Tatyana Segal May 12-18, 2013
Federalism and Airport Noise Regulation:
Analysis of Political and Economic Factors in New York-New Jersey
Implementation
TABLE OF CONTENTS
Introduction
I.
Noise
Control Cooperative Federalism
A.
Introduction
to Environmental Cooperative Federalism
B.
The Federal
Aviation Administration
C.
Preemption
of Noise Control Regulation at the Federal Level
1.
The Noise
Control Act of 1972
2.
Analysis
of major cases: Burbank v. Lockheed Air
Terminal Inc., British Airways Bd. v. Port Auth. of
New York.
3.
Exceptions
to the Preemption Doctrine of Noise Control Regulation.
D.
Further
Evolution of Federal Noise Control Regulation
1.
The
Aviation Safety and Noise Abatement Act of 1979
2.
The
Airport Noise and Capacity Act of 1990
II.
The
Port Authority and Weaknesses in NY-NJ Implementation of Regulatory Scheme
A.
New
York Port Authority Compact and its Original Goals
B.
Indirect
Political Accountability and Economic Independence of the Port Authority
C.
Interstate
Competition in Setting Environmental Standards: Political and Economic
Incentives in Pollution Regulation
D.
Noise
Control Implementation Comparison between the Port Authority and major United
States Airport Proprietors
III.
Proposed
Solutions to Ineffective Response to Airport Noise Mitigation by the Port
Authority.
A.
Proposed Divestiture of Airport Oversight in New York-New
Jersey region from the Port Authority
B.
The New
York State DEC as a Co-partner in Noise Monitoring in New York area
Conclusion
Introduction
”Before we reach cruising altitude, we need,
as always, first to delineate the flight plan we must follow.”
City of Houston v. FAA, 679 F.2d 1184 (5th
Cir. 1982).
Spurred by tremendous technological advances,
such as the creation and widespread usage of GPS devises, enhanced competition
from international air carriers and general economic prosperity that
exponentially increased air travel, the Federal Aviation Administration (FAA)
has been adopting a set of new regulations under the umbrella of the NextGen
program.[1] The NextGen is an
ambitious, comprehensive overhaul of our National Airspace System through the
deployment of advanced technological systems and new infrastructure -- Automatic
Dependent Surveillance–Broadcast (ADS-B) ground stations, Airport Surface
Detection Equipment–Model X (ASDE-X), and Integrated Departure and Arrival
Coordination System.[2]
Twenty-first century technology provides more
precision, control, and power to regulate, plan, and schedule a complex web of
international and domestic flights in the United States’ airports, as well as
the ability to generate more profits by increasing the number of takeoffs.[3] Empowered by these technological advances, the
FAA and airport proprietors still have to be mindful of the essential needs of
local communities, namely to reside in noise-free surroundings, and of communities’
paramount rights to quiet enjoyment of their properties and freedom from
excessive noise stemming from air planes and sonic booms.
Flights’ reconfigurations and their enhanced
density have given rise to a rampant concern about noise in airport adjacent
communities, especially in the area surrounded by the two major transportation
hubs in New York City – JFK and LaGuardia airports.[4] The
FAA and Port Authority’s constant pursuit to maximize revenues by means of
increasing a number of flights and the agencies’ obligation to spend
funds on environmental regulations under NEPA and in response to the public
pressure create an obvious dichotomy between the agencies’ operational goals
and compelling needs of residents living near the airports. Moreover, the challenging task to balance
these competing interests is much harder in the case of New York-New Jersey
implementation of the airport noise control regulatory scheme due to the Port
Authority’s unique structure as a bi-state entity and its limitations.
The weaknesses and inefficiencies of the Port
Authority as New York-New Jersey airport proprietor are the principal reason of
the inadequacy of New York-New Jersey implementation of the airport noise
control regulatory scheme. In the
long-term, the Port Authority’s structural limitations should be addressed by
divesting the airports’ oversight to the states’ transportation agencies in
order to create a healthy interstate competition and a better political
accountability to the states’ governments and their residents. However, taking into consideration the long-lasting
lease, which will expire in 2050, between the City of New York and Port
Authority for JFK and LaGuardia,[5]
this paper also proposes other regulatory measures to deal with the Port
Authority’s ineffective response to airport noise mitigation.
This paper also suggests that to effectively
administer a federal regulatory scheme under the Cooperative Federalism
doctrine, a federal agency should collaborate with its state or local
counterpart that has a parallel power and accountability structure. In our case, the FAA’s direct report and
accountability to the President must be paralleled at the state level by a
state or local agency directly reporting to its executive branch of government.
Part I of this paper provides background
information on the current regulatory scheme in airport noise mitigation by
discussing the principal federal actors, the FAA and EPA, and by analyzing the
major federal statutes and precedents that govern airport noise control regulation. This
part also discusses the federal preemption in the field of aircraft noise and
airport noise mitigation and takes a look at the exceptions to the preemption
doctrine.
Part II focuses on the Port Authority as a
bi-state entity created under the Compact Clause. This part describes the rationale behind the
creation of this entity, and then it analyzes structural limitations of the
Port Authority that thwart PA’s effective role in the regulatory scheme. These limitations are indirect political
accountability and economic independence from the states. Part II discusses the importance of
interstate competition in setting environmental standards and compares the Port
Authority’s lackluster response to airport noise mitigation to the actions by
other major United States airports run by either state or local governments.
Part III of this paper suggests proposed
solutions to the limitations and inefficiencies in the unique structure of the
Port Authority; these solutions range from the divestiture of airport oversight
to the states’ agencies to regulatory measures.
I.
Noise
Control Cooperative Federalism
To
present an overview of the existing airport noise control regulatory framework
in New York and New Jersey airports, this Part will provide an introduction to
Environmental Cooperative Federalism in Section A. Section B explores one of the principal federal
actors involved in noise mitigation, the Federal Aviation Administration (FAA). Then Sections C and D describe the
Preemption Doctrine of noise control regulation by focusing on the three major
federal statutes in this area as well as on several seminal cases.
