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.

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New Study Says “Concentrations” of Noise Complaints Skew Aviation Noise Policy

Using what they call “high concentrations” of noise complaints from a few individuals as a jumping off point, Eli Dourado and Raymond Russell of George Mason University’s Mercatus Institute conclude that “[i]t would be a mistake to allow the preferences of a vocal but minuscule minority of citizens, however sympathetic their circumstances, to impede much-needed improvements in aviation.” (Report is available here: http://bit.ly/2eNayTd) The thrust of the report seems to be that the valid concerns of communities around airports about aviation noise can safely be ignored because there are only a few activist individuals.

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. 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. However, what the report does not address is whether the concerns expressed by the citizens are valid and whether the citizens who do file noise complaints are a representative sample of the community instead of the sum total of those citizens who are affected by aviation noise.

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 there are a few vocal individuals. There is enough evidence that the health, as well as the economic, effects of aviation noise have a wide ranging effect on communities.

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Court Overturns Aircraft Noise Small Claims Lawsuit Against San Mateo County

After enduring aircraft flying over his home at all hours, Adam Ullman, a resident of unincorporated Menlo Park, California, filed a Smalls Claims action against the County of San Mateo, the owner of the nearby San Carlos Airport for creating a public nuisance by allowing Surf Air to use the airport. Although initially successful, last Friday, August 26, 2016, the County’s appeal of the smalls claims judgment was thrown out. As Barbara Wood reported in The Almanac, San Mateo County Superior Court Judge John L. Grandsaert, in overturning the Small Claims court decision stated that “it strikes me that what you’re seeking” is “an end to this noise. . . You want that stopped. That’s what’s called injunctive relief. . . I’m with you in terms of your concerns and your presentation. I’m really not with you so far as why this case should be in small claims court.” http://bit.ly/2bVA6dK

The problem with that finding? It would be impossible for Mr. Ullman to get an injunction to stop the noise created by the Surf Air aircraft. There is a long history of airports owners and communities surrounding airports being unable to regulate noisy aircraft. First, airport owners are bound by their grant assurances – that is, the agreement they sign with the FAA in order to get federal money – to keep the airport open for all “aeronautical users.” This includes noisy aircraft.  http://bit.ly/2bJvuq6 Moreover, federal law prevents airport owners and operators from prohibiting certain types of aircraft from a particular airport. Curfews on aircraft traffic at airports are also prohibited by federal law See 49 USC 47524. So even if the County of San Mateo wanted to stop Surf Air from using San Carlos Airport, it could not without inviting the FAA to begin a legal action against it.

Second, the communities surrounding the airport cannot stop noisy aircraft either. Several communities have tried to enact ordinances that would restrict noisy aircraft from flying over their neighborhoods. Federal law, however, says that they cannot do that. Courts have consistently said that aircraft in flight are the sole responsibility of the FAA and if the FAA says they can be there, then there is little that a state or local government can do to stop it.  See, for example, the seminal case in this regard, City of Burbank v. Lockheed Terminal, 411 U.S. 624 (1973). So even if the County of San Mateo (or Atherton or Menlo Park) wanted to enact ordinances limiting the aircraft noise above their residents, that, too, would invite a legal action from the FAA.

In the end, the Judge is right: the issue is that Mr. Ullman – and millions of other Americans – want the noise stopped. But the reality is that filing for an injunction will not work because federal will not permit it

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Aviation Noise Is an Issue that Needs a Reasonable Solution

In the process of searching the internet for information about aviation noise, I often run across web pages like this one:http://www.beechtalk.com/forums/viewtopic.php?f=7&t=127555 where pilots lament how people move next to airports and then complain about the noise. They also frequently state how much they love hearing aircraft noise. To me, there is a disconnect in their thinking. While I am sure there are people who do, in fact, move to the noise, in many instances that is not the case.

For example, the person who buys a home near an airport – a sleepy little General Aviation airport – who does not mind the single-engine Cessnas on the weekends, only to find there is little the homeowner can do to stop the expansion of the airport to accommodate screeching business jets at all hours of the day.

Or the homeowner who buys a house in a rural area known for its peace and quiet, miles away from the nearest airport only to find that the FAA has changed the flight path so that a constant stream of large jets are flying under 5000 feet over the house.

Or the homeowner who has lived in a neighborhood near an airport for years. But then, the airport owner and the FAA decide to reconfigure the runways at the large commercial airport to accommodate more traffic and the homeowner finds herself underneath the approach pattern for the airport.

