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British Airways Board and Compagnie Nationale Air France v. Port Authority

June 14, 1977

BRITISH AIRWAYS BOARD AND COMPAGNIE NATIONALE AIR FRANCE, PLAINTIFFS-APPELLEES,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, WILLIAM J. RONAN, W. PAUL STILLMAN, JAMES G. HELLMUTH, VICTOR R. YANITELLY, MILTON A. GILBERT, JAMES C. KELLOGG, III, ALAN SAGNER, JOSEPH F. CULLMAN, III, ET AL., DEFENDANTS-APPELLANTS



Appeal from an order entered in the United States District Court for the Southern District of New York, Milton Pollack, J., granting summary judgment to British Airways and Air France, operators of the supersonic transport Concorde, enjoining The Port Authority of New York and New Jersey from further banning operations at John F. Kennedy International Airport. Reversed and remanded.

Kaufman, Chief Judge, Mansfield and Van Graafeiland, Circuit Judges.

Author: Kaufman

KAUFMAN, Chief Judge:

Fifty years ago - almost to the day from the argument in this case - Charles Lindbergh traversed the Atlantic to Paris aboard the Spirit of St. Louis in an astonishing 33 1/2 hours, an achievement that was hailed around the world. Today, as the result of an expensive joint venture, France and Britain offer a return voyage of only one-tenth that duration. Unfortunately, instead of engendering closer ties, the Ango-French Concorde has thrown traditionally staunch allies into legal warfare over the future of supersonic aviation. As in so many cases in which a political solution is preferable, the parties find themselves in a court of law.

Our task is to review the judgment of the district court dissolving the Port Authority's temporary ban on SST flights at John F. Kennedy International Airport. The court below found that the Secretary of Transportation, in ordering a 16 month operational test of the Concorde, had preempted the Authority's power to abate, through its temporary ban, the noise generated by the Concorde during landings and take-offs. We disagree, and believe that Congress provided for the promulgation by airport proprietors of reasonable regulations to establish acceptable noise levels for the airfield and its environs. Accordingly, we reverse. We also remand for an evidentiary hearing on the reasonableness of the Port Authority's 13 month ban in accordance with the views expressed in this opinion.

I.

A brief summary of the facts is indispensable for an understanding of the legal issues before us.

The Port Authority's tradition of noise regulation. The rapid development of commercial aviation after the Second World War engendered, for the first time, an urgent need to protect neighbors of thriving metropolitan airports from the deafening noise of overflying aircraft. Moreover, as experience with the still greater din of military jets accumulated, far-sighted community planners began to anticipate the need to accommodate commercial jet aviation with the legitimate yearning of city dwellers for a livable environment.

The Port Authority of New York and New Jersey, operator of New York's Kennedy International Airport, was one of the first to recognize the environmental challenge of civil jet aviation. In 1951, the Authority adopted a regulation, still in force, prohibiting any jet from landing or taking off without permission at any facility operated by the Authority. The purpose of this regulation was to make it clear to the developers of the first commercial jets that elimination of excessive noise was as important an element of design as safety or speed. This message was driven home in the early 1950s, when an initial model of the British-made DeHavilland Comet was denied permission to land at New York International Airport because its noise level was deemed intolerable to the surrounding communities. Shortly thereafter the Port Authority similarly denied landing permission to Boeing's prototype jet transport.

By 1955, the Port Authority recognized that the imminent jet age would require more than an ad hoc program of noise control. Accordingly, a consulting firm was retained and charged with evolving a measure of noise that would reflect subjective reactions to the irritating high-pitched whine of jet airplanes. Careful study revealed that an ordinary person heard 112 PNdB (perceived noise in decibels) emitted by a jet as substantially equivalent to the sound produced by the standard DC-6B propeller aircraft. This single-event noise level, as registered at selected sites, was adopted as the permissible maximum. After thorough flight-testing, and development of take-off and landing procedures that substantially reduced noise, the Comet and the Boeing 707 were accorded landing rights. Thereafter, until the Port Authority's resolution of March 11, 1976, which banned the supersonic transport "Concorde" from Kennedy Airport and spawned this litigation, the 112 PNdB standard was uniformly applied to all aircraft seeking landing permission at Kennedy.

The Port Authority justifiably takes pride in its tradition of noise regulation. Over the years it has consistently welcomed each advance in commercial aviation, provided progress was not achieved by sacrificing the well-being of the hundreds of thousands of people who reside in the vicinity of Kennedy Airport. The Authority's firmness, coupled with the implicit promise that advanced aircraft would be permitted to land if they satisfied reasonable noise regulations, has undoubtedly contributed greatly over the years to the development of ever-quieter jet planes.

The Concorde. Britain and France decided in 1962 to embark upon a dramatic joint venture: the development of a supersonic jet airliner, the Concorde. This ambitious enterprise was more than an economic investment. The Concorde was the response of two proud nations to the growing American domination of the international aircraft market and a symbol of the era of European cooperation that then appeared at its zenith.

The developers of the Concorde were well aware of the importance of minimizing noise. Their hope was to develop an engine that would produce no more sound than the noisiest of the subsonic planes. Accomplishment of this goal would be a formidable technological achievement, because the engines of the Concorde required an enormous potential thrust in order to drive the aircraft at speeds faster than sound. The English and French spent more than $100 million just to moderate the noise of the Concorde, and over a period of 13 years a total of almost $3 billion has been expended on the plane's development.

The United Kingdom and France have thus staked immense capital and even greater national pride on the success of the Concorde. This success, our allies maintain, must remain an idle dream unless the supersonic airliner is permitted to land in New York, the principal gateway between Europe and the United States. The operators of the Concorde urge that their plane can meet the 112 PNdB standard that the Port Authority applies to other aircraft and desire merely to prove, by actual experience, that the airliner will not cause an intolerable deterioration in the noise environment around Kennedy Airport.

The Coleman decision. The Concorde was ready to commence commercial operations in 1975. In late summer British Airways and Air France applied to the Federal Aviation Administration for an amendment of their operations specifications to permit the use of the SST in transatlantic service to the United States. See 14 C.F.R. ยง 129. Approval of the airlines' applications could hardly have been entrusted to the routine processes of the FAA: the potential promise of supersonic jet aviation, the special importance of the Concorde to two of America's closest allies, and the serious environmental questions raised by the aircraft, all required a decision by the cabinet officer responsible for transportation, on the basis of a carefully prepared environmental impact statement. Secretary William T. Coleman's decision is the very paragon of a clear and considered administrative action.

Secretary Coleman directed the Federal Aviation Administration to order provisional amendment of the airlines' operations specifications to permit each carrier to conduct up to two Concorde flights daily into John F. Kennedy International Airport and one per day into Dulles International Airport. These amendments were not to be effective beyond 16 months from the commencement of commercial service and could be revoked immediately in the event of an emergency or at any time on four months notice. Secretary Coleman, in addition, provided a detailed scheme for regulation of the Concorde's noise: the plane was required to observe a 10 p.m. to 7 a.m. curfew and to abide by noise abatement ...


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