Airport Noise Regulation Reconsidered: The Footnote that May Swallow Burbank

The federal district court for the northern district of California has for the second time in two years upheld the constitutionality of state and local ordinances enacted to control noise around municipal airports in the face of claims that the restrictions illegally invade a field of regulation pre-empted by the federal government. The cases are noteworthy because they suggest that the seemingly broad federal pre-emption of aircraft noise regulation announced by Justice Douglas in City of Burbank v. Lockheed Air Terminal,¹ may in reality be quite narrow. The district court's latest ruling, in National Aviation v. City of Hayward,² involved a challenge by four commercial airline operators to an ordinance prohibiting aircraft operations producing noise levels above 75 decibels (on the A scale) between 11:00 p.m. and 7:00 a.m., a restriction very similar to the one invalidated in Burbank. The court held that the Hayward ordinance was constitutional, however, after concluding that it was a valid exercise of the municipality's proprietary powers as owner and operator of the airport in question.

The doctrine of pre-emption arose in American jurisprudence as a response to the need for nationally uniform regulation over certain activities. Simply stated, the basic principle is that when the federal government validly regulates some activity, the Supremacy Clause of the federal Constitution operates to bar subordinate government entities from also regulating it.³ In order for a court to rule that a particular field of regulation has been pre-empted, it must find a clear expression of congressional intent to exclude state regulation and that conflicting state regulations would upset the pervasive scheme of federal control.

The Burbank Decision

In the area of aircraft flight regulation generally, the importance of nationwide uniformity is universally conceded. The problem of aircraft noise regulation, which is most acute in and around commercial airports, raises more complex questions, however, Section 611 of the Federal Aviation Act of 1958⁴ vested sole responsibility for aircraft noise regulation in the Federal Aviation Administration (FAA). In Burbank the Supreme Court held that this provision pre-empted further state or local regulation and invalidated a local ordinance which prohibited pure jet operations between 11:00 p.m. and 7:00 a.m.

The Court looked mainly to the legislative history of the Federal Aviation Act of 1958 to support this finding of pre-emption. The majority reasoned that the Act had specifically declared United States' sovereignty over its navigable airspace, that its noise control provisions were a part of the exercise of that sovereignty, and that amendments to the Act by the Noise Control Act of 1972⁵ had not altered the original congressional intent with respect to pre-emption. The majority found support for this analysis in a letter to the Senate committee in which the Secretary of Transportation said that the bill "would merely expand the Federal Government's role in a field already pre-empted…."⁶ In addition, the Court noted that pre-emption could be implied from the "pervasive nature of the scheme of federal regulation of [6 ELR 10204] aircraft noise."⁷ Finally, the Court adverted to the disruptive effects on air traffic flow of allowing an ordinance such as Burbank's to stand as precedent for similar ordinances that might be passed by other municipalities.

The rationale of the majority opinion evoked a strong dissent by Justice Rehnquist and three colleagues who questioned the conclusion "that Congress has impliedly pre-empted"⁸ the field of aircraft noise regulation. Where the majority saw broad federal pre-emption and a unified scheme of regulation, the dissenting justices saw a loose system in which federal, state, and local governments could each attack the problem of noise with separate approaches. The dissenters interpreted the congressional intent behind the Noise Control Act of 1972 as a desire to maintain the status quo, a system of complementary federal regulations and state efforts to curb noise and, in effect, zone for compatible usage around airports. The dissenters were chiefly concerned about the prospect of leaving state and local governments helpless in the face of federal pre-emption and developed a theory of a municipal proprietor's right to set noise limits on operations at its airports. The dissenters read § 611 as a technology improvement provision designed "to enable the Federal Government to deal with the noise problem created by jet aircraft through study and regulation of the source of the problem — the mechanical and structural aspects of jet and turbine aircraft design," rather than as an absolute bar against local governments trying other methods of noise control.

The First Breach: Crotti

The majority in Burback specifically declined to rule on the question of a municipality's right as an airport proprietor to regulate noise, stating in footnote 14 that: "We do not consider what limits if any apply to a municipality as a proprietor." Since Hollywood-Burbank is the only privately owned and operated airport in the country that handless commercial airlines operating under federal certificates, footnote 14 clearly presents a loophole which could potentially swallow the decision.