A.
Introduction
to Environmental Cooperative Federalism
Noise
pollution regulations of aircraft and airports in the United States mostly fall
under the wide umbrella of federal environmental regulations. During the “Environmental Decade” in the
1970s, Congress enacted many federal environmental statutes, reflecting “the
dominant view about federal-state relations that prevailed from 1945 until
1980: that any serious change in policy could only occur through actions by the
federal government.”[6] The
regulatory ideal was “to transfer as much authority as possible to
the highest level of government.”[7] Since the 1970s until today, the prevalent
view in the legal academy on “the allocation of responsibility for
environmental regulation favors federal regulation on the ground that public
choice pathologies cause environmental interests to be systematically
underrepresented at the state level relative to business interests.”[8] Supporters of federal regulations have argued
that states would “race to the bottom” by “offering industrial sources
excessively lax standards and that states would underregulate as a result of
interstate externalities.”[9]
Congress
has an ability to encourage a State to regulate in a particular way.[10] As Justice O’Connor pointed out in New York v. United States, there are two
principal methods for Congress to “urge a State to adopt a legislative program
consistent with federal interests.”[11] First, under Congress's spending power,
“Congress may attach conditions on the receipt of federal funds.”[12] Second, Congress possesses the “power to
offer States the choice of regulating that activity according to federal
standards or having state law pre-empted by federal regulation” where Congress
has the authority to regulate private activity under the Commerce Clause.[13] This arrangement, which has been termed “a
program of cooperative federalism,” is replicated in numerous federal statutory
schemes.[14]
During
the “Environmental Decade,” Congress passed the National Environmental
Policy Act (NEPA), the Clean Air Amendments, and the Noise Control Act.[15] Even though most of twenty-first century
American environmental law is primarily federal, not all federal environmental
regulatory schemes are the same; federal statutes vary significantly.[16] Furthermore,
these federal environmental regulations do not
completely displace state regulations: “regulators at the federal Environmental
Protection Agency (EPA) set minimum, technology-based emission standards, and state regulators then
generally assume the authority to implement general standards.”[17]
Although there are important exceptions, for the most part, states
are free to set state emission standards that are even tougher than federal
standards.[18]
B.
The
Federal Aviation Administration
The Federal Aviation
Administration (FAA) has primary responsibility for aircraft noise regulation
under the existing regulatory framework.[19] FAA as a federal agency has gone through
several transformations, starting as a small branch in the Department of
Commerce and ending up as a powerful agency in the Department of Transportation. In 1926, Congress
passed the Air Commerce Act, a piece of landmark legislation that
charged the Secretary of Commerce with fostering air commerce, issuing and
enforcing air traffic rules, licensing pilots,
certifying aircraft, establishing airways, and operating and maintaining aids
to air navigation.[20] A new Aeronautics Branch in the Department of
Commerce assumed primary responsibility for aviation oversight.[21] As aviation grew and U.S. air traffic more
than doubled after the end of World War II, little was done to mitigate the
risk of midair collisions.[22] In 1958, air safety concerns led to the
creation of an independent Federal
Aviation Agency to provide for the safe and efficient use of
national airspace.[23] The 1958 Act was intended
to consolidate control over aviation in one agency in the Executive Branch that
had previously been diffused within that branch.[24] The paramount substantive concerns of Congress
were to regulate federally all aspects of air safety and airspace management.[25]
President Johnson, concerned about the
lack of a coordinated transportation system, believed a single department was
needed to develop and carry out comprehensive transportation policies and
programs across all transportation modes.[26] In 1966, Congress authorized the creation of a
cabinet department that would combine major Federal transportation
responsibilities.[27] This new Department of Transportation (DOT)
began full operations on April l, 1967.[28] On that day, the Federal Aviation Agency
became one of several modal organizations within DOT and received a new name,
the Federal Aviation Administration.[29]
In 1968, Congress vested in the FAA's
Administrator the power to prescribe aircraft noise standards since it
recognized the environmental concern about pollution and noise expressed by the
public, as more and more airplanes traversed the national airspace system due
to an economic boom.[30] The FAA responded to the directive in
the 1968 Amendment by issuing Federal Aviation Rule 36 (FAR 36).[31]
FAR 36 established precise procedures
for measuring aircraft noise[32]
and proscribed noise limits for aircraft based on size and number of engines.[33]
However, the regulations did not have a
significant impact on the industry because the regulations did not apply to
pre-existing aircraft designs.[34]
C.
Preemption
of Noise Control Regulations at the Federal Level
The Noise Control Act of 1972
demonstrates Congress’s clear legislative intent to preempt the field of
abatement of aircraft noise at the federal level by giving a national uniformity
of treatment to major noise sources in air commerce.[35] Prior to the passage of the Noise Control Act
in 1972, Congress had authorized the Federal Aviation Administration (FAA) to
take aircraft noise into consideration to make its determination as to whether
to certify a particular type of aircraft.[36] Under the NCA, the FAA may prescribe standards
to measure aircraft noise and sonic boom and also rules and
regulations to control and abate them to control aircraft noise and sonic boom.[37] Congress directed the FAA to establish the
lowest possible aircraft noise levels that the FAA considered to be
economically reasonable, technologically practicable, and appropriate to the
type of aircraft to which they applied to reduce aircraft noise and sonic boom.[38]
1.
