Advances in technology, operating practices, and capital improvements have turned today’s railroad into a safer, more efficient, and modern operation. But despite these recent advances, or perhaps because of them, plaintiffs’ attorneys continue to come up with new and creative theories for suing railroads, some more successful than others. This article will discuss applicable cases and trends involving one particular claim that is making the rounds – noise nuisances.
FRA Noise Regulations Can Be Enforced. Stricter Regulations Are Preempted.
FRA Part 210 incorporates the requirements established by the EPA under the Noise Control Act of 1972 (42 U.S.C. § 4901, et seq.; 40 C.F.R. Part 201) and provides mandated noise emission standards for various aspects of rail operations. Regulations set standards for activities such as idling locomotives, moving railcars, coupling activities, and hump retarders. 49 C.F.R. Part 210, Appendix A. The FRA regulations mandate compliance and otherwise require railroads to remove noise-defective equipment from service. 49 C.F.R. § 210.7. The Noise Control Act also preempts other, more restrictive standards:
- [N]o State … may adopt or enforce any standard applicable to noise emissions resulting from the operation of the same equipment unless such standard is identical to a standard … prescribed by any regulation under this section.
42 U.S.C. § 4916(c)(1). There is no civil right of action provided for enforcement of either the FRA regulations or the underlying Noise Control Act by private parties. In accordance with federal law, however, plaintiffs can successfully enforce FRA noise emission standards by state common law claims.
As the Noise Control Act indicates, attempts to enforce different or stricter standards have long been held to be preempted by federal law, including the Interstate Commerce Commission Termination Act (“ICCTA”). See, e.g., Rushing v. Kansas City S. Ry. Co., 194 F. Supp. 2d 493, 500 (S.D. Miss. 2001) (holding that plaintiffs’ common law nuisance and negligence claims to enjoin railroad from operating its yard in a manner which causes high levels of noise were preempted by ICCTA). General nuisance claims that do not allege a specific violation of federal noise regulations generally fall into the preempted category. For instance, in Pace v. CSX Transportation, the plaintiffs alleged that the operation of a new side track caused an increase in noise and smoke due to the traffic on the track and made their land virtually unusable. 613 F.3d 1066 (11th Cir. 2010). The circuit court affirmed that all common law claims pertaining to the operation of the siding were expressly preempted. Similar guidance on the effect of nuisance complaints on rail operations has been proffered by the Surface Transportation Board (“STB”). Norfolk Southern – Pet. for Decl. Order, F.D. 35701 (Served Nov. 4, 2013).
A Noise Nuisance Claim by Any Other Name Is Still Preempted.
Rather than tailor their claims to the federal noise regulations, plaintiffs have endeavored to distinguish their claims to avoid preemptive effects. Such was the case in Rushing v. Kansas City Southern, where the claimant included a creative count alleging that hump yard operations created damaging “vibrations” which were separate and apart from the audible noise measured under the FRA standards. 194 F. Supp. 2d at 500. The court correctly recognized that the claim, at bottom, was an attempt to regulate how the railroad conducted its operations. Therefore, the claim was preempted and jurisdiction to hear the matter rested exclusively with the STB under ICCTA.
Plaintiffs have been similarly unsuccessful in styling noise nuisances as inverse condemnation claims. The trend began in an unlikely place, an allegedly mislaid fence in Wisconsin. In Lange, an STB claimant alleged that a railroad erected a fence across a piece of property to which he held legal title and used his land for its railroad operations. On the specific facts and circumstances of the case, the STB permitted the claimant to pursue an inverse condemnation claim in Wisconsin state court for the land the allegedly taken by the railroad. Mark Lange – Pet. for Decl. Order, F.D. 35037 (Served Jan. 28, 2008). Perhaps seeking to extend that limited decision, plaintiffs increasingly attempted to circumvent preemption by coupling noise nuisance allegations with claims for inverse condemnation against railroads.
