Federal Aviation Administration Provides Legal Opinion on Feasibility Study, International Flights

 

A JetBlue Airlines plane sits on the runway at Long Beach Airport. 

A letter from the Federal Aviation Administration (FAA) to the Long Beach City Attorney’s office regarding the recently completed international terminal feasibility study shed light on what the possible initiation of international flights could mean for the city’s noise ordinance.

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Two determinations were distilled from the letter sent from Mark Bury, deputy chief counsel for the FAA. First, Bury concluded that should international travel commence at Long Beach Airport in the future, it would not jeopardize the administration’s stance on the grandfathered status of Long Beach’s noise ordinance. Second, he determined that it would not adversely affect future grant applications for airport improvement or the airport’s ability to apply for and collect passenger fees.

The letter, which was made public on the eve of the first public presentation of the feasibility study’s findings delivered to the city earlier this month, noted the city still stands on the same ground on which it stood before the feasibility study, in terms of potential legal challenges. It referenced a point the administration had made in a letter to the airport 13 years ago, after the city settled a flight allocation resolution with American Airlines.

“As stated in both the 2003 and 2015 letters, if at some point in the future a potential new entrant carrier believes the ordinance is a barrier to entry, [then that] carrier would be free to challenge it by filing a complaint with the FAA,” Bury wrote.

If that happened the city would then have the opportunity to defend the “reasonableness” of its ordinance, Bury explained, and make modifications to it to facilitate market entry or consider other courses of action.


 

In short, neither the feasibility study nor the potential future operation of international flights puts the city in a spot where it’s more likely to be sued for greater access to the airport from an outside airline. The threat has always existed for an airliner company to sue the city for access at LGB, neither approving or denying the construction of the facility increases the chance of a lawsuit.  

Assistant City Attorney Mike Mais said many differences exist since the last time the city faced a legal challenge to the city’s noise ordinance. First and foremost, the city has had its ordinance “blessed” by a federal court and exempted from federal control. However, he agreed with the FAA’s determination that legal challenges exist, with or without a feasibility study.

“It’s like anything in the litigation world; we can never prevent someone from suing us at any time over pretty much anything,” Mais said. “The fact that they can sue us is one thing, the second part of the equation that really needs to be looked at is, and I would argue it’s the more important part, is can they successfully sue the city?”

He said the letter does confirm what the city had believed all along, that the study or conversation of international travel does not imperil the city’s standing with the FAA. Mais referenced a finding from the feasibility report that showed over 20 airports in California of varying sizes have international service, noting that Long Beach considering a facility for its airport shouldn't see the FAA take exception to it.

Approval of construction of an international terminal still faces a vote by the city council, and with at least three of its members serving communities highly impacted by airport noise, a majority vote could face some resistance. The study found that construction of the international terminal could cost upward of $21.5 million, but also has the potential to inject tens of millions of dollars annually into the local economy as well as create hundreds of jobs. Whether it will create more flights and noise is what has neighbors worried.


 

The city has had a long history of defending its noise ordinance since it was initially incorporated into the municipal code in 1981. It immediately faced legal challenge after legal challenge with the string of lawsuits stretching into the mid ‘90s. During that time, in 1990, the federal government passed the Airport Noise and Capacity Act (ANCA), which greatly reduced local control.

However, a deal was struck to grandfather in the city’s noise ordinance, which was tied up in litigation when ANCA was passed by Congress, making Long Beach just one of a handful of cities in the nation that has local control over its airports. The city has not faced a noise ordinance suit since 1995.

The lawsuits had an impact though, slowly raising the allowable number of flights allowed at Long Beach, which has in turn raised concerns among residents who believe the study and the potential for international flights could once again set in motion legal challenges that see the airport take on more traffic.

Airport traffic under the 1981 ordinance was limited to 15 air carrier flights per day. The current iteration of the noise ordinance allows for 41 commercial and 25 commuter flights daily. Any changes to the ordinance, which hasn’t been amended since 1995, including the dollar amount it fines airlines for violating it, could result in the airport falling under the less stringent federal regulations.

JetBlue Airways, the company that requested the feasibility study from the city and the airport’s main tenant, has said it intends to substitute domestic flights with international routes to Canada, Mexico and destinations in Central America if international flights commence at LGB. It’s expressed that by using similar sized aircraft and substituting routes, it would remain in compliance with its current allotment of slots at LGB.

The city’s Airport Advisory Commission will take up the discussion at tonight’s meeting, the first public discussion of the feasibility study’s findings. A second meeting hosted by the city’s economic development commission will take place October 25 before the city council is presented with the findings, a meeting expected to take place next month.

How far this letter will go toward assuaging the fears of some residents is unknown. Mais said that while good standing with the FAA is a major concern, it’s not the only one held by residents who are also concerned about the airport’s footprint, pollution and safety.

“From a legal standpoint it’s very helpful to us,” Mais said.  “Whether it addresses the concerns that we’ll probably hear tonight, I don’t know.”

 



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