Quiet Victory

Landscapers fail to blow away leaf blower bans

Photo credit: Dean Hochman licensed under CC BY 2.0

Recently, the city of Newton, Massachusetts, and town of Maplewood, New Jersey, passed restrictions on the use of gas-powered leaf blowers because of public health, safety and environmental concerns. Gas-powered leaf blowers are a source of substantial pollution as well as deafening noise levels. In both cases, the courts refused to grant emergency relief to the landscapers thereby allowing the ordinances to take effect. Here are the stories of what happened and what they mean. Jamie L. Banks, PhD, MSc, Executive Director, Quiet Communities

By Jeanne Kempthorne, J.D., Co-Chair, Quiet Communities Legal Advisory Council

Landscapers came out swinging to prevent municipalities in New Jersey and Massachusetts from enforcing gas-powered leaf blower ordinances limiting their use. So far, they’ve struck out.

Quiet Communities’ legal advisors have been following the litigation with interest, and have provided legal and technical assistance to municipalities forced to respond to last-minute efforts to stymie enforcement of local ordinances.

Newton, MA

In January 2017, the City of Newton, Massachusetts, a suburb west of Boston, amended its noise ordinance to, among other things, limit the use of leaf blowers between Memorial and Labor Days to the use of a single electric- or battery-powered machine emitting no more than 65 decibels per property. (The previous ordinance had already limited the permissible decibel level to 65, but was rarely enforced). The amendment followed two years of study and hearings by the City Council.

Shortly before Memorial Day when the summer limitations would take effect, a group of landscapers filed a lawsuit seeking to enjoin the enforcement of the amended ordinance. They argued that the ordinance was preempted by state environmental laws concerning air quality and claimed they would suffer irreparable economic injury if the ordinance were enforced. The plaintiffs also raised constitutional due process and equal protection claims, the latter on the basis of the ordinance’s distinction between gas- and non-gas-powered equipment operated at the same decibel level .

The Middlesex Superior Court denied the landscapers’ motion for a preliminary injunction, emphasizing, first, that the landscapers had not proved that they would suffer irreparable harm in the absence of an injunction. The plaintiffs had sworn in affidavits that they would suffer the loss of some business as a result of raising prices in order to comply with the ordinance, which, even if true, falls far short of the necessary proof of irreparable injury.

Turning to the merits, the court concluded that the plaintiffs were unlikely to prevail on their legal claims at trial. Addressing preemption, which the court characterized as the “principal challenge to the Ordinance,” the court stated that the landscapers’ argument lacks merit because “[t]he [state] Air Act . . .  nowhere mentions noise pollution let alone suggests field preemption with respect to noise control.” The court emphasized that state law expressly authorizes municipal noise ordinances–-a fact the landscapers had ignored. Finally, the court summarily rejected the due process and equal protection challenges as unlikely to succeed. The City need merely show that the ordinance is a rational exercise of its police power, and that the distinction drawn between types of equipment is rationally related to a legitimate purpose.

Maplewood, NJ

In early April, the town of Maplewood, New Jersey, adopted an ordinance that prohibits the commercial use of gas-powered leaf blowers from May 15 through September 30. This replaced a previous ordinance that banned the use of equipment louder than 65 dB, an ordinance the Town found nearly impossible to enforce. On May 10, five days before the ordinance was scheduled to take effect, the New Jersey Landscape Contractors Association, “a nonprofit professional organization dedicated to advancing the integrity, proficiency, profitability and personal growth of the landscape professional,” sued the town, its mayor, and the township committee in federal district court in New Jersey seeking to invalidate the ordinance and to enjoin its enforcement.

The NJLCA complained that the ordinance was arbitrary and irrational in distinguishing between commercial and non-commercial users, and therefore ran afoul of the equal protection clause of the Fourteenth Amendment and the state constitution. It also argued that the ordinance was preempted by the federal Clean Air and Occupational Safety and Health Acts. According to the complaint, the Clean Air Act empowered the State of California, and only the State of California, to regulate emissions from two-stroke, “in-use, non-road” engines. California having not done so, no other state or political subdivision of a state may do so. Nor may the town impose other or different requirements to protect workers, NJLCA complains, because OSHA already regulates worker safety.

In opposing the landscaper association’s motion for an injunction, the Town argued that it rationally distinguished between commercial and non-commercial users in terms of intensity and frequency of use. Moreover, the Town rationally concluded that commercial users were unlikely to engage in problem-solving discussions with the neighbors concerning noise and pollution. The Town disputed the premise of the Clean Air Act preemption argument, noting that the ordinance does not purport to regulate emissions. Finally, the Town noted that the landscapers did not merit equitable relief since it was apparent that they had ignored the previous ordinance which banned equipment operating at more than 65 decibels, which most commercial gas-powered leaf blowers do.

After a hearing on the association’s motion for a preliminary injunction, the district court dismissed the landscape association’s complaint without deciding whether the constitutional and preemption arguments had merit. Instead, it ruled that the association lacked legal “standing” to bring the complaint. If an individual landscaper is willing to be named as plaintiff, the complaint may be refiled. So far, that has not happened. Stay tuned . . .

Our take

What these cases illustrate is a burgeoning threat to local initiatives to protect the health and safety of community residents: the misuse of the little-understood preemption doctrine, which is being deployed more and more by business interests to quash democratic action at the municipal level. Instead of acknowledging and addressing the legitimate concerns of the public and industry workers, some in the landscaping industry have chosen to fight local efforts to protect public health and safety in court, forcing municipalities to spend scarce resources defending their right to enact and enforce local ordinances. Happily, the courts are calling them out.

