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2019

Beyond the Noise: The Proprietor Exception and the Experience

Daniel Friedenzohn Embry-Riddle Aeronautical University, [email protected]

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Scholarly Commons Citation Friedenzohn, D. (2019). Beyond the Noise: The Airport Proprietor Exception and the Long Beach Airport Experience. Issues in Aviation Law and Policy, 19(1). Retrieved from https://commons.erau.edu/ publication/1375

This Article is brought to you for free and open access by Scholarly Commons. It has been accepted for inclusion in Publications by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. 41704-alp_19-1 Sheet No. 56 Side A 11/15/2019 09:26:38 , 4 49 . : 13 Los VIA- A https:// 2018 19 14 ., EPORTER -NOV- R TAT . S ENTRE FOR ENSUS C ). five-county The C , million, which makes . , RANSP 2 1 8 1 7 . -los-angeles-long-beach- 2019 T 18 Experience , 22 31080 , https://www.transtats.bts.gov/ . US UREAU OF TAT , B . S 31000 flights departed from them in (follow “Select an Airport” hyperlink; then Beyond the Noise: the Beyond Exception and the and Exception RANSP . 2 T 000 , Long Beach Airport Long Beach 2017 Each of these is close to residen- Each of these airports is close , 3 million scheduled airline flights were oper- million scheduled 436 .txt unknown Seq: 17 by Daniel Friedenzohn* 107 10 UREAU OF The Airport Proprietor Airport The \ALP B 1 - , Dec. and has five airports with scheduled airline ser- and has five airports with scheduled 19 2 Most of those flights operated into and out of air- Most of those flights operated 1 . TION (CAPA) 2018 \productn\A\ALP\ 01 https://censusreporter.org/profiles/ www.transtats.bts.gov/Data_Elements.aspx?Data= it the second most populated metropolitan region after New York. Angeles’ Economy – More Than Just Entertainment Southern region has a population of region has a population anaheim-ca-metro-area/ (last visited July anaheim-ca-metro-area/ (last visited Data_Elements.aspx?Data= search starting with the field for flights for each airport). The area also has airports with considerable general aviation and corpo- rate activity, such as Santa Monica Municipal Airport and . Flights from Hollywood Burbank Airport, Airport, Long Beach Airport, International Airport, and Ontario Interna- tional Airport, Flights All Carriers – All Airports Metro Area Los Angeles-Long Beach-Anaheim, CA The Los Angeles metropolitan area has a population of over The Los Angeles metropolitan The airline industry continues to grow in the United States, continues to grow in the The airline industry M K 3 4 * Friedenzohn, J.D., M.A., Economics; Associate Professor, Aeronauti- Daniel University. cal Science, Embry-Riddle Aeronautical 1 2 million people \\jciprod ports located in large populated areas, such as Southern ports located in large populated of the busiest aviation activity California, which is home to some in the world. vice: , Long Hollywood Burbank Airport, Airport, and Ontario Beach Airport, Los Angeles International International Airport. tial areas, and nearly where more than where more than ated in C Y 41704-alp_19-1 Sheet No. 56 Side A 11/15/2019 09:26:38 A 11/15/2019 56 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 56 Side B 11/15/2019 09:26:38 , M K 49 : :1 C Y 9 Hot L. & , Oct. IR 19 14 [Vol. 1 Balancing 1820 J. A -NOV- 69 , ). Local Airport Regula- ); Jan K. Brueckner & ); City of Burbank v. 2001 2 8 2 ( ). 2000 2002 454 ( ( , 1973 ( 3 47 , – 445 1 ; Luis G. Zambrano, . 624 . The Scope of the Proprietary Pow- 646 , EV OM U.S. 639 940345 . The research has contributed to a The research has contributed ); Wendy B. Davis & Rebecca Clarke, . L. R 411 Attempts to do so can also be chal- to do so can Attempts 7 OM L. & C 5 nd Policy nd IR 2010 a ( Trade & Transport Policy in Inclement Skies Trade & Transport Policy in Inclement – NVTL ; Paul Stephen Dempsey, ). 5 w a . E 549 L. & C T .txt unknown Seq: . 2004 66 J. A IR ( 107 S , note OM tion L tion 32 Airport Noise Regulation, Airline Service Quality, and So- Airport Noise Regulation, Airline Service J. A \ALP a – 1 - ENN (CESifo Economic Studies, Working Paper No. (CESifo Economic Studies, Working 19 65 supra 731 , L. & C 11 P , Christopher Scott Maravilla, , IR 709 . ), https://ssrn.com/abstract= 6 J. A \productn\A\ALP\ OM 01 Raquel Girvin, cial Welfare, Lockheed Air Terminal, Inc., C the Rights of Landowners With the Needs of Airports: The Continuing Battle Over Noise Air: Aviation Administration Ex- Undue Judicial Deference to Federal pertise in Assessing the Environmental Impacts of Aviation tion: & The Constitutional Tension Between Police Power, Preemption Takings 2006 Zambrano, See, e.g. ers Exception to Federal Preemption under the Airline Deregulation Act 75 Paul Stephen Dempsey, The Conflict Between Sustainable Air Transportation and Neo-Classical The Conflict Between Sustainable Air Economics, Important scholarly work in this area has analyzed the statu- Important scholarly work in this Airports with scheduled airline service strive to increase airline strive to increase airline service with scheduled Airports has evolved for how the legal landscape This article addresses 6 7 5 \\jciprod 104 Avi Issues in operations at their respective facilities. at their respective operations in increase the However, impact of to address the airports having also result in flights can their communities. noise in noise activity.airports to regulate discusses the fed- Part one of airport noise.eral role in regulating devel- the addresses two Part a legal pathway for proprietor exception as opment of the airport airport noise.airports to regulate provides a brief Part three exception codification of the airport proprietor overview of the adopted with role that the federal government and the additional noise.aviation regulating to respect Part four addresses the legal challenging the City of Long action brought forth by airlines operations.Beach airport’s restriction on flight Part five will dis- Ordinance.cuss the city’s Airport Noise Compatibility This sec- the city goes about enforcing its tion will also address how ordinance. judicial decisions regarding the tory framework and the varied airport proprietor exception. better understanding of the challenges that governmental agen- better understanding of the challenges nonarbitrary and nondiscrimi- cies face in enacting “reasonable, under the airport proprietor natory” airport noise regulations lenging, as some local laws may be federally preempted because preempted laws may be federally as some local lenging, system as a impact on the air transportation of their “negative whole.” 41704-alp_19-1 Sheet No. 56 Side B 11/15/2019 09:26:38 B 11/15/2019 56 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 57 Side A 11/15/2019 09:26:38 , 9 d 49 : 2 F. EACH 19 14 B 564 ), billion into -NOV- ). ONG L 10 . 2019 985 , , jobs. 21 PM), https://www.faa 973 Concorde II 3 8 3 000 , 42 : 4 19 , Stat. 52 2017 , http://www.lgb.org/civicax/file ), The importance of the fed- , 4 4 10 (a)( (last visited Oct. EPORT (Jan. 302 R § 2671 11 , Congress charged the Secretary of , Congress charged FAA 1938 MPACT ). Northwest Airlines v. State of Minnesota Northwest Airlines v. State of 1926 I .txt unknown Seq: 1977 107 \ALP 1 - d Cir. CONOMIC 19 2 ( This article attempts to build on that research by ad- build on that attempts to This article : E 8 Congress has recognized the national responsibil- Congress has recognized the national 1012 , ity for regulating air commerce.is control Federal intensive and exclusive. do not wander Planes clouds.about in the sky like vagrant They move to federal in- only by federal permission, subject certified person- spection, in the hands of federally system of federal nel and under an intricate commands. The moment a ship taxis onto a run- and detailed way it is caught up in an elaborate system of controls. It takes off only by instruction from the control tower, it travels on prescribed \productn\A\ALP\ by giving the agency the authority to “provide necessary fa- by giving the agency the authority IRPORT ] Beyond the Noise: Proprietor Exception The Airport 105 01 the regional economy. It also directly supports .gov/about/history/brief_history/. bank/blobdload.aspx?BlobID= British Airways