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BRITISH AIRWAYS BD. v. PORT AUTH. OF NEW YORK & NE

August 17, 1977

BRITISH AIRWAYS BOARD and COMPAGNIE NATIONALE AIR FRANCE, Plaintiffs
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; William J. Ronan; W. Paul Stillman; James G. Hellmuth; Victor R. Yanitelli; Milton A. Gilbert; James C. Kellogg, III; Alan Sagner; Joseph F. Cullman, III; Jane Engelhardt; Lewis L. Glucksman; Robert F. Wagner; Commissioners of the Port Authority of New York and New Jersey, and Howard Schulman, Commissioner Designate of the Port Authority of New York and New Jersey, Defendants



The opinion of the court was delivered by: POLLACK

Decision

 POLLACK, District Judge:

 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 unreasonable. 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.

 I.

 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 P.A. 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 Administration (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 applicable 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 $1,000,000 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.

 II.

 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, et ano. v. The Port Authority, etc., et al., 558 F.2d 75, 84 (2d Cir. 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. *fn1" However, it held also that implicit in the responsibility reserved to the airport proprietor in the federal scheme "is the assumption that this responsibility will be exercised in a fair, reasonable and nondiscriminatory manner." (Ibid. at 82).

 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 nondiscriminatory. Cf. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S. Ct. 1740, 52 L. Ed. 2d 304 (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, at 84-85). 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, 295 F.2d 856, 867 (4th Cir. 1961).

 A review of the reasonableness of the P.A.'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 P.A. now applies to all jet aircraft. *fn2"

 III.

 In 1951, the P.A. prohibited operation of jet aircraft at JFK without its permission. A consulting firm was thereafter retained to assist P.A. to establish a noise standard acceptable to the P.A. for jet aircraft. In 1958, the P.A. 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 PNdb (perceived noise decibels).

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

 (a) Noise

 When an aircraft travels, it sends energy through the air. This energy ("sound") *fn3" has two basic physical characteristics, frequency and intensity. It is possible to represent a given sound at a specific place and time by setting out its frequency components and the intensity of each of these components. Such a representation is termed the "spectrum" of the sound.

 Human reaction to sound -- the perceived loudness and noisiness of a particular sound -- is not solely a function of the physical intensity of the sound. Rather, this perception is affected by such factors as the frequency components and duration of the sound stimulus. For instance, high frequency sounds are generally perceived to be more noisy than low frequency sounds of the same physical intensity or energy level.

 Psychoacoustics is that branch of science which examines the relationship between the physical characteristics of sound energy and the psychological reaction of persons subjected thereto. The delineation of this relationship has made possible the development of psychoacoustic noise measures -- units of measurement which reflect the human perception of sound. If, for example, people hear a sound with a frequency of 500 hertz as being more noisy than an equally intense sound of 250 hertz, then a psychoacoustic measure of noisiness would apply differential weightings to the physical intensities of sounds at these two frequencies, in order to equate them in terms of perceived noisiness.

 The PNdb unit employed in the P.A.'s present noise standard is just such a unit, one designed to penalize the high-pitched whine of subsonic jets, a whine found to be irritating to persons on the ground. The 112 PNdb standard was selected because studies showed that an ordinary person perceives 112 PNdb emitted by a subsonic jet as equivalent, in annoyance, to the sound emitted by a piston-engined aircraft. A similar, but more recent measuring unit of this sort is the EPNdb (effective perceived noise decibel) used in the federal aircraft certification noise standards. See 14 C.F.R. Part 36. The EPNdb was established as "the best representation of human reaction to aircraft noise," and factors into the calculation both frequency and time-duration weightings. *fn4"

 These single-event noise measuring units -- the PNdb and the EPNdb -- may be employed to describe the noise impact of a single aircraft operation in two related manners. First, selected points on the ground may be used as measuring points, and aircraft may be compared based on their noise levels as recorded at these measuring points. This is the system used by the P.A. Measuring points have been selected at various places around the airport, and the criterion is whether an aircraft produces sound which exceeds 112 PNdb at these locations.

 However, different aircraft have different sound spectra, i.e., different ratios of high to low frequency sound components. Moreover, low frequency sound is propagated through the atmosphere more readily than is high frequency sound (i.e., with less attenuation). Thus, if two aircraft have different spectra, then the difference in their sound levels will not be the same at different locations on the ground. *fn5" While the noise level of both will decrease with increasing distance from the source, the noise level of the plane with the higher proportion of low frequency noise will decrease somewhat less rapidly.

 For this and other reasons, a second system for assessing the impact of a single-event noise exposure has been developed, the "single-event noise contour." (sometimes referred to as "footprint"). Under this system, contours are plotted upon a map of the area surrounding an airport, each contour consisting of geographic points within the area which will receive a particular noise level -- measured in PNdb or EPNdb -- as a result of a particular aircraft operation into that airport. Unlike single monitoring points, then, single-event noise contours allow for the comparison of the noise levels of different aircraft on a geographic basis:

 
"The single-event noise contours, overlaid on maps of the affected areas, yield information about areas of land and numbers of people who will be subjected to noise levels of particular intensities during a single takeoff or landing. This descriptor allows convenient comparison of the geographical extent of the noise impact of different aircraft, such as the Concorde and the Boeing 707, by overlaying the contour of one on the contour of another." Coleman Decision, at 44.

 In addition to the single-event noise measuring concepts outlined above, there exist various techniques for measuring cumulative noise exposure. Whereas single-event noise measuring units describe the noise level for a given takeoff or landing, cumulative noise exposure techniques measure the total aircraft noise arriving at a particular geographic point over a 24 hour period. These cumulative noise exposure measurement techniques are useful in ascertaining the incremental noise impact which the addition of a given sound stimulus -- e.g., 4 Concorde flights a day -- will have upon an already noisy area.

 One such cumulative noise exposure measuring unit is the Noise Exposure Forecast ("NEF"); *fn6" the NEF descriptor includes corrections for irritating whines or discrete frequencies in aircraft noise signatures, and for noises occurring during those periods of the day, such as the late evening, when loud noises are more disturbing. As is the case with single-event noise measurements, geographic points subjected to equal NEF levels may be joined together to create NEF contours or footprints; comparison of the NEF contours obtaining before and after a particular sound stimulus is added to the environment -- e.g., Kennedy Airport's NEF contours with and without 4 Concorde flights per day -- allows for the assessment of the incremental noise impact of that stimulus upon the environment being considered.

 The military have been operating supersonic jet aircraft in the United States and elsewhere for upwards of 20 years. The idiosyncrasies of the aircraft have been well known and described in extensive reference works and studies on the subject. In 1962, Britain and France decided to develop a supersonic jet aircraft for commercial transportation, the Concorde. This country decided not to undertake development of such a plane. Development proceeded slowly and was very expensive and took many years.

 A government "Information Brief" dated December 11, 1973 pertaining to the noise impact of the Concorde was publicly released on July 1, 1974 by the Environmental Defense Fund which stated:

 
"The noise impact from the Concorde is created by two basic considerations -- the inherently high noise levels generated by the aircraft and the low frequency spectral content of that noise.
 
* * *
 
Based on available information provided by the manufacturers, the chances are about 50-50 that the Concorde can indeed "beat the meter," and comply with the long-standing noise-level regulation at JFK airport."

 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. [Exh. 55]). (The tests found an average noise level of below 109 PNdb, and these results were submitted to the Port Authority. [Exh. 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 P.A. 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 P.A. 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 ...


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