Or the homeowner who lives in an urban area, but finds that the FAA has changed the flight paths so that airplanes now fly lower and closer than before.

Or the homeowner who recognizes that she lives near a large commercial airport and expects aircraft noise, but when the airport owner and the FAA agree to offer noise mitigation to lessen the impact on the homeowner, it takes over 15 years for the airport to complete the project. And during that time, the aircraft fly above her head.

Make no mistake, aviation noise and air pollution carry health effects – both mental and physical – what is needed less blaming the victim by pilots and the FAA and an increased emphasis on reasonable policy. Freeways are not built without compensating the nearby owners for their troubles. Neither should airports and flight paths – the “highways in the sky.” Reasonable noise standards that should be followed by the airports, aircraft, airlines and the FAA should be instituted. And they must be enforced.

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Santa Monica City Council Votes, Once Again, To Close Santa Monica Municipal Airport (SMO)

On August 23, 2016, the Santa Monica California City Council unanimously approved a resolution to reduce flights and close the Santa Monica Municipal Airport (SMO) by July 1, 2018. This is not the first time the City Council has taken this action, and, like previous efforts, this resolution faces substantial legal headwinds. http://lat.ms/2bCIqN4 and http://bit.ly/2biWBX4

Instead of simply calling for the shut-down of the airport, the resolution contained a package of measures designed to minimize environmental impacts and scale back flight operations, especially those of private and corporate jets, until the airport can be shut down.

These measure are aimed at curtailing aircraft traffic at the airport. They include petitioning the FAA to shorten the airport’s runway from 5,000 feet to 2,000 feet, eliminating the sale of leaded fuel, adding security, creating a permit system instead of leases for aviation tenants and increasing enforcement of local, state and federal laws related to airport operations.

In addition, the City Council approved the creation of a city-run operation to replace two private companies that provide aeronautical services such as fuel, maintenance and aircraft storage. The City believes that by doing so, it will be able to better control operations at the airport and reduce the environmental impact on the surrounding neighborhoods.

Closing the airport is still working its way through the courts and the FAA. The FAA recently ruled that the airport must stay open until 2023 in order to comply with its grant assurances. http://bit.ly/2b1vSjt The City has until October 14, 2016, to file a Petition for Review challenging that decision in the U.S. Court of Appeals.

In addition, airport users have filed another administrative proceeding with the FAA accusing the city of violating its grant assurances by imposing unreasonable landing fees, illegally diverting airport funds to non-aviation uses and setting unfair leasing policies to force out aeronautical tenants. FAA Docket No. 16-16-02.

Finally, the City filed a lawsuit in federal court to settle the issue about what its duties and responsibilities are under the federal agreement. After being dismissed by the U.S. District Court, the lawsuit was re-instated by the Court of Appeals. That lawsuit is set for trial in late 2017 in U.S. District Court in Los Angeles.   U.S. District Court for the Central District of California, Case No. 13-8046. Although the case is set for trial, the parties have agreed to mediation and have hired a private mediator. That proceeding will be completed no later than: March 7, 2017, with a joint report regarding the results due on March 14, 2017.

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FAA Rejects Santa Monica’s Appeal of Grant Violations

Closing the administrative process, the Federal Aviation Administration on Monday denied the City of Santa Monica’s appeal of the FAA’s December 2015 inital decision. Monday’s decision has the effect of requiring the city’s airport to remain open at least until 2023. http://bit.ly/2b1vSjt  This result should have come as no surprise, the FAA rarely overturns its initial ruling in administrative actions. 05023AD

The City argued that a federal airport improvement grant of $240,600 accepted by Santa Monica in August 2003 was not a new grant, but an amendment to a previous. Therefore, the grant agreement between the FAA and the City had already expired. In December, 2015, the FAA ruled in its “Director’s Determination” that the 2003 grant was a new grant. As such, the airport to stay open until at least August, 2023, when the terms of the grant agreement would expire. The City tried to convince the FAA that it should not be able to write the grant agreements and then be given deference when it comes time to interpret the agreements. This is particularly true in this case, the City stated, where the City’s interpretation of the grant agreement was reasonable one and the FAA was aware of its interpretation. The FAA found that it could, indeed, interpret the grant agreements anyway it chose, since it was issuing the grants. The FAA concluded that normal rules of contract interpretation do not apply in this instance.

