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Ninth Circuit orders deeper FAA look at Burbank airport construction noise

A split Ninth Circuit panel agreed the FAA's reasoning that not all construction equipment would be operating at the same time didn't adequately account for the effects of construction noise.

LOS ANGELES (CN) — The Federal Aviation Administration will have to take a more thorough look at the potential effects of construction noise from a new passenger terminal at Bob Hope "Hollywood Burbank" Airport in Southern California.

In a split decision Wednesday, a Ninth Circuit panel granted a partial win to the city of LA, which had challenged the environmental impact statement the FAA prepared for a voter-approved replacement of the more than 50-year-old passenger terminal at the airport about 12 miles northwest of downtown LA.

The appellate panel wasn't persuaded by the city's argument that the FAA had not sufficiently considered alternatives to the proposed site for the terminal, but it agreed with LA that the FAA failed to adequately analyze the impact on the surrounding communities from construction noise from the project that is expected to take six years to finish.

"FAA did not take a hard look at noise impacts from the project because its analysis rested on an unsupported and irrational assumption that construction equipment would not be operated simultaneously," U.S. Circuit Judge Stephen Higginson, a Barack Obama appointee from the Fifth Circuit who sat on the panel by designation, wrote for the majority. "As a result, FAA failed to consider an important aspect of the problem: the combined noise impacts from construction equipment on nearby neighborhoods."

The FAA declined to comment on the ruling.

The airport opened in 1930 and sits on land both in Burbank and LA. The current passenger terminal was built in 1966 but by 1980 it no longer complied with FAA safety standards because the building sits too close to the airport's two runways. Since then, the Burbank-Glendale-Pasadena Airport Authority, which owns the airport, and the FAA have been trying to come up with a solution to replace the terminal.

In 2015, Burbank and the airport authority agreed on a plan for a new 14-gate terminal between 232,000 and 355,000 square feet in size that would be built by the authority. Burbank voters approved the project the following year, and the FAA in 2018 started on the environmental impact statement it needed to prepare before it could approve the project.

Two years ago LA went to the Ninth Circuit to challenge the FAA's environmental report, saying the FAA acted arbitrarily when it eliminated all potential alternatives to the project from comprehensive consideration because those alternatives were not preauthorized by Burbank voters. LA also said the FAA failed to properly consider the effects of noise and vibration on already environmentally overburdened communities living and working around the airport.

"The EIS does not take a hard look at noise impacts, human health impacts, and disproportionate impacts to racial and ethnic populations and low-income populations residing near the airport," the city argued. "The EIS does not apply any significance threshold or standard for construction noise, despite several being available, including FAA’s own threshold. Nor does the EIS consider the project’s potential to conflict with the city’s noise standards."

It's not the first time the city and the FAA have been at odds over the airport that sits in the middle of the densely populated San Fernando Valley. The city sued the FAA in 2019 over a shift in flight patterns for planes departing Hollywood Burbank Airport that has dramatically increased noise levels for residents and businesses.

U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, dissented and said the FAA had done enough in its analysis of construction noise from the project.

"The record shows that the FAA thoroughly considered the environmental consequences of the project’s construction noise," Bumatay said. "Rather than picking and choosing the data we want, we should have deferred to the FAA’s reasonable analysis."

U.S. Circuit Judge Morgan Christen, also an Obama appointee, rounded out the majority.

"This ruling gives voice to our residents by requiring that the FAA assess and address the noise from construction of the new terminal," LA City Attorney Hydee Feldstein Soto said. "I’m proud of the team in my office and grateful to the community for continuing to press forward to ensure that the FAA and the Burbank Airport Authority fully consider the significance of noise levels on all those living and working nearby."

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