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Court Overturns Aircraft Noise Small Claims Lawsuit Against San Mateo County

After enduring aircraft flying over his home at all hours, Adam Ullman, a resident of Atherton, California, filed a Smalls Claims action against the County of San Mateo, the owner of the nearby San Carlos Airport for creating a public nuisance by allowing Surf Air to use the airport. Although initially successful, last Friday, August 26, 2016, the County’s appeal of the smalls claims judgment was thrown out. As Barbara Wood reported in The Almanac, San Mateo County Superior Court Judge John L. Grandsaert, in overturning the Small Claims court decision stated that “it strikes me that what you’re seeking” is “an end to this noise. . . You want that stopped. That’s what’s called injunctive relief. . . I’m with you in terms of your concerns and your presentation. I’m really not with you so far as why this case should be in small claims court.” http://bit.ly/2bVA6dK

The problem with that finding? It would be impossible for Mr. Ullman to get an injunction to stop the noise created by the Surf Air aircraft. There is a long history of airports owners and communities surrounding airports being unable to regulate noisy aircraft. First, airport owners are bound by their grant assurances – that is, the agreement they sign with the FAA in order to get federal money – to keep the airport open for all “aeronautical users.” This includes noisy aircraft. http://bit.ly/2bJvuq6 Moreover, federal law prevents airport owners and operators from prohibiting certain types of aircraft from a particular airport. Curfews on aircraft traffic at airports are also prohibited by federal law See 49 USC 47524. So even if the County of San Mateo wanted to stop Surf Air from using San Carlos Airport, it could not without inviting the FAA to begin a legal action against it.

Second, the communities surrounding the airport cannot stop noisy aircraft either. Several communities have tried to enact ordinances that would restrict noisy aircraft from flying over their neighborhoods. Federal law, however, says that they cannot do that. Courts have consistently said that aircraft in flight are the sole responsibility of the FAA and if the FAA says they can be there, then there is little that a state or local government can do to stop it. See, for example, the seminal case in this regard, City of Burbank v. Lockheed Terminal, 411 U.S. 624 (1973). So even if the County of San Mateo (or Atherton or Menlo Park) wanted to enact ordinances limiting the aircraft noise above their residents, that, too, would invite a legal action from the FAA.

In the end, the Judge is right: the issue is that Mr. Ullman – and millions of other Americans – want the noise stopped. But the reality is that filing for an injunction will not work because federal will not permit it
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Santa Monica City Council Votes, Once Again, To Close Santa Monica Municipal Airport (SMO) - On August 23, 2016, the Santa Monica California City Council unanimously approved a resolution to reduce flights and close the Santa Monica Municipal Airport (SMO) by July 1, 2018. This is not the first time the City Council has taken this action, and, like previous efforts, this resolution faces substantial legal headwinds. http://lat.ms/2bCIqN4 and http://bit.ly/2biWBX4

Instead of simply calling for the shut-down of the airport, the resolution contained a package of measures designed to minimize environmental impacts and scale back flight operations, especially those of private and corporate jets, until the airport can be shut down.

These measure are aimed at curtailing aircraft traffic at the airport. They include petitioning the FAA to shorten the airport’s runway from 5,000 feet to 2,000 feet, eliminating the sale of leaded fuel, adding security, creating a permit system instead of leases for aviation tenants and increasing enforcement of local, state and federal laws related to airport operations.

In addition, the City Council approved the creation of a city-run operation to replace two private companies that provide aeronautical services such as fuel, maintenance and aircraft storage. The City believes that by doing so, it will be able to better control operations at the airport and reduce the environmental impact on the surrounding neighborhoods.

Closing the airport is still working its way through the courts and the FAA. The FAA recently ruled that the airport must stay open until 2023 in order to comply with its grant assurances. http://bit.ly/2b1vSjt The City has until October 14, 2016, to file a Petition for Review challenging that decision in the U.S. Court of Appeals.

In addition, airport users have filed another administrative proceeding with the FAA accusing the city of violating its grant assurances by imposing unreasonable landing fees, illegally diverting airport funds to non-aviation uses and setting unfair leasing policies to force out aeronautical tenants. FAA Docket No. 16-16-02.

