British Airways Board v. Port Authority of New York and New Jersey

No. 76 Civ. 1276 (S.D.N.Y. August 17, 1977)

On remand from the Second Circuit, 7 ELR 20512, the court decides, after an evidentiary hearing, that the defendant's delay in determining whether existing noise regulations are applicable to the Concorde supersonic jet transport was excessive and unjustified and the consequent banning of the plane from John F. Kennedy (JFK) Airport was discriminatory, arbitrary, unreasonable, and harmful to the nation's domestic and international interests. The Port Authority had the right as an airport proprietor to establish reasonable noise regulations, but its failure to reasonably exercise this proprietary right resulted in its forfeiting its limited authority to regulate operations. The Post Authority's initial ban, imposed ostensibly in order to conduct a study of the environmental effects and to set noise standards, was indefinitely extended for inadequate reasons, and the Concorde is thereby being deprived of a chance to prove itself environmentally acceptable. There is no dearth of noise and vibration data and studies on the Concorde, and the studies commissioned by the Port Authority establish nothing beyond what was adequately considered in the federal government's environmental impact statement prepared in conjunction with allowing the plane to land in the United States. Plaintiffs are thus entitled to an injunction against the ban.

Counsel are listed at 7 ELR 20447, 20512.

[7 ELR 20648]

Pollack, J.:

Decision

This case is before the court on remand for an evidentiary hearing on whether the delay (now 17 months) by the defendant, Port Authority (PA), in determining whether its existing or other noise regulations shall be applicable to the supersonic jet transport Concorde and whether the ban meanwhile of operations thereof at John F. Kennedy International Airport (JFK) are reasonable or constitute unfair discrimination and an undue burden on commerce.

The evidentiary hearing has been held and the matter was duly submitted for decision on the proofs adduced and the arguments and briefs thereon.

Upon due consideration thereof the court concludes that the delay has been excessive and unjustified and that the ban is discriminatory, arbitrary, and reasonable. The Concorde thereby has been deprived of an opportunity to show that it is environmentally acceptable at this international airport. The court's findings thereon follow.

The plaintiffs, British Airways and Air France, are international air carriers who manufacture and operate the Concorde which they desire to place in transatlantic service to and from JFK.

The defendant, Port Authority, is a joint agency of the States of New York and New Jersey and is the lessee and operator of JFK. The individual defendants are the PA commissioners.

On February 4, 1976, pursuant to his statutory powers, 49 U.S.C. § 1354(a), following an exhaustive study and receipt of a final environmental impact statement (EIS) from the Federal Aviation Authority (FAA), the then Secretary of Transportation, Hon. William T. Coleman, Jr. directed amendment by FAA of the operating specifications held by plaintiffs so as to license experimental test operations of Concorde in transatlantic service to and from Dulles International Airport and to and from JFK on a limited basis for a limited period under closely prescribed conditions. See 14 C.F.R. § 129. The operations at Dulles have gone forward accordingly.

On March 11, 1976, following notice from plaintiffs of intended commencement of such operations at JFK, the PA banned SSTs from JFK pending an announced six-month study of the environmental effects of the Concorde including a study of its operating experience at Dulles, DeGaulle, and Heathrow airports. The PA's avowed purpose was to have an opportunity to set noise standards applicaboe to SSTs. It did not and has not done so. Instead, after the remand was ordered, the PA extended its ban indefinitely, ostensibly to do further research and analysis on the subject matter. The scope of the further studies is nebulous and undefined (the consultant was asked to devise a program), and nothing has been undertaken or funded (it is speculated that $500,000 to $1 million would be required therefor).Meanwhile the Concorde is being deprived of a chance to prove itself environmentally acceptable at JFK, even by limited experimental tests.

Air commerce is governed by the Federal Aviation Act of 1958. 49 U.S.C. § 1301 et seq. An express noise abatement provision was added to the Act in 1968, 49 U.S.C. § 1431. Minor amendments were made in 1972 to this noise abatement provision. 49 U.S.C. § 1431 (Supp. III, 1973).

