German Court’s Upholding Curfew at Frankfurt Airport Underscores Growing Concern With Aviation’s Impact On Surrounding Communities

In a decision that is only a few lines long, a German court upheld a ban on night flights at Frankfurt airport in a devastating blow to Lufthansa and Fraport, which operates the airport.  The federal state of Hesse, which is permitted to regulate flights in and out of the airport, had proposed regulations that would have allowed 17 flights during the night (11:00 p.m. to 5:00 a.m.) .  However, those regulations were reversed by a lower court which banned all night flights.

While the ruling by the German appellate court was a victory for the communities around the airport who have protested the excessive noise produced by the airport, especially since the fourth runway opened last year, an economic consequence from the ban will ensue.  Lufthansa’s cargo unit estimates it will lose €40M in annual earnings because of the ban on night flights.  This caused Christoph Franz, Lufthansa’s CEO to state that the curfew is “a big blow for Germany as a place to do business and there is no doubt that one of Europe’s biggest hubs will slip in international competitiveness.”

In the United States, such a ban, unless it has been “grandfathered” in pursuant to 49 U.S.C. § 47524(d), is not possible without the approval of the FAA.  The City of Burbank, for example, has been trying for years to institute a curfew at Bob Hope Airport.  See, for example, the landmark case of City of Burbank v. Lockheed Terminal, 411 U.S. 624 (1973), which held that Burbank’s ordinance prohibiting jet aircraft from taking off between the hours of 11 p.m. and 7 a.m. from airport was invalid because Congress by its enactment of Federal Aviation Act and the Noise Control Act has preempted state and local control over aircraft noise.  However, even after spending millions of dollars in order to comply with the FAA’s stringent regulations on instituting curfews, the FAA declared that Burbank’s request was “not reasonable” and would “create an undue burden on commerce.”

The American position flies in the face of the increasing public concern about the impact that noise and air pollution created by aircraft have on the communities below the flight paths.  For example, the Hypertension & Exposure to Noise Near Airports (HYENA) study studied the effects of aircraft noise on 4861 persons at 7 European airports between 2002 and 2006.  The 2002 RANCH study from London studied the effect of aircraft and road traffic noise on 2,844 children’s cognition and health.  Finally, WHO Europe issued “Night Noise Guidelines” based on European Union research.  This type of study has largely been absent in the United States.

In addition, studies in the United Kingdom have shown a connection between the amount of aircraft and traffic noise to children’s ability to learn.   For three years (2002, 2003 and 2004), researchers at Queen Mary, University of London carried out the largest study on the effects of long-term exposure to noise on children’s health to date, examining almost 3,000 children living in the UK, Spain and the Netherlands. That study found discernible impacts on children’s cognitive development to aircraft noise exposure as low as 50 DNL. The reading age in children exposed to high levels of aircraft noise was delayed by up to two months in the UK for a five decibel change in noise exposure.

Moreover, the FAA seems to be ignoring increasing evidence concerning the health impacts of aviation that come its own studies.  Partnership for AiR Transportation Noise and Emissions Reduction (PARTNER), a collaboration between the FAA, NASA and TransportCanada, issued in July 2010, its Review of the Literature Related to Potential Health Effects of Aircraft Noise, (prepared by Hales Swift).  That Review concluded that “[p]otentially serious health outcomes have been identified in studies involving transportation noise exposure in a population. These include heart disease and hypertension and the observed effects seem to be related especially to nighttime noise exposure although similar daytime exposure effects have also been identified.”  PARTNER 2010, p.62.   Yet, the FAA feels comfortable in not permitting night curfews because it may “burden” interstate commerce.

While the German Court’s decision may have an economic impact on Lufthansa’s cargo operations at Frankfurt airport, it will definitely have an impact on the lives and health of the people in the surrounding communities.  It is unfortunate that the FAA and the U.S courts cannot do the same for the citizens of the United States and protect their health and well-being.

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