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DiPerri v. Federal Aviation Admin.

ELR Citation: 13 ELR 20053
Nos. No. 81-1468, 671 F.2d 54/17 ERC 1797/(1st Cir., 02/19/1982)

The First Circuit affirms the district court's dismissal of claims that the Federal Aviation Administration (FAA) is required under the Federal Aviation Act to promulgate airport noise regulations for Logan Airport in Boston, Massachusetts. The court notes that although §611 of the Act authorizes the FAA to promulgate airport noise regulations, the FAA Administrator has not issued such regulations. In addition, §611 indicates that the issuance of noise regulations is discretionary with the Administrator. Therefore, the court rules that the §611 claim is not maintainable under the citizen suit provision of the Noise Control Act since that provision authorizes only suits to compel nondiscretionary acts.Appellants also do not have a claim under §307 of the Act, which requires the FAA to promulgate regulations to, among other things, protect persons and property on the ground. The legislative history and case law support the conclusion that §307 refers to safety and not noise. The court also notes that noise abatement is up to the local government, not the FAA. Finally, the court remands to the district court for reconsideration of appellants' claim that FAA flight pattern rules are hazardous to appellants' safety on the ground, ruling that appellants' allegations are sufficient to state a claim of arbitrariness under the Administrative Procedure Act.

Counsel for Appellants
James J. Twohig
508 E. Broadway, South Boston MA 02127
(617) 268-5128

Counsel for Appellees
Gregory C. Flynn, Ass't U.S. Attorney
1107 U.S. P.O. & Cthse., Boston MA 02109
(617) 223-3181

Richard J. Lettieri, Assoc. General Counsel
Massachusetts Port Authority
99 High St., Boston MA 02110
(617) 482-2930

Before CAMPBELL, BOWNES, and BREYER, Circuit Judges.