LLooyyoollaa ooff LLooss AAnnggeelleess LLaaww RReevviieeww Volume 15 Number 1 Article 3 12-1-1981 TThhee AAvviiaattiioonn NNooiissee AAbbaatteemmeenntt CCoonnttrroovveerrssyy:: MMaaggnniifificceenntt LLaawwss,, NNooiissyy MMaacchhiinneess,, aanndd tthhee LLeeggaall LLiiaabbiilliittyy SShhuufflfflee John M. Werlich Richard P. Krinsky Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn John M. Werlich & Richard P. Krinsky, The Aviation Noise Abatement Controversy: Magnificent Laws, Noisy Machines, and the Legal Liability Shuffle, 15 Loy. L.A. L. Rev. 69 (1981). Available at: https://digitalcommons.lmu.edu/llr/vol15/iss1/3 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. THE AVIATION NOISE ABATEMENT CONTROVERSY: MAGNIFICENT LAWS, NOISY MACHINES, AND THE LEGAL LIABILITY SHUFFLEt by John M. Werlich * RichardP . Krinsky** I. INTRODUCTION Citizens of this nation, especially those residing near airports,' have endeavored for two decades to stem the burgeoning tide of airport noise, which may cause significant physical or psychological injury2 or may be simply annoying Since the commercialization of jet aircraft, federal, state and local governments have enacted a plethora of laws t The opinions expressed herein are those of the authors and are not necessarily endorsed by the Department of Airports, City of Los Angeles or the Federal Aviation Administration. * Assistant City Attorney, City of Los Angeles, Airport Division; B.A. 1967, California State University at Long Beach; J.D. 1970, Loyola Law School, Los Angeles. ** Attorney, temporarily with the Office of Chief Counsel, Federal Aviation Adminis- tration, Washington, D.C.; former member, President's Task Force on Aircraft Crew Com- plement; B.S. 1962, Alfred University; M.A. 1970, University of Alabama Graduate School of Business; J.D. 1981, Columbus School of Law, Catholic University, Washington, D.C. I. "Approximately six million U.S. citizens currently reside on 900,000 acres of land exposed to levels of aircraft noise that create a significant annoyance for most residents." U.S. DEP'T OF TRANsp. FEDERAL AVIATION ADMIN., AVIATION NOISE ABATEMENT POLICY 17 (1976) [hereinafter cited as Noise ABATEMENT POLICY]. For a discussion of the method- ology of measuring noise, see infra notes 20 & 90. 2. See, e.g., Birth Defects Linkedto Airport Noise, MED. WORLD NEWS, Apr. 3, 1978, at 84 (increased incidence of birth defects linked to aircraft noise); Herridge & Chir, Aircraft Noise andM entalH ospitalAdmission, 6 SOUND 32 (1972) (nervous breakdowns found more prevalent around Heathrow Airport than in quieter areas); Meecham & Smith, Effects ofJ et AircraftN oise on MentalHospitalAdmission, 11 BRIT. J. AuDIOLOGY 81 (1977) (higher pro- portion of mental hospital admissions found near Los Angeles International Airport than in less noisy areas). 3. "Although there may be indirect and subtle social and psychological harms, aircraft noise is predominantly an annoyance problem. It does not present any direct physical health danger to the vast majority of people exposed." NOISE ABATEMENT POLICY, supra note 1, at 17; see also Glorig, Non-Auditory Effects ofN oise Exposure, SOUND & VIBRATION May 1971, at 28 (to date, studies of the effects of noise exposure have failed to reveal any harmful health effects). LOYOLA OF LOS ANGELES LAWREVIEW [Vol. 15 designed to attain relief from noise. Meaningful relief, however, has not been achieved. Through legislation, Congress has attempted to create a uniform national noise abatement plan directed and monitored by one entity: the Federal Aviation Administration (FAA).4 Unfortunately, this goal has not been realized. Apparently in an effort to limit federal govern- ment liability, the FAA has failed to assume the responsibility envi- sioned in the federal legislation. In addition, the recent trend of decisions by courts that have held airport proprietors liable for the per- sonal injury and property damages caused by aircraft noise,' and Con- gress' retreat from its previous policy favoring financial aid to noise impacted airports, have also undermined the movement for a uniform national aviation noise abatement plan. The FAA's abdication of leadership, adverse court decisions, and the reduction in federal financial aid have left airport proprietors to fend for themselves. Spurred on by a rash of noise lawsuits,6 local air- port proprietors, in a legitimate effort to minimize their liability expo- sure, have adopted noise abatement regulations based on parochial, rather than national, interests.7 