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HomeMy WebLinkAboutC-2184 - Legal Services for John Wayne Airportr Ili a PROPOSAL FOR OPPOSITION TO INCREASED NOISE AT JOHN WAYNE AIRPORT Prepared for: The City Council of Newport Beach, California EM Norton Cutler Dykema, Gossett, Spencer, Goodnow & Trigg Ir :ECEIVED Wr AR MAY 12 080 ► ary OF G PROPOSAL FOR OPPOSITION TO INCREASED NOISE AT JOHN WAYNE AIRPORT This memorandum discusses some preliminary recommenda- tions on how the City of Newport Beach might protect its citizens from increased aircraft noise as a result of opera- tions at John Wayne Airport. You have asked us to address three problems: (1) the decisions of the CAB certifying numerous additional air carriers to serve John Wayne; (2) an FAA letter to the Chairman of the Orange County Board of Super- visors, the operator of John Wayne, urging him to open up John Wayne Airport to air carriers other than Air California and Air West and eliminate many of the current noise restrictions; and (3) a longer range problem of how to prevent what your City Attorney views as the risk that the pressure from additional carriers seeking to serve the rapidly growing area around the airport will persuade the County to lift the current noise control limits whatever the outcome of the current FAA pro- ceedings. SUMMARY OF RECOMMENDATIONS We would suggest the following in respect of the fore- going problems. (1) In response to the CAB certifications we recommend that you do nothing because the chances of ultimately prevent- ing the certification of additional carriers are very slim. (2) To oppose the FAA actions we recommend that you intervene in the lawsuit already filed by Air California to prevent the FAA from pursuing its present tactics and that in combination with Orange County or alone you seek to facilitate a settlement of the County's disputes with the FAA whereby the County opens John Wayne to other air carriers but retains the rest of the current noise restrictions. • -2- (3) We advise three separate tactics to solve your long- range problem. (a) Persuade Orange County that the risk of damage suits resulting from increased commercial flight activity at John Wayne outweighs the benefits to the County of increased commercial air service; (b) Petition the FAA for a rulemaking that would prevent any increase in commercial operations at an airport unless the airport could prove that the increase would not result in increases in the noise level to an extent that would damage the surrounding community; (c) Seek federal legis- lation similar to the above proposed rule. FACTUAL BACKGROUND As we have gathered from our conversations with Mayor Heather and City Attorney Coffin and the documents supplied to us, the factual background of the noise problem at John Wayne Airport is as follows. John Wayne lies at the northeast edge of the City of Newport Beach and is operated by the Board of Supervisors of Orange County. The runways are aligned so that takeoffs into prevailing winds result in the aircraft flying over upper Newport Bay at very low altitudes. To con- trol flight pattern noise, Orange County has essentially instituted the following restrictions on operation of aircraft at John Wayne. It has refused to certify any new commercial carriers making Air California, Air West and Golden West (a non -jet commuter carrier) the only commercial carriers serving John Wayne. Only 40 turbojet commercial flights may serve the airport daily. No jet takeoffs or landings may occur between the hours of 11 p.m. and 7 a.m. except those made by.the Cessna Citation and other "quiet" jets (no commercial jetliners currently meet these specifications). No commercial flights shall serve cities farther away than 500 miles. The County has refused to apply for federal funds to increase the runway strength so that jet aircraft heavier than the DC -9 and Boeing 737 could serve John Wayne. • -3- The FAA has conducted hearings in Orange County on the subject of noise control at John Wayne which hearings resulted in a fact - finding report and, in due course, a letter from the FAA to the Chairman of the Board of Supervisors alleging that all of the John Wayne noise restrictions impermissibly discrim- inate against new entrants. In its letter the FAA threatens to seek contractual, injunctive, and civil penalties if the County does not correct the situation. The FAA has urged that, at a minimum there be adopted by Orange County a system of a "slot bidding" for the 40 available flights if the flight restriction is maintained. In response to the FAA's threats, the staff of the County Board of Supervisors has recommended in a lengthy memo- randum that the County end the exclusive rights of Air California, Air West and Golden West but essentially keep all the other present restrictions. Air California has filed a lawsuit challenging the pro- priety of the FAA's informal procedures leading to the FAA's threats. In