In establishing the national scheme of control of aviation by the statutes cited, Congress indicated that it was reserving to local airport proprietors what the court of appeals has termed as the "limited role" of promulgating reasonable nonarbitrary and nondiscriminatory regulations to establish acceptable noise levels for the airfield and its environs. "Any other conduct by an airport proprietor would frustrate the statutory scheme and unconstitutionally burden the commerce Congress sought to foster." British Airways v. Port Authority, etc., No. 77-7237, p. 4159 at 4176 [7 ELR 20512] (2d Cir. June 14, 1977).

The court of appeals has held herein that Secretary Coleman's order for a trial of the Concorde at JFK did not collide with or preclude the initial noise study and ban by the PA.¹ However, it held also that implicit in the responsibility reserved to the airport [7 ELR 20649] proprietor in the federal scheme "is the assumption that this responsibility will be exercised in a fair, reasonable and non-discriminatory manner." (Ibid. at 4172.)

The federal aviation and noise control statutes and licensing regulations evidence the national character of the instant subject matter and local environmental restrictions are binding on federal licensees only if the local action is reasonable and non-discriminatory. Cf. Douglas v. Seacoast Products, Inc., 45 U.S.L.W. 4488 [7 ELR 20442] (May 23, 1977). "Congress has left room only for local action that advances and is consistent with federal policy; other noncomplementary exercises of local prerogative are forbidden." (British Airways, supra, p. 4176.) The reserved national and international interests of the United States and of private parties licensed thereunder may not be negated or prejudiced by the invalid use of a prior opportunity of the local airport proprietor of an international facility to set noise standards under which aircraft may operate there.

There are no absolute standards by which it may be determined whether a local owner is exercising an allocated, coordinated right of regulation with reasonable dispatch. What is reasonable can be decided only in the light of the general and specific problems facing the owner, and on evaluation of the manner in which those problems are addressed and handled under the circumstances. Deering Milliken, Inc. v. Johnston, 294 F.2d 856, at 867 (4th Cir. 1961)

A review of the reasonableness of the PA's present ban in light of its regulatory privilege and responsibility to control aircraft noise at JFK starts with what was known or available to it when the ban was imposed and of the justifiability of its delay in setting a different noise standard than the one which PA now applies to all jet aircraft.²

III

In 1951 the PA prohibited operation of jet aircraft at JFK without its permission. A consulting firm was thereafter retained to assist PA to establish a noise standard acceptable to the PA for jet aircraft. In 1958, the PA established the noise regulation which presently governs the permissible noise level of planes departing from JFK. This regulation applies to jets as well as to aircraft propelled by other means. Take-offs of a plane are prohibited if its level, as measured at selected monitoring sites around the airport, exceeds 112 perceived noise decibels, (PNdb).

1. What Was Known About Concorde on March 11, 1976

(a) Noise

[A portion of the text of the opinion describing scientific measurements of aircraft soundis omitted — Ed.]

During the latter part of 1974, the airlines conducted noise tests at Toulouse and Casablanca, directed at establishing the noise levels that would result from Concorde operations at JFK. For this purpose, a series of noise abatement takeoffs were conducted at test sites simulating the departure flight tracks from JFK. (The 112 PNdb standard applies only to takeoffs [Ex. 55].) (The tests found an average noise level of below 109 PNdb, and these results were submitted to the Port Authority [Ex. 6].)

In March 1975, the FAA released a draft environmental impact statement (draft EIS) on Concorde. In terms of noise which is perceived by the ear, the draft EIS stated that "[the] resultant noise levels of the Concorde are not substantially higher than those of transoceanic subsonic aircraft such as the older Boeing 707 and McDonnell-Douglas DC-8 types."

By 1975, the airlines were ready to commence commercial operations of the Concorde. They so notified the PA and also applied to the FAA for an amendment of their operations specifications to permit the limited use of Concorde in transatlantic service to JFK and other airports. See 14 C.F.R. § 129.

The PA replied, on May 20, 1975, to the effect that it would consider the ability of Concorde to meet JFK's regulations (presumably the 112 PNdb limit) "including the takeoff procedures as to which we are still awaiting data." "Our Commissioners will act upon your request as promptly as possible after the necessary federal action is taken on the draft Environmental Impact Statement and our own evaluation is completed."

In September 1975, the FAA released the final EIS. The measured Concorde noise levels presented in this document were obtained from Concorde flights to the United States — Dulles and Dallas-Fort Worth; Fairbanks, Alaska; Boston-Logan; and Los Angeles, California — together with noise data provided by the British/French Aviation Authorities.

