Greater Westchester Homeowners Ass'n v. City of Los Angeles

BIRD, C. J., Concurring.

I write separately since the majority’s preemption analysis contains a significant flaw which may spawn unnecessary future litigation.

The majority opinion holds that a tort action may be brought against airport proprietors for personal injuries resulting from airport noise *105 since federal law has not preempted this area. The fundamental weakness of the opinion is not its result but its reasoning. Although the opinion discusses congressional intent, the opinion ultimately supports its holding with a misplaced reliance on inverse condemnation law. (Maj. opn., ante, at p. 98.) In an inverse condemnation action, the property owner alleges that his constitutional rights were violated because his property was taken without just compensation. Preemption is not in issue since federal regulations cannot preempt constitutionally protected rights.

Any preemption analysis should place reliance upon, and not merely give lip service to, congressional intent. The determinative inquiry is whether either (1) the federal regulation is so extensive that it evidences a congressional design to preempt the field or (2) there is actual conflict between the proposed local action and the federal regulation such that the two schemes of regulation cannot both stand. (Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 141 [ 10 L.Ed.2d 248, 256 , 83 S.Ct. 1210 ].)

The related congressional enactments contemplate considerable federal involvement in the construction, supervision and operation of jet aircraft and the airports which serve them. The Federal Aviation Act provides that, “[t]he United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States....” ( 49 U.S.C. § 1508 (a).) 1 This act authorizes the administrator of the Federal Aviation Administration (FAA) to develop rules and procedures for the safe and efficient use of navigable airspace as well as the certification of aircraft, airmen, commercial air carriers and airports. (§§ 1348(c), 1371, 1429, 1430, 1432.) Under these statutes, the FAA is required to regulate the flight patterns of civil aircraft including the procedures and routes used in takeoff and landing. (14 C.F.R. pts. 1-171.)

There are specific provisions which relate to noise control. For example, the FAA, after consultation with the Environmental Protection Agency, is required to provide “for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, *106 or revocation of any certificate authorized by this subchapter.” (§ 1431(b) (1).) If federal subsidies are being received, the FAA may also exert control over the planning, design, location, construction, layout, environmental compatibility and intergovernmental coordination of airport projects. (§§ 1716(c)-(e), 1718(a)(3), 1718(a)(4), 1719.)

While federal regulation is extensive, both the legislative and executive branches have publicly emphasized local airport operators’ responsibility for controlling airport noise through reasonable nondiscriminatory regulation. For example, the Senate Commerce Committee Report which discussed the anticipated effects of the Federal Aviation Act, quoted with approval the following language of the Secretary of Transportation: “[t]he proposed legislation will not affect the rights of a state or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.” (Sen. Rep. No. 1353, 90th Cong., 2d Sess.; 1968 U.S. Code Cong. & Admin. News, pp. 2688, 2694.)

Similarly, the House Interstate and Foreign Commerce Committee Report indicated that the Congress did not intend to preempt this area. “Rather, the committee expects manufacturers, air carriers, all other segments of the aviation community, the State and local civic and governmental entities to continue and increase their contributions toward the common goal of quiet.” (H.R.Rep. No. 1463, 90th Cong., 2d Sess., p. 4.) In British Airways Bd. v. Port Authority of New York (2d Cir. 1977) 558 F.2d 75 , 82, the United States Department of Justice filed an amicus brief in which it “denied that existing legislation authorized the Executive under any circumstances to preempt airport proprietors from promulgating their own noise regulations.” Finally, the FAA and the United States Department of Transportation, in a statement of Aviation Noise Abatement Policy, said: “Airport proprietors are primarily responsible for planning and implementing action designed to reduce the effect of noise on residents of the surrounding area. Such actions include optimal site location, improvements in airport design, noise abatement ground procedures, land acquisition, and restrictions on airport use that do not unjustly discriminate against any user, impede the federal interest in safety and management of the air navigation system, or unreasonably interfere with interstate or foreign commerce.” (FAA, Dept. of Transportation, Aviation Noise Abatement Policy (Nov. 18, *107 1976) p. 5.) “Our concept of the legal framework underlying this policy statement is that proprietors retain the flexibility to impose such restrictions if they do not violate any Constitutional proscription. We have been urged to undertake—and have considered carefully and rejected —full and complete federal preemption of the field of aviation noise abatement. In our judgment the control and reduction of airport noise must remain a shared responsibility among airport proprietors, users, and governments.” (Id., at p. 34.)