addition, Air California is seeking a declaratory judgment as to the validity of the existing noise regulations, a writ to force the FAA to conduct a full - fledged investigation into the problem and a preliminary injunction to prevent the FAA from pursuing its current tactics. Recently the CAB certified four additional carriers to serve John Wayne over the objection of Newport that require- ments for an environmental impact statement had not been met. LEGAL BACKGROUND The recent Conoorde Cases in New York have reaffirmed the division of authority between the local airport operators and the federal government in controlling air transportation. Basically the FAA is in charge in the air and the local airport operator controls on the ground. Thus local airport operators ! -4- ! may enact reasonable nondiscriminatory noise control regulations by limiting the number of takeoffs and landings and the types and sizes of permissible aircraft but neither airport operators nor the surrounding communities may Cictate the flight patterns or noise levels once planes are airborne. The FAA clearly has statutory power to make noise regulations governing the operation of aircraft. FAA has used• this power in respect of engine noise. However, FAA to date has not exercised its authority to regulate the frequency or timing of such noise in airport environs. P7ere the FAA to exercise such authority, the FAA effectively would preempt liberalization of frequency rules by local airport operators. The FAA also can control local airports by attaching conditions to grants of federal money to airports through the Federal -aid to Airports (ADAP) program and to the issuance and maintenance of operating certificates for airports serving CAB licensed carriers. OPPOSING THE CAB ACTION The CAB has granted entry to the Orange Countv market to four additional carriers. The City has filed its notice of appeal on the grounds that no Environmental Impact Statement ( "EIS ") was ever filed. The CAB's own rules, 14 CFR part 312 appear to require the filing of such a statement, to wit: § 312.9 Actions with a potential effect on the environment. (a) The following are the types of Federal actions which require the preparation of an environmental evaluation: (1) Licensing proceedings under sections 401 or 402 of the Act. Issuing new certificates must involve licensing proceedings under § 401 of the Act. Despite the excellent chances for success in the appeal, we recommend against your allocating sig- nificant resources to the appeal because in all likelihood it will only delay the inevitable as the CAB in due course would file a proper EIS. • -5- OPPOSING THE FAA "ORDER" The FAA letter is clearly not an order but rather a threat to force Orange County either to accede to the FAA's suggestions or suffer a loss of the John Wayne operating certif- icate, federal funding or civil penalties for violation of the Federal Aviation Act. We recommend that the city join the Air California lawsuit and file affidavits as to the irreparable injury that would result from changes in the existing rules at j John Wayne. We understand that such evidence would demonstrate that any lifting of the curfew, the limit on number of flights or the distance limitations will cause increased noise which will result in irreparable injury to the citizens and wildlife of Newport Beach. Numerous affidavits to this effect should help in obtaining a preliminary injunction to prevent the FAA from pursuing its current tactics pending the outcome of the litigation. In addition, Air California is seeking to legitimize what appears to us to be in fact the most legally objectionable part of the current rules -- the exclusion of all new air carriers from John Wavne. The exclusion is plainly discrimina- tory and prohibited by the Federal Aviation Act and any court should and probably would allow the FAA to prevent such conduct regardless of the propriety of related EIS or other peripheral matters. As we understand it, eliminating exclusive rights might not be objectionable to Newport as long as the County maintains the curfew, the 500 mile limit, and the 40 flight per day limit. These restrictions do not discriminate if scientific evidence establishes they are necessary to prevent objectionable increases in the noise level. Indeed the FAA Hearing Officer's report appears to find the foregoing restrictions to be a more suitable approach to noise control than the banning of new • -6- carriers. Newport can urge the court to prevent the FAA from eliminating the other reasonable nondiscriminatory restrictions on airport use with some degree of optimism. Our optimism tends to be supported by indications you have received that the FAA might even settle with Orange County on such a basis. The FAA may perceive such a settlement as beneficial because it would eliminate all the parts of Air California's lawsuit which allege that the FAA is forcing a "major change" in the