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In the five ensuing years only one actual implementing regulation has been adopted, the so-called Part 36 of the Federal Aviation Regulations. (14 C.F.R., Part 36.) These regulations are limited to prescribing noise standards for new aircraft types first certificated after 1969. The breadth, or perhaps I should say the narrowness, of these regulations is made evident by the Airport Operators Council estimate that by 1975 only 18.6% of the aircraft in the fleet will be type certified under Part 36. (118 Cong. Rec. S 17763 (October 12, 1972).) The FAA has at various times proposed other rules dealing with retrofit of aircraft in the existing fleets (35 Fed. Reg. 16980 (October 30, 1970)) with a requirement that newly manufactured aircraft of older type design comply with Part 36 rules (37 Fed. Reg. 14814 (July 7, 1972)), and with airplane fleet noise requirements (38 Fed. Reg. 2769 (January 30, 1973)), but the FAA has actually adopted none of these regulations.
In 1972 Congress again addressed the problem. The Noise Control Act of 1972 (Pub. Law 92-574) took several actions with respect to aircraft noise.
First, it amended section 611 of the Federal Aviation Act to insert a goal of protection of the "public health and welfare" from aircraft noise. (N.C.A. § 7(b).)
Second, it gave EPA a role to play in publicly pursuading the FAA to adopt what will presumably be more stringent regulations for the control of aircraft noise. (N.C.A. § 7(b).)
Third, there is now a legislatively created national policy regarding noise, which applies to aircraft as well as to other sources. That policy is to promote an environment for all Americans "free from noise that jeopardizes their health or welfare." (N.C.A. § 2(b).
Fourth, Congress has authorized and directed that Federal agencies shall to the fullest extent consistent with their authority carry out the programs within their control in such a manner as to further the national noise reduction policy. (N.C.A. § 4(a).)
Fifth, each department, agency or instrumentality of the executive, legislative, and judicial branches of the federal government having jurisdiction over any property or facility or engaged in any activity resulting, or which may result, in the emission of noise "shall comply" with State and local requirements respecting control and abatement of environmental noise to the same extent that any person is subject to such requirements. (N.C.A. § 4(b).) (The President may make specific exemptions. (N.C.A. § 4 (b.).)
The provisions to which I have referred to will be judicially enforceable by state and local governments (as well as private citizens) under the citizen suit provision. (N.C.A. § 12.)
Finally, the Noise Control Act requires the Administrator of the Environmental Protection Agency to conduct a study of the regulation of aircraft noise and report back to Congress. (N.C.A. § 7(a).) Two of the subjects of this study are of especial pertinence to the area I am discussing. E.P.A. is to study cumulative noise exposure around airports. (N.C.A. § 7(a) (3).) This is precisely the sort of regulation which California has and which I shall shortly be describing. E.P.A. is further required to study "additional methods available to airport operators and local governments to control aircraft noise." (N.C.A. § 7(a) (4).)
This brings us to those additional methods for the control of aircraft noise which are available.
STATE AND LOCAL AIRCRAFT AND AIRPORT NOISE REGULATORY ROLE
Another caveat is necessary here, one which relates to the capacity in which the state of local government has acted. This area too is unsettled, but it may be that a governmental entity which owns or operates an airport and regulates in its proprietary capacity has a greater degree of permissible authority than does a governmental entity acting under its usual governmental lawmaking authority, known as the police power. The reasoning behind this lies in the United States Supreme Court decision of Griggs v. Allegheny County, 369 U.S. 84 (1962), where that court held that it was the proprietor of an airport, rather than the federal government or the aircraft operator, who was liable for damage occasioned by the aircraft noise. The rationale is that the proprietor has the ultimate right to regulate the right as a landowner to say to the noisy aircraft operator, "You may not come upon my land."
The United States has taken the position that this is a false distinction and that the validity of state or local government regulation depends upon the nature of the action taken rather than the capacity under which it was taken. (Brief for the United States as Amicus Curiae, City of Burbank v. Lockheed Air Terminal, Inc., et al., No. 71-1637.) Be that as it may, many think this distinction is a determinative one.
Let's examine the measures of which state and local governments have availed themselves to reduce the impact of airport and aircraft noise on people.
The first is land use control over areas surrounding airports. Regulation of land use through planning and zoning has traditionally been a matter of state or local control. Proper planning of a new airport's location and compatible zoning around that airport should insure that noise problems never arise. California law provides that every city and county shall have a noise element in its general plan. (Govt. Code § 65302(g).) By July 1 of this year all zoning must be consistent with that general plan. (Govt. Code § 65860.) So there are real teeth in this state's land use planning procedures.
In California we also have within each county an Airport Land Use Commission to insure at least on a county-wide basis that there is some control of the area immediately around an airport other than the local zoning authority. (Calif. Pub. Util. Code § 21670 et seq.)