These local regulations, in turn, have caused further divisions in the effort to create a national aircraft noise abatement plan. The unfortunate consequence is that the labliy for aviation noise has been partially disconnected from the responsibility for aviation noise abatement. This is a result of decisions in which various courts have held that the liability for aviation noise damages rests solely on the hundreds of individual airport proprietors, while responsibility for aviation noise abatement resides collectively among federal, state and local governments, air carriers, and airport proprietors. This "single liability/shared responsibility" situation promotes, rather than discour- 4. See infra text accompanying notes 8-57. 5. See infra text accompanying notes 64-74, 109-27. 6. See Burke, LegalRoar Over JetN oire, The Nat'l L.J., Dec. 1, 1980, at 1, col. 2. "In the last four years, at least 16 other cities [other than Los Angeles] have been faced with airport noise claims in excess of $260 million." Id at 10, col. 1. 7. See H.R. REP. No. 594, 94th Cong., 2d Sess. 14, reprinted/n 1976 U.s. CODE CONG. & AD.N EWS 1600, 1603. In addition, aircraft noise has resulted in curfews and other operational constraints which have restricted the use of existing facilities, and have caused problems relat- ing to the safety of the system. Because of noise emanating from the operations at airports, full utilization and expansion of airports to accommodate current and future traffic have been hampered. 1981] AVIATION NOISE BBATEMENT ages, confusion. The result is unwarranted agony for all the parties- particularly citizens living near airports. This article will (1) review national aviation noise legislation and its implementation by the FAA, (2) analyze the judicial decisions that discuss the imposition of liability for aircraft noise, and (3) offer two alternative approaches that would more equitably apportion liability. II. FEDERAL LAWS AND FAA IMPLEMENTATION A. Regulatory Provisions 1. Federal Aviation Act of 1958-the beginning Federal regulation of airspace and air commerce is authorized under the Federal Aviation Act of 1958 (1958 Act)8 which entrusted certain powers to the FAA and to the Civil Aeronautics Board (CAB).9 The FAA's responsibility under the 1958 Act, to be carried out primar- ily through the promulgation of Federal Aviation Regulations (FARs), was to promote air safety, regulate the use of the navigable airspace, establish air navigation facilities, operate a national system of air traffic control,10 and certify airmen, airplanes and certain airports for com- mercial use." This exclusive federal control was based on Congress' recognition that the public has a basic right to air transit. 12 Moreover, the power to ensure such travel was declared to be a right of national sovereignty. 13 8. 49 U.S.C. §§ 1301-1552 (1976 & Supp. III 1979). The 1958 Act, as amended, is the basis of federal aviation regulations. This article is not intended to review all of its provisions. 9. The authority, of the CAB is concerned primarily with the economic aspects of the aviation industry. For the CAB's area of responsibility, see 49 U.S.C. §§ 1302, 1321-1389 (1976 & Supp. 1111979). Theoretically, the CAB could regulate aircraft noise by refusing to certify new routes or by suspending or changing existing ones. However, Congress, in § 401(e)(4) of the 1958 Act, placed limits on the CAB's power to do this. Moreover, the CAB has never exercised this power, and, in light of the recent enactment of the Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705 (codified in scattered sections of 18, 49 U.S.C. (Supp. HI 1979)), it is unlikely to do so in the future. The Airline Deregula- tion Act will gradually bliminate the CAB's control over routes and fares. The Airline De- regulation Act also provides for the phased elimination and transfer of the CAB's remaining functions to other governmental agencies: the Department of Transportation, the Postal Service, and the Department of Justice. By January 1, 1985, the CAB's functions will terminate. 10. 49 U.S.C. § 1348 (1976). 11. Id at §§ 1421-1432. 12. Id at § 1304. 13. Id at § 1508(a). "The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States. . . ." Iai LOYOLd OF LOS ANGELES LAW REVIEW [Vool. 15 2. Federal Aviation Act Amendments of 1968-aircraft noise problem recognized While the 1958 Act seemingly granted the FAA responsibility for all aspects of aviation, it did not specifically authorize the FAA to es- tablish limits on aircraft noise emissions or otherwise to regulate for noise abatement purposes. 