Vermont is Required by Constitution and Federal Law to Abolish the F-35 Training Flights in Cities
Part I of this article shows that the noise of military aircraft is not preempted
Part II shows that even if state authority to regulate the noise of military aircraft was preempted, which it is not, the states are required by the US constitution and federal law to enforce DoD and Air Force regulations, and those military regulations protect civilians way better than the FAA ever could and require a halt to F-35 training in populated areas.
Part I: No preemption of the noise of military aircraft
I-A. The Vermont Supreme Court
In an Act 250 case, the Vermont Supreme Court held that regulation of land-use impacts of F-35 noise is preempted by the FAA. In re Request for Jurisdictional Opinion re: Changes in Physical Structures and Use at Burlington International Airport for F-35A. 2015 VT 41 (2015). However, the Vermont land-use decision did not independently analyze the Federal Aviation Act and the Noise Control Act to determine whether they applied to military aviation. Instead, the court simply relied on the holdings in two federal civil aviation cases. Helicopter Ass’n Int’l, Inc. v. FAA, 722 F.3d 430, 433-34 (D.D.C. 2013) and City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633-34 (1973).
The Vermont court expanded the civil-aviation-related holdings of those two civil aviation cases to also cover military aircraft to conclude that “there is no Act 250 jurisdiction” and that “any action to regulate a change in use [of the runway] to the F-35A would amount to an attempt to regulate noise and be preempted.”
However, this decision departed from an earlier federal circuit court of appeals case that did analyze the Federal Aviation Act and did consider whether the noise of military aircraft was preempted by the FAA. That case was not mentioned in the Vermont case. Nor was the stated position of the FAA itself regarding its own authority to regulate the noise of military aircraft mentioned by the Vermont court.
I-B. Federal Appeals Court held that the noise of military aircraft is not preempted by the FAA
To determine whether state and local regulation of the noise of military aircraft was preempted by the FAA, a federal appeals court conducted a thorough analysis of the Federal Aviation Act of 1958, as amended by the Noise Control Act of 1972 and their legislative history. Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979) affirmed the federal district court holding “that FAA jurisdiction over military aircraft is limited to air traffic control and does not encompass regulation of military aircraft noise” and that the FAA does not have “authority to control noise pollution from military aircraft.”
Westside Property Owners is consistent with the statement by the FAA itself expressly disclaiming authority to regulate the noise of military jets.
The EPA goes further, stating that since 1982 it no longer regulates noise of any kind “as part of a shift in federal noise control policy to transfer the primary responsibility of regulating noise to state and local governments.”
As the Vermont case, In re Request for Jurisdictional Opinion, did not mention Westside Property Owners or the disclaimer of authority to regulate the noise of military jets by the FAA, the actual law governing regulation of the noise of the F-35 may be distinguished from the holding in In re Request for Jurisdictional Opinion.
The noise of F-35 jets in cities actually falls under the regulations of a different branch of the federal government: the Department of Defense (DoD). As we will see in part II, the DoD regulations are actually more protective of civilians than those of the FAA. That means Vermont and local governments have authority to regulate the noise of military aircraft so long as their laws, ordinances, and zoning are consistent with those DoD regulations.
Part II: Military regulations firmly prohibit 115-decibel F-35 training in cities
As shown in more detail below, even if the Vermont Supreme Court was right that state and local regulation of F-35 noise was preempted by the FAA, which it is not, the FAA cannot trump the US Constitution.
States are required by the US Constitution to conform their Air National Guard training to “the discipline prescribed by Congress.”
Congress set that discipline for state national guard units to be the same as the discipline for the US armed services.
DoD and Air Force regulations require commanders to protect civilians both in armed conflicts and during peacetime, including during training operations.
While in combat, incidental harm to civilians can sometimes be justified under military regulations. But that exception does not apply in peacetime to F-35 training in cities.
Because the training with F-35 jets in cities hurts and injures civilians in violation of those DoD and Air Force regulations, training in such a location is illegal. Any expenditure for the F-35 training in cities is waste, fraud, and abuse. Investigation and a report by the state auditor is needed just as much as investigation and prosecution by state and federal prosecutors and investigation and reporting by the Inspector General.
