A Brief History of Fighting Aviation Noise

The Noisy Skies Podcast

Episode 2: A Brief History of Fighting Aviation Noise

[00:00:00] Carolyn McCulley: Dr. Barbara Lichman started a fight in the 1980s that changed her life's work, and ultimately helped change the aviation industry as well. I'm Carolyn McCulley, and this is the Noisy Skies Podcast, brought to you by The Aloft Group. This episode is titled: “A Brief History of Fighting Aviation Noise.” So, buckle up as we go back in time to the early 1980s.

[00:00:34] At that point, Barbara Lichman had her Ph.D. in urban planning and was living in Newport Beach, California. That's when the nearby John Wayne Airport began to expand its facilities and plan for more traffic.

[00:00:51] Barbara Lichman: I first got involved because the airplanes from John Wayne Airport fly directly over my house on takeoff. These homes were built 50, 60 years ago, before John Wayne Airport actually had anything more than just a few small takeoffs. The runway has stayed basically the same orientation, but the other facilities have grown dramatically.

[00:01:13] And with that growth is the number of flights, and the types of flights, and of course, greater impacts as those have changed and grown. And I, along with others from my neighborhood, who thankfully are fairly well endowed financially, put a group together, hired an attorney immediately, and went both politically and legally after what we thought was the right thing to do, the airport.

[00:01:41] Carolyn McCulley: Even though this was more than 40 years ago, the money they needed to raise was still very significant. 

[00:01:48] Barbara Lichman: We raised a lot of money, I mean hundreds of thousands of dollars. It's the necessity. It's what you're up against. Airports have it. Public entities have it. You gotta have it. You need to be respected.

[00:01:59] Because the fact that we pay the taxes and pay their salaries doesn't mean a thing. You have to have qualifications and be respected. 

[00:02:07] Carolyn McCulley: During this era, airport operators could still design a local plan to contain aircraft noise in their area. So, John Wayne Airport, then called Orange County Airport because it was, and still is, owned and operated by the county, instituted a nighttime curfew.

[00:02:25] Barbara Lichman: John Wayne Airport started out small and it made rules that were community friendly at the time because we had a Supervisor, a county Supervisor, who was very sensitive to those issues and lived under the flight path. So, the airport was very sensitive because of that Supervisor. He was very sensitive to the people and so gave us a lot of artificial constraints on airport operation, one of which was a curfew—which is not allowed anymore, cannot be done anymore.

[00:02:57] But it can be done at John Wayne and several others that had them in effect before the Airport Noise and Capacity Act was passed. 

[00:03:05] Carolyn McCulley: The Airport Noise and Capacity Act was passed in 1990. We will get back to that in a moment. But it was the early 1980s when the Orange County Board of Supervisors approved a new master plan to build a much larger terminal and increase the number of annual passengers at John Wayne Airport.

[00:03:24] Several local groups filed lawsuits against the airport to stop those plans, including Barbara’s group, the Airport Working Group. In 1985, those groups and the airport entered into a landmark settlement agreement that set limits on noise levels, commercial departures, number of annual passengers, and airport capital improvements at John Wayne Airport for a 20-year term.

[00:03:49] And that's when Barbara decided to change careers. 

[00:03:52] Barbara Lichman: During the pendency of our lawsuit, we used to go out to lunch and the attorneys would sit at one table, I guess, to do their work, and the clients would sit at another. And I looked over and I said, wait a minute. This doesn't look right. We're paying their bill.

[00:04:10] And we're paying for their lunch. I want to be an attorney too. I wanted to be an attorney in that area of the law. Because, number one, it's a niche. Very few law firms do it. Also, it's extremely interesting from a legal perspective. Very interesting. Because there were some conflicts between the Congress and the administrative agencies that have difficulty being resolved, especially now.

[00:04:36] But, in any event, that was a turning point, that very minute. 

[00:04:39] Carolyn McCulley: The Airport Noise And Capacity Act, often called ANCA for its acronym, was developed partly in response to what happened at John Wayne Airport. The Act states that “community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system,” and so “a noise policy must be carried out at the national level.”

[00:05:05] By passing ANCA, Congress granted the FAA preemptive authority over the setting of noise levels and the imposition of noise and capacity restrictions at airports. The thought was that a national solution would result in less litigation and less confusion in airspace use. So, tasked with implementing this act, the FAA issued two federal aviation regulations.

