Be Vewy, Vewy Quiet – EPA’s Noise Program Might Be Coming Back!

Posted on August 30, 2016 by Samuel I. Gutter

Many, many years ago, when I was a staff lawyer at EPA headquarters, my duties included advising the program that implemented and enforced the Noise Control Act of 1972.  My last involvement, though, was to help dismantle the program.  In one of the more curious footnotes to the deregulatory wave that swept EPA in the early years of the Reagan administration, EPA axed the program – sort of.  Leaving behind a regulatory ghost town, EPA revised its noise regulations to leave standing the bare structure of federally preemptive rules, while clearing the building of its regulatory and enforcement staff.  In effect, EPA took itself out of the picture, morphing the noise regulations into a self-certification program for manufacturers. 

And there, in 40 CFR Parts 201 through 211, the rules have resided (quietly) for the last 34 years – noise standards for rail equipment, trucks, and portable air compressors, as well as labeling requirements for hearing protectors.  (But not garbage trucks.  EPA promulgated final noise standards for those, but revoked the regulations on the eve of the DC Circuit argument in which EPA was to defend the rule.  Think about that next time you hear the hydraulics whining outside your bedroom window at 5:00 a.m.) 

Ah, but did the noise program really end?  As one of my EPA supervisors quipped at the time, the noise program is like a spider you’ve stepped on: you think it’s dead, but then its leg starts twitching.  Today’s twitch comes from the New York congressional delegation, specifically Congresswoman Grace Meng (D-NY), whose district lies in the flight path of LaGuardia Airport, and New York’s democratic senators, Chuck Schumer and Kirsten Gillibrand.  Together, they have introduced “The Quiet Communities Act of 2016.”  The bills (H.R.3384 and S.3197) would bring back EPA’s Office of Noise Abatement and Control.  The legislation focuses on aircraft noise (regulation of which has, since the early 1980s, rested solely in the hands of the FAA), and it’s fairly modest in scope, authorizing a program of studies and grants, not a return to command-and-control regulatory efforts.  However, both bills include a charge to EPA to “assess the effectiveness of the Noise Control Act of 1972” – kind of like checking on the Betamax hiding in your garage closet.

Let’s not get carried away by the imminent descent of the “cone of silence” over our nation, though:  www.govtrack.us gives the legislation a 2 percent chance of being enacted.  But hey, you never know.  All eyes on the spider!

Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

Posted on July 14, 2016 by Seth Jaffe

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) last week dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the purpose of “collecting resource data”.

An image of a "No Trespassing" sign on a tree.

In addition to subjecting violators to civil and criminal enforcement, the law also prohibits use of any data collected as a result of the trespass for any purpose other than enforcement of the statute.

The plaintiffs alleged that the statutes violated the free speech of “whistleblowers” and “citizen scientists”.  Judge Skavdahl wasn’t having any of it.

"Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others.  Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy."

Plaintiffs argued that, in Wyoming, it is often difficult to determine where public lands end and private lands begin.  The Judge was not sympathetic here, either.

"The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes."

The Court also rejected the equal protection claim.  Since Judge Skavdahl had concluded that there was no First Amendment violation, the equal protection claim was not subject to strict scrutiny.  The Court found a rational basis in discouraging trespassing.

Finally, the Judge addressed the issue most significant from my point of view:  May information gathered as a result of a trespass be used in enforcement proceedings?  The statute requires “expungement” of such data.  The Court held that the Supreme Court has largely rejected facial challenges to such provisions.  Since there was no as-applied challenge here, the Court declined to consider the expungement provisions.

Why does this matter?  Because, even in the liberal Commonwealth of Massachusetts, property owners have been concerned that “citizen scientists” may trespass in order to gather endangered species data from private property.  Indeed, there have been occasions where such citizen scientists have found endangered species on private property where the species had not previously been mapped.  Cynical observers have often wondered whether the citizen scientists might have had something to do with the presence of the endangered species on the property!

I don’t really expect Massachusetts to follow Wyoming’s lead – but this is an issue that is much broader than some wild-eyed property rights activists in Wyoming.