|The following history is an excerpt (Sec. III) from "Airport Noise Pollution: Is There a Solution in Sight?" by Kristin Falzone, published in Boston College Environmental Affairs Law Review, vol. 26, pages 769-807 (1999).|
Today, regulation of aircraft noise is primarily achieved through federal legislation.  Congress has historically struggled with the proper balance between the interests of individuals owning land near airports and society's interest in the existence and expansion of airports.  In addition, Congress has repeatedly emphasized the local nature of noise abatement policy while simultaneously enunciating greater federal involvement in such issues.  An examination of the major federal legislation designed to regulate airport noise demonstrates the difficulty of balancing these competing interests.
Early federal statutes made clear Congress' intent to leave the responsibility for the ownership and development of airports to state and municipal governments.  The Air Commerce Act of 1926 provided that airports are under the "jurisdiction and control of municipalities concerned."  This policy of encouraging local control of airports was further enunciated in the Civil Aeronautics Act of 1938 (CAA), which prohibited the Administrator of Civil Aeronautics from acquiring any airport.  With the advent of commercial air traffic in 1958, Congress enacted the Federal Aviation Act of 1958 (Federal Aviation Act or the Act) as a substitute for the CAA. 
Under these early statutes, local governments were given responsibility for setting and enforcing rules and regulations governing airports, yet the federal government was given dominion over the air space.  Utilizing its commerce power, Congress gave the federal government "complete and exclusive national sovereignty in the air space" over the United States.116 To accommodate increased air travel, Congress granted citizens of the United States "a public right of freedom of transit in air commerce through the navigable air space of the United States." 
The Federal Aviation Act created the FAA, subsequently replacing local governments as the primary authority for aviation safety.  The Act contemplated a unified and coordinated air transportation system, although most airports in the United States at the time of the Act's passage were owned and operated by local governments. 
The Federal Aviation Act gave the FAA broad authority to control and regulate the use of navigable airspace and aircraft operations.  It focused on safety and economic issues, and did not directly address the increasing aircraft noise problem.  Only a few of its provisions dealt with environmental issues, and very few of these implicated state or local governmental powers to any significant degree. [l22] The FAA relied on voluntary cooperation among aircraft and engine manufacturers, the airlines, and airport operators to handle aircraft noise problems. 
In 1968, Congress amended the Federal Aviation Act, authorizing the FAA to include noise considerations as a factor in approving jet aircraft and engine design. [l24] The Control and Abatement of Aircraft Noise and Sonic Boom Amendment directed the FAA to develop standards for measuring' aircraft noise and to provide for the control and abatement of aircraft noise at the source.  In doing so, the FAA had to ensure that its standards were "consistent with the highest degree of safety" and "economically reasonable, technologically practicable, and appropriate for the applicable aircraft, aircraft engine, appliance, or certificate." 
With statutory authority under the 1968 amendment, the FAA issued Federal Aviation Regulation (FAR) Part 36.  Part 36 created a system for measuring aircraft noise and established maximum levels of noise output for both newly certified aircraft and existing older aircraft.  Part 36 breaks noise emissions into three different levels or "stages," based on an aircraft's size and number of engines.  Many anti-noise groups criticized the regulation, however, because it only applied to those aircraft designs with submitted certification applications after December 1, 1969. 
In 1970, Congress directed EPA to establish the Office of Noise Abatement and Control (ONAC).  Congress ordered ONAC to complete a one-year investigation and study of the effects of noise on public health and welfare.  Based on its findings, EPA convinced Congress that noise pollution was a serious problem.  EPA reported that in the United States, forty million people were exposed to noise capable of inducing hearing loss, and that transportation and aircraft noise had reduced the property values of forty-four million people.  In 1972, in response to ONAC's report, Congress enacted the Noise Control Act (NCA).  Recognizing that "inadequately controlled noise presents a growing danger to the health and welfare of the Nation's population," the NCA ordered the establishment of a "means for effective coordination of Federal research and activities in noise control."  Congress asserted that while primary responsibility for noise control rests with state and local governments, "[f]federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment."  The stated purposes of the NCA were to establish a means for effectively coordinating federal research and activities in noise control, to authorize the establishment of federal noise emission standards, and to provide information to the public concerning the noise emission and noise reduction characteristics of low-noise emission products. 