Courts soon ended the inverse condemnation trend. In response to a petition involving “18 substantially identical lawsuits” concerning “noise and vibration as well as the discharge of smoke, dust, dirt and other particulates,” the STB issued a robust opinion distinguishing Lange and reaffirming ICCTA preemption of common law noise nuisance claims – even when artfully pleaded:
- [I]t is clear that Owners are seeking damages sounding in nuisance related to NSR’s normal rail operations on NSR’s own property—the types of claims that … have long been held preempted under § 10501(b) by both the Board and the courts. It would be inconsistent with the Board and court precedent discussed above for states to make an end run around the well-settled federal preemption of nuisance claims involving the effects of normal rail operations by applying their inverse condemnation statutes to property that has suffered some damage from adjacent rail operations; such action would be no less a state law remedy preempted under § 10501(b) than are common law tort claims that seek compensation for the same alleged harms. To find otherwise would allow states to circumvent the purpose and intent of § 10501(b).
Norfolk Southern – Pet. for Decl. Order, F.D. 35701 (Served Nov. 4, 2013).
Claimants also have alleged intentional conduct in their pursuit of noise nuisance complaints. In Jones v. Union Pacific, the plaintiffs alleged the railroad was intentionally harassing them by blowing locomotive whistles as they passed by and leaving engines idling next to their property. 79 Cal. App. 4th 1053 (2000). The court reversed summary judgment for the railroad and sent the case back to the trial court to hear evidence on the alleged harassment. Today, and barring such evidence of actual, intentional harassment efforts by railroad employees, railroad operational aspects such as idling are squarely within the STB’s exclusive jurisdiction. Delaware v. Surface Transp. Bd., 859 F.3d 16 (D.C. Cir. 2017) (affirming STB decision that state regulation barring “nonessential idling” of locomotives was preempted regulation of rail transportation).
Courts May Entertain Noise Nuisances Based on Allegations of Intentional Conduct and Violations of FRA Noise Regulations, but they Remain Skeptical of Plaintiffs’ Novel Theories.
Still, and despite the clear direction issued by the STB, plaintiffs continue to pursue noise nuisance claims today. Such is the case in Bellevue, Ohio, where local residents have filed a class-action suit against Norfolk Southern alleging excessive noise from the retarders in Moorman Yard.
Norfolk Southern undertook an expansion of Moorman Yard in 2015, resulting in a double-hump classification yard. The plaintiffs filed their complaint in federal District Court for the Northern District of Ohio in March 2017, alleging a nuisance claim against Norfolk Southern and seeking compensatory damages for all property owners residing within 7,000 feet of the yard’s operating retarders. FRA Part 210 prescribes that noise from active hump retarders may not exceed 83 dB as measured from any adjoining non-railroad property. The plaintiffs claim to have measured noise in violation of the regulation at their properties but stated that they were not limiting their claims to noise in excess of the FRA standard. In a novel approach, the complaint contains extensive discussion of the legislative history of the FRA standards and attempts to make a case that the court should disregard the standards. They argue that the rail industry was responsible for setting the standards too high and they should be permitted to recover for all perceived nuisance under the common law. In subsequent filings, the plaintiffs even attempted to revisit inverse condemnation claims, arguing that the federal noise emission standards implemented by the FRA constituted an unlawful taking of their property without just compensation. Plaintiffs later also amended the complaint to request injunctive relief against use of the retarders in the yard.
Fortunately, their efforts have thus far been struck down by the court in respect of the established precedent. In a series of opinions issued to date in the case, the court held that the plaintiffs’ claims are limited solely to damages resulting from noise emissions in excess of the standards set by the FRA under the Noise Control Act. The court specifically found that claims for noises under the federally-established threshold were preempted and dismissed the unconstitutional taking argument. The request for injunctive relief in particular was found to be preempted on its face and dismissed with prejudice. The remaining claims in the case are still pending. Norfolk Southern is represented in the matter by David A. Damico of Burns White in Pittsburgh.
DMG continues to follow developments in this evolving area. Please contact Matthew J. Hammer at 312.422.5874 or mhammer@daleymohan.com with any questions.