II-A. The Constitution gives states authority over training and requires the states to conform the training to the discipline prescribed by Congress
The US Constitution empowers Congress “To provide for organizing, arming, and disciplining, the Militia” [now called the state national guard]. “Arming” means the federal government had control over the basing of the F-35 jets at BTV airport. Art. 1, §8, cl. 16.
But the constitution then goes on to say, "reserving to the States respectively … the Authority of training the Militia according to the discipline prescribed by Congress."
That means that the training of the state national guards is under the command and control of the states, but the states must conform the training to the discipline prescribed by Congress. (See Perpich v. Department of Defense, 496 U.S. 334 (1990). “Finally, although the appointment of officers ‘and the Authority of training the Militia’ is reserved to the States respectively, that limitation is, in turn, limited by the words ‘according to the discipline prescribed by Congress.’").
Unlike the callup for federal service for overseas training that was the issue in Perpich, the training with F-35 jets is in Vermont and is under state command and control even though paid for with federal funds, as provided in Title 32.
II-B. Congress set the discipline for the state national guards to be the same as that for the US armed services
Congress adopted federal law 32 USC 501, which implements the constitution’s mandate that the states have authority to conduct the training of the state national guard. This federal law also requires the states to conform the discipline for the training of the state national guards to that of the US armed forces.
Consistently, Section 59 of the Vermont Constitution and Vermont law 20 VSA 361, 362 require the same discipline for the Vermont National Guard as federal law 32 USC 501 does—that of the US armed forces.
The discipline for the US armed forces protects civilians in multiple ways not even imagined by the FAA.
II-C. The discipline for the state air national guards
The Air Force discipline that applies to the state air national guard units includes DoD and Air Force directives, instructions, policies, and doctrine. DoD Directive 2311.01, “DoD Law of War Program,” and Air Force Targeting Doctrine, “Basic Principles of the Law of War and Their Targeting Implications” outlaw any military operation that does any of the following:
· indiscriminately assaults civilians
· targets civilians
· fails to maintain separation of military forces from populated areas
· uses an otherwise legal weapon in a manner for which it was not designed that causes unnecessary suffering
· lacks military necessity
· feasible precautions have not first been taken to protect civilians
· harm to civilians is disproportionate to the military advantage from the operation
· uses civilians as human shields
As the F-35 training in cities does each of these forbidden things, it is grievously in violation and is outlawed under those DoD and Air Force rules. A fuller description of the five law of war principles and their violations by training with F-35 jets in cities is in the appendix of this article below.
II-D. Even if state laws were preempted by the FAA, the state is still required to conform Guard training to the discipline prescribed by Congress
Even if the FAA did preempt state regulation of military aircraft noise, the state would still have to conform its Vermont Air National Guard training to “the discipline prescribed by congress.” This express constitutional mandate cannot be preempted or ignored. Nor can the implementing federal law 32 USC 501 that gives state officials command and control of the Vermont Air National Guard be preempted. Nor can the DoD and Air Force regulations that federal law requires them to follow be preempted.
II-E. Conformance to the discipline is a constitutional right
Because discipline protects civilians from military operations, the state conformance to that discipline is also a US constitutional right of Vermonters. It is also a constitutional right under Article 59 of the Vermont constitution.
II-F. No exception for peacetime and no exception for training
While DoD Directive 2311.01 requires the US armed forces to comply with the law of war during armed conflict, it goes further, and also requires US armed forces to "act consistent with the law of war’s fundamental principles and rules” during “all other military operations.” The DoD defines "operations" to include military training (page 159). That means the Vermont Air National Guard must act consistent with the law of war during its F-35 training in Vermont.
DoD Directive 2311.01 lists the five law of war principles that must be satisfied in any military operation, including military training operations: military necessity, humanity, distinction, proportionality, and honor. It designates the 1,236-page DoD Law of War Manual as “the authoritative statement on the law of war within the DoD.” In five different ways, these principles require commanders to protect civilians.
