Health agencies have shown little or no concern for environmental noise. As a consequence, most municipal and state health departments—including that of the largest city in the United States—have neither the authority, the equipment, nor the personnel to cope with the noise problem.
Yet the typical municipal anti-noise ordinance contains this type of statement: "Noise of such character, intensity, and duration as to be detrimental to the life or health of any individual is prohibited."
This would seem to place abatement in the hands of the health department. Not necessarily. As in other areas of bureaucratic concern, buckpassing is the rule of the day. Consider the following:
On April 26, 1965, without any advance warning, my doorbell rang, and I admitted a cherubic Health Inspector, Mr. B. He told me he was especially qualified to listen to noise complaints, because he had once written a term paper on noise, and on weekends he moonlighted as a musician. "I am interested in noise because I am a musician," he said. "I personally recognize noise as a health problem or I wouldn't be here." I could have wept for joy at meeting my first sympathetic official.
Mr. B. listened attentively, as—shouting into his ear to make myself heard over the noise from the construction site below my windows—I suggested the TA be told a health problem existed, that muffling was necessary, or at least some reduction of the operating time of nine hours. Although he told me that the Health Department could not pressure another government agency, it just wasn't done, he smilingly promised some kind of action, and disappeared into the bureaucratic maze.
Three months later, two more Health Department inspectors appeared, listened stolidly, and disappeared. They were not musicians.
After waiting a week or so, I called the Health Department. I was curious. I wanted to know what, if anything, was happening, and what instrument that first inspector played. Whoever I talked to told me nothing could be done about my problem. He then complained bitterly of construction noise outside the Health Department building. Not only that, he told me sadly, but he hadn't been sleeping at night because of heavy trucks passing under the windows of his Third Avenue apartment. Automatically switching roles, I promised I'd see what I could do for him, and hung up. I was getting to feel sorry for the members of the Health Department, working in such a noisy city.
Four months later, one of the brass in the Sanitary Section of the Health Department told me the Department is concerned and could act under the Administrative Code's anti-noise section, or under the Sanitary Code's nuisance provision. But my joy was short-lived, because he said regretfully that since construction noise was exempt from the ordinance, I would have to go to court and have a judge hang the label "nuisance" on the air compressors and the rest of the construction apparatus.
One day, the Health Department musician mysteriously reappeared. This time he came in response to my complaint about the operation of a noisy hoist engine, one of two on the site of a new office building being erected just a stone's throw away from my apartment. He heard the gadget's piercing whine, agreed it was a nuisance, and said he would so notify his superiors and the contractor. He left me in uplifted spirits, this time never to return. But not until he ended one frustration, and told me it was the violin he played.
Ten days later a staff member of the Health Department informed me, by telephone, that noise nuisance is no concern of that Department. Seven days later this man's superior informed me the Department did have an interest in noise, and there would be followup action. On one condition: the motor operating the hoist must be defective.
On February 11, 1966, my Health Department contact phoned to tell me that one of the two hoist engines was noisier than the other. My hopes were quickly dashed, though, when he added the information that although noisier, it was ruled not a nuisance. However, the Health Department, in a touching gesture of humaneness, did ask the operator to try to quiet the noisier engine. On March 11 this same contact informed me that the Corporation Counsel had cautioned the Health Department to go easy on noise nuisance because of a lack of standards. Also, one of the inspectors who had visited my apartment and the site had reported that in his opinion no nuisance existed.
I did find out that in 1959 the New York City Health Department had transferred all but one reference to noise from the Sanitary Code to the Administrative Code, to be enforced by the Police Department. "Too many complaints," was the reason I was given. No wonder the Health Department could tell me: "One thousand complaints about noise mean nothing to us. We will help you only if you take your complaint to court and the judge rules it is a nuisance. It's up to the judge to say what's a nuisance, not the Heath Department."
Is it entirely fair to criticize agencies such as the Transit Authority and the FAA for ignoring the public's well-being when health officials do the same? Men who run transportation agencies are not physicians, sociologists, or ecologists. They think primarily in terms of getting things done at the lowest possible cost to their interests. But the commissioner of health in a large city is a man with a wealth of training and experience in medicine and/or preventive medicine.
