Airport noise pollution: Is there a solution in sight

Boston College Environmental Affairs Law Review, Summer 1999 by Falzone, Kristin L

Airport noise pollution is a widespread and growing problem in the United States. Traditionally the regulation of airport noise was left to state and local regulatory efforts as well as judicial actions brought under nuisance and inverse condemnation theories of liability. With the enactment of several pieces of federal legislation beginning in the 1970s, however, Congress has clarified its intent to preempt local control of airport noise. Local governments and airport proprietors have to comply with a complicated scheme of federal regulation and rely on insufficient funds to fully address the airport noise problem in their communities. This Comment suggests changes should be made to the regulatory framework governing the control of aircraft noise through reestablishment of the Office for Noise Abatement and Control within the Environmental Protection Agency, additional funds for noise mitigation projects, and research on the effects of aircraft noise, as well as a shift in the liability structure for noise violations.

The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.

-Noise Control Act of 1972, 42 U.S.C. Sec 4901(b)

INTRODUCTION

Since the introduction of commercial jets in 1958, the noise problem generated from airport operation has become increasingly widespread, affecting millions of Americans.1 For some, the noise emitted from aircraft is merely an unwanted nuisance that intrudes on their everyday life. For others, however, aircraft noise is a factor that has been found to cause psychological and physiological damage to health and well-being.2

In spite of the population's widespread exposure to harm, the United States Congress did not pass a federal act exclusively designed to control noise until 1972.3 Prior to the enactment of the Noise Control Act, inverse condemnation actions, common law nuisance remedies, and sporadic attention by some states were the only constraints on increasing levels of airport noise.4 Historically, the private citizen has been able to get little compensation for the proliferation of aircraft noise.5 Landuse planning and other noise abatement activities fall within the jurisdiction of local governments, yet these approaches are often very expensive and somewhat ineffective because they aim to ameliorate noise rather than control it at its source.6 In addition, U.S. courts have held that insofar as the operation of aircraft is concerned, the federal government has preempted the field; thus, communities afflicted by aircraft noise have no power to regulate the noise at its source.7

Currently, the Federal Aviation Administration (FAA) has sole responsibility for the regulation of civil aircraft operations.8 In recent years, many commentators have criticized the FAA for being "a good deal more interested in promoting aviation than in protecting the public welfare."9 In response to growing criticism of the current regulatory scheme in recent years, members of Congress have introduced bills to address the persistent and increasing noise problem generated by the nation's airports.10 For instance, in 1997, members in both the House of Representatives and the Senate proposed the Quiet Communities Act.11 This Act would have reestablished the Office of Noise and Abatement Control (ONAC) within the Environmental Protection Agency (EPA).12 ONAC would have been responsible for coordinating federal noise abatement activities, updating or developing noise standards, providing technical assistance to local communities, and promoting research and education.13 Both bills, however, were referred to committee and subsequently died in Congress.14

As the number of Americans affected by noise pollution increases, citizens disturbed by aircraft noise have begun to be one of the most vocal groups speaking out against noise.15 Such outcry may be responsible for the creation of the Federal Interagency Committee on Aviation Noise (FICAN), founded in 1993.16 FICAN brings together representatives of various federal agencies that are involved in research on aviation-related noise.17 FICAN, however, does not itself conduct research or have regulatory or enforcement powers.18 Instead, FICAN is limited to conducting conferences, serving as a clearinghouse for research, distributing technical information, and making recommendations.19 FICAN's lack of power has left citizen groups more frustrated than ever before.20

This Comment assesses the legal framework regulating noise pollution generated by the operation of airports. Part I introduces the concept of noise pollution and provides a background on airport noise pollution in particular. Traditional ways of controlling noise, such as state and local noise ordinances and nuisance and inverse condemnation claims are briefly examined in Part II. Part III discusses the history of major federal legislation and regulations aimed at controlling noise pollution. Part IV describes how the doctrine of preemption relates to noise pollution. A variety of noise abatement activities and their limitations with regard to aircraft noise pollution are explored in Part V. Finally, Part VI argues that with the current mix of federal and local efforts, there is a need for an alternative means of controlling airport noise pollution other than that offered by the FAA alone.