Bd. v. Port Auth. of N.Y. & N.J. ( 1002 The Long Beach Airport Aviation Complex generates over $ A A Brief History of the FAA, Civil Aeronautics Act of The Pervasive Role of Federal Law in the Regulation of of Federal Law in the Regulation The Pervasive Role Noise at Airports 9 In his concurrence in The federal government plays a predominant role in the regu- plays a predominant The federal government M K 8 9 10 11 Justice Jackson noted the responsibility of the federal government Justice Jackson noted the responsibility in regulating aviation: 1938 exception. I. \\jciprod 201 cilities and personnel for the regulation and protection of air traf- cilities and personnel for the regulation fic moving in air commerce.” lation of commercial aviation in the United States.lation of commercial In passing the Act of Air Commerce dressing how one local government, the City of Long Beach, has City of Long government, the how one local dressing noise on the the impact of to address rules which attempt adopted eco- the significant taking into account while also community community. plays in the that the airport role nomic development Commerce with “issuing and enforcing air traffic rules, licensing “issuing and enforcing air traffic Commerce with and operating and aircraft, establishing airways, pilots, certifying maintaining aids to air navigation.” eral role in aviation was reiterated in the Civil Aeronautics Act of eral role in aviation was reiterated C Y 41704-alp_19-1 Sheet No. 57 Side A 11/15/2019 09:26:38 A 11/15/2019 57 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 57 Side B 11/15/2019 09:26:38 , M K 3 49 : :1 C Y 9 40103 19 14 REUND IGHTS F [Vol. 1 R created a -NOV- . RNST U.S.C. § E 633 1958 49 4 8 4 ) (citing ) (citing United States v. ) (citing Steven N. Brau- U.S. at ONSTITUTIONAL They do not, however, C 411 2015 2014 2017 ( ( ( , 16 18 41 AND 664 852 , , , , (now codified at 33 The U.S. Supreme Court has . 662 844 15 OLICY EV 731 )). 12 P U.S. nd Policy nd L. R 1995 City of Burbank IBERTY ( a Stat. ); 572 UBLIC ) (Jackson, J., concurring). The Inscrutable (Yet Irrepressible) State Police w 72 a ULSA 567 , P , .txt unknown Seq: , T 2006 How Science Can Improve Regulation: 1944 ( ( 107 726 53 549 - tion L tion , OWER \ALP a 1 303 85 - , 14 P amend. X. 19 40103 . U.S. N.Y.U. J.L. & L 292 9 514 Rethinking the Regulation of Car Horn and Car Alarm Noise: An OLICE ONST , The agency has broad authority to enact regulations broad authority to enact The agency has )). )). Local governments generally play a significant role in Local governments generally P U.S. land or water vehicles, and between aircraft and airborne land or water vehicles, and between objects. beams, it may be diverted from its intended land- from its intended it may be diverted beams, and orders. it obeys signals ing, and privileges, Its is concerned, far as transit protection, so rights and and not to alone to the Federal Government it owes government. any state U.S.C. § 13 17 \productn\A\ALP\ HE 2006 1904 01 Lopez, tigam, Power Pub. L. No. ( 49 U.S. C Bond v. United States, Daniel B. Rodriguez, T ( Luis Inaraja Vera, 322 in Urban Areas The so-called police powers allow a state (and its subdivisions) The so-called police powers allow The Tenth Amendment to the U.S. Constitution states that The Tenth Amendment to the The needs of the growing aviation industry required the federal growing aviation industry required The needs of the A. Navigating, protecting, and identifying aircraft; B. Protecting individuals and property on the ground; C. Using the navigable airspace efficiently; and D. and Preventing collision between aircraft, between aircraft 13 14 15 16 17 18 12 \\jciprod 106 Avi Issues in the “authority to protect the health, safety, and welfare of its citi- the “authority to protect the health, zens.” government to continue to come up with ways to ensure a safe continue to come up with ways government to system.aviation of The Federal Aviation Act the United States by the Constitu- “[t]he powers not delegated to States, are reserved to the States tion, nor prohibited by it to the respectively, or to the people.” regulating noise in their communities. with respect to the following: with respect to stated that the authority granted to states to enact laws for the stated that the authority granted powers. “public good” are called police standalone federal agency, the Federal Aviation Agency (now Ad- agency, the Federal Aviation standalone federal overseeing aviation FAA), charged with ministration, hereinafter safety. 41704-alp_19-1 Sheet No. 57 Side B 11/15/2019 09:26:38 B 11/15/2019 57 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 58 Side A 11/15/2019 09:26:38 49 : . J. Demp- 24 19 14 OLUM C See -NOV- 19 p.m. of one ). As a result, , The airport 11 20 21 1992 ( ). 982 5 8 5 , 2004 ( 977 d 509 2 , 22 F. 499 . . . 951 EV 26 40 – – The ordinance also prohibited the The ordinance also prohibited (which became law after the litiga- 23 625 638 . L. R (for a comprehensive overview regarding the The Airport Noise and Capacity Act of 1990: 2 )). 1972 City of Burbank v. Lockheed Air Termi- City of Burbank v. Lockheed NVTL , at . U.S. at U.S. at 6 1994 2 ( . E .txt unknown Seq: T 107 411 411 S , at , , 425 note 6 \ALP , 1 - ENN 19 391 P supra note 19 12 a.m. the next day.” . L. , 7 supra \productn\A\ALP\ NVTL The Courts Attempt to Rule on the Authority of Local to Rule on the Authority The Courts Attempt Governments to Regulate Airport Noise Governments to Regulate Airport ] Beyond the Noise: Proprietor Exception The Airport 107 01 sey, E various claims that can be brought against airport operators for noise- related issues). Superfluous Hurdle for Airport Proprietors Who Have Assured Federal Grants City of Burbank Dempsey, , Inc. v. Long Beach, Aimee Kratovil, Comment, City of Burbank Id. Incentive-Based Proposal to Help Restore Civility to Cities Incentive-Based Proposal to Help Restore 9 . California had enacted an In that case, the City of Burbank, The question as to whether local governments have the legal The question as to whether local In its opinion, the Supreme Court stated that the enactment of In its opinion, the Supreme Court Airport operators can be subject to liability, including noise- including be subject to liability, operators can Airport M K authority to regulate aviation noise was first addressed by the authority to regulate aviation U.S. Supreme Court in nal for “pure jet aircraft to take ordinance which made it unlawful Airport between off from the Hollywood-Burbank 19 20 21 22 23 24 II. have the ability to regulate airport noise via their traditional po- via their traditional airport noise ability to regulate have the lice powers. \\jciprod 201 the Noise Control Act of related nuisance and inverse condemnation claims. condemnation nuisance and inverse related tion commenced) resulted in the “FAA, now in conjunction with tion commenced) resulted in the aircraft noise, pre-empting state EPA” having “full control over City of Burbank, as airport proprietor, from allowing “any such City of Burbank, as airport proprietor, during such periods.” aircraft to take off from that airport day and the courts, and later Congress, have given governments governments have given and later Congress, the courts, – as air- port proprietors – of enact noise regulations because the authority liability for exces- legitimate interest in avoiding “municipalities’ by the airports they operate.” sive noise generated operators to find a has enabled local airport proprietor exception airport users with “between competing needs of way to balance community.” those of the surrounding C Y 41704-alp_19-1 Sheet No. 58 Side A 11/15/2019 09:26:38 A 11/15/2019 58 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 58 Side B 11/15/2019 09:26:38 M K 49 : :1 C Y 9 ). 19 14 1978 ( [Vol. 1 31 -NOV- ). 649 1970 ( . L.J. RB Noise Control Act had 6 8 6 1431 U 1972 In its opinion, the Court 27 30 U.S.C. § ORDHAM F . Secretary Boyd stated: Secretary 49 7 , , 555 26 (noting that the Noise Control Act did would merely expand the would merely expand . . 