The EIS set out the single-event noise contours of the Concorde for various modes of operation, and did the same for a number of subsonic jets. These footprints were also superimposed upon a map of JFK to allow an appraisal of what area and population density would be impacted by Concorde noise. Concorde's footprints were larger than those of subsonics.

The EIS also set out the [noise exposure forecast] NEF contours for JFK with and without the anticipated four Concorde flights per day.

In short, the EIS presented a rather complete picture of the noise impact which Concorde flights at JFK could be expected to have; a noise picture complete as to expected noise levels; the geographical extent of those levels and a comparison thereof with those produced by subsonic jets, and the expected population subject to such levels.

(b) Vibrations

In addition to creating audible sound which may be annoying, aircraft noise may create a source of disturbance to persons on the ground in yet another manner; for aircraft noise energy induces vibrations in houses and other structures on the ground, which structural vibration may in turn cause the vibration of persons and objects within the structures.

This phenomenon is not a new one. It has been known about for at least 20 years. Cf. Griggs v. Allegheny County, 369 U.S. 84, 87 (1962).

[A portion of the text of the opinion describing scientific studies of vibration caused by the Concorde is omitted — Ed.]

Based upon this analysis, Secretary Coleman, in his decision of February 4, 1976, concluded that: "the vibrational characteristics of the Concorde are not a serious objection to the commencement of operations." (Ex. 17, at 44.)

In sum, by March 11, 1976, there existed a vast quantity of reference works and studies and known scientific data concerning supersonics, including community response thereto and graphic portrayals thereof. This data pertained to the assessment of supersonic aircraft noise levels, the potential impact upon persons on the ground, the noise and vibration characteristics concerning supersonics and Concorde in particular, and the data to which the assessment techniques had been applied.

Notwithstanding all of the information at hand concerning the Concorde's characteristics and environmental impact, the PA did not make a decision as to the acceptability of Concorde operations into JFK and on what noise standards. Instead, on March 11, 1976, the PA imposed a "temporary" ban on Concorde's use of JFK, still in effect and now extended indefinitely.

The minutes of the PA of March 11, 1976 set out the following:

Although it is claimed that the Concorde would meet the Port Authority's 112 PNdb standard . . . the environmental impact statement and the Secretary's decision raise a number of significant questions concerning the effect of low frequency noise and vibrations generated by the Concorde and the airplane's overall impact on the noise environment in the area surrounding JFK. . . . The unique noise characteristics of the Concorde and the expected aggravated community response to this noise add new and serious dimensions to the present aircraft noise problem, one not necessarily reflected in the Port Authority's current noise standard.

[7 ELR 20650]

It is . . . recommended that the Director of Aviation analyze the Concorde flights at Dulles, Heathrow and DeGaulle Airports and the communities' reaction thereto, and study the results of the Department of Transportation's mandated monitoring program for [a] six month period, and if necessary, request the FAA to modify its program in order to provide the Port Authority with required data, or otherwise secure data, which would enable the Port Authority to apply this information to communities surrounding Kennedy International Airport.

The Board unanimously adopted the following resolution:

RESOLVED, that the Port Authority deny permission to operate any supersonic aircraft . . . at Kennedy international Airport, until after at least six months of operating experience has been made to the Board, and pending further action thereon by the Board;

[T]he Director of Aviation is directed to analyze Concorde flights for a period of six months at Dulles . . . and also at Heathrow and DeGaulle Airports, the community reaction thereto, the results of the Department of Transportation mandated monitoring program at Dulles, and, if necessary, request the FAA to modify such program, or otherwise to secure additional information concerning the Concorde's noise and other environmental characteristics;

[T]he Executive Director . . . is authorized to retain such number of consultants in connection with the foregoing study as he may deem advisable;

[T]he Executive Director and the Director of Aviation . . . are directed, at the end of the foregoing six month program, based upon analysis of noise data and community reaction thereto, to make a recommendation to the Commissioners as to the acceptability of supersonic operations at Kennedy International Airport.

