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British Airways Bd. v. Port Auth. of N.Y. & N.J.

ELR Citation: 7 ELR 20772
Nos. No. 77-7438, 564 F.2d 1002/10 ERC 1753/(2d Cir., 09/29/1977) Aff'd

The Second Circuit Court of Appeals affirms the lower court's order, 7 ELR 20648, dissolving the Port Authority's ban on Concorde SST flights at Kennedy Airport and permits the Concorde to serve New York under the new federal operations specifications. Criticizing the Port Authority's "total resistance" to allowing a fair test of the Concorde in New York, the court affirms the injunction against further prohibitions on Concorde operations until the Port Authority sets reasonable, nonarbitrary, and nondiscriminatory noise standards that all aircraft are afforded an equal opportunity to meet. The court acknowledges the power of local airport proprietors to set reasonable rules limiting noise levels for aircraft using the airport but rules that the Port Authority refused to accord landing rights to an airplane which studies had found was capable of meeting the rule that it had applied to all other aircraft for nearly 20 years. Furthermore, the Port Authority is unwilling to finance further studies of the "vibration-rattle index" that it claims is a unique feature of the Concorde operations which requires additional examination. The Port Authority's action represents "a case in which a major technological advance was in imminent danger of being studied into obsolescence," and such a denial of rights by unwarranted official inaction cannot be tolerated. In affirming the lower court's order, the Second Circuit modifies it to the extent of allowing the Port Authority to adopt a new, uniform, and reasonable noise rule in the future if the previous, long-standing rule, which the Concorde can meet, is reasonably deemed inadequate. Concurring in part, Judge Mansfield joins in affirming the lower court order, as modified, but refuses to characterize the Port Authority as acting in bad faith or being derelict in its duty because of the complexity of the task of establishing permissible noise and vibration standards. Continuation of the ban is unjustified, however, because the agency cannot continually refuse to take action to try to reach a solution, which necessarily must include test flights.

For a discussion of the lower court decision see Comment, Indefinite Ban Against Concorde Landings at New York Airport Overturned as Unreasonable, 7 ELR 10195 (Oct. 1977). For a digest of the moving papers in the original suit, see ELR PEND. LIT. 65407.

Counsel are listed at 7 ELR 20447.

KAUFMAN C.J., Joined by Mansfield and Van Graafeiland, JJ.