1972 , at 7 635 635 639 3400 nd Policy nd a note w U.S. at a U.S. at U.S. at In reviewing the legislative history of the history the legislative In reviewing .txt unknown Seq: supra 107 25 Environmental Law: A Reevaluation of Federal Pre- 411 411 411 , , , tion L tion \ALP case was focused on whether a local government case was focused on whether a a 1 - The majority issues of “di- was clear that certain . . The High Court noted that the 19 29 36 33 – . 28 – The courts have held that the Federal Govern- The courts have 640 633 632 Burbank Federal Government’s role in a field already pre- role in a field already Federal Government’s empted.this preemption. It would not change to governments will remain unable State and local by powers to control aircraft noise use their police regulating the flight of aircraft. ment presently preempts the field of noise regula- ment presently of it involves controlling the flight tion insofar as aircraft. . . . H.R. at at at \productn\A\ALP\ Issues in Avi Issues 01 not yet been enacted when the legal challenge to the ordinance was com- menced. Noise Control Act of not include an express provision for the federal preemption of noise regu- lation); Maravilla, Id. City of Burbank City of Burbank Id. Id. Mark J. Alonso, Emption and the Commerce Clause City of Burbank The Supreme Court held that the City of Burbank did not have The Supreme Court held that the The 8 25 26 27 28 29 30 31 and local control.” and local regulating ordinance through its has the right to enact a noise police power. \\jciprod 10 the legal authority under its police powers to regulate aviation the legal authority under its is to be made, Congress alone noise, noting that “[i]f that change must do it.” rect concern to local residents must be treated exclusively by the rect concern to local residents the lack of an express statement of federal government in spite of pre-emption on the part of Congress.” Noise Control Act, the Court cited a letter from then-Secretary of from then-Secretary Court cited a letter Act, the Noise Control opinion on regarding his the U.S. Senate Boyd to Transportation govern- state and local would preempt the proposed law whether noise. of aircraft ment regulation was mindful of the implications if it were to allow local govern- was mindful of the implications activity.ments to regulate airport noise The Court stated that to control of the timing of take- do so would result in “fractionalized severely limit the flexibility of offs and landings” that “would flow” around the country. FAA in controlling air traffic 41704-alp_19-1 Sheet No. 58 Side B 11/15/2019 09:26:38 B 11/15/2019 58 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 59 Side A 11/15/2019 09:26:38 9 49 : 65 841 – in the 364 19 14 , 14 -NOV- )). 357 . ) (critiquing the 1947 EV ( 1976 ( 230 L. R That issue would , 7 8 7 97 35 . 218 EV Government should not sub- YRACUSE U.S. This issue would be ad- This issue would S Government is in no position to . L. R 33 331 43 FF Federal . A Federal Airport Noise Regulation: Burbank, Aaron, 34 NVTL decision, however, “did not consider decision, however, Government is in no position to require an air- Government is in no position to require ), the U.S. Court of Appeals for the Sec- ), the U.S. Court of Appeals for B.C. E , as well as subsequent judicial decisions. , as well as subsequent judicial .txt unknown Seq: ) (referring to the Supreme Court’s footnote 5 107 , Environment Law, Federal decision, which stated that “authority that a municipality 1978 \ALP 2016 ( 1 - 19 Mary L. Warren, (Rehnquist, Stewart, White & Marshall, J.J., dissenting) (quot- (Rehnquist, Stewart, White & Marshall, Concorde II 139 . Secretary Boyd stated: owner is responsible “Just as an airport decision). ( , See 643 649 133 ). The dissent also referenced the same letter written by letter written the same also referenced The dissent City of Burbank City of Burbank d 32 at at 3 British Airways Board v. Port Authority of New York and British Airways Board v. Port \productn\A\ALP\ 1992 ] Beyond the Noise: Proprietor Exception The Airport 10 01 City of Burbank may have as a landlord is not necessarily congruent with its police power.”). Burbank ing Rice v. Santa Fe Elevator Corp., ing Rice v. Santa Fe Elevator Corp., stitute its judgment for that of the States or elements of local government stitute its judgment for that of the States our Nation’s airports.who, for the most part, own and operate The pro- posed legislation is not designed to do this and will not prevent airport proprietors from excluding any aircraft on the basis of noise considera- tions.” and Air Transport require an airport to accept service by noisier aircraft, and for that pur- require an airport to accept service pose to obtain additional noise easements. The issue is the service desired it is willing to take to obtain the ser- by the airport owner and the steps vice. In dealing with this issue, the for deciding how long the runways will be, so is the owner responsible for for deciding how long the runways will to permit the landing and takeoff of obtaining noise easements necessary the aircraft. The and, for that purpose, to obtain port to accept service by larger aircraft longer runways. Likewise, the Philip Weinberg, ( Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, F. Id. Id. 9 The In his dissent, Justice Rehnquist stated that the regulation of that the regulation Rehnquist stated Justice In his dissent, In M K 34 35 32 33 \\jciprod 201 whether the same preemption that applied to local police power preemption that applied to whether the same local proprietary authority.” also applied to noise was an issue that traditionally fell under “the historic police under “the historic traditionally fell an issue that noise was by the Fed- be superseded was “not to of the States” and powers of Con- manifest purpose the clear and unless that was eral Act gress.” Secretary Boyd to the U.S. Senate.Secretary Boyd interest to the Of particular government oper- Secretary’s position that a local dissent was the to regulate as a proprietor has the legal authority ating an airport it goes about doing the property owner so long as aircraft noise as manner. so in a nondiscriminatory New Jersey ond Circuit addressed the legality of the Port’s continued ban on ond Circuit addressed the legality from John F. Kennedy In- supersonic Concorde flights operating dressed in subsequent cases. dressed in subsequent be addressed later by Congress when it enacted the Airline Der- be addressed later by Congress egulation Act of C Y 41704-alp_19-1 Sheet No. 59 Side A 11/15/2019 09:26:38 A 11/15/2019 59 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 59 Side B 11/15/2019 09:26:38 M K 49 : :1 42 C Y 9 Con- ) ( 19 14 [Vol. 1 1977 -NOV- 389 40 , d Cir. F. Supp. 2 ( 85 Three months ear- Three months 8 8 8 418 – , 36 84 , 75 d 2 ) (three-judge court); F. that required aircraft operators that required aircraft 558 1975 37 perceived noise in decibels (PNdB) . . 1951 nd Policy nd 112 1005 1004 a The court noted that the Port Authority The court noted Air Transport Assn. v. Crotti w 38 a d at d at .txt unknown Seq: 2 2 (N.D. Cal. 107 F. F. tion L tion 58 \ALP a 1 - 564 564 19 , , This rule was in place in order to support the develop- place in order to support the This rule was in ). 