New York Governor Kathy Hochul has brought an abrupt end to the aspirations of New York State Legislators, lead by Senator Brad Hoylman, to reduce the noise created by sightseeing helicopters overflying his District in Manhattan. On or about December 16, 2022, Governor Hochul vetoed SB 7493A, colloquially called “Stop the Chop,” which would have, among other things, allowed “any person who shall have suffered interference with the use and enjoyment of private property or public parkland by a rotorcraft used in a manner that creates an unreasonable level of sustained noise at ground level including the interior, balcony, or other outdoor area of a building, shall have a right of action against any person, except a passenger with no control of the operation of the rotorcraft . . .” The purpose of the legislation was to reduce the noise caused by the approximately 165 helicopter operations that overfly Manhattan on sightseeing excursions and airport transportation each weekend.
The basis of Governor Hochul’s veto, anathema to so many voters, was federal preemption. “Airspace is regulated by the federal government, not by the state [and] certain elements of this Bill violate the federal law that regulates airports and airspace.” In that assertion, Governor Hochul is correct. Specifically, Congress has mandated that “the United States Government has exclusive sovereignty over the airspace of the United States.” 49 U.S.C. § 40103(a)(1). Moreover, “a citizen of the United States has a public right of transit through the navigable airspace,” 49 U.S.C. § 40103(a)(2), and only “the Administrator [of FAA] shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitude) for . . . protecting individuals and property on the ground.” 49 U.S.C. § 40103(b)(2)(B).
Therefore, leaving aside the issues of the annoyance caused by the noise from low flying helicopters, and even taking into account ambient noise omnipresent in Lower Manhattan, the dominance of the federal government and its constitutional prerogative in the Interstate Commerce Clause of the United States Constitution, justifies Governor Hochul’s action. The thwarted Legislators have threatened to enact additional legislation banning helicopter terminals from New York parks. Stay tuned for the outcome of that effort.