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SHOULD COMMUNITY INTERESTS AGAINST AIRCRAFT NOISE POLLUTION BE GIVEN UP FOR THE GREATER GOOD?: A CRITICAL ANALYSIS OF BRITISH AIRWAYS V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY(By-Dhiyaaneswar D T )
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Article Details
SHOULD
COMMUNITY INTERESTS AGAINST AIRCRAFT NOISE POLLUTION BE GIVEN UP FOR THE
GREATER GOOD?: A CRITICAL ANALYSIS OF BRITISH AIRWAYS V. PORT AUTHORITY OF NEW
YORK AND NEW JERSEY
Authored By-Dhiyaaneswar D
T
Introduction
The
spectacular developments in the aviation industry after the Second World War
have to be weighed against the extreme discomfort and damage to communities
caused due to aircraft noise pollution and sonic boom.[1]
People living adjacent to airports often have to bear the brunt of routine
exposure to aircraft noise. The passing of aeroplanes through the airspace,
take-offs and landings, and repeated testing procedures emit excessive noise,
often resulting in stress, sleep disorders and cardiovascular problems.[2]
The plight of people who undergo prolonged exposure to supersonic aircraft is
worse because they may cause serious health issues even when flying as per the
rules of the air. Although several countries have adopted legislative measures
against excess aircraft noise in conformity with Annex 16 to the 1946 Chicago
Convention, aircraft noise litigation is ubiquitous and endless at federal and
state levels across the world.[3]
Very often, measures taken by local authorities to prohibit aircraft noises are
in stark conflict with the interests of air carriers giving rise to a wave of
lawsuits.
Aircraft
noise pollution litigation by disgruntled people suffering from excessive noise
in the United States has traditionally been based on three grounds: a)
trespass, b) nuisance, and c) unconstitutional undertaking.[4]
A leading case concerning the conflicting interests between local airport
authority regulations and commercial supersonic airline operators (Concorde) is
the British Airways v. Port Authority of New York and New Jersey[5]
case decided by the Court of Appeals for the Second Circuit in 1973.
The
decision is a landmark one because it upheld the hitherto unrecognised right of
states and local authorities to exercise substantial control over airports in
the vicinity.
In this
case analysis, I will critically evaluate the ways in which the decision has
furthered the jurisprudence surrounding aircraft noise at state and federal
levels and the possible ramifications of the decision on the environment and
airport-neighbouring communities.
Background
Of The Case
The Port
Authority of New York and New Jersey operates several airports, including the
famous John F Kennedy international airport, which is the principal
international gateway to the US. Since the JFK airport is in close proximity to
several neighbourhoods, the Port Authority established strict aircraft noise
abatement regulations in 1958. It mandated that all aircraft taking off from
JFK airport must emit less than 112 PNdB (perceived noise in decibels), which
shall be scrutinised at selected points in the community by noise monitors. The
standard was fixed not based on a psychological evaluation of a standalone
aircraft's effect on the community but on the goal of preventing further
deterioration of the existing noisy environment.
In 1974,
British Airways and Air France unveiled the Concorde, the first supersonic
commercial jetliner that could carry passengers between New York and Paris
within three and a half hours as opposed to earlier planes that took over 37
hours. The British and French governments allotted 3 billion dollars for
research and development, and Air France and British Airways spent over 6
million dollars on the project. The two airlines held foreign air carrier
permits issued by the Civil Aeronautics Board to carry out their operations.
Furthermore, the bilateral agreements entered by the US with France and the United
Kingdom do not restrict the type of aircraft that can provide commercial air
services.[6]
In February
1976, the Department of Transportation of the United States permitted the two
air carriers to operate two flights daily into the JFK airport for a study
phase of sixteen months, subject to the condition that a curfew was maintained
between 10 p.m. and 7 a.m to prevent public nuisance. Despite the department's
approval, in March 1976, the Port Authority completely refused to authorise
Concorde's use of the airport until a thorough analysis of its sound profile
was undertaken by them, spanning six months.
The
principal reasons for the ban were: (a) that the supersonic place made a
"deep rumble" was nearly two times as loud as the subsonic plane
B-747 on take-off; (b) the low-frequency noise emitted by Concorde inducing
vibrations in homes adjacent to the airport, and (c) Concorde's noise emissions
covered 47.6 square miles of land as opposed to the mere 7.49 square miles for
the B-707.[7]
Challenging
the Port Authority's decision, British Airways and Air France filed a suit in
the District Court of Southern District of New York, which declared the ban
illegal because the Department of Transportation's permission pre-empted the
Port Authority's right to ban landings. The decision was then presented for
review before the Court of Appeals for the Second Circuit.
Issues
The issues, in this case, were a) whether the Port Authority
was competent and justified in refusing the air carriers the permission to land
Concorde at JFK airport under its noise abatement regulations despite
permission granted by the federal authority and b) whether the
interests of the local community can take precedence over federal aviation
regulations and international agreements.
