By Peter Boody
Two lawyers fiercely battled for an hour before a three-judge panel of the United States Court of Appeals Second Circuit in Manhattan on Monday, June 20 over the legal authority of the Town of East Hampton to restrict flights into its airport to reduce noise.
Peppered by the judges’ skeptical questioning, the lawyers drew a stark contrast in what they said federal law allows East Hampton to do to reduce the noise from helicopters, seaplanes and jets that has plagued people living under approach and departures paths in both East Hampton and Southampton Towns.
The judges’ lively, probing and perhaps revealing interplay extended oral arguments far beyond the 12-minute limit set for each lawyer — an indication of the complexity and importance of the case, which aviation interests across the United States are watching closely.
The town’s attorney, Kathleen Sullivan of the firm Quinn Emanuel trial lawyers in Manhattan, argued that a legal concept known as the “proprietary exception” gives the town broad power to enact “reasonable” regulations to control airport noise without review or approval by the FAA.
She said a U.S. District Court judge was “wrong” last year when she barred the town from enforcing a rule it adopted in 2014, without FAA review or approval, that would prohibit noisy aircraft from making more than one flight in and out each calendar week in the summer season. The rule has never been enforced because of the injunction and noise complaints to the town have continued to soar.
The proprietary exemption, Ms. Sullivan said, gives localities “very broad leeway” to impose noise regulations so long as they are reasonable. As precedent, she cited a case known National Helicopter II of 1998, in which then-District Court Judge Sonja Sotomayor’s ruling was upheld that the proprietary exemption allowed New York City to sharply limit tourist helicopter flights around Manhattan as long as the limits were reasonable and non-arbitrary.
Ms. Sullivan also asserted that federal rules limiting local control over public airports do not apply to airport owners or operators “that do not take federal money,” and that East Hampton hasn’t taken any since 2001.
Arguing for Friends of the Airport and their allies, including the National Business Aviation Association, Lisa Zornberg of the New York firm Lankler, Siffert, Wohl said that the federal Airport Noise and Capacity Act (ANCA) of 1990 restricted the proprietary exception to require airport owners and operators to prepare elaborate studies and win FAA approval before they can impose traffic limits on a public use airport to reduce noise, whether they have taken federal money or not.
In one of several comments from the bench that may have hinted at the court’s leanings, Judge Guido Calabresi agreed with Ms. Zornberg that National Helicopter “is a very strange case.” He said “the decision is not binding on us because it clearly avoided the issue” of ANCA’s significance.
To Ms. Sullivan’s assertion that it had been a “legal error” for the district court judge to enjoin the once-a-week rule, Justice Calabresi said he did not agree.
At the heart of the case is the question whether or not ANCA is “a funding statute” — as argued by Ms. Sullivan — that lays out a set of rules airport owners must observe in order to quality for federal funding, not unlike Medicare regulations that financially reward states when they adopt federal policies and guidelines; or a broader mandate intended by Congress to bar localities from imposing potentially conflicting limits on access to the nation’s network of regional public airports, as argued by Ms. Zornberg.
She said ANCA was a not a “funding statute” but a “preemptive statute” designed to stop a “patchwork of local rules” that sprang up before 1990 as “Podunk and East Smithville” dealt with their own local noise issues. ANCA applies whether or not an airport uses federal funding, she argued.
In their lively interplay, the three judges on the bench and the attorneys touched on a range of issues that come to play in the case: the FAA’s seeming lack of presence in the case; the town’s right to close the airport eventually if it chooses to do so; federal noise rules for Stage II, III and IV aircraft, which are not part of the town regulations; the fact the town took federal money in the past, binding it for “a considerable number of years,” as Presiding Judge Dennis Jacobs put it; and Ms. Sullivan’s assertion that the federal government was “bound not to enforce” grant restrictions when it agreed to that stipulation in settling a lawsuit in 2005 filed by airport opponents.
“Are you saying if you don’t take the money, the Secretary of Transportation has no role” in reviewing local noise restrictions, Judge Reena Raggi asked Ms. Sullivan.
“Yes,” she said.
Ms. Sullivan called Ms. Zornberg’s position “breathtaking” that ANCA abolished “local processes for regulation” for every public use airport in the country. She said that would mean ANCA had “federalized 19,000 airports and displaced the proprietary exemption.”
“The little town of East Hampton is trying to let people sleep at night,” she said, something that no “massive sea change in federal regulations” prevents it from doing.
Ms. Zornberg said East Hampton is “one of only 460 regional airports in the country” and that imposing the once-a-week flight limit would “crush my clients’ business,” which is “not reasonable or supported legally by any of the standards” the FAA imposes on communities seeking to impose noise limitations.
Judge Jacobs reserved decision in the case, in which the town is seeking to overturn the injunction granted in June, 2015 by Judge Joanna Seybert of the U.S. District Court Eastern District on the town’s once-a-week limit for noisy aircraft. Judge Seybert called it “drastic” and “not reasonable.”
At the same time, the Friends of the Airport and their allies are asking the Court of Appeals to reverse Judge Seybert’s decision not to enjoin two other rules the Town Board imposed in 2014 from taking effect: a mandatory curfew on what the town calls noisy aircraft between 8 p.m. and 9 a.m. all year and a mandatory curfew on all aircraft from 11 p.m. to 7 a.m. all year.
Judge Seybert found that there was adequate evidence the airport had a noise problem, that the curfews were reasonable and that they would not harm operators financially.
Aside from the appeal pending before the Second Circuit, the original case challenging the town’s authority to impose any airport restrictions at all remains pending before Judge Seybert, as does associated litigation that involves the town’s claim that it is exempt from the requirements of ANCA not only because of the proprietary exemption but because the FAA — settling a lawsuit filed by inveterate airport foe David Gruber and his allies —promised in 2005 not to enforce “grant assurances” after 2014 that require unlimited public access to the airport.
The town signed the assurances when it last took federal funding for the airport in 2001. The assurances were to remain in effect for 20 years to 2021.
The Friends and their allies are arguing the FAA had no authority to waive grant requirements that were established by Congress in the Airport and Airway Improvement Act of 1982.