The federal district court for the northern district of California was the first, and thus far the only, court to have a go at interpreting footnote 14. In 1975, the court decided Air Transport Association v. Crotti,⁹ a case involving Community Noise Equivalent Limitations (CNEL), which set a goal for 1985 of 65 decibels as the maximum intensity of noise to which residential areas adjacent to the municipal airport could be subjected, and Single Event Noise Equivalent Limitations (SENEL), which controlled the noise emanating from an airplane in flight.

These standards differed from the ordinance reviewed in Burbank because the city in that case had exercised its police power to regulate activities at a private airport while Crotti involved standards promulgated in the form of state laws to be enforced by counties or cities as airport proprietors. In defending the Act's validity, the local governments relied heavily on footnote 14 of Burbank, arguing that it creates an exception to the general federal pre-emption for proprietors of airports to establish standards for their own property.

Judge East distinguished Burbank on the ground that it involved an ordinance directly attempting to forbid flights while the challenged law in Crotti merely sets performance standards. The court also reasoned that the responsibility to obtain sufficient air easements from adjacent property owners, imposed on airport proprietors by the early inverse condemnation cases of United States v. Causby¹⁰ and Griggs v. Allegheny County,¹¹ "necessarily includes the basic right to determine the type of air service a given airport proprietor wants its facilities to provide, as well as the type of aircraft to utilize those facilities." Judge East found further support for the proprietor's dominion over uses of his property in a federal aviation regulation which says that, while the aircraft may have complied with federal noise standards, that fact alone does not guarantee operations "at, into, or out of, any airport."¹² The court's final decision was that CNEL standards for ground noise levels were valid, but that SENEL standards for noise emanating from an airplane were not because the latter operated directly against aircraft in flight.

Widening the Breach: Hayward

The second airport noise case in the California northern district is National Aviation v. City of Hayward,¹³ which placed the question avoided by the majority in Burbank squarely before the district court. The city adopted an ordinance¹⁴ which states that the City of Hayward is "the owner, operator, and proprietor" of the airport in question and then "prohibits all aircraft which exceed a noise level of 75 dBA [decibels] from taking off or landing from the Hayward Air Terminal between the hours of 11:00 p.m. and 7:00 a.m." This language clearly grounds the ordinance in both the governmental proprietary power and general police power. The phrase "owner, operator, and proprietor" explicitly invokes the exception apparently created by footnote 14 of Burbank. Since the 75 decibel standard in the Hayward ordinance is designed to protect adjacent residential areas from excessive noise, it is analogous to the CNEL in Crotti.

The court framed the substantive pre-emption question involved as whether "the City of Hayward's status as proprietor of the Hayward Air Terminal leave[s] the [6 ELR 10205] city free to exercise its police power without constraint by federal pre-emption." Laying the foundation for its answer, the court distinguished Burbank on its facts by noting the Hollywood-Burbank airport's unique status as a private facility. Judge Peckham relied on decisions holding that airport improvements are within the proprietor's discretion, and analogized the requirement to obtain more noise easements for noisier aircraft to the requirement to lengthen runways for larger aircraft. Incorporating a portion of the dissenting opinion in Burbank, he declared that "the Federal Government should not substitute its judgment for that of the states or elements of local government who, for the most part, own and operate our Nation's airports." The court noted approvingly that the CNEL standards challenged in Crotti had been held "exempted from judicially declared preemption by footnote 14." Judge Peckham found further support for his decision in the original preface to the Federal Aviation Administration's regulations relating to noise, which stated that the regulations were "not intended to substitute federally determined noise levels for those more restrictive limits determined to be necessary by individual airport proprietors in response to the locally determined desire for quiet and the locally determined need for the benefits of air commerce."

Judge Peckham was struck by the anomaly that the relationship of state or local government to the airport should be the determining factor as to whether particular exercises of the police power invade the sphere of federal pre-emption, and noted that this connection creates a dilemma:

If on one hand, we follow the dicta in footnote 14 of the Burbank opinion, which is intended to comport with the court's holding in Griggs, we will severely undercut the rationale of Burbank's finding of preemption. If on the other hand, we disregard the proprietor exception as dicta in order to fully effectuate the Burbank rationale, we impose upon airport proprietors the responsibility under Griggs for obtaining the requisite noise easements, yet deny them the authority to control the level of noise produced at their airports.¹⁵

After finding that the Hayward ordinance did not interfere with a pre-empted area the court went on to hold the ordinance only "an 'incidental' burden on interstate commerce." The court did note, however, that several municipalities enacting similar ordinances could possibly "together … create an impermissible burden on interstate commerce…."

