AVIATION NOISE LAW
Ability of Local Jurisdictions to Regulate Airport Noise


Ability of Local Jurisdictions to Regulate Airport Noise

By Howard Beckman
Attorney at Law

All rights to publication are reserved by the author. Republication of all or any portion of the text, other than "fair use," requires express permission from the author.

(Revised August 2, 2012)



Introduction

The major restraint on the ability of local jurisdictions to regulate or abate aircraft noise is that local power is preempted in most respects by federal law. The issue of preemption is discussed separately (see Federal Preemption of Actions Related to Airport Noise).

Despite federal preemption, the local airport owner and the city or county in which the airport is located (which are usually the same) has considerable ability to regulate or abate aircraft noise depending on complex factors.

The U.S. Supreme Court's decision in the 1973 case of City of Burbank v. Lockheed Air Terminal is the seminal decision on the issue of whether local or state government can regulate aircraft noise. (411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547.) The court held that the general police powers of state and local authorities do not extend to aircraft noise because of federal preemption (authority invested in the Federal Aviation Administration and Environmental Protection Agency). However, the court left open what limits, if any, should be applied to the proprietary rights of municipalities and counties that own and operate airports (see footnote 14 of the court's opinion). This question was later addressed in the 1976 case of National Aviation v. City of Hayward, where the U.S. District Court for the Northern District of California articulated the "proprietor's exemption" to preemption. This exemption, which is recognized by all federal and state courts, simply underscores that an airport owner has a right to regulate noise.


Literature

The articles listed here specifically address the dilemma of federal versus local regulation of aircraft noise. A number of articles in law reviews that survey the legal framework of airport noise regulation also address this issue but are not included here. For a comprehensive list of articles on legal issues concerning airport noise see Secondary Literature.
Aeronautics and Aerospace, 2A Corpus Juris Secundum. See § 20 ("State and Municipal Regulation") and § 72 ("Abatement and Injunction").

"Aircraft Noise Abatement: Local versus National Control." 1970 Law & Soc. Order 678-___ (1970).

"An Airport's Reasonable Nondiscriminatory Noise Level Regulations Are Not Preempted by Federal Law." 18 Va. J. Int. Law 569-579 (1978).

Berg, David. "Proprietor's Rights: A Debate -- Preemption and Proprietary Powers: A Limited Exception." 15 Air Space Law J. 5-___ (2001).

Berger, Michael M. "Nobody Loves an Airport." 43 So. Cal. Law Rev. 631-789 (1970). [This article was originally a Master of Law thesis; it is a major work, comprehensively covering the legal issues on airport noise.]

"Concorde (British Airways Bd. v. Port Authority of NY & NJ) and Local Control of Airport Noise: Federal Preemption?" 13 New Engl. Law Rev. 473-503 (winter 1978).

Doyle, J. Timothy. "We May Yet Have a Quiet Environment: The New California Airport Noise Regulations." 12 Santa Clara Law 79-106 (1971).

"Federal Preemption in Airport Noise Abatement Regulation: Allocation of Federal and State Power." 26 Maine Law Rev. 321-344 (1974).

"Federal Regulation under Federal Aviation Act and Noise Control Act Preempts the Field of Airport and Aircraft Noise Control Rendering Local Airport Curfews Invalid." 22 Univ. Kan. Law Rev. 319-336 (winter 1974).

"Federal v. State Control of Aeronautical Noise Pollution." 5 Suffolk U. Law Rev. 1093-___ (spring 1971).

Goldstein, Marcia C. "Aircraft Noise Abatement: Is There Room for Local Regulation?" 60 Cornell Law Rev. 269-298 (Jan. 1975).

Jablonski, Barbara H. "Federal Preemption and Airport Noise Control." 8 Urban Law Ann. 229-239 (1974).

Jenkins, John J. Jr. "Airport Noise and Capacity Act of 1990: Has Congress Finally Solved the Aircraft Noise Problem?" 59 J. Air Law Comm. 1023-1055 (1994).

Katz, Judith. "Federal Preemption of Local Airport Noise Regulation." 25 Cath. U. Law Rev. 580-600 (1976).

Kirsch, Peter; and Daniel Reiner. "The Airport Noise Act: Safe Harbor or Procedural Hurdle?" 16 Air Space Law J. 14-___ (2002).

"Legal and Institutional Framework for an Airport Noise-compatibility Land Use Program." 10 U. Mich. J. Law Reform 447-475 (spring 1977).