surrounding environment and has failed to file the required EIS. Adding a few carriers while maintaining the existing limits would cause only minor changes that would not require an EIS. In addition if exclusive rights become the only issue, the court may view the Air California lawsuit as a thinly disguised attempt to preserve Air California and Air West's duopoly at John Wayne and not a sympathetic effort to save the people of Newport Beach from excessive aircraft noise. Since the FAA has not yet taken any specific actions, the court may dismiss the Air California suit as premature. In such case, Newport could oppose whatever "contractual, civil, and injunctive relief" the FAA might seek in carrying out its threats. However, if the County were to accept the FAA sug- gestions to open the airport to new carriers without maintain- ing the 40 flight restriction, the curfew, and so forth, there might be no proceeding in which Newport could intervene. It appears to be highly unlikely that the County will accede to the FAA threats because the Orange County staff memo of April 29, 1980 urges essentially the same strategy we have outlined above. In short, Newport can raise some attractive nondiscrim- inatory arguments which are not available to Air California. These arguments can be raised in opposition to an FAA lawsuit or in an administrative proceeding against John Wayne or in an appeal of an FAA order. Participation in any of these • -7_ • proceedings offers an opportunity for substantive relief instead of merely delaying the CAB's order by requiring the filing of an environmental impact statement. LONG TERM SOLUTIONS A. Orange County Controls Although the New York Concorde Cases allow Orange County to enact reasonable noise restrictions in its role as airport proprietor while the planes are on the ground, there is always the threat that the County will relax its standards. The likely increase in demand for air travel in the County will lead to additional pressure on the County to increase the number of commercial jet flights permitted at John Wayne and the result- ing increases in noise over Newport. The only existing deterrent to increases in commercial jet flights is the threat of damage suits against the County by the citizens of Newport Beach. The Mayor and the City Attorney have informed us that you believe that ultimately the County will decide that the benefits of increases in commercial jet air traffic at John Wayne outweigh the damage exposure of the County and relax the current noise restrictions. B. FAA Controls The continuing peril of a change in County policy speaks for a more reliable solution. One such strategy to prevent any future increase in noise level may be for Newport to petition the FAA for a rulemaking that would prevent any increase by an airport operator in the amount of noise resulting from takeoffs, landings, and other operation of aircraft unless such increases satisfy various stringent requirements assuring that no harmful increases in the noise level in the affected area would occur. The administrator of the FAA has power to promulgate noise standards by virtue of 49 U.S.C. § 1431, to wit: "(b)(1) In order to afford present and future relief and protection to the public health and welfare from aircraft noise . . . the [Adminis- trator] . after consultation with the Secretary of Transportation and with [Environmental Protection Agency] . . . shall prescribe and amend standards for the measurement of aircraft noise . . . and shall prescribe and amend such regulation as the FAA may find necessary to provide for the control and abatement of aircraft noise . . . including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this subchapter." While the Administrator heretofore has limited the exer- cise of this statutory power to promulgation of engine design standards, there is judicial support for the broader plain reading of the statute. For example; 11[1,2] It seems clear from 9 1431 that Congress intended that the Administrator promulgate noise control regulations which would establish standards not only for aircraft design but also their _ope_raatioon, and that a failure to comply with those Stan ard� s should be a factor to be considered by the Adminis- trator in issuing or revoking any of the above -noted certificates." Corace v. Butterfield, 387 F. Supp. 446, 447 (E.D. N.Y. 1975). Thus, the FAA has the power to issue noise regulations that would control the number and type of takeoffs at John Wayne by controlling operations around the airport. In addi- tion it could also impose conditions upon the certificates granted to John Wayne or any monetary grants made to the air- port. obviously, the difficulty would be in persuading the agency to initiate such a rulemaking and to adopt the necessary regulations. The FAA letter indicates that FAA is not inclined to permit local citizens to stand in the way of increasing the number of carriers at a