The NCA drew EPA into the comprehensive scheme of federal control of aircraft noise.  It directed ONAC to conduct a study of the adequacy of the FAA noise regulations, and to propose regulations for the control and abatement of noise which EPA considered necessary to protect the public health and welfare.  Even with the introduction of EPA to the regulatory scheme, however, the FAA retained its primary responsibility for regulation of aircraft noise under the NCA.  The FAA failed to implement many of EPA:s recommendations, straining the relationship between the two agencies.  EPA consistently disagreed with the FAA on the selection of noise measurement methodologies, the threshold of noise at which health impacts are felt, and the implementation of noise abatement programs at airports around the United States. 
In 1978, Congress enacted the Quiet Communities Act, authorizing ONAC to create a grants program and offer technical assistance to state and local governments in order to stimulate noise abatement.  ONAC assisted communities by hosting training programs, writing and distributing model state and local noise ordinances, and establishing a program designed to help localities purchase low-noise emission products.  In 1981, the Reagan Administration's Office of Management and Budget ceased funding for ONAC.  As a result, it was estimated that more than a thousand community noise abatement programs, dependent upon federal funding and expertise, were virtually shut down.  This forced EPA to end most of its noise abatement activities.  EPA still remains responsible for enforcing regulations issued under the NCA even though its funding has been terminated. 
In 1976, in response to problems occurring under FAR Part 36, the FAA enacted FAR Part 91.  Part 91 limits the noise emissions of existing aircraft by applying stricter standards retroactively to all aircraft.  Because Part 36 implemented prospective noise standards only, aircraft owners could avoid stricter noise regulations by purchasing planes manufactured prior to 1974 using pre-1969 designs.  The newly enacted Part 91 retroactive standards created much controversy in the aircraft industry due to the high costs associated with their implementation.  In response to the new financial burden on U.S. air carriers and the continuing need for a comprehensive noise abatement program, Congress enacted the Aviation Safety and Noise Abatement Act of 1979 (ASNAA). 
ASNAA directed the Department of Transportation (DOT), after consultation with EPA  and other federal, state, and interstate agencies, to establish a comprehensive single program for measuring airport noise and compatibility.  ASNAA extended the technology implementation deadlines for compliance with Part 91.  In addition, it established a noise compatibility planning system, comprised of financial incentives to induce both airport and aircraft operators to adopt anti-noise pollution policies. [l58] Planning is only mandatory if the airport desires federal aid for development. 
Under ASNAA's planning system, DOT developed a uniform system for measuring aircraft noise levels and determined compatible land uses for areas with various noise levels.  Based on this information, airport proprietors may develop noise exposure maps for their airports, pointing out problem noise areas and any incompatible uses in those areas.  After completion of approved noise compatibility maps, airport operators qualify for federal grants to develop their proposed noise compatibility programs. 
In addition to its financial incentives, ASNAA provides airport proprietors with other inducements for submitting noise compatibility programs.  First, the noise exposure maps enable airport operators to limit potential liability for noise pollution by notifying potential purchasers of property near the airport of the possibly high noise levels.  Purchasers of property near an airport with a noise exposure map are limited in recovering damages because they are presumed to have had actual or constructive knowledge of the noise exposure map.  The only way a purchaser can overcome this presumption is to show that there has been a significant change in the type or frequency of aircraft operations at the airport, airport layout, flight patterns, or an increase in night operations, and that the damages resulted from this change or increase.  In addition, ASNAA offers airport proprietors further protection by prohibiting private litigants from using the noise exposure map against an airport in a civil suit seeking relief from airport noise. 
Noise compatibility planning is based on localized fact-specific circumstances.  A plan is based on an examination of areas within and beyond an airport's borders to ensure the noise compatibility of an airport with its surrounding community.  Localized planning prompted the airline and air cargo industries to lobby Congress for legislation to counteract the proliferation of noise restrictions that were adopted by airports around the country. 