[00:05:30] The first was FAR Part 91, which required airlines to phase out of the use of noisier Stage 2 aircraft before January 1, 2000. And the second, FAR Part 161, restricts an airport's ability to regulate airport access based on noise. In effect, the tradeoff was quieter aircraft for unimpeded access to airports.

[00:05:55] But John Wayne Airport and a few other airports that already had curfews in place were excluded from ANCA's new regulations, in part because of Barbara’s efforts. 

[00:06:05] Barbara Lichman: We went to Washington, and we were lucky enough to partner with the very airport that was causing the problem. Because they are very cognizant of their neighbors for various reasons, probably because the elected officials are very cognizant of the people who vote for them.

[00:06:25] They went with us, and we spent two months in Washington, D.C., lobbying. And we were able to bring along the then-chairman of the House Aviation Subcommittee and we actually got an exemption. ANCA would have eliminated all local regulation, except for those that were grandfathered, exempted. So the lobbying did a lot of good.

[00:06:51] It just cost a lot of money and a lot of time. 

[00:06:54] Carolyn McCulley: While ANCA did restrict local airports from responding to the pressure of their nearby communities, the trade off in quieter aircraft flying overhead was substantial. One recent British study stated that 33 modern aircraft departing simultaneously from an airport produced together the noise of one jet aircraft of the same size departing in the 1960s.

[00:07:17] So, moving from Stage 2 to the current Stage 5 FAA noise standard for aircraft today was a vast improvement. In my area, Washington Reagan National Airport also had a nighttime noise rule that was federally grandfathered into ANCA legislation. It's a unique noise rule because the airport never had an operational curfew.

[00:07:40] Rather, it limited the type of aircraft that could fly in or out of the airport between 10 p.m. and 7 a.m. Even today, it classifies some Stage 3 aircraft that are still flying as non-compliant for its nighttime noise rule. 

(Nat sound) John Wayne Tower, Southwest 1078, on the visual approach for runway 20R. This is John Wayne Airport, Orange County's aviation gateway to the world.

[00:08:08] Decades later, John Wayne Airport is one of the most noise-sensitive airports in the country. But still, it continues to grow, in part because the stakeholders have decided to work together. 

[00:08:18] Barbara Lichman: In Newport Beach, we have still the organization that we had back in 1985, but the current leadership is an aviation engineer that worked for 40 years with the airlines, still consults with them.

[00:08:36] So it's an excellent relationship. With the airlines, don't establish an adversarial relationship to the extent it's possible to maintain some sort of collegiality. Then do so. Say, you know, this isn't against you, we want the airlines to do well. We do well when you do well; we fly when you fly. Everybody has the same interests, but we need some consideration of our interests, as well.

[00:09:04] And it's the same in some ways with the FAA, I mean, hostility doesn't really help.

[00:09:08] Carolyn McCulley: When you consider the history of addressing aviation noise, you have to look at it in the context of what was happening at the same time with safety. Airline safety has come a long way over the decades. In 1985, the year of the John Wayne Airport settlement, more than 2,000 people died in dozens of crashes.

[00:09:29] Including 520 people when a Boeing 747 crashed in Japan. A crash of a Delta Airlines Lockheed TriStar killed 134 people in Dallas that year. In fact, I remember in the 1970s when my Air Force fighter pilot father would not book the whole family on the same commercial flight. We were split up on two different airplanes.

[00:09:52] It's a little grim to think about it, but he had a clear-eyed view of the risks of flying back then, and he did what he could to mitigate them. Between the number of crashes and airplane hijackings, the flights of that era were definitely riskier. To make it worse, we had a whole franchise of disaster movies back then that fed our collective anxieties about flying.

[00:10:18] (Movie trailer) The tradition of motion picture excitement continues. Airport 77. Bigger, more exciting than Airport 75!

Carolyn McCulley:  Later, as a young adult, I would get on a plane and actually look around at my seatmates thinking, well, in any future disaster, these are the people who are going to be in it with me. God help us all! So it's understandable that in this period, the FAA became singularly focused on improving safety, while noise didn't get the same attention.

