It appears that some members of Congress have not given up the fight to bring relief from airport noise impacts to their constituents. Since the beginning of August, 2021, at least eight (8) “Aviation Noise Bills” have been introduced in an attempt to lessen the burden on some communities from aircraft overflight, particularly in the wake of implementation of the Federal Aviation Administration’s (“FAA”) NextGen initiative, which resulted, in many cases, in the consolidation of flight paths, often over communities not previously overflown at all, thus also increasing noise over those and other communities.
Several of these legislative efforts are particularly notable, some for being remarkably ambitious, and others for being wish lists, without a strong chance for passage.
First, H.R. 4929, the REST, or “Restore Everyone’s Sleep Tonight” Act, falls into the second category. It calls for an amendment to the Federal Aviation Act, 49 U.S.C. § 40101, et seq., “to allow airports to impose an access restriction for certain hours” as well as penalties for violations of those restrictions. Unfortunately for its prospects, it flies directly in the face of another section of the FAA Act, § 47524(c)(1)(D), which allows restrictions on hours of operation only with the approval of the airport administration and aircraft operators on the airport, or the Secretary of Transportation. Section 47524 resulted from the passage in 1990 of the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), which was enacted by Congress for the specific purpose of preventing additional “uncoordinated and inconsistent restrictions on aviation that could impede the National Air Transportation System,” § 47521(2). Clearly, legislation allowing individual jurisdictions to impose restrictions on operating hours would contravene that fundamental purpose, inspiring opposition from the same airline and airport interests as sponsored the 1990 legislation, and making passage of such an amendment unlikely.
Similarly, H.R. 4927, the NOTIFIED [Notify Officials to Inform Fully and Impel Educated Decisions] Act sounds good on paper, and, indeed, furthers a noble purpose, i.e., the early engagement of the public and its representatives in discourse concerning “new PBN implementation process flight procedures and for other purposes.” The only problem is that, while sounding useful, it actually duplicates the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., which similarly requires provision of information concerning a planned project to public officials and the public in general at various times during the course of the project.
Interestingly, the final example is of legislation that might actually have a chance for passage. The LEAVE [Low Frequency Energetic Acoustics and Vibrations Exasperate] Act, H.R. 4926, seeks to eliminate the normally preclusive federal preemption of local statutes, allowing an action against an airport in state court for noise or nuisance caused by “ground based noise,” defined in the LEAVE Act, § (d)(2) as “noise emanating from an aircraft operating on the ground predominately [sic] consisting of noise of 200 HZ or below.” Thus, the scope of the proffered legislation does not include noise from aircraft overflight, and, thus, avoids, to some extent, impinging on the presumption of federal preemptive authority over the National Aviation System confirmed in, and maintained by, ANCA.
In summary, the best chance for inspiring passage of these legislative initiatives is the vast extent of NextGen impacts, which affect many members of Congress. It is also true that the possibility of passage is greatly enhanced if the proffered legislation does not step directly on the toes of the national airport and airline interests, which will continue to fight to protect FAA’s preemptive authority over rulemaking. Thus, those legislative efforts that start “small,” and may seem insignificant in the larger scheme of air transportation, may also end up memorialized, perhaps in an amended and strengthened form, in the governing statutory framework.