formerly small community airport. There is, however, room for negotiation with the agency, since Newport appears to have no objection to the entry of additional carriers as long as the 40 flight per day limit is maintained. For example, Newport could support the addition of several non - turbojet commuter carriers that might fly to Ontario and LAX to join long haul flights and reduce the pressure on John Wayne. -9- • Newport could trade its support for the opening of John Wayne to other carriers for FAA support on the noise issue. Indeed the FAA could even avoid a rulemaking and condition its funding of a runway improvement plan or the renewal of the airport's certificate on the maintenance of the 40 flight per day limit or similar restrictions which prevent any increase in the noise footprint around John Wayne, as part of a settlement of the current disagreement as discussed above. A forthcoming proposed rulemaking on noise control for National Airport (which is operated by the FAA) appears to indicate that the FAA favors reasonable noise limits as long as all carriers have access to the limited number of flights permitted or other measures are taken to assure the maximum number of flights possible within specified noise limits. Indeed Newport might want to attempt to intervene in the National Airport rulemaking to have it expanded to all airpots. It is our belief that the result would be appealing to Newport. The statute empowering the FAA to make noise reduction rules also provides that if the EPA suggests a rule to the FAA, the FAA must hold hearings on the proposed rule and adopt it or issue a detailed explanation why it refuses to adopt the proposed rule. If the FAA refuses to adopt an EPA proposed rule, the EPA can require even more detailed responses to par- ticular concerns raised by the EPA including the filing of an EIS by the FAA. Thus obtaining EPA backing for a proposed noise rulemaking would make the FAA hold hearings and improve the chances of adoption of a reasonable rule. To suceed administratively as well as on the legislative front (discussed below), the City should seek out other similarly situated cities and citizens groups that oppose increases in noise in the vicinities of their local airports. The Mayor's proposed California coalition on this problem is a step in the , -10- 0 right direction. No agency is likely to adopt a special rule for the benefit of an extremely small group of citizens. Before seeking a federal solution, the City should show that a number of small cities are threatened with expansion of formerly satellite airports. If any of these cities, like Newport, are not proprietors of the airports, then all can assert the need for federal regulation since they cannot control noise through local ordinances which have been found unconstitutional. C. Federal Legislative Remedies If Newport commences a rulemaking which appears not to be succeeding but obtains the broadly based support discussed above, the City can then attempt to persuade Congress that this is a nationwide problem requiring a legislative solution and can seek a bill imposing the same requirements as would have been contained in the rule outlined above. Lack of progress with the regulators will help to prove that Congressional action is needed. Letters from Congressmen expressing their concern over the problem of increased noise in their communities will help convince the FAA of the seriousness of the problem and may influence the FAA to pass a rule before Congress passes a bill that will remove the FAA's discretion. SUMMARY In summary, we would be happy to assist the City Attorney in forcing the CAB to file an EIS on the effects of certifying four new carriers for John Wayne, should the Council deem such delaying tactic to be prudent; in intervening in the Air California suit against the FAA's informal threats; in facilitating a settlement between Orange County and the FAA which would allow new entrants to serve John Wayne but preserve the rest of the existing noise restrictions; in petitioning the FAA for a rulemaking that would effectively preserve the current noise limitations at John Wayne; and in seeking to have Congress pass a bill that would have the same effect as the proposed rule. 4WY RESOLUTION NO. 9787 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AGREEMENT FOR LEGAL SERVICES WITH DYKEMA, GOSSETT, SPENCER, GOODNOW AND TRIGG WHEREAS, the City of Newport Beach is directly and adversely affected by proposed growth or expansion of John Wayne Airport; and WHEREAS, many of the activities which will control the growth and expansion of John Wayne Airport are occurring at the federal level in Washington, D. C.; and WHEREAS, a proposal has been submitted by Dykema, Gossett, Spencer, Goodnow & Trigg to provide legal services assisting the City in attempting to control the growth and. expansion of John Wayne Airport; and WHEREAS, it is in the best interest of the City to