Aircraft Noise Regulation Must Be Revised to Protect the Public Health and Welfare

On February 6, 2015, an aviation industry trade group published a letter (http://bit.ly/1zLsrzR ) it had sent to the Secretary of Transportation and the FAA Administrator regarding, among other things, the recent events in Phoenix and exhorted the FAA in its “commitment to science and fact based regulations.”  For many, what has happened in Phoenix has crystalized a growing opposition to the way the FAA handles aircraft noise.

Aircraft Noise Is a Public Health Issue

First, it is time to stop talking about aircraft noise as “merely” an “annoyance” or “nuisance.”  Aircraft noise, like other forms of pollution, is a public health risk.  This is something that the Trade Group letter fails to recognize.  The letter continues to talk about noise as an “annoyance,” rather than noise as a public health issue.

This is an increasingly anachronistic point of view in light of the recent Harvard Study http://bmj.co/1yRF6kK and the London study http://bmj.co/1E1R2qF showing a correlation between aircraft noise and an increase risk of cardiovascular disease and stroke.  These studies corroborate earlier findings, like the Greiser study in Germany in the late 2000’s, that show a statistically significant correlation between aircraft noise and a deleterious effect on human health and welfare.  This fact is increasingly irksome to the FAA’s current regulatory scheme.  Noise as an “annoyance” is more easily handled in the public eye than noise as “public health risk.”  Annoyance is subjective, whereas public health is much more objective.  Despite the growing body of evidence that aircraft noise is a public health issue, the FAA seems to hold

tight to the notion that it is an “annoyance.”

You can see this dichotomy in the Trade Group letter.  In the third paragraph they talk about a “particular person experiencing aircraft sound may have a negative experience.”  In the last sentence of that same paragraph, they state that “ASNA appropriately map the subjective experience of noise into a system that can be applied on an objective basis.”  Almost all Environmental Impact Statements, Environmental Assessments and Part 150 Noise Compatibility Programs echo this theme of “noise as being subjective.”  The implication being that what is “noise” and what is “music” depends on the listener.  The policy impact of aircraft noise shifts, though, if you can show that aircraft noise has an actual effect on public health.  The discussion is no longer about the perception of noise and how to protect the “sensitive receptors,” but focuses instead on how to best protect the public from an increased risk of cardiovascular disease and stroke.  As an aside, the EPA has been much, much better at protecting public health and welfare than the FAA since the FAA view part of its mission as being to promote air commerce, and only secondarily to protect the health of the public living and working on the ground.

Obviously, the Trade Group wants the FAA to continue the way it has because it has developed their business model to work within the FAA’s system, which, conversely, was set up with them in mind.  Moreover, a change to a more public health-based approach would leave them on the outside looking in.  Which brings me to my second point.

Focus of Noise Mitigation Should Be Flight Paths and Airports

The discussion about aircraft noise needs to switch from aircraft to airports and flight paths.  The Trade Group letter is absolutely correct in stating that the aircraft that are flying now are much quieter than the aircraft that were flying in the last part of the 20th Century.  And the next generation of aircraft will be even quieter still.  However, aircraft themselves are no longer the problem – and the FAA and the Trade Group know it.  The problems are (1) changes in departure and arrival flight paths (Phoenix, John Wayne Airport, Charlotte Douglas, JFK); (2) constant expansion of airports (Atlanta, Chicago O’Hare, LAX); and (3) more operations at existing airports (Dallas Love Field).

The issue with Phoenix and the new RNAV procedures is not a new one.  The same problem exists in Laguna Beach (John Wayne Airport), Charlotte NC (Charlotte Douglas) and JFK and LaGuardia.  As a result of the 2012 FAA Reauthorization and Reform Act, the FAA was required to institute Area Navigation (RNAV) and Required Navigation Performance wherever feasible.  For the most part, the FAA instituted these changes using a “categorical exclusion” that did not require a noise study be completed before implementing the RNAV procedure.  RNAV procedures, however, concentrated more flights at lower altitudes in a much narrower flight path.  While the number of operations may not have changed, the level of noise directly under the flight paths have increased substantially.  Or, as in case with Phoenix, instead of flying 5 – 6 miles out, the aircraft now are turning to the north 2 – 3 miles out, thus flying over a neighborhood that never experienced any aircraft noise before.  Likewise, in Laguna Beach, California, the RNAV departure DUUKE, had aircraft turning back over land at lower altitudes and further north than previously, causing aircraft to fly over neighborhoods that had not previously experienced aircraft noise.

Sometimes the change in flight paths and noise levels is due to expansion of the airport.  This is one of the issues facing O’Hare and the O’Hare Modernization Program.  By constructing four runways with a predominately East-West flow, they changed the traffic flow from Northwest-Southeast, to more of an East-West flow.  This substantially enhanced safety since traffic in and out of O’Hare were not in direct conflict with Midway to the south and Chicago Executive and Milwaukee to the north.  The problem is that the development around O’Hare had grown up so that there were more residential areas to the east and west of O’Hare and commercial developments to the SE and NW of O’Hare.  With 4 E/W runways, neighborhoods that had never experienced high levels of aircraft noise were now in the middle of it.  A similar situation presented itself in Atlanta, where the addition of a fifth runway caused additional noise issues to west of the airport over residences that had not yet experienced aircraft noise at levels that the FAA deemed “significant.”