2. Steps Taken by PA after March 11, 1976

(a) March 11, 1976 to March 7, 1977

The studies of the PA, in addition to receipt of data of the Dulles experiment, available on a monthly basis, and studies conducted by NASA on the vibration problem, were supplemented by the work of two consultants. Dr. Karl Kryter was employed on or about May 24, 1976. He is a psychoacoustics expert connected with the Stanford Research Institute and was retained to study Concorde noise and vibrations and their likely impact on JFK. He was to assess the accuracy and valicity of the FAA's EIS on the Concorde. Dr. Aubrey McKennell, a British social psychologist was employed on or about November 8, 1976 to conduct an attitude survey and reaction of the residents in the area of Heathrow toward Concorde flights.

[A portion of the text of the opinion describing the scientific studies carried out by Dr. Kryter is omitted — Ed.]

By March 1977, then, when Dr. Kryter's final report was due, (Tr. 68), and when the PA was to reach a decision concerning landing rights for the Concorde at JFK, (Ex. 39), the only apparent issue remaining for study was the elusive concept of additivity; and the PA had to all intents and purposes declined to embark on such study.

(b) March 7, 1977: New Operating Procedures

Although it was announced that the PA was to render a decision on the Concorde following its meeting of March 10, 1977, (Ex. 37, 39), this decision was again postponed because on March 7, 1977, the airlines requested permission to present proposed new Concorde operating procedures to the PA, procedures designed to reduce the SST's noise impact upon JFK.

The revised procedures entail reduced operating weights, specific runway utilization, and altered aircraft operation, including a new "decelerating approach."

On April 1, 1977, following meetings between airline and PA representatives, the airlines submitted a written report of these new operating procedures to the PA together with an assessment of the predicted resulting noise impact upon JFK.

The report showed that the effect of the new procedures is to shrink the Concorde's single-event footprint areas at JFK to the point where they are comparable to those of a Boeing 707-320B:⁹

The airlines and manufacturers consider the noise data presented herein is an accurate assessment of the proposed Concorde operations and is comparable to that of a 707-320B, particularly as large parts of the contours are over water and there is very little difference in noise exposure over populated areas. . .

The N.E.F. contour . . . shows the negligible effect of the proposed [Concorde] operations on the communities surrounding Kennedy Airport. Any difference due to Concorde are well within the one unit N.E.F. increase which normally requires an E.I.S. to be raised.

As it has been clearly established that Concorde can comply with the current monitoring requirements, and this report establishes that the community effects are acceptable, there seems to be no valid reason for any further delay in the Port Authority decision to allow the start of Concorde commercial operations by British Airways and Air France.

Ex. 25, at 7.

At the request of the PA's director of aviation, the airlines requested FAA confirmation that the aforementioned report is technically valid. By a letter dated April 14, 1977, Charles E. Foster, Director of Environmental Quality of the FAA, responded as follows:

Your letter . . . requested a technical assessment of your Concorde Noise Performance Report which you presented to the Port Authority . . . on April 1.

Your report predicts Concorde noise levels lower than those assumed in the Department's 1975 final environmental impact statement, largely because the report is based on new assumptions about Concorde operational procedures at JFK. The Department's EIS assumed departures with maximum gross takeoff weight, usage of the same runways as most of the subsonic traffic, and standardized lateral attenuation of sideline noise . . .

You are now proposing to take off with approximately 23,000 pounds less fuel than previously assumed. Second, you propose different use of runways from the bulk of air traffic. Third, your technicians have developed a new analysis of ground attenuation specifically related to Concorde. Finally, you propose to use a decelerating approach.

Your analysis is a reasonable prediction of Concorde noise levels if Concordes are operated as you predict which is, of course, subject only to the control of the two carriers operating the Concorde.

In sum, we believe your analysis is technically sound; if the assumptions it is based upon are borne out in practice, the noise reductions you have shown over our EIS data would be realized.

Ex. 27, at pages 1, 2, and 3 from end.

On or about March 8, 1977, Dr. Kryter was apparently assigned a new task: an impact assessment based on the new operating procedures. (Ex. 32.) The record does not disclose what steps Dr. Kryter took to carry out this assessment, nor just when, if ever, he completed it, though it must have been completed by July 7, 1977, since Dr. Kryter's final report was presented to the Board at that time. Of course, the airlines submitted an assessment based on the new procedures on April 1, 1977, and the FAA approved it on April 14, 1977. And according to Mr. Pattarini, Director of Aviation for PA, the only fair way to determine the validity of the airline's assessment would be to run a Concorde into JFK.