39 The task of protecting the local population from The task of protecting the local to the agency, airport noise, however, has fallen that owns and oper- usually of local government, ates the airfield. F. Supp. National Aviation v. City of Hayward This standard ensured “that the next generation of civil This standard ensured “that \productn\A\ALP\ 41 , the agency adopted 01 corde I Concorde II British Airways v. Port Authority, Concorde II Id. Id. Id. Id. In its opinion, the court delineated the responsibilities between In its opinion, the court delineated The Port Authority developed a more sophisticated manner of The Port Authority developed The Second Circuit revisited this matter after the Port Author- revisited this matter after The Second Circuit 36 37 38 39 40 41 42 1958 ternational Airport in New York as it was directed to “develop a was directed to York as it Airport in New ternational delay. unreasonable without noise standard” \\jciprod 110 Avi Issues in the federal government and local operators in regulating airport the federal government and local noise. The court stated: ity failed to “promulgate a noise rule equally applicable to all a noise rule equally ity failed to “promulgate intervention on at Kennedy, without the court’s planes landing Rule.” the details of the levels at Kennedy Airport.determining permissible noise In aircraft be no louder than its noisiest predecessor” and thereby aircraft be no louder than its of the area near the airport. preventing “further deterioration” ment of quieter aircraft and to provide the authority with the ment of quieter aircraft and of “certain jet airplanes whose din right to prohibit the operation communities.” was deemed intolerable to surrounding had enacted a regulation in had enacted a regulation “as registered at selected monitoring points, to be the maximum “as registered at selected monitoring aircraft wishing to use” the air- permissible noise limit for all port. to obtain approval from the authority before it used one of its from the authority before to obtain approval facilities. lier, the Court had ruled that the Port had the legal authority “to had the legal authority that the Port Court had ruled lier, the reg- and nondiscriminatory nonarbitrary reasonable, promulgate airport and levels for the acceptable noise that establish ulations did not create so long as the regulations its immediate environs” on commerce. an undue burden 41704-alp_19-1 Sheet No. 59 Side B 11/15/2019 09:26:38 B 11/15/2019 59 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 60 Side A 11/15/2019 09:26:38 49 : Id. ) con- 19 14 . cf. -NOV- decision, it 558 supra L. Ed. a-vis both the , at 7 7 , 9 8 9 84 note Burbank U.S. supra (as discussed 369 ), would result in a ra- ), would result , 1972 1962 cases made it clear that any regula- ; Maravilla, 44 ( 43 85 – ). that fair to assume It seemed 531 The use of technology to adopt noise The use of technology to adopt 84 45 1976 .txt unknown Seq: d at Concorde 2 107 S. Ct. F. (citation omitted). \ALP . The Court also stated in a footnote that “[o]f course, the 1 - 82 558 19 . 11 13 , , – – 12 (N.D. Cal. (N.D. Cal. n. 585 1010 1012 th century, the concerns about aircraft noise increased as d 417 2 the proprietor’s intimate knowledge of local condi- knowledge of intimate the proprietor’s property and to acquire well as his ability tions, as land use, compatible and assure air easements Allegheny County Griggs v. tional weighing of the costs and benefits of pro- of the costs and benefits of tional weighing posed service. has consistently reaffirmed Congress both to this two-tiered scheme, and its commitment rec- and executive branch have the Supreme Court role of the airport proprietor ognized the important abatement programs consonant in developing noise with local conditions. 20 at at 1013 The Airline Deregulation Act of 1978 and the Increased The Airline Deregulation Act of Federal Role in Regulating Airport Noise Federal Role in Regulating Airport \productn\A\ALP\ ] Beyond the Noise: Proprietor Exception The Airport 111 01 Port Authority must afford all aircraft, including the Concorde, a fair and equal opportunity to meet the requirements of any future noise rule.” at Id. Id. Concorde I 9 In holding that the Port Authority had unlawfully imposed a In holding that the Port Authority The legacy of the As aircraft operations increased during much of the second half M K 43 44 45 tions adopted by a local governmental authority must be reasona- tions adopted by a local governmental ble and non-arbitrary. \\jciprod 201 ban on the operation of the Concorde at Kennedy Airport, the ban on the operation of the Concorde its ruling “does not deny the Port Court of Appeals noted that a new, uniform and reasonable Authority the power to adopt noise standard in the future.” well. The Noise Control Act of also became clear that the federal government, vis-also became clear that the federal ` was concerned about the impact courts and the executive branch, the national air transportation of airport noise regulations on system. III. of the standards backed by science would be critical for local govern- standards backed by science would ments moving forward. with the Coupled C Y 41704-alp_19-1 Sheet No. 60 Side A 11/15/2019 09:26:38 A 11/15/2019 60 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 60 Side B 11/15/2019 09:26:38 M K 49 : :1 C Y 9 108 (codi- 1978 Due ). U.S.C. 19 14 (b), U.S.C.). 51 11 [Vol. 1 49 49 1705 2012 provided -NOV- ( Pub. L. No. aircraft, it For exam- , § 50 3 46 54 388 Stat. 429 - 53 , The Airport Noise 1979 92 States that owns , 103 372 2 Y 10 8 504 ’ ). - OL 95 aircraft.” The law required a 1994 )). . ( 2 6 52 . 2000 L. & P ( 161 repealed & restated by 1033 (codified as amended at 49 , ), ) & Pub. L. No. John J. Jenkins Jr., , Pub. L. No. 1023 41713 (ANCA). 1980 1239 ( . 1994 VIATION See ( C.F.R. § ). ). A 50 1978 ). OM )). nd Policy nd . 14 379 a Stat. The ADA included a provision which included a The ADA 1990 2019 2019 w 2019 U.S.C. § Stat. SSUES ( 1994 ) ( ) ( (a); 47 92 a I 1 3 47534 Stat. , .txt unknown Seq: 94 49 L. & C – , Airport Noise Litigation in the 21st Century:Survey A 11 161 107 (b)( (b)( IR , 574 47524 tion L tion 108 - ) (codified as amended in scattered sections of 193 \ALP a - 1 - 92 J. A 47521 & Supp. 19 96 41713 41713 (b), 1994 7 ( 59 , 1976 , § Congress, however, also included this language in the also included this language Congress, however, U.S.C. § C.F.R. pt. ( , Congress passed the Airline Deregulation Act of Deregulation passed the Airline , Congress 4391 48 49 14 272 “This subsection does not limit a State, political subdivi- does not limit a State, political “This subsection - W. Eric Pilsk, U.S.C. § U.S.C. § U.S.C. §§ ; ; 1431 \productn\A\ALP\ 1978 01 § fied as amended at and Capacity Act of 1990: Has Congress Finally Solved the Aircraft Noise Problem? Airline Deregulation Act of 49 49 Pub. L. No. 103 Stat. See of Current Issues 49 Id. Id. Pub. L. No. ANCA also narrowed the airport proprietor exception as it re- ANCA also narrowed the airport Congress also enacted laws that were focused on aircraft noise. Congress also enacted laws that In 47 48 49 50 51 52 53 54 46 ferred on the Environmental Protection Agency (EPA) the pri- Agency (EPA) Protection the Environmental ferred on aircraft noise. regulation of role in the mary federal the do- that deregulated of legislation a landmark piece (ADA), market. mestic airline \\jciprod 112 Avi Issues in quired federal approval to “adopt noise restrictions.” quired federal approval to “adopt The Aviation Safety and Noise Abatement Act of The Aviation Safety and Noise sion of a State, or political authority of at least or political authority of at least sion of a State, ADA: specifically prohibited states or local governments from enacting states or local governments specifically prohibited having the law, regulation, or other provision or enforcing “a or service of an air of law related to a price, route, force and effect carrier.” “mandatory phase-out of certain Stage “mandatory phase-out of certain or operates an airport served by an air carrier holding a certifi- airport served by an air carrier or operates an from carrying out Secretary of Transportation cate issued by the powers and rights.” its proprietary must get approval from “all aircraft operators” or the Secretary of must get approval from “all aircraft “financial and legal incentives for airports to implement noise “financial and legal incentives address noise issues.” mitigation programs to proactively to restrict Stage ple, if an airport operator wants to concerns about the growing “patchwork of local airport noise to concerns about the growing adversely impact the national and access restrictions” that could enacted the Airport Noise air transportation system, Congress and Capacity Act of 41704-alp_19-1 Sheet No. 60 Side B 11/15/2019 09:26:38 B 11/15/2019 60 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 61 Side A 11/15/2019 09:26:38 ). 3 49 : City 1982 19 14 aircraft -NOV- 3 See also th Cir. proprietary 5 ( ). 1981 1187 56 , 11 8 ). ). 1184 th Cir. d ); SeaAir NY, Inc. v. City of 9 ( 2 ); Ass’n 2019 2019 aircraft. ( ( F. 7 3 . 