4 In 1968, however, Congress added section 611 to the 1958 Act. 5 This section recognized that there was a noise problem and authorized the FAA to prescribe standards for the mea- surement of aircraft noise and to establish regulations to control and abate such noise. This grant of authority was limited, however. The standards and regulations had to be "consistent with the highest degree of safety" and be "economically reasonable, technologically practica- ble, and appropriate for the particular type of aircraft."'6 Thus, the resulting regulations were directed at the source of noise-the aircraft itself-rather than at airport proprietors. 3. Part 36-FAA attempts to control noise at its source In response to section 611, the FAA promulgated FAR Part 3617 (Part 36) in 1969. Part 36 was the embodiment of the FAA's attempt to control aircraft noise at its source. It provided a mechanism by which aircraft noise could be uniformly measured. It also established maxi- mum allowable noise levels (depending on weight and number of en- gines) that aircraft of new design could not exceed in order to obtain type certification.'" It did not address possible changes in flight proce- dures to reduce noise, nor did it apply to then currently operating air- craft.9 The noise levels were expressed as an Effective Perceived Noise Level (EPNdB) and permitted heavier aircraft to make more noise.2° The adoption of Part 36 encouraged new airplane types to be markedly 14. For example, although the FAA, in accordance with 49 U.S.C. § 1423(c) (1976), could certify aircraft as "airworthy," the certification had to be based on safety considera- tions, not noise. 15. Federal Aviation Act Amendments of 1968, Pub. L. No. 90-411, § 611, 82 Stat. 395 (current version at 49 U.S.C. § 1431 (1976 & Supp. III 1979)). 16. 49 U.S.C. § 1431(d)(3)-(4) (1976) (emphasis added). 17. 34 Fed. Reg. 18,364 (1969) (current version at 14 C.F.R. § 36 (1981)). 18. Before an aircraft may fly, it must first be type certificated. The FAA Administrator is vested with the power to issue type certificates for aircraft. 49 U.S.C. § 1423 (1976). Type certificates concern the basic design of an aircraft. Once a general design is type certificated, all other aircraft built according to that design are entitled to type certificates. See Morton v. Dow, 525 F.2d 1302 (10th Cir. 1975). 19. 34 Fed. Reg. 18,364 (1969). 20. For example, depending upon the type of engine, the standard for most B-747-100 aircraft is approximately 108 EPNdB, the maximum noise output allowable. U.S. DEP'T oF 1981] AVIATION NOISE AB TEMENT quieter than the generation of turbojets developed in the late 1950s and early 1960s. Since 1969, Part 36 has been amended several times to expand its coverage from newly designed domestic subsonic jet aircraft to all jet powered and propeller driven aircraft. For example, by extending the standards to newly manufactured domestic subsonic aircraft of older design,2" the 1973 amendment significantly increased the number of aircraft subject to Part 36. In a 1976 amendment, the FAA tackled the most controversial aspect of controlling aircraft noise at its source by requiring currently operating domestic subsonic aircraft with maximum gross weights over 75,000 pounds to meet Part 36 standards.22 This was accomplished by establishing a phased compliance program for all op- erating aircraft.' Whether by retrofitting or otherwise, all operating aircraft were required to comply with Part 36 standards on or before January 1, 1985. However, effective February 1, 1981, the compliance dates were extended for some types of aircraft to January 1, 1988,24 and TRANSP. FEDERAL AVIATION ADMIN., ADVISORY CIRCULAR No. 36-1B, CERTIFICATED AIRPLANE NOISE LEVELS (1977); NOISE ABATEMENT POLICY, supra note 1, at 36. Because people's reactions to noise differ widely, it is difficult to establish a simple mathematical formula that accurately represents human reaction to noise annoyance. For example, the noise emanating from a waterfall may produce more sound energy than the screech of chalk across a blackboard. To many, however, the latter is much more annoying. Even the experts are not in agreement on the relative merits of expressing noise impact in terms of dB, dBA, dBD, PnL, EPNL, EPNdB, SEL, SENEL, CNR, NEF, CNEL, ASDS, LdN or Leq. For the purposes of type certification, see supra note 18, the FAA utilizes units of EPNdB (a unit of perceived noise that attempts to take into account the actual sound energy received by a listener, the ear's response to that sound energy, the added annoyance of any pure tones or "screeches," and its duration). NOISE ABATEMENT POLICY, supra note 1, at 13-14. On the other hand; the FAA has recently designated decibels (dBA) and the yearly day-night average sound level (LdN) as the standards for determining the level of airport noise exposure. 