Second, there can exist single event noise limits for airports. Such limits, banning excessively noisy flyovers, have been imposed by the Port Authority of New York and New Jersey at the major New York area airports, of which it is the proprietor. (See Brief of the Port Authority, City of Burbank, et al. v. Lockheed Air Terminal, Inc., et al., No. 71-1637.)
Third, there can exist cumulative mechanisms for the overall reduction of noise at airports. This is the basis of the California noise regulations' CNEL concept which I will be discussing later. (Title 4, Calif. Admin. Code § 5000 et seq.) Such cumulative noise exposure mechanisms are an area which EPA is specifically charged by the Noise Control Act to study. (N.C.A. § 7(a) (3).) Fourth, there can exist time limitations on aircraft operations in and out of airports. Such a curfew was invalidated by the Federal Court of Appeal for the Ninth Circuit in the Burbank case (457 F.2d 667 (9th Cir. 1972)), which case of course is now under submission before the United States Supreme Court. A similar curfew was upheld by the California Court of Appeal when imposed by Santa Monica at its municipally owned airport. (Stagg v. Municipal Court, 2 Cal. App. 3d 318 (Cal. Ct. of App. 1969); see Williams v. Superior Court, 494 P.2d 26 (S.C. Ariz. 1972); Hanover v. Morristown, 261 A.2d 692 (N.J. Super. 1969), 286 A.2d 728 (N.J. Super. 1972)) There is also a curfew in existence at Washington National Airport, operated by the Federal Government, though controversy exists as to the authority for its imposition (See Brief of the Appellants, Lockheed v. Burbank, supra at 55, Appendix, pp. 6, 12; Brief of the Appellees p. 59-60. 67; Supplemental Brief of the Appellees, Appendix B.)
Fifth, the use of quieter airplanes at noise sensitive airports may be mandated. Los Angeles has proposed rules whereby effective April 29 of this year under certain weather conditions only Part 36 aircraft will be allowed to land at Los Angeles International Airport between the hours of 11:00 p.m. and 6:00 a.m. of the following morning. (Los Angeles Board of Airport Commissioners, Resolution No. 7467, adopted December 20, 1972.)
Sixth, economic incentives for quieter airplanes may be used. For instance the City of Los Angeles plans to institute a system of landing fees that vary directly with the noisiness of the aircraft (Ibid.)
Seventh, a fleet noise rule for airlines using an airport may be instituted. Los Angeles also has instituted such a rule, aiming all aircraft being certificated in compliance with Part 36 by the end of 1969. (Ibid.)
Eighth, airports may mandate runway preferences for noise abatement purposes. Such action by the Port Authority in closing a runway has been upheld by the court despite FAA permission to use that runway. Port of New York Authority v. Eastern Airlines. 259 F.Supp. 745 (E.D.N.Y. 1966).
In brief, a wide variety of means have been successfully used by state or local governments to reduce aircraft and airport noise. This is not to say that all such measures have been successful. In a series of cases local governments which were not the jurisdiction in which the airport was located and which
were not the airport proprietors attempted to regulate the flight of aircraft over their towns in a manner in direct conflict with federal law or regulation. These measures either imposed height limits below which planes could not fly or imposed noise limits. They have been uniformly invalidated by the courts. (Allegheny Airlines v. Cedarhurst, 238 F.2d 812, 814-15 (2d Cir. 1956); American Airlines, Inc. v. Hempstead, 398 F.2d 369, 372-75 (2d Cir. 1968), cert. den. 393 U.S. 1017 (1969); American Airlines, Inc. v. City of Audubon Park, Kentucky, 407 F.2d 1306, 1307 (6th Cir. 1969); also see United States v. City of New Haven, 447 F.2d 972 (2d Cir. 1971).
CALIFORNIA'S AIRCRAFT AND AIRPORT NOISE REGULATIONS
Having dealt in general terms with the apportionment of regulatory authority over aircraft and airport noise, let us pass to California's new regulations. (Calif. Pub. Util. Code § 21669, et seq.; Title 4, Calif. Admin. Code. 5000, et seq.)
A. Two Separate Legal Grounds
In an attempt to anticipate a decision either way by the Supreme Court on the powers of a government acting as proprietor as opposed to one acting under its police powers, the California noise regulations are based on both powers. They are based both upon the State of California's police power and upon the power of airport proprietors, which in California are licensees of the state. (Title 4, Calif. Admin. Code § 5000.)
I might add that the California noise standards are under challenge in a lawsuit filed by the Air Transport Association and 18 airlines in San Francisco. (A.T.A., et al. v. Crotti, et al., No. C-72-2189 WTS (N.D. Cal.).)