2001 104 1998 ); Nat’l Helicopter Corp. of Am. v. , 161 679 161 100 2001 See Friends of the E. Hampton Airport, d d Cir. 2 2 Restrictions for which FAA ap- for which Restrictions . ( Alaska Airlines, Inc. v. City of Long Alaska Airlines, Inc. v. City of F. (M.D. Fla. 55 81 553 C.F.R. pt. C.F.R. § d. Cir. d 2 659 ( 3 14 14 1343 , at F. 7 ); ); d 1 1 183 aircraft; 2 .txt unknown Seq: d , the City and challenged the FAA’s 137 ; Nat’l Bus. Aviation Ass’n v. City of Naples Airport ; Nat’l Bus. Aviation Ass’n v. City 3 107 (c)( (c)( 3 , the courts have done so on “on a case-by-case , the courts have done so on “on note F. 133 \ALP 1 - d 19 47524 47524 3 250 supra F. Supp. statute miles from National Airport.considered was FAA The F. 000 162 , A number of cases have specifically addressed noise reg- A number of cases have specifically 841 1 ) To assure the full utilization of Dulles; ) To preserve the short- and medium-haul nature of National; and ) To eliminate the inequity of the prior rule, with its exceptions for the , event or cumulative basis; event or operations; clude Stage U.S.C. § U.S.C. § 57 1 2 3 City of Houston , the Ninth Circuit Court of Appeals was asked to review , the Ninth Circuit Court of Appeals ( ( ( grandfathered cities. Airport Litigation and the Impact it Had on the Long and the Impact it Had on the Airport Litigation Beach Airport \productn\A\ALP\ ] Beyond the Noise: Proprietor Exception The Airport 11 01 In authority to enact a perimeter rule restricting service to airports greater than of Houston v. Fed. Aviation Admin., New York, v. City of Santa Monica, City of New York, Inc. Auth., the proprietor of both National and Dulles Airports. The purpose of the amended regulation was: 49 49 Maravilla, 9 Because the ADA does not define what constitutes Because the ADA does not define D. and restriction on hours of operations; a E. other restriction on Stage any A. either a single generated on on noise levels a restriction B. of Stage on the total number a restriction C. program that would in- budget or noise allocation a noise M K In so holding, the Fifth Circuit noted that “the FAA is not the typical airport proprietor.” 55 56 57 IV. Transportation (e.g., FAA). Transportation powers and rights basis.” \\jciprod 201 ulations enacted by government-operated airports under the pro- ulations enacted by government-operated prietary rights exception. In Beach the issuance of a permanent the District Court’s order regarding Beach’s noise control ordinance injunction of the City of Long proval is required include: proval is C Y 41704-alp_19-1 Sheet No. 61 Side A 11/15/2019 09:26:38 A 11/15/2019 61 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 61 Side B 11/15/2019 09:26:38 , M K 49 4 : :1 C Y 9 In 3133 1981 The 61 19 14 60 . [Vol. 1 -NOV- )). 1923 1981 ( 59 The permanent 58 130 . 12 8 flights per day. 45 . 15 16 § ODE . C . The city submitted its noise compat- . . After the preliminary injunction was years of litigation. years of . UN 982 59 Id. 981 981 10 . M at 64 ). A nd Policy nd a Id. note d at , C d at 2 w 1991 2 years. a 2 / F. F. 1 .txt unknown Seq: supra 5 EACH 107 . The FAA failed to issue its approval of the plan dur- 951 951 B tion L tion th Cir. , , \ALP a The provision stated: 9 1 , two years after Alaska Airlines (later joined by Alaska Airlines (later joined , two years after ( - 1986 19 63 ONG L . history is set forth An overview of the city’s lengthy litigation 977 1983 d 62 Commencement of flight operations at Long Commencement of flight operations 2 980 ), http://www.lgb.org/civicax/filebank/blobdload.aspx?BlobID= F. Beach airport shall be deemed to constitute an un- Beach airport shall be deemed of Long Beach for dertaking to indemnify the City inverse condem- any judgment for nuisance, noise, against the City nation or other damages awarded of that user at the as a result of flight operations Long Beach airport. (citing at \productn\A\ALP\ 01 ibility program plan along with an “implementing ordinance to the FAA” for review in entered, the City of Long Beach initiated a noise study in order to comply with the then FAA regulatory scheme calling “for development of a ‘noise compatibility program’.” ing the subsequent in Memorandum, City Attorney’s Opinion Regarding Federal Inspection in Memorandum, City Attorney’s Opinion Office of the City Attorney (Oct. Station (FIS), City of Long Beach 2016 [hereinafter FIS Memorandum]. Alaska Airlines FIS Memorandum, Alaska Airlines Id. Id. 951 Id. The airlines argued that because this provision was in the ordi- The airlines argued that because On appeal, the appellee airlines argued that the ordinance’s in- appellee airlines argued that the On appeal, the The Long Beach Airport, like many similar facilities, has been facilities, like many similar Beach Airport, The Long 60 61 62 63 64 58 59 that regulated the number of air carrier flights. of air carrier the number that regulated air carriers to operate and it only allowed \\jciprod 114 Avi Issues in nance, “the reasons for allowing the municipality to regulate air- nance, “the reasons for allowing surrounded by residential housing since it opened in housing since by residential surrounded city from applying the proprietor demnity clause precluded the this provision shifted “liability to exemption because, in effect, airport users.” other carriers) initiated this litigation, the district court ruled initiated this litigation, the other carriers) the fifteen-flight an insufficient basis to support “that there was prohibiting the “entered a preliminary injunction restriction” and flights below the number of daily carrier city from reducing eighteen.” injunction was issued after was issued injunction city’s first airport noise control ordinance was adopted in was adopted control ordinance airport noise city’s first December 41704-alp_19-1 Sheet No. 61 Side B 11/15/2019 09:26:38 B 11/15/2019 61 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 62 Side A 11/15/2019 09:26:38 , d 49 : 72 2 10 – F. The and 19 14 70 66 659 1009 , -NOV- 1006 d 2 F. 69 13 8 711 The Circuit Court of The Circuit 65 )). Id. 1983 )). 1981 th Cir. 11 ( The Court also stated that an airport The Court also )). 67 The Court also noted that “[t]he goal of The Court also noted that “[t]he th Cir. 688 9 The city was, therefore, still liable for the The city was, therefore, ( 1981 71 68 d 5 .txt unknown Seq: 2 n. 107 F. \ALP th Cir. 104 1 - 720 9 . , ( 19 , 86 (citing Pirolo v. City of Clearwater, (citing Pirolo v. City of Clearwater, (citing Santa Monica Airport Ass’n v. City of Santa Monica, 5 – . . 100 n. d 983 984 983 985 985 2 104 F. , The District Court had ruled that the ordinance was facially neutral. at (citing Santa Monica Airport Ass’n v. City of Santa Monica, at at at at 73 \productn\A\ALP\ ] Beyond the Noise: Proprietor Exception The Airport 115 01 reh’g denied Id. Id. 100 Id. Id. Even after weighing the “‘valid concerns of the Long Beach community’ against ‘the demand for vibrant, safe, fair and efficient national transpor- tation system,’” the District Court concluded that the ordinance “imper- missibly burdened interstate commerce.” Id. Id. 659 Id. Id. Id. 9 The Court also addressed whether the City of Long Beach or- addressed whether the City of The Court also M K 67 68 69 70 71 72 73 The Court was neither persuaded that the ordinance provisions The Court was neither persuaded unreasonable” nor that the ordi- were “completely arbitrary or of the airlines’ equal protection nance constituted a violation rights. 65 66 port noise as a proprietor disappeared.” as a proprietor port noise \\jciprod 201 dinance “impermissibly burdened interstate commerce,” dinance “impermissibly burdened reducing airport noise to control liability and improve the aes- reducing airport noise to control legitimate and permissible one.” thetics of the environment is a noise and therefore a proprietor of the airport. noise and therefore proprietor “should be allowed to define the threshold of its liabil- be allowed to define the threshold proprietor “should noise ordinances under the municipal-proprietor ity, and to enact will reduce has a rational belief that the ordinance exemption if it of the City’s of liability or enhance the quality the possibility human environment.” Appeals found this argument to be without merit. to be without found this argument Appeals Court ac- The its proprie- contract away “may that a government knowledged to regulate noise.” lose the right rights, and thus torship Court, however, determined that this ordinance only allowed the ordinance only that this determined Court, however, for “damages actu- recovery” against the airlines city “a right of it. ally awarded against” treated “interstate and intrastate concluded that the ordinance airlines from California and those flights” the same way as it did from outside the state. C Y 41704-alp_19-1 Sheet No. 62 Side A 11/15/2019 09:26:38 A 11/15/2019 62 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 62 Side B 11/15/2019 09:26:38 M K 49 : 76 78 :1 C Y 9 air- came 19 14 41 [Vol. 1 -NOV- air carrier 1995 41 The City of Long The City 14 8 80 74 Given that the ordinance re- Given that the 77 . 