Federal Preemption in Airport Noise Abatement Regulation: of Federal and State Power

The growth of air commerce in the United States has been characterized by the use of jet aircraft which has led to frequent litigation by local governments and their citizens attempting to abate the increased aircraft noise. Although from the inception of airflight there has been conflict between localities and the aviation industry over the noise produced by aircraft operations, the present conflict dates from the late 1950s when private air carriers first introduced pure-jet aircraft to the nation's civil airports. While the noise emitted from jet aircraft, measured in decibels, is not necessarily louder, it is of a higher frequency than the noise created by propeller aircraft. Because of the higher pitch, jet aircraft noise has a disturbing impact at close range. Like many other areas of pollution control, aircraft noise is an area in which the strong federal interest in interstate commerce is competing with the important local interest in a high quality of life for the community. The fundamental proposition of this Comment is that, without federal legislation, the state's power to control aircraft noise would be limited only by the commerce clause. The Comment traces the prohibitive effect of federal aviation law upon the various forms of local governmental power over noise abatement: the power exercised by the locality as an airport proprietor, the state legislative power, and the power of the state courts in equity and at law. Ideally, the allocation of power between national and local authorities should be tailored to allow each level of government to protect adequately its interests. Accordingly, the federal scheme of restriction of state power is explored to determine whether the local interest in the protection of the environment is served as fully as the national interest in the promotion of air commerce.