Air Transport Association of America v. Crotti, C-72-2189 WTS.
| Citation | 389 F. Supp. 58 |
| Decision Date | 10 February 1975 |
| Docket Number | No. C-72-2189 WTS.,C-72-2189 WTS. |
| Court | U.S. District Court — Northern District of California |
| Parties | AIR TRANSPORT ASSOCIATION OF AMERICA et al., Plaintiffs, v. J. R. CROTTI, Director of Aeronautics of the State of California, et al., Defendants. |
James T. Rohner, Deputy County Counsel, County of Santa Clara, San Jose, Cal.
Joseph D. Patello, San Diego Unified Port Dist., San Diego, Cal.
Robert Nuttman, Asst. County Counsel, County of Orange, Santa Ana, Cal.
Arne Hansen, Office of the County Counsel, San Diego, Cal.
Keith L. Gow, Division Chief Atty., San Jose, Cal.
Jerome Cohen, Deputy City Atty., San Francisco, Cal.
E. Judge Elderkin, Brobeck, Phleger & Harrison, San Francisco, Cal., for plaintiffs.
Nicholas C. Yost, Dept. of Atty. Gen., State of Cal., for defendants.
Tom Casey, Office of the Dist. Atty., Redwood City, Cal.
Milton Sherman, Principal Asst. City Atty., Los Angeles, Cal.
David Brier, Office of the County Counsel, Los Angeles, Cal.
Timothy Weston, Asst. Atty. Gen., Harrisburg, Pa.
Raymond Mushal, Dept. of Justice, Washington, D. C.
Before CHOY, Circuit Judge, and EAST and SWEIGERT, District Judges*.
PARTIES
The plaintiffs are the Association above, the members of which include virtually all United States scheduled air carriers operating in interstate and foreign commerce, and some 18 scheduled air carriers in intrastate, interstate, and foreign commerce, respectively, all operating under federal authority, (Airlines).
The defendants are the Director above and individual officers, directors or managing officials of the airports of the city and county of San Francisco; the Cities of Los Angeles, San Diego, and San Jose and the County of Orange; the District Attorneys of the Counties of San Mateo, Los Angeles, San Diego, Santa Clara, and Orange; the City of San Jose; and the Mayor of San Jose, all in California, (Airports).
The United States of America has, by leave of court, appeared as amicus curiae.
We note the jurisdiction of this court under 28 U.S.C. §§ 1331 and 1337, §§ 2201 and 2202, and §§ 2281 and 2284.
The Airlines contend that Sections 21669 to 21669.4, inclusive, of the California Public Utilities Code, and the implementing regulations, Title 4 California Administrative Code, Subchapter 6, §§ 5000-5080.5, referred to as California Noise Standards, adopted November 25, 1970, are invalid and unenforceable by virtue of Article VI, Clause 2, (Supremacy Clause) and Article I, Section 8, Clause 3, (Commerce Clause) of the Constitution of the United States, as implemented by controlling federal legislation and regulations, and seek a declaratory judgment to that effect and injunctive relief thereon.
We have heard the parties on the Airlines' motions for summary judgment.
The federal statutes intending to regulate the intensity of noise generated by aircraft in flight and incident thereto are the Noise Control Act of 1972, 42 U.S.C. § 4901 et seq., as it amends the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., and the regulations now and to be promulgated thereunder.1 Of particular note is Section 2(a) (3) of the Noise Control Act, 42 U.S.C. § 4901(a) (3), which reads:
Sections 21669 through 21669.5, inclusive, of the California Public Utilities Code, inter alia, required the California Department of Aeronautics to adopt noise regulations governing the operations of airports and of aircraft at all airports in California operating mandatorily under a permit issued by the Department of Aeronautics (excluded are airports operated by the United States, Public Utilities Code § 21661). California Public Utilities Code § 21669.4 provides that the violation by any aircraft of the noise regulations so adopted is deemed a misdemeanor and the operator of such aircraft is punishable by a fine of $1,000 for each infraction. Pursuant to the same § 21669.4, the county in which the airport is situated is given responsibility to enforce the noise regulations adopted by the Department. The airport's non-compliance subject their permit to suspension or cancellation.
At the risk of oversimplification, we summarize the objective of the regulations in §§ 5000-5080.5 as achieving a gradual reduction of noise to be suffered at airports operating under California permits to a level at which no residential community is exposed to more than 65 dB as of December 31, 1985 (California Administrative Code § 5012); that level is designated as the Community Noise Equivalent Level (CNEL). By that date, absent the granting of a variance (California Administrative Code §§ 5062, 5075), no incompatible land use is to exist within the 65 dB Noise Impact Boundary (residential usage is not a compatible one within the Noise Impact Boundary). Airports with a noise problem are responsible for establishing the Noise Impact Boundary by monitoring and measuring aircraft noise emissions (California Administrative Code §§ 5013).
Some of the means available in order to meet California's airport noise standards are set out in Section 5011 of the Administrative Code, which is entitled "Methodology for Controlling and Reducing Noise Problems," and which reads as follows:
Hence, the Code recommends certain procedures which can be employed in order to attain the established noise reduction standards, but no particular procedure is mandatory. Airport authorities are left to choose among the suggested means at their own discretion, tailoring their own programs to their peculiar needs and inclinations. Furthermore, airport authorities are left free to devise and employ other noise control measures beyond those suggested in the Code.
In addition to the continuing CNEL standards prescribed for airports, the California regulations also require the establishment of maximum Single Event Noise Exposure Levels (SENEL) (California Administrative Code §§ 5006(d)). The counties are responsible for enforcement of these limits, and violation of the SENEL by the operator of an aircraft constitutes a misdemeanor punishable by a fine of $1,000 as above noted.
Specifically, the regulations fall into two categories: (a) CNEL (Community Noise Equivalent Level) standards prescribed for continued operation of airports with monitoring requirements, which focus upon the arrival of a prescribed ultimate maximum noise level and limiting the land uses subjected thereto around airport facilities; and (b) SNEL (Single Event Noise Exposure Levels) prohibitions applied to the inseparable feature of noise generated by an aircraft directly engaged in flight.
We envision the regulations promulgated as a commendable progressive state-sponsored effort toward the future safety and protection of its citizenry from the ever increasing aircraft produced noise nuisances. We deem it most worthy of advisory consideration to the EPA which is now engaged in promulgating its advice to FAA pursuant to the Noise Control Act of 1972. However, portions thereof hover in direct confrontation with the avowed exclusive domain of federal power under the Noise Control Act of 1972 in the control of noise emitted by aircraft during flight operations and generally air space management. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S. Ct. 1854, 36 L.Ed.2d 547 (1973).
"The aircraft and its noise are indivisible; the noise of the aircraft extends outward from it with the same inseparability as its wings and tail assembly; to exclude the aircraft noise from the Town is to exclude the aircraft; to set a ground level decibel limit for the aircraft is directly to exclude it from the lower air that it cannot use without exceeding the decibel limit." Judge Dooling's writing in American Airlines v. Town of Hempstead, D.C., 272 F.Supp. 226, 230, aff'd, 2 Cir., 398 F.2d 369, cited in Burbank, 411 U.S. at 628, 93 S.Ct. 1854.
The Airlines' position narrows to the simple contention that any control and regulation of the levels of noise generated by aircraft in direct flight is preempted by the federal government; accordingly, each of the CNEL standards and related monitoring requirements and SENEL prohibitions are per se void and unenforceable under the holdings of Burbank, viz:
The At 633, 93 S.Ct. at 1859.
Mr. Justice Douglas,...
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