The DoD Law of War Manual confirms what DoD Directive 2311.01 says, that adherence to the law of war standards is required “in all circumstances,” – “even in situations that do not constitute ‘war’ or ‘armed conflict’” – including “during military operations outside the context of armed conflict.” It explains that the law of war applies even more during peacetime than during war: “‘elementary considerations of humanity’ have been understood to be ‘even more exacting in peace than in war.’ Thus, these legal standards, at a minimum, must be adhered to in all circumstances.” (DoD Law of War Manual, p. 71-72).
Each of the five law of war principles requires military commanders to take active steps to protect civilians. As described in the appendix to this article below, the 115-decibel F-35 training flights in Vermont cities violate each and every one of the five law-of-war fundamental principles listed in DoD Directive 2311.01. That means that the constitutional obligation of the state to conform the training to the discipline prescribed by Congress is violated by F-35 training in cities. It also means that the right of citizens to have the Vermont National Guard train in accordance with the discipline prescribed by Congress is violated by F-35 training in cities. And that means that the state must use its command-and-control authority to halt the F-35 training flights in cities now.
II-G. DoD Directive 2311.01 requires enforcement of the law of war
DoD Directive 2311.01 lists a range of enforcement mechanisms, starting with training and extending to criminal prosecution.
II-H. F-35 training in cities also violates Vermont state laws, and those state laws are not preempted
In addition, Vermont state laws already on the books prohibit noise at the level of the F-35 in populated areas, including reckless assault, reckless endangerment, and reckless disorderly conduct (13 VSA 23, 13 VSA 25, and 13 VSA 26). As shown above, those state laws are not preempted by the FAA. As they are consistent with the discipline prescribed by Congress—the DoD and Air Force regulations—they are not preempted by them either. The F-35 training in cities violates each of those state laws. Article 20 of the Vermont Constitution requires the Governor “to take care that the laws be faithfully executed.” As the state has command and control of training its national guard, it must conduct the training in a manner and in a location that conforms the F-35 training to state law. Therefore, the Governor must take care to enforce the state law, as well as the federal law and the military regulations, all of which which prohibit such noise in populated areas.
Routine training flights with F-35 jets in Vermont cities hundreds of times a month violates the discipline prescribed by Congress. The constitutional right of Vermonters to have the Vermont National Guard train in accordance with the discipline prescribed by Congress is violated. The training with F-35 jets in cities also violates state laws. Any expenditure in behalf of such an illegal military operation is waste, fraud, and abuse. Vermont is obligated to halt the F-35 training in cities.
However, the governor and Vermont National Guard commanders are not enforcing the discipline prescribed by Congress, the Inspector General never responded to a complaint submitted by 657 Vermonters about the lack of enforcement, and no civilian prosecutor is taking action to protect Vermonters. The Vermont Supreme Court issued a flawed preemption decision. But even if that decision was correct, it would not interfere with the requirement for the state to conform the F-35 training to the discipline prescribed by congress—the military regulations that protect civilians. Nor is any Vermont legislative committee investigating while thousands of Vermonters are suffering.
This is systemic waste, fraud, and abuse on steroids.
It is part of the job of state and local officials to not assume that things are going well and to conduct a zealous investigation, especially when alerted to such grievous systemic fraud, waste and abuse that is physically hurting and injuring thousands of Vermont families in violation of state law and state obligations under federal law.
Appendix: How F-35 training in cities violates the fundamental law of war principles included in the discipline prescribed by Congress.
Distinction requires commanders to maintain separation of military forces from populated areas. It also prohibits targeting civilians. Training with F-35 jets from a runway in the midst of a densely populated area violates that separation requirement. The runway at BTV is immediately adjacent the densely populated Chamberlin School neighborhood of S. Burlington that surrounds the Burlington International Airport. It aims at the center of densely populated Winooski, one mile away. It also aims at the Chase Street area of Burlington, also about one mile away. The other end of the runway aims at industrial, commercial, and residential parts of Williston, all even closer to the end of the runway.
Training with F-35 jets in cities also violates distinction by indiscriminately targeting 2,963 civilian families with 115-decibel noise hundreds of times a month.
"Unnecessary suffering" (also called "humanity") prohibits military operations, including training, that cause unnecessary suffering. The F-35 training in populated areas causes pain, damages hearing, impairs learning and interferes with cognitive development. It also increases the risk of heart disease and stroke. Hearing loss increases the risk of dementia.