47 Fed. Reg. 8,338, 8,339 (1981) (to be codified in 14 C.F.R. § 150). For further information, see Callahan, Noise anditsM easurement, MINNESOTA CITIES, Feb. 1980, at 26; Alekshun, Jr., Aircraft Noise Law: 4 Technical Perspective, 55 A.B.A.L 740 (1969). 21. 38 Fed. Reg. 29,569 (1973). 22. It was controversial primarily because of the potential economic impact on the air- line industry of being required to retrofit (acoustically modify by applying sound absorbent material), reengine or replace noncomplying aircraft. 41 Fed. Reg. 56,049 (1976). For ex- ample, in 1976, the FAA estimated that modification of all affected aircraft would cost close to one billion dollars. Id at 56,052. 23. This was effectuated by adding a new Subpart E to 14 C.F.R. § 91. 41 Fed. Reg. 56,046, 56,055-56 (1976) (current version at 14 C.F.R. §§ 91.301-.311 (1981). The FAA adopted the phased compliance program because, as of the effective date of the amendment, only 500 of the United States fleet of 2,100 large jet aircraft complied with Part 36. 41 Fed. Reg. 56,046 (1976). 24. These include certain two-engine or three-engine aircraft under FAA approved re- placement plans and certain two-engine aircraft under the small communities exemption provisions. 45 Fed. Reg. 79,302, 79,313 (1980). Interestingly, neither Congress, which man- LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 15 Part 36 was made applicable to foreign as well as domestic aircraft. 5 The last amendment was in direct response to a congressional mandate.26 4. Noise Control Act of 1972-EPA climbs aboard In 1972, Congress, apparently dissatisfied with the progress of the FAA,27 passed the Noise Control Act of 1972.28 Among other things, the Act amended section 611. In essence, it prohibited the FAA from issuing an original type certificate to any aircraft that failed to meet Part 36 noise standards.29 The Act also recognized a role for local gov- ernments, but added the Environmental Protection Agency (EPA) to the regulatory process and required both the FAA and EPA to consider the effect of aircraft noise on the public health and welfare. While the FAA maintained regulatory authority over aircraft noise, it was man- dated to hold public hearings on EPA proposed aircraft noise regula- tions. The FAA,'however, was not required to adopt the regulations. As a result, the EPA has had meager influence on the regulatory pro- cess-nearly all EPA proposals have been rejected,30 sometimes after dated this exemption, nor the FAA defined what constitutes "small community service." One might have thought that the rationale was to encourage air carriers to provide service to small communities and thus permit noisier aircraft to service those communities. In prac- tice, however, the exemption applies to particular aircraft whether they fly to a community with a population of 5,000 or 5,000,000. 25. In its Aviation Noise Abatement Policy, the FAA stated that it would unilaterally impose its own aircraft noise standards on foreign air carriers unless the International Civil Aviation Organization (ICAO) established a noise abatement schedule substantially similar to Part 36. NoisE ABATEMENT POLICY, supra note 1, at 42. The ICAO is responsible for setting international noise standards. This was not done to the FAA's satisfaction, so the FAA considered itself mandated by the Aviation Safety and Noise Abatement Act of 1979, Pub. L. No. 96-193, 94 Stat. 50 (1980) (codified in scattered sections of 49 U.S.C.A. (West Supp. 1981)), to apply Part 36 standards to foreign air carriers. 45 Fed. Reg. 79,302, 79,305- 310 (1980). 26. 45 Fed. Reg. 79,302, 79,305-06 (1980). 27. During the first four years after the addition of § 611 to the 1958 Act, the FAA had promulgated only one noise regulation, Part 36. This regulation applied only to new designs for domestic aircraft and left both operating aircraft and foreign aircraft unregulated. 28. 42 U.S.C. §§ 4901-4918 (1976), 49 U.S.C. § 1431 (1976). Actually, the Act addressed much more than aircraft noise. Among other things, it mandated the EPA to set noise standards for all products in interstate and foreign commerce. 