No federal law preempts state and local noise regulation of the 115-decibel F-35

Not just that the FAA expressly disclaims jurisdiction to regulate the noise of military aircraft. Also, the US Constitution assigns the authority to train the national guard to the states.

Note: So far 240 people have signed on to the petition calling on the Vermont ACLU to protect 1st Amendment rights to freedom of the press and free speech, and to take action to halt F-35 training flights in a populated area. The Vermont ACLU needs to hear from you.

Sign on to the petition to the Vermont ACLU

In 2015, the Vermont Supreme Court decided that application of Vermont’s environmental law to developments related to the basing of the F-35 would amount to an attempt to regulate noise and was preempted by the Federal Aviation Act.

But wait! The Federal Aviation Administration (FAA) expressly disclaims jurisdiction to regulate the noise of military aircraft. The FAA states:

Military Aircraft Noise

FAA does not have the authority to regulate the operations of military aircraft. If you live near a military installation, you should try contacting their noise office or community relations department for more information on their operations in your community.

The FAA further distinguishes the specific powers it has over civil and military aviation. The only area in which the FAA has authority over military aviation is “developing and operating a system of air traffic control and navigation for both civil and military aircraft.” Regarding aviation noise, the FAA expressly limits itself to civil aviation: “Developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation.”

The EPA goes even further in disclaiming any role at all, stating that noise regulation now falls on state and local governments.

Amazingly, in its 2015 decision, the Vermont Supreme Court did not consider those federal agency disclaimers of authority to regulate the noise of military aviation! All the cases it relied on were civil aviation cases, for which the FAA does indeed have full authority to regulate noise.

So what gives? If the federal agencies disclaim responsibility for regulating military aircraft noise you can’t argue preemption.

The disclaimers may distinguish the 2015 decision for purposes of enforcement of US and Vermont constitutional rights by the ACLU. Affected cities seeking to enforce local noise ordinances or Vermont state reckless conduct laws may also rely on these disclaimers for military aviation.

Especially noteworthy is that in a concurring opinion in the 2015 decision, Justice James L. Morse wrote, “whether the facts and law will ultimately support a public-nuisance action by residents of the area near the Burlington International Airport if, and when, the F-35A aircraft is deployed remains to be determined.” Recognition that deployment of the F-35 opened the door to a lawsuit seeking monetary compensation for the harm done to property value, children, and adults from the noise also suggested that supposed federal preemption would not apply to the actual F-35 training.

Justice Morse’s view is consistent with the US Constitution’s assignment of powers to the federal and state governments:

The US constitution empowers Congress “To provide for organizing, arming, and disciplining, the Militia” [now called the state national guard]. But it “reserv[es] to the States respectively … the Authority of training the Militia according to the discipline prescribed by Congress. Art. 1, §8, cl. 16.

When the F-35 was deployed for training the Vermont Air National Guard at Burlington International Airport in 2019 the issue shifted from "basing," (which was what the constitution called "arming" the militia), for which the constitution assigned full authority to the federal government, to the "training" of the militia, for which the constitution assigned the full authority to the state.

Not to be forgotten in the above quoted constitutional provision is that the state is required to conduct the training according to the “discipline prescribed by Congress.” Beautifully for Vermonters, that discipline protects civilians from military operations.

The "discipline” includes the Uniform Code of Military Justice (UCMJ). The “discipline” also includes the US War Crimes Act [18 U.S. Code § 2441], which protects civilians from acts by military forces that cause serious bodily injury, including severe physical pain or permanent damage to "a bodily member, organ, or mental faculty."

The F-35 is producing noise in Vermont cities at a 115 decibel level. The US Air Force Environmental Impact Statement (EIS) admits that repeated exposure to military aircraft at 114 decibels or higher can cause damage to the bodily organs responsible for hearing.

The Air Force EIS also admits that exposure to high civilian aircraft noise levels “can impair learning.” For example, the Air Force reported that:

It is generally accepted that young children are more susceptible than adults to the effects of background noise. Because of the developmental status of young children (linguistic, cognitive, and proficiency), barriers to hearing can cause interferences or disruptions in developmental evolution. . .

Elementary school children attending schools near New York City’s two airports demonstrated lower reading scores than children living farther away from the flight paths. Researchers have found that tasks involving central processing and language comprehension (such as reading, attention, problem solving, and memory) appear to be the most affected by noise. It has been demonstrated that chronic exposure of first- and second-grade children to aircraft noise can result in reading deficits and impaired speech perception (i.e., the ability to hear common, low-frequency [vowel] sounds but not high frequencies [consonants] in speech).

Children attending elementary schools in high aircraft noise areas near London’s Heathrow Airport demonstrated poorer reading comprehension and selective cognitive impairments. Similarly, a 1994 study found that students exposed to aircraft noise of approximately 76 dBA scored 20 percent lower on recall ability tests than students exposed to ambient noise of 42-44 dBA. Similar studies involving the testing of attention, memory, and reading comprehension of school children located near airports showed that their tests exhibited reduced performance results compared to those of similar groups of children who were located in quieter environments.

The civilian aircraft noise cited in the Air Force studies as causing such impairment of cognitive development of children is much quieter than the 115-decibel F-35.

In addition to hearing damage and impaired cognitive development, recent studies further show that environmental noise can cause a 30% increase in damage to such important bodily organs as the heart and vascular system.