Airport Noise and Capacity Act of 1990
In response to the air industry's lobbying efforts, Congress passed the Airport Noise and Capacity Act of 1990 (ANCA), in an attempt to integrate the increasing number of individualized noise restrictions imposed on airports by local operators.  In enacting ANCA, Congress emphasized a national noise policy that considers local interests in aviation noise management through the use of new technologies, use of revenue from passenger facility fees, and review of current operations.  ANCA's opponents, primarily citizens groups, argued that the legislation gave FAA unlimited discretion to strike down local noise abatement efforts and would actually increase the noise problem by allowing carriers to keep their noisiest aircraft in the sky and by increasing the total number of aircraft in service.  ANCA, another attempt to balance the competing interests of the airline industry and citizens residing near airports, consists of two separate programs.  First, ANCA directs the DOT to establish a national aviation noise policy and program for reviewing airport noise and access restrictions on the operation of stage two and stage three aircraft.  Second, ANCA provides for a national phase-out of stage two aircraft operating in or out of U.S. airports and requires the airline industry to achieve a 100% stage three fleet of quieter aircraft by the year 2000.  In 1991, the FAA began administering new Federal Aviation Regulations (FAR) Part 161.  Part 161 implements provisions of ANCA by establishing a national program for reviewing airport noise and access restrictions on stage two and stage three aircraft operations. 
108 See discussion infra Part III.A-D.
109 See discussion infra Part III.A-D.
110 See discussion infra Part III.A-D.
111 See JOHN E. STEPHEN, LEGAL AND RELATED ASPECTS OF AIRCRAFT NOISE REGULATION 29 (U.S. Government Printing Office 1967).
112 Id. at 29-30.
113 See Civil Aeronautics Act of 1938, 49 U.S.C. app. 401-722, repealed by Federal Aviation Administration Act of 1958, 49 U.S.C. 40101-40120 (1994). With the CAA, Congress created the Civil Aeronautics Board as an independent regulatory agency, bringing airlines into the family of regulatory agencies it had first established with railroads and motor carriers. See Suzanne Imes, Comment, Airline Passenger Facility Charges: What do they Mean for an Ailing Industry?, 60 J. AIR L. & COM. 1039, 1042 (1995). The airline industry remained regulated for forty years until Congress passed the Airline Deregulation Act of 1978. See id. at 1043, 1044.
114 49 U.S.C. 40101-40120.
115 Id. § 40103(a).
116 United States v. Causby, 328 U.S. 256, 260 (1945) (citing 49 U.S.C. 176(a), which was replaced by 49 U.S.C. 40103(a)(1), which currently grants the U.S. government "exclusive sovereignty of airspace of the United States").
117 id. (citing 49 U.S.C. 403, which was replaced by 49 U.S.C. 40103(a)(2), which currently grants a "public right of transit through the navigable air space"). Navigable air space was defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." id. (citing 49 U.S.C. 180, which was replaced by 49 U.S.C 40102(a)(30), which now defines navigable air space as the "airspace above minimum safe altitudes of flight prescribed by regulations. . . including airspace needed to ensure safety in the takeoff and landing of aircraft").
118 See 49 U.S.C. 106 (1994); see also Gale Schlesinger, Airport Noise: The Proprietor's Dilemma, 16 TRANSP. L.J. 333, 334 (1988).
119 See 49 U.S.C. 40101; STEPHEN, supra note 111, at 31.
120 See 49 U.S.C. 40103.
121 See id.; see also John J. Jenkins, Jr., Comment, The Airport Noise and Capacity Act of 1990: Has Congress Finally Solved the Aircraft Noise Problem?, 59. J. AIR L. & COM. 1023, 1030 (1994); Schlesinger, supra note 118, at 334. The Administrator of the FAA is given broad authority to regulate the use of navigable airspace in order to "ensure the safety of aircraft, and the efficient use of airspace" and for "protecting individuals and property on the ground." 49 U.S.C. 40103(b).
122 See DAVIDSON & DELOGU, supra note 3, at 12-6 [2 JOHN HENRY DAVIDSON & ORLANDO E. DELOGU, FEDERAL ENVIRONMENTAL REGULATION 7-1 (1994)].
123 See Jenkins, supra note 121, at 1031.
124 See 49 U.S.C. 44715.
125 See id.
126 See id. § 44715(b); Creswell, supra note 45, at 54-55 [Lyn Lloyd Creswell, Airport Policy in the United States: The Need for Accountability, Planning, and Leadership, 19 TRANSP.L.J. 1 (1990)].
