Railroad Noise Nuisance Lawsuit

In Rushing v. Kansas City Southern Ry. Co. (S.D.Miss. 1998), homeowners brought a private nuisance claim against a railroad company based on noise and vibrations from a railroad switching yard. The federal district court granted the railroad's partial summary judgment motion on preemption grounds. on appeal, the Rushing court reversed, holding that triable issues of fact existed as to whether noise levels complied with the NCA limits, and thus precluded summary judgment on preemption grounds. (Rushing v. Kansas City Southern Ry. Co., supra, 185 F.3d 496.) In discussing Noise Control Act preemption, the Rushing court explained federal preemption as follows: " 'Where a state [law] conflicts with, or frustrates, federal law, the former must give way.' CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S. Ct. 1732, 1737, 123 L. Ed. 2d 387 (1993) (citing U.S. Const., art. VI, cl. 2). Nonetheless, 'a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.' Id. at 664. The Noise Control Act recognizes that it regulates an area of traditional state concern: 'primary responsibility for control of noise rests with State and local governments. . . .' 42 U.S.C. 4901(a)(3). And state common law traditionally governs nuisances. We will find preemption, therefore, only if it is the clear and manifest intent of Congress." (Rushing v. Kansas City Southern Ry. Co., supra, 185 F.3d at p. 510.) The Noise Control Act's preemption provision provides, "After the effective date of a regulation under this section applicable to noise emissions . . ., no State . . . may adopt or enforce any standard applicable to noise emissions resulting from the operation of the same equipment or facility of such carrier unless such standard is identical to a standard . . . prescribed by any regulation under this section." (42 U.S.C. 4916(c)(1).) The Rushing court noted that this section "is decidedly narrow. the Noise Control Act was not designed to remove all state and local control over noise.' And the clause 'in no way suggests that Congress meant for the adoption of any federal noise regulation to bar or displace every state effort to regulate the noise emissions of interstate rail carriers.' Rather, by its terms, the Noise Control Act preempts only those state laws that disparately regulate the same operations that federal regulations govern." ( Rushing v. Kansas City Southern Ry. Co., supra, 185 F.3d at pp. 510-511.)