Law
Governing Aircraft Noise
The primary
domestic legislative provision protecting citizens from excessive aircraft
noise is section 611 of the Federal Aviation Act, 1958. It requires the Federal
Aviation Authority (FAA) "to provide relief against current and future
relief from aircraft noise and sonic booms."[8]
The section also mandates FAA to comply with the noise pollution regulations
drafted by the Environment Protection Act (EPA). Furthermore, the Noise Control
Act, 1972, enacts that it is the policy of the US to promote a noise-free
environment that does not endanger human health and welfare.[9]
In the
international sphere, protection from excessive aircraft noise is embodied in
International Standards and Recommended Practices in Annex 16 to the 1944 Chicago
Convention adopted in 1971. It lays down the acceptable noise standards during
take-off and landing and imposes noise-related requirements for certifying
airworthiness. Chapter 4 of Annex 16 contains the noise emission guidelines to
be followed by a supersonic aircraft.
Arguments
Advanced By The Parties
British
Airways and Air France contended that the local Port Authority's ban
contradicts the Department of Transport's federal action and imposed fetters on
transportation. They relied on the US Supreme Court's decision in Rice
v. Santa Fe Elevator Corporation[10],
where it was held that the Federal Government's decision on matters relating to
interstate trade pre-empted any further state regulation. Further, the airlines
also alleged that the local authority's decision violated the international air
navigation treaties and agreements entered into by the United States with the
French and British governments. As the bilateral agreements permit the plying
of all kinds of aircraft between the nations, it was contended that special
fetters could not be imposed on commercial supersonic planes. The airlines also
relied on the Second Circuit Court's decision in Allegheny Airlines v.
Village of Cedarhurst[11]
and City of Burbank v. Lockheed Air Terminal[12],
where it was ruled that the critical safety functions of aircraft fall within
the exclusive domain of the Federal Aviation Authority, not local bodies. It
was suggested that the Federal Aviation envisages a uniform system of aviation
regulation, and local ordinances create problems in scheduling flights and
impede the FAA's control over air traffic flow.
The Port
Authority, on the other hand, contended that it had the power to regulate the
entry and exit of planes on the noise levels as it was the proprietor of the
airport. It was contended that the Federal Aviation Act did not pre-empt
airport proprietors from promulgating their own standards under any
circumstances. Furthermore, the ban was justified on the ground that the
supersonic aircraft emitted above the desirable 112 PNdB and produced
vibrations that detrimentally impacted the residents.
Decision
Chief Judge
Kaufmann of the Court of Appeals of the Second Circuit, in his landmark
decision, partly overturned the decision of the District Court and ruled that
the order of the Department of Transportation, the Federal Aviation Act and the
Bilateral Agreements did not pre-empt the power of the port authority to ban
the landing of the supersonic planes in the JFK airport. The court enunciated
that letting local authorities decide on the acceptable levels of aircraft noise
pollution is a sound public policy because local airport operations are more
aware of the effects of noise on the surrounding communities.
Furthermore,
the court ruled that noise standards are important and justified to protect the
community. However, it also held that the airline operations could be resumed
when British Airways and Air France comply with the reasonable noise standards
which are to be prescribed in the future.
ANALYSIS
The
decision of the Court of Appeals for the Second Circuit is a landmark one that
advances the jurisprudence concerning aircraft noise pollution in the United
States. A remarkable feature of the judgment is the recognition of the local
community's environmental interests, which are largely side-lined in
International Aviation Law. In the opinion of the author, the court's decision
to recognise the power of local authorities to regulate air navigation in the
neighbourhoods has opened a range of problems and prospects. These are analysed
in this section.
Recognition
Of Community Interests Against Aircraft Noise Pollution
Operation
and expansion of airports often receive backlash from the community due to the
ill effects of aircraft noise.[13]
Long-term noise exposure is associated with higher stress and psychological
morbidity.[14] Therefore,
limiting and reducing the absolute number of people affected by aircraft noise
and sonic booms is an important legislative and judicial prerogative. The
Second Circuit court's decision in the present case is a step forward in this
direction.
Although
international aviation law (under Annex 16 to Chicago Convention) and the
Federal Aviation Act prescribe the noise standards to be followed by aircraft
operators, they fail to cater to all circumstances, violating vital health and
environmental rights. Very often, due to unique local circumstances that
aggravate noise pollution, uniform application of the international standards
is rendered impracticable. Therefore, it is necessary to devise noise pollution
standards keeping in mind the environmental and social interests of the people
living adjacent to airports. The instant decision recognises these interests.
The Second
Circuit Court has rightly ruled that aircraft landing and take-off rights must
give way to the health, safety and welfare of the members of the public.
