The Palo Alto City Council directed staff on Monday night to develop a strategy that could lead to lawsuits over aircraft noise caused by the Federal Aviation Administration's NextGen flight program.
The decision to create a fast-track strategy to react to procedural changes the FAA might implement was added to a slate of proposed actions recommended by the council's Policy and Services Committee. The committee recommended participating in regional airport noise roundtables; pushing the FAA to adopt improved metrics for airplane noise and its impacts; and developing a noise-monitoring plan, among other suggestions. Those initial recommendations had stopped short of developing litigation strategies.
The council's added language came one month after they had decided not to pursue a legal track. In early April staff and the city council considered a potential lawsuit after council members returned from a March meeting in Washington, D.C. with FAA officials that left them feeling deflated and unheard.
But on April 9, the council said attorneys could not identify any legal flaws over which to sue, unlike other cases such as in Phoenix, Arizona. In that region, FAA failed to conduct an adequate environmental review, city staff said.
City Attorney Molly Stump said on Monday there hasn't been a procedural error with which to pursue a legal strategy.
"In federal law, there is not a federal right to be free from noise on the ground," she said.
But that doesn't mean an error won't emerge. The FAA has made some procedural changes, of which the city wasn't even aware, Councilwoman Lydia Kou noted. The city was not informed by FAA about a new arrival procedure under design for Mineta San Jose International Airport. That change could significantly impact neighboring communities, including Palo Alto, for example.
The procedural change showed up on the agency's website, but the FAA did not share the information with the Ad Hoc Advisory Committee on South Flow Arrivals, a group comprised of most Santa Clara County cities including Palo Alto. The ad hoc committee is working to solve aircraft-noise problems from the San Jose airport. An April 30 letter signed by the mayors of Palo Alto, Los Altos and Mountain View to the regional administrator of the FAA Western-Pacific Region objected to implementing the plan until there could be a public review. The FAA has apparently agreed to delay the new procedure.
But concerned about the history of such omissions, Kou made a motion for staff to develop a fast-track method to identify procedures the FAA has changed. The city could potentially file litigation, if appropriate, she said. Municipalities can file a legal complaint if necessary within 60 days of an FAA change, she noted.
Councilman Tom Dubois said the Policy and Services Committee had voted unanimously to support a fast track after input from the public, but staff had not added it to the recommendations before the council.
The council then voted 8-0, with Councilman Greg Scharff absent, to amend the Policy and Services recommendations and direct staff to bring a fast-track plan to the council as quickly as possible. The plan would quickly identify new FAA procedures, support a litigation strategy and determine the best approach for filing a timely lawsuit. The plan would include working on a multicity legal alliance. Staff would also evaluate retaining a technical or a legal expert.
Bringing an expert on board would require funding, Stump said. Someone could study the various venues where the FAA might bury changes, such as the Congressional Record and the Federal Register, Stump said. Staff doesn't have the time to read these sources every day.
"Once we are aware of a potential actionable item, then we have a good process in place to work with our expert attorneys. We can get it on the (council) agenda within 72 hours," she said.
The council also approved instructing staff to send letters to congressional representatives regarding two updates to the second phase of the FAA Initiative to Address Noise Concerns of Santa Cruz/Santa Clara/San Mateo/San Francisco Counties, which the agency released in November 2017 and in April.
"Not writing a letter can be construed as a waiver," Kou said.
The council vote also approved the other Policy and Services Committee recommendations, which included a series of collaborative directions the city could pursue. The city should continue to participate in community roundtables and should partner with national organizations such as the National Association to Insure a Sound Controlled Environment to leverage legislative clout.
Councilman Adrian Fine, who chairs the Policy and Services Committee, said working with the FAA has been difficult to say the least.
"I think it's clear that (to them) Palo Alto is quite a small fry, so that's a reality that we face in terms of government relations," he said.
The council should push for improvements to the San Francisco International Airport's Fly Quiet program; push for planes to fly at 5,000 feet or higher as agreed to more than a decade ago through Rep. Anna Eshoo and then-Palo Alto Mayor Gary Fazzino; collaborate regionally; develop a noise-monitoring plan with other jurisdictions; push for the FAA to implement programs that would prioritize air-traffic-control technology that improves sequencing of incoming planes and their managment; have the FAA adopt improved metrics for airplane noise and its impacts; and request for greater community engagement by the FAA, San Francisco and San Jose airports, the Policy and Services Committee recommended.
Deputy City Manager Michelle Poche Flaherty, who presented a thorough overview of the airplane-noise problem, noted that between 53 to 60 percent of arrivals into SFO fly over or near Palo Alto, according to data from SFO. Approximately 315 planes fly over or near the city in a typical day. Palo Altans have filed more noise complaints regarding SFO air traffic than any other community in the Bay Area.
But so far, the FAA has made little progress to reduce the jet noise caused by the planes, and it has rejected some of the city's recommendations as infeasible. The FAA has not endorsed changing the MENLO waypoint, a targeted location that planes must fly over to stay in line with a mandated route. The city had recommended reducing congestion over the waypoint, relocating the point to the east and bringing in planes in over the point at a higher altitude.
In its April update to the Phase Two Initiative to Address Noise Concerns, the FAA addressed 12 topics outlined in recommendations made by the Select Committee on South Bay Arrivals and the San Francisco International Airport/Community Roundtable in 2016 to reduce noise. Some of the recommendations include redesigning airspace, rerouting some approaches, moving the MENLO waypoint where planes must fly over at the Palo Alto border and bringing in planes at higher altitudes. In all, the FAA is looking at 203 items that came out of a 104-recommendation report published in October 2016.
FAA has addressed 101 of the 203 items in reports released in July 2017 and November. Some of the additional 12 items discussed in the April 2018 update include the feasibility of flying higher over the Peninsula, altering the SERFR route that has been one of the most concerning flight paths from the south, moving more flights coming from the north on the BDEGA path to an eastern leg to avoid turns over Palo Alto, changing the spacing of aircraft for incoming planes from the north and raising the altitude of planes on a route towards the San Jose airport that turn over Palo Alto in some weather conditions, among others.
The most positive news for Palo Alto was that the FAA plans to revise operating procedures to establish the BDEGA path's east leg as the preferred route for aircraft arriving from the north during nighttime hours, Flaherty said. The BDEGA route, which was named after northern flights that cross over land near Bodega Bay, has two legs of air traffic into SFO: BDEGA East, which crosses southeast over San Francisco Bay before turning north; and BDEGA West, a leg that travels south and loops back over Palo Alto before heading into the airport. About 70 percent of flights on this route arrive along BDEGA West, which, based on airport data, also comprises about 17.5 percent of all arrivals into SFO, she said. The revision was one of Palo Alto's more forceful requests by the City Council during a March meeting with FAA representatives in Washington, D.C., she noted.
But the action provides little to no improvement from the current state of noise, a City Manager's report noted. Over time, as air traffic increases, there will be less opportunity to shift the traffic onto the eastern leg.
The FAA is continuing to study whether increasing space between planes on the BDEGA route would decrease the need for planes to vector over the Peninsula. Vectoring removes planes off the prescribed route in a holding pattern to reduce congestion of incoming flights.
It has also altered the SERFR route, which accounts for 30 percent of flights into SFO, moving its trajectory a quarter mile east of the MENLO waypoint toward East Palo Alto. The FAA is looking into realigning the route with a point where planes previously traveled from the south called BSR or "Big Sur," but the change is highly controversial among communities in the Santa Cruz Mountains.