Following complaints from residents about noise from helicopters operating along the North Shore of Long Island between the New York area and the Hamptons, the Federal Aviation Administration (FAA) by rulemaking mandated a flight corridor one mile off the coast.  The FAA relied on its powers under 49  USC § 40103(b)(2) to restrict the flights in order to “protect property on the ground.”  The Helicopter Association International (HAI), representing the helicopter operators, asked the U.S. Court of Appeals for the District of Columbia Circuit to review, claiming among other things that the FAA’s noise regulatory authority was specifically designated by Congress in other sections of the Transportation Code, and that the general language cited by the FAA applied to low-flying aircraft safety issues—hence the reference to protecting property on the ground, and not to abatement of noise.

HAI lost that argument.  But the court’s reasoning in broadly interpreting the statutory language to include noise regulation is unsettling, as is the decision’s overall interpretation of the breadth of the FAA’s authority to restrict flights based on consumer complaints about noise.  It is even possible that the FAA  was a bit surprised to learn that it had such broad powers.

First, the court took the position that it must, in light of the Supreme Court’s recent City of Arlington, Texas, decision, give deference to the FAA’s own interpretation of its organic statute where the language is ambiguous, so long as that interpretation is “permissible.”  To test that proposition, the court engaged in an exercise in logic to show that the statute could be read to “permissibly” embrace noise abatement within the scope of “protection of property” on the ground, notwithstanding specific noise-related authority granted to the FAA elsewhere in the same law (e.g., aircraft certification noise level standards and regulation of noise near airports).  

Simply put, the court found that noise was a nuisance (what comes readily to mind is barking dogs, or loud music), and that property owners could act to abate such nuisance under the common law.  Therefore, it was reasonable to  assume that Congress had such self-protecting, common-law measures in mind when it enacted the law and, by extension, Congress gave the FAA broad authority to abate noise nuisances in addition to safety-of-flight responsibilities by its choice of the word “protect,” meaning “to shield.”   According to the court, the FAA has the authority to abate nuisances from aircraft noise by restricting and redirecting flights wherever it may choose to do so under the rubric of “protecting” property on the ground.

The court did not seem to care that Congress imposed no apparent limits on this broad authority.  HAI showed that the rulemaking record included a  scientific study commissioned by the FAA regarding the decibel levels created by the overflying helicopters on a day and night basis during the busiest weeks of the year.  That study showed that the level did not exceed 45  decibels, which is substantially below the FAA’s own standard permissible level of 69 decibels for operations near airports, and the FAA, itself, admitted in the rulemaking that 45 decibels is “below levels at which homes are significantly impacted.”   But the court ignored this showing, noting that the 69 decibel airport area level was not, itself, found in any regulation or statute, thusfreeing the FAA to ignore the results of its own study.  Rather, the court found  that there was “substantial evidence” (in the administrative law meaning of the term) for the FAA’s action based solely on 300 comments from residents in the rulemaking record.

What, then, is the court communicating with respect to the scope of the FAA’s authority to limit flights because of noise?  Until Congress or another  reviewing court reconsiders the matter, it seems that the FAA now has a green light to restrict or redirect flights causing virtually any level of noise if enough (or, at least 300) people on the ground complain.  And the flights do  not have to be frequent (in the record, the flights averaged 42.8 per 24-hour day, or less than two per hour on average, in the busiest times of the year).   Nor does the average noise level need to exceed that which, in the FAA’s own view, is considered to “significantly impact” homes. 

In light of this decision, it is a fair guess that the FAA will find itself increasingly importuned on consistency-of-agency-action grounds to do for other homeowners around the country what it did for the folks living on the north shore of Long Island and who, like them, do not much care for the noise (however small) caused by overflying aircraft.  It may be that the FAA will find  itself hard-pressed to distinguish what the court has implicitly found to be a “nuisance” for those living on that stretch of land from the impact of aircraft on those living elsewhere.