Conclusions

Although Hayward squarely raised the question avoided in Burbank just three years before, this was almost certain to happen given the unique factual setting of Burbank. It is also apparent that the legislation in both Crotti and Hayward was formulated to get around Burbank. In both cases noise exposure standards for the area surrounding the airport were upheld, while the SENEL standard, which directly regulated a condition of flight, was struck down as encroaching in an area pre-empted by the federal government.

If the holding of Hayward should prove acceptable to the Supreme Court, then the "footnote 14" exception will swallow up Burbank, since nearly all airports serving commercial airlines are run by local governments. Several factors affect the final resolution of the issues raised in Hayward. Justice Douglas, the fifth vote for the majority in Burbank, is no longer on the Court. The Burbank dissenters' dislike for the case's implied pre-emption result may thus very well become the majority view. This possibility is strengthened by the Court's recent trend toward attempting to reconcile conflicting federal and state-local regulatory schemes, rather than invoking the implied pre-emption doctrine to strike down non-federal regulation absent clearly expressed congressional intent to pre-empt an area.

Furthermore, the Court may wish to settle the constitutionally intriguing suggestion raised by Hayward that local proprietary powers are less subject to pre-emption than local police powers. A decision on this issue, irrespective of result, will substantially affect federal-state relations in the environmental field, especially in the area of pollution from state facilities and management of state-owned lands, as well as airport noise. A re-examination of Burbank may also allow the Court to resurrect two circuit court cases, Allegheny Airlines, Inc. v. Village of Cedarhurst¹⁶ and American Airlines, Inc. v. Town of Hempstead,¹⁷ that contain careful analyses of aircraft flight changes caused by overflight and noise ordinances, but that were ignored by the majority in Burbank.

Finally, the Court may be forced to reconsider Burbank if many municipalities follow Hayward's lead and enact proprietary-based noise ordinances. Airline challenges to such enactments would switch the focus to the effects of piecemeal local legislation on the federal commerce power and provide a further incentive for a speedy determination of the permissible jurisdictions for airport noise regulation.

1. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 3 ELR 20393 (1973).

2. __ F. Supp. __, 6 ELR 20649 (N.D. Cal. July 13, 1976).

3. For a detailed discussion of the origins and underpinning of the doctrine, see Comment, Fallout from the California Nuclear Initiative, 6 ELR 10174, 10175-76 (Aug. 1976).

4. 49 U.S.C. § 1431 (1970).

5. 49 U.S.C. § 1431 (1970), as amended by Pub. L. 92-574, 86 Stat. 1239 (1972), ELR 41503.

6. Burbank, supra note 1, at 20396.

7. Id. at 20397.

8. Id. at 20398 (emphasis in original).

9. 389 F. Supp. 58, 5 ELR 20236 (N.D. Cal. 1975).

10. United States v. Causby, 328 U.S. 256 (1945). In Causby the Supreme Court decided that the owners of a North Carolina chicken farm had suffered a reduction in value to their home and business from overflights by heavy military bombers which was compensable as a taking under the Fifth Amendment of the United States Constitution.

11. Griggs v. Allegheny County, 369 U.S. 84 (1962). Griggs extended the theory of inverse condemnation announced in Causby, supra note 10, through the Fourteenth Amendment to a local government defendant. The factual differences were that the Griggs family had moved out of the house which was situated directly below the approach to a runway at Pittsburgh Airport which was under development by Allegheny County with the aid of federal grant moneys.

12. 14 C.F.R. § 36.5 (1975).

13. Hayward, supra note 2.

14. Hayward, Cal. Ordinance 75-023 C.S.

15. Hayward, supra note 2, at 20651.

16. 238 F.2d 812 (2d Cir. 1956).

17. 272 F. Supp. 226 (E.D.N.Y. 1966), aff'd 398 F.2d 369 (2d Cir. 1968).