59 nd Policy nd a note w a .txt unknown Seq: supra 107 tion L tion The city, as a result of its settlement with the The city, as a result of its settlement \ALP a 1 - 79 19 . The ordinance also provided that the decision “shall also provided that the decision The ordinance . This is particularly important in this case because the ordi- . . 75 1988 988 986 987 at at at , Exhibit A (Letter from James W. Whitlow, Deputy Chief Counsel, \productn\A\ALP\ .a minimum of That ordinance also allows 01 nance contained a nonseverability clause that would require the entire or- dinance to be invalid if one or more provisions were found to be unlawful. Id. Id. Id. Id. Id. FIS Memorandum, Id. FAA, to Chris Kunze, Manager, Long Beach Airport). The appeal and eventual settlement of this case in The appeal and eventual settlement The issue that resulted in the Court ruling in favor of the carri- in favor of in the Court ruling that resulted The issue The City of Long Beach Airport was required to allow The City of Long Beach Airport 74 75 76 77 78 79 80 1995 Accordingly, the Court held that the “absence of adequate proce- Accordingly, the Court held that a constitutional violation.dural protections” resulted in The narrow. Court’s decision in this case was Moreover, the ordinance did not set forth any procedures for air- did not set forth any Moreover, the ordinance this decision. lines to challenge \\jciprod 116 Avi Issues in ers had to do with procedural due process. to do with procedural ers had be conclusive unless it is demonstrated to lack a rational basis.” it is demonstrated to lack be conclusive unless airlines, adopted its Airport Noise Compatibility Ordinance in airlines, adopted its Airport Noise quired the airport manager to force an airline with the “highest manager to force an airline quired the airport the Court rea- noise level” to reduce flights, average single event be adversely af- one carrier would certainly soned that at least action” was real. because the “threat of fected by this provision Beach ordinance authorized the airport manager to force airlines manager to force the airport authorized Beach ordinance determin- a hearing after airport without flights at the to reduce level and cumulative noise a certain “a carrier exceeds ing that exposure level average single event noise had the highest (SENEL).” flight operations per day. The FAA has stated that the ordinance, from ANCA. as currently enacted, is exempt amidst the changing landscape regarding the regulation of avia- amidst the changing landscape tion noise in the United States.while ANCA enacted Congress this case was being appealed. It is clear that the potential the result of legislative action changes to the ordinance (whether because of the long-standing litiga- by the City of Long Beach or problems for the city. tion) could have created additional arrival) by the District line flight operations (one departure/one Court in 41704-alp_19-1 Sheet No. 62 Side B 11/15/2019 09:26:38 B 11/15/2019 62 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 63 Side A 11/15/2019 09:26:38 49 : 84 FIS 19 14 , operat- See -NOV- 135 .A. . The city’s decibels for 040 , or . 81 5 . 3332 43 . 125 , 102 16 p.m., for example, ), http://www.lgb.org/ 15 8 Between the hours 121 10 ch. 88 1999 ( . regulates aircraft noise regulates aircraft Id. 82 43 . .D. 2764 16 The ordinance encourages 010 . 85 a.m. and . ch. 43 . 7 16 1990 ODE . .B. as The ordinance defines “air carriers” , ch. . C 59 31 050 . Id. UN 43 decibels for arrivals. . p.m., the single event noise exposure level is p.m., the single event noise exposure note . , the City of Long Beach’s attempts to regu- attempts to of Long Beach’s , the City .txt unknown Seq: ., M 16 5 2 . 107 , 11 AL ) pounds or more, transporting passengers or cargo. The - .C. .E. . .A. . Military and public aircraft are not included in the for- supra \ALP 101 010 1 , C supra 10 . - 000 050 060 040 010 040 , . . . . 19 . 43 . 75 ) operating aircraft with a “certificated takeoff weight less than 43 43 43 43 43 . . . . . 16 EACH 83 16 16 16 16 16 135 Between the hours of B or 87 chs. ch. ch. ch. ch. ch. a.m. and 86 \productn\A\ALP\ ONG The Long Beach Airport Noise Ordinance Beach Airport The Long 7 ] Beyond the Noise: Proprietor Exception The Airport 117 01 ing aircraft having a certificated maximum takeoff weight of seventy-five thousand ( Memorandum, civicax/filebank/blobdload.aspx?BlobID= scheduled carriers, certificated under FAR Parts ordinance defines “commuter carriers” as entities (certificated as FAA Part mulation of the noise budgets because the city is not liable for noise for those two categories of aircraft operations. seventy-five thousand.” Id. 121 Id. Id. Id. Id. Long Beach Airport Fact Sheet–Noise Compatibility Ordinance, http:// www.lgb.org/civicax/filebank/blobdload.aspx?BlobID= L Id. - 9 6 The ordinance creates a noise budget for each user group.creates a noise budget for each The ordinance The event noise limits for categories The ordinance imposes “single As discussed As discussed M K 84 85 86 87 88 81 82 83 The initial noise budgets for air carriers and commuter carriers budgets for air carriers and The initial noise noise level data for the twelve were developed based on recorded months ending October V. \\jciprod 201 categories of airport users include air carriers, commuter carriers, users include air carriers, categories of airport general aviation. charter operators, and industrial operators, such group’s cumulative noise of [a]irport users in order to reduce levels.” late airport noise has evolved through a history of litigation be- a history of litigation through noise has evolved late airport the FAA, and other stakeholders. tween the city, airlines to operate aircraft with the “lowest average noise” airlines to operate aircraft levels. by establishing permissible levels of single event noise limits for permissible levels of single event by establishing under the of airport users as established all categories ordinance. the single event noise exposure level is set at the single event noise exposure of departures and Airport Noise Compatibility Ordinance Airport Noise Compatibility C Y 41704-alp_19-1 Sheet No. 63 Side A 11/15/2019 09:26:38 A 11/15/2019 63 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 63 Side B 11/15/2019 09:26:38 , M K 49 : :1 00 ch. C Y 9 : supra 10 2016 19 14 ODE [Vol. 1 . C In -NOV- 90 95 UN (explaining the . ., M 59 AL 040 . decibels. , C note 43 16 8 . 79 16 EACH supra ch. B a.m., when many residents a.m., when 6 ODE ONG p.m. (e.g., late flight arrival at p.m. (e.g., late flight L . C 96 11 - UN 10 ., M p.m. and p.m. and nd Policy nd a Under the ordinance, an increase in Under the ordinance, an increase . AL 93 6 FIS Memorandum, 11 w 94 , C a The ordinance, however, does allow for a does allow however, The ordinance, , E. See .txt unknown Seq: 5 The following qualify as situations beyond The following 91 107 EACH 92 .B. .D. .E. tion L tion . \ALP a B 1 5 - a.m. - 040 060 060 . . 19 . 3 Between Between operations per day. 43 ONG 43 43 . . . 00 .E. 89 flights) that can be awarded to carriers because the “cumulative L : 16 16 ; 7 50 16 Slot Allocation Issues 41 060 slots (one departure and one arrival comprise a slot) per slots (one departure and one arrival . 81 43 ch. ch. ch. p.m.) to be waived if it is the result of an “unanticipated p.m.) to be waived . \productn\A\ALP\ 41 Issues in Avi Issues A. 01 rather lengthy litigation history involving attempts to regulate noise activ- ity at the airport and its impact on slots). noise generated by Air Carrier Operations during the prior twelve month period” is under the CNEL budget. Those flights can be awarded for a one-year period, subject to renewal. Id. Id. Id. Long Beach Airport Fact Sheet–Noise Compatibility Ordinance, Supplemental flights are those additional operations (beyond the mini- mum 16 Id. Id. Id. note slot pairs per day. decibels. 