Finally, the City filed a lawsuit in federal court to settle the issue about what its duties and responsibilities are under the federal agreement. After being dismissed by the U.S. District Court, the lawsuit was re-instated by the Court of Appeals. That lawsuit is set for trial in late 2017 in U.S. District Court in Los Angeles. U.S. District Court for the Central District of California, Case No. 13-8046. Although the case is set for trial, the parties have agreed to mediation and have hired a private mediator. That proceeding will be completed no later than: March 7, 2017, with a joint report regarding the results due on March 14, 2017.
For decades, residents living around Santa Monica Municipal Airport have complained about the roar of aircraft and worried that some day a Piper Cub or Gulf Stream will come crashing into their living room.
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Sens #Schumer & #Gilibrand join Rep #Meng  in introducing a bill to re-establish #EPA Office of Noise Abatement & Control which will wrest control of noise away from #FAA. http://bit.ly/29ENQGW. Schumer & Gillibrand in their press release stated that the EPA’s core mission is to protect human health and the environment, and so it would make sense for the EPA to be granted jurisdiction over airplane noise. Schumer’s and Gillibrand’s new legislation in the Senate, “The Quiet Communities Act of 2016,” restores the EPA’s control over airplane noise matters and creates a dedicated office of noise abatement. The legislation was introduced by Rep. Grace Meng in the House of Representatives. The senators say airplane noise can greatly impact the environment and an individual’s quality of life and that’s why the EPA should take the lead on airplane noise issues. Under the legislation, the EPA would conduct research on the impacts of noise and provide technical assistance and grants to communities to mitigate noise. It would also require the Office of Noise Abatement and Control to carry out a study on airport noise, examining FAA noise measurement methodologies, the threshold of noise at which health impacts are felt, and the effectiveness of noise mitigation measures at airports.
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Does this bill specifically void the vision100 act section whereby the FAA is the sole arbiter of noise issues?
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In a letter to the National Academy of Sciences (#NAS) Massachusetts lawmakers ask for a study on the health effects of air traffic noise and pollution. http://bit.ly/29B53AG Sens. Elizabeth Warren and Ed Markey and Reps. Stephen Lynch, Michael Capuano, and Katherine Clark signed the letter which asked why airplane noise complaints have dramatically increased in recent years, and how it could be affecting public health.
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Rep. #MaxineWaters (D-CA), introduced a bill http://bit.ly/29r1gWQ on Thursday "to prohibit the Secretary of Transportation from approving under subtitle VII of title 49, United States Code, any project for the relocation of Runway 24R at Los Angeles International Airport, and for other purposes."

Relocating 24R further to the north has long been a bone of contention with #Westchester, #PlayaDelRey, and #Inglewood. #LAWA  wants to move it to the north so that aircraft can use both 24L and 24R at the same time. Currently, they are too close together to meet #FAA safety standards.
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Here is the text of the agreed-upon #FAA Extension/#Reauthorization. http://bit.ly/29u5YGr
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In the process of searching the internet for information about aviation noise, I often run across web pages like this one: http://www.beechtalk.com/forums/viewtopic.php?f=7&t=127555 where pilots lament how people move next to airports and then complain about the noise. They also frequently state how much they love hearing aircraft noise. To me, there is a disconnect in their thinking. While I am sure there are people who do, in fact, move to the noise, in many instances that is not the case.
For example, the person who buys a home near an airport - a sleepy little General Aviation airport - who does not mind the single Cessnas on the weekends, only to find there is little the homeowner can do to stop the expansion of the airport to accommodate screeching business jets at all hours of the day.
Or the homeowner who buys a house in a rural area known for its peace and quiet, miles away from the nearest airport only to find that the FAA has changed the flight path so that a constant stream of large jets are flying under 5000 feet over the house.
Or the homeowner who has lived in a neighborhood near an airport for years. But then, the airport owner and the FAA decide to reconfigure the runways at the large commercial airport to accommodate more traffic and the homeowner finds herself underneath the approach pattern for the airport.
Or the homeowner who lives in an urban area, but finds that the FAA has changed the flight paths so that airplanes now fly lower and closer than before.
Or the homeowner who recognizes that she lives near a large commercial airport and expects aircraft noise, but when the airport owner and the FAA agree to offer noise mitigation to lessen the impact on the homeowner, it takes over 15 years for the airport to complete the project. And during that time, the aircraft fly above her head.
Make no mistake, aviation noise and air pollution carry health effects - both mental and physical - what is needed less blaming the victim by pilots and the FAA and an increased emphasis on reasonable policy. Freeways are not built without compensating the nearby owners for their troubles. Neither should airports and flight paths - the "highways in the sky." Reasonable noise standards that should be followed by the airports, aircraft, airlines and the FAA should be instituted. And they must be enforced.
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FAA rejects Santa Monica’s Appeal of Grant Violations. http://bit.ly/2b1vSjt