"Local Airport Proprietors May Impose Noise Requirements for Aircraft Provided the Regulations Are Reasonable and Nondiscriminatory." 10 Case West. Reserve J. Int. Law 223-228 (winter 1978).

Muss, Joshua A. "Aircraft Noise: Federal Preemption of Local Control, Concorde and Other Recent Cases." 43 J. Air Law Comm. 753-798 (1977).

Nierenberg, R.A. "Incentives versus Regulation: The Case for Airport Noise Charges." 2 GMU Law Rev. 167-208 (winter 1978).

North, Mairin K. "Current State of the Law in Aircraft Noise Pollution Control." 43 J. Air Law Comm. 799-822 (1977).

Nuesch, Pablo. "Proprietor's Rights: A Debate -- Rights as a Tool for Airport Management." 15 Air Space Law J. 8-___ (2001).

Pavlicek, Michael J. "O'Hare International Airport: Impervious to Proposed State Efforts to Limit Airport Noise." 47 J. Air Law Comm. 413-448 (1982).

Pennington, William. "Airport Restrictions: A Dilemma of Federal Preemption and Proprietary Control." 56 J. Air Law Comm. 805-845 (1991).

Stein, Michael. "The Effect of the Federal Preemption of Noise Control and Air Pollution on Local Initiative: Can Prometheus Be Unbound?" 38 J. Air Law Comm. 427-436 (1972).

Strauss, David. "Federal Regulation of Aircraft Noise under Federal Aviation Act Precludes Local Police Power Noise Restrictions (City of Burbank v. Lockheed Air Terminal)." 15 Boston Coll. Ind. & Com. Law Rev. 848-862 (April 1974).

"Use of Local Police Powers to Impose Curfews on Air Flights Is Preempted by the Federal Aviation Act of 1958 As Amended by the Noise Control Act of 1972." 5 Rutgers Camden Law J. 566-584 (spring 1974).

"Validity of Municipal Regulation of Aircraft Flight Patterns or Altitudes," 36 American Law Reports 3d 1314

"Validity under Federal Constitution of Federal, State, or Local Anti-noise Laws and Regulations, 36 L.Ed.2d 1042 (§§ 3-4)

Werlich, John M.; and Richard P. Krinsky. "The Aviation Noise Abatement Controversy: Magnificent Laws, Noisy Machines, and the Legal Liability Shuffle." 15 Loyola of LA Law Rev. 69-102 (1981).


Cases

FEDERAL

Courts of Appeal

British Airways Board v. Port Authority (Concorde I) (1977) -- Airport proprietors can restrict use of the airport, subject to two restrictions: noise regulations imposed by the proprietor must not create an undue burden on interstate or foreign commerce and such restrictions may not unjustly discriminate between different categories of airport users. The court reversed the district court's order, contained in summary judgement, enjoining the Port Authority of N.Y. and N.J. from banning operations of the supersonic Concorde jet at JFK International Airport. (2d Cir.; 558 F.2d 75; district court opinion after remand, 437 F.Supp. 804)

British Airways Board v. Port Authority (Concorde II) (1977) -- After Concorde I (see above) the Port Authority of N.Y. and N.J. continued its total ban on Concorde landings at Kennedy Airport, and delayed action on developing a noise standard applicable to all aircraft including the Concorde. The district court again enjoined the Port Authority from selectively prohibiting the Concorde from using the airport unless the prohibition were based on noise standards applied to all aircraft (437 F.Supp. 804). In this appeal the court affirmed the order of the district court "so far as it dissolves the ban on SST flights at Kennedy Airport and permits the Concorde to serve New York under conditions detailed in federal operations specifications. Our holding, however, does not deny the Port Authority the power to adopt a new, uniform and reasonable noise standard in the future ...." (2d Cir.; 564 F.2d 1002)

City and County of San Francisco v. Federal Aviation Administration (1991) -- In 1978 the city's Airports Commission adopted a noise abatement resolution, the practical effect of which was to permit only stage-3 (most quiet) aircraft and certain "grandfathered" stage-2 aircraft at the airport after Jan. 1, 1985. As a result, Burlington Air Express, an air cargo carrier, was prohibited from operating certain aircraft at the airport after that date because the aircraft were not certified as stage 2. In fact, the planes were stage 1 (noisiest) and retrofitted to meet stage-2 standards. In March 1985 the FAA certified the Burlington aircraft as stage 2, and Burlington applied to the city for a waiver from the 1978 regulations. The waiver was denied on the grounds that the stage-2 certification had not been made before the Jan. 1, 1985 deadline. Burlington filed a complaint with the FAA. Consequently, the city's applications for FAA Airport Improvement Program (AIP) grants for 1986 - 1989 were denied by the FAA on the grounds that the city had "unjustly discriminated" against certain types of aircraft through its 1978 regulation, thus violating assurances given by the city as a condition of earlier AIP grants.