The problem for these communities, though, is that the noise levels oftentimes did not reach 65 DNL so therefore the FAA could argue that the noise the residents were experiencing is not significant, therefore, the FAA has either refused to take any action or claimed that it cannot legally take any action.  However, the legal landscape with respect to this aspect may have changed a bit with the decision in Helicopter Association International v. FAA (see http://wp.me/pX5ZF-f2 ) where the D.C. Circuit Court of Appeals held that even though the noise levels were below 45 DNL, the FAA could regulate air traffic to protect people and property from increased aircraft noise. This case may become significant in Phoenix’s battle with the FAA about the change in the flight paths.

The DNL Metric Is Outdated

Finally, the time to move on from DNL has come.  The “Day Night Average Sound Level” or DNL was adopted by the FAA as its primary metric for to evaluate cumulative noise effects on people due to aviation activities in 1981 – 33 years ago – and is long overdue for an overhaul. The science of noise has substantially changed since DNL was first rolled out.  DNL does not take into account variables that are becoming increasingly important.  Moreover, it is a predictive tool and not an accurate assessment of the noise environment.  It predicts an average noise level based on certain inputs.  It cannot take into account the teacher that has to stop her lesson every 5 minutes to wait for an airplane to pass, for example.  When the FAA and trade groups start talking about “well-established” noise metrics and policy, what should be read is “out-dated.”  As Sir A. Bradford Hill wrote in 1962:

 All scientific work is incomplete-whether it be observational or experimental. All scientific work is liable to be upset or modified by advancing knowledge. That does not confer upon us freedom to lower the knowledge we already have, or to postpone the action that it appears to demand at a given time. The lessons of the past in general health and safety practices are easy to read. They are characterized by empirical decisions, by eternally persistent reappraisal of public health standards against available knowledge of causation, by consistently giving the public the benefit of the doubt, and by ever striving for improved environmental quality with the accompanying reduction in disease morbidity and mortality. The day of precise quantitative measurement of health and welfare effects has not yet arrived. Until such measurement is possible, action must be based upon limited knowledge, guided by the principal of the enhancement of the quality of human life. Such action is based on a philosophy of preventive medicine.

At the very least, the 65 DNL level of significance must be changed.  The 65 DNL level significance developed out of the Federal Interagency Committee on Urban Noise’s June, 1980 Guidelines for Considering Noise in Land Use Planning and Control (http://bit.ly/1FXIAIb )The FAA then enshrined that number in its land use compatibility chart for Noise Compatibility Programs under 14 C.F.R. Part 150.  Even though the science has progressed exponentially since 1980, that level has remained the same.  The court in Helicopter Association International stated that the FAA has the authority under 49 U.S.C. 40103(b)(2) to regulate any and all aircraft noise to protect people and property on the ground regardless of noise level.  One could also argue that FAA is required to regulate aircraft noise to protect people and property on the ground under both 49 U.S.C. 40103(b)(2) and 49 U.S.C. 44715.

But the FAA has failed to provide any relief to the residents who lives are impacted by aircraft noise.  The Part 150 Noise Compatibility Program is voluntary and even once it is approved by the FAA, an airport can willy-nilly change its mind and not provide any relief to any of the residents.  In addition, the FAA recently said that about the quickest a Noise Compatibility Program can be implemented is 4 years.  That means that residents have to wait for over 4 years while their lives are being affected by aircraft noise.  For example, the fifth runway at Jackson-Hartsfield in Atlanta was approved by the FAA in 2001, and Atlanta was required to mitigate the noise caused by the new runway.  The Fifth Runway opened in 2006, but Atlanta had not even begun the study to figure who was impacted by the Fifth Runway.  The NCP was updated to include the Fifth Runway 2008.  Now in 2014, Atlanta has yet to purchase a property or sound insulate a house under that program even though it has been almost nine years after opening the Fifth Runway.

And the FAA has said there is nothing it can do to hurry things along – it claims it cannot force the airport to mitigate the noise problem and it has not taken any action to mitigate the problem on its own.  Yet, ASNA states that (49 USC 44715) that “[[t]o relieve and protect the public health and welfare from aircraft noise and sonic boom, the Administrator of the Federal Aviation Administration, as he deems necessary, shall prescribe– . . . (ii) regulations to control and abate aircraft noise and sonic boom. ” If Part 150 are those “regulations” then the FAA has utterly failed in its statutory mission to “relieve and protect the public health and welfare from aircraft noise.”  It is ridiculous to think that the federal government would allow airports to develop in such a manner that subjects U.S. citizens to a significant increase in risk of cardiovascular disease and stroke and do nothing about it.  The statutory authority is there, the FAA needs to step up to the plate.

The Trade Group and the FAA should keep in mind what Thomas Jefferson told the Maryland Republicans in an 1809 letter:

“The care of human life and happiness and not their destruction is the first and only legitimate object of good government.”

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