The Supreme Court recognized this limitation of federal control in City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624 [ 36 L.Ed.2d 547 , 93 S.Ct. 1854 ]. A municipality, acting under its police power, was held to have acted improperly in enacting nighttime jet curfews of flights emanating from or landing at a privately owned airport since this type of local regulation was held to be federally preempted. The court reasoned that widespread imposition of local curfews could frustrate flight scheduling and navigational patterns nationwide, thus burdening interstate commerce, aviation safety, and the FAA’s management of the air traffic network. (Id., at pp. 639-640 [36 L.Ed.2d at pp. 556-557].) Nevertheless, the Supreme Court explicitly stated that their decision did not decide in any way the rights of airport operators, acting in their proprietary capacity, in regulating airport use to abate noise. (Id., at p. 635, fn. 14 [ 36 L.Ed.2d at p. 555 ].)

Although post-Burbank judicial decisions have disagreed on the scope of the so-called “proprietor exception,” those decisions make clear that not all proprietor regulations have been federally preempted. Several cases have recognized a proprietor’s power to impose airport use restrictions where reasonable and nondiscriminatory. (E.g., British Airways Bd. v. Port Authority of New York (2d Cir. 1977) 564 F.2d 1002, 1011 ; British Airways Bd. v. Port Authority, supra, 558 F.2d at pp. 82-85.) Another federal case upheld the right of a noncommercial airport to impose a Burbank-style curfew. (National Aviation v. City of Hayward, Cal. (N.D.Cal. 1976) 418 F.Supp. 417, 424-425 .) Virtually all the cases, including those decisions which found proprietor control of aircraft in flight federally preempted, agree that proprietor control over management of ground facilities has not been federally preempted. (E.g., San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361 [ 136 Cal.Rptr. 557 ]; Air Transport Association of America v. Crotti (N.D.Cal. 1975) 389 F.Supp. 58, 63-64 .)

*108 The majority opinion details the activities that were available to the City of Los Angeles (City) to mitigate the harm resulting from its extensive involvement in the creation and maintenance of this particular nuisance. (Maj. opn., ante, at pp. 98, 99.) For example, the City could have chosen different locations for its runways. It could have acquired buffer land by its statutory condemnation power. Ground barriers could have been constructed to deflect and diminish Los Angeles International Airport noise and adjacent structures could have been sound-proofed.

It is clear that the pertinent congressional enactments contemplate considerable federal involvement in the planning and operation of airports. The Burbank opinion ( 411 U.S. 624 [ 36 L.Ed.2d 54 ]) suggests that any noise or use restriction which substantially interferes with the federal regulatory scheme would burden interstate commerce and improperly limit the FAA’s authority. However, it is also clear that substantial nonpreempted regulatory activity could have been undertaken by the City. 2 This failure of the City to act is the correct basis for imposing nuisance liability. It is not, as the majority appear to argue, the treatment accorded property owners in inverse condemnation cases. The majority’s analogy to inverse condemnation law is not only unnecessary, it is inapposite as well.

With respect to the majority’s treatment of the prejudgment interest award, it is important to underscore that the award is invalid only to the extent it represents interest on “the intangible noneconomic aspects of mental and emotional injury’ claimed by plaintiffs. (Maj. opn., ante, at p. 103.) If plaintiffs allege specific damage that is supported by tangible evidence, prejudgment interest may properly be awarded under Civil Code section 3288. Clearly, there can be no basis in law or reason for distinguishing between awarding interest on an unauthorized withdrawal from a bank checking account, as this court did in Bullis v. *109 Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 814-815 [ 148 Cal.Rptr. 22 , 582 P.2d 109 ], and awarding interest on a paid medical bill arising out of a defendant’s tortious conduct. In both cases, the plaintiff has been deprived of the use of his money and “the accretion of wealth which [the] money. . .could have produced during [the] period of loss.” (Maj. opn., ante, at pp. 102-103.)

All statutory references are to title 49 of the United States Code, unless otherwise indicated.

Defendants argue that the imposition of nuisance liability by the court for failure to undertake nonpreempted activity would itself constitute preempted regulation. This argument is untenable. Imposition of nuisance liability does not constitute regulation. The court is not advising the City on how to run its airport. It is merely making certain that the City remains responsible for the true costs associated with the airport’s operation. The City retains the power to take any action it pleases. The City may acquire buffer land, soundproof the airport’s runways, or continue its airport’s operations and pay its neighbors for any damage that accrues. Moreover, defendants’ position ignores the express language of 49 United States Code section 1506 that “[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.’