The local noise regulations standards fixed by
the public were held to be "clearly not excessive" in light of the
legitimate goal of noise reduction in the densely populated neighbourhoods
around the JFK airport, which houses over 500,000 people. This is an important
recognition that reconciles the tensions between aviation law and human rights
law, allowing them to grow in the same directions. By permitting the local
authorities to set acceptable noise standards, the court has recognised
people's right to a noise-free environment which is crucial for their
well-being. The verdict is consistent with the right to physical and mental
health recognised under Article 12 of the International Covenant on Social and
Economic Rights, 1965 (ICESR).[15]
Furthermore,
the court was right in rejecting the blanket approval granted to any type of
aircraft operated between France, Britain and the US as per the bilateral
agreements. Granting such automatic approval to the Concorde civil supersonic
aircraft, which emits higher noise and vibration levels, is unreasonable and
not environmentally benign.
Recognition
Of The Rights Of Local Authorities
Due to its
distinct interstate and international character, air navigation is regulated at
the national and international levels. In the United States, the Federal
Aviation Act provides for centralised administration of air travel in the
country to be regulated by the Federal Aviation Authority and the Federal
Department of Transportation. Under the Act, the FAA is vested with the power
to set noise standards and schedule flight timings. The question before the
Court of Appeals in the present case was whether the rules formulated by the
federal bodies pre-empt local authorities from making their own noise
regulations. The court answered the question negatively and recognised the
possibility of co-existing international, national and local aviation norms.[16]
In the author's opinion, this is a visible and revolutionary departure from the
previous judgments in the United States that have failed to affirm local
authority's power to establish landing regulations for the residents.
In Allegheny
Airlines v. Village of Cedarhurst[17],
a village ordinance prohibiting overflights at less than 1000 feet from the
ground was struck down as violative of national aviation laws. Similarly,
in American
Airlines, Inc. v. Town of Hempstead[18],
the court struck down the local law fixing acceptable levels of aircraft noise.
Unlike the decisions mentioned above, in the
present case, the court rejected the plenary jurisdiction of the FAA over
airport noise regulation. It recognises the voices of people who ultimately
have to suffer from aircraft noise. The local authority which owns the airport
is responsible for noise abatement in the neighbourhood. As it has an intimate
awareness of the local conditions, it is best suited to frame noise control
policies at the local level. This kind of bottoms-up approach is crucial for
environmental management.[19]
It ensures that centralised policymakers don’t erase the lived experiences of
people.
Prevention of Noise Nuisance
Litigation
In the
author’s opinion, the decision is highly pragmatic from an administrative
perspective. Earlier in Griggs v. Allegheny County[20],
it was held that airport owners could be held liable for fifth amendment
violations if aircraft noise affects neighbourhoods. The permission granted to
local airport authorities to abate noise pollution in this case, prevents a
wave of noise nuisance litigations against them that may be filed by residents
living adjacent to the JFK airport. It saves huge time, cost and energy for the
courts and the litigants.
Striking A
Delicate Balance Between Competing Interests
Although
the Second Circuit Court upheld the power of the Port Authority to frame noise
regulations despite the existence of the Federal Aviation Act, it tried its
best to strike a balance between community interests and the interests of air
carriers. It removed the complete and permanent ban imposed on air carriers by
the Port Authority and has accorded them a fair opportunity to reduce their
noise levels through improved noise reduction technologies.
Violation
Of Reciprocity In International Air Navigation
Although
judgment has several positive aspects, it is not free from criticism. The
smooth operation of the International Air Navigation requires uniformity,
consistency and respect for the
Chicago
Convention and other bilateral agreements. Permitting local authorities to
formulate their own noise laws might lead to stringency and multiplicity of
regulations, often impractical and incapable of being adhered to. It reduces
the confidence fostered by international agreements and increases uncertainty.
The smooth operation of the aviation industry requires some degree of tolerance
from local communities, and attempts have to be made to
protect local interests without compromising reciprocity in international air
navigation arrangements. In the author's opinion, the best way to achieve this
is to ensure that federal and local authorities work in partnership while
fixing aircraft noise standards.
Conclusion
To sum up,
the instant case concerns the conflict between local and federal laws
prescribing the levels of acceptable aircraft noise. In its landmark decision
departing from earlier judgments, the Court of Appeal for the Second Circuit
upheld the right of local authorities to promulgate non-arbitrary aircraft
noise policies in addition to federal laws. It is submitted that the court’s decision
is a positive step that advances the environmental rights of local communities.
It recognises local authorities' intimate knowledge and ability to frame
well-informed noise rules. However, the judgment must be adopted with caution.
Failure to adopt uniform standards may discourage airline operators from
investing in a country. Federal and local authorities must work hand in hand to
ensure the smooth functioning of airport operations without compromising the
public's quality of life.
Article Information
SHOULD COMMUNITY INTERESTS AGAINST AIRCRAFT NOISE POLLUTION BE GIVEN UP FOR THE GREATER GOOD?: A CRITICAL ANALYSIS OF BRITISH AIRWAYS V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY(By-Dhiyaaneswar D T )
Authors: Dhiyaaneswar D T
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/09
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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