29. 49 U.S.C. § 1431(6)(2) (1976). In other words, Congress wanted the FAA to apply Part 36 standards to all newly produced aircraft even though aircraft of that type were al- ready in operation, as opposed to those merely on the drawing boards. Aircraft that do not comply with Part 36 standards as originally promulgated in 1969 include: all B-707s and DC-8s; depending on engine type, most B-737s, DC-9s, and BAC 1-1 Is; some B-727s; and a few B-747s. All DC-10 and L-1011 aircraft comply. NoisE ABATEMENT POLICY, supra note 1, at 36. 30. To date, the EPA has proposed II regulations; only one has been adopted in full. 1981] 1A VIA TION NOISE ABATEMENT long delays. 5. FAA's Noise Abatement Policy of 1976-a self-serving document It is one thing for Congress to enact legislation and proffer its in- tent through committee reports. It is quite another for the federal bureaucracy to interpret the meaning of the legislation and promulgate regulations. In 1976, the FAA issued its interpretation of congressional intent in the area of aviation noise abatement when it published its Aviation Noise Abatement Policy. In the FAA's view, single liabiliy for noise damages resides in the airport proprietor, but sharedr esponsi- bility for aviation noise abatement resides jointly among federal state and local governments, air carriers, airport proprietors, and citizens.31 Taking into account the entire breadth of legislative history concerning aviation noise law, the FAA postulated a "legal framework" that is best stated in its own words: 1. The federal government has preempted the areas of airspace use and management, air traffic control, safety and the regulation of aircraft noise at its source. The federal gov- ernment also has substantial power to influence airport devel- opment through its administration of the Airport and Airway Development Program. 2. Other powers and authorities to control airport noise rest with the airport proprietor-including the power to select an airport site, acquire land, assure compatible land use, and control airport design, scheduling and operations-subject only to Constitutional prohibitions against creation of an un- due burden on interstate and foreign commerce, unjust dis- crimination, and interference With exclusive federal regulatory responsibilities over safety and airspace management. 3. State and local governments may protect their citi- Statement of Walter C. Collins, Noise Abatement Officer at Los Angeles International Air- port (June 23, 1981). For example, on August 29, 1975, the EPA proposed two amendments to the Federal Aviation Regulations which would have required pilots of all civil turbojet- powered aircraftlo utilize a two-segment approach to a landing runway. Generally, a two- segment approach procedure requires the pilot to fly an initial steep glide path segment (six degrees) and to intercept the conventional glide path (three degrees) at 700 feet above the elevation of the airport. This procedure was to be used under certain circumstances during clear weather and upon approach to a runway that had an FAA approved two-segment Instrument Landing System (ILS) approach procedure. Both proposals were rejected for safety reasons. 41 Fed. Reg. 52,388 (1976). 31. NoisE ABATEMENT POLICY, supra note 1, at 5-6, 29-34. LOYOLA4 OF LOS ANGELES LAW REVIEW [[Vool. 15 zens through land use controls and other police power meas- ures not affecting aircraft operations. In addition, to the extent they are airport proprietors, they have the powers de- scribed in paragraph 2.32 To alleviate the burden of these proprietary powers, the FAA de- clared that it would support local airport proprietors' actions to abate noise; however, it reserved the right to block the implementation of such actions under either the supremacy or the commerce clause of the Constitution.3 The FAA was, and still is, asserting that the extensive federal role envisioned by congressional legislation should be frag- mented and accomplished piecemeal by local airport proprietors but, importantly, with no federal liability.34 Thus, exclusive airport propri- etor liability exists in the midst of pervasive federal control of aircraft flight operations. 6. Quiet Communities Act of 1978 and the Aviation Safety and Noise Abatement Act of 1979 Partially to speed up FAA response to EPA proposals, Congress further amended section 611 in the Quiet Communities Act of 1978.11 It specified a ninety-day time limit for FAA response to EPA suggested regulations for noise abatement. It further required the FAA to pro- vide the public with a detailed analysis and response to the EPA proposals. In 1979, Congress continued its march toward pervasive controls and enacted the Aviation Safety and Noise Abatement Act of 1979 (ASNA).36 ASNA required the Secretary of Transportation to estab- 32. Id at 34. 