The F-35 was designed for stealth attack at supersonic speeds. That is why it emits 115 decibels on takeoff at 1000 feet elevation without using the afterburner. It is about five times louder than that when it takes off with the afterburner. The F-35 was not designed with routine training flights in densely populated cities in mind. By training hundreds of times a month in Vermont cities, the Vermont Air National Guard is using the F-35 in a way for which it was not designed that causes unnecessary suffering, in violation of DoD Directive 2311.01 and the Air Force Targeting Doctrine.
"Distinction" and "honor" both prohibit using civilians as human shields for military equipment or military forces. As the F-35 is the most advanced fighter jet and is designated by the DoD to deliver two nuclear bombs, its bases are legitimate military targets. An adversarial military planner would likely consider that they must be hit early, before they are forward based. The location in Vermont cities makes those cities full of civilians into human shields.
"Proportionality" only allows incidental damage to civilians or civilian property during combat, and then only if the damage to civilians is not disproportionate to the military advantage. The training in Vermont is not combat, so the allowable incidental damage to civilians is zero. There is no military advantage to training with F-35 jets in a city. It is a matter of mere convenience, as described by the Wing Commander during a recent Vermont National Guard open house on Facebook.
Proportionality also requires feasible precautions to be taken to protect civilians. The feasible precaution of training away from populated areas was not taken. Nor was the feasible precaution of sound insulating homes and schools in advance of the F-35 training.
"Military necessity" prohibits any operation that is merely for convenience and is not militarily necessary toward successfully ending the war. There is not war anywhere near Vermont cities so there is no military necessity for either basing or training with F-35 jets in Vermont cities.
The F-35 training in cities can equally be accomplished remote from populated areas. Training in cities is merely a matter of convenience, and the DoD Law of War Manual expressly disallows convenience instead of military necessity.
Write or call your public servants and local news media:
Call or email your favorite local news media reporter
Governor Phil Scott 802-828-3333 Chief of Staff <Jason.Gibbs@vermont.gov>
Vermont National Guard's Complaint Line: 802-660-5379 (Note: the Vermont Guard told a reporter that it received over 1400 noise complaints. But the Guard won’t release what people said).
Instead or in addition, submit your report & complaint to the online F-35 Fall 2021-Winter 2022 Report & Complaint Form: https://tinyurl.com/5d89ckj9
See all the graphs and in-your-own words statements on the F-35 Spring-Summer 2021 Report & Complaint Form (513 responses): https://tinyurl.com/3svacfvx.
See links to the graphs and in-your-own words statements on all four versions of the F-35 Report & Complaint Form since Spring 2020, with a total of 1670 responses from 658 different people.
Senator Patrick Leahy 800-642-3193 Chief of Staff <email@example.com>
Senator Bernie Sanders 800-339-9834 <Senator@sanders.senate.gov>
Congressman Peter Welch 888-605-7270 Chief of Staff <firstname.lastname@example.org>
Burlington City Council <email@example.com>
Burlington Mayor Miro Weinberger <firstname.lastname@example.org>
Winooski Mayor Kristine Lott <email@example.com>
S. Burlington City Council Chair Helen Riehle <firstname.lastname@example.org>
Williston Selectboard Chair Terry Macaig <email@example.com>
VT Senate President Becca Balint <firstname.lastname@example.org>
VT House Speaker Jill Krowinski <email@example.com>
Attorney General TJ Donavan <DonovanTJ@gmail.com>
States Attorney Sarah George <Sarah.firstname.lastname@example.org>
Vermont’s Federal Prosecutor <email@example.com>
Adjutant General Brig Gen Gregory C Knight <firstname.lastname@example.org>
Major J Scott Detweiler <email@example.com>
Wing Commander Col David Shevchik firstname.lastname@example.org
Vermont National Guard Inspector General Lt. Col. Edward J Soychak <email@example.com>
US Air Force Inspector General Lt. Col. Pamela D. Koppelmann <firstname.lastname@example.org>
Air Force Secretary Frank Kendall <Frank.Kendall@us.af.mil>