Why I Voted Against The Recent Agreement Regarding Airport Expansion

By Tony Daysog

Alameda, CLASS and the Port recently reached a settlement in October, 2002. Unfortunately, I could not support the settlement agreement, and voted against it. I believe the agreement is weak and that we hastily came to an agreement with the Port when there was no deadline at all. We had time to explore further ways to strengthen the agreement.

LEGAL BACKGROUND

The California State Court of Appeals handed Alameda and CLASS a tremendous victory in our ten-year fight against the Port of Oakland's airport expansion plan on August 31, 2001. In making its decision, the Court of Appeals reversed an earlier Superior Court decision and issued a strong unanimous opinion in our favor, finding that the EIR for airport expansion did not meet stringent requirement of the California Environmental Quality Act (CEQA).

Originally, the Superior Court ruled in Alameda's favor on two specific issues related to the adequacy of the EIR, although, in the same ruling, this court determined that the EIR's analysis and mitigation of noise impacts was adequate. Alameda and CLASS appealed the Superior Court's ruling regarding noise to the State Court of Appeals.

The State Court of Appeals agreed with Alameda\CLASS, noting that, "CEQA requires that the Port and the inquiring public obtain the technical information needed to assess whether (airport expansion) will merely inconvenience the Airport's nearby residents or damn them to a somnambulate-like existence" (from CLASS, Sept, 2001 newsletter).

Specifically, the appellate court rejected the Port's use of what is known as "averaged cumulative single event noise" when analyzing noise impacts.

In using the "average cumulative single event noise" approach, the Port juxtaposed heavy day-time noise events with low night-time noise events to arrive at an "average" figure which under-reported the noise problem and hence suggested minimal impacts, and, double-hence, suggested little or no need for noise mitigations.

We argued successfully that the Port's use of "average cumulative single event noise" approach was incorrect because the noise events occurred at many hours of the day and, with expansion, was at risk of increasing even more so; and, each noise event at any hour of the day represented significant environmental impacts that needed to be mitigated. The State Court of Appeals agreed with us.

The appellate court's support of the concept of "un-average cumulative single event noise" opened the door to some form of mitigation. One obvious mitigation was identifying and requiring a flight take-off pattern that produced the least intrusive noise impacts on local residents, also known as "silent seven's."

"Silent seven's" refers to the flight patterns assumed by an airliner leaving runway 11-29 - as it takes off, it flies along a route that looks like a "seven" - hence "silent seven".

This route was originally pressed for by advocates from Berkeley and Richmond - but Alameda stood to gain immensely by it, as this take-off flight procedures takes airliners as far away from land, and over the bay as much as possible. Hence the "silence" of "silent seven".

SPECIFIC GRIEVANCES

Unfortunately, the section in the Phase 2 agreement recently agreed to has a weak provision per "silent seven's." This section (4.2.h) is a single sentence that provides no mechanism for what happens if flights fail to use the "silent seven". In other words, if more planes go over neighborhoods as result of airport expansion, airport construction\ expansion is not at risk of being halted until silent seven's are resumed.

Moreover, read 4.2.h carefully: what does it do? Well, technically, 4.2.h does not have local officials measuring FAA air traffic control or airliner obedience to silent seven routes. Rather, 4.2.h has local officials measuring whether or not port officials talked (in good faith) with the FAA, not whether the FAA will actually institute the least intrusive flight take off (silent seven's).

City staff indicated to me that they agreed to section 4.2.h as written because Alameda, CLASS and the Port can not dictate flight patterns and take-offs, which are strictly in the control of the Federal Aviation Administration (FAA). I argued that the fact that the FAA controlled air-traffic did not preclude us from clarifying, defining and prescribing in section 4.2.h what is meant by the Port's "good faith" efforts to talk with the FAA regarding "silent seven's."

In my mind, the Phase 2 agreement per section 4.2.h should have included operative clauses that included (among other things) agreements to write memos of understandings between the Port and FAA regarding (a) "silent seven's" (b) common understanding of noise impacts on residents, (c) baseline figures on noise and over-flights and (d) procedures for the Alameda-Port-FAA to remedy noise problems.