[00:10:51] But that changed with the introduction of NextGen and its satellite-based navigation, something that we looked at in detail in Episode 1. 

[00:10:59] Chris McCann: Airplane noise, and the noise created for people on the ground by airplanes in flight, it's a problem that falls most on top of the people who have the least ability to fix it.

[00:11:11] It's not a driving factor for how the FAA designs flight path procedures for arrivals and departures from airports. It's not a primary consideration.

[00:11:19] Carolyn McCulley: That's Chris McCann, the founder of the AirNoise app. NextGen is what inspired Chris to create AirNoise. He is a retired Air Force test pilot, currently working as a software engineer.

[00:11:32] Creating AirNoise drew from both of his skill sets. 

[00:11:35] Chris McCann: One day, I started getting these emails from Nextdoor.com about people complaining about airport noise—in La Jolla, where I live. Which was bizarre to me, because we are about 10 miles from the San Diego Airport. And I started to pay attention to what people were saying and started doing a little bit of research and realized that's when the FAA started to impose NextGen.

[00:11:55] And NextGen basically consolidated a lot of flight paths using GPS navigation that used to be fairly random and dispersed because they used radio navigation aids. Now we're using a very precise GPS. So if you unfortunately lived under one of those new paths. Whereas you would get the occasional airplane before, if traffic was scattered across maybe a two- or three-mile-wide corridor, if you will, now they were all coming down within about a hundred yards of each other.

[00:12:21] So I started looking into it and realized just locally that a lot of that was happening to people that were under the new arrivals and departures. And I thought, well, what, what can they do about it? And I started going to the noise meetings at the airport and people were complaining about how hard it was to make their voice heard about the problem.

[00:12:35] And I basically concluded that if people were having a problem, they shouldn't be spending a lot of their time every day trying to let the government know that this new approach to flight path management was actually causing them a lot of problems. You know, even people who live miles and miles away from airports.

[00:12:54] I saw a need. I had some skills, so I put it out there and it turned out there were a lot of other people besides San Diego residents who seemed to need help with this problem, so it just grew from there. 

[00:13:03] Carolyn McCulley: I use AirNoise to quickly file my noise complaints too. It's very satisfying to punch an icon on my phone every time a low flying plane disturbs my sleep or conversations.

[00:13:14] But it's not clear that anything changes because of my feedback. Even Chris acknowledges that. 

[00:13:20] Chris McCann: My thought was, if you seek redress from the government, it should be simple to do. It shouldn't take much time. But complaints themselves don't solve the problem. 

[00:13:28] Carolyn McCulley: As I developed this podcast, I reached out to several current and former noise managers at various airports.

[00:13:33] One man who'd worked at several large airports over his career told me, quite frankly, that he didn't know why the airports got the assignment to receive noise complaints. As we know, after ANCA, there's really nothing the airport can do. But he said that this sometimes led to viewing the frequent complainers as having other issues than just frustration with the actual noise.

[00:13:56] They were viewed as lonely or unstable or just plain cranky. It was the frequency of the complaints that undermined their validity. An August 2023 Washington Post article highlighted this issue. The newspaper reported that for the Washington, D.C. airports, the number of noise complaints was up. But the article said that, “Airport officials caution about reading too much into the numbers, noting that many factors, including weather patterns and heightened media attention, can influence the number of complaints filed. They also said residents who file hundreds of complaints can artificially inflate the numbers.”

[00:14:35] Chris McCann: That's as old as the planet, that kind of trying to basically sweep away a problem by pointing out the fact that there are outliers that maybe make the problem look worse than they think it should look.

[00:14:47] That's one of the first things that they did here in San Diego. In fact, we had a fairly contentious discussion about the fact that they made a point to put in their quarterly reviews of noise complaints, X percentage of the complaints were created by Y number of households. It's like, are you indicating that those complaints are any less valid than anybody else's?

[00:15:10] Maybe they have an invalid parent at home they're taking care of. Maybe they don't have soundproofing on their house. Maybe they are truly bothered by this problem. Maybe they live at the intersection of ten different flyways. Unless you've done the research, which they hadn't done, you don't know why that person seemed so aggrieved.