The
Noise Control Act of 1972
The Noise Control Act (NCA) was enacted by Congress to
protect the nation’s population from the health dangers posed by uncontrolled
noise by means of establishing federal noise emission standards for major
sources of noise.[39] Congress addressed airport noise from a
scientific perspective in the NCA.[40] Pursuant to the Act, the Environmental
Protection Agency (EPA) became a principal actor in studying the effects of
airport noise and evaluating FAA’s actions to reduce aircraft noise. The NCA authorizes the Administrator of EPA
to develop noise emission criteria reflecting scientific research regarding the
types of identifiable effects noise can have on public health, to identify major noise
sources and those techniques which have proven successful in controlling noise
from such sources, and
to establish noise emission standards and requirements for major sources and
for products distributed and used in commerce.[41]
States and localities are precluded
from enacting a noise control standard regarding a particular source of noise
when the EPA has already established a specific noise control requirement for that
source, thus preempting this field of regulation. In enacting the NCA, Congress recognized that
“federal action is essential to deal with” interstate modes of transport and
with products distributed in commerce which constitute major sources of noise
and are distributed throughout the country and, thus, “require national
uniformity of treatment.”[42]
The
Noise Control Act requires that, when formulating regulations, the FAA shall
provide for the participation of a representative of the EPA on advisory
committees or associated working groups that advise the FAA Administrator on
matters related to environmental effects of aircraft and aircraft engines.[43]
Even though the FAA retains the authority to propose aircraft noise limits, the
EPA has an advisory and approval role regarding the formulation of regulations
establishing aircraft noise standards.[44]
2.
Analysis
of major cases: Burbank v. Lockheed Air
Terminal Inc., British Airways Bd. v. Port Auth. of
New York.
The seminal case in airport noise regulation,
City of Burbank v.
Lockheed Air Terminal Inc., clarified Congress’s intent for federal
legislation to preempt the field of aircraft noise abatement.[45] In this case, the United States Supreme Court held that the Noise Control
Act completely occupies the field of abatement of aircraft noise and, thus,
state and local regulations of aircraft noise are preempted under
the Supremacy Clause of the Constitution.[46] In Burbank,
the Court struck down a local ordinance which
imposed a curfew on takeoffs from an airport between 11 p.m. of one day
and 7 a.m. the next day to
abate the noise caused by takeoffs of aircraft.[47]
The Court acknowledged that “[c]ontrol
of noise is of course deep-seated in the police power of the States.”[48] However, the Court held that “the pervasive
control vested in EPA and in FAA under the 1972 Act seems to us to leave no
room for local curfews or other local controls.”[49]
In Burbank, the Court stated that “[t]he
Federal Aviation Act requires a delicate balance between safety and efficiency”
and “of persons on the ground,” emphasizing that “[t]he interdependence of
these factors requires a uniform and exclusive system of federal regulation if
the congressional objectives underlying the Federal Aviation Act are to be
fulfilled.”[50]
This holding in Burbank was primarily based “on the legislative history of the
Noise Control Act, which strongly evidenced Congress' intention to preempt the
field of aircraft noise regulation.”[51] The Court “drew attention to a 1968 letter
from the Secretary of Transportation to the Chairman of the Senate Commerce
Committee expressing the view that the state and local governments were already
preempted from using their police powers to control aircraft noise.”[52]
Moreover, the Secretary's letter
distinguished “police powers from proprietary powers retained by local
governments or private entities that own airports.”[53]
Due
to footnote 14, Burbank “came to stand for the so-called proprietor's
exception, which holds that public or private airport owners retain certain
powers that are not preempted by federal law.”[54]
Proprietary powers differ from distinct
from police powers such as eminent domain; they are “those powers necessary to
administer the airport such as the power to build and maintain facilities, and
the power to negotiate with air carriers.”[55]
The Supreme Court recognized for the
first time in Footnote 14 that “state and local governments may exert
proprietary powers that would otherwise be preempted and unconstitutional.”[56]
The
Second Circuit in British Airways Board v. Port Authority of New York and
New Jersey, known as Concorde I, expounded upon the
constitutionality of airport noise restrictions. In British Airways, the Court examined a temporary ban on
the supersonic transport known as the “Concorde.”[57] The ban prevented the Concorde from taking
off and landing at LaGuardia, John F. Kennedy, and Newark International
Airport.[58] The court held that the temporary ban would be
constitutional “if: 1) The frequency of the aircraft's noise emissions is lower
than that of jets not covered by the same restrictions; and 2) the Port
Authority produces a study showing the effects of the Concorde's noise
emissions.”[59] In British
Airways, the Court recognized a proprietor's right by holding that “the
Port Authority is vested only with the power to promulgate reasonable,
nonarbitrary and non-discriminatory regulations that establish acceptable noise
levels for the airport and its immediate environs.”[60]
The court in Concorde I also
indicated limits on an airport proprietor's power: It stated that the proper
domain of the airport proprietor is to establish regulations regarding “the
permissible level of noise which can be created by aircraft using the airport.”[61] In its subsequent decision, British
Airways Bd. II, the court reiterated its conclusion that airport
proprietors have an “extremely limited role” in the system of aviation
regulation.[62]
3. Exceptions to the Preemption Doctrine of
Noise Control Regulation
Not all local noise regulations are preempted
by the Noise Control Act. If an
ordinance does not attempt to establish mandatory noise levels and does not
affect the flight operations of aircraft, the ordinance may not be considered
to be preempted by the NCA. An ordinance
that directed a local planning committee to consider the impact of airport
noise levels in determining the appropriate use of local lands was found to not
be preempted by the NCA, because the ordinance did not impose any controls on
aircraft noise.[63]
The court in City of Brook Park held the ordinance directs the
town's “planning commission to consider the impacts of noise levels in
determining the appropriate use of land within its territorial jurisdiction.”[64] Furthermore, if an “ordinance in question does
not regulate noise emissions or the actual conduct of flight operations within
navigable airspace,” it is not pre-empted by the NCA.[65] In Faux-Burhans,
the zoning law regulated “intensity of use (by number of aircraft), the type of
aircraft that can use the facility (by take-off distance required), the clear
zone at the runway ends (by prohibiting building thereon), the locale of
operation (by set-back requirements), and the type of aircraft operations (by
prohibiting instructional flights).”[66] The
court there held that “no federal law gives a citizen the right to operate an
airport free of local zoning control.”[67]
D.