The "discipline prescribed by congress" also includes provisions of Senate-ratified international treaties that protect civilians, including the 1907 Hague Convention IV, the 1949 4th Geneva Convention, and the 1966 International Covenant on Civil and Political Rights (ICCPR). These treaties include provisions similar to the relevant 14th amendment substantive due process rights upheld by the US Supreme Court, as described in more detail in the 62-page Complaint to the Inspector General, which was signed by 657 Vermonters.

Under the Vermont constitution and under a Vermont law, 20 VSA 361, the Vermont National Guard must also adhere to regulations for the US armed forces that protect civilians from military operations, such as DoD Directive 2311.01, “DoD Law of War Program.”  The military regulations that protect civilians, if enforced, appear more explicit than protections of civilians from government action in ordinary civilian environmental laws, which are incredibly weak.

The Guard must also adhere to Vermont criminal laws, including  reckless simple assault, reckless endangerment, and reckless disorderly conduct.

Among US constitutional rights violated by the F-35 training in densely populated cities, in addition to the right to have the guard train according to the discipline prescribed by congress, are privacy, bodily integrity, and parental rights.

Vermont constitutional rights violated include liberty and safety, seizure, takings, right to a remedy and to adequate judicial process, common benefit, right to be protected, strict subordination of the military, faithful execution, and arming and training according to law.

Federal, state, county, and military prosecutors all have authority but not one of our prosecutors is enforcing the laws to protect Vermonters from the knowing, deliberate, and reckless mass violence directed against Vermont cities by Vermont's own military forces under the command and control of the governor and Vermont's adjutant general.

One factor that appears relevant to the lack of enforcement is the admission by the US Air Force that the F-35 training in Vermont would have "disproportionate impact on low income and minority populations." The City of Winooski is a primary target, as the runway used for F-35 training at Burlington International Airport aims directly at the center of that city only one mile away. Winooski is the most densely populated city in Vermont. It is also the state’s most ethnically diverse, with 23% people of color. More than 20 languages are spoken. Nearly 30% of the population is in poverty, the highest percentage in the county. 63% of its 3,259 homes are rental. 98.1% of the 885 children in K-12 are on free or reduced price lunch. A disgraceful display of classism and racism by federal, state, and military prosecutors.

The governor and the adjutant general both asserted that the state is obligated to conduct the F-35 training because it is taking money from the federal government, as described in the article, "Vermont’s top General Seeks to Shift the Blame for the F-35 Training Flights over Winooski--The attempt to shift the blame to the federal government for the F-35 flights is flawed." But, as cases cited in that article explain, any federal coercion of the state to conduct its F-35 training flights in a densely populated area would be unconstitutional as 'commandeering.'"

Furthermore, no federal authority actually requires the F-35 training to be conducted in a densely populated area. No explanation has ever been offered for the city location. With 17 other airports in Vermont, the decision to locate the F-35 at the one airport in the state’s most densely populated area could well be related to the preferences and convenience of commanders to be near Burlington, with all the pleasures the city offers for their lifestyle enjoyment, as described in the series of articles on VTDigger, “The flying fraternity: A ‘Top Gun’ culture pervades the Vermont National Guard.”

The fact that the US constitution assigns the authority of training the Guard to the states means that state or local regulation of that training is not subject to preemption. The fact that the FAA and the EPA disclaim authority to regulate the noise of military aircraft voids even the possibility of a federal preemption argument. Thus, the 2015 decision provides no obstacle to protecting Vermonters.

Action by the Vermont ACLU is needed now to protect the constitutional rights and the health and safety of thousands of Vermonters, which are daily viciously transgressed by the 115 decibel F-35 assaults conducted by the governor and the adjutant general, with total impunity, and in defiance of the rule of law.

Sign on to the petition to the Vermont ACLU

Write or call your public servants:

Governor Phil Scott 802-828-3333 Chief of Staff <Jason.Gibbs@vermont.gov>

Vermont National Guard's Complaint Line: 802-660-5379

Add your own report & complaint to the online F-35 Spring-Summer 2021 Report & Complaint Form: https://tinyurl.com/4zjjn39x

See the responses to the F-35 Spring-Summer 2021 Report & Complaint Form (so far 504 responses): https://tinyurl.com/3svacfvx

Senator Patrick Leahy 800-642-3193 Chief of Staff <john_tracy@leahy.senate.gov>

Senator Bernie Sanders 800-339-9834 <Senator@sanders.senate.gov>

Congressman Peter Welch 888-605-7270 Chief of Staff <patrick.satalin@mail.house.gov>

Burlington City Council <citycouncil@burlingtonvt.gov>

Burlington Mayor Miro Weinberger <mayor@burlingtonvt.gov>

Winooski Mayor Kristine Lott <klott@winooskivt.org>

S. Burlington City Council Chair Helen Riehle <hriehle@sburl.com>

Williston Selectboard Chair Terry Macaig <macaig@msn.com>

VT Senate President Becca Balint <bbalint@leg.state.vt.us>

VT House Speaker Jill Krowinski <jkrowinski@leg.state.vt.us>

Attorney General TJ Donavan <DonovanTJ@gmail.com>

States Attorney Sarah George <Sarah.fair.george@gmail.com>

Vermont’s Federal Prosecutor <usavt.contactus1@usdoj.gov>

Adjutant General Brig Gen Gregory C Knight <gregory.c.knight.mil@mail.mil>

Major J Scott Detweiler <john.s.detweiler.mil@mail.mil>

Wing Commander Col David Shevchik <david.w.shevchik@mail.mil>

Air Force Secretary Frank Kendall <Frank.Kendall@us.af.mil>