[00:15:26] Maybe they're just that kind of person. So what? So what if they are? That complaint is as valid as one complaint a year from any other person. Now 

[00:15:34] Carolyn McCulley: I obviously sympathize with those who are making noise complaints. I endure daily loud and low flying large jets crossing over my home as they depart from Dulles International Airport.

[00:15:46] Yet as I've immersed myself in this topic over the last few years, I've also developed a little sympathy for the airport noise managers caught in the middle of this issue too. The airport doesn't control where the planes fly. Because of ANCA, airports have few options for addressing noise complaints from nearby residents.

[00:16:04] But airport staff still have to receive the frustration and anger of sleep-deprived citizens. One noise manager told me that he was physically assaulted at a noise meeting, angrily shoved by an upset participant. Others have strict notices posted about how verbally abusive contacts will not be tolerated or received.

[00:16:24] It's kind of a Faustian bargain that airports have to receive complaints about things they can't change. or else they lose important funding. The consequences for airports that fail to comply with ANCA are severe. If an airport adopts a noise or access restriction without following regulation, it may lose eligibility for the FAA's Airport Improvement Program grants and access to passenger facility charges.

[00:16:49] These two programs, one funded by taxpayer dollars and the other funded by airline passengers through extra fees on the airline tickets, fund billions of dollars of capital improvements at airports every year. We will look at the importance of these programs in a future episode. For now, it's important to know that communities can't ask airports to institute a new nighttime curfew because it will cost them big money to improve their airports.

[00:17:14] Ironically, that money comes from you and me, the taxpayers and passengers. So if the FAA has restricted what airports can do in response to noise, the natural next step seems to be outreach to the airlines. 

[00:17:27] Chris McCann: The way airports deal with airlines when it comes to noise events varies airport to airport. At AirNoise, we have considered working directly, interfacing directly, with the airlines to let them know out of a particular airport, their flights represent X percentage of the complaints that people are filing.

[00:17:50] The challenge here is that the airlines aren't really in a position to do anything about it because the airlines don't dictate where the FAA puts flight paths. They don't dictate the departures and arrivals that they are obligated by regulation to fly leaving an airport or coming into an airport.

[00:18:02] Other than awareness, there's not a lot they can do. They don't build the airplanes, the airplane manufacturers do. They don't decide where the airplanes go. All they really have an impact on is the number of operations that they do in a particular airport. And that's purely driven by trying to make money in the markets.

[00:18:17] So the one thing they could do is operate a quieter airplane, maybe a stage five airplane, as opposed to a stage four airplane, especially later at night. That is the one place that I think maybe there would be a way to cajole them into doing something different. I haven't attacked that because I'm one guy running an airport noise service for people and I have a lot of data, but I don't know that I'd be able to motivate them to take action.

[00:18:48] Carolyn McCulley: In the late 20th century, the FAA, working in conjunction with the aviation industry and other stakeholders, truly improved the safety of commercial air traffic. Then in 1990, the ANCA legislation unified the U. S. national airspace for aviation noise abatement under the FAA's control. and introduced requirements for quieter aircraft.

[00:19:13] Then over the past decade in this century, the FAA modernized the tools for directing air traffic. These are all critical steps, but there is still one group of important stakeholders consistently left out of the aviation decision making matrix: the people under the flight paths. Decades after becoming a lawyer, Barbara Lichman was part of a team of attorneys who successfully chipped away at this imbalance.

[00:19:41] [News anchor] Now for the first time, NBC four has learned, LA City Attorney Mike Feuer will announce tomorrow he is suing the FAA over changes in flight patterns at LAX. 

[00:19:53] Barbara Lichman: I am now an attorney with the firm of Buchalter in the City of Irvine in Southern California and, unlike most firms, we have a division dedicated to airport operations and airport noise and other aviation activities.

[00:20:07] Carolyn McCulley: Barbara represented Culver City, California as co-counsel with the City of Los Angeles. The City of Los Angeles originally sued the FAA in 2018, alleging the agency made changes to flight patterns with neither environmental review nor public input. In 2021, a federal appeals court found that the FAA violated key environmental laws when it changed the flight patterns for aircraft coming into Los Angeles International Airport during its implementation of NextGen.

