ACRP Legal Research Digest 10

15
lations under 14 C.F.R. Part 36 emphasized that local
airport owners are responsible for determining the
permissible noise levels for aircraft using their airport.
Based in particular on the legislative history’s intent to
preserve proprietary rights, the court upheld the city’s
curfew. “[A]t the present time, Congress and the FAA
do not appear to have preempted the area[.]” 132
The
court went on to find that the curfew also was not prohibited
under the Commerce Clause. 133
In another case involving a proprietor, British Airways
Board v. Port Authority of New York and New
Jersey, 134
a proprietor imposed a temporary ban on
operations by the Concorde to first study whether the
proprietor’s noise criteria would permit the Concorde’s
noise levels. The court noted that in supporting briefs
the federal government had “continued the traditional
policy of refusing to preempt the local airport operator’s
responsibility for establishing permissible levels of
noise.” 135
However, as the court considered how to
evaluate proprietary rights concerning noise at that
time, it also determined that “[i]mplicit in the federal
scheme of noise regulation, which accords to local airport
proprietors the critical responsibility for controlling
permissible noise levels in the vicinity of their airports,
is the assumption that this responsibility will be
exercised in a fair, reasonable and nondiscriminatory
manner.” 136 The court found that “[a]ny other conduct by
an airport proprietor would frustrate the statutory
scheme and unconstitutionally burden the commerce
Congress sought to foster.” 137
The court also reflected the developing state of federal
noise regulation by noting that “[t]he regulation of
excessive aircraft noise has traditionally been a cooperative
enterprise, in which both federal authorities
and local airport proprietors play an important part.” 138
Yet it noted that protecting local populations from noise
fell to the agency “charged with operating the airport,”
and the court pointed to the proprietor’s local control
and exposure to liability as the reason. 139
[T]he inherently local aspect of noise control can be most
effectively left to the operator, the unitary local authority
who controls airport access. It has always seemed fair to
assume that the operator will act in a rational manner in
132
Id. at 425.
133
Id. at 425.
134
British Airways Bd. v. Port Auth. of N.Y. and N.J., 558
F.2d 75 (2d Cir. 1977) (reversing order of summary judgment).
See also British Airways Bd. v. Port Auth. of N.Y. and N.J., 564
F.2d 1002 (2d Cir. 1977) (upholding injunction but modifying
order to permit broader consideration of noise impacts).
135
British Airways, 558 F.2d at 82.
136
Id.
137
Id. at 84. See also Global Int’l Airways v. Port Auth. of
N.Y. and N.J., 727 F.2d 246 (2d Cir. 1984) (Port enacted restrictions
reducing number of operations by Stage 2 and 3 aircraft,
and court held that airport proprietor retained the power
to enact nondiscriminatory restrictions on airport noise).
138
Id. at 83.
139
Id.
weighing the commercial benefits of proposed service
against its costs, both economic and political. 140
Later that same year, this court struck down the
Port Authority’s temporary ban on the Concorde. In the
court’s view, the Port Authority had not acted with
“reasonable dispatch” while studying the issue and
could not “stall indefinitely.” 141
Excessive delay would
not meet the court’s standard for fair and reasonable
action. To determine whether a delay was unreasonable,
the court would “scrutinize the nature and character
of the problems before the agency to assess whether
the path it has chosen to pursue will resolve those issues
in the reasonably foreseeable future.” 142
While the court struck down the Port Authority’s
temporary ban, it again acknowledged that
[t]he task of protecting the local population from airport
noise…has fallen to the agency, usually of local government,
that owns and operates the airfield…. Congress has
consistently reaffirmed its commitment to this two tiered
scheme, and both the Supreme Court and executive
branch have recognized the important role of the airport
proprietor in developing noise abatement programs consonant
with local conditions. 143
The court’s opinion in the British Airways cases reflected
the developing state of noise regulation, and
acknowledged that Congress’s noise measures had not
removed proprietary rights to control noise based on the
same historic factors traditionally raised—control and
liability. It noted the proprietor’s powers and responsibilities,
including the proprietor’s ability to determine
the airport’s location, acquire property and air easements,
assure compatible land use, and assume liability
for local aviation impacts, and the fact that the airport
proprietor was simply in a better position to take these
actions. 144
It then determined that “Congress has reserved
to proprietors the authority to enact reasonable
noise regulations, as an exercise of ownership rights in
the airport, because they are in a better position to assure
the public weal.” 145
Thus the 1970s began with new noise legislation for
the courts to interpret. Consistent with factors developed
under earlier cases, the courts found that this legislation
affected proprietors and nonproprietors differently.
Nonproprietors were subject to field preemption,
and under the new legislation their local powers to
regulate noise had been superseded. Yet the courts continued
to establish a different set of rights for proprietors
based on their historic functions. Congress recognized
that same analysis when it formally established
proprietary rights.
140
Id.
141
British Airways, 564 F.2d at 1012.
142
Id.
143
Id. at 1010–11 (footnote omitted).
144
Id. at 83–85.
145
Id. at 85.