Airport noise is back in the news

I have always had a soft spot for litigation between airports and their neighbors –at least since I published my LL.M. thesis titled “Nobody Loves an Airport,” 43 So. Calif. L. Rev. 631 (1970), 53 years ago.

One of the intriguing things about the common law has been its ability to adapt to changing conditions. As the California Supreme Court put it when analyzing the impact of modern airport operations on neighboring property owners, the situation “vividly demonstrates the difficulties encountered in engrafting traditional common law theories of recovery onto proceedings involving injuries peculiarly contemporary in nature.” Nestle v. City of Santa Monica, 6 Cal.3d 920, 924 (1972) (analyzing takings, nuisance, negligence, and zoning violations).

I was fortunate enough to have published my thesis at a time when airport noise litigation was exploding around the country in general, but particularly in California. I ended up arguing all but one of those cases in the California Supreme Court (and was a decisive amicus in the other one).

The reason I bring this up is that the issues have arisen again somewhat to the north of us, in a place known as Whidbey Island in the state of Washington. And the issues sound familiar. There has been a military air base there for a number of years, and that (of course) has been the government’s first line of defense, i.e., too much time has passed since they started flying planes from this base and the statute of limitations has run for any injury inflicted. But it isn’t quite that easy, even for the federal government. Courts have found in the past that changed circumstances can restart a statute of limitations. And that should happen here.

One of the classic things that courts have used to restart any limitations period has been the level of noise produced. That is, a significant increase in noise (from larger, noisier aircraft) can be seen as a new incident, starting a new time period in which to sue, e.g., A.J. Hodges, Inc. v. United States, 355 F.2d 592 (Ct. Cl. 1966) (from B-47 to B-52 planes); Davis v. United States, 295 F.2d 931 (Ct. Cl. 1961) (from B-36 to B-52).

Bless the feds and the internal employees who choose the names to give things. In this matter, the neighbors complain that the new operations by a new generation of aircraft have become intolerably noisy. What did the military decide to name its new aircraft? The “Growler.” Could plaintiffs’ counsel have asked for anything more annoyingly descriptive to name the offending aircraft?

There were at least two separate lawsuits filed in courts thousands of miles apart. One was a class action for compensation, filed in the Court of Federal Claims in Washington, D.C. (the primary place to sue the federal government for damages). The other was a suit seeking injunctive relief under the National Environmental Policy Act, filed in federal district court in the state of Washington. So far, the neighbors are losing, but I believe it is only a matter of time before that situation changes.

The reasons for the negative results so far and my prediction for the future are closely related and are tied to the remedies sought. The action seeking compensation was unlikely to succeed as a class action. I understand why counsel would prefer to file it that way. In many ways, it makes counsel’s job easier. As a class action, counsel need only deal with a small group of lead plaintiffs, while the remaining hundreds (or thousands) merely wait in the wings for the litigation to proceed to termination.

But courts can get rather hinky about class actions. I could have told counsel that. It was the one airport issue I lost in the California Supreme Court (in a case that had been filed by other counsel). See City of San Jose v. Superior Court, 12 Cal.3d 447 (1974). And it was for the same reason that the federal court refused to entertain a compensation action on behalf of a class of airport neighbors here. Such a case would have too many individual issues for the class members. Each could conceivably have suffered different damages for different time periods. From a judicial viewpoint, each property owner would potentially need to put on a separate case for both liability and damages. There was simply too much difference that overwhelmed the benefits of consolidated litigation. For that reason, every action that my firm filed seeking compensation for hundreds of neighboring property owners was filed as a consolidated action that named each property owner as an individual plaintiff. Indeed, in one such action seeking compensation for emotional distress and annoyance (in addition to property damage), the trial judge insisted that each plaintiff seeking such compensation (even children) personally testify as to the injuries inflicted. Greater Westchester Homeowners Assn. v. City of Los Angeles, 26 Cal.3d 86 (1979). The testimony of the scores of children who tromped through the downtown Los Angeles courthouse is an interesting story, but should probably be saved for another day. More difficult administratively from the lawyers’ standpoint, but more sensible from the court’s.

On the other hand, courts are generally disinclined to enjoin governmental action, and that is where the case in the state of Washington foundered. Although the court agreed that the government had violated the federal environmental statute, endangering local wildlife, it was loath to enjoin something that the government argued was an essential matter of national security. And so, there would be no injunction issued to compel protection of the environment over protection of the country’s security.

This is even more true when there is an action for compensation available as an alternative. That has long been the law. See Hurley v. Kincaid, 285 U.S. 95 (1932). Although the district court in Washington had no jurisdiction to entertain such a compensatory suit, the Court of Federal Claims could do so—if the action were brought on behalf of individuals, rather than a class. It will be interesting to see how the case progresses. The complaint was filed on behalf of the owners of 50 properties heavily impacted by the noise from the new Growlers. If allowed to proceed on behalf of the purported class, the complaint would apparently represent some 3,000 members. Whether the case proceeds on behalf of the original 50 families or an amendment is sought to expand the group to include more of the remaining 3,000 remains to be seen.

In any event, the litigation will be interesting. As the opinion notes, most airport noise cases have been brought in state courts against local airports. Expanding the data-base of federal cases against the federal government directly under the federal constitution will add a new dimension.