Further
Evolution of Federal Noise Control Regulation
After Congress enacted the Noise Control Act,
Congress has changed its environmental cooperative federalism scheme between
the FAA and state and local authorities in aircraft noise mitigation. The Aviation Safety and
Noise Abatement Act of 1979 was the next step in this development,
followed by the enactment of the Airport Noise and Capacity Act of 1990.
1.
The
Aviation Safety and Noise Abatement Act of 1979.
Congress
passed the Aviation Safety and
Noise Abatement Act of 1979 in response to the need for a
comprehensive noise abatement program and the financial burdens imposed on U.S.
air carriers attempting to meet the FAR 36 noise limitations, which had been
enforced by the FAA pursuant to the 1968 Amendment.[68]
To reduce the impact of aircraft noise, the
Act established a system for voluntary noise compatibility planning by airport proprietors.[69] Under the plan, the FAA developed a uniform
system for measuring aircraft noise levels and determined compatible land uses
for areas with various noise levels.[70]
Using this information, airport
proprietors were to develop a noise exposure map for their airport area
pointing out problem noise areas.[71] After completion of the noise compatibility
map, the airport operator qualified for federal grants to develop a noise
compatibility program.[72] These noise compatibility programs included
such measures as the implementation of a preferential runway system,
restrictions on the use of certain airports by certain types of aircraft according
to the aircraft's noise level, construction of barriers and acoustical shields,
use of alternative flight procedures, and the acquisition of land near the
airport to ensure uses compatible with noise levels.[73] Airport proprietors benefited from the program
through federal grants to pay for the noise reduction program.[74] In addition, the noise exposure map enabled
airport operators to limit their potential liability to property owners by
notifying potential purchasers of property near the airport of the potentially
high noise levels.[75]
In conjunction with ASNA, the FAA
developed and implemented FAR Part 150, which provides detailed guidelines for
obtaining federal funding for noise compatibility programs.[76]
Part 150 is a “voluntary program
that allows airport operators to prepare noise exposure maps and to recommend
measures in a noise compatibility program to reduce noise and noncompatible
land uses.”[77]
Pursuant to FAR Part 150, Airport
operators may submit airport noise compatibility programs to the FAA for approval.[78]
The FAA is authorized to provide Airport
Improvement Program (AIP) funding for airport noise compatibility planning and
noise projects.[79]
2.
The
Airport Noise and Capacity Act of 1990.
In response to growing aircraft noise problems,
Congress passed the Airport Noise and Capacity Act of 1990.[80]
The Airport Noise and Capacity Act (ANCA) “shifts
authority for noise abatement away from local governments and airport
proprietors and grants the FAA authority on all noise restrictions on aircraft.”[81] The ANCA is a compromise, designed to appease
two competing interests: the interest of the airline industry and the interest
of residents in airport-adjacent communities.[82] The ANCA consists of two related programs. The first program, intended to quiet air
carriers' complaints concerning local restrictions on aircraft noise and access
at airports, establishes a national aviation noise policy.[83]
This national aviation noise policy
limits the authority of local and state governments to impose restrictions on
Stage II aircraft and prohibits local or state governments from passing any
regulations restricting the operation of Stage III aircraft without FAA
approval or the agreement of the airlines.[84]
Addressing the concerns of noise control group, the second aspect of the ANCA provided
for the phasing-out of all Stage II aircraft operated in or out of U.S.
airports by the year 2000.[85]
Under
the Act’s regulatory scheme, even though compliance with the provisions of the
ANCA is not mandatory, the Act provides significant penalties for
noncompliance, virtually ensuring compliance by local airport operators.[86]
If an airport proprietor operates under
airport aircraft noise or access restrictions not in conformity with the
national aviation policy prescribed by the ANCA, the proprietor risks losing
its eligibility to collect passenger facility fees and to receive grants
authorized by the Airport and Airway Improvement Act of 1982.[87]
The Act “provides that any restriction
on Stage III aircraft which becomes effective after October 1, 1990, and has
not been approved by the airport operator and aircraft operators or by the
Secretary under 49 U.S.C. app. s 2153(a), places the airport operator in
noncompliance with the ANCA.”[88]
In
addition to the above provision concerning Stage III restrictions, the ANCA
includes a general provision applicable to both Stage II and Stage III aircraft,
which states that any airport operator imposing a noise or access restriction
not in compliance with the ANCA may not, under any condition, receive revenue
under the Airport and Airway Improvement Act of 1982 or impose or collect a
passenger facility charge.[89]
The
threat of losing millions of dollars in passenger facility charges and airway
improvement funds has influenced almost all airport operators to comply with
the provisions of the ANCA.[90]
This
Part examines the role of the Port Authority as an airport proprietor in the New
York-New Jersey region, and it also focuses on the structure of the Port
Authority as a bi-state entity. Section
A provides background information about the origin of the PA and its original creation
goals under the Interstate Compact Clause. Section B
discusses the PA’s indirect political accountability to each of the states and
its financial independence from the states, and this section also shows that
these two features hinder the PA’s effectiveness in the airport noise control
regulatory scheme. Section C describes
the importance of intestate competition in setting environmental
standards. Finally, Section D compares
the Port Authority’s response toward airport noise control mitigation to some
of the responses by the major United States airport proprietors run by either
state or local governments.
A.