127 14 C.F.R. 36 (1997).
128 See id.; Jenkins, supra note 121, at 1032; Schoen, supra note 104, at 312 [Jeffrey Schoen, Comment, Airport Noise: How State and Local Governments Can Protect Airports from Urban Encroachment, 1986 ARIZ.ST.L.J. 309 (1986)].
129 14 C.F.R. 36. Aircraft which were certified prior to the publication of Part 36, and which were not thereafter modified to satisfy the new standard, became known as "stage one" aircraft. See Creswell, supra note 45, at 55. Aircraft meeting the 1969 standard are now referred to as "stage two" aircraft. id. Stage two airplanes include Boeing models 727-200, 737-200 and McDonnell Douglas model DC-9. See FAA: Aircraft wise levels continue to decline, Secretary Slater announces, M2 Presswire, Oct. 1, 1997, available in 1997 WL 14464753 [hereinafter M2 Presswire]. In 1977, the FAA adopted a stricter standard for aircraft noise emissions for all aircraft certified after that date. See Creswell, supra note 45, at 55. These aircraft, known as "stage three" aircraft, are subject to the strictest noise restrictions. 14 C.F.R. C36.5. Stage three airplanes include Boeing models 737-300, 757, 777, and McDonnell Douglas model MD-90. See M2 Presswire, supra this note.
130 See Jenkins, supra note 121, at 1032. The FAA amended FAR 36 in 1973, making it applicable to older aircraft designs, manufactured after December 1, 1973, but these regulations became effective in 1977. See Jenkins, supra note 121, at 1032 n.59.
131 See 42 U.S.C. 7641 (1994).
132 See id. § 764.1(a)-(b).
133 See Shapiro, supra note 32, at 8 [Sidney A. Shapiro, Lessons from a Public Policy Failure: EPA and Noise Abatement, 19 ECOLOGY L.Q. 1 (1992)].
134 See id. 135 42 U.S.C. 4901-4918 (1994). The Noise Control Act of 1972 amended portions of the 1968 Amendment of the 1958 Federal Aviation Act. See id.
136 42 U.S.C. 4901(a)-(b). While the Noise Control Act delegated much jurisdiction over noise abatement to the federal government, Congress intended to leave some asperts of noise control to state and local governments. See DAVIDSON & DELOGU, supra note 3, at 7-3. In 1978, Congress enacted the Quiet Communities Act which amended the Noise Control Act of 1972 to emphasize the significance of state and local control of noise, particularly with respect to nonproduct sources of noise. See id.; 42 U.S.C. 4913. Nonproduct sources are "amenable to control by traditional planning, siting, and landuse control tools, the adoption of point-source noise emission standards or ambient-noise standards, and time-of-day or other operational limitations." DAVIDSON & DELOGU, supra note 3, at 7-4.
137 42 U.S.C. 4901(a)(3).
138 See 61A AM. JUR 2D Pollution Control § 268 (1981).
139 See 42 U.S.C. 4903.
140 See id.; 49 U.S.C. 44715(c) (1994).
141 See 49 U.S.C. 44715. The FAA retained the right to reject any of the EPA-recommended regulations if the FAA determined that the regulations were not "economically reasonable, technologically practicable, [nor] appropriate for the applicable aircraft, aircraft engine, appliance, or certificate." id. § 44715(b).
142 See Creswell, supra note 45, at 55-56 n.151; Jenkins, supra note 121, at 1033. In two reports to Congress, EPA stated that the problem of aircraft noise was primarily "institutional rather than technical." Creswell, supra note 45, at 55-56 n.151.
143 See 143 CONG. REC. S6186 (1997); see also Shapiro, supra note 32, at 16. From December 1974 to October 1976, EPA submitted eleven proposals to the FAA concerning aircraft noise. See Shapiro, supra note 32, at 16. The FAA adopted one proposal in full and parts of two others. See id. at 16 n.107.
144 42 U.S.C. 4913 (1994); see also Shapiro, supra note 32, at 17.
