Virginians for Dulles v. Volpe, Civ. A. No. 507-70-A.

• Decision Date: 26 May 1972
• Docket Number: Civ. A. No. 507-70-A.
• Citation: 344 F. Supp. 573
• Parties: VIRGINIANS FOR DULLES et al., Plaintiffs, v. John VOLPE et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

344 F. Supp. 573

VIRGINIANS FOR DULLES et al., Plaintiffs, v. John VOLPE et al., Defendants.

Civ. A. No. 507-70-A.

United States District Court, E. D. Virginia, Alexandria Division.

May 26, 1972.

Bernard S. Cohen, Cohen & Rosenblum, Alexandria, Va., Scott Lang, Environmental Defense Fund, Washington, D. C., for plaintiffs.

Joseph M. Spivey, III, T. S. Ellis, III, Hunton, Williams, Gay & Gibson, Richmond, Va., George Weisz, George J. Grumbach, Jr., Cleary, Gottlieb, Steen & Hamilton, New York City, for Airline defendants.

Frederick L. Miller, Jr., Asst. Atty. Gen., Land and Natural Resources Division, Department of Justice, Washington, D. C., Leonard Ceruzzi, Federal Aviation Administration, for United States.

MEMORANDUM OPINION AND ORDER

ALBERT V. BRYAN, Jr., District Judge.

This suit is an action for injunctive and declaratory relief against a number of named defendants, but is basically against the Federal Aviation Administration (FAA) as operator of the Washington National Airport (WNA) and against the commercial airlines which operate jet aircraft at that airport. It involves alleged pollution from aircraft emissions and aircraft noise.

Originally the complaint contained a request for damages and allegations of conspiracy and violation of the anti-trust laws. These have been withdrawn.

The complaint is prolix and it is difficult to determine upon just what theories plaintiffs rely; however, during pre-trial proceedings and at trial the following surfaced as the main theories:

(1) That the actions of the FAA have been arbitrary, capricious and constitute an abuse of discretion and therefore relief is warranted under 5 U.S.C. § 701 et seq. (Administrative Procedure Act).

(2) That the actions of the FAA violate both the procedural and substantive provisions of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.

(3) That the actions of the FAA, acting through the defendant airlines, constitute a nuisance, depriving the plaintiffs of rights under the Fifth and Ninth Amendments to the United States Constitution.

Pursuant to the pretrial conference, the parties entered into a stipulation, which is attached to the original hereof and adopted as part of the Court's findings of fact. Also, by stipulation, affidavits of some experts and many lay witnesses for both plaintiffs and defendants were accepted in lieu of their live testimony. The direct testimony of nearly all expert witnesses was presented by written report, furnished in advance to opposing counsel, and those witnesses were then made available for cross-examination.

The suit was instituted as a class action. No formal determination has been made that it may be so maintained. The allegations of the class at the beginning of the complaint are immensely broad. The action cannot be maintained for such a class. It became apparent during trial that there are a number of persons defined as some of the named plaintiffs and as those persons whose affidavits were presented on behalf of the plaintiffs, who live or work in the vicinity of the WNA and the flight paths of jet aircraft approaching and departing therefrom, and who present a claim that activities at the airport annoy, inconvenience and disturb them to the point of interfering with the comfortable enjoyment of their life and property. To the extent that the complaint undertakes to state a class action on behalf of persons other than that group, the Court cannot say that the named parties are representative of the class, since in the opinion of the Court this is basically a private nuisance action in which specific injury must be shown. Obviously many members of the larger class originally alleged make no complaint of injury or are not injured. There are substantial questions of fact not common to a class broader than the named plaintiffs and affiants. Allowing intervention by the affiants is more feasible than proceeding as a class. Although the action must be stripped of its character as a class action, enough of the named plaintiffs have presented their claims to enable the Court to decide the issues presented. Those named plaintiffs individually present a justiciable claim so that the standing of other named plaintiffs is immaterial.

The complaint requests the ultimate and prompt phasing out of all jet aircraft operations from the airport; however, at trial the thrust of plaintiffs' claim was to so reduce such operations so that they would no longer interfere with their comfortable enjoyment of their life and property. This was to be accomplished by diversion of air traffic elsewhere, particularly to Dulles International Airport (Dulles) or Friendship International Airport (Friendship), or both.

