The area surrounding an airport is often a noisy place, with airplanes carrying passengers and cargo continuously arriving and landing. In the U. S., the flight paths that aircraft approaching an airport must use are set by the Federal Aviation Administration (FAA). Periodically, in an effort to create the most efficient and reliable system of national air travel, the FAA adjusts the flight paths into one or more airports by issuing an order establishing new flight paths, and when and how they must be used. These FAA orders follow extensive investigation and evaluation, including what impact the flight paths under consideration will have on the affected areas.
Despite these efforts, when the FAA establishes new flight paths that re-direct air traffic over residential areas previously unaffected by air traffic, the resulting noise can be bothersome to affected residents. As a result, for decades, residents who live near airports and underneath federally regulated flight paths have attempted to challenge the noise created by air traffic by suing the airports, and the airlines that use them, in state court. These “noise pollution” cases typically assert causes of action for nuisance and negligence that are artfully pled in an attempt to evade federal preemption.
On December 23, 2016, a recent attempt to side-step federal regulations in a noise pollution case failed, when the Northern District of California dismissed two consolidated lawsuits brought by residents of San Mateo County and Santa Cruz County, California against twelve airline defendants, the City and County of San Francisco, and the City and County of San Jose.1 The consolidated lawsuits asserted causes of action for continuing nuisance, negligence, negligence per se, wilfull misconduct, and unfair competition, related to the defendants’ use of new flight paths for aircraft arriving into the San Jose International Airport (SJC) and San Francisco International Airport (SFO).
Beginning in March 2015, the defendant airlines began using two new flight paths approved by the FAA for flights arriving into SJC and SFO. The plaintiffs resided in homes below the new flight paths, and the plaintiffs alleged that the airlines’ use of the new flight paths created a continuing nuisance at their homes. Plaintiffs further alleged that while they were flying the new flight paths, the defendant airlines routinely violated FAA regulations governing the altitude and speed limitations for these flight paths, and routinely employed loud “speed brakes.” Plaintiffs claimed that the use of the new flight paths dramatically increased the amount of noise, disturbance and pollution they experienced.
Plaintiffs filed two separate law suits in California state court, and in addition to seeking money damages, plaintiffs also sought an order prohibiting the defendants from using the new flight paths, and to instead use the previous flight paths until a further study of the impacts of the new flight paths could be completed.
The defendants removed both actions to federal court, and then filed motions to dismiss both lawsuits. The defendants’ removal argued that Plaintiffs’ state law claims raised substantial federal issues, including aviation safety, management of airspace, and control over aircraft noise. Defendants further argued that the remedy Plaintiffs sought required a reevaluation and reassessment of the FAA order that approved the new flight paths, and that their claims amounted to a collateral attack on that FAA order. Following consolidation of the separately removed suits, Magistrate Judge Nathaniel Cousins agreed that removal was proper on the grounds that plaintiffs’ state law claims, and the remedies sought, effectively sought review of an FAA order and, therefore, raised a substantial federal question. The court then turned to the defendants’ motions to dismiss. Similar to the determination of whether removal was proper, the defendants’ motions to dismiss also focused on whether or not plaintiffs’ state law claims constituted a collateral attack, seeking review and adjustment of an FAA order. Under 49 U.S. C. § 46110, the federal circuit courts of appeal are given exclusive jurisdiction to review and modify any part of a final FAA order. Section 46110 provides that a person with a substantial interest in an FAA order may apply for review of that order either in the U.S. Court of Appeals for the District of Columbia, or the U.S. Court of Appeals for the circuit where the person resides or has its principal place of business. Accordingly, if the plaintiffs’ claims were a collateral attack on an FAA order, the District Court for the Northern District of California would not have jurisdiction over such claims, as they could only be brought in the Ninth Circuit Court of Appeals, or the District of Columbia Court of Appeals.
Plaintiffs argued that their claims did not seek review of an FAA order, because their state law claims challenged the defendants “actions and inactions,” regardless of whether or not they complied with FAA orders. The court conceded that plaintiffs’ claims “at first blush” did not as clearly implicate a federal question as they would if, for example, plaintiffs alleged that defendants directed and encouraged planes to fly in a manner that violated FAA regulations. Noting that “context is critical,” the court reasoned the intertwining of plaintiffs’ state law claims and a challenge to an FAA order were evident from the allegations of the complaints that plaintiffs must weekly endure “hundreds or thousands” of flights over their homes, which create severe noise and vibration disturbances, pollution from the aircraft, and risk of midair collision. Because the genesis of these claims is the new flight paths, the court concluded that the plaintiff’s state law claims are inextricably intertwined with a review of an FAA order. As such, the court lacked subject matter jurisdiction as the challenge to the FAA order could not be brought before the Northern District of California. The court, therefore, dismissed both lawsuits for lack of subject matter jurisdiction.
Beyond appealing the district court’s decision dismissing plaintiffs’ complaints within 30 days, plaintiffs are left with few options. Any petition for review of the FAA’s finding of no environmental impact in the Ninth Circuit Court of Appeals or D.C. Circuit would be time barred under 49 U.S.C. § 46110(a), unless plaintiffs can show reasonable grounds why the petition for review was not filed within 60 days of the FAA’s order.
While this will certainly not be the last artfully pled noise pollution case, Schaefer and McKay demonstrate that a defense to such a claim can be found in the context of the complaint’s carefully chosen words, and the remedies sought.
Asiana Airlines and China Airlines were represented by Scott D. Cunningham and Andrew C. Johnson of Condon & Forsyth LLP.
1 McKay et al. v. City and County of San Francisco, et al., Schaefer et al. v. City and County of San Francisco, et al, Case Nos. 16-CV-03561 NC, 16-CV-03564 NC (Consolidated) 2016 WL 7425927 (N.D. Cal. Dec. 23, 2016).