B. Three Separate Parts of the Regulations
The California noise standards do three very different and distinct things. Let me summarize them and then go into more detail.
1. Monitoring.-They institute a system of measuring and monitoring noise in the vicinity of California airports with noise problems.
2. Single event (SENEL).-They institute a system to reinforce the airport proprietors' authority to take action against single event flyovers by excessively noisy aircraft.
3. Community Noise Equivalent Level or "Noise Footprint" (CNEL).—They institute a long term mechanism of cooperation in land use planning and airport noise reduction whereby under the auspices of the airport proprietor the various interested parties work together over a period of years to resolve noise incompatibility between airports and residential communities surrounding them. This is a cumulative noise exposure system.
C. A Brief History
The law was adopted in 1969. (Calif. Legis. Stats. 1969, chap. 1585, p. 3222.) Thereafter a statutory advisory committee was appointed by the Governor. (Pub. Util. Code § 21669.1.) By law it consisted of one member from Air Transport Association, one from the Department of Public Health, one from the Department of Education, two from local governments (one from cities and one from counties), and two representatives of homeowners. Ibid.
The State contracted with Wyle Laboratories for the acoustical engineering expertise necessary to develop regulations to fulfill the legislative mandate. (See Wyle Laboratories, Supporting Information for the Adopted Noise Regulations for California Airports, Final Report to the California Department of Aeronautics, Rpt. No. WCR 70-3(R) (January 29, 1971)). The advisory committee in consultation with Wyle Laboratories developed draft noise standards over the coming months. (Id. at 1.)
Thereafter the draft formed the basis of the public hearings that were held in Los Angeles and San Francisco in May, 1970, by the Board of Aeronautics. (Ibid., Pub. Util. Code § 21207.) The regulations were then adopted in November, 1970, and filed with the Legislature for the statutory period of legislative oversight. (Pub. Util. Code § 21669.3 (a).) The 1971 Legislature then made certain changes (principally with respect to effective dates). (Pub. Util. Code §§ 21669.3-21669.5; Cali. Legis. Stats. 1971, chap. 1207, p. 2321, chap. 1734. p. 3688.) Basically, in the last year airports with noise problems have been installing monitoring systems as specified by the Noise Standards. (Pub. Util.
Code 21669.3 (c).) In fact, due to technical difficulties no system has been certified as operational, but those at both Los Angeles International and at Orange County are about to become operational. On December 1, 1972, the balance of the regulations went into effect. (Pub. Util. Code § 21669.3 (a).)
In brief, after three years of study, comment, amendment, and preparation the California Noise Standards are now going into effect. It is not unfair to call them the most sophisticated plan of airport noise reduction ever adopted in the United States. As will be described, the Noise Standards attempt to orchestrate, without violation of federal law, the various aspects of the noise reduction problems including local land use, the individuals affected by the noise, the airport, and its users.
D. What the Noise Standards Provide
As stated earlier, the Noise Standards have three parts: monitoring, single event limits, and the cumulative noise regulation known as CNEL.
(1) Monitoring.-Public Utilities Code section 21669.3 (c) provides that every county board of supervisors shall as of March 4, 1972, designate airports within their counties which have a noise problem. (See Title 4, Calif. Admin. Code § 5050; also see § 5020.)
Each airport designated as having a noise problem shall have a noise monitoring system meeting the requirements of the regulations in effect. (Sec. 21669.3 (c); see Title 4, Calif. Admin. Code §§ 5020-5032, 5040, 5045-5048, 5060-5064, 5080-5080.5.) The department may grant an extension where the airport operator shows to the satisfaction of the department that noise monitoring equipment is not available. Sec. 21669.3 (c). Eleven airports have been found to have noise problems: San Francisco, Oakland, San Jose, Los Angeles International, Hollywood-Burbank, Long Beach, Van Nuys, Santa Monica, Ontario, Orange County, and San Diego.
(2) Single Event Noise Exposure Level (SENEL).-The scale used to limit the noise of individual aircraft is called the "single event noise exposure level." (See Wyle Laboratories, Final Report, supra, at 2, 17-18, 90-113.) The purpose of such a limit is to provide the airport operator with "one of the necessary tools for limiting the noise environment emanating from his airport." (Id., at 17.) The proprietor of each airport required to perform noise monitoring is to recommend to the Department of Aeronautics the SENEL “appropriate to his airport." (Title 4, Calif. Admin. Code § 5035; see §§ 5030-5032, 5050 (f), 5055, 5061.) The limits may not exceed prescribed maximum noise levels which are "based on maximum gross weight operation without noise : abatement flight procedures under standard atmospheric conditions at sea level." (Title 4, Calif. Admin. Code § 5035.) The levels are to be set for the noisiest aircraft class utilizing the airport on a recurrent basis. (Ibid.) The levels are described by the Wyle Report as a "compromise to allow continua'tion of the basic level of existing service at an airport but prevent any trend towards noisier aircraft and prevent typical operations of currently operating aircraft which lead to excessive noise." Wyle Laboratories, Final Report, supra at 98. All of which means that the state maximums are set high-maximum weight and with no effort at noise abatement flight procedures. "Airport proprietors are therefore encouraged to recommend lower limits" (Title 4, Calif. Admin. Code § 5035.)