Although there was some testimony to the effect that following the submission of the new procedures Dr. Kryter was assigned new tasks relating to the vibration rattle index, both Mr. Pattarini and Dr. Kryter testified that Dr. Kryter was never engaged to conduct research into the additivity question.

[7 ELR 20651]

Finally, with respect to the application of Dr. Kryter's formula — the vibration rattle index — to the new operating procedures, Dr. Kryter testified that he had not received the spectrum for the new decelerated approach, but that he did not expect any great shift in the shape of the spectrum;¹⁰ the record does not disclose whether the formula was applied to those aspects of the new procedures which clearly do not involve any change in the spectrum, or whether it was applied to the decelerated approach on the assumption that no shift in the spectrum would obtain.

On July 7, 1977, following the court of appeals' remand of this case to this court, the Board of Commissioners of the PA met in a special session convened in anticipation of the trial scheduled by this court for July 12, 1977.

At that meeting the Board reviewed the final reports of its two consultants, Dr. McKennell and Dr. Kryter. The Board was also presented with plates indicating the footprint areas of the B707 and the Concorde with respect to JFK, the Concorde's footprint area being based on the proposed new operating procedures of March 1977.

The minutes of that meeting state:

The Director of Aviation reviewed with the Board the preliminary reports thus far received by the General Counsel from the Port Authority's consultants who were retained . . . to aid it in determining the acceptability of Concorde's operations at [JFK]. Based on these reports it appears that the Concorde has unique characteristics including that on landing the Concorde has a high level of low frequency energy. Our reports indicate that the Concorde operations proposed in the [airlines] report of March, 1977 can be expected to result in significant annoyance and complaint activity regarding the noisiness and house vibration effects of Concorde's noise in particular, and an increase in such activity about aircraft noise in general in some communities near JFK. A vibration rattle index is being further studied to quantify this noise factor. However, more research and analysis is needed before such an index can be established.

The Director of Aviation further reported that a final Federal decision on the acceptability of Concorde operations at Dulles Airport should be available by the end of September, 1977.

On the basis of the foregoing, the Executive Director and the Director of Aviation jointly recommended that the Port Authority . . . should continue in force the temporary ban on Concorde operations contained in the Board's action of March 11, 1976. This will give the Board adequate opportunity to fairly evaluate and set noise standards applicable to the Concorde and other supersonic aircraft.

Whereupon, the Board resolved to continue in force the ban on SST operations, including the Concorde, at JFK.

Ex. 49.

Though there is no evidence of this in the record, the PA's brief states that "on July 15, 1977, the Authority's Director of Aviation retained George Kamperman of Kamperman & Associates of Illinois to review and critique SRI's work on vibration and to provide the Authority with a report as soon as possible as to what practical steps can be taken to quantify the vibration problem."

In perspective, the activity of the Port Authority since it announced its proposed study on March 11, 1976 appears as follows.

The PA has been reploughing old ground and doing rereviews of scientific and theoretical data previously available. Its consultants have undertaken tests at Dulles and JFK on the subject of vibration effects of the Concorde and tests at Heathrow on the community responses. The PA has had the advantage of monthly reports from federal authorities on the Concorde operations at Dulles and reports of the studies of NASA on the vibration problem which have not yet yielded an index by which vibration could be measured as additive or unique in terms of the noise spectrum.

The PA has learned or confirmed that the Concorde can comply with the current monitoring requirements at JFK for jet aircraft; the Concorde can meet the 112 PNdb noise regulation. The PA has no evidence that the community effects of the limited test operations of Concorde as federally authorized are rationally unacceptable. It has obtained evidence that a considerable number of householders in Queens have general objections to an international airport, including residents who settled there variously before and after the airport was established. There was no evidence adduced that the experimental test of the Concorde would appreciably and intolerably enhance present conditions. The PA has evidence that vibration is not a noise factor at the low frequency of the Concorde and that any body movement caused is not generally sufficient to be a major source of annoyance. Moreover, it has been shown that nonaircraft events such as doors closing cause more vibration in structures than the Concorde.

