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

decided as amended.: September 29, 1977.

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



Appeal from an order entered in the United States District Court for the Southern District of New York, Milton Pollack, J., enjoining the Port Authority of New York and New Jersey from further banning Concorde SST operations at John F. Kennedy International Airport. Affirmed as modified.

Kaufman, Chief Judge, Mansfield and Van Graafeiland, Circuit Judges. Mansfield, Circuit Judge, concurring in part.

Author: Kaufman

KAUFMAN, Chief Judge:

Four days after oral argument of this case, the President of the United States decided to permit supersonic transport aircraft service to thirteen American cities under specified restrictions. The President's decision followed sixteen months of demonstration flights at Dulles International Airport in Virginia by the Anglo-French Concorde, during which the noise and vibration levels of the aircraft were carefully monitored. A similar test at New York's John F. Kennedy International Airport, requested by the Secretary of Transportation and which the President "continues to support . . . pending a decision on the final (federal) noise rule," has yet to commence because the airport's proprietor, the Port Authority of New York and New Jersey, refuses to promulgate an acceptable noise rule for supersonic aircraft. Our sole task is to determine the legality of the total ban, which has now endured for more than one and one-half years, imposed by the Port Authority on Concorde flights into Kennedy pending an alleged effort to develop a noise standard.

This case, of course, is no stranger to our court. More than three months ago, after a careful review, we held that the Port Authority possessed the power and bore the responsibility to establish fair, even-handed and nondiscriminatory regulations designed to abate the effect of airplane noise on surrounding communities. British Airways v. Port Authority, 558 F.2d 75 (2d Cir. 1977) ("Concorde I"). We urged in that opinion that the Port Authority conclude its study and fix reasonable noise standards "with dispatch", for it was apparent that procrastination would only exacerbate the economic injury already suffered by the airlines, hinder legitimate efforts to determine the technological and commercial feasibility of supersonic aviation and further strain our foreign relations. We also directed Judge Pollack to conduct an evidentiary hearing to determine whether the Port Authority's then 13 month delay in promulgating noise regulations applicable to supersonic aircraft was so excessive as to constitute unfair discrimination and an undue burden on commerce.

It was our intention, in deciding as we did, to give the Port Authority another opportunity to come to grips with the problems posed by this clash of opposing forces. We hoped it would resolve the strife being generated by this litigation by, at the least, deciding to promulgate a noise rule equally applicable to all planes landing at Kennedy, without the court's intervention on the details of the Rule.

To this day the Port Authority has demonstrated total resistance in responding to the airlines' desire to secure a fair test of their aircraft in New York. Moreover, it is plain from its public statements that the Authority has no intention to resolve this critical issue in the foreseeable future. We cannot countenance such abdication. Accordingly, we will affirm the order of the district court, enjoining further prohibition of Concorde operations at Kennedy Airport until the Port Authority promulgates a reasonable, nonarbitrary and nondiscriminatory noise regulation that all aircraft are afforded an equal opportunity to meet. We have also found it necessary, however, to modify Judge Pollack's order as hereafter indicated.

I. FACTS

The Port Authority's 112 PNdB Noise Rule. The onslaught of civil jet aviation after World War II sorely tested our nation's commitment to make technological progress environmentally acceptable. As the proprietor of two airports in America's most populous city, the Port Authority of New York and New Jersey was thrust at an early date into the forefront of efforts to accommodate the needs of commercial aviation with the understandable desire of airport neighbors to enjoy a reasonable degree of peace and tranquility. Thus, in 1951 the Authority adopted a regulation prohibiting use of any of its facilities without permission. This rule vividly demonstrated the Port Authority's determination to compel the manufacture of quieter aircraft, a desire which was soon underscored by its refusal to accord landing rights to certain jet airplanes whose din was deemed intolerable to surrounding communities.

Both the vital importance of the aviation industry to the national economy and basic considerations of fairness, however, required that even the appearance of whim and caprice be eliminated from critical decisions concerning airport access. The Port Authority accordingly retained a consulting firm in 1955, and charged it with developing a method of meaningful quantification of the relative reactions of individuals to the quite different character of noise produced by existing propeller driven aircraft and newer jet engines. By 1958 it was demonstrated that an ordinary person heard 112 PNdB (perceived noise in decibels) emitted by a jet as substantially equivalent to the sound produced by a DC-6B piston airplane. The Port Authority therefore adopted 112 PNdB, as registered at selected monitoring points, to be the maximum permissible noise limit for all aircraft wishing to use John F. Kennedy International Airport.

The Port Authority's noise standard, of course, was not intended to transform Jamaica Bay and environs into a sylvan glen. By requiring only that the next generation of civil aircraft be no louder than its noisiest predecessor, the Authority sought a standard which it believed would prevent further deterioration of the area surrounding JFK. The aircraft industry was assured that any plane able to meet the standard, either through quieter engines or noise abating operating procedures, would be welcome in New York. In fact, until the Port Authority imposed the ban on supersonic aircraft that is challenged in the instant suit, not a single jet airplane that met the longstanding 112 PNdB rule was denied access to Kennedy Airport.