Upon approval of the recommended limits the county is to enforce them. (Ibid.) This reinforces the proprietor's existing powers (with criminal sanctions). Of course, nothing in the regulations diminishes the proprietor's own preexisting powers (through exclusion of noisy aircraft). The aircraft operator must adhere to the limits. (Title 4, Calif. Admin. Code § 5055; Pub. Util. Code § 21669.4) No violation exists where the operation results from the pilot's exercise of his safety responsibility or his emergency authority. (Title 4, Calif. Admin. Code 5055.)
The reasoning behind SENEL is given in Wyle Laboratories' Final Report: "Although airport operators already had the power to exclude aircraft from their airports for noise reasons, there was no uniform agreement on measuring scales nor on maximum limits which would provide them guidance in doing so. Hence, there was no framework by which the development of uniformly applicable monitoring instruments could proceed in an economical fashion." Wyle Laboratories, Final Report, supra at 17.
The whole thrust of the single event limits is well summarized in the Wyle Laboratories' Final Report:
"The adopted regulation makes noise monitoring mandatory only those airports which have a noise problem as determined by the enforcing agency according to criteria given in the regulation. The single event limits are intended primarily as a tool for the use of the airport proprietor to control and decrease the noise environment associated with his airport. Hence, the regulation requires the airport proprietor to propose single event noise limits for his airport which, once approved by the Department of Aeronautics, would be enforced under the regulation. The maximum limits the airport proprietor may select are set forth in the regulations, and depend upon the categories of aircraft which routinely utilized his airport during the six month period before it was determined to have a noise problem. This basis for the maximum single event limits prevents entry of new, noisier aircraft types into an airport which already has a noise problem, while the option of selecting lower limits adds the strength of the $1,000 fine (for violation of single event limits) to the means available to the airport proprietor for controlling the extent of his airport's 'noise footprint.'" Id. at 18.
(3) The Community Noise Equivalent Level or "Noise Footprint" (CNEL). -The community noise equivalent level (CNEL) is the structure utilized to limit the "noise footprint" generated by the total activity at an airport. (Wyle Laboratories, Final Report, supra at 2.) The CNEL represents the average daytime noise level for a 24-hour day, adjusted to an equivalent level to account for the lower tolerance of people to noise during evening and nighttime periods relative to the daytime period. (Title 4, Calif. Admin. Code § 5006 (f).)
(i) Purposes of the CNEL
The purposes of a noise standard are well described in the Wyle Report: "A good noise standard for airport should be effective in fostering a condition of environmental compatibility between airports and their neighbors. The standard must provide for both limitation of the noise in residential communities and operation of a viable air transportation system sufficient to meet the genuine air travel needs of the area. To achieve this, a noise standard (in conjunction with the remaining body of law) must provide the incentive structure to bring about the following results:
"That new airports be located only at sites where their future uses will be compatible with land use from the time of the siting decision onward. This requires a commitment on the part of the airport authority to a design ceiling on the noise associated with the ultimate level of use of the airport, a valid prediction of the noise contours associated with the planned level of use, and a commitment by the community for effective control of the future land use surrounding the airport to prevent future encroachment by residential tracts.
"For existing airports which presently have a noise problem with respect to their residential neighbors, the processes of planned change must be set in motion so as to control and reduce the extent of the noise environment wherever it encompasses residential areas. When such land lies in extreme noise regions very near the airport boundaries, the earliest and most equitable means should be applied to provide relief for the residents. When all available methods have been utilized by the airport to reduce the noise in residential communities, processes should be set in motion to convert the remaining land to a compatible use." Wyle Laboratories, Final Report, supra at 16.
The California noise standards are designed to provide for the first time the basis for genuine solution of existing community noise problems around airports and prevention of such problems in the future. (Id. at 21.) The following bases were used in drawing up the standards:
"In summary, the standard is based on the following basic concepts:
"That there is a noise environment around each airport which depends on the nature and use of the airport and is therefore subject to control through changes in that use.
"That above a certain numerical value the noise is excessive for residential
"That whenever this excessive noise intrudes upon residential areas, the noise environment should be measured and the airport proprietor directed to take steps to bring the noise environment into compliance with specific performance standards.
"That the airport proprietor himself is best qualified to select specific operational changes at his airport (with approval of the enforcing agency) to meet the performance standards.