[00:20:39] Barbara Lichman: You gotta keep your eye on the ball. I think it's very important. We noticed, and the city of Los Angeles noticed at the same time, that there hadn't been any divulging of impact. Nobody knew. All of a sudden, those planes started coming over people's heads, and they said—wait a minute, these weren't here before, and now all of a sudden they're here, and we haven't heard anything about it.

[00:21:01] Well, there's public review requirements in both NEPA and CEQA. 

[00:21:06] Carolyn McCulley: A note here. NEPA is the National Environmental Policy Act, and CEQA is the California Environmental Quality Act. NEPA is a law that requires federal agencies to assess the environmental effects of their proposed actions and to provide opportunities for public review and comment.

[00:21:25] CEQA is the equivalent for public agencies in California. 

[00:21:29] Barbara Lichman: 2018, we challenged the FAA's implementation of arrival routes over the City of Los Angeles and the City of Culver City. I represent Culver City. We are co-petitioners with the City of Los Angeles. They implemented arrival routes, new ones, without doing any environmental review, either under NEPA or under California.

[00:21:51] Well, that's not kosher. Don't work, okay? And the court just took them to the cleaners over it. The interesting part here is though, they did nothing. They did nothing. If they had done something, and we had questioned the something, like, we don't like the way you did the air quality, that's not a sure winner.

[00:22:14] The real winner is if you can pin down the fact that the agency did not do any environmental review. And in this case, they claimed that their environmental review was in the notes of some FAA employee who'd been fired. And when they cleaned out her desk, they found the notes, and that was their environmental review.

[00:22:33] Well, the court didn't buy that at all. Then the court mandated that they do a full environmental impact statement because obviously changes in arrivals at low altitudes do have some sort of environmental impact, right? Well, three years go by, until 2021. Nothing. But they were recalcitrant. They didn't feel that the court had any right to tell them when to do it.

[00:22:59] Well, that's not exactly how it works in this federal system. So they're in the process of doing it now, and we'll see if it's adequate or it's done at all. 

[00:23:10] Carolyn McCulley: According to Barbara's law firm statement, the result of this ruling is “an almost unprecedented outcome for local governments against a federal agency acting within its area of expertise. In addition, this victory has national implications for communities all over the country who will suffer the same impact in the ongoing NextGen program.” That's a key concept to understand. For decades, federal agencies have been given legal latitude by the Supreme Court to interpret laws through their own regulations.

[00:23:44] That's known as the Chevron deference legal doctrine, a reference to an environmental case in 1984 involving the Chevron company and an environmental group. That case was a landmark decision of the United States Supreme Court that basically said U.S. federal courts must defer to a government agency's interpretation of a law or statute.

[00:24:09] But now, even that principle is being challenged in the current Supreme Court term through two different cases that the court has agreed to hear in early 2024. What that means for people seeking relief from aviation noise through the FAA remains to be seen. 

Carolyn McCulley: I have, in shorthand, described you to other people as the Erin Brockovich of airport noise.

[00:24:29] Barbara Lichman: Ha ha ha ha ha! Oh my God! That is funny. But I appreciate it because she went above and beyond the call of duty. I haven't yet done that. This is just my call of duty.

[00:24:47] Carolyn McCulley: In the meantime, on December 1st, 2023, five members of the House of Representatives introduced several pieces of legislation to reduce excessive jet noise and ensure accountability from the FAA in addressing community concerns. So, are we at an inflection point for communities seeking relief? It remains to be seen, but one thing is for certain, you know that this podcast will be tracking it.

[00:25:20] Noisy Skies is brought to you by The Aloft Group. It is written and edited by me, Carolyn McCulley. Aloft draws on decades of aviation experience to help communities navigate the complexity of aviation noise. To learn more about how The Aloft Group can help your community, visit NoisySkies.org. Thanks as well to our show's founding patrons, Edward Bursk, Kim and Janet Hanneman, Andrea and Joe Dulik, Jim and Susan White, Cristina Conti, John Yeatman, Julia Falk, Cheri and Marc Korstvedt, John and Catherine Fraga, Chris Loeser, Ted and Gayle Deeley, Chris McCann, Kathy Estep, Charles Lamb, and Val Sekhar.

[00:26:06] Got questions or comments for the show? We'd love to hear from you. Drop us a line at info@noisyskies.org. And join me next time wherever you get your favorite podcasts. Thanks for listening.

[00:26:22] ​END