Closing the administrative process, the Federal Aviation Administration on Monday denied the City of Santa Monica’s appeal of the FAA’s December 2015 initial decision. Monday's decision has the effect of requiring the city’s airport to remain open at least until 2023. This result should have come as no surprise, the FAA rarely overturns its initial ruling in administrative actions.

The City argued that a federal airport improvement grant of $240,600 accepted by Santa Monica in August 2003 was not a new grant, but an amendment to a previous. Therefore, the grant agreement between the FAA and the City had already expired. In December, 2015, the FAA ruled in its "Director's Determination" that the 2003 grant was a new grant. As such, the airport to stay open until at least August, 2023, when the terms of the grant agreement would expire.

The City tried to convince the FAA that it should not be able to write the grant agreements and then be given deference when it comes time to interpret the agreements. This is particularly true in this case, the City stated, where the City’s interpretation of the grant agreement was reasonable one and the FAA was aware of its interpretation. The FAA found that it could, indeed, interpret the grant agreements anyway it chose, since it was issuing the grants. The FAA concluded that normal rules of contract interpretation do not apply in this instance.

The City will now have 60 days to decide whether to take this issue to the U.S. Court of Appeals. The City’s Petition for Review could be filed either in the U.S. Court of Appeals for the Ninth Circuit, located in San Francisco, or the U.S. Court of Appeals for the D.C. Circuit in Washington, D.C.
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EPA Finalizes Clean Air Act Finding that Greenhouse Gas Emissions from Certain Classes of Aircraft Endanger Human Health and Welfare. http://bit.ly/2atNFCC The EPA finalized findings that greenhouse gas (GHG) emissions from certain classes of engines used in aircraft contribute to the air pollution that causes climate change endangering public health and welfare under section 231(a) of the Clean Air Act. These findings focus on the six well-mixed GHGs that together represent the largest driver of human-caused climate change: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. The EPA’s final endangerment and contribution findings for aircraft GHG emissions are in preparation for a future domestic rulemaking process to adopt future GHG standards. Any future proposed aircraft engine standards would also be open to public comment and review before they could take effect.
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Rep. Grace #Meng (D-NY) slammed the #FAAReauthorizationAct, saying that the legislation does nothing to combat airplane noise. “The absence of any measures to combat the problem of excessive aircraft noise over Queens and other affected communities across the country is a huge disappointment,” Meng said in a prepared statement. http://bit.ly/2a4eywR
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Google named Ken Vosen as the top lawyer for its self-driving car project. He was most recently chief legal officer at The Climate Corporation, an environmental analysis firm and a unit of Monsanto Co. http://reut.rs/29B3BOJ
Alphabet Inc's (GOOGL.O) Google self-driving car project said on Monday it appointed its first general counsel, as U.S. regulators increase their scrutiny of autonomous vehicles.
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On Wednesday, July 6, 2016, Sen. John #Thune (R-SD) announced that the House and Senate negotiators had finally reached a deal for a short-term extension of the Federal Aviation Administration’s (#FAA) reauthorization. Although the bill itself has not yet been released to the public, the Senate Commerce Committee did post a summary of its provisions. You will recall that the House passed a bill that included an overhaul of the Air Traffic System. That proposal did not go over well in the Senate, who passed their own bill without the revamping of Air Traffic. With the July 15, 2016, deadline looming the two chambers finally came together on a much smaller package of legislation along with a very short-reauthorization period – only until September, 2017.

For more see my blog post on the subject: http://bit.ly/29kGKe8
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The Taber Law Group was founded on the premise that clients should be able to find proven, top-quality outside counsel in a more cost-effective setting. We provide the same high quality environmental, aviation and airport development legal services as larger firms at lower and more flexible rates, with more personal service, and with fewer conflicts of interest.
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