New
York Port Authority Compact and its Original Goals
The Port Authority was created in 1921, when
Congress, pursuant to the Constitution's Interstate Compact Clause, consented
to a compact between the Authority's parent States.[91] Through the bi-state compact, New York and
New Jersey sought to achieve “a better co-ordination of the terminal,
transportation and other facilities of commerce in, about and through the port
of New York.”[92]
The advent of the steamboat and growth of river commerce
intensified the existing land disputes between New York and New Jersey at the
1820-1830s.[93] The development of the steamboat was a boon
to commerce on the Hudson River and the Bay of New York, and it forced the
States to determine territorial rights to navigable waters in the landmark
United State Supreme Court case, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1
(1824).[94] To resolve their longstanding territorial
disputes, the States appointed commissioners in 1833, and on September 16, 1833
the commissioners entered into the Compact of 1834 that was enacted into law by
the legislatures of both States in February 1834.[95]
Article Eight of the Compact made it
binding upon the States only after their legislatures confirmed it and the
United States Congress approved it.[96] Due to continuing controversies between New
Jersey and New York regarding their sovereign boundary, the States established
a bi-state commission in 1917 to “explore greater cooperation in operating
their respective ports and related transportation arteries.”[97]
The commission’s findings led to the enactment of the Port Authority of New
York and New Jersey amendment to the Compact of 1834.[98]
As a bi-state entity, the Port Authority
occupies a significantly different position in our federal system than do the
States themselves.[99] Bi-state entities are creations of three
discrete sovereigns: two States and the Federal Government.[100]
Their mission is to address
“interests and problems that do not coincide nicely either with the national
boundaries or with State lines.”[101]
The development of the New York Port
Authority Compact was an example of the use of federal-state compacts
not merely to settle a dispute, but to provide the machinery for continuous
joint regulation of a regional problem that cannot be solved by one state alone
acting within its own geographic jurisdiction.[102] The rationale behind creating the Port
Authority was to form a compact agency with long-term responsibilities for the
planning and administration of the transportation problems of the port of New
York, which is divided by the New York-New Jersey state line.[103] Aside from the element of federal assistance
to the states, federal participation in interstate compact commissions was
designed to protect a major federal interest.[104]
B.
Indirect
Political Accountability and Economic Independence of the Port Authority
Unlike a typical executive agency which is
directly controlled by an executive branch of government, the Port Authority
exhibits most of the features of an independent agency where principal officers
can only be removed for cause and where political accountability is diffused.[105] Twelve commissioners, six selected by each
State, govern the Port Authority.[106] Each State may remove, for cause, the
commissioners it appoints.[107]
Four of New York's six commissioners must be resident voters of New York City,
and four of New Jersey's must be resident voters of the New Jersey portion of
the Port of New York District.[108] The Governor of each State may veto actions
of the Port Authority commissioners from that State.[109] Acting jointly, the state legislatures may
augment the powers and responsibilities of the Port Authority, and specify the
purposes for which the Port Authority's surplus revenues are used.[110]
However, because Compact Clause entities owe
their existence to state and federal sovereigns acting cooperatively, their
political accountability is diffuse; they lack the tight tie to the people of
one State that an instrument of a single State has.[111] “An interstate compact, by its very nature,
shifts a part of a state's authority to another state or states, or to the
agency the several states jointly create to run the compact. Such an agency under the control of special
interests or gubernatorially appointed representatives is two or more steps
removed from popular control, or even of control by a local government.”[112] In sum, within any single state in our
representative democracy, voters may exercise their political will to direct
state policy.[113] However, bi-state entities created by compact
are not subject to the unilateral control of any one of the states that compose
the federal system.[114]
State agencies’ political accountability is
one of the essential premises of the “cooperative federalism” doctrine.[115] In New
York v. United States, Justice O’Connor stated: “Where Congress encourages state
regulation rather than compelling it, state governments remain responsive to
the local electorate's preferences; state officials remain accountable to the
people.”[116] Furthermore, “residents of the State retain
the ultimate decision as to whether or not the State will comply” with a
federal program, since they “may elect state officials who share their view.”[117]
Not only the Port Authority’s political accountability
is diffuse, but the agency is also financially independent from the states. The Port Authority was “conceived as a
financially independent entity, with funds primarily derived from private
investors.”[118] Tolls, fees, and investment income account
for the Authority's secure financial position.[119] Debts and other obligations of the Port
Authority are not liabilities of the two founding States, and the States do not
appropriate funds to the Authority.[120] The compact and its implementing legislation
bar the Port Authority from drawing on state tax revenue, pledging the credit
of either State, or otherwise imposing any charge on either State.[121] The States appropriate sums to cover the
Authority's “salaries, office and other administrative expenses.”[122] The States in no way undertake to cover the
bulk of the Authority's operating and capital expenses.[123]
Further, even the limited administrative expense payments for which the States
provided are contingent on the advance approval of both Governors.[124]
In sum, the fact that New York City officials
have entrusted the Port Authority the oversight of its airports since 1947 and
extended the Port Authority’s lease over JFK and LaGuardia until 2050
undoubtedly indicates that New York officials are confident in the PA’s
technical expertise and experience in this area and its ability to manage the
oversight of the airports financially well.
Minding its balance sheet, the Port Authority may be
administering the airports more efficiently in the business sense than other
state or local agencies; however, the agency is almost indifferent to the
outcry of the residents of airport noise impacted communities since it does not
bear the direct brunt of the public disapproval due to its politically and
economically insulated structure.
C. Interstate Competition in Setting Environmental
Standards: Political and Economic Incentives in Pollution Regulation.