Evidence was adduced by the plaintiffs tending to show an evaluation of the airport in terms of a zone of environmental influence around WNA; adverse effects of noise on health; adverse effect of WNA on property values; measurements of noise at different locations on the ground; the advantages of expanding use at Dulles over modernization of WNA; under-utilization of Dulles at the expense of WNA; numerous violations of the voluntary curfew between 10:00 p. m. and 7:00 a. m.; the scheduling by the airlines of many flights (15 to 21) within a minute of 10:00 p. m., making it physically impossible to complete operations before the 10:00 p. m. curfew; numerous violations of the noise abatement procedures; futility of complaints to the FAA; interference with cultural, civic and personal use of property; and extreme annoyance and disturbance resulting from the noise of frequent and low flying jet aircraft.

From that evidence and the evidence of defendants the Court finds as follows:

A. That the NEF is a useful tool in planning, but is too imprecise for measuring, or even predicting with any degree of accuracy, the environmental impact on the community of aircraft noise or community response to that noise; that even using the NEF concept, the number of people within the NEF 30 contour around WNA is less than 3,000 and around Dulles more than 20,000;

B. That the evidence does not establish that noise from aircraft at WNA has any direct effect on the health of persons on the ground, health being defined as the absence of disease or infirmity C. That the evidence does not establish that noise from aircraft at WNA has an adverse effect on property values in the vicinity of the airport and the flight paths;

D. That the measurements conducted on the ground by Waters and Magrab are inconclusive, the samplings are unrepresentative, and in most instances the sounds measured were below the "threshold of annoyance" of 80 dBA;

E. That there has been adopted at WNA the following five limitations:

1. A noise abatement procedure which under normal conditions requires that jet aircraft departing WNA maintain takeoff power until an altitude of 1500 feet is reached, at which point aircraft flap settings are held constant and thrust reduced to a setting computed for hot day conditions at maximum cross takeoff weight to give approximately a 500 feet per minute climb. Unless otherwise directed by departure control the aircraft must follow the Potomac River. When landing and weather conditions permit the aircraft are directed to follow the natural flyways of the Potomac River and to remain at 3,000 feet or higher as long as possible;

2. A high density rule limiting the number of carrier operations (40 per hour) and the number of operations by general aviation (20 per hour);

3. A voluntary agreement between FAA and the defendant airlines forbidding the use of WNA by jet aircraft from 10:00 p. m. to 7:00 a. m.;

4. A perimeter restriction prohibiting scheduled non-stop service to and from points greater than 640 miles from Washington with the exception of seven grandfather cities;

5. Equipment restrictions applicable to jet aircraft using WNA;

F. That the violations by the defendant airlines of the voluntary curfew are the exception rather than the rule and are caused by scheduling practices, many of which are not completely within the control of the airlines but are dictated by customer preference, interrelation with schedules at other airports, weather and emergency conditions, and requirements of the U. S. Postal Service;

G. That violations of noise abatement procedures are minimal and are often caused by emergency or weather conditions; that operations to the south of the airport are guided in part by the necessity of avoiding Andrews Air Force base air traffic;

H. That there has been a good faith effort on the part of the airlines to comply with the above mentioned five limitations;

I. That community complaints, while often unsatisfactorily answered, have resulted in sincere efforts on behalf of the defendants to reduce noise levels emanating from the airport, specifically as represented by the above five limitations;

J. That noise from the airport has interfered with the use of the property of, and caused extreme annoyance and disturbance to, some of the named plaintiffs and those persons who have filed affidavits on behalf of the plaintiffs;

K. That, except for the 40 flight per hour density rule, these limitations are voluntary on the part of the airlines;

L. That there is a strong preference by the traveling public for WNA over Dulles; that there is a public interest to be served in having a short-haul airport convenient to downtown Washington, the Nation's Capital as well as a city of substantial size and business activity;

M. That scheduling is a complex matter which must accommodate competing interests such as impact on the community, economics of operation by the airlines, schedules at other airports, and convenience of the traveling public;

N. That any substantial diversion of jet aircraft from WNA would result in a severe economic setback to the region surrounding WNA;

O. That WNA is...