We do not mean to sweep in a pile all players in the landscaping industry. Many responsible landscapers are conscious of the social, health, and environmental impacts of their work and are more than willing to pick up a rake or to use quieter, cleaner, and safer equipment. Ask them! Let’s reward those who are willing to work towards a more healthy, clean, and serene environment with our business.

Originally posted at Quiet Communities.

A victory for residents living near NYC’s LaGuardia Airport!

Photo credit: Eric Salard

If it seems like airplane noise has been in the news lately, it’s because it has.  Whether it’s East Hampton residents petitioning the Supreme Court to overturn an appeals court decision on the town’s proposed airport noise regulations, or an opinion piece debunking a study by a conservative think tank that tries to dismiss legitimate complaints about aviation noise due to the Federal Aviation Administration’s program known as NextGen, airplane noise is an issue that simply isn’t going away.  And with the money and power squarely on the side of the FAA and the airlines, it’s exciting to see residents win a round, as neighbors of LaGuardia Airport did this past week.

Donald Wood, Travel Pulse, writes that “officials from Delta Air Lines announced the carrier will no longer be flying one of its loudest aircraft at New York City’s LaGuardia Airport due to complaints from residents around the facility.”  Specifically, Delta is replacing the noisier MD-88 aircraft “with quieter, more fuel-efficient Airbus A320s, Boeing 737s and several MD-90 mainline aircraft.”  Naturally LaGuardia Airport’s neighbors are thrilled.  Wood writes that the old planes “caused some residents in the Queens borough of New York City to deal with noise so loud that it shook their homes on a near constant basis since the Federal Aviation Administration changed flight paths four years ago.”

The Times Ledger reports that U.S. Rep. Grace Meng (D-Flushing), former co-chair and founder of the Congressional Quiet Skies Caucus, weighed in, saying:

Delta’s move will have a positive impact on airplane noise over our borough, and it will make a difference to those who reside near the airport. I look forward to building on this switch to quieter aircraft and working with airline officials to further mitigate airplane noise.

U.S. Rep. Joe Crowley (D-Jackson Heights) added that:

[Delta’s] move that is not just about improving the quality of the traveling experience but also about improving the quality of life for New Yorkers on the ground. While airplanes can never be truly silent, we can work to make them less disruptive to the families who live nearby and I applaud Delta for taking steps toward that goal.

Here’s hoping Delta and other airlines employ this fix at other airports around the U.S.

 

The war against leaf blowers inches forward:

As another California city mulls ban on blowers of all types.  No doubt some people may wonder why others dedicate time and energy fighting something that seems fairly innocuous, at best, and merely annoying, at worst.  But leaf blowers are not just an annoyance.  Quiet Communities, a nonprofit organization dedicated to protecting our health, environment, and quality of life from the excessive use of industrial outdoor maintenance equipment, has documented the substantial health hazard leaf blowers pose to the health of the operator, those in the vicinity of the activity, and even our pets, too.

So hearing that Ojai, California is considering banning all blowers, both gas-powered and battery-powered, is encouraging.  And yes, there will be push back, but in the end the only reason not to ban leaf blowers is that the alternatives are more expensive.  A fact that is only true if you only consider the additional labor cost and ignore the savings to health and wellbeing.

Time is up for ear-blasting technology,

peaceful washrooms are back.  Do you find the noise produced by electric hand dryers to be jarring or even painful?  You’re not alone.  All electric hand dryers make noise, but some are worse than others, “causing discomfort to all, and unnecessary stress to those with hypersensitivity to noise, hearing problems or conditions such as dementia and autism.”   Fortunately, a quieter alternative may be around the corner.  Quiet Mark announces the launch of its review of hand dryers, stating that it:

[T]ested a broad range of hand dryers and only the quietest, high-performance machines achieved a Quiet Mark award. This universal symbol makes it easier for those in charge of restaurants, bars, leisure centres, shops, libraries, hospitals and public conveniences to consider sound levels when assessing hand dryers for their venues.

Quiet Mark’s testing uses real-life testing environments for accurate result, because “the sound levels of hand dryers in real-life situations have often been underestimated.”  Among other things, Quiet Mark notes that hand dryers are:

[C]ommonly tested in ultra-absorbent acoustic laboratories, rather than in highly reverberant washrooms and toilets, where their loud motor noise can be uncomfortably amplified. They may also be tested without human hands in the airflow, which can add up to 10dB in some cases. The combination of these factors means that the machine can be twice as loud as some test results might show.

You can see Quiet Mark’s review of hand dryers here.

South Pasadena Becomes Nation’s First AGZA Green Zone® City

South Pasedena’s parks and lands are now free of deafening noise and toxic pollution from gas-powered landscape maintenance equipment.

Quiet Communities has announced that South Pasadena has taken the first brave step forward and switched the maintenance of “all 41 acres (!) of municipal lands to advanced electric landscape maintenance equipment and manual tools.”

By transitioning to electric and manual tools, reports Quiet Communities, the city is:

[E]liminating toxic and carcinogenic emissions, greenhouse gas emissions, and hazardous waste associated with the use of gas-powered engines including hydrocarbons and nitrogen oxides (ground level ozone precursors) fine particulate matter, carbon monoxide (CO), and carbon dioxide.  All are known to contribute to serious health problems and environmental degradation.  Schools, businesses, and parks can be enjoyed as peaceful public spaces.  The new equipment will improve working conditions for grounds crews who will no longer have to expose themselves to deafening noise, harmful emissions, or equipment vibrations.  Residents will enjoy a cleaner, healthier environment and improved quality of life.

Quiet Communities is bringing AGZA Green Zones to the East Coast.  To learn more about creating an AGZA Green Zone, click the link above or contact Quiet Communities at: info@quietcommunities.org.