While economists and political scientists
have investigated whether the States compete with one another in setting
environmental standards, the scholars have exploited two very important
features of American environmental “cooperative federalism”:1) federal environmental statutes generally set
minimum pollution standards that states are free to toughen further if they
wish; and 2) states may become “authorized” to have the primary responsibility
for implementing (through plant-specific permits), monitoring, and enforcing
federal environmental regulations.[125]
Thus, although the federal government has chief regulatory authority, the
American system nonetheless gives the states sufficient discretion in both
standard-setting and enforcement so that sufficient state variation might be
observed in these areas to permit useful empirical tests. There is substantial
variation in how states exercise their discretion in standard-setting,
implementation, monitoring, and enforcement.[126] “While some state environmental policymakers report
that they feel pressure from industry to refrain from going beyond federal
standards and to be forgiving (or at least flexible) in their enforcement
efforts, other states
have adopted more stringent air emission standards and conducted more monitoring
than is federally required.”[127]
The studies show that the variation in state environmental enforcement
stringency reflects both political and economic factors at the state level.[128]
Furthermore, the studies found a symmetric
interstate competition: “states respond to the regulatory behavior of
competitor states not just by lowering their enforcement efforts to match those
states with weak enforcement, but also by increasing their enforcement efforts
when competitor states strengthen theirs.”[129]
Moreover, Professor Revesz noted that “some states have taken the lead with
respect to protective environmental measures, while the efforts of other states
have lagged.”[130] He suggested that “the differences stem from
different levels of preference for environmental protection rather than from
public choice pathologies” by comparing “the regulatory actions of the states
with the voting records of their members in the U.S. House of Representatives.”[131]
D.
Noise
Control Implementation Comparison between the Port Authority and major United
States Airport Proprietors.
The Port Authority’s indirect political
accountability, its lack of strong tie to the people of one State, and its lack
of direct control by local government in each of the States create a vivid
contrast to the way city and state-run airports handle noise mitigation
issues. For instance, the City of
Chicago that owns and operates two large airports, O’Hare and
Midway Airport,[132]
has historically adhered to its residents’ demands and political opposition
concerning its airport expansion. When
the Airport and Airway Development Act of 1970 made federal funds available to
certain so-called “hub” cities to engage in a long-range planning process
designed to produce an appropriate master plan for regional aviation
development, with funding provided by the FAA, Chicago hired an aviation
consulting firm, to prepare a Master Plan Study for O'Hare.[133] The consulting firm “initially concluded that
the projected demand could only be met by the construction of two new runways.”[134] This result was unacceptable to significant
segments of the suburban population living near O'Hare.[135] Conscious of the community opposition to the
addition of new runways, the City decided to limit the growth of O'Hare.[136]
Furthermore,
since 1989 O’Hare has been fully compliant with FAR Part 150 program, which the
FAA promulgated in 1981.[137] Another Chicago city-operated airport Midway
has been in compliance with Part 150 since 1991.[138] FAR Part 150 studies have been conducted by
many airports around the United States, including major Northeast and Atlantic region
airports that are managed by either state or local agencies, such as Boston
Logan, Baltimore/Washington International Airports, and Philadelphia International Airport.[139]
However, the Port Authority adamantly refuses to participate in this
federal regulatory program.[140]
When
the FAA was revising FAR Part 150 Program in 1984 through a notice-and comment
process and was collecting comments from interested parties, New York State
officials urged the FAA to strengthen enforcement of the program: The Department of Law of the State of New York “expressed concern
that the voluntary nature of Part 150 could lead to noncompliance and to subsequent
undermining of the purpose and intent of the rule.”[141]
New York officials “urged some
strengthening of sanctions, either positive or negative, to encourage wider use
of the Part 150 process.”[142] More than thirty years passed since the FAA
was promulgating FAR Part 150,[143]
and the Port Authority still stubbornly declines to comply with this widely-accepted
federal noise abatement initiative.
III.
Proposed
Solutions to Ineffective Response to Airport Noise Pollution Issue by the Port
Authority
This Part will suggest two proposed solutions
to overcome the limitations and inefficiencies in the unique structure of the
Port Authority which interferes with its ability to participate fully in the
cooperative federalism regulatory scheme in airport noise regulation. Section A of this Part proposes a possible
divestiture of airport oversight function from the Port Authority to the
states’ transportation agencies. Acknowledging
difficulties of implementing the first proposed solution, Section B proposes
partnership and collaboration between the PA and each state’s environmental
agencies to enhance noise monitoring in the vicinity of airports.
A.
Proposed
Divestiture of Airport Oversight in New York-New Jersey region from the Port
Authority
There are a number of reasons why the Port
Authority should not be managing JFK, LaGuardia, and airports in New
Jersey. First,
Section E of Part I emphasized that the original goals of the creation of PA as
a bi-state entity were to achieve better coordination between the states in the
Hudson River region and to facilitate commerce in the port district. Since the airports overseen by PA do not lie
in the vicinity of the Hudson River region or the Bay, there is no compelling
justification for a bi-state entity like PA to oversee their operations.
Second, the Port Authority is sufficiently
insulated from each State’s political pressure, and its political
accountability is diffuse. Whereas voters
in Chicago may exercise their political will to direct its city’s noise
pollution policy, New York and New Jersey aircraft-noise-impacted communities
are in a weaker position to influence the Port Authority’s noise mitigation
policy.
Third,
the fact that PA is a bi-state entity hinders healthy interstate competition in
setting environmental standards between the State of New York and New
Jersey. Had New York airports been run by New York State
transportation agency, New York airports would have competed with their
counterparts in New Jersey by increasing their enforcement efforts in airport
noise mitigation. Currently, this
symmetric interstate competition in environmental regulatory behavior at or
near airports simply does not exist because PA is not managed by either
state.
These
considerations lead to the conclusion that by divesting the Port Authority’s control over New York and
New Jersey’s airports and delegating oversight of the airports to the
corresponding States and their transportation agencies, which are directly
accountable to their constituents, there is a better chance of achieving an
interstate competition in enhancing environmental efforts in the area of
aircraft noise mitigation. Furthermore, divestiture of airport operation would
help PA in focusing on its principal goals and business areas, such as
coordination of commerce and transportation in the Hudson River and the Bay
area, since
PA has been involved in a wide range of projects in New York and New Jersey,
ranging from the long-term construction of the new World Trade Center complex
to construction and maintenance of tunnels and bridges along the New York-New
Jersey border.