SST Noise. Since New York is this country's most important international gateway, it is not surprising that the manufacturers of the Concorde, the world's first supersonic commercial passenger airplane, communicated their desire to use JFK to the Port Authority more than seven years ago. At that time John R. Wiley, the Authority's Director of Aviation, warned that SSTs would "be required to meet the same noise levels as will be demanded of subsonic aircraft." In fact, those who built the Concorde were well aware that its noise posed a serious objection to American acceptance of the plane. Accordingly, the French and British spent nearly $100 million on noise abatement alone.

Before requesting specific permission to use Kennedy Airport, the owners of Concorde compiled reams of data concerning the likely effects of its noise on airport neighbors. In a series of tests conducted in late 1974 at Casablanca, Morocco and Toulouse, France, the manufacturers of the aircraft proved - in conditions closely simulating those at JFK - that the Concorde could consistently meet a 109 PNdB standard. Indeed, it was reported that the "Boeing 707 under [its] flight path [had] a distinctly greater spectral content in the more annoying frequency range bands, compared with Concorde." Moreover, the incremental impact of adding several Concorde flights to an already busy airport was found to be minimal. And further testing in January, 1976 demonstrated that even fewer individuals than originally anticipated would be adversely affected by the introduction of Concorde at JFK.

Federal Action. In late summer 1975 British Airways and Air France, confident of their aircraft's ability to satisfy applicable regulations, applied to the Federal Aviation Administration for permission to use the SST in transatlantic service to the United States. A thorough Environmental Impact Statement was prepared, and formed the basis for Secretary of Transportation William T. Coleman's careful and comprehensive decision of February 4, 1976, to order provisional amendment of the airlines' operations specifications to permit each carrier to conduct up to two flights daily into Kennedy and one per day into Dulles International Airport. This grant was accompanied by stringent conditions. For example, the Concorde could not travel at supersonic speeds over land areas; it had to observe a 10 P.M. to 7 A.M. curfew; and the aircraft was directed to abide by strict noise abatement procedures as prescribed by the F.A.A. In addition, these amendments were not to be effective beyond sixteen months from the commencement of commercial service. Finally, Secretary Coleman explicitly provided that all flights would cease immediately "in the event of an emergency deemed harmful to the health, welfare or safety of the American people."

Before rendering his decision, which we have termed "the very paragon of a clear and considered administrative action," Concorde I, supra at 80, Secretary Coleman painstakingly discussed both the traditionally recognized component of Concorde noise (addressed by the Port Authority's 112 PNdB rule) and its purportedly unique capacity to emit substantial low frequency vibrations. Based on his review of voluminous data, Coleman concluded that the noise of a Concorde at its source was indeed louder than that produced by subsonic aircraft under similar conditions. But this revelation was only the beginning of analysis, for relevant regulations are carefully calculated to reflect the relative subjective impact of aircraft noise on individuals living in the vicinity of airports. In fact, to focus upon the absolute energy emission levels of Concorde's engines without considering the mitigating effect of noise abatement procedures - as the amicus curiae does in this case - is as empty an exercise as inquiring of a Kantian philosopher whether a tree falling in a deserted forest can be "heard."

Coleman thus turned for guidance to a federally prepared Noise Exposure Forecast (NEF), which described the cumulative effect of all aircraft operating at JFK within the course of 24 hours. This index, which included corrections for the discrete whine of certain jet aircraft and penalized flights scheduled during normal sleeping hours, revealed that the addition of eight Concorde flights a day would produce only a negligible impact on the communities surrounding JFK. More specifically, the descriptor indicated that the number of people residing within the NEF 30 contour - a term of art applying to those instances in which certain individuals "may complain" - would increase by only 0.4%, from 485,000 to 487,000; and within the NEF 40 zone - in which "repeated vigorous" complaints would be forthcoming - from 112,000 to 114,000, or by 2%. Overall noise in each contour would increase by about 0.3%. Although this meant that a greater number of people would be subjected to a somewhat noisier environment, the Secretary cogently noted that an identical effect would be created (without amending any operating certificates) simply by the addition of "a few extra flights by . . . B-707's or DC-8's."

Secretary Coleman also recognized that the sound produced by the Concorde's engines is of a relatively low pitch and thus qualitatively different from that emitted by subsonic aircraft. The plane's deep rumble, he said, would cause minor structural shaking; and the fact that its sound readily penetrates buildings would result in the rattling of dishes and other non-stationary objects within homes. Coleman concluded, however, after a comprehensive survey of the evidence, that "these vibrations do not present any danger of structural damage and little possibility of annoyance." In fact, under the strictly limited regime contemplated in his order, the Secretary was confident that the resulting irritation would be slight, and the Concorde induced vibrations "brief and barely perceptible."

In the end, Coleman recognized that a testing period of actual Concorde operations was an essential prelude both to the final decision on the aircraft's acceptability in the United States and to the determination whether public hostility in America's premier commercial center made the development of a second, quieter generation of SSTs economically unfeasible. Raw data alone cannot forecast community response to SSTs, for every individual reacts differently to noise. The sixteen-month demonstration ordered by Coleman was thus a crucible in which to assay subjective attitudes of airport neighbors and our willingness to fairly assess the issue of supersonic transportation. In the words of ...


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