145 See Shapiro, supra note 32, at 17-18.
146 See id. at 1; 143 CONG. REC. S6186.
147 See Alice H. Suter, Noise Abatement: Quiet!!! Save a Nation's Eardrums, WASH. POST. Nov. 12, 1989, at D3.
148 See Shapiro, supra note 32, at 2.
149 See id. "Of the twenty-eight environmental and health and safety statutes passed between 1958 and 1989, the Noise Control Act of 1972 . . . stands alone in having been stripped of budgetary support. Congress, however, did not repeal the Noise Act when it elimnated ONAC's funding, so EPA continues to have a statutory responsibility to implement it." id.
150 See 14 C.F.R. 91.801-.877 (1997); Vicky Tsilas, Note, An Analysis of the Phase-Out Provisions of the Airport Noise and Capacity Act of 1990, 4 FORDHAM ENVTL. L. J. 83, 86 (1992).
151 See 14 C.F.R. 91.803.
152 See Tsilas, supra note 150, at 86.
153 See id. at 87.
154 49 U.S.C. 47501-47510 (1994); see also Jenkins, supra note 121, at 1034; Tsilas, supra note 150, at 87.
155 Implementation of ASNAA and its policies occurred two years prior to the elimination of ONAC's funding.
156 See 49 U.S.C. 47502. The Secretary of Transportation is directed to:
(1) establish a single system of measuring noise that --
(A) has a highly reliable relationship between projected noise exposure and surveyed reactions of individuals to noise; and
(B) is applied uniformly in measuring noise at airports and the surrounding area;
(2) establish a single system for determining the exposure of individuals to noise resulting from airport operations, including noise intensity, duration, frequency, and time of occurrence; and
(3) identify land uses normally compatible with various exposures of individuals to noise.
157 See id. § 47508.
158 See id. §§ 47503-47505.
159 See Schoen, supra note 104, at 314.
160 See 49 U.S.C. § 47502.
161 See id. § 47503.
162 See id. § 47504(c). For a full discussion of the components and funding of noise compatibility programs, see Part V.
163 See generally 49 U.S.C. §§ 47506, 47507.
164 See id. § 47506.
165 See id.
166 See id. § 47506(a)(1).
167 See id. § 47507.
168 See Schoen, supra note 104, at 326-27.
169 See id.
170 See Shapiro, supra note 32, at 59.
l71 49 U.S.C. 47521-47533; see also Jenkins, supra note 121, at 1036; Shapiro, supra note 32, at 59; Tsilas, supra note 150, at 87. Congress enacted ANCA in the waning moments of the 1990 legislative session. See Shapiro, supra note 32, at 58. Citizens groups that opposed the passage of ANCA claim that the sponsors of the legislation were able to get it passed by Congress during the cbaos of the last few days of the session. See id. at 59 n.350. Opponents argue that no public hearings were held, and although committee staffers consulted industry lobbyists during the bill's markup, representatives of airport operators were not consulted. See id.
l72 See 49 U.S.C. 47521.
173 See Shapiro, supra note 32, at 59 n.350.
l74 See 49 U.S.C. §§ 47524, 47528; see also Jenkins, supra note 121, at 1037; Tsilas, supra note 150, at 90.
175 See 49 U.S.C. 47524; see also Jenkins, supra note 121, at 1037; Thilas, supra note 150, at 90. For a discussion of aircraft noise levels, see supra notes 128-30 and accompanying text.
l76 See 49 U.S.C. 47528; see also Jenkins, supra note 121, at 1037; Thilas, supra note 150, at 90. Some airlines are complying with the stage two airplane phaseout by installing FAA certified stage three noise level hushkits to their stage two fleet. See M2 Press wire, supra note 129. As of December 1996, a report submitted to Congress by DOT stated that 75.5% of the airplanes operating in the U.S. met stage three noise requirements. See id.
177 U.S. DEP'T OF TRANSP., FEDERAL AVIATION ADMIN., REPORT TO CONGRESS-SIXTEENTH ANNUAL REPORT OF ACCOMPLISHMENTS UNDER THE AIRPORT IMPROVEMENT PROGRAM 36 (1998) [hereinafter SIXTEENTH ANNUAL REPORT].
178 See id.