However, the divestiture might be difficult to
achieve given the way the Port Authority is governed by the three independent
interests, the two States’ interests and federal one. Moreover, the Port Authority will likely
argue that the current regulatory implementation achieves economy of
scale. However, we have numerous examples
of other United States airports, such as the airports in Chicago, Boston, and
Miami, that have been successfully run by either state or local agencies.
B.
NYS DEC as a Co-partner in Noise Monitoring
in New York area
Given
the difficulty of enacting legislation that would lead to the divestiture of
PA’s oversight of the airports, another proposed solution would be to establish
partnerships between PA and each of the states’ environmental agencies, such as
the New York State Department of Environmental Conservation (DEC) in New York,
in order to delegate the task of monitoring noise near and at the airports to these
environmental agencies. The
New York City Department of Environmental Conservation’s job is to protect and
enhance the environment, and thus it is uniquely positioned to serve this monitoring
function.[144]
Moreover, NYC DEC has a required
expertise to assess and mitigate noise impact in communities adjacent to New York
City’s airports.[145] Currently, DEC assesses and mitigates noise
at existing or new facilities, such as manufacturing plants and shops, and
issues permits.[146] In addition, DEC’s domain may be expanded to
include noise monitoring in airport adjacent communities and collaboration with
the Port Authority in noise mitigation and abatement.
Conclusion.
Empowered
by twenty-first century technology, the Federal Aviation Administration and
Port Authority have been making major strides to enhance the New York City’s airports’
capacity to handle increasing international and domestic air traffic by
reconfiguring flights and increasing
the number of takeoffs. However, the
paramount needs of residents living in the vicinity of the airports should not
be ignored. As voters and taxpayers,
they deserve to be heard and their desires to quietly enjoy their properties
and to be free from excessive aircraft noise should be acknowledged by the FAA
and Port Authority.
This
paper discussed the
dichotomy between the FAA and Port Authority’s operational
goals and compelling needs of residents living near the airports. It also emphasized that the challenging task
to balance these competing interests is much harder in the case of New York-New
Jersey implementation of the airport noise control regulatory scheme due to the
Port Authority’s unique structure as a bi-state entity and its structural limitations.
Where by its nature an administrative
agency is not entirely politically accountable to the people of any state and
its officials and “remains insulated from the electoral ramifications of their
decision,” cooperative federal programs, such as the three federal regulations
discussed in this paper, NCA, ANSA, and ANCA, will not be administered
properly. The outcome of this scenario
would “upset the usual constitutional balance of federal and state power.” In the case of the Port Authority’s adamant noncompliance
with FAR Part 150 Studies, where the FAA, at the federal level, encourages the
Port Authority, at the state level, to conform to the federal regulatory scheme,
the Port Authority, nevertheless, elects to decline a federal grant and not to
comply with the federal regulations without even consulting or listening to the
state’s residents.
Without any doubt the Port Authority has
plenty of technical expertise and experience to oversee New York and New Jersey
airports because it has been doing this task well since 1947. Minding its bottom line and balance sheet,
the Port Authority may be administering the airports more efficiently in the
business sense than other state or local agencies; however, the agency is
almost indifferent to the outcry of the residents of airport noise impacted
communities since it does not bear the direct brunt of the public disapproval
due to its politically and economically insulated structure.
The structural limitations of the Port
Authority as a bi-state entity are the principal reason of the inadequacy of
New York-New Jersey implementation of the airport noise control regulatory
scheme. These limitations call for the
divestiture of the airports’ oversight to the states’ transportation agencies
in order to create a healthy interstate competition and a better political
accountability to the states’ governments and their residents. Nevertheless, considering the long-lasting
lease between the City of New York and Port Authority for JFK and LaGuardia,
this paper also proposes another regulatory measure to overcome the Port
Authority’s ineffective response to airport noise mitigation.
[2] FAA. The NextGen Implementation
Plan (Mar. 2012), available at http://www.faa.gov/nextgen/implementation/media/NextGen_Implementation_Plan_2012.pdf.
[4]
Phil Corso, Noisy LGA flights stir boro lawmakers, TimesLedger, Aug. 23 2012, available at http://www.timesledger.com/stories/2012/34/flightnoise_ne_2012_08_23_q.html.
[5]
NYC Dep’t
of City Planning, City Planning Comm’n,
Mar. 10, 2004,
available at http://www.nyc.gov/html/dcp/pdf/cpc/040191.pdf.
[6]
Michael G. Faure, Jason Scott Johnston, The Law and Economics of Environmental Federalism: Europe and the
United States Compared, 27 Va. Envtl. L.J. 205, 212-13 (2009).
[7] Id.
[8]
Richard L. Revesz, Federalism and
Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553,
555-6 (2001) (challenging
the influential claim that primary responsibility for environmental regulation
should be assigned to the federal government because public choice pathologies
cause systematic underrepresentation of environmental interests at the state
level).
[9] Revesz, supra note 8, at 555.
[11] Id.
[15] See Faure, supra note 6.
[16] Id.
[17] Id. at 214.
[18] Id.
[20] FAA. Origins of the FAA, available at http://www.faa.gov/about/history/brief_history/#origins
(last modified 02/01/10 18:06 EST).
[21] Id.
[22] Id.
[23] Id.
[24] City of
Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624, 644 (1973) (Rehnquist, J., dissenting).
[25] Id.
[26] FAA. History, available at http://www.faa.gov/about/history/brief_history/#agency
(last modified 02/01/10 18:06 EST).
[27] Id.
[28] Id.
[29] Id.
[30] FAA. Evolving Duties, available at http://www.faa.gov/about/history/brief_history/#duties
(last modified 02/01/10 18:06 EST).
[31] Adoption of Noise Type Certification Standards and
Procedures, 34 Fed. Reg. 18,355 (1969) (codified at various sections of 14
C.F.R. § 21 and 14 C.F.R. § 36 (1993)).