Health departments came into existence after cholera had killed so many people that the public became aroused. There were no scientific standards 100 years ago, just some commonsense working standards which gave the public health people the power to act without waiting for proof of harm. Today's health departments are content to cope with impure milk and communicable diseases. The only damage to health acknowledged by city health departments is hearing loss experienced after long years of exposure to industrial noise levels. This unrealistic view comes from defining the effect of twentieth-century noise in terms of nineteenth-century medicine.
State health departments are no better. When I exhausted my attempts to get any action from the city health department, I tried some state health departments and found the same neglect. For example, when in 1963 New Jerseyites complained about noise of industrial plants, commercial air conditioners, truck terminals, railroad freight yards and airports, citing interference with sleep, with eating, and "life in general was made miserable," the State Health Department took the position that, "Evaluated against today's standards, these noises are not health hazards. They do not directly produce disease." Perhaps not directly, but how about indirectly?
As for the U.S. Public Health Service, even as late as 1970 it had no community noise program, no guidelines to offer, not even funds for thorough noise surveys.
A point about noise as a nuisance. The San Francisco police, and police of other cities, will arrest prostitutes as nuisances. Nuisance is defined as "something injurious to the health" and "offensive to the senses." The spirochete and the gonococcus can be seen under the microscope; therefore they exist. The decibel is invisible. A prostitute offends the community's sensitivities; the raucous truck, the jet, and the jackhammer do not.
Individuals complaining about disorderly or noisy neighbors frequently find the police indifferent to their complaints. But it is not only the law—both common and statutory—that contributes to the current state of acoustic anarchy; it is the attitude of the courts as well. Just as judges are reluctant to convict for disorderly conduct under the Penal Code, they seem reluctant to convict for any type of noise offense.
It would have been a waste of time to seek a court ruling that the subway project was a nuisance, for another reason. Since the ordinance makes an exception of construction noise, to ask for a ruling of nuisance would be asking a judge to disregard the exemption. Courts are reluctant to take the lead in noise abatement. Though liberal lawyers have argued that the courts have a responsibility to protect the public from noise assault, some jurists reply that it is not for the courts to supplant legislators. "The community must have adequate laws and regulations," they contend, "and not depend upon the courts to act as substitutes."
It is possible that higher courts might take a more progressive view of noise nuisance. But very few noise cases get to be judged on substance. Most, because of lack of funds for appeals, are blocked on legal technicalities by the court of first jurisdiction.
As far as the effectiveness of common law to control noise is concerned, one cannot but agree with the conclusion of David Watts, a New York University law student who wrote a paper on noise and the law: "It is obvious that nuisance law does not adequately cope with noise. Therefore it is appropriate to consider the use of anti-noise ordinances." But, as we have seen, the anti-noise ordinances exonerate the major noise nuisances.
New York City's Police Commissioner Howard Leary gave me the official legal philosophy adopted by his Department in enforcing existing noise restrictions:
It is generally agreed that in noise abatement cases, the courts have concluded that each person must put up with a certain amount of annoyance, inconvenience and interference. In addition, the courts have ruled that in determining the amount of annoyance, inconvenience and interference that must be tolerated, the gravity of the harm to the complainant should be weighed against the utility of the conduct of his troublesome neighbor.
Since not all noisy acts are listed in ordinances, police must judge if an act unspecified by their town's law is a violation. If they are familiar with the "gravity-vs.-utility" doctrine, they are not likely to proceed against a noise that they do not believe is detrimental to health and life. Since the only recognized health damage is hearing loss from years of industrial-type exposure, it is not surprising that police do not get excited about noise in the community.
Discussing a nighttime utility jackhammmer complaint, one desk sergeant put it this way: "So I send a car and the men ask to see a permit. The crew says they forgot it. We check the next night, and it's a new crew. So what if we give a summons? The penalty is so small that it means nothing to the utility. Most judges throw these cases out anyway."
Reluctance to enforce the ban on promiscuous horn blowing is blamed on the strict laws of evidence. A New York policeman explained to me: "If I give a summons and go to court, where I may have to spend a whole day, the judge asks the guy if he blew his horn unnecessarily. The guy can say he blew it because he thought a cat was crossing the street in front of him. Or the judge can give me the third degree: did I actually see this driver put his pinky on his horn? Did I actually see that horn button or ring depressed? It's like with prostitutes—the case gets thrown out for lack of evidence."
One of the most touching excuses for not enforcing a decibel limit for motor vehicles was that given by one English police chief. He felt that enforcing motor vehicle noise laws would deteriorate the relationship between the police and the motoring public!