Thus, we should have included a "check-list" or "bullet-point" of obligations that clarify "good faith" on the part of the Port, to which Port is held accountable, with failure to perform inviting sanctions or penalties.

We could have written section 4.2.h in such a way as to make it in the Port's continued interest to take serious the spirit of section 4.2.h - which is to make sure the FAA gets airliners leaving runway 11-29 to use the least intrusive take-off pattern.

What if in 5 or 10 years planes fly over our neighborhoods more so than before: will the Port simply shrug their shoulders and say, "Well, we met our responsibility per 4.2.h and, in good faith, talked with the FAA, but there's nothing we can do about the increased noise and flights over neighborhoods - and so airport expansion should continue unabated."

To its credit, this agreement institutionalizes for the first time a mechanism for the Port and Alamedans to talk about The Airport Master Plan. However, per Section 5, members of the institutionalized forum are limited in their discussion to issues related to 4.2 "a" through "e", which are important but are not linked to noise and flight patterns.

In other words, the forum is not a place for discussing things like instances in the future should more planes fly over Alameda neighborhoods. Section 4.2.h is not included in the topic of things to discuss identified in section 5.

I am convinced that the State Court of Appeals in supporting the concept of "un-average cumulative single event noise" opened the door and provided us leverage to push for concrete mitigations, including the use of performance measures. We failed to adequately exploit the opportunity provided by the appellate court.

It is true that the Port will share data on take-off flight patterns and noise with Alameda and CLASS in quarterly meetings agreed to in the Phase 1 agreement. However, the quarterly data is not linked to any substantive outcome with associated penalties for failure to perform: if the data shows that more planes are flying over neighborhoods, i.e. not using the "silent seven's", there is nothing in the agreement that allows us to use this information to slow or halt airport construction until over-flight problems are remedied.

FUNDAMENTAL PROBLEM: NO ACCOUNTABILITY

The fundamental problem with the agreement in general and the institutionalized forum as defined by 4.2.f is that there are no indicators or benchmarks that allow us to measure the performance of the Port against noise and flights over neighborhoods. And, as important, there is no mechanism that links performance data with penalties or sanctions for sub-par performance.

Thus, there is nothing in the Phase 2 agreement per noise or overflights against which we can hold the Port accountable.

To be sure, the agreement with Port includes important achievements. Per the Phase 1 agreement, the North Field runways cannot be realigned, lengthened, widened, reconstructed, overlaid or become jet aircraft operational (except in emergency situations).

WHAT NEXT?: DO PERFORMANCE BENCHMARKS MATTER?

There are those who say that, if the noise and over-flight situation gets worse, we, the City and CLASS, can sue the Port regardless of whether or not a performance benchmark system is implemented. I agree with this - but the point of the agreement and the joint committee process should be to defend Alameda from a position of strength. If worse comes to worse, wouldn't it better to go into court and say, "Your honor, the Port agreed to these performance measures and they had failed to perform."

The agreement is signed. What must we do next? For the institutionalized forum to work, several things need to be done immediately:

(a) A member of Alameda City Council must serve on the committee so that there is direct accountability to the people of Alameda: I will push to serve on the committee and will press to do so.

(b) The forum must immediately tackle the issue of creating indicators or benchmarks on noise, over-flights or other issues germane to the original purpose and concern of CLASS and Alameda, so that we have a basis for holding the Port accountable: I pushed for such things but was surprised to see that this was not a part of the agreement.

If the Port resists in allowing for these kinds of benchmarks, then you know the fidelity with which they hold the agreement.

(c) The City of Alameda must also continue to work with CLASS, budgeting funds for the joint committee, providing staffing, and funding outside counsel.

(d) We need to be engaged with the Port - and joint committee per 4.2.f is basis for building trust. But we also need to create benchmarks that allow us to verify whether or not more noise or over-flights are occurring, and these benchmarks need to be adopted by the Port as well.

(e) We need to have the Port agree to link performance against agreed-upon benchmark per noise and over-flights with continued expansion\ construction.

(f) We need to expand the noise abatement program offered by the Port.

(g) We need to continue to lobby state and federal elected officials.