The City will now have 60 days to decide whether to take this issue to the U.S. Court of Appeals. The City’s Petition for Review could be filed either in the U.S. Court of Appeals for the Ninth Circuit, located in San Francisco, or the U.S. Court of Appeals for the D.C. Circuit in Washington, D.C.

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Congress Rolls Out FAA Short Term Extension Bill

On Wednesday, July 6, 2016, Sen. John #Thune (R-SD) announced that the House and Senate negotiators had finally reached a deal for a short-term extension of the Federal Aviation Administration’s (#FAA) reauthorization. Although the bill itself has not yet been released to the public, the Senate Commerce Committee did post a summary of its provisions. You will recall that the House passed a bill that included an overhaul of the Air Traffic System. That proposal did not go over well in the Senate, who passed their own bill without the revamping of Air Traffic. With the July 15, 2016, deadline looming the two chambers finally came together on a much smaller package of legislation along with a very short-reauthorization period – only until September, 2017.

Here are the highlights:

Drones:

Although the FAA has issued its long-awaited commercial drone regulations, Congress wants to make sure that drones are operated safely and do not interfere with other aviation activities.

  • Streamlines processes for approval and interagency cooperation to deploy unmanned aircraft during emergencies, such as disaster responses and wildfires.
  • Prohibits unmanned aircraft users from interfering with emergency response activities, including wildfire suppression, and raises civil penalties to not more than $20,000 for those found in violation.
  • Creates new processes to detect, identify, and mitigate unauthorized operation of unmanned aircraft around airports and critical infrastructure

In summary, the bill will focus primarily on wildfires – how to use drones and how to keep them out; and on keeping rogue drones away from airports.

Aviation Security:

Because of the recent terrorist activities, aviation security was a driving force in getting this bill done. The bill seems to track the Senate bill.

  • Strengthens security for foreign airports by requiring comprehensive security assessments for all overseas airports serving the United States and considers the level of information sharing and security capabilities of foreign airports.
  • Authorizes capacity development, training, screening equipment donation, and cargo program certification for overseas airports to bolster the security standards for flights headed to the United States from high risk airports.
  • Expands the TSA PreCheck program by directing TSA to partner with the private sector to develop enhanced enrollment and vetting methods. By developing and marketing this program, TSA can strengthen security by identifying trusted travelers, while also increasing operational efficiency of checkpoints by providing expedited screening to more passengers.
  • Optimizes checkpoints by redeploying certain TSA personnel and assessing TSA’s staffing allocation model, in order to reduce passenger wait times while enhancing security effectiveness.
  • Tightens the access controls and employee vetting standards for aviation workers with access to secure and sterile areas of airports, in order to mitigate the insider threat to aviation security.
  • Authorizes “Checkpoint of the Future” innovation efforts underway at TSA, authorizes additional TSA Visible Intermodal Prevention and Response teams, and ensures these teams are trained to assist transportation hubs in preparing for and responding to active shooter scenarios.

Consumer Protection:

  • Requires air carriers to provide a refund of paid baggage fees when items are lost or unreasonably delayed.
  • Requires airlines to generally ensure that children 13 years of age or under are seated adjacent to an adult or older child traveling with them.
  • Takes steps to improve air travel for persons with disabilities by requiring a review of training and best practices by airports and airlines, and by requiring DOT to issue a rule to address several issues of concern to the disabled community.
  • Extends authority for the DOT’s Advisory Committee for Aviation Consumer Protection.

Pilot/Aviation Safety/Air Traffic Control:

  • Strengthens mental health screening for pilots, addressing a factor in the 2015 Germanwings Flight 9525 crash.
  • Expedites the completion of the pilot records database required in the Airline Safety and FAA Extension Act of 2010 in response to the 2009 Colgan Air Flight 3407 accident
  • Ensures that pilots are sufficiently trained on manual flying skills and how to monitor cockpit automation systems, addressing a factor in the 2013 Asiana Flight 214 accident in San Francisco.
  • Reforms and streamlines the third-class medical certification process
  • Requires training for flight attendants in recognizing and responding to potential victims of human trafficking.
  • Requires the FAA to provide quarterly updates to Congress regarding the number of incidents involving laser pointers being aimed at aircraft, and the number of civil or criminal enforcement actions taken by federal authorities with regard to these incidents.
  • Streamlines and improves the air traffic controller hiring process and ensures the FAA can better address chronic controller shortages with experienced candidates.
  • Directs the FAA to establish a comprehensive and strategic framework to identify and address cybersecurity risks to the aviation system

As soon as the entire bill is released to the public this blog post will be updated.

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