30 Neither air nor commuter carriers (e.g., airline operators) are airline operators) carriers (e.g., air nor commuter Neither : The ordinance provides that air carriers may operate no fewer The ordinance provides that air A. failure (unplanned maintenance) Mechanical B. conditions Weather C. Air traffic control 8 92 93 94 95 96 25 89 90 91 90 p.m. and 10 \\jciprod 11 allowed to schedule flights (arrivals or departures) between departures) between (arrivals or to schedule flights allowed day from the airport while commuter carriers have a minimum of day from the airport while commuter delay” which is beyond the “reasonable control of the aircraft beyond the “reasonable control delay” which is Owner/Operator.” than violation occurring between violation occurring the control of the operator: the control of the flights (air carrier and commuter carrier) can be approved so long flights (air carrier and commuter that initiation of service as the airport manager “determines result in each group exceeding the utilizing those Flights will not” (CNEL) budget limits. Community Noise Equivalent are sleeping, the single event noise limit is event noise limit the single are sleeping, the Long Beach Airport allocated nine “supplemental” slots (de- the Long Beach Airport allocated in air carriers being able to oper- parture and landing), resulting ate up to 41704-alp_19-1 Sheet No. 63 Side B 11/15/2019 09:26:38 B 11/15/2019 63 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 64 Side A 11/15/2019 09:26:38 / ), 9 49 : 103 70 11 / supra 2018 19 14 , 2018 3 -NOV- (Dec. slots to JetBlue slots to JetBlue, as the . J. As such, the City 101 US 100 % of the time over 27 17 8 B 102 57 slots at the airport in slots at percent of a month, ), http://www.longbeach.gov/ 35 EACH 60 —-long-beach-airport—-imple B ), https://crankyflier.com/ 2019 , 3 2019 ONG 2018 L — , percent for each calendar year. 3 , , Exhibit A (Letter from James W. Whit- 27 59 85 /april- (Nov. , airlines with allocated slots, at a mini- with allocated , airlines note . ; Memorandum, Long Beach Airport–Implemen- 2019 98 98 . LIER .txt unknown Seq: 2019 supra 99 107 F New Rules Passed For Flight Slots at Long Beach Air- New Rules Passed For Flight Slots note note \ALP 1 Over the past few years, concerns have been concerns past few years, Over the - note , Long Beach Chooses Southwest over JetBlue with Slot Rule , Long Beach Chooses Southwest over 19 98 supra RANKY supra . C . The carrier had as many as had as many The carrier supra , , the City of Long Beach allocated of Long Beach , the City 97 2018 102 -day period” or use the “slot at least -day period” or Until spring Until spring /long-beach-chooses-southwest-over--with-slot-rule-changes/. 2001 \productn\A\ALP\ 99 ] Beyond the Noise: Proprietor Exception The Airport 11 180 01 https://www.lbbusinessjournal.com/new-rules-passed-for-flight-slots-at- lgb/. globalassets/city-manager/media-library/documents/memos-to-the-mayor- tabbed-file-list-folders/ mentation-of-amended-allocation-resolution [hereinafter Memorandum– Implementation of Amended Allocation Resolution]. low, Deputy Chief Counsel, FAA, to Chris Kunze, Manager, Long Beach low, Deputy Chief Counsel, FAA, to Airport). tation of Amended Allocation Resolution, Claudia Lewis, City of Long Beach Airport Interim Director (Apr. 27 Nahigyan, Snyder, Nahigyan, Memorandum–Implementation of Amended Allocation Resolution, FIS Memorandum, Pierce Nahigyan, port, Airlines Split on the Issue Brett Snyder Changes note 9 Given that capacity (as measured by slots) is constrained at the (as measured by slots) is constrained Given that capacity In M K 100 101 102 103 97 98 99 percent of each quarter, and list for carriers seeking slots at the Given that there is a waiting effective in ensuring that carriers airport, this new policy will be a better competitive envi- utilize their slots while also ensuring ronment at the airport. \\jciprod 201 airport, the underutilization of allocated slots can be anticompeti- of allocated slots airport, the underutilization affect the traveling public. tive and adversely raised about the underutilization of slots by carriers at the air- by carriers of slots the underutilization raised about port. mum, had to utilize “at least four flights per slot per week over “at least four flights per mum, had to utilize any August a six-month period, or risk forfeiting the slot.” a six-month period, Airways. underutilized slots the airport, appeared to have largest carrier at losing money on certain routes. because it was and now re- amended its allocation resolution of Long Beach at least quires carriers to utilize a slot C Y 41704-alp_19-1 Sheet No. 64 Side A 11/15/2019 09:26:38 A 11/15/2019 64 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 64 Side B 11/15/2019 09:26:38 M K 49 : :1 109 A C Y 9 . 100 . supra 106 19 14 300 43 . [Vol. 1 16 -NOV- 112 A third vi- , http://www.lgb 107 Noise Abatement Noise Abatement Noise Abatement aircraft noise vio- 2018 See See See . 18 8 .F; .E; .D; .C. 378 3352 090 090 090 090 . . . . percent of air carrier (and 43 43 43 43 . . . 7 . . 16 0 16 16 16 Any subsequent violation oc- Any subsequent Those who violate the Noise who violate the Those ch. ch. ch. ch. 108 . 104 , there were 59 ODE ODE ODE ODE fine. . During this time period, the airport nd Policy nd were from air carriers operating at the were from air carriers operating . C . C . C 2018 . C a note 100 UN UN UN UN noise monitors placed in various parts of in various parts placed noise monitors w 2018 In a 240 . . . .txt unknown Seq: in fees for airport noise violations. supra 18 ., M ., M ., M ., M -month period will result in a fine of $ -month period will result in a 110 106 106 106 107 AL AL AL AL tion L tion 12 \ALP 600 a 1 , - , C , C , C , C 19 note note note 049 , EACH EACH EACH EACH Long Beach Airport, Noise Abatement FAQs, http://www.lgb.org/ Long Beach Airport, Noise Abatement 1 This represents less than . supra supra supra Ordinance Enforcement Ordinance B B B B First-time violators receive a written notice of the viola- receive a written notice of First-time violators 81 111 105 \productn\A\ALP\ ONG ONG ONG ONG B. 01 .org/civicax/filebank/blobdload.aspx?BlobID= FAQs, FAQs, FAQs, information/noise_abatement/frequently_asked_questions.asp [hereinafter Noise Abatement FAQs]. Id. See L L L FIS Memorandum, Long Beach Airport Monthly Noise Report, Dec. Id. Long Beach Airport Fact Sheet–Noise Compatibility Ordinance, note L Violations of the noise restrictions can also result in misde- Violations of the noise restrictions The ordinance policy appears to be effective in providing an The ordinance policy appears The city’s Airport Noise and Operations Monitoring System Monitoring and Operations Airport Noise The city’s 106 107 108 109 110 111 112 states in part that “[i]t is a misdemeanor, subject to the penalties states in part that “[i]t is a misdemeanor, the Owner/Operator of an air- applicable to misdemeanors, for SENEL limit without a reasona- craft to exceed any established 104 105 \\jciprod 120 Avi Issues in meanor criminal charges against an air carrier.meanor criminal charges against Section enforcement mechanism through both criminal enforcement and enforcement mechanism through administrative fees. tion, which includes language requiring that the operator (e.g., air language requiring that the tion, which includes the ordinance. to become compliant with carrier) take steps (ANOMS) relies on (ANOMS) the city to monitor compliance. the city airport. collected $ Compatibility Ordinance face a progressive system of sanc- Ordinance face a progressive Compatibility tions. curring within a commuter carriers as defined by the ordinance) operations at the commuter carriers as defined Long Beach Airport in lations at the airport; olation will result in a $ olation will result second violation involves a written notice and a request that the involves a written notice and second violation a copy of a noise the airport manager with operator provide the operator will with an explanation as to how abatement plan with the city’s ordinance. ensure future compliance 41704-alp_19-1 Sheet No. 64 Side B 11/15/2019 09:26:38 B 11/15/2019 64 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 65 Side A 11/15/2019 09:26:38 49 3 : 16 /jet- ONG L (Aug. 05 / , 19 14 /airline- for the 02 ELEGRAM / 16 / -NOV- -T 08 000 / , 2018 3 121 ELEGRAM 118 RESS -T 2019 P The city’s effort RESS , the city reached a , the city reached 19 8 122 . PM), https://www.press- EACH P The carrier claimed .B. . . B 31 JetBlue flights violated JetBlue flights : 119 2003 040 100 100 2019 . . . EACH 12 Furthermore, under this Furthermore, 58 ONG , 43 43 43 B . . . , L In p.m. 113 , 16 16 16 A consent decree was entered 2018 116 ONG . 