Dr. Kryter, after a year on the job, testified about the elusive concept of additivity that "I don't know any more today how to add these things together than we did back then." He did acknowledge however, that data on hand in January 1977 was sufficient to give a rational estimate of a level for noise and a level for vibration. He also stated that tolerability thereof was "a little more pragmatic." When asked what value would an actual run of the Concorde into JFK have on his theoretical studies, the expert's response was: "Well, I think that the actual flights of that type, from a research point of view, would bear out the experience of Dulles. . . . We did not try to assess, we made no studies of whether at JFK the community of people would tend to behave more or differently than an average community, more or less. . . . We were not asked to study it. . . ."

The vibrations due to low frequency components of aircraft were evaluated for the proposed test flights by the federal authorities and Secretary Coleman found that:

These vibrations do not present any danger of structural damage and little possibility of annoyance. . . . The vibrations will be slight, brief and barely perceptible. . . .

Seemingly, the research which Dr. Kryter and Dr. McKennell did undertake for the PA is simply redundant and irrelevant to the establishment of a noise standard different from that presently existing at JFK. They established nothing beyond what was adequately considered and reported on by Secretary Coleman.

Concorde has had more than a year of commercial operations at Dulles; more than six years of test flying; and SSTs have been flown by the military for 20-22 years. Noise and vibration data have been collected and collated from all of these operations. Like most other controversial pioneers, the Concorde and its mode of operation were subject to improvements in their initial form and contemplation. Refinements have been made and reasonably may be expected to be made in the future.

It is unreal for PA to say we are helpless to theoretically quantify the additive effect of the vibration created by Concorde on Concorde's noise — and at the same time to bar use of the airport under the circumstances shown herein under the guise of conducting more studies to resolve the unknown aspects of the variables. Yet, this precisely is what PA espouses to be concerned with.

The conclusion is inescapable from the evidence presented to the court and the court finds that the PA has no intention of taking the responsibility of setting the present or another noise standard applicable to the Concorde. Its failure and excessive delay in doing so are unreasonable, discriminatory and unfair and an impingement on commerce and on the national and international interests of the United States.

The PA has abdicated the limited cooperative authority delegated to it as an airport proprietor and has forfeited its privilege to establish noise regulations for Concorde other than those applicable to jet aircraft at JFK and those embraced in the [7 ELR 20652] amended federal specifications granted to the plaintiffs for purposes of the experimental tests.

The court of appeals made very clear that:

This delegation of authority, in a field otherwise entirely occupied by the federal government, implies no general restriction on federal power.

British Airways, supra, at 4174, n.2.

The ban of Concorde in the circumstances shown from transatlantic service at JFK, is an undue interference with achievement of congressional and national objectives. The airlines are consequently entitled to proceed at JFK under the existing regulation of the PA for jet aircraft and the direction of Secretary Coleman and the license of the FAA pursuant thereto.

The PA resolutions of March 11, 1976 and July 7, 1977 are unlawful and void and the plaintiffs are entitled to the declaration and injunction they seek, in accordance with this decision.

The foregoing constitute the findings and conclusions required by Rule 52(a), FED. R. CIV. P.

A judgment in accordance herewith has been signed and filed.

SO ORDERED.

1. The federal government, in an amicus brief filed in the court of appeals, described the PA delay as a possible abuse of its proprietary power and suggested that it may have unfairly and unreasonably withheld a decision under the guise of studying the matter. The court of appeals declined to pass on that question in advance of its tender to the district court in an adversary, evidentiary hearing.

2. Familiarity with the court of appeals opinion herein is assumed; that contains a good deal of the relevant historical background some of which may be repeated here for the sake of continuity. This court's decision on the original submission hereof, reversed on appeal, is reported at 431 F. Supp. 1216, [7 ELR 20447] (S.D.N.Y. 1977). The holding therein, not accepted on appeal, was that the PA ban irreconcilably conflicted, as matter of law, with federal orders which had preempted the field.

9. Annexed as addenda are graphic portrayals of the noise footprints submitted by the airlines showing that Concorde and Boeing 707-320B are comparable in extent in residential areas. The two graphs show three runways each. [Omitted — Ed.]

10. Although Dr. Kryter asked the PA to ask the airlines to furnish a spectrum of the new decelerated approach, there is no evidence that the PA ever in fact made this request to the airlines.