[34] James
F. Carr, Aviation Faces Turbulence Over
Airport Noise Pollution, A.B.A. Tort and Ins. Prac. Sec. 2 (1984).
[36] Federal Aviation Act Amendments of 1968, 82 Stat. 395; Am.
Jur. 2d, Aviation § 20.
[41] Id.
[42] 42 U.S.C.A. § 4901(a)(3).
[43] 49 U.S.C.A. § 44715(a)(1)(B).
[44] 49 U.S.C.A. § 44715(c).
[45] Peter D. Irvine, The
Future of Stage 2 Airport Noise Restrictions: A Matter of Substantive Versus
Procedural Review by the Federal Aviation Administration, 11 Geo. Mason L.
Rev. 179, 183-84 (2002).
[46] City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 93 S.
Ct. 1854, 36 L. Ed. 2d 547 (1973).
[47] Id. at 625.
[48] Id. at 638.
[49] Id.
[50] Id. at 639.
[51] Peter D. Irvine, The
Future of Stage 2 Airport Noise Restrictions: A Matter of Substantive Versus
Procedural Review by the Federal Aviation Administration, 11 Geo. Mason L.
Rev. 179, 184 (2002).
[63] City of
Cleveland, Ohio v. City of Brook Park, Ohio,
893 F. Supp. 742, 751-52 (N.D. Ohio 1995).
[64] Id.
[65] Faux-Burhans
v. Cnty. Comm'rs of Frederick Cnty., 674 F. Supp. 1172, 1174 (D. Md. 1987) aff'd sub nom. Faux-Burhans
v. Bd. of Cnty. Comm'rs of Frederick Cnty., 859 F.2d 149 (4th Cir. 1988).
[66] Id.
[67] Id.
[68] John J.
Jenkins Jr., The Airport Noise and
Capacity Act of 1990: Has Congress Finally Solved the Aircraft Noise Problem?,
59 J. Air L. & Com. 1023, 1034 (1994).
[69] Id.
[70] Id. at 1035.
[71] Id.
[72] Id.
[73] Id.
[74] Id.
[75] Id.
[77] Kristin L. Falzone, Airport
Noise Pollution: Is There A Solution in Sight?, 26 B.C. Envtl. Aff. L. Rev.
769, 798 (1999).
[80] John J. Jenkins
Jr., The Airport Noise and Capacity Act
of 1990: Has Congress Finally Solved the Aircraft Noise Problem?, 59 J. Air
L. & Com. 1023, 1024 (1994).
[81] Id.
[82] Id. at 1038.
[83] Id.
[84] Id.
[85] Id.
[86] Id. at 1041.
[87] Id. at 1042.
[88] Id.
[89] Id.
[90] Id. at 1043.
[100] Id.
[101] V.
Thursby, Interstate Cooperation: A Study
of the Interstate Compact 5 (1953) (quoting National Resources Committee,
Regional Factors in National Planning and Development 34 (1935)); see Frank P. Grad,
Federal–State Compact: A New Experiment
in Cooperative Federalism, 63 Colum.L.Rev. 825, 854–855 (1963) (Compact
Clause entities formed to deal with “broad, region-wide problems” should not be
regarded as “an affirmation of a narrow concept of state sovereignty,” but as
“independently functioning parts of a regional polity and of a national
union.”).
[102] Frank P. Grad, Federal-State Compact: A New Experiment in
Co-Operative Federalism, 63 Colum. L. Rev. 825, 834 (1963).
[103] Id.
[104] Id. at 837.
[105] See generally Humphrey's Ex'r v. United States, 295 U.S. 602, 629 (1935) (holding Congress could confer
good-cause tenure on the principal officers of certain independent agencies); Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 130 S. Ct. 3138, 3155 (2010) (stating that the diffusion of
power carries with it a diffusion of accountability).
[107] See N.J.Stat.Ann. §§ 32:1–5, 32:12–5
(West 1990); N.Y.Unconsol.Law § 6405 (McKinney 1979); 1930 N.Y.Laws, ch. 422, §
4.
[110] Id.
[114] Id.
[120] Id.
[121] Id.
[124] Id.
[125] Michael G. Faure, Jason Scott Johnston, The Law and Economics of Environmental Federalism: Europe and the
United States Compared, 27 Va. Envtl. L.J. 205, 248-249 (2009).
[126] Id. at 249.
[127] Id.
[128] Id.
[129] Id. at 250.
[130]
Revesz, supra note 8, at 555.
[132] Chicago Dep’t
of Aviation, About CDA, available at http://www.flychicago.com/business/en/CDA/About-CDA.aspx.
[134] Id. at 187.
[135] Id.
[136] Id.
[138]
Chicago Dep’t of Aviation, Planning Data and Noise Compatibility Program Status
– by State (Illinois), available at,
http://www.faa.gov/airports/environmental/airport_noise/part_150/states/index.cfm?state=Illinois.
[139] FAA, Airports
with Recent Noise Compatibility Planning (Part 150) Activity, available at,
http://www.faa.gov/airports/environmental/airport_noise/part_150/activity/.
[140] FAA. Planning
Data and Noise Compatibility Program Status – by State (New York), available at,
http://www.faa.gov/airports/environmental/airport_noise/part_150/states/index.cfm?state=New_York;
See also 2013 NY S.B. 689 (NS), 2013
New York Senate Bill No. 689.
[141]
Airport Noise Compatibility
Planning; Development and Submission of Airport Operator's Noise Exposure Map
and Noise Compatibility Planning Program, 49 Fed. Reg. 49260-01, 49262 (Dec. 18, 1984)
(commenting on whether or not Part 150
should require at least some airport proprietors to submit noise exposure maps
and noise compatability programs).
[144] New York Dep’t of Envtl. Conservation,
Regions, available at http://www.dec.ny.gov/about/50230.html.
[145]
New York Dep’t of Envtl. Conservation, Assessing
and Mitigating the Nosie Impact, available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/noise2000.pdf.
