complaints filed. The report’s methodology and conclusions are unreasonable, illogical and naïve.

The report diminishes the impact of aviation noise on communities by showing that in several cases a few individuals or households accounted for a high percentage of noise complaints. The implicit conclusion is that if people really were affected by aviation noise there would be more unique complainers. This is an unreasonable conclusion. First, this conclusion assumes that noise complaints are a statistically good example of the communities’ opinion of aviation noise. There is no research to support this conclusion. The article by Fidell, Mestre and Sneddon in the Jan-Feb 2012 edition of Noise Control Engineering Journal (title: “A potential role for noise complaints as a predictor of the prevalence of annoyance with aircraft noise”) reaches valid conclusions about noise complaints. Second, it has been my experience that many residents do not believe that noise complaints are an effective tool for expressing their discontent about aviation noise. Because of their belief they do not file noise complaints even though they are severely affected by aviation noise. The issue with filing noise complaints with the airport and/or FAA is that residents in communities do not see any results from filing noise complaints.

Another concern is the report’s emphasis on economic considerations. The report authors continue “[t]here are worrisome signs that this small, frustrated minority of citizens is affecting aviation policy.” They claim that noise abatement has an effect on fuel efficiency, which increases carbon emissions and raises ticket prices. Therefore, the economic considerations should outweigh the concerns of a few “annoying,” but vocal, citizens. This ignores the very real health effects that aviation noise has on people. Summarily dismissing the residents’ concerns as being the result of a “small, frustrated minority” ignores the breadth of the community’s opposition to an increase in aviation noise. The report ignores the FAA’s duty to protect these communities.  See “[T]he Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” 42 USC § 4901(b); see also 49 U.S.C. § 40103(b)(2) “Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for . . . protecting individuals and property on the ground.” The statutes do not state that the FAA should take airline ticket prices into account when deciding whether noise abatement is appropriate.

While the report does not propose any firm policy options, it is worrisome that the effect of aviation noise on communities is should be downplayed because only a few vocal individuals are filing noise complaints. There is enough evidence that the health, as well as the economic, effects of aviation noise have a wide ranging effect on communities. Finally, the report ignores the FAA’s obligations under the law. When the FAA was reauthorized in 2003 and the FAA began its roll-out of NextGen, the Congress directed the FAA to “take into consideration, to the greatest extent practicable, design of airport approach and departure flight paths to reduce exposure of noise and emissions pollution on affected residents.”  49 U.S.C. § 40101 note, Vision 100 – Century of Aviation Reauthorization Act of 2003, Pub.L. No. 108-176, § 709(c)(7). The report is asking the FAA to ignore its statutory duties.