33. See id at 58, in which the FAA discusses its review procedure of airport proprietor use restrictions. See also U.S. CONST., art. I, § 8. 34. It is possible that the FAA is reevaluating this position. In a speech given on Febru- ary 18, 1982, FAA Administrator J. Lynn Helms hinted at this reevaluation when discussing proposed legislation involving FAA review of local noise regulations: The FAA, under the bill being drafted, would consider those national conse- quences and determine if the benefits to the national users from keeping the airport open for that hour were greater than the costs to the local residents. If so, that hour will be preserved. The FAA would propose to accept the economic consequences of such a judgment. That is, the FAA would become liable for the incremental difference between a reasonable local viewpoint and a truly national perspective. Address of J. Lynn Helms, 16th Annual Southern Methodist University Air Law Sympo- sium (Feb. 18, 1982). 35. Quiet Communities Act of 1978 § 3, 49 U.S.C. § 1431(c)(1) (Supp. III 1979). Note that it took the FAA fifteen months to reject the EPA suggested two-segment approach pro- cedures. See supra note 30. 36. Pub. L. No. 96-193, 94 Stat. 50 (1980) (codified in scattered sections of 49 U.S.C.A. (West Supp. 1981)). 19811 AVIATION NOISE ABATEMENT lish federal standards for measuring and assessing noise as it impacts residents near airports.37 Additionally, airport proprietors were made eligible under the Airport and Airways Development Act of 1970 to obtain federal funds to assist them in airport noise compatibility planning.3 Interestingly, according to ASNA, airport proprietors may, but are not required to, submit "noise exposure maps" and "noise compatibil- ity programs" to the Secretary. 9 The map, if submitted, must set forth the incompatible land uses existing near the airport as well as the pro- jected effects of airport operations in 1985. ° The program should list the measures taken or to be taken to reduce any incompatible noise. However, after the first map is submitted, the proprietor must report any changes that create a "substantial new noncompatible use in any area surrounding [the] airport."'" Importantly, if the Secretary ap- proves a noise program and allocates funds, the United States Govern- ment is not "liable for damages resulting from aviation noise by reason of any action taken by the Secretary or the Administrator of the Fed- eral Aviation Administration under this section. '42 Again, the negative aspect of liability is apparent. Although Con- gress excluded federal liability for noise damages related to the ap- proval of a noise compatibility plan around a federally supported airport, it failed to address the thorny question of what liability, if any, an airport proprietor should have for noise damage resulting from the proprietor's management of its airport. This statutory program could represent the ultimate "Catch-22" for the airport proprietors who seem to be in dire need of assistance to protect their dual-faceted interest of economic survival and airport noise abatement.43 37. 49 U.S.C.A. § 2102 (West Supp. 1981). EPNdB was the standard used by the FAA to measure aircraft noise. Congress wanted the FAA to establish a standard for assessing the impact of the noise on the community. See supra note 20. 38. 49 U.S.C.A. § 2104(c)(1) (West Supp. 1981). 39. See id at.§§ 2103(1), 2104(a). 40. 49 U.S.C.A. § 2103(1) (West Supp. 1981). The regulation promulgated to implement ASNA, 14 C.F.R. § 15, defines incompatible uses in general to include mobile homes, churches, schools, concert halls, residential properties, and libraries. 46 Fed. Reg. 8,316 (1981). 41. 49 U.S.C.A. § 2103(2) (West Supp. 1981). 42. Id. at § 2104(d). 43. See Burke, Legal Roar Over Jet Noise, Nat'l L.., Dec. 1, 1980, at 1, col. 1. "It's kind of a Catch-22 situation," said Maureen R. George, chairwoman of the National Institution of Municipal Law Officers' airport litigation committee. "The courts are saying that cities have no authority to control noise," she said. "But on the other hand [some courts] are finding that cities are liable for the dam- ages coming from that noise." Id at 10, col. 3-4 (brackets in original).