An administrative law judge hearing Burlington's complaint ruled that, since there was substantial evidence that the Burlington aircraft were no noiser than many other aircraft permitted at the airport, the city had breached its earlier assurance that it would not "unjustly discriminate" against types of aircraft. The FAA Administrator affirmed, and the city petitioned for review by the court. The court upheld the FAA decision, reaffirming that airport operators may only adopt noise control regulations that do not "unjustly discriminate" against types of aircraft. (9th Cir.; 942 F.2d 1391)

Global Int'l Airways Corp. v. Port Auth. of N.Y. & N.J. (1984) -- Airport proprietors may implement noise abatement programs to reduce the cumulative noise level of aircraft, as opposed to targeting only peak noise levels or the noise produced by an individual aircraft. At issue in this case was an airport rule that required individual air carriers to meet minimum percentages of "noise compliant" aircraft -- "noise compliant" being defined in terms of the FAA noise classification system of stage-1 and stage-2 aircraft. (2d Cir.; 727 F.2d 246)

Grand Canyon Air Tour Coalition v. FAA (1998) -- In 1987 Congress, through the National Parks Overflights Act, directed the Secretary of the Interior to recommend to the FAA Administrator actions to be taken to "provide substantial restoration of the natural quiet and experience of the [Grand Canyon] park." The FAA was directed to prepare a plan for managing the air space above the park. Sometime after implementation of the plan, the Secretary was required to report to Congress on whether the plan was succeeding. The required report was submitted to the Congress in 1994, and it reflected two important determinations by the National Park Service: (1) the appropriate measure for quantifying aircraft noise was the percentage of time that aircraft are audible, and (2) the statutory phrase "substantial restoration of the natural quiet" required that 50 percent or more of the park achieve "natural quiet" (no audible aircraft) for 75-100 percent of the day. Two years later the FAA adopted these definitions in its final rule on managing the airspace over the Grand Canyon. The FAA's rule was challenged in court by air tour operators as "too much, too soon" and by a coalition of environmental organizations as "too little, too late." The court upheld the rule against both challenges. (See the related 2002 case, U.S. Air Tour Assn. v. FAA, below.) (D.C. Cir.)

Gustafson v. City of Lake Angelus (1996) -- City ordinances prohibiting the operation of seaplanes on the surface of Lake Angelus are not preempted by federal law. The court held that City of Burbank v. Lockheed Air Terminal, Inc. (U.S. Supreme Court) was not dispositive in this case. (6th Cir.; 76 F.3d 778)

National Helicopter Corp. of America v. City of New York (1998) -- In 1996 the city sought a new fixed-base operator for its heliport along the East River, issuing a request for proposal that contained seven restrictions on operations. Plaintiff, which had been the fixed-base operator for 20 years, challenged the validity of the restrictions. The court upheld the city's weekday and weekend curfews, phasing out weekend operations, and reducing overall operations by 47%. It held invalid the city's prohibition of certain helicopters (on grounds of federal preemption) and restrictions on sightseeing routes (on grounds the restrictions were not based on noise regulation). The city's restrictions do not violate the Commerce Clause of the U.S. Constitution because Congress has expressly approved of the "proprietary powers and rights" of state and local governments that own airports (49 U.S.C. 41713(b)(3)). (2nd Cir.; 137 F.3d 81)

San Diego Unified Port District v. Giantruco (1981) -- Airports in California must obtain a permit to operate from the state. Airports that do not meet the state's aircraft noise regulations can receive a variance permit. The state issued a variance permit for San Diego International Airport that required the airport to extend its nighttime curfew on flights. The Port sought an injunction against enforcement of the state-imposed curfew. The court held that even though the state's aircraft noise regulations were facially valid (cf. Air Transport Assn. v. Crotti, N.D. Cal., below), application of the regulations in this case violated federal supremacy in the field of aviation. Because the state was not the proprietor of the airport it was not entitled to impose conditions on flight operations. (9th Cir.; 651 F.2d 1306; cert. denied Department of Transp. of California v. San Diego Unified Port District, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866)