11 , 2017 L ch. ch. ch. 120 , , 26 30 2002 ODE ODE ODE and August for each noise violation. . . C . C . C (June /jetblue-signs-pledge-to-pay-reduce-violations/; 116 000 UN UN UN , 2018 26 JetBlue is Fighting Back Against Fines for Late- JetBlue is Fighting Back Against Fines / 6 PM), https://www.presstelegram.com/ ). .txt unknown Seq: for every violation thereafter.” for every violation Airline Faces Criminal Charges for Violating Long Airline Faces Criminal Charges for 06 ., M ., M ., M 6 / and June JetBlue Signs Pledge to Pay, Reduce Violations 107 note 22 : AL AL AL PM), https://www.presstelegram.com/ (f)( ELEGRAM 1 1 \ALP 000 12 . 1 , 2018 -T - , C , C , C , 16 6 19 supra 36 : This resulted in the carrier paying “$ This resulted 6 RESS , 2018 EACH EACH EACH 117 , the City of Long Beach brought a criminal complaint , the City of Long Beach brought , P “possess a reasonable basis for believing that such air- basis for believing a reasonable “possess 5 B B B 2019 114 115 C.F.R. § , \productn\A\ALP\ EACH 2019 ONG ONG ONG ] Beyond the Noise: Proprietor Exception The Airport 121 01 blue-is-fighting-back-against-fines-for-late-night-flights-at-long-beach- airport/. faces-criminal-charges-for-violating-long-beach-airports-noise-ordinance/. telegram.com/ Night Flights at Long Beach Airport Courtney Tompkins, (Feb. Id. Id. Harry Saltzgaver, B L Id. Rasmussen, L 14 L Emily Rasmussen, Beach Airport’s Noise Ordinance 16 9 Between April In The City of Long Beach has prosecuted five carriers for violat- Beach has prosecuted five carriers The City of Long M K 117 118 119 120 121 122 times between August 113 114 115 116 ble basis for believing that the aircraft employed would comply employed would that the aircraft for believing ble basis limit.” applicable SENEL with the aircraft \\jciprod 201 ing its noise ordinance since ing its noise ordinance against , operating as American Eagle, alleging that against Mesa Airlines, operating event noise exposure level the airline violated the city’s single craft can be operated in compliance with applicable SENEL with applicable in compliance be operated craft can limits.” into between the city prosecutor’s office and JetBlue with the car- into between the city prosecutor’s rier agreeing to pay $ provision, there is a presumption that owners of so-called Stage owners of so-called that there is a presumption provision, the curfew under the Noise Compatibility Ordinance by arriving the Noise Compatibility Ordinance the curfew under at the Long Beach Airport after settlement agreement with JetBlue to avoid prosecution under the with JetBlue to avoid prosecution settlement agreement ordinance. were the result of air traffic con- that some of those late arrivals to a waiver because they were trol issues, which could be subject beyond the control of the carrier. to obtain compliance through its traditional process had failed to to obtain compliance through first six, and $ C Y 41704-alp_19-1 Sheet No. 65 Side A 11/15/2019 09:26:38 A 11/15/2019 65 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 65 Side B 11/15/2019 09:26:38 M K 49 : :1 C Y 9 feet /hunt 1975 19 14 07 / 200 [Vol. 1 , 127 -NOV- 2 2019 degree glide The City of 3 124 129 PM), https://www.faa 20 8 20 : 5 percent between , 90 2018 in order to examine ways to , 9 ), https://voiceofoc.org/ 2018 2019 (Jan. , 123 9 . GOV 3 nd Policy nd a (July w , at FAA. a 6 , .txt unknown Seq: OC Huntington Beach to Study Lower Aircraft Noise Over 107 tion L tion note \ALP a 1 - 19 The agency has attributed this decline largely to the The agency has attributed this OICE OF supra V The city is often under the approach path to the Long The city is often under the approach , 128 Additional Sound Mitigation Efforts Additional Sound .” This procedure can help reduce aircraft noise. This procedure can help reduce 125 126 Conclusion \productn\A\ALP\ C. 2000 01 ington-beach-to-study-lower-aircraft-noise-over-the-city/. .gov/about/office_org/headquarters_offices/apl/noise_emissions/airport_ aircraft_noise_issues/. the City Id. Dempsey, Miranda Andrade, Id. Id. Aircraft Noise Issues Id. Airport noise is an issue that policymakers and the aviation in- Airport noise is an issue that policymakers There are many ways to mitigate the impact of noise from air- ways to mitigate the impact There are many 123 124 125 126 127 128 129 VI. and compel Mesa Airlines to make the necessary changes in order to changes to make the necessary Mesa Airlines compel the ordinance.compliance with ensure prosecutor The city’s reasonable unless all case is prosecuted “[n]o criminal stated that been exhausted.” efforts have \\jciprod 122 Avi Issues in dustry as a whole have been addressing for decades.dustry as a whole have been FAA The people exposed to significant noise reports that “[t]he number of levels was reduced by approximately Beach Airport. subject to FAA ap- The city is recommending, a minimum altitude of proval, that aircraft “maintain craft, including developing a sensible zoning plan, “sound-proof- developing a sensible zoning craft, including to minimize noise paths, altering flight paths ing homes in flight flight curfews at night.” impacts, and imposing enactment of laws that have resulted in airlines (and other large enactment of laws that have resulted quieter aircraft. operators) acquiring newer and lessen the effects of noise on residents emanating from arriving lessen the effects of noise on aircraft. Long Beach and neighboring communities continue to seek ways neighboring communities continue Long Beach and community.impact of aircraft noise on their to mitigate the The created an Air Huntington Beach, for example, nearby City of Traffic Noise Working Group in slope. while flying over Huntington Beach” and follow a while flying over Huntington 41704-alp_19-1 Sheet No. 65 Side B 11/15/2019 09:26:38 B 11/15/2019 65 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 66 Side A 11/15/2019 09:26:38 3 49 : CTIV- supra 19 14 A -NOV- LIGHT F 21 8 OMMERCIAL C 2018 However, the demand for slots at the demand However, 130 . ECEMBER D , 2017 .txt unknown Seq: ), http://www.lgb.org/civicax/filebank/blobdload.aspx? 107 IRPORT 131 \ALP 1 2019 A - . ( 19 3347 ITY . Four carriers are also on the waitlist for supplemental slots. EACH EPORT B 102 R as compared to as compared \productn\A\ALP\ ONG ] Beyond the Noise: Proprietor Exception The Airport 12 01 BlobID= L Memorandum–Implementation of Amended Allocation Resolution, note 9 The City of Long Beach continues to find ways to support to find ways to continues of Long Beach The City stakeholders, it to balance the needs of its As the city continues M K 130 131 2018 \\jciprod 201 growing demand for its airport (and aviation in general) while aviation in general) airport (and demand for its growing of the community. the needs understanding of air- The number decreased in Airport the Long Beach departing from line flights is one of the most attempting to change what will do so without ordinances in the nation.“stringent” noise significant change Any ANCA and ob- the city having to comply with could result in approval to regulate aircraft noise. taining federal the airport is still strong, and four airlines are on the waitlist for strong, and four airlines are the airport is still permanent slots. C Y 41704-alp_19-1 Sheet No. 66 Side A 11/15/2019 09:26:38 A 11/15/2019 66 Side Sheet No. 41704-alp_19-1 41704-alp_19-1 Sheet No. 66 Side B 11/15/2019 09:26:38 M K 49 : :1 C Y 9 19 14 [Vol. 1 -NOV- 22 8 nd Policy nd a w a .txt unknown Seq: 107 tion L tion \ALP a 1 - 19 \productn\A\ALP\ 01 \\jciprod 124 Avi Issues in 41704-alp_19-1 Sheet No. 66 Side B 11/15/2019 09:26:38 B 11/15/2019 66 Side Sheet No. 41704-alp_19-1