accept said proposal to employ the law firm of Dykema, Gossett, Spencer, Goodnow & Trigg to perform legal services on behalf of the City in relationship to controlling the growth and expansion of John Wayne Airport, NOW, THEREFORE, BE IT RESOLVED that the proposal for legal services from Dykema, Gossett, Spencer, Goodnow & Trigg is accepted, and the Mayor and City Clerk are hereby authorized and directed to execute the appropriate letter agreement accepting said services. ATTEST: City Clerk ADOPTED this 27th day of May, 1980. Mayor HRC /kv 5/28/80 0• CITY OF NEWPORT BEACH Office of CITY ATTORNEY To: The Honorable Mayor and Members of City Council From: City Attorney 0 May 27, 1980 Item No. H -2(g) Subject: Agreement for Employment of Dykema, Gossett, Spencer, Goodnow & Trigg for Legal Services Regarding Expansion of John Wayne Airport Attached to this memorandum are a Proposal for Opposition to Increased Noise at John Wayne Airport received by this office on May 12 and a proposal letter dated May 21, 1980, from Dykema, Gossett, Spencer, Goodnow & Trigg. This is the law firm reported to the City Council at its Executive Session held on May 12, 1980. It is recommended that the City Council approve entering into the agreement with Dykema, Gossett, Spencer, Goodnow & Trigg for legal services regarding controlling the expansion of John Wayne Airport. The law firm will be providing monthly state- ments to the City not to exceed $2,500.00. Any work done for the City will be at the direct behest of the City and we will retain tight control over the areas in which they are repre- senting the City. It is the opinion of this office and the Mayor that this firm can provide the City with top -rate legal representation in the federal forums where the airport activity is presently being pursued. The law firm is very interested in representing the City and we feel it can do an outstanding job representing the City's interests. Attachments (2) NOR1bA CIMIXIt DYKEMA. GoaSBTT, SpENcBR, GOODNOW & TRmo 1276 INTCwNATrOUAL SOU1a11C BUILOINC 1975 ETe STRECT, Is -W,. 1& AONINUtoN, D. C, QO086 FREPMONp {IOi} sf f - 7r ;3 TCL9COP1190 {ton 30; -6770 TCLRE: 27 -0121 CA9L910TRC- OLIROIT may 211 1980 Hugh R. Coffin, Esq. City of.Newport Beach 3300 Newport Boulevard Tdewport Beach, California 92663 Dear mr. Coffin: Earlier this month we submitted to you a proposal for opposition to increased noise at John Wayne Airport. In sub - nque nt cancTeraationa.we have agreed is eertain modifications of the proposal and to a general timetable for proceeding. in addition, we have.had discussions in respect of financial arrangements in respect of such opposition and you have asked us to memorialise these discussions in a form suit- able for submission'to,the City Council for comment or approval. This letter'is in response to that request. our clients are billed on a monthly basis. Detailed statements show who performed work, when, what was performed, and hots much time was devoted, to-the effort - = "in short, all the information needed for you to monitor the reasonableness of charges. Since we would report directly to you and receive our instructions from you, you will be in a position easily to analyze monthly statements. Mule I will have principal responsibility.for.assist- ing you, I will be supervised by lawyers senior to myself. Further, from time to time there will be work which can be done in a more cost effective w b attorneiirs whose hourly :ossasny race may ne greater or f4sUr than my own. Each attorney's billing rate is reviewed at least annually and sometimes is adjusted upward or downward. The firm's rates range from $28.00 per hour to,$153.00 per.hour. »�,aS :,,wOVwtr +u ++. =. L,Mlili is0 e,llr991 Owl oa.,aw pp.][ teal rifT na wPVfa P0.0 Yi1110iT ++!.M`O as H.w. • \R• \ \Onlr¢wyptl Of¢w "I.......w1..Z1 41,01 .,014 bul as �'•T'�O !i'il ��Yn,f 1.111701-1920 1.,21 ...'Naga kv • DYHRMA. GvsaETT, SPExcen, OoouxOH & Tptleo Hugh R. Coffin, Esq. May 21, 1980 Page Two Illy own time is billed at $7$.00 per hour.. Travel time is billed if it interferes with the work da,=, the liw4yer cannot reasonably be expected to do productive work during the trip and, of course, the trip is made at the client's request. We anticipate, based upon our understanding of the, level of effort to be desired and appropriate, that our charges will approximate $2,500 per month on average. However, indi- vidual months will vary greatly. Should we become involved on your behalf in a national ruleraking proceeding (other than submitting.comments in an ongoing proceeding initiated by others?., the level of effort required for effective participation would be much greater than $2,500 per month on average. However, truly effective - participation would speak for other cities similarly situated joining in the effort, thus greatly reducing the financial burden. NCfsc We look forward with pleasure to working with you. sincerely, Norton Cutler .