Santa Monica Airport Assn. v. City of Santa Monica -- (1981) A coalition of airport users challenged Santa Monica's airport noise ordinance. The court held that federal regulation of aviation does not preempt all noise regulations by municipal proprietors. The "maximum single event noise exposure level" (SENEL) in the ordinance is not preempted by federal law despite the fact it monitors the noise created by planes taking off and landing. The SENEL is not a regulation of airspace or aircraft in flight, but a reasonable regulation by an airport proprietor of noise made by an aircraft. Likewise, the airport's curfew on night departures is permissible. However, a total ban on jet aircraft is not. (9th Cir.; 659 F.2d 100)

SeaAir v. City of New York (2001) -- In order to reduce noise in the city, the city prohibited sightseeing air tours from a city-owned seaplane base. SeaAir, which operated tours from the base, sued. The court ruled that the City's regulation did not violate the Supremacy Clause, and that SeaAir's rights to due process or equal protection under the law were not violated. (2d Cir.; 250 F.3d 183)

Skysign International, Inc. v. City and County of Honolulu (2002) -- An aerial advertiser challenged Honolulu's ban on the use of aircraft to advertise in the airspace over the city. Held: federal aviation law does not preempt enforcement of ordinances regulating aerial advertising because Congress did not so completely occupy the field of aviation as to preempt the subfield of aerial advertising. (9th Cir.; 276 F.3d 1109).

Note: In reaching its decision the court relied on a statement in the FAA's guidelines for preparing a "Certificate of Waiver" for banner towing (FAA Order 8700.1, Vol. 2, Chap. 45). The statement had conditioned the waiver on any "state and local ordinances that may prohibit or restrict banner tow operations." Following the court's decision the FAA deleted the statement (see FAA Notice N 8700.16, October 7, 2002). Thus the Skysign decision has no precedential value.


District Courts

Air Transport Association v. Crotti (1975) -- The State of California's use of "community noise equivalent levels" (CNELs) as a standard for measuring aircraft noise is not per se invalid as an invasion of a federally preempted area (the court did not rule on whether the state's CNEL-based regulations were invalid as applied). However, the use of "single event noise exposure levels" (SENELs) is invalid because use of this standard in effect regulates noise levels occurring when an aircraft is in flight, and regulation of aircraft in flight is the exclusive domain of the federal government. (N.D. Cal.; 389 F.Supp. 58)

Arrow Air v. Port Authority of New York and New Jersey (1985) -- Air carrier sought to enjoin airport from prohibiting operation of aircraft that did not comply with its noise standards. Held: the noise restrictions were not preempted by FAA rules and were not administered in a discriminatory manner. Moreover, the restrictions did not violate the Constitution's commerce clause. (S.D. N.Y.; 602 F.Supp. 314)

Blue Sky Entertainment v. Gardiner (1989) -- Plaintiffs sought to enjoin enforcement of a town law regulating small airports and parachute jump centers. Held: The local nature of the airports governed by the ordinance did not preclude application of the doctrine of federal preemption. Thus, the portion of the ordinance that required compliance with federal regulations was invalid, while the portion that required compliance with state and local laws was not. All regulation of in-flight conduct is preempted, as are regulations that duplicate federal regulations. (N.D. N.Y.; 711 F.Supp. 678)

Lacy Aviation Co. v. City of Los Angeles (2001) -- The "non-addition rule" at Van Nuys Airport, in the form of an ordinance enacted by the City of Los Angeles, limits the time certain "stage 2" aircraft (planes with older noise-suppression technology) may be parked at the airport. Stage-2 aircraft with noise levels of 77 db(A) or greater cannot be parked at the airport for more than 30 days each year. The court found this rule does not violate the Equal Protection Clause of the U.S. Constitution. (C.D. Cal., Case No. CV-00-09255-SVW, unpublished)

National Business Aviation Assn. v. City of Naples Airport Authority (2001) -- Plaintiff challenged the airport's decision to use a 60 dB noise contour in defining airport use, arguing that FAA regulations required a 65 dB metric. Not only is no such requirement found in FAA regulations, the court said, but such a rule would be contrary to FAA regulations. Of particular note in this case is the court's rejection of plaintiff's argument that, under the Supremacy Clause and Commerce Clause of the U.S. Constitution, an airport can prohibit stage-2 aircraft (those with older noise-suppression technology) only if the prohibition is both "reasonable" and "nondiscriminatory". The court was not convinced such a "reasonableness" requirement could be derived from the Constitution, but nevertheless addressed the plaintiff's assertion that the airport's ban on stage-2 jets was unreasonable and concluded that all of the points raised to establish unreasonableness were either irrelevant or without merit. (M.D. Fla.; 162 F.Supp.2d 1343)

United States v. City of Blue Ash (1978) -- The Cincinnati-Blue Ash Airport is owned by the City of Cincinnati but lies within the city limits of Blue Ash. Out of concern for the noise of aircraft departing the airport, the City of Blue Ash enacted an ordinance requiring pilots departing the airport to make specified turns in order to reduce aircraft noise in residential areas. The court declared the ordinance invalid because the federal government has preempted the field of regulating aircraft in flight. (S.D. Oh.; 487 F.Supp. 135; aff'd, 6th Cir., April 15, 1980, 621 F.2d 227)

United States v. County of Westchester (1983) -- The federal government sought to enjoin the county, owner of an airport, from enforcing a curfew on nighttime flights. Held: the curfew was imposed without knowledge of the noise emitted by aircraft operating at the airport and therefore was unreasonable, arbitrary, and discriminatory. In addition, the curfew violated the terms of capital grants the airport received from the FAA. (S.D. N.Y.; 571 F.Supp. 786)

Western Air Lines v. Port Authority of New York and New Jersey (1986) -- The Port Authority operates Kennedy International, Newark International, and La Guardia airports. Western sought to enjoin application of a "perimeter rule" prohibiting nonstop flights to and from La Guardia in excess of 1,500 miles. The court held that the rule served a legitimate proprietary function because the airport operator had a legitimate interest in reducing ground congestion within a multi-airport system. Moreover, the rule did not unreasonably discriminate against certain air carriers because it had legitimate objectives. (S.D. NY; 658 F.Supp. 952)

Wing and a Prayer, Inc. v. City of San Jose (2001) -- In this case billionaire Larry Ellison challenged the right of San Jose to prohibit his private jet from flying into and out of San Jose International Airport during a curfew on flights. The judge ruled that the city's curfew did not apply to Ellison's jet, but stopped short of declaring the curfew unlawful. The decision posted here is on motions for interlocutory relief (prior to final judgment). (N.D. Cal., Case No. C 00-20018 JF, unpublished)


CALIFORNIA

No cases identified.


OTHER STATES

Alevizos v. Metropolitan Airports Comm. of Minneapolis & St. Paul, Minn. Ct. App., 1990 -- The state Pollution Control Agency's standards describing maximum levels of noise for various activities are, in the context of aircraft noise, preempted by federal authority over aviation. (452 N.W.2d 492)

Banner Advertising Inc. v. People of City of Boulder, Colo. 1994 -- A city ordinance banning commerical signs towed by aircraft is preempted by the Federal Aviation Act. (868 P.2d 1077)

Note: In Skysign International, Inc. v. City and County of Honolulu (2002) the 9th Circuit Court of Appeals concluded that federal law does not preempt a Honolulu ordinance banning aerial advertising and distinguishes Banner (see FN 6).

Harrison v. Schwartz, Md. Ct. App., 1990 -- Several conditions were attached to a conditional use permit for a privately owned airport. One condition limited the frequency of take-offs of glider-towing aircraft, another established a curfew for the operation of those aircraft. Held: Both conditions were invalid because preempted by federal law on aviation. (319 Md. 360, 572 A.2d 528)

Maryland Aviation Administration v. Newsome, Md. Ct. App. 1995 -- A developer's application for a variance to build homes within an airport's noise zone was denied by the state Board of Airport Zoning Appeals. The developer argued that because the property was zoned by the county for residential use, he was entitled to a noise variance. The court of appeals held that state regulations on airport noise override local zoning laws. (337 Md. 163, 652 A.2d 116)

State of Minnesota v. Metropolitan Airports Commission, Minn. 1994 -- Application of the state's noise standards to airport operations is preempted by federal law. The court distinguished this case from Crotti (U.S. Dist. Ct., N.D. Cal.) and Gianturco (9th Circuit U.S. Ct. App.). (520 N.W.2d 388)

Thul v. State of Minnesota, Minn. Ct. App., 2003 -- A city ordinance restricting the operation of regulated aircraft in certain residential areas does not violate the Equal Protection Clause, is not unconstitutionally vague, and is not preempted by federal law. (657 N.W.2d 611)