FAA Can Require Helicopters to Fly the North Route Along Long Island, D.C. Circuit Holds

On Friday, July 12, 2013, the U.S. Court of Appeals for the D.C. Circuit held that the Federal Aviation Administration could require that helicopters use a route one mile off the north shore of Long Island for the purpose of noise abatement in residential areas.  http://1.usa.gov/16E4xIH.  This brought the Helicopter Association International, Inc.’s petition for review of the FAA’s final rule requiring the usage of that route to a close.  http://1.usa.gov/12Bwe76.  In arriving at its holding, however, the Court made a couple of interesting rulings concerning the breadth of the FAA’s authority, as well as the evidence it can use to support its regulations, orders and findings.

Background

Prior to 2008, the Court explained, helicopters between New York City and eastern Long Island could use one of three routes to fly to their destination: along the north shore of Long Island; following the Long Island Expressway through the middle of the island; or along the southern shore of Long Island.  However, in 2008 the FAA developed the voluntary “North Shore Helicopter Route” (NSHR), which took helicopter traffic away from populated areas along the north shore by flying approximately a mile offshore.  In response to continued noise complaints, the FAA decided in 2010 to make the route mandatory. http://1.usa.gov/12SZqTM.  This led to the promulgation of the final rule in question.

A couple of peculiarities about this regulation should be pointed out.  First, although the FAA found that the residents “along the north shore of Long Island emphatically agreed that helicopter overflights during the summer months are unbearable and negatively impact their quality of life,” the FAA also found that the sound levels were below 45 DNL, the level at which the FAA has determined that homes are impacted.  Second, the mandatory use of the NSHR is provisional for two years.  This means that if the FAA determines that there is no meaningful improvement in noise levels, the rule will sunset.  If there is improvement, then the rule can become permanent after the proper notice and comment period.

FAA Can Alter Air Traffic Patterns to Reduce Noise Impacts

The HAI’s primary argument was a statutory one:  the FAA does not have the authority to alter air traffic patterns for the sole purpose of reducing the impact of aircraft noise on residential communities.  In essence, HAI argued that the FAA’s authority to alter air traffic patterns is limited to safety issues and that the FAA can only regulate noise through technology certification and in and around airports.  The FAA, on the other hand argued that it had the general authority under 49 U.S.C. 40103 to “prescribe air traffic regulations … [to] protect[] individuals and property on the ground.”  http://bit.ly/YBPE5p.  The Court concluded that the Congress “broad authorization to the FAA over the flight of aircraft to protect individuals and property” gives it the authority to promulgate protection from aircraft noise.

While the Court’s conclusion is a relative no-brainer, the FAA’s argument and the Court’s holding is interesting.  The FAA has long claimed that it has no authority over what happens on the ground.  This is particularly true of areas in and around airports and in regard to the FAA’s Part 77 obstruction analysis.  Yet now the FAA argued, and the Court upheld that argument, that the FAA has the authority to promulgate regulations that have the objective of protecting individuals and property on the ground from the effects of aviation.  The next question is whether the FAA has the responsibility (in addition to the authority) to “protect individuals and property on ground” even in cases where it is not in the economic best interest of the aviation industry.

FAA’s Conclusion Need Only Be Supported by Substantial Evidence Even If Contrary View Is Plausible

More interesting than the conclusion that the FAA has the authority to regulate air traffic patterns to combat noise, is the fact that the Court upheld the FAA’s use of anecdotal evidence to support its claim that the regulation was necessary to protect residents.  This conclusion was drawn despite a FAA commissioner study that showed that the noise levels were less than 45 DNL along the north shore of Long Island during the busiest helicopter traffic weekends.  This level is well below the 65 DNL threshold that the FAA uses to mark noise levels that are compatible with residential land use near airports.  The Court held that because there are no statutory or regulatory provisions setting 65 DNL as the minimum noise level that must be reached before the FAA can regulate the impact of aircraft noise, it serves “as a reference point from which the FAA can reasonably deviate when determining whether a particular noise reduction intervention is in the public interest.”    Thus, the FAA was free to base its regulation on the anecdotal evidence received from residents on the north shore of Long Island.

This conclusion comes as a bit of a surprise to residents below and near other helicopter routes, for example, in lower Manhattan, who have long complained about the noise generated by sightseeing helicopters, but have not been able to obtain any relief.  It also is a surprise to many residents under flight paths closer to airports who have been told that because the noise level is below 65 DNL, they are not impacted by aircraft noise.  The court, however, did give FAA an out for those cases by referencing that the FAA determines “whether a particular noise reduction intervention is in the public interest.”  In other words, it is within the FAA’s discretion to determine if the 65 DNL threshold should be applied or ignored.  And that discretion will carry with it the judicial deference that federal agencies receive in any subsequent litigation.

The silver lining is that for the first time a court has recognized that the people’s perception of aircraft noise may trump scientific evidence that the noise experienced by those people should not be “significant.”  If anything, this case emphasizes the importance of political action by groups opposed to aircraft noise – the residents of the north shore of Long Island made their voices heard and it was their voices that the FAA relied upon in making the NSHR mandatory.  Whether the FAA